Jones v. State

• Decision Date: 20 June 1979
• Docket Number: No. 34775,34775
• Citation: 256 S.E.2d 907,243 Ga. 820
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

Page 907

256 S.E.2d 907

243 Ga. 820

JONES v. The STATE.

No. 34775.

Supreme Court of Georgia.

Argued April 10, 1979.

Decided June 20, 1979.

Brooks S. Franklin, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., M. Randall Peek, Dist. Atty., Alton G. Hartley, Asst. Dist. Atty., for appellee.

BOWLES, Justice.

Howard Jones, the defendant, was convicted of armed robbery and murder by a DeKalb County jury. He was sentenced to life imprisonment for the armed robbery and to death for the murder. His case is here on direct appeal and for mandatory review of his death sentence.

We affirm.

The evidence presented at trial authorized the jury to find that defendant, his brother Gilbert Jones and another man named James Ameen conspired to rob a courier at a Seven-Eleven store. The courier's job was to collect money taken in at various Seven-Eleven stores and the Seven-Eleven store which was the scene of this crime was toward the end of his route. The courier was accompanied by an armed guard, Frank Shelnut, the murder victim.

On the morning of the crime, two employees of the store and Frank Shelnut were in the public area of the store while the courier was in a back office counting money. During the course of the robbery, a struggle ensued between Frank Shelnut and one of the robbers and shots were fired. James Ameen and Gilbert Jones were wounded (Gilbert Jones is now paralyzed from the waist down). Frank Shelnut was killed having been shot six times. Gilbert Jones and James Ameen were arrested the same day while at Grady Hospital seeking treatment for their wounds. Howard Jones was arrested that evening.

Along with a great deal of circumstantial evidence linking defendant to the crime, one of the employees of the store identified defendant as being at the scene of the crime from a photographic line-up. A witness who arrived at the scene as defendant and James Ameen were dragging Gilbert Jones out the store identified defendant from a photographic line-up although she was later unable to pick him out of a physical line-up. ¹ Both witnesses identified defendant at trial. James Ameen testified as a witness for the State, related the course of events in planning and carrying out the robbery and identified the defendant as the robber who shot the victim repeatedly.

At trial, defendant testified in his own behalf and stated that he was at home during the robbery. He said that his only contact with any of the events pertaining to the crime occurred when Gilbert Jones showed up at his (defendant's) apartment wounded and defendant had to call another brother to take him to the hospital.

After deliberating for 50 minutes, the jury returned a verdict of guilty of both armed robbery and murder. After the presentence hearing, after returning twice for re-instruction, and after deliberating a total of 58 minutes, the jury returned with a recommendation of the death penalty finding the following aggravating circumstances: (1) "The offense of murder was committed while the offender was engaged in the commission of another capital felony, to-wit: armed robbery." (2) "The offender by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person."

Defendant brings sixteen enumerations of error to this court.

1. In his first, thirteenth and fourteenth enumerations of error, defendant contends that the exclusion of death-scrupled jurors denied him an impartial jury under Witherspoon. Three jurors (or possibly four) ² were excused by the court for cause based on their answers to questions about their feelings on the death penalty. Because when the twelfth juror was impaneled, the State had only used four of its allotted ten peremptory strikes, we need not consider whether or not the rule established in Witherspoon was in fact violated. If these three or four jurors had not been removed for cause, the state could have used its peremptory strikes to remove them as it did in the case of two other jurors who expressed reservations about the death penalty. Therefore, any error in excluding any juror for cause was harmless. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978). Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See also Ruffin v. State, 243 Ga. 95(3), 252 S.E.2d 472 (1979).

Defendant also argues that not even peremptory strikes can be used to remove death-scrupled jurors from the jury panel. We do not agree. The permissibility of the use of peremptory strikes to remove death-scrupled jurors who could not be removed for cause has not yet been decided by the United States Supreme Court. However, the validity of such use was established by implication in Alderman, supra, by the finding of harmless error when the state had unused peremptory strikes. Further, the reasoning of the United States Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), involving the use of the peremptory challenge to remove blacks from the jury is equally applicable in this situation. In Georgia, as elsewhere, " '(a) peremptory challenge is an arbitrary or capricious species of challenge to a certain number of jurors allowed to the parties without the necessity of their showing any cause therefor. In the very nature of such a challenge no reason need be shown or assigned for the exercise of the right.' " Jordan v. State, 235 Ga. 732, 733, 222 S.E.2d 23, 24 (1975). To scrutinize and test the reasons behind a peremptory challenge is to destroy its peremptory nature. Allegations of "systematic exclusion" as defined in Swain v. Alabama, supra, raised for the first time after verdict, present nothing for review.

We find no error based on defendant's first, thirteenth and fourteenth enumerations of error.

2. In his second enumeration of error, defendant contends that a mistrial should have been granted based on the prosecutor's improper opening remarks. During his opening statement, the prosecutor referred to a statement made by co-accused James Ameen by stating to the jury, "The evidence will show you that he identified Howard Jones as the person who had actually shot and killed the security guard." Defendant's counsel objected arguing that this was a reference to a confession of a co-accused which would not be admissible into evidence. We find that the trial court correctly overruled the motion for mistrial on this point. The co-accused himself took the stand and testified to the same facts as those to which he testified in his previous statement. Testimony about the prior consistent statement itself was proper to rebut defendant's attempt to show that the co-accused's trial testimony was a fabrication in exchange for a lesser sentence for himself. See Fuller v. State, 197 Ga. 714(2), 30 S.E.2d 608 (1944).

Defendant's second enumeration of error is without merit.

3. In his third enumeration of error defendant complains that the trial court erroneously permitted the jury to disperse overnight during the trial. We find no error.

Code Ann. § 59-718.1 gives the trial court discretion to permit members of the jury to disperse under appropriate instruction except in cases in which the prosecution is seeking the death penalty. See Jordan v. State, supra. Even if the prosecution is seeking the death penalty, the trial court may permit jury dispersal with the consent of the accused. Mason v. State, 239 Ga. 538, 238 S.E.2d 79 (1977). It is undisputed that the defendant in the case at bar consented through his attorney and in his own words to the dispersal of the jury. Defendant, however, now asserts that he was coerced into consenting because of the prosecutor's reference to "locking up" the jury. While such an expression may be an inappropriate synonym for "sequestration" we cannot say that a new trial is merited as a result of its use. Defendant's attorney had already mentioned sequestration himself in front of the jury. No request for corrective action was made at trial because of the prosecutor's statement nor did defendant or his attorney indicate at any time that they felt coerced into waiving sequestration. Further, defendant has failed to show how failure to sequester the jury has harmed him. See Mason v. State, supra. Defendant contends that published accounts of the trial appeared in the general media but the one newspaper article attached to his brief to this court was written after the jury's verdict was rendered in the case.

We find no merit in defendant's third enumeration of error.

4. In his fourth enumeration of error defendant asserts that the trial court erroneously permitted a state witness to state a conclusion based on speculation. The witness, a forensic serologist, was testifying about her examination of blood stains on the defendant's underclothing. She testified that she found blood on his T-shirt but that she was unable to determine whether or not it was human blood. When the prosecutor asked why, the defendant's attorney objected, but the trial court permitted the expert witness to state her opinion. The witness testified that the stain was a dilute stain which could have been the result of laundering. The results of her tests were the results one gets if a stain has been laundered.

The defense stipulated that the witness was qualified as an expert in the field of forensic serology. As an expert, the witness was permitted to state her opinion based on her tests. See Code Ann. § 38-1710. See also Bowden v. State, 239 Ga. 821, 238 S.E.2d 905 (1977) wherein a fingerprint expert was permitted to state his opinion as to why no fingerprints were found at the scene of the crime. The witness' testimony was within her field of expertise and we find no error in permitting her to state her opinion.

5. In his fifth enumeration of error, the defendant contends that the trial court...