Jones v. State

Citations: 487 S.E.2d 371; 226 Ga. App. 619; 97 Fulton County D. Rep. 1966; 1997 Ga. App. LEXIS 655Docket: A97A0990

Court: Court of Appeals of Georgia; May 13, 1997; Georgia; State Appellate Court

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David Anthony Jones was convicted of two counts of armed robbery, one count of criminal attempt to commit robbery, and two counts of firearm possession during a felony. Following the denial of his new trial motion, Jones raised nine errors on appeal. The incidents occurred on April 10, 1994, when three men, including Jones, robbed TCBY Yogurt at gunpoint, with employee Larissa Sirotta identifying Jones as one of the robbers. Five days later, the same men attempted another robbery at TCBY, but Sirotta recognized Jones again, causing the robbers to flee. They subsequently attempted to rob Matthew Jones in a parking lot, where he was threatened at gunpoint. 

Local law enforcement apprehended Jones after he tripped while fleeing, discovering a discarded handgun and cash from the robbery. Despite waiving his Miranda rights, Jones denied involvement in the TCBY robberies but acknowledged being present during Matthew Jones' robbery. On appeal, Jones argued the trial court erred by not instructing the jury on alibi, coercion, and good character. The court held that since Jones' alibi defense was essentially the same as his identity defense, separate instructions were unnecessary. The trial court had adequately instructed the jury on identity, witness reliability, and the State's burden to prove identity beyond a reasonable doubt.

Jones argues that his conviction for the armed robbery of Matthew Jones should be overturned due to the trial court's failure to instruct the jury on coercion, which was his primary defense. His testimony indicated that co-defendant Devon Borges threatened him with a gun, warranting a jury charge on coercion despite conflicting evidence and statements. The court must present affirmative defenses raised by evidence, including the defendant's own statements, to the jury, regardless of whether a request was made. The absence of this instruction misled the jury regarding the State's burden to disprove coercion, leading to the reversal of Jones' convictions for armed robbery and firearm possession during the crime, and necessitating a new trial on these counts.

Furthermore, the trial court did not err by not declaring a mistrial after a witness mentioned Borges' prior conviction, as this did not undermine Jones' coercion defense. The court rightly denied Jones' motion for a directed verdict on Counts 2 and 7, despite his claims of indictment defects, because he failed to timely challenge the indictment format. Even if not waived, the indictment sufficiently informed him of the charges. Additionally, the court was not required to declare a mistrial over testimony regarding the search of Jones' pockets, as it was relevant to the investigation. Lastly, the court did not err in denying Jones' motion to suppress his custodial statement, despite conflicting testimonies during the Jackson-Denno hearing about the timing of his Miranda warnings.

Only Bythewood and Jones were present during the interview, and the trial court did not clearly err by rejecting Jones' testimony. The prosecutor had the right to read the indictment and pose statutory voir dire questions. Jones claimed ineffective assistance of counsel, requiring him to demonstrate both deficient performance and resulting prejudice under Strickland v. Washington. He raised 13 alleged failures of his trial counsel, but four issues had been previously addressed, and four others were waived. 

Regarding the remaining claims: a) Jones' assertion that his counsel failed to investigate alibi and character witnesses was unsupported; the counsel had met with Jones multiple times and investigated adequately, but lacked necessary information from Jones. b) The claim about failing to subpoena an alibi witness was contradicted by counsel's testimony about insufficient information provided by Jones. c) The failure to request a jury poll was not mandatory and any error was harmless due to overwhelming evidence of guilt. d) The contention that counsel inadequately prepared Jones was unsupported by evidence of lack of preparation. e) Jones did not demonstrate harm from not requesting a formal presentence investigation, as counsel provided relevant information at sentencing.

The court found sufficient evidence to uphold convictions on Counts 1, 2, and 3, while it erred in denying a new trial for Counts 6 and 7. The judgment was affirmed for Counts 1, 2, and 3, reversed for Counts 6 and 7, and remanded for a new trial. Additionally, a request for a good character instruction was deemed waived, and Jones' employment record was irrelevant to his alibi claim for the robbery.