Jones v. State

• Decision Date: 18 March 2013
• Docket Number: No. S12A1759.,S12A1759.
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

292 Ga. 593

740 S.E.2d 147

JONES

v.The STATE.

No. S12A1759.

Supreme Court of Georgia.

March 18, 2013.

Verna L. Smith, Dublin, for appellant.

Robert Brandon Faircloth, Asst. Dist. Atty., Louie Craig Fraser, Dist. Atty., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Thrower Parvis, Asst. Atty. Gen., for appellee.

BLACKWELL, Justice.

Kelcey E. Jones was tried by a Twiggs County jury and convicted of the murder of his four-year-old son, Joshua, and cruelty to a child in the first degree. Jones appeals, contending that the trial court erred when it denied his motion to suppress certain statements that he made to law enforcement officers, that he was denied a fair trial by the late production of an audio recording, that the trial court erred when it excluded certain testimony and evidence, that the testimony of a witness for the State was improperly bolstered at trial, and that he was denied the effective assistance of counsel. Upon our review of the record and briefs, it appears that the trial court erred at sentencing when it failed to merge the cruelty to a child with the murder, and we must, therefore, vacate the conviction and sentence for cruelty to a child in the first degree. We find no other error, however, and we otherwise affirm the judgment below.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that on September 14, 2003, Jones and his girlfriend, Vontrika Willis, took Joshua to a hospital after Joshua fell on an ant hill and suffered several ant bites, to which he had an allergic reaction. After leaving the hospital, they went to a pharmacy to have a prescription filled for Joshua. The pharmacy, however, was about to close, and so they left without the prescribed medication, returning to Willis's home for the night. The next morning, Willis urged Jones to return to the pharmacy to pick up the medicine for Joshua, and Willis and Jones apparently argued. Jones eventually left for the pharmacy, but before he did, he went into Joshua's room, closed the door, and remained with Joshua for three or four minutes. During that time, Willis heard Jones strike Joshua, and she believed then that Jones was attempting to discipline Joshua.

A few minutes after Jones left for the pharmacy, Willis went to check on Joshua. She found him unresponsive and in soiled clothing, and she tried to clean him up by changing his undergarments. Willis then went to ask a neighbor to help her put Joshua into her car, later explaining that she could not carry Joshua to the car herself because she suffers a disability that precludes her from lifting more than ten pounds. With the help of the neighbor, Willis put Joshua into her car, and she began to drive him to a hospital. Along the way, Willis saw Jones, flagged him down, and told him to follow her to the hospital. Joshua died that day at the hospital. At trial, a medical examiner testified that Joshua died as a result of blunt force trauma to his head and abdomen, that the injuries he sustained were inflicted by another, and that his death was not accidental.²

A day or two after Joshua died, Jones and Willis agreed to an interview at the Twiggs County Sheriff's Department. According to Willis, as they were driving to the interview, Jones grabbed her arm and threatened her, saying, “You better not say nothing because I got somebody on the outside.” This was the first time that it had occurred to Willis, she later explained, that Joshua might have died of something other than an allergic reaction. When they arrived at the Sheriff's Department, Jones was taken immediately to an interview room. The county coroner was present when Jones was interviewed, and the coroner told Jones that Joshua died from a blow to his abdomen, not from ant bites. When confronted with this information, Jones responded: “I watch CSI, you can't prove I did anything.”

Although Jones does not dispute that the evidence is sufficient to sustain his conviction, we have independently reviewed the record, and we conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Jones was guilty of murder and cruelty to a child in the first degree. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Poole v. State, 291 Ga. 848, 850(1), 734 S.E.2d 1 (2012). We do find error, however, in the trial court entering a judgment of conviction and imposing a separate sentence for cruelty to a child in the first degree. Because the felony murder of which Jones was convicted was premised on cruelty to a child in the first degree, the predicate offense merged into the murder as a matter of law. Culpepper v. State, 289 Ga. 736, 737(2), 715 S.E.2d 155 (2011) (“When the only murder conviction is for felony murder and a defendant is convicted of both felony murder and the predicate felony of the felony murder charge, the conviction for the predicate felony merges into the felony murder conviction.” (citation omitted)). For that reason, we vacate the conviction and sentence for cruelty to a child in the first degree. Chance v. State, 291 Ga. 241, 242(1), 728 S.E.2d 635 (2012).

2. We next consider whether the trial court erred when it denied a motion to suppress certain statements that Jones made during his interview at the Sheriff's Department. Jones contends that these statements should have been suppressed because he was not advised of his Miranda³ rights before he made the statements. We disagree. Miranda warnings are required only when a person is interviewed by law enforcement in a custodial setting, meaning that the person has been formally arrested or has been “ restrained to the degree associated with a formal arrest,” Sosniak v. State, 287 Ga. 279, 280(1)(A)(1), 695 S.E.2d 604 (2010), and in this case, the trial court concluded that Jones was not in custody when he was interviewed at the Sheriff's Department. We must accept the factual findings of the trial court about whether Jones was in custody unless those findings are clearly erroneous, Grier v. State, 273 Ga. 363, 365(2), 541 S.E.2d 369 (2001), and we see no clear error here. The evidence adduced at a pretrial hearing on the motion to suppress shows that Jones came to the Sheriff's Department for an interview voluntarily, that he was not restrained before or during the interview, and that he was not told before or during the interview that he could not leave. Although Jones was arrested after the interview concluded on outstanding warrants issued in another county, the deputy sheriff who conducted the interview testified that he became aware of those warrants only after the interview ended. The trial court was authorized to find, as it did, that Jones was not formally arrested or restrained to a degree associated with a formal arrest before or during the interview, and for that reason, Jones was not entitled to Miranda warnings in connection with the interview. See Bowling v. State, 289 Ga. 881, 888(4)(a), 717 S.E.2d 190 (2011); Sosniak, 287 Ga. at 281(1)(A)(1), 695 S.E.2d 604. The trial court did not err when it denied the motion to suppress.

3. We turn now to the contention that Jones was denied a fair trial because the prosecuting attorneys failed to timely produce an audio recording of an interview of Willis by a Georgia Bureau of Investigation agent. The record shows that this recording was produced to Jones at trial before any witnesses testified, albeit after voir dire had concluded. Because the recording actually was produced, there was no Brady⁴ violation, and to prevail on his claim of error, Jones must show that an earlier production of the recording would have been beneficial to him and that the delay in production deprived him of a fair trial. See Hullander v. State, 271 Ga. 580, 582(2), 522 S.E.2d 658 (1999); Burgeson v. State, 267 Ga. 102, 104(2), 475 S.E.2d 580 (1996). Jones argues that the quality of the recording was compromised when it was played at trial and that he could have made better use of the recording at trial if only it had been produced earlier.⁵ But the claims about the quality of the recording are speculative, inasmuch as Jones's trial lawyer testified at the hearing on the motion for new trial that he recalled nothing about the recording, and the recording itself does not appear in the record on appeal. Moreover, Jones cannot show that he was deprived of a fair trial by the late production of the recording because he did not ask for a continuance to further examine the recording. To the contrary, the court inquired at trial of an investigator assisting Jones's lawyer whether more time was needed to examine the recording, and the investigator responded in the negative. This claim of error is without merit.

4. We next consider whether the trial court erred when it refused to permit Jones to call a surprise witness that Jones failed to disclose to the prosecuting attorney before trial. Generally speaking, the parties are obligated to give notice at least five days before trial commences of any witnesses who may appear at trial. Hudson v. State, 284 Ga. 595, 596(3), 669 S.E.2d 94 (2008). When a party fails to comply with its obligation to give notice, the trial court may exercise its discretion to exclude the testimony of an unnoticed witness upon a showing of prejudice and bad faith. Id. at 596(3), 669 S.E.2d 94. See also OCGA § 17–16–6. From the record in this case, it appears that the trial court was authorized to find that the State would be prejudiced by the surprise witness because it already had rested its case, and because the prosecuting attorney would have had insufficient time to interview the witness or otherwise prepare for the testimony that the witness might offer. The trial court also was authorized to find that Jones acted in bad faith when he failed to notify the State that the witness might appear, given that Jones was aware of the witness at...