Jones v. State, No. S00P1316.

• Court: Supreme Court of Georgia
• Writing for the Court: SEARS, Justice.
• Citation: 539 S.E.2d 154,273 Ga. 231
• Docket Number: No. S00P1316.
• Decision Date: 20 November 2000
• Parties: JONES v. The STATE.

539 S.E.2d 154
273 Ga. 231

JONES
v.
The STATE

No. S00P1316.

Supreme Court of Georgia.

November 20, 2000.

Reconsideration Denied December 14, 2000.

539 S.E.2d 157

Albertelli & Israel, Kenneth T. Israel, Ray B. Gary, Jr., Mitchell D. Durham, Marietta, Clive A. Stafford Smith, New Orleans, LA, for appellant

Patrick H. Head, District Attorney, Maria B. Golick, Russell J. Parker, Thomas A. Cole, Assistant District Attorneys, Thurbert E. Baker, Susan V. Boleyn, Senior Assistant Attorney General, for appellee.

539 S.E.2d 155

539 S.E.2d 156

SEARS, Justice.

Brandon Astor Jones, also known as Wilbur May, was convicted of murder and sentenced to die in 1979.¹ In 1989, his death sentence was vacated by a federal district court.² A re-sentencing trial was held in 1997 and the jury recommended a death sentence after finding beyond a reasonable doubt that Jones committed the offense of murder while engaged in the commission of armed robbery and burglary and that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture to the victim before death.³ This is Jones's appeal from the re-sentencing verdict.⁴ At the outset, we note that in this appeal Jones does not raise an Eighth Amendment challenge to the method of execution, electrocution, that has been imposed against him. For the reasons that follow, we affirm.

1. Viewing the evidence in the light most favorable to the prosecution, the evidence

539 S.E.2d 158

showed that the victim, Roger Tackett, was the manager of a Tenneco convenience store. On June 16, 1979, he arrived at the store at 11:20 p.m. to close it for the night. After the other employees left, Tackett remained at the store to complete some paperwork. At approximately 1:45 a.m., Officer Kendall of the Cobb County police department drove a stranded motorist to the Tenneco parking lot so she could use a pay phone. Officer Kendall observed a car (Tackett's) parked in front of the store with the driver's-side door open; the lights were also still on inside the store. Since the Tenneco store was in his regular patrol area, Officer Kendall knew that it usually closed at midnight. Suspicious, he walked to the store and saw through the front window Brandon Jones stick his head out of the storeroom door at the back of the store, look around (apparently [273 Ga. 232] without seeing the officer), and then close the storeroom door. Officer Kendall entered through the unlocked front door and heard three shots, a pause, and then a fourth shot. He drew his weapon and after shouting "police, come on out" without a response, approached the storeroom door and opened it. Jones and his co-defendant, Van Roosevelt Solomon, were standing just inside the door. Officer Kendall ordered them into the main store area, where he searched them and handcuffed Jones. He placed Solomon in his patrol car since he only had one set of handcuffs, and called for assistance on the radio. He also informed both defendants of their rights under Miranda v. Arizona.⁵

A private security officer, Alex Woolyard, heard Officer Kendall's request for assistance on a police scanner and arrived first. He loaned Officer Kendall a set of handcuffs to restrain Solomon and watched the defendants while Officer Kendall investigated a van parked nearby. During this time, Woolyard spoke with Jones and determined that the car parked in front of the store did not belong to them; they had arrived in the van. Upon continued questioning by Woolyard, Jones stated that they had come to burglarize the store and found a man who was "bad hurt" in the back of the store. After handcuffing Jones to a metal pole, Woolyard and Officer Kendall entered the store and discovered that the storeroom door had locked when it shut as the defendants exited. They used a crowbar to break open the door and they found Tackett's body lying face-down at one end of the narrow storeroom (Officer Kendall had not seen the victim when he first encountered the defendants in the storeroom since he did not enter the storeroom at that time). Tackett had been shot five times from behind, once in the jaw, once behind the left ear, once in the thumb, and twice in the right hip. The medical examiner determined that the fatal shot was the "loose contact" shot behind the left ear since that bullet penetrated the brain; this shot was probably the final shot and was fired while the victim was lying on the ground. Two .38 caliber revolvers were found in an open box next to where Officer Kendall had first encountered the defendants. A large Smith and Wesson contained two spent shells; a smaller Colt contained four spent shells. Four .38 caliber bullets were recovered at the scene or in the victim's body; the ballistics expert determined that all were probably fired by the Colt. Crime scene photographs also show a possible bullet hole in a shelf on the wall, indicating a fifth shot may have been fired in the storeroom. An atomic absorption test conducted on swabs of the defendants' hands indicated that both men had recently fired a gun or handled a recently fired gun. The store's cash drawer [273 Ga. 233] was found moved from its original place inside the store and wrapped in a plastic bag. Inside the van, which belonged to Solomon, the police discovered burglary tools, holsters that fit the revolvers and .38 caliber bullets.

We find that the evidence adduced at Jones's re-sentencing trial was sufficient to enable any rational trier of fact to find the existence of the statutory aggravating circumstances beyond a reasonable doubt.⁶

2. Jones claims that sentencing him to death after two decades on death row

539 S.E.2d 159

is an affront to human dignity. This "waiting for execution is intolerably cruel" argument is without merit.⁷ To the extent that Jones also makes a speedy trial claim with regard to the eight-year delay in bringing him to trial after his sentence was vacated, that claim fails for three reasons.⁸ First, there is no evidence that Jones asserted his right to a speedy trial before trial.⁹ Second, much of the delay is attributable to Jones's actions in that he frequently refused to cooperate with his appointed counsel and repeatedly sought to have them replaced, and that he appealed the denial of a plea in bar and sought a separate interim review, each requiring considerable time to litigate.¹⁰ In addition, one of the superior court judges assigned to the case was appointed to this Court, and two others recused themselves on defense motions, one because she had years earlier worked on Jones's case as an assistant district attorney and one because she had a sister in the district attorney's office. This resulted in a delay that cannot be fairly attributed to the prosecution. Third, Jones fails to show how he was prejudiced by the delay since his murder conviction was unaffected by the federal courts and he was, in any event, required to serve at least a life sentence.¹¹ There is no evidence that his defense was impaired; in fact, several of his mitigation witnesses testified that they did not become acquainted with Jones until they read articles he had written in the mid 1990s. We therefore find no speedy trial violation. There is also no evidence to support Jones's assertion that his jury was aware that he had previously been sentenced to death.

3. During deliberations, the jury sent a note to the trial court asking, "Is a life sentence considered life without parole or will parole be considered?" The trial court responded that this "is not a question [273 Ga. 234] for your deliberations."¹² This response was not error.¹³

4. Jones claims that the prosecutor erred by commenting on Jones's right to remain silent when he argued Jones's lack of remorse during closing argument. However, it is not improper to argue the defendant's lack of remorse in the penalty phase, nor do such comments amount to an improper reference to a defendant's failure to testify.¹⁴ Several of Jones's mitigation witnesses testified about his numerous articles published in magazines and on the Internet and their frequent correspondence with him, but the prosecutor pointed out that none had mentioned any expression of remorse by Jones. Further, it is not improper for the prosecutor to urge that mercy is not appropriate in the case at hand,¹⁵ or to argue Jones's future dangerousness.¹⁶ The argument that Jones's autopsy expert's conclusions may have been affected by her failure to utilize the original Polaroid photographs of the autopsy was a reasonable inference.¹⁷ We therefore find no error in the State's closing argument or any prosecutorial misconduct. We also find no error in the victim-impact evidence presented

539 S.E.2d 160

by the State or in the cross-examination questions posed to Jones's mitigation witnesses.¹⁸ There was no reversible error due to the victim's daughter identifying a photograph of the victim in life since Jones did not object and there was no emotional display.¹⁹

5. After the jury had been deliberating about ten hours, they sent a note to the trial judge stating that they were at an "impasse," that the vote was 11-1 for a death sentence, and that "one juror is opposed to the death penalty under any circumstances." Although the trial court learned of the nature of the split, there is no error since the jury volunteered this information without prompting by the judge.²⁰ The trial court gave a modified Allen²¹ charge and the jury returned with a death sentence three hours later and was polled as to its verdict. Jones asserts that the trial court should have declared a [273 Ga. 235] mistrial when the jury announced its impasse, and that the charge was coercive. However, a trial court does not err by requiring a jury to continue deliberating under these circumstances; it is not required to accept a jury's declaration of deadlock.²² The modified Allen charge was not improper and the three hours from the charge to the verdict further indicates a lack of coercion....