Jones v. State

• Decision Date: 23 September 1991
• Docket Number: No. S91P0607,S91P0607
• Citation: 261 Ga. 665,409 S.E.2d 642
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

Page 642

409 S.E.2d 642

261 Ga. 665

JONES v. The STATE.

No. S91P0607.

Supreme Court of Georgia.

Sept. 23, 1991.

Reconsideration Denied Nov. 8, 1991.

Jimmy D. Plunkett, John P. Wills, Thomson, for Jones.

Dennis Sanders, Dist. Atty., Thomson, Michael J. Bowers, Atty. Gen., C.A. Benjamin Woolf, Atty., State Law Dept., Atlanta, for the State.

Patsy Morris, Atlanta, Joseph L. Chamgers, Sr., Pros. Attorneys' Council, Smyrna, Atty. Register, for other party representations.

WELTNER, Justice.

Johnnie Dee Jones was convicted of murder in the stabbing of Randall Garvin Reeves. He was sentenced to death. ¹

1. (a) Jones claims error in the trial court's failure to grant his motion for a change of venue on the ground of excessive pre-trial publicity. In Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685 (1982), we affirmed the trial court's denial of the motion for the change of venue: We held:

Both this court and the Supreme Court of the United States have considered the "small town syndrome" before. [Cits.] A serious case draws public attention, and hardly any prospective juror will not have formed some impression or opinion about the case. However, the proper test is whether the prospective juror "can lay aside his impression or opinion and render a verdict based on the evidence presented in court." [Cits.] [Id. at 443, 291 S.E.2d 685.]

(b) Examining the record in this case, however, we conclude that, under Berryhill, the trial court should have granted the motion for a change of venue. ² Hence, the conviction and sentence is set aside, and the case is remanded for a new trial.

2. (a) The approach followed in Berryhill and our earlier cases concerning change of venue in death penalty cases is, we believe, too restrictive. Our inquiries have been laborious, and often have yielded what might appear to be distinctions without differences. The history of the noted "Alday murders" ³ demonstrates the agonies of retrials. We need a better and a surer rule.

(b) Accordingly, we announce a new standard. ⁴ Trial courts will order a change of venue for death penalty trials in those cases in which a defendant can make a substantive showing of the likelihood of prejudice by reason of extensive publicity. ⁵

3. Other claims of error are without merit. ⁶

Judgment reversed and case remanded.

All the Justices concur, except SMITH, P.J., and BELL and HUNT, JJ., who dissent.

HUNT, Justice, dissenting.

I dissent from Divisions 1 and 2 of the majority opinion and from the judgment of reversal.

1. At least since the United States Supreme Court issued its opinion in Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), we have consistently held that a trial court's determination concerning the necessity for a change of venue is presumptively correct and may be overturned only if manifestly erroneous. See, e.g., Devier v. State, 253 Ga. 604(4), 323 S.E.2d 150 (1984); Isaacs v. State, 259 Ga. 717(15), 386 S.E.2d 316 (1989).

In this case, the trial court found that a fair and impartial jury could be empaneled in Lincoln County. Without reference to the presumption of correctness, the majority cites only Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685 (1982) in support of its reversal. Its only analysis is contained in a footnote pointing out that in Berryhill approximately 8% of the venire was excused for prejudice while in this case almost 22% were excused.

However, we have upheld the trial court's denial of a change of venue in many death-penalty cases since Berryhill in which the excusals for cause resulting from pre-trial publicity equaled or exceeded the percentages here. See, e.g., Crawford v. State, 257 Ga. 681(2), 362 S.E.2d 201 (1987) (approximately 30% excused for prejudice); Childs v. State, 257 Ga. 243(2), 357 S.E.2d 48 (1987) (approximately 24% excused for prejudice); Curry v. State, 255 Ga. 215(2g), 336 S.E.2d 762 (1985) (22.1% excused); Blanks v. State, 254 Ga. 420(1), 330 S.E.2d 575 (1985) (27.4% excused); Devier v. State, 253 Ga. 604(4), 323 S.E.2d 150 (1984) (21% excused); Castell v. State, 250 Ga. 776(6), 301 S.E.2d 234 (1983) (22% excused).

In Patton v. Yount, supra, the U.S. Supreme Court stated:

There are good reasons to apply the statutory presumption of correctness to the trial court's resolution of ... questions [of juror partiality]. First, the determination has been made only after an extended voir dire proceeding designed specifically to identify biased veniremen. It is fair to assume that the method we have relied on since the beginning [cit.] usually identifies bias. Second, the determination is essentially one of credibility, and therefore largely one of demeanor.... [T]he trial court's resolution of such questions is entitled to... "special deference." [Cit.] [Id. at 467 U.S. at 1038, 104 S.Ct. at 2892 (footnotes omitted).]

The majority does not explain why the determination of the trial court in this case is not entitled to "special deference." I cannot agree that the voir dire examination demonstrates manifest error in the trial court's conclusion that Jones could obtain a fair trial in Lincoln County.

2. The "noted 'Alday murders' " and the "agonies of retrials" referred to by the majority do not justify its result. As noted in the federal opinions granting habeas relief to the Alday murder defendants, the authors applied a "presumed prejudice standard" because the record showed an inundation of inflammatory pretrial publicity so pervasive that it took the Eleventh Circuit Court of Appeals over 46 pages to summarize it. See Coleman v. Kemp, 778 F.2d 1487, 1491-1537 (11th Cir.1985). Nothing comparable occurred here. This simply is not one of those "rare" cases in which the presumed prejudice standard is applicable. See Isaacs v. State, supra, 259 Ga. 717, 726, 386 S.E.2d 316 ("As is noted in Coleman, the 'presumed prejudice standard is "rarely" applicable.' ")

3. The foregoing is sufficient to demonstrate that reversal is not warranted by our cases or by any federal cases. Reversal, then, can result only from the application of a new standard for change of venue to this trial. Even if a new rule is necessary or desirable (and I am not persuaded that it is either), we should not ambush the unsuspecting trial court which correctly relied on considerable state and federal precedent. Instead, we could simply amend the Unified Appeal Procedure, to apply prospectively, as we are authorized by law to do.

4. Finally, I doubt the new standard adopted by the majority will save labor and I question whether its application will be more susceptible of yielding distinctions with differences than our present rules. ¹ The new standard requires changes of venue in those death penalty trials "in which a defendant can make a substantive showing of the likelihood of prejudice by reason of extensive publicity." How much of a showing is a "substantive" showing? What is a "likelihood" of prejudice? How much prejudice is enough? (For example, what if a defendant shows a strong likelihood of minimal prejudice? What if he shows a minimal possibility of strong prejudice?) How much publicity is "extensive?" None of this is explained in the majority opinion, and it seems obvious to me that no one will know what the majority's "standard" means until we apply it to cases. As the Attorney General argued:

If the court is attempting to avoid potential future reversals by creating a new standard, then this new, amorphous "rule" unwittingly invites more errors by its lack of definition and precision.

5. I do not agree that this case should be reversed under our present standards concerning changes of venue. I am not persuaded of the necessity of a new rule. I disagree with the new rule we adopt. I would affirm the denial of Jones' motion for change of venue.

I am authorized to state that Presiding Justice SMITH and Justice BELL join in this dissent.

1 The homicide occurred on July 28, 1988, and Jones was indicted for murder on July 29, 1988. He was found guilty of malice murder on July 1, 1990, and was sentenced on the same date. His motion for new trial was filed on July 30, 1990, amended on July 31, 1990, and denied on December 21, 1990. A notice of appeal was filed on January 16, 1991. The appeal was docketed on February 1, 1991, and argued on April 17, 1991.

2 In Berryhill, supra, we found:

The record in this case shows that 67 prospective jurors were examined. Of this number, 6 jurors were excused for prejudice or a fixed opinion as to guilt or innocence. Nineteen persons had opinions of guilt but expressly stated that they could lay aside any opinion and render a verdict solely based upon the evidence. This low percentage of venirepersons excused for prejudice (approximately 8%) strongly corroborates the expressions of impartiality by the other jurors who were not excused for prejudice. [Id. at 444, 291 S.E.2d 685.]

In this case, the trial court examined 138 prospective jurors on voir dire, excused 30 for prejudice (21.7%) and qualified 57. Of the 57, 42 were impaneled. Thirty-eight of the 42 impaneled jurors had prior knowledge of the case; twelve had formed an opinion as to guilt; 7 had formed an opinion as to punishment; and 26 had heard discussions within the community.

We acknowledge the existence of other variables that might argue for a differing comparison. However, crediting each prospective juror with the best of good intentions, we note that this case demonstrates substantially a higher and more pervasive prior knowledge on the part of the venire than was reflected in Berryhill.

3 In 1976, three men were tried for murdering five members of the Alday family in 1973. The convictions were...