Jones v. State

• Decision Date: 06 May 2019
• Docket Number: S19A0068
• Citation: 827 S.E.2d 887,305 Ga. 744
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

305 Ga. 744

827 S.E.2d 887

JONES

v.The STATE.

S19A0068

Supreme Court of Georgia.

Decided: May 6, 2019

Angela Brown Dillon, Brown & Gill, LLC, 2107 N. Decatur Road, Decatur, Georgia 30030-0053, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Vanessa Therese Sassano, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Julia Anne Fessenden Slater, District Attorney, Veronica Hansis, Chattahoochee Judicial Circuit District Attorney's Office, 100 Tenth Street, Columbus, Georgia 31902-1340, for Appellee.

Melton, Chief Justice.

Following a jury trial, Willie Jones was found guilty of felony murder, armed robbery, and possession of a firearm during the commission of a felony in connection with the shooting death of Wayman Glenn James, Jr.¹

On appeal, Jones contends that the evidence presented at trial was insufficient to sustain his convictions, that the trial court erred by admitting into evidence certain statements made by Jones’s non-testifying co-indictees, and that his trial counsel was ineffective. For the reasons that follow, we affirm Jones’s convictions for felony murder and possession of a firearm during the commission of a felony, but vacate his conviction for armed robbery, because that count of the indictment should have been merged into the felony murder count for sentencing purposes.

1. Viewed in the light most favorable to the jury’s verdict, the evidence presented at trial reveals that, on the night of June 15, 2010, James, the victim, had been drinking with friends on the back porch of Apartment 10 at the Decatur Court Apartments. Jones’s co-indictee, Blue, was also on the back porch. Marquis Boodoo, who lived in Apartment 10 with Yolanda Thomas and who knew Jones, testified at trial that he overheard Blue tell Jones’s other co-indictee, Lowe, that James was carrying $ 3,000 and a 9mm handgun. Thomas, who was also Lowe’s cousin, testified that Lowe said that he was going to enlist Jones and Fields to help him rob James. Thomas’s sister, Fredericka, overheard Lowe say that the men were going to rob James because James had "stacks [of money] on him." James eventually left the gathering in Apartment 10 to take a nap in Apartment 2, where Shacola Hand lived. An investigating officer later testified at trial that Hand informed him that she had seen James at Apartment 10 that night pulling out money and counting it, and that the money included hundred dollar bills and bills of various other denominations.

In preparation for the robbery, Jones and Fields changed their clothes at an apartment in a different complex, donning all black outfits with black gloves and ski masks. Jones equipped himself with a black and silver shotgun. Christopher Jones, a friend of Jones who was not related to Jones but who was at the apartment at that time, saw Jones leaving the apartment dressed in black and carrying the shotgun. Jones and Fields went to the Decatur Court Apartments, and Boodoo testified that he saw them talking with Lowe near Apartment 8 shortly before the murder, and that he saw Blue talking with Lowe near Apartment 8 as well; that Fields and Jones were wearing all black; and that Jones was holding a black and silver shotgun.

James, who was sleeping on the couch at Hand’s apartment, was roused awake after Blue entered and left the apartment, slamming the door behind him. Blue then flashed a light, which an eyewitness described as something that looked like a signal, and Thomas saw Fields run by her window. Around that same time, James exited Hand’s apartment, and, while James was in the parking lot, Jones approached him from behind and shot him once in the back of the head with his shotgun, killing James instantly. Jones and Fields took James’s gun and money before fleeing the scene. After the gunshot, Boodoo saw Jones and Fields take money and a gun from James just before they ran from the scene. Although Boodoo already recognized Jones as the one with the shotgun, in his statement to police, he also stated that, as Fields was running away, he heard Fields say that Jones had shot James. Boodoo also testified that he did not see Fields with a gun at the time of the robbery. Following the murder, Jones fled to Kentucky.

Shortly after the shooting, Thomas overheard a phone call between her sister and Fields in which Fields again stated that Jones shot James. Furthermore, in a statement to police, Jones’s friend Christopher informed police that Jones himself admitted to him that Jones was the one who had shot James.

Evidence collected by police from the apartment where Jones had changed into his all-black outfit earlier in the night included a black and silver 12-gauge shotgun, a pistol, a black ski mask, black pants and a belt with an attached holster, a black shirt, black gloves, a black baseball cap, black sneakers, and an identification card with Jones’s information. Additionally, police discovered that the firing pin on the right side of the double-barreled shotgun had been punctured, but that the left one had not been, indicating that the gun had been fired once. Jones was arrested in Kentucky a little over a year after the murder.

The evidence presented at trial was sufficient to authorize a rational jury to find Jones guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Jones contends that the trial court erred by allowing into evidence at trial the hearsay statements made by Jones’s non-testifying co-indictees, Blue, Lowe, and Fields. He claims that the statements were improperly admitted before a conspiracy between the four men had been shown at trial in order to make their statements admissible under the co-conspirator exception to the rule against hearsay. See former OCGA § 24-3-5 ("After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.").² We disagree.

Co-conspirator "hearsay statements are admissible when the State at some point before the close of evidence establishes a prima facie case of conspiracy independent of the co-conspirator statement." (Citations omitted; emphasis supplied.) Thorpe v. State , 285 Ga. 604, 610 (5), 678 S.E.2d 913 (2009). "[T]he State need not make out a prima facie case of conspiracy prior to introduction of the statements; the statements are admissible when the State establishes a prima facie case of conspiracy independent of the co-conspirator’s statement at any time before the close of evidence." (Citation omitted; emphasis in original.) Williams v. State , 293 Ga. 750, 753 (2), 749 S.E.2d 693 (2013).

In order for a conspiracy to exist, there must be an agreement between two or more persons to commit a crime. Such agreement need not be express, nor does it require a "meeting of the minds" to the same degree necessary to form a contract; all that is required is a tacit mutual understanding between persons to pursue a common criminal objective.

(Citations and punctuation omitted.) Griffin v. State , 294 Ga. 325, 327, 751 S.E.2d 773 (2013). Such "a conspiracy may be shown by direct proof, or by inference, deduced from acts and conduct, which discloses a common design to act in concert for the accomplishment of the unlawful purpose; the common design or purpose may be shown by direct or circumstantial evidence." Williams , supra, 293 Ga. at 753 (2), 749 S.E.2d 693.

As an initial matter, because Jones clearly objected to some, but not necessarily all, of the alleged hearsay statements about which he now complains on appeal, under the law applicable to cases governed by Georgia’s old Evidence Code, his arguments relating to those statements of his co-conspirators to which he did not clearly object would be waived on appeal. See Durham v. State , 292 Ga. 239, 240 (2), 734 S.E.2d 377 (2012). However, we need not parse through each individual statement to address the issue of waiver because, even if Jones had clearly objected to all of the statements, they were properly admissible under the co-conspirator exception to the rule against hearsay or were otherwise cumulative of other properly admitted evidence. Specifically, the State sufficiently proved the existence of a conspiracy between Jones and his co-indictees to rob and possibly shoot James through evidence independent of the statements made by Blue, Lowe, and Fields. In this regard, soon after Blue and Lowe were seen at a party where James was also present, Fields and Jones went to a different apartment to change into all-black outfits and retrieve a silver and black shotgun. Upon returning to the Decatur Court Apartments, Fields and Jones got together with Lowe near Apartment 8, where Lowe had been speaking with Blue, and Blue went to Apartment 2 to lure James outside. Blue continued to act in concert with the other co-indictees by flashing a light that served as a signal for Jones and Fields to approach James from behind just before they killed and robbed him.

The statements by Blue and Lowe about James having money and about wanting to rob him were made in furtherance of the conspiracy to attack and rob James, as was Lowe’s statement that he would recruit Jones and Fields to assist in the robbery. Because the State sufficiently proved the existence of a conspiracy between the co-indictees independent of these statements, we find no error in the admission of the statements into evidence. See, e.g., Folston v. State , 294 Ga. 778 (2), 755 S.E.2d 803 (2014).³ With regard to Fields’s statements...