Jackson v. State

• Decision Date: 25 March 2013
• Docket Number: No. S12A2083.,S12A2083.
• Citation: 292 Ga. 685,740 S.E.2d 609
• Parties: JACKSON v. The STATE.
• Court: Georgia Supreme Court

292 Ga. 685

740 S.E.2d 609

JACKSON

v.The STATE.

No. S12A2083.

Supreme Court of Georgia.

March 25, 2013.

Dell Jackson, Atlanta, for Appellant.

Katherine Lee Iannuzzi, Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Paul L. Howard, Jr., Dist. Atty., Christopher Michael Quinn, Paige Reese Whitaker, Asst. Dist. Attys., for Appellee.

BENHAM, Justice.

Appellant Jamon Jackson was convicted and sentenced to life in prison plus 20 years for fatally shooting his girlfriend Ashley Cierra White and burning her body inside her vehicle to conceal her death.¹

[292 Ga. 686]1. The record on appeal shows as follows. On Tuesday, August 9, 2005, appellant and the victim were driving around in the victim's silver Honda Civic. Sometime after 11 p.m., they picked up appellant's friend Darnell Amaker and the three continued to ride around the Campbellton Road area. While near a stop sign, appellant and the victim started to argue. Amaker testified that the victim pushed the vehicle gear into park and then proceeded to slap appellant about the face with her open palm. Amaker saw appellant pull out a gun and then put it back down. The victim then pulled her cell phone from her purse and began to dial at which point Amaker said appellant grabbed the phone out of the victim's hand. The victim asked appellant whether he was going to shoot her. In response, appellant pulled out the gun and shot the victim in her face. After saying he “didn't mean to do it,” appellant began driving again. Amaker said he observed that the victim's body was shaking when she was initially shot and that it stopped moving altogether at which point he presumed that she was dead. Appellant eventually pulled the car over, parked it on a street, and he and Amaker exited the vehicle. Amaker said he called Michael Grissom to have his brother Joseph Grissom to come pick them up. Joseph testified that appellant had called him requesting a ride as well. Joseph and his girlfriend both testified that they went to pick up Amaker and appellant and drove Amaker to where he was staying. Joseph and his girlfriend said they drove appellant back to the silver Honda where they observed appellant enter the vehicle and drive away. Neither Joseph nor his girlfriend said they saw a body inside the vehicle. They followed appellant but became separated. Joseph testified that as he was getting ready to turn around and go back home, appellant called him and asked him to wait. Joseph began driving away, but then saw appellant on foot and picked him up and took him home. Joseph said appellant was wearing a different shirt than when they picked him up and that he saw smoke emanating from the area from which appellant was walking. Bennie Grissom, who was the father of Michael and Joseph, testified at trial that appellant confessed to him that he had killed the victim.

On Friday, August 12, 2005, police discovered a burned out car with human remains in Fulton County. The authorities ran the vehicle's license plate number and discovered that the tag was registered to the victim. That evening, a policeman went to the victim's grandmother's house which was the address associated with the license plate and was where the victim lived. At the time the officer arrived, the grandmother was getting ready to go down to the local precinct to file a missing person's report ² because she had not seen the victim since Tuesday morning, the victim had not responded to telephone calls including calls from family and friends wishing her a happy birthday on that Wednesday, the victim had not gone to class on that Thursday, and the victim had not reported to work on Friday evening when her shift started. The victim's grandmother was able to identify photographs of a belt buckle, a ring, and a necklace recovered from the vehicle as items belonging to the victim. At trial, the parties stipulated that items of clothing from the victim tested positive for the presence of gasoline. The victim's mother testified that she flew in from Maryland in order to provide a DNA sample to help identify the remains that were found in the victim's car. A lab analyst from the Federal Bureau of Investigation testified that he conducted mitochondrial DNA testing on a sample from the human remains found in the victim's vehicle and the sample from the victim's mother and concluded from that testing that the remains were that of the victim. The medical examiner testified that she observed projectile fragments in the soft tissue of the victim's brain which would be consistent with being shot in the face. The medical examiner stated in her expert opinion that the victim was deceased before her body was burned. Upon receiving the DNA test results from the FBI confirming the victim's identity, the medical examiner issued a death certificate which stated that the victim's cause of death was a “gunshot wound of the head.”

The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). While the evidence was sufficient to authorize appellant's conviction for tampering with evidence, appellant committed misdemeanor tampering rather than felony tampering because he tampered with evidence in his own case. DeLeon v. State, 289 Ga. 782(1), 716 S.E.2d 173 (2011); White v. State, 287 Ga. 713(1)(d), 699 S.E.2d 291 (2010). Accordingly, the ten-year sentence imposed on appellant for tampering is vacated and the case is remanded for imposition of a sentence for misdemeanor tampering. Id.

[292 Ga. 688]2. Appellant contends the State failed to establish beyond a reasonable doubt Fulton County as the venue of the crimes for which appellant was tried and convicted. Venue is a jurisdictional fact that the State must prove beyond a reasonable doubt. Lanham v. State, 291 Ga. 625(2), 732 S.E.2d 72 (2012). The Georgia Constitution provides that “all criminal cases shall be tried in the county wherein the crime was committed ...” (1983 Ga. Const., Art. VI, Sec. II, Par. VI), and OCGA § 17–2–2(c) provides that

[c]riminal homicide shall be considered as having been committed in the county in which the cause of death was inflicted.... If a dead body is discovered in this state and it cannot be readily determined in what county the cause of death was inflicted, it shall be considered that the cause of death was inflicted in the county in which the dead body was discovered.

OCGA § 17–2–2(c). Amaker, who witnessed the fatal shooting of the victim, did not know the location where appellant shot the victim; however, a College Park police officer testified that the burning car in which the victim's body was found was located in Fulton County. The State met its burden of proving beyond a reasonable doubt that venue properly was in Fulton County. Lanham v. State, supra, 291 Ga. at 626, 732 S.E.2d 72.

3. Appellant alleges the trial court erred when it allowed a videotape of appellant's non-custodial statement to be played to the jury.³ On appeal, appellant argues that the videotape was irrelevant ⁴ inasmuch as it showed that when the lead detective Steven Dimasi left appellant alone in the interview room, appellant briefly opened the investigative file that Detective Dimasi had deliberately left behind. Appellant's arguments are unpersuasive. The trial transcript shows that before the videotape was played to the jury, Detective Dimasi testified on direct examination that he observed appellant from a place outside the interview room and that appellant briefly looked at the file folder Detective Dimasi left behind. Appellant made no objection to Detective Dimasi's testimony and, when the videotape was played to the jury, appellant made no contemporaneous objection as to the relevancy of any footage showing appellant touching the file. In fact, defense counsel made no mention of the relevancy of any of the video footage until after the prosecutor had finished her initial direct examination of Detective Dimasi and then only when the prosecutor was raising a different issue with the trial court about the videotape. We note also that appellant extensively cross-examined Detective Dimasi about appellant's touching the file folder and Detective Dimasi's leaving appellant alone with the file as an investigative technique. Since appellant made no contemporaneous objection when the footage was played to the jury, this argument and purported allegation of error are not properly before this Court for review. See Stolte v. Fagan, 291 Ga. 477(2)(b), 731 S.E.2d 653 (2012); Culler v. State, 277 Ga. 717(6), 594 S.E.2d 631 (2004).

4. Appellant alleges the trial court erred when it denied his motion for mistrial when a portion of the videotape of appellant's non-custodial statement revealed to the jury appellant's prior criminal conduct. According to statements made by the trial court judge in the trial transcript, there was a brief mention made on the videotape of a “possible” prior drug arrest concerning appellant. At the mention of the drug arrest, the trial court immediately ordered the prosecutor to stop playing the videotape, sustained defense counsel's objection, and gave a curative instruction to the jury to disregard any mention of “any other criminal offense” by appellant. The trial court then denied appellant's motion for mistrial. Appellant contends the mishap improperly introduced evidence of appellant's character and constitutes reversible error. We disagree. The decision to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial. Rafi v. State, 289 Ga. 716(4), 715 S.E.2d 113 (2011). Here, the trial court's immediate curative instruction and cessation of the playing of the...