Jones v. State

• Decision Date: 07 November 2005
• Docket Number: No. S05A1195.,S05A1195.
• Citation: 622 S.E.2d 1
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

Page 1

622 S.E.2d 1

JONES v. The STATE.

No. S05A1195.

Supreme Court of Georgia.

November 7, 2005.

COPYRIGHT MATERIAL OMITTED

Reginald L. Bellury, Milledgeville, James C. Bonner Jr., Georgia Public Defender Council, Atlanta, for Appellant.

Fredric Daniel Bright, Dist. Atty., Hon. Thurbert E. Baker, Atty. Gen., Vonnetta Leatrice Benjamin, Asst. Atty. Gen., for Appellee.

CARLEY, Justice.

A jury found Appellant Devon Scott Jones guilty of the following offenses: malice murder of Marcus Hill and Angela Lawson; burglary of their apartment; armed robbery of Mr. Hill; and theft of an automobile which was in Mr. Hill's possession, but which belonged to James Harpp. Although the State sought the death penalty for the murders, the jury returned sentences of life imprisonment without parole. With regard to the remaining crimes, the trial court imposed a consecutive life sentence for armed robbery and consecutive 20-year sentences for burglary and theft. The trial court denied a motion for new trial, and appellant brings this appeal.¹

1. Appellant challenges the sufficiency of the evidence to support the findings of his guilt for the murders, contending that the State failed to prove that he fired the shots which killed Mr. Hill and Ms. Lawson.

The prosecution showed that Appellant, acting in concert with three others, planned and executed a scheme to rob Mr. Hill. During the course of that criminal conspiracy, the four drove in Appellant's automobile to the apartment shared by Mr. Hill and Ms. Lawson. He, along with two of the accomplices, armed themselves and entered the apartment. Thereafter, one of the three took the keys to a car which was in Mr. Hill's possession, but which had been stolen from Mr. Harpp some months previously. Both victims were fatally shot. The four perpetrators then fled, with one or more driving off in Mr. Harpp's vehicle. When Appellant was arrested, he was in the process of ransacking the stolen car. Thus, Appellant's "conduct before, during, and after the fatal shooting[s] was evidence supporting the finding that even if [he] was not the trigger man, he intentionally aided and abetted [the] murder[s]. [Cit.]" Hewitt v. State, 277 Ga. 327, 329(1)(a), 588 S.E.2d 722 (2003). In light of this evidence, a failure to prove which of the four co-conspirators was the actual shooter would not preclude the return of guilty verdicts against any or all of them for the murders.

When construed most strongly in support of the jury's verdicts, the evidence is sufficient to authorize a rational trier of fact to find proof of Appellant's guilt of the two counts of malice murder, as well as the offenses of burglary, armed robbery and theft, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant urges that his trial counsel was ineffective. To prevail on that claim requires that he show that the counsel's performance was deficient and that, but for the deficient performance, a reasonable probability exists that the trial would have ended differently. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In making this showing, Appellant must rebut by clear and convincing evidence the strong presumption that his attorney was effective. Flanigan v. State, 269 Ga. 160, 162-163(2)(d), 496 S.E.2d 255 (1998). However, appellant did not call trial counsel to testify at the hearing on the motion for new trial, and without such testimony, "`"it is extremely difficult to overcome this presumption." (Cit.)' [Cits.]" Morgan v. State, 275 Ga. 222, 227(10), 564 S.E.2d 192 (2002). Moreover, the trial court, having heard the evidence which Appellant did present, concluded that he failed to rebut the presumption that his counsel performed effectively. On appeal, "'"[w]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." (Cit.)' [Cit.]" Cooper v. State, 279 Ga. 189, 191(2), 612 S.E.2d 256 (2005).

(a) Appellant's initial assertion of ineffectiveness relates to testimony given by Curtis Trippe. Trippe was one of the four charged with the crimes, but he entered into a plea bargain and agreed to testify for the prosecution against Appellant. He contended that he stayed in Appellant's car while the three others entered the apartment. During the course of Trippe's testimony, he related certain conversations he had with two of the accomplices who returned to the automobile while Appellant remained behind. The substance of these conversations concerned the acts Appellant perpetrated in the victims' residence. Appellant urges that this testimony was inadmissible hearsay, and that his lawyer was ineffective for failing to object to it on that ground.

"After the fact of a conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all." OCGA § 24-3-5. Under this statute, a "conversation overheard between co-indictees out of the presence of the defendant is admissible. [Cit.]" Hutchins v. State, 229 Ga. 804, 806(1), 194 S.E.2d 442 (1972). Therefore, testimony by Trippe concerning the out-of-court statements attributed to two of the other co-conspirators was admissible, and the failure to raise a non-meritorious hearsay objection does not constitute ineffective legal representation. See Burgess v. State, 278 Ga. 314(1), 602 S.E.2d 566 (2004).

Appellant further urges that, even if the testimony was admissible under OCGA § 24-3-5, Trippe nevertheless was an inherently unreliable witness. However, a witness' credibility was a matter for the jurors to determine, and was not a factor in the admissibility of his testimony for their consideration. Appellant does not contest the effectiveness of the cross-examination of Trippe or attack the closing argument to the jury with regard to his possible unreliability. Therefore, the trial court properly concluded that Appellant failed to show any ineffectiveness in defense counsel's trial tactics to counter Trippe's appearance as a witness for the prosecution.

(b) Appellant also urges that a green shirt belonging to him should have been introduced into evidence. He contends that, because no blood splatters were found on it, the shirt was exculpatory as tending to show that he was not the shooter. However, there was no proof that Appellant wore that particular shirt at the time the crimes were committed in the victims' apartment. It was simply discovered in Appellant's car after his arrest. Moreover, whether or not he was the actual shooter was immaterial to his guilt or innocence if he was shown to be a party to the murders. Blood consistent with Mr. Hill's was found on Appellant's shoe. This placed him at the scene and showed that he participated in the conspiracy, and was evidence of his guilt even if he did not fire the fatal shots. Thus, the bloodless shirt had limited relevancy, if it was relevant at all.

In any event, the record shows that, during the trial and in closing argument, the jury was informed of the discovery of the shirt and its lack of blood splatters. Under these circumstances, it appears that defense counsel reasonably concluded that the introduction of the shirt itself into evidence was superfluous and not crucial to the defense.

Because his trial attorney did not testify on the motion for new trial, [Appellant] "`made no affirmative showing that the purported (evidentiary) deficiencies in his trial counsel's representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.' (Cit.)" [Cit.]

Morgan v. State, supra.

3. According to the armed robbery count, Appellant used a pistol to take the keys to Mr. Harpp's automobile from Mr. Hill's immediate presence. The separate theft count cited Mr. Harpp's car as the stolen property. Appellant contends that these two offenses merged as a matter of fact, so that it was error to convict and sentence him for both.

The key question in determining whether offenses have merged is whether the different offenses are proven with the same set of facts. "For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge." [Cit.]

Johnson v. State, 247 Ga.App. 157, 162(10), 543 S.E.2d 439 (2000), overruled on other grounds, Owens v. State, 271 Ga.App. 365, 369(3), 609 S.E.2d 670 (2005). The keys and the vehicle are two entirely separate items of property. The keys were taken from Mr. Hill's presence by use of a weapon. Subsequently, the keys were used to steal Mr. Harpp's car. Thus, although Mr. Hill was in possession of both the keys and the car, the two offenses were based on two distinct acts of taking occurring at different times at different locations. See Holt v. State, 239 Ga. 606, 607, 238 S.E.2d 399 (1977). See also Lewis v. State, 261 Ga.App. 273, 275(2), 582 S.E.2d 222 (2003).

Appellant's reliance on Bland v. State, 264 Ga. 610, 612(4), 449 S.E.2d 116 (1994) is misplaced. Bland stands for the correct proposition that where one victim is robbed of multiple items in a single transaction, only one robbery is committed. See also Tesfaye v. State, 275 Ga. 439, 442(4), 569 S.E.2d 849 (2002); Creecy v. State, 235 Ga. 542, 543(5), 221 S.E.2d 17 (1975); Randolph v. State, 246 Ga.App. 141, 144(1), 538 S.E.2d 139 (2000). Here, however, Appellant was not charged with two robberies, but with one armed robbery and one theft. The armed robbery, as alleged in the indictment, was complete when he or one of his co-conspirators used a weapon to take the keys from Mr. Hill's immediate presence. Had the perpetrators ended their crime spree at that point, no additional offenses would have been committed. However, Appellant or one of the accomplices subsequently used the key to gain entry to Mr....