Jones v. Francis

• Citation: 312 S.E.2d 300,252 Ga. 60
• Decision Date: 31 January 1984
• Docket Number: No. 40383,40383
• Parties: JONES v. FRANCIS.
• Court: Georgia Supreme Court

Page 300

312 S.E.2d 300

252 Ga. 60

JONES v. FRANCIS.

No. 40383.

Supreme Court of Georgia.

Jan. 31, 1984.

J. Matteson, Matteson & Assoc., P.C., Atlanta, for Brandon Astor Jones, a/k/a Wilbur May.

Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., for Robert O. Francis, Warden.

MARSHALL, Presiding Justice.

The appellant, Brandon Astor Jones, a/k/a Wilbur May, and one Van Roosevelt Solomon, were found guilty of having tortured and murdered Roger Tackett, during the course of their armed robbery of a convenience store in Cobb County. Tackett was the manager of the store. Both Jones and Solomon were convicted and sentenced to death. Their convictions and sentences were affirmed on direct appeal. Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982); Solomon v. State, 247 Ga. 27, 277 S.E.2d 1 (1980).

The appellant Jones has now filed a petition for writ of habeas corpus in the Butts Superior Court. The petition was denied by the superior court. We granted the application to appeal. We affirm.

1. First, the appellant argues that he was denied a fair trial because the trial judge permitted a Bible to go out with the jury during its deliberations in the sentencing phase of the trial.

It appears that in closing argument during the sentencing phase of the appellant's trial, defense counsel based his argument to the jury that the death penalty should not be given, by tracing the history of the Bible from a milieu in which the death penalty was imposed for such things as witchcraft and false prophesy, to a new milieu of forgiveness and mercy.

We hold that the trial judge erred in permitting the Bible to go out with the jury. However, we hold that the appellant was not harmed and that the error is not grounds for reversal.

This is not a case such as Farese v. United States, 428 F.2d 178 (5th Cir.1970), where material evidence was secreted into the jury room. See also Watkins v. State, 237 Ga. 678, 229 S.E.2d 465 (1976). Nor is it a case of some "extraneous influence" coming to bear on the jury and giving rise to a presumption of prejudice, which was the situation in the cases cited in Government of Virgin Islands v. Gereau, 523 F.2d 140 (3rd Cir.1976).

2. Second, the appellant complains of that portion of the trial judge's instructions to the jury in which the jury was charged, "Now, it is contended by the State that the Defendant committed the crime charged in this indictment when he, together with the Co-Defendant named in this indictment, conspired to commit the crime of armed robbery and that the murder of the person named in this indictment was an incidental probable consequence of the commission of the armed robbery agreed upon by them."

A review of the prosecuting attorney's closing argument to the jury during the guilt-innocence phase shows that the state was, in fact, contending that the appellant was guilty of a conspiracy to murder and a conspiracy to commit robbery. Cf., Clark v. Louisiana, 694 F.2d 75 (5th Cir.1982). Therefore, the previously quoted portion of the jury charge was somewhat misleading.

However, the jury was also charged, "If a conspiracy is established beyond a reasonable doubt, then any act done by any of the parties pursuant to such agreement is, in contemplation of the law, the act of each of them and they are jointly responsible therefor. This means that everything done by any of the conspirators in accomplishing or furtherance of the common purpose is deemed to have been done by each of them." This is a correct statement of the law of conspiracy.

It is quite true that it has been held that the Eighth Amendment does not authorize imposition of the death penalty upon a person who has participated in a robbery which resulted in a killing, if such person does not himself kill, attempt to kill or intend that killing take place or that lethal force will be employed. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Here, the evidence showed that the appellant participated in shooting the victim, and the evidence was thus overwhelming that the appellant either killed, or intended that a killing take place or that lethal force be employed. Therefore, as in Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63 (1982), and Stanley v. Zant, 697 F.2d 955 (11th Cir.1983), the evidence is sufficient to authorize the murder conviction and death sentence. Cf., Clark v. Louisiana, supra.

Looking to the jury charge as a whole, see, e.g., Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), we hold that the jury could not have been misled in finding the appellant guilty of murder or imputing to him an intent to kill based solely on his participation in the conspiracy to commit armed robbery. Therefore, we find any error in the charge to be nonprejudicial.

3. Third, the appellant argues that he did not receive effective assistance of defense counsel.

As found by the habeas judge, the appellant was represented at trial and on appeal by appointed counsel who was experienced in the trial of civil and criminal cases, including capital cases. He interviewed known witnesses; he consulted with the appellant concerning trial strategy; he sat through the trial of the appellant's co-indictee, Solomon, which trial occurred before the appellant's trial; he filed an assortment of pre-trial motions; and any failure on his part to present witnesses at the sentencing phase of the appellant's trial was due to the appellant's noncooperation.

These facts, as supported by the evidence, lead to the conclusion that counsel was by no means constitutionally ineffective. See Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974); MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960).

4. Fourth, the appellant complains that the trial judge's conduct of voir dire violated his constitutional right to a fair trial in the following respects: (1) his motion for individual, sequestered voir dire was denied; (2) his request for a brief recess before the striking of the jury was denied; and (3) the trial judge invoked the one-minute rule in striking the jury.

The arguments concerning the denial of a request for a recess and the court's invocation of the one-minute rule were resolved adversely to the appellant in his direct appeal. Jones v. State, 249 Ga., supra at pp. 609, 610, 293 S.E.2d 708. As to the trial court's denial of the appellant's request for a sequestered voir dire, this is a matter within the discretion of the trial court, and no abuse of discretion can be established without a showing of prejudice; no showing of prejudice has been made here. Stinson v. State, 244 Ga. 219(2), 259 S.E.2d 471 (1979) and cits.; cf., United States v. Davis, 583 F.2d 190 (5th Cir.1978).

5. Fifth, the appellant argues that the introduction in evidence of his post-arrest statements to the police violated his constitutional rights in that the statements were made involuntarily and without benefit of Miranda warnings.

These statements were made to a private security officer who heard the investigating police officer's radio call for help, and he arrived at the scene to offer assistance. The security officer began asking the appellant questions in order to determine whether another person was on the premises. He asked the appellant what they were doing there, and the appellant responded that they had come to "burglarize the place." The appellant later told the security officer that, "There is a man in the back, hurt ... he is hurt bad, he is bad hurt ... he has been shot."

Pretermitting whether or not the giving of Miranda warnings was even necessary under these circumstances, the record shows that the appellant was given complete Miranda warnings by the investigating police officer before making these statements to the private security officer. See Jones v. State, 249 Ga., supra at p. 606, 293 S.E.2d 708; Williams v. State, 244 Ga. 485, 488, 260 S.E.2d 879 (1979) and cits. Furthermore, the record authorized the trial judge to find that...