Jones v. State

• Decision Date: 09 May 2016
• Docket Number: No. S16A0498.,S16A0498.
• Citation: 785 S.E.2d 886,299 Ga. 40
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

299 Ga. 40

785 S.E.2d 886

JONES

v.The STATE.

No. S16A0498.

Supreme Court of Georgia.

May 9, 2016.

Cynthia Wright Harrison, Atlanta, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Lenny I. Krick, Tamara L. Ross, Shannon E. Hodder, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.

MELTON, Justice.

Following a jury trial, Antonio Jones was found guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a felony in connection with the shooting death of Akili Stewart.¹On appeal Jones contends that the evidence presented at trial was insufficient to support his convictions and that the trial court erred with respect to various evidentiary matters.We affirm.

1.Viewed in the light most favorable to the jury's verdict, the evidence reveals that, on March 28, 2012, Jones and Cory Thomas went to a home on Lee Street in DeKalb County, where Jones had been renting a room.When Jones and Thomas arrived at the home, Stewart and Terry Roach were already there.Jones and Thomas appeared to be high on some sort of drug when they arrived, and stated, while laughing, “We turning up,” meaning that they were in a hyped up state.Jones sat down on the sofa, but eventually jumped up, pulled out a 9 millimeter handgun, and began laughing and pointing the gun at Stewart.Roach asked Jones what he was doing, and Jones put the gun back into his waistline.However, Jones soon pulled out the gun again and shot Stewart five times, killing him.

Roach ran out of the house just as another friend of his was arriving at the door.This friend saw Stewart's dead body on the floor of the house, and Roach said to the friend that Jones and Thomas had killed him.Roach's friend immediately left the scene, and Roach left the scene in his own car.Roach called 911 to report the murder as Jones and Thomas pursued him in another car.Jones and Thomas called Roach several times after the shooting and told him to stay quiet about it, and they also enlisted Jones' cousin, an individual with nickname “Black,” to call and threaten Roach in order to get him to stay quiet about the murder.

The night after the murder, Jones and Thomas attempted to dispose of Stewart's body by dumping it in a Walton County utility easement and lighting it on fire, but a witness saw the flames from the highway and called the police.While this witness was on the phone with 911, Jones and Thomas saw him, drove by him as they were leaving the scene in Jones' car, shot at him, and sped off.

This evidence was sufficient to enable a rational trier of fact to find Jones guilty of all of the crimes of which he was convicted beyond a reasonable doubt.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.For the first time on appeal, Jones contends that the trial court erred in admitting into evidence the testimony of Francis Spiller, the State's expert witness on geo-cell phone analytics, because the State did not establish that the scientific techniques involved in geo-analytics were valid and capable of producing reliable results.SeeOCGA § 24–7–707(“In criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses”);Harper v. State,249 Ga. 519, 525(1), 292 S.E.2d 389(1982)(in order for scientific principle or technique to be admissible, the trial court must determine “whether the procedure or technique in question has reached a scientific stage of verifiable certainty”).²Due to the fact that Jones did not object to Spiller's testimony at trial on the basis that he now asserts on appeal,³ our analysis of this issue is limited to a review for “plain error [ ] affecting substantial rights.”OCGA § 24–1–103(d).

Specifically:

First, there must be an error or defect—some sort of “[d]eviation from a legal rule”—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant.Second, the legal error must be clear or obvious, rather than subject to reasonable dispute.Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the trial court proceedings.”Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”

(Punctuation and emphasis omitted.)

State v. Kelly,290 Ga. 29, 33(2)(a), 718 S.E.2d 232(2011), quotingPuckett v. United States,556 U.S. 129, 135(II), 129 S.Ct. 1423, 173 L.Ed.2d 266(2009).See alsoGates v. State,298 Ga. 324(3), 781 S.E.2d 772(2016).“[B]eyond showing a clear or obvious error, ‘plain-error analysis ... requires the appellant to make an affirmative showing that the error probably did affect the outcome below.’ ”(Citation and punctuation omitted.)Gates,supra, 298 Ga. at 327(3), 781 S.E.2d 772.

Here, assuming without deciding that Jones could show any clear or obvious error in the trial court's admission of Spiller's testimony, he cannot “affirmative[ly] show [ ] that the [alleged] error probably did affect the outcome below.”Shaw v. State,292 Ga. 871, 873(2), 742 S.E.2d 707(2013).Spiller's testimony was used to indicate how the police were able to determine that, on the day of the murder—but the day before the victim's body was disposed of by being burned—Jones' cell phone was located “about fourteen miles from [where] the [victim's] burned body [was found].”Setting aside the fact that Spiller's testimony did nothing to actually place Jones at the scene of the murder or the specific location where Stewart's body was burned, ample evidence actually placed Jones at the murder scene and the location where he and Thomas attempted to cover up the crime, and further identified Jones as the man who killed Stewart by shooting him five times.The evidence also revealed that Jones made further efforts to cover up the crime by threatening an eyewitness to the murder itself.In light of the overwhelming evidence of Jones' guilt, “it cannot be said that any error in the admission of [Spiller's testimony] likely affected the outcome below.”Gates,supra, 298 Ga. at 328(3), 781 S.E.2d 772.

3.In the absence of an objection at trial, Jones argues that the trial court committed plain error by allowing the State to elicit testimony from GBI Investigator Elizabeth Bigham, in which she stated that the information that she obtained from Roach during her investigation was more consistent with other evidence collected than the information that she obtained from Jones.Jones asserts that this testimony from Investigator Bigham constituted improper bolstering of Roach's testimony.SeeOCGA §§ 24–6–608and24–6–611.We find no plain error.

In order to succeed on his claim of plain error, Jones must show, among other things, a legal error that is “clear or obvious, rather than subject to reasonable dispute.”Kelly,supra, 290 Ga. at 33(2)(a), 718 S.E.2d 232.Here, Jones cannot show such a clear or obvious error.More specifically, although

it is improper to ask a testifying [witness] whether another witness is lying....[The Eleventh Circuit has held that] it is often necessary ... to focus a witness on the differences and similarities between his testimony and that of another witness.This is permissible provided he is not asked to testify as to the veracity of the other witness.

(Citation and punctuation omitted; emphasis supplied.)United States v. Schmitz,634 F.3d 1247, 1268–1269(IV)(D)(11th Cir.2011).See alsoUnited States v. McGill,815 F.3d 846, 914(XIII)(D)(D.C.Cir.2016)(questioning “designed to compare the defendant's factual account with other witnesses' and allow jurors to draw their own conclusions” is “ unobjectionable”)(citation omitted).⁴

In the instant case, it is not clear that the testimony in question speaks directly to whether Roach was actually telling the truth.The record reveals that, during his cross-examination of Investigator Bigham, Jones raised the idea that Bigham's investigation may have been insufficient, because she was never able to find and interview an individual named “Black” in order to verify Roach's story that Black had threatened him after Stewart's murder.During the State's redirect, the State asked Investigator Bigham whether she was able to corroborate much of the information that Roach provided to her, and whether the information that Roach provided to her turned out to be more consistent with other evidence she had obtained than the information that Jones had provided to her.Investigator Bigham responded affirmatively.

Jones' assertions to the contrary notwithstanding, this testimony did not speak directly to Roach's truthfulness.Rather, the testimony was elicited in direct response to questions raised about the manner in which Investigator Bigham conducted her investigation, and involved whether aspects of that investigation lined up with information provided by Roach.We find no “clear and obvious” error from the admission of this testimony that would satisfy the rigorous requirements of establishing plain...