Jones v. State, S14A1749.

• Decision Date: 16 February 2015
• Docket Number: No. S14A1749.,S14A1749.
• Citation: 296 Ga. 561,769 S.E.2d 307
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

296 Ga. 561

769 S.E.2d 307

JONES

v.The STATE.

No. S14A1749.

Supreme Court of Georgia.

Feb. 16, 2015.

Barbara M. Collins, Riverdale, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Rochelle Warren Gordon, Asst. Atty. Gen., Paul L. Howard Jr., Dist. Atty., Lenny I. Krick, Paige Reese Whitaker, Asst. Dist. Attys., for appellee.

Opinion

BENHAM, Justice.

Appellant Quinton Jones appeals his convictions for malice murder and other related offenses arising out of a drug transaction.¹ For reasons set forth below, we affirm.

Viewed in the light most favorable to the verdicts, the evidence at trial showed that on the afternoon of February 9, 2006, witness Jabari Gibbs and victim Marquiese Pierce stopped their car at a take-out restaurant in East Point to order something to eat while waiting to meet with appellant to transact a drug deal. While driving around with Pierce that afternoon waiting for appellant to meet them, Gibbs heard Pierce speak to appellant over the phone a number of times to arrange the meeting. Pierce planned to sell appellant marijuana hidden in garbage bags inside the car. Gibbs testified he had known appellant for approximately one year, during which time he had seen appellant approximately three times per month, and had witnessed similar transactions between appellant and Pierce. Gibbs identified appellant out of a photographic lineup as the person known to him as “Black.”

At the restaurant, Gibbs saw appellant drive up in a green four-door car accompanied by a person known to him as “Big Boy,” who was later identified as George Willingham, and another man he did not know, and they parked next to the car Gibbs and Pierce occupied. Appellant exited the green car and got into the car with Gibbs and Pierce. Appellant and Pierce started discussing the price for the marijuana. Gibbs heard Pierce tell appellant to “take a whole pound ... take the whole thing and let them see that.” Gibbs entered the restaurant, and while inside, he was alerted to a commotion outside and turned to see appellant, Willingham, and the unknown third man pulling the bags of marijuana out of the car Gibbs and Pierce had arrived in and loading them into the green car. Gibbs also saw that appellant and one of the other individuals each had a pistol. As Gibbs ran outside to check on Pierce, the other men sped off in the green car. Gibbs observed Pierce slumped over the rear passenger side of the car.

The officer who responded to a call about the shooting testified that Gibbs ran up yelling, “They didn't have to kill my boy,” that Gibbs stated he knew one of the perpetrators as “Black,” and that the men fled in a green car. Susan Kim, whose family members owned the restaurant, testified she was working there at the time of the shooting. She called 911 after learning someone had been shot. Testimony established that the 911 call was logged in at 5:52 p.m. Kim testified when she heard a customer say that someone had been shot, she went to the side window and looked out. Kim also recalled reviewing the restaurant surveillance video immediately after dialing 911, and that she saw a green car in the parking lot. Witness Ladeidra Cunningham testified she had known appellant about seven months before this incident and that appellant and another person had driven a green car into her yard and abandoned it there in February 2006, after which she had not seen appellant again. Cunningham identified appellant at trial. The medical examiner testified that Pierce sustained two gunshot wounds

, that the cause of death was a gunshot wound to the neck that passed into the head, and that the manner of death was homicide.

1. Appellant does not raise the issue of the sufficiency of the evidence to sustain his conviction. Nevertheless, as is this Court's practice, we have reviewed the evidence and considered its legal sufficiency, and conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. It appears to be undisputed that appellant's trial counsel was terminally ill at the time of the trial and died shortly thereafter. All but one of appellant's enumerations of error are based on his claim that trial counsel was impaired at trial and provided constitutionally ineffective assistance. Appellant first asserts the trial court erred in denying that portion of his motion for new trial brought on the ground that trial counsel provided ineffective assistance of counsel by failing to participate effectively in the voir dire of the jury or the opening statement. Appellant claims trial counsel's diminished capacity was evident starting with the voir dire of potential jurors, when he asked no questions of over half of the forty-one potential jurors, and only one or two irrelevant questions of those whom he did question. Appellant claims counsel's diminished capacity was further demonstrated by the brevity of his opening statement, noting that the State's opening statement comprises over five pages of the trial transcript, whereas defense counsel's opening comprises barely a page. In his opening, trial counsel told the jury that appellant was not present at the scene of the crimes, thereby, according to appellant, raising the expectation that evidence supporting that representation would be presented. In fact, trial counsel failed to call alibi witnesses who, appellant claims, could have testified he was in Selma, Alabama, on the day in question. Citing only to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), appellant argues that constitutionally ineffective assistance of counsel is demonstrated by counsel's failure to participate effectively in these essential portions of the trial.

The record shows trial counsel did participate in the voir dire process and gave an opening statement. During the brief opening statement, counsel addressed the evidence the jury would hear and introduced appellant's defense theory that he was not present at the victim's death. He further asserted that Gibbs, the State's key witness, would testify so as to exculpate himself. A strong presumption exists that trial counsel's performance was reasonable and that counsel's decisions and choices at trial fell within the broad range of professional conduct as assessed from counsel's perspective at the time of trial and under the specific circumstances of the case. See Miller v. State, 295 Ga. 769(2)(a)(i), 764 S.E.2d 135 (2014) ; Hendricks v. State, 290 Ga. 238, 241(4), 719 S.E.2d 466 (2011). Even where, as here, trial counsel is no longer available to testify regarding the manner in which he conducted appellant's defense at trial, appellant must still overcome this presumption. See Sweet v. State, 278 Ga. 320(8), 602 S.E.2d 603 (2004) (in a case in which appellant's trial counsel was deceased at the time of the amended motion for new trial hearing, this Court held that in the absence of evidence to the contrary, trial counsel's actions are presumed to be strategic and that appellant presented no evidence to support the assertion that trial counsel's failure to object to a comment made by the State's attorney in closing argument demonstrated ineffective assistance). The record shows no evidence was presented to defeat the presumption that trial counsel's decisions and choices with respect to his participation in voir dire questioning and the content of his opening statement were part of his reasonable trial strategy and were within the range of reasonable professional conduct. Thus we affirm the trial court's denial of that portion of appellant's motion for new trial dealing with trial counsel's participation in the voir dire process and his opening statement.

3. Appellant also asserts ineffective assistance of trial counsel in that he was unprepared, failed to cross-examine certain witnesses, and failed to make an effective cross-examination of other State witnesses. Specifically, however, appellant points only to the testimony of the medical examiner and Ms. Kim. Counsel's failure to cross-examine the medical examiner does not establish ineffective assistance of trial counsel since that witness testified only to the manner and cause of death, elements of the State's case that were not contested. Accordingly, there is no showing that his failure to cross-examine this witness prejudiced his case, one of the two requirements of the Strickland test for showing constitutionally ineffective counsel.

Counsel did cross-examine Ms. Kim, who testified, among other things, about the presence of a green car at the scene of the shooting. Her testimony as a whole shows she was uncertain at the time of trial as to whether she saw the green car through the window before the shooting or only upon reviewing the restaurant surveillance videotape, which she reviewed after calling the police. She testified unequivocally, however, that she remembered a green car, and went on to testify that she recalled both the victim's car and the green car were parked on the right side of the restaurant. During cross-examination, trial counsel elicited testimony from Ms. Kim that when she looked through the window, she only saw the victim's car. Trial counsel then highlighted, during his closing argument to the jury, Ms. Kim's uncertainty about the green car and when and how she saw it, stating Ms. Kim “may have seen a green car, but she may have seen it on a tape. She's not sure. That was never clarified.” Appellant asserts that if trial counsel had reviewed the videotape he would have known, as the prosecutor pointed out in his closing argument, that all the store's cameras were focused on the inside of the store and not on the parking lot. Thus, he argues trial counsel failed to make...