Jones v. the State., S11A0414.

• Decision Date: 18 April 2011
• Docket Number: No. S11A0414.,S11A0414.
• Citation: 289 Ga. 111,709 S.E.2d 773,11 FCDR 1301
• Parties: JONESv.The STATE.
• Court: Georgia Supreme Court

289 Ga. 111

709 S.E.2d 773

11 FCDR 1301

JONES

v.The STATE.

No. S11A0414.

Supreme Court of Georgia.

April 18, 2011.

Jason Roy Hasty, Augusta, for appellant.Thurbert E. Baker, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Ashley Wright, Dist. Atty., Adam William King, Charles R. Sheppard, Asst. Dist. Attys., Sara Kaur Sahni, Asst. Atty. Gen., Mary Beth Westmoreland, Deputy Attorney General, for appellee.BENHAM, Justice.

In a bifurcated trial, appellant Michael Bernard Jones was convicted of the felony murder of Curtis Tony Howard (with aggravated assault as the predicate felony), possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon.¹ On appeal, Jones contends he was deprived of his constitutional right to effective assistance of counsel.

1. The State presented evidence that two men discovered the victim's body in the bed of his pickup truck which was parked behind a vacant Richmond County mobile home. The medical examiner testified the victim had died as a result of gunshot wounds to his chest and abdomen that were consistent with having been inflicted by a rifle. Appellant was arrested in Texas several days later while a passenger in a car that was stopped for speeding by a Texas Highway Patrol officer, who discovered there was an outstanding warrant from Georgia for appellant's arrest. The man who was driving the car in which appellant was a passenger when he was arrested testified that appellant had told him two days before the victim was killed that appellant was going to participate with others in the robbery “out in the country” of a man coming to Waynesboro with drugs. After the victim was killed, appellant told the witness that he and three others had “done the job” and he had received $250 of the $600–$700 taken from the victim.

Two of the three men indicted with appellant pled guilty to lesser charges and testified against appellant. Each of the testifying co-indictees stated he had purchased kilograms of cocaine from the victim, who did not live in the area, and that the victim had called each of them earlier in the week to say he was coming to town later in the week. One co-indictee testified he and the victim drove to the other testifying co-indictee's Burke County home in the victim's pickup truck. As they approached the house, the passenger co-indictee telephoned the co-indictee who owned the home and told him of their impending arrival. When they drove behind the house, appellant and the third co-indictee, both armed with “long guns,” approached the pickup truck—appellant on the driver's side and the third indictee on the passenger side—and ordered the occupants to get out of the truck and lie face-down on the ground. The passenger co-indictee testified his shirt was pulled up over his head, obscuring his vision, but he heard the armed men repeatedly ask the victim for the location of the drugs. After the victim said the drugs were at the motel where he was staying and begged for his life, two shots were fired, both of which struck the victim. The co-indictee who owned the house then came out of his house and rolled the victim over onto his back and, upon discovering the victim was dead, slapped appellant. Appellant and the three co-indictees placed the victim's body in the bed of the victim's pickup truck, and appellant drove the victim's truck to the vacant mobile home in Richmond County and parked the truck in the backyard. The two co-indictees who testified followed appellant in a truck owned by one of them and picked up appellant at the vacant mobile home. One co-indictee testified that, on the way back to Waynesboro, appellant asked the driver to go by a dumpster where he disposed of a black plastic bag. The other co-indictee testified that appellant had a bag that looked as if it had a gun in it when they picked him up at the mobile home, and appellant left the bag at his home.

The evidence summarized above was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant killed the victim while committing an aggravated assault and while in possession of a firearm. After the State presented proof in the second part of the bifurcated proceeding that appellant had been convicted seven years earlier of felony shoplifting, the evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of being a convicted felon in possession of a firearm. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Martin v. State, 281 Ga. 778(1), 642 S.E.2d 837 (2007) (bifurcated proceeding in which defendant was found guilty of possession of a firearm by a convicted felon).

2. Appellant contends he was not afforded his constitutional right to effective assistance of counsel at trial.

In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different.

Coleman v. State, 286 Ga. 291(6), 687 S.E.2d 427 (2009). If appellant fails to meet his burden of proving either prong of the test, the reviewing court need not examine whether the burden of proving the other prong has been met. Fuller v. State, 277 Ga. 505(3), 591 S.E.2d 782 (2004).

Appellant cites four instances in which he contends trial counsel did not provide effective assistance of counsel: counsel's failure to contest the validity of the arrest warrant that resulted in appellant's arrest in Texas; counsel's failure to contest the trial judge's authority to preside over appellant's trial; counsel's failure to appear at arraignment; and counsel's failure to ask the trial court to remove a juror who spoke with a witness outside the courtroom after the witness testified.

(a) Appellant sees deficient performance in counsel's failure to question the sufficiency of the affidavit executed in support of a law enforcement officer's application for the arrest warrant issued for appellant. Appellant posits that the affidavit did not contain material from which the magistrate could make a finding of probable cause and, had the arrest warrant been ruled illegal, would have prevented the introduction at trial of the testimony of the State's witnesses and the forensic evidence presented against appellant. Trial counsel testified at the hearing on the motion for new trial that he had not challenged the affidavit since appellant was afforded a preliminary hearing at which the probable cause to hold appellant for trial was assessed and found to be present. The affidavit in support of the arrest warrant is not in the appellate record. Compare Jones v. State, 287 Ga. 770(7), 700 S.E.2d 350 (2010); Murray v. State, 307 Ga.App. 621(2), 705 S.E.2d 726 (2011); Ware v. State, 258 Ga.App. 706(3), 574 S.E.2d 898 (2002). The absence of evidence from which a finding of trial counsel's deficient performance could be made, coupled with appellant's mere speculation concerning the prejudice purportedly wrought by the unproven deficient performance, leads us to conclude the trial court did not err when it determined that appellant did not carry his burden of proving ineffective assistance of counsel with regard to this claim. See Lanier v. State, 288 Ga. 109(3) (a), 702 S.E.2d 141 (2010) (unfounded speculation will not support a finding of deficient performance); Whitus v. State, 287 Ga. 801(2), 700 S.E.2d 377 (2010) (“Speculation is insufficient to satisfy the prejudice prong of Strickland [ v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)].”).

(b) Appellant next argues that trial counsel performed deficiently when he did not challenge the trial court's jurisdiction, i.e., the authority of Judge Michael Annis to preside over appellant's trial in the absence of an order transferring appellant's case to Judge Annis from Judge Neal Dickert, to whom appellant asserts the case was originally assigned. ² Appellant asserts he suffered prejudice as a result of counsel's purported deficient performance because the issue was not preserved for appellate review. However, the prejudice that must be established for ineffective assistance of counsel is that there is a reasonable probability that the outcome of appellant's trial would have been different but for counsel's failure to question the jurisdiction of the trial court. It is without question that the Superior Court of Burke County had exclusive jurisdiction over appellant, who was an adult charged with committing a felony in Burke County. Ga. Const.1983, Art. VI, Sec. IV, Par. I. Appellant was tried in the Superior Court of Burke County and, in the absence of evidence that Judge Annis was not a member of the Superior Court of Burke County, in the absence of evidence that a substitution of one judge for another in fact occurred and in the absence of evidence of the reason for the purported substitution, appellant has shown no harm resulting to him from Judge Annis presiding over his trial. See Cooper v. State, 281 Ga. 760(3), 642 S.E.2d 817 (2007). Consequently, trial counsel's failure to object to Judge Annis's role in this case does not constitute ineffective assistance.

(c) Appellant maintains that trial counsel's failure to appear at appellant's arraignment constituted ineffective assistance of counsel because appellant lost the opportunity to demur to an indictment that purportedly was vague and ambiguous since it did not set out in each count the role each co-indictee played, thereby depriving appellant of a perfect indictment and of information sufficient...