Jones v. State
| Decision Date | 02 November 2022 |
| Docket Number | S22A0425 |
| Parties | JONES v. The STATE. |
| Court | Georgia Supreme Court |
Steven Lee Sparger, 1111 Bull Street, Savannah, Georgia 31401, for Appellant.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Alex Martin Bernick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Shalena Cook Jones, District Attorney, Office of the District Attorney Eastern Judicial Circuit, 133 Montgomery Street, Ste 600, Savannah, Georgia 31401, for Appellee.
Appellant Deon Jones challenges his convictions for felony murder and influencing a witness in connection with the shooting death of Scott Corwin.1 He contends that the statute of limitation barred his prosecution for influencing a witness; that the trial court made several erroneous evidentiary rulings; that he was denied effective assistance of counsel; and that the combined effect of the trial court's multiple erroneous evidentiary rulings and his trial counsel's deficient performance deprived him of a fair trial. For the reasons that follow, we reverse Appellant's conviction and sentence for influencing a witness, but we otherwise affirm the trial court's judgment.
1. Sometime in May 2004, Appellant, a convicted felon, bought on credit a stolen .38-caliber revolver from 16-year-old Kelly Bigham. In the early morning hours of May 29, Bigham drove Appellant to the Monterey Square area of downtown Savannah, looking for someone to rob. Scott Corwin was walking with his girlfriend, Mindy Davis, and Appellant attempted to rob him. When Corwin resisted, Appellant shot Corwin through the chest before fleeing the scene. Corwin later died from the gunshot wound at a nearby hospital.
Late on the night of May 31, 2004, Bigham asked Appellant for the money he owed her for the gun. Appellant said that he would go get some money, borrowed a car, and had Bigham drive him downtown. Along the way, Appellant pulled out his gun and threatened to kill Bigham if she told anyone that he had killed Corwin, and Bigham noticed that Appellant had a fresh tattoo of a teardrop by his eye. Bigham took the teardrop to mean that Appellant had killed someone, although she thought the tattoo could also represent that Appellant had spent time in prison. Shortly before 2:00 a.m. on June 1, approximately one block from where Appellant shot Corwin, Appellant shot Charles Buskirk once from behind during another attempted robbery. Buskirk was on his front porch when he was shot, returning inside his home after investigating a noise that startled his cat. Buskirk called 911, and at the hospital, doctors removed a .38-caliber bullet from his small intestine.
Within the next few weeks, Novell Bryant, a confidential informant for the FBI, relayed to his handler a recent conversation that he had with Appellant. According to Bryant, Appellant said that he and Bigham went to downtown Savannah, where Appellant used a .38-caliber revolver that he got from Bigham to shoot and kill a man during a robbery. On June 18, law enforcement officers searched Appellant's residence, where they found a box of .38-caliber bullets that were similar to the bullet removed from Buskirk. On June 22, Bryant reported that Appellant had given the gun to a "partner" and provided the police with a phone number that the police traced to a cellphone used by Walter Moon, a convicted felon. The next day, a detective interviewed Bigham, who confirmed she had been with Appellant when he shot someone during a robbery in downtown Savannah.
Appellant then was tried in federal court for possession of bullets and a firearm as a convicted felon in connection with Buskirk's shooting. During that trial, a boyfriend of Appellant's sister wore to court a t-shirt bearing the words "he was a snitch" and depicting a murder scene surrounded by crime-scene tape; the boyfriend was ordered to change his shirt, but not before he had driven one of the witnesses to court and sat next to him in court that morning. Nonetheless, Appellant was convicted on all counts. Appellant was never otherwise prosecuted for Buskirk's shooting. The Corwin murder case also went cold at that point, but the record does not reveal why.
Years later, when Appellant was serving time in federal prison, his cellmate, Gregory Seabrook, jokingly challenged him about the teardrop tattoo on his face, saying it was "fake." Appellant said that it was real, which Seabrook took to mean that Appellant had killed someone, although he thought it could also mean that someone close to Appellant had died. Later, Appellant bragged about using a .38-caliber revolver to shoot two men in downtown Savannah during attempted armed robberies. Appellant said that he shot one man who had resisted a robbery, after which Bigham went through the man's pockets, and had shot another man on the man's front porch. Appellant also said that he threw the gun that he used in the shootings into a sewage drain near his mother's house.
Appellant told federal inmate Christopher Jackmon a similar story, saying that he had shot a man in downtown Savannah and that Bigham then went through the man's pockets. Appellant said that he threw the gun in the sewer after the shooting but forgot to hide the bullets. Appellant told another federal inmate, Jamaal McIntyre, that a woman drove him to a robbery during which the victim "tried him, so he popped" him, adding that McIntyre could find the story on Google. Appellant told McIntyre that he could rely on the woman not to talk. Based on the information from Seabrook, Jackmon, and McIntyre, the police restarted the investigation into Corwin's death and swept the sewage drains near the home of Appellant's mother, but no gun was recovered. Bigham was also reinterviewed on January 31, 2012, and she stated for the first time that Appellant had threatened her. The record does not reveal what precipitated Appellant's eventual indictment in 2017 for Corwin's murder.
At trial, Appellant elected not to testify in his own defense. The defense theory was that all the evidence in the case was about the Buskirk shooting but had been reshaped by the State and its criminal informants into seeming like it was evidence of the Corwin shooting. Appellant recalled one of the State's witnesses; called one witness; and introduced one exhibit with a list of six names, including both Corwin and Buskirk, which a detective had previously shown to McIntyre.
2. Appellant first contends that the statute of limitation barred his prosecution from starting in 2017 for allegedly influencing a witness in 2004. We agree.
The statute of limitation for influencing a witness ordinarily is four years. See OCGA § 17-3-1 (c) (). However, because Bigham was under the age of 18 at the time of the alleged crime, the statute of limitation was seven years. See id. (). The indictment alleged that on or about June 1, 2004, Appellant knowingly threatened Bigham with the intent to prevent her from communicating to a Georgia law enforcement officer information relating to the commission of a crime, i.e., the shooting of Corwin. See OCGA § 16-10-93 (b) (1) (C). The State had until June 1, 2011, to indict Appellant for influencing a witness. But the State did not indict Appellant until December 27, 2017. Thus, the statute of limitation expired more than six years before the State started its prosecution of Appellant for that offense.
The State argues that the statute of limitation was tolled for more than seven-and-a-half of the years between the alleged threat on June 1, 2004, and Appellant's indictment on December 27, 2017, because until Bigham revealed Appellant's threat to a law enforcement official on January 31, 2012, the crime was unknown. See OCGA § 17-3-2 (2) (). The State does not argue that any other tolling provision applies. The fatal flaw in the State's argument is that it is well established that "the actual knowledge of a crime victim about the crime is imputed to the State for purposes of applying the tolling provision of OCGA § 17-3-2 (2)." Harper v. State , 292 Ga. 557, 559, 738 S.E.2d 584 (2013). See also id. at 563 (3), 738 S.E.2d 584 (); Womack v. State , 260 Ga. 21, 22 (3), 389 S.E.2d 240 (1990) .
Contrary to the trial court's understanding, our recent decision in Riley v. State , 305 Ga. 163, 824 S.E.2d 249 (2019), does not undermine this well-established rule. In Riley , the trial court ruled that the statute of limitation for burglary and possession of a knife tolled when investigators had a single fingerprint tying someone to a murder scene, but no idea to which of the "12 to 15 possible suspects" it belonged. Id. at 165 (1), 824 S.E.2d 249. Because the trial court did not consider whether the State had sufficient information to establish probable cause to arrest Riley on the nonmurder charges – thus making Riley known to the State – we remanded the case for the trial court's consideration of that issue. Id. at 170 (3), 824 S.E.2d 249. Here, by contrast, Bigham knew about the crime the moment it was committed, so her knowledge is imputed to the State. Thus, OCGA § 17-3-2 (2) did not toll the statute of limitation.
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