Jones v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.
In the Supreme Court of Georgia
Decided: December 19, 2023
S23A0948. JONES v. THE STATE.
WARREN, Justice.
In September 2019, Cynthia Jones (“Cynthia”) was convicted
of malice murder and related crimes in connection with the
February 2018 shooting death of her husband, Kenneth Jones
(“Kenneth”). 1 She appeals those convictions, contending that the
1 Kenneth was killed on February 1, 2018. On May 1, 2018, a DeKalb
County grand jury indicted Cynthia for malice murder, felony murder
predicated on aggravated assault, felony murder predicated on possession of a
firearm by a convicted felon, aggravated assault, possession of a firearm by a
convicted felon, and possession of a firearm during the commission of a felony.
On August 9, 2019, a jury found her guilty on all counts. In September 2019,
the trial court sentenced her to serve life in prison on the malice murder count,
vacated the felony murder counts, merged the aggravated assault count, and
sentenced her to five years in prison for each of the firearm possession counts,
to serve concurrent with the malice murder count. Cynthia timely moved for
a new trial on October 11, 2019. On July 21, 2021, after an evidentiary
hearing, the trial court entered an order denying Cynthia’s motion for new
trial. Cynthia’s motion-for-new-trial counsel, however, did not realize the trial
court entered that order. Upon discovering entry of the order denying
Cynthia’s motion for new trial on October 18, 2021, Cynthia moved for an out-
of-time appeal on October 25, 2021. The trial court granted Cynthia’s motion
trial court committed harmful error by declining to give a jury
instruction on self-defense. For the reasons explained below, we
affirm.
1. As pertinent to her claim on appeal, the evidence presented
at Cynthia’s trial showed the following. Cynthia was married to
Kenneth, and they had a history of domestic troubles. The Joneses
kept a nine-millimeter handgun in their house.
Joy Fife, one of Cynthia’s daughters, witnessed some of these
troubles. She testified about an altercation she witnessed between
the Joneses at their home in 2015 in which Kenneth arrived home
intoxicated and began arguing with Cynthia. The argument became
“physical,” and Kenneth pinned Cynthia to a wall. Fife intervened
and freed Cynthia. Meanwhile, Kenneth retrieved the couple’s
handgun and “wav[ed] it around.” Officers from the DeKalb County
for out-of-time appeal on October 25, 2021. She filed a notice of appeal on
October 26, 2021. On September 21, 2022, we dismissed Cynthia’s appeal and
remanded the case to the trial court for action pursuant to Cook v. State, 313
Ga. 471 (870 SE3d 758) (2022). She then moved the trial court to vacate and
re-enter the order denying her motion for new trial on October 21, 2022. The
trial court granted that motion on May 15, 2023. Cynthia timely filed a notice
of appeal in this Court on May 15, 2023. The case was docketed to the August
2023 term of this Court, and the case was submitted for a decision on the briefs.
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police department responded and charged Kenneth with simple
battery.
A DeKalb County police officer responded to another incident
at the Jones residence in 2017. That officer testified that Cynthia
and Kenneth appeared intoxicated when he arrived at their home.
Cynthia’s hand was bloodied and there was blood on a broken
window. Cynthia told the officer that “domestic violence is real,” but
would not answer any of the officer’s questions. As a result, the
officer arrested neither Cynthia nor Kenneth.
Other evidence presented at trial shed light on the Joneses’
relationship. One of Cynthia’s daughters, Whitney Barrett, testified
that she had seen the Joneses push each other. Another of Cynthia’s
daughters, Tanzia McLendon, testified that she saw Kenneth shove
Cynthia once. However, neither Barrett nor McLendon ever saw the
Joneses hit, punch, or strike each other. A friend of Cynthia’s
testified that she noticed marks on Cynthia that she surmised were
indicia of physical abuse. And evidence was introduced that in 2016,
Kenneth purchased an accidental death life insurance policy
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insuring his life. As a beneficiary of that policy, Cynthia could have
collected up to $55,000 upon Kenneth’s accidental death.
Other evidence presented at trial included that Kenneth’s cell
phone records showed that Cynthia text-messaged Kenneth in 2017:
“I regret I married you.” Cynthia also text-messaged Kenneth in
2017: “I will never want you again.” Additionally, the Joneses’ next-
door neighbor, Enrique Dent, testified that the Joneses regularly
drank alcohol from the bar in Dent’s living room. From his living
room, Dent heard Cynthia scream, “I’m going to blow his mother
f**king brains out” on more than one occasion. Dent also testified
that he thought that Cynthia was probably “more aggressive” than
Kenneth, although Dent never witnessed physical abuse between
the Joneses.
On the evening of February 1, 2018, Dent was watching
television in his living room when he heard a “loud thud” resound
from the Jones residence. He hurried next door and found Cynthia
sitting beside the front door. Dent asked what was wrong, and
Cynthia muttered, “I didn’t mean to. It was an accident.”
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Cynthia dialed 911 and requested medical attention for
Kenneth. She also told the 911 operator that her house had been
burglarized. When EMTs arrived, they discovered Kenneth lying
face-down in the Joneses’ bedroom. However, Cynthia blocked the
EMTs from approaching Kenneth’s body. After an EMT tried to
remove Cynthia from the room, Cynthia attempted to hit that EMT,
crying, “b**ch, get the f**k off me.” After turning Kenneth over, the
EMTs observed a puddle of blood and at least one shell casing under
his body. Kenneth later died at the house. An autopsy showed that
a gunshot wound caused his death.
As part of their investigation of the crime scene, the police
discovered a nine-millimeter handgun and a “crack shooter,” or
crack pipe, hidden in a laundry basket in the Joneses’ bathroom next
to their bedroom. A GBI firearms expert testified at trial that the
cartridge cases and bullets recovered from the scene were fired from
the nine-millimeter handgun found in the laundry basket.
Later that night, Cynthia recounted the evening’s events
during an interview with a detective at the DeKalb County police
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headquarters. According to Cynthia, she left her house earlier that
day before picking up a “[c]rack rock” and returning to her house.
Cynthia acknowledged, “I’m drinking, I’m on alcohol. I’m smoking
weed. I’m snorting powder and I smoke [c]rack.” After taking “a hit
for [c]rack,” Cynthia moved the Joneses’ handgun from its usual
place in a chest-of-drawers to Cynthia’s nightstand. Kenneth
arrived home and the two began arguing, pushing, and “tussling,”
but Cynthia did not “remember [a] gun getting involved in that.”
Cynthia retrieved the gun from the nightstand and exclaimed, “you
going to get your f**king hands off me. You don’t keep handling me.
I’m sick of this bulls**t.” Kenneth began “cussing,” and the gun
“went off,” according to Cynthia.
Cynthia recalled that she and Kenneth were across the bed
from each other when the shooting occurred. When she “came
around the bed, [Kenneth] was on the floor.” But she insisted that
she “wouldn’t do nothing to hurt” Kenneth and that she “did not
mean to shoot this man.” She also told the detective: “[m]aybe I shot
the gun, probably did, most likely I did. I did it,” and “I am sure I
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did” shoot Kenneth. When the detective asked Cynthia why she
escalated the conflict by shooting Kenneth, Cynthia answered, “I
don’t know. He just went to talking [indiscernable] and I was
already high.”
During the interview, Cynthia also made general observations
about her marriage with Kenneth. She stated that Kenneth had
been caught kissing a former next-door neighbor a couple of years
before the shooting. She also stated, “[m]y husband done whoop me,
I ain’t call no police. I just took it,” and “[b]ruises all over my body,
I mean I should have just took pictures not long [sic] and I could
have something to show for it.” Cynthia also observed that “when
my husband gets drunk he says some awful s**t to me. He call me
all kind of motherf**kers and I call you that back.” She also noted
that Kenneth was “an old f**king drunk man,” and that “alcohol is
his problem. And crack cocaine is mine.”
At trial, Cynthia argued that she accidentally shot Kenneth.
The trial court instructed the jury on accident but declined Cynthia’s
request to instruct the jury on self-defense.
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After being convicted of malice murder and the other crimes
noted above, Cynthia moved for a new trial. At the motion-for-new-
trial hearing, she argued that the trial court’s failure to give a self-
defense instruction was harmful error. In its order denying
Cynthia’s motion for new trial, the trial court noted that it refused
“a self-defense charge [at trial] because Defendant never explicitly
admitted that she had shot the victim and never made any explicit
claims about why she did so.” The trial court also explained that a
self-defense instruction was, in this case, “incompatible with [an]
accident claim,” on which it did instruct the jury. However, the trial
court concluded that in refusing the requested self-defense charge,
it had erred because under McClure v. State, 306 Ga. 856 (834 SE2d
96) (2019) “a defendant need not admit to anything in order to be
entitled to an affirmative defense charge, so long as there is slight
evidence to support it, and . . . a defendant need not choose between
different affirmative defenses.” But the trial court concluded that
its error was harmless because trial counsel argued only that the
shooting was an accident (i.e., not self-defense) in his opening
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statement and because the evidence presented at trial did not show
that Kenneth threatened Cynthia with imminent physical harm
immediately before the shooting.
2. In her only claim of error, Cynthia contends that the trial
court committed harmful error by declining to instruct the jury on
self-defense. Assuming without deciding that there was slight
evidence of self-defense and that the trial court in fact erred in
declining to instruct the jury on self-defense, Cynthia’s claim fails
because she has not shown that any such error was harmful.
A nonconstitutional instructional error is harmless if “it is
highly probable that the jury would have reached the same verdict
even had the trial court given the charge.” Guerrero v. State, 307
Ga. 287, 289 (835 SE2d 608) (2019). See also Jones v. State, 310 Ga.
886, 889 (855 SE2d 573) (2021) (“The test for determining whether
a nonconstitutional instructional error was harmless is whether it
is highly probable that the error did not contribute to the verdict.”)
(citation omitted). To make this determination, “we review the
record de novo, and we weigh the evidence as we would expect
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reasonable jurors to have done so as opposed to viewing it all in the
light most favorable to the jury’s verdict.” Carter v. State, 308 Ga.
589, 593-594 (842 SE2d 831) (2020) (citation omitted).
As applied here, we examine the evidence presented at trial to
determine whether “it is highly probable that the jury would have
reached the same verdict even had the trial court given the charge”
on self-defense under OCGA § 16-3-21. See Guerrero, 307 Ga. at
289. See also Jones, 310 Ga. at 889-890. That statute provides, in
part:
A person is justified in threatening or using force against
another when and to the extent that he or she reasonably
believes that such threat or force is necessary to defend
himself or herself or a third person against such other’s
imminent use of unlawful force; however, except as
provided in Code Section 16-3-23, a person is justified in
using force which is intended or likely to cause death or
great bodily harm only if he or she reasonably believes
that such force is necessary to prevent death or great
bodily injury to himself or herself or a third person or to
prevent the commission of a forcible felony.
OCGA § 16-3-21 (a).
We conclude that the trial court’s assumed error in declining to
provide a self-defense instruction did not contribute to the jury’s
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verdict. The evidence presented at trial that Cynthia shot Kenneth
in self-defense was weak: Cynthia presented evidence of past
violence between her and Kenneth, as well as evidence that she and
Kenneth “tussled” with each other and that Cynthia told Kenneth to
“get [his] f**king hands off [her]” on the night of the shooting. But
to the extent Cynthia offered this evidence to show that she
reasonably believed that using deadly force was “necessary to
prevent death or great bodily injury to . . . herself” on the night of
the shooting, it was weak at best. See OCGA § 16-3-21 (a). To that
point, evidence was presented that the handgun the Joneses kept in
their house was not involved in that “tussling,” and there was no
evidence that Kenneth wielded a weapon at any point on the night
of the shooting. Moreover, Cynthia told a detective that she was
“sure” she shot Kenneth, and she declined to state a reason—let
alone a reason related to self-defense—for doing so. See, e.g., Jones,
310 Ga. at 889 (holding that the trial court’s pretermitted error in
failing to charge on defense of self or a third person was harmless
because “to the extent there was any evidence supporting a charge
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on defense of self or a third person, it was meager at best” and a
video recording of the shooting showed that the defendant was not
in such danger that he reasonably believed that it was necessary to
fire his gun to protect himself or his friend); Calmer v. State, 309
Ga. 368, 372-373 (846 SE2d 40) (2020) (assuming that slight
evidence existed to support the requested charges on self-defense
and no duty to retreat, the trial court’s failure to charge on these
principles was harmless error because “any weak inference that [the
defendant] acted to prevent death or great bodily injury to himself
is wholly undercut by other evidence to the contrary”). Additionally,
Cynthia’s emphasis at trial on her accident defense would have
undermined a claim of self-defense—especially given the lack of
evidence Cynthia presented to support the self-defense theory. To
that end, evidence was presented that immediately after the
shooting, Cynthia told Dent the shooting “was an accident,” and trial
counsel said in her opening statement that the shooting was a
“tragic accident.” Cf. McClure, 306 Ga. at 866 (Nahmias, P.J.,
concurring) (“[O]ur opinion today should not cause trial courts to
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worry too much if they fail to give an instruction on an alternative
defense that is supported by only the slightest evidence and that is
inconsistent with the defendant’s own account of the events or with
the main defense theory presented at trial. Such an omission will
likely be harmless error and almost certainly will not amount to
plain error.”).
Given the evidence presented at trial and recounted in part
above, “it is highly probable that the jury would have reached the
same verdict even had the trial court given the charge” on self-
defense. Guerrero, 307 Ga. at 289. We therefore conclude that the
trial court’s error, if any, in declining to charge the jury on self-
defense was harmless. See id.
Judgment affirmed. All the Justices concur.
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