Jones v. State

864 S.E.2d 456, 312 Ga. 696

Opinion

312 Ga. 696 FINAL COPY

S21A1014. JONES v. THE STATE.

MCMILLIAN, Justice.

Steven Jamal Jones appeals his convictions for malice murder,

aggravated assault, and other offenses arising in connection with

the death of Quincey Denton and the assault of Kenneth Studivant.1

Jones argues on appeal that the evidence was insufficient to support

1 The crimes occurred on June 16, 2012, and on August 6, 2013, a Ware

County grand jury indicted Jones on one count of malice murder (Count 1), one count of felony murder (Count 2), two counts of aggravated assault (Count 3 for the aggravated assault of Denton and Count 4 for the aggravated assault of Studivant), and two counts of possession of a firearm during the commission of a crime, based on the aggravated assaults (Counts 5 and 6). Jones was tried from November 13 to 15, 2013, and the jury convicted him on all counts. The trial judge sentenced Jones to life imprisonment for malice murder; twenty years in prison, to run consecutively to Count 1, for the aggravated assault of Studivant; and a five-year term of imprisonment on each of the possession counts, with the sentence on Count 5 to run consecutively to Count 4 and the sentence on Count 6 to run consecutively to Count 5. The other aggravated assault count was merged into Count 1, and the felony murder count was vacated by operation of law. Jones filed a timely motion for new trial on December 11, 2013, which was amended by new counsel on October 7, 2019. After a hearing, during which the parties agreed to submit the motion for new trial to the trial court on briefing, the trial court denied the motion on September 3, 2020. Jones filed a timely appeal to this Court, and the case was docketed to the August 2021 term of this Court and submitted for a decision on the briefs. his convictions and that the trial court erred in denying his motion

for mistrial after the admission of allegedly improper character

evidence during the State’s case. As these contentions have no merit,

we affirm.

In June 2012, Denton was living in one side of a duplex in

Waycross with his girlfriend, Angela Williams, and her seven-year-

old son, M. F. Studivant lived on the other side of the duplex.

At around 9:15 p.m. on June 16, Rhoda and Willie White were

driving home from the grocery store when they saw Jones, whom

they knew, and a man they did not know walking near their home,

which was around the corner from Denton’s duplex. Jones and the

other man were dressed in dark or black clothing. Willie testified

that Rhoda spoke to Jones and Jones responded. Jones did not live

in the neighborhood, and Willie had never seen him there before.

The same night, Williams’s mother, Katrina Lane, and her husband,

Bernard Davis, who lived across the street from the duplex, were

attending a birthday party for M. F. at Denton’s house when they

saw two men dressed in black, one short and the other tall, walking

2 back and forth near the house. Lane had never seen the two men

before. One witness testified that Jones was approximately 6 feet to

6 feet, 1 inch tall.

Williams left the duplex at around 10:30 that night, leaving

Denton, M. F., and a friend at the house. The friend later left, and,

at some point, Studivant walked outside onto the porch of the duplex

to smoke a cigarette. As Studivant was sitting outside, two armed

men approached, grabbed him, and forced him into Denton’s side of

the duplex through the front door. When the men entered the

duplex, M. F. was lying on the sofa in the front room watching

television. M. F. testified that the intruders were armed and

wearing sunglasses with scarves over their mouths. One was short,

and the other was tall. After the men walked past M. F., he fled out

the front door and ran to Lane’s house across the street.

Meanwhile, the two men forced Studivant into a bedroom

where Denton was watching television. They made Denton and

Studivant kneel on the floor and lie face-down across the bed with

their hands on the bed. Studivant heard one of the men direct the

3 other to “hit him, hit him, hit him,” and then heard a commotion,

but Studivant testified that he was scared and “didn’t dare move.”

Lane called 911 after M. F. told her what had happened, and

M. F. testified that while he was at Lane’s house, he heard a

gunshot. Both Lane and Davis stepped outside to see what was

happening. From her porch, Lane saw a person, whom she described

as short, run out the side door of the duplex toward some nearby

bushes. She then saw a taller person “busting out” the front door,

breaking it, and heading toward the same area. Davis heard

someone beating on the front door and also saw someone wearing

dark clothing break through the front door and run away.

After the noise died down, Studivant got up and saw Denton

lying on the bed with blood around him. Studivant left the duplex

through the front door and told Davis, who was outside on his front

porch, that Denton had been shot. Lane then asked the 911 operator

to send an ambulance.

Willie White, who was home cooking at the time, heard

gunshots and the sounds of someone running. He looked out his door

4 and, from the light on Denton’s porch, saw two people running —

one of whom he recognized as Jones, who was still wearing dark

clothes. The two men were running from Denton’s house toward a

nearby trail through a wooded area. Although Willie failed to pick

Jones out of a police lineup as the man he saw that night, Willie

testified at trial that when police officers showed him the lineup

with Jones’s picture, he chose not to identify Jones because he does

not “judge people,” and he did not “want to be the one to pass

judgment.”

When law enforcement officers responded to the scene of the

shooting, they discovered Denton on his knees lying face-down

across the bed. He was unresponsive, with no pulse, and had two

small wounds to his head and a gunshot wound to his chest. The

coroner later pronounced him dead at the scene. The area around

Denton’s house was searched, leading to the discovery of a black

Rossi .38-caliber revolver, which appeared to have been recently

tossed in some tall grass in a field near the wooded area where

witnesses said the intruders ran. One shot had been fired from the

5 revolver, and the weapon’s four remaining chambers contained live

rounds.

At trial, the medical examiner testified that the gunshot wound

was the cause of Denton’s death and that the wounds to his head

were consistent with Denton having been “pistol whipped.” The

medical examiner was able to retrieve the fatal bullet from Denton’s

body. Later testing by the GBI determined that the bullet recovered

from Denton’s body had been fired from the .38-caliber revolver

recovered near Denton’s house, and DNA samples taken from the

grip of the gun were a match for Jones’s DNA.

Later on the night of the shooting, Steven Clerge learned that

Denton had been shot, and he and a friend drove to the scene of the

shooting. They did not stay long, and after they left, they

encountered Jones walking down the road right around the corner

from the murder scene. Jones, who was wearing a black shirt and

dark pants, got in their car. Clerge described Jones as “acting off”

that night — “like he had a lot on his mind.” When Jones got in the

car, he was fidgeting and talking to himself in the back seat. The

6 three men later returned to the crime scene, but Jones got “antsy”

when someone said something about a warrant, and he offered

Clerge $10 to drive him to Jones’s girlfriend’s house. When they got

back in the car, Jones did not say where his girlfriend lived, but

instead kept directing Clerge where to turn, and they ended up

circling the crime scene twice before Jones eventually asked Clerge

to drop him somewhere else. They never made it to the girlfriend’s

house.

Jones was ultimately arrested for Denton’s murder based on

witness statements that they had seen him in the area around the

time of the shooting and later fleeing from the scene and the match

between his DNA and the samples taken from the grip of the murder

weapon.

At trial, the defense presented testimony from Jerome Martin,

who said he was with Jones for “a couple of minutes” on the night of

the murder. Martin testified that a .38-caliber weapon shown to him

by a police detective looked like a gun that a man tried to sell to

Jones and him that night. Both Martin and Jones handled the

7 weapon, and Jones held it by its grip. But, Martin testified that they

decided not to buy the gun. However, the State presented evidence

that the DNA recovered from the murder weapon contained only one

DNA profile, which was compared with DNA samples provided by

Martin and Jones, and it matched only Jones’s DNA sample.

1. Jones argues that even giving all proper deference to the

jury’s resolution of conflicts in the testimony, no rational factfinder

could conclude that he committed the crimes in this case.

In reviewing Jones’s challenge to the sufficiency of the evidence

to support his convictions as a matter of constitutional due process,

we view the evidence in the light most favorable to the verdict and

consider whether any rational trier of fact could have found him

guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S.

307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). “Our limited

review under the standard set out in Jackson leaves to the jury the

resolution of conflicts in the testimony, the weight of the evidence,

the credibility of witnesses, and reasonable inferences to be made

from basic facts to ultimate facts.” Menzies v. State, 304 Ga. 156, 160

8 (II) (816 SE2d 638) (2018) (citation and punctuation omitted).

Jones was seen in the vicinity before the crimes occurred, and

a witness spotted him fleeing from the crime scene and running

toward a wooded area near Denton’s house immediately after the

witness heard gunshots. The revolver that fired the fatal gunshot

was located in a field near that wooded area, and Jones’s DNA was

found on the grip of the gun. His height and clothing matched the

descriptions provided by witnesses. We conclude that this and other

evidence presented at trial, although circumstantial, was strong and

more than sufficient to support Jones’s convictions in this case. See

Carson v. State, 308 Ga. 761, 764 (1) (843 SE2d 421) (2020) (DNA

and other evidence placing defendant in vicinity of crime before and

after murder, though circumstantial, was sufficient to support

convictions); Carter v. State, 289 Ga. 51, 52 (1) (709 SE2d 223) (2011)

(circumstantial evidence showing that defendant matched

eyewitness’s description of one of the two gunmen and defendant’s

fingerprints were found on the outside of the car used in the crimes

was sufficient to support his convictions).

9 2. Jones also contends that the trial court erred in not granting

a mistrial when he says his character was improperly put before the

jury during the direct examination of a witness for the State.

During the State’s examination of Jones’s girlfriend, who

appeared at trial as a prosecution witness, she testified that she and

Jones had gotten a room at a local motel the day after the shooting.

After Jones’s girlfriend denied that she and Jones had discussed

Denton’s murder, the prosecutor asked her what they talked about

while at the motel. She replied that they talked about “what [they]

always talked about.” Then, in response to the prosecutor’s question

asking what that was, she said that she and Jones were just

spending time together “because we knew he had to turn himself in

for probation.”

At that point, Jones’s counsel moved for a mistrial, arguing

that the damage from Jones’s girlfriend’s testimony could not be

cured. Further colloquy outside the presence of the jury revealed

that Jones was on probation at the time for misdemeanor disorderly

conduct, and Jones’s counsel was permitted to question Jones’s

10 girlfriend about her knowledge of the circumstances of that

probation.

The trial court denied the mistrial, finding that the

prosecution’s question “was not leading to intentionally elicit that

response; that it was just . . . a spontaneous response by the witness,

perhaps inadvertent.” But the trial court acknowledged that the

testimony raised an issue as to Jones’s character and offered to give

a curative instruction to the jury. Defense counsel replied that he

“would either ask for a curative instruction or else inform the jury

about the nature of the probation.” After weighing these options,

trial counsel first asked for a curative instruction but later changed

his mind and said he did not want an instruction and instead would

cross-examine the witness about the circumstances surrounding

Jones’s probation. After the jury returned, defense counsel elicited

testimony that Jones was on probation for six months for disorderly

conduct, that a warrant was issued because he failed to complete his

GED, a condition of the probation, and that Jones turned himself in

to the police.

11 On appeal, Jones again asserts that there was no way to cure

the harm arising from his girlfriend’s testimony, and because the

evidence against him was not substantial or overwhelming, he is

entitled to a new trial. But we need not decide if the trial court

abused its discretion in denying the motion for mistrial because

Jones waived his right to raise the issue on appeal when his trial

counsel affirmatively declined the trial court’s offer to give a curative

instruction. See Stephens v. State, 307 Ga. 731, 740 (5) (b) (838 SE2d

275) (2020) (defendant cannot complain on appeal about the denial

of his motion for mistrial “because his counsel affirmatively

informed the court that [the defense] did not want a curative

instruction to be given” and thus waived the issue for appellate

review); Brewer v. State, 301 Ga. 819, 820 (2) (804 SE2d 410) (2017)

(“Given that [the defendant] declined the court’s offer to give a

curative instruction with regard to the statement, . . . [he] has

waived his right to complain about the trial court’s [refusal to grant

his motion for mistrial].” (citation omitted)). Because Jones waived

the issue for appellate review, this enumeration of error presents

12 nothing for us to consider.

Judgment affirmed. All the Justices concur.

Decided October 19, 2021.

Murder. Ware Superior Court. Before Judge Gillis.

T. Craig Head, Jr., for appellant.

George E. Barnhill, District Attorney, Joshua T. Brockington,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant

Attorney General, for appellee.