Jowers v. State
| Decision Date | 18 October 1990 |
| Docket Number | No. S90A0930,S90A0930 |
| Citation | 260 Ga. 459,396 S.E.2d 891 |
| Parties | JOWERS v. The STATE. |
| Court | Georgia Supreme Court |
Thomas H. Pittman, Walters, Davis, Smith, Meeks & Pittman, Ocilla, for Jowers.
Harry D. Dixon, Dist. Atty., Waycross, Michael J. Bowers, Atty. Gen., Atlanta, Albert Tester, Asst. Dist. Atty., Waycross, C.A. Benjamin Woolf, Atty., State Law Dept., Atlanta, for the State.
Donaldson Stanley Jowers was convicted of the murder of Tawana Jean Burnham and given a sentence of life imprisonment. 1
Jowers and Burnham had lived together in Coffee County, Georgia for approximately three to four years prior to her death. Their relationship had been turbulent, and Jowers had physically abused her and threatened to kill her on several occasions.
One week prior to her death, Burnham entered a substance abuse center in Waycross because of alcohol and drug problems. When she entered that facility, she was "beaten up pretty badly." Several days later, she returned to Coffee County. After spending most of the evening drinking at a lounge, she spent the night of April 5, 1988, at an adjoining motel.
At Burnham's request the next morning a friend, John Fambrough, drove her to Jowers' residence. In transit they stopped at a liquor store where she bought, and later consumed, a pint of Vodka. Upon arriving at the residence later that morning, Jowers and Burnham began to argue, and Fambrough left.
As a result of Fambrough's telephone call relating concern for Burnham's safety, a sheriff's investigator went to Jowers' residence, but left when Burnham appeared at the door and stated "everything was okay." Later that evening, two telephone calls to the sheriff's office from Burnham relating her fear of Jowers resulted in further investigation which produced no evidence of harm to Burnham.
On the evening of April 7, Jowers summoned an investigator and emergency medical technicians to his residence. When they arrived, Burnham was in the bedroom lying on the bed in a fetal position, and Jowers was in another room. Burnham had sustained one gunshot wound, which passed through her right breast to her right lung. She was alive, but died a few hours later from a hemorrhage in the right lung cavity.
Next to Burnham's body on the bed, investigators found Jowers' 357 magnum weapon. Jowers stated to law enforcement authorities, and testified at trial, that Burnham had committed suicide and that he did not shoot her.
The GBI compiled two official reports, one dated June 30, 1988, and the other dated October 18, 1989. These reports contain three items relevant to our decision in this case: (1) Chemical and toxicological tests showing alcohol and other drugs in the victim's blood at the time of her death; (2) microanalytical tests concerning gunshot residue produced by the firing of the .357 magnum which caused the victim's death; and (3) ballistics examinations in regard to the distance of the gun from the deceased when the weapon was discharged.
(1) Both GBI reports state that at the time of her death, the decedent's blood tested positive for .21 grams percent of ethyl alcohol, for "16 mcg per dl" of benzoyledgonine (a metabolite of cocaine), and for ".11 mg per dl" of phenobarbital. This evidence concerns the decedent's mental state at the time of her death, which is relevant to the question of whether she was predisposed to take her own life.
(2) No gunshot residue was found on the decedent's hands. However, the reports state that this did not "eliminate the possibility" that the decedent could have discharged the weapon. The October 18th report states that in discharging the weapon "under laboratory conditions," atomic absorption analysis of test wipings so produced failed to reveal the presence of elements characteristic of gunshot residue.
(3) It is stated in the autopsy report, The consistency of the wound with a "tumbling bullet" means that the gun inflicting the fatal wound was fired at some distance from the decedent, and thus could not have been self-inflicted.
However, both GBI reports state that an examination of a pink shirt worn by the decedent at the time of her death did reveal the presence of gunpowder around the gunshot hole of entry in the right front breast area. On this basis, the October 18th report concludes that, "there is a pressed contact type gun shot hole of entry in the front of the pink shirt." A "contact wound" means that the gun was pressed against the decedent's shirt when the fatal shot was fired; under this theory, the wound could have been self-inflicted or the weapon could have been fired by another individual. The foregoing conclusion in the October 18th report is not contained in the June 30th report. Both reports also state that no legible fingerprints were found on the weapon.
Notwithstanding the contents of these scientific reports, which were all produced to him, defense counsel allowed the prosecution to advance arguments and present evidence which was not refuted to the effect that the decedent had not been drinking at the time of her death and that the absence of gunshot residue on the victim's hands, as well as the consistency of the wound with a tumbling bullet, indicated that the fatal wound was not self-inflicted.
Appellant contends that his conviction and sentence should be set aside on grounds of prosecutorial misconduct and ineffective assistance of trial counsel.
As to his prosecutorial misconduct claim, appellant, citing Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), argues that his due-process rights were violated insofar as the prosecution presented its case to the jury in a manner inconsistent with the findings in the GBI reports.
As to his ineffective assistance claim, 2 Jowers argues that trial counsel was constitutionally ineffective as he failed to adequately investigate the case and failed to utilize the contents of the GBI reports, or to subpoena the individuals who had conducted the various tests referred to therein, in support of his defense.
We reverse due to ineffective assistance of trial counsel; therefore, we do not reach appellant's prosecutorial misconduct claim.
1. This case is wholly dependent upon circumstantial evidence. If the proved facts do not exclude every other reasonable hypothesis save that of guilt--as required by OCGA § 24-4-6, see e.g., Anglin v. State, 244 Ga. 1, 257 S.E.2d 513 (1979); Bragg v. State, 175 Ga.App. 640(1), 334 S.E.2d 184 (1985)--then a new trial is barred as a matter of double jeopardy. Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1975); see generally Brown v. State, 260 Ga. 153 (n. 2), 391 S.E.2d 108 (1990). We hold that in this case, as in others, the sufficiency of the circumstantial evidence is primarily a question for determination by the jury. See e.g., Bird...
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