314 Ga. 466 FINAL COPY
S22A0744, S22A0745. JONES v. THE STATE (two cases).
BETHEL, Justice.
A Coffee County jury found Samuel Edward Jones guilty of
malice murder and other crimes in connection with the shooting
death of Terrance Gibson. In these consolidated cases, Jones
appeals, arguing that the trial court erred by refusing to charge the
jury on voluntary manslaughter and that his trial counsel provided
constitutionally ineffective assistance.1 We disagree with both
1 Gibson’s death occurred on November 18, 2018. On January 30, 2019,
Jones was indicted by a Coffee County grand jury for malice murder, two counts of influencing a witness, and possession of a firearm by a convicted felon. On November 4, 2020, the trial court entered a judgment of nolle prosequi on the firearm-possession charge. On November 18, 2020, Jones was indicted by a Coffee County grand jury for an additional count of possession of a firearm by a convicted felon during the commission of a crime. The court held a bifurcated trial in May 2021. At the trial on the three remaining counts of the 2019 indictment, the trial court granted Jones’s motion for a directed verdict on the second count of influencing a witness, and the jury found Jones guilty of malice murder and the first count of influencing a witness. At the trial on the sole count of the 2020 indictment, the same jury found Jones guilty of possession of a firearm by a convicted felon during the commission of a crime. The trial court then sentenced Jones to life in prison contentions and affirm.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. In October 2018,
Jones was in a relationship with Danielle Wilson. Danielle lived
with her mother, Adrece Wilson, at Adrece’s house. Adrece’s other
daughter, Desiree, and Adrece’s boyfriend, Demichael Green, also
lived in the house.
In mid-October, Gibson had a conflict with Adrece in the front
yard of her house during which the two argued and Gibson
discharged a firearm several times. After the conflict, Adrece went
back inside the house, and Jones and Green came outside. Jones and
Green accosted Gibson, and both fired shots at Gibson as Gibson
walked away.
Approximately one month after this confrontation, on
without the possibility of parole for malice murder, five years concurrent for influencing a witness, and 15 years consecutive for the firearm-possession count. On May 14, 2021, Jones filed motions for new trial in both cases, which he later amended through new counsel. Following a hearing on February 11, 2022, the trial court denied the motions, as amended. On February 14, 2022, Jones filed notices of appeal in these cases. These cases were docketed to this Court’s April 2022 term, submitted for decisions on the briefs, and consolidated for opinion. 2 November 18, Jones was riding in a car with Desiree with Adrece
driving. As they were about to return Jones to his residence, they
noticed Gibson walking down a nearby street. Adrece testified that
Jones got out of the car and “had some kind of words” with Gibson.
Though she could not hear what the two said, she did hear Gibson
say, “No, no, no,” before attempting to run away from Jones. Jones
then shot at Gibson. Gibson fell but then got back up and continued
running. Gibson was shot once in the back and died from his injury.
A witness observed Jones running from the general area where
he heard gunshots fired and then saw Jones run to a house. The
witness directed police officers to the house, where they spoke with
Jones after the incident. Jones told one of the officers that he had
gone to a store, come back to this house, and was about to take out
the trash when he heard gunshots.
The police arrested Jones on December 7, 2018. Following his
arrest, Jones spoke with Desiree by phone from jail and told her that
he was going to send her a letter containing a story she needed to
memorize. The letter, which was admitted into evidence at trial,
3 instructed Desiree that her story was that she did not see any
shooting on November 18 and that she later learned of the shooting
on social media. The letter also instructed her to say that Green was
in the car with them and that Green got out of the car while Jones
remained in the vehicle.
At trial, the State introduced a second letter addressed to
Desiree that had been found in Jones’s jail cell during a search. In
that letter, Jones told Desiree that “all that you saying is, we left the
store to drop [Jones] off home.” Desiree was to say that when they
got close to his house, Jones told Adrece to stop the car, and he got
out of the vehicle and ran “back up the street.” When Adrece turned
the car around to follow Jones, Desiree saw a truck “coming down
fast” and saw a black handgun fired out of the truck’s passenger-
seat window, at which time Desiree put her head down. In the letter,
Jones further instructed Desiree to say that she never got out of the
car and never saw the person’s face who was shooting but saw a
“black hand” come out of the window. She was also to say that she
heard lots of shots fired, that she “never saw the victim,” that she
4 “did see another person walking during the time of the shooting” but
could not make out who he was because his back was turned, that
she did not know where Jones “went or was doing at the time the
shots went off,” and that she should answer that she “d[id not]
remember” or “d[id not] know” to any questions she got “trapped on.”
Finally, the letter told Desiree to say that Green had previously shot
at “GB.”
While he was in jail, Jones also spoke with Adrece’s sister,
Sharon, over the phone. Jones offered to give her money he expected
to receive from a lawsuit in exchange for Sharon persuading Adrece
to change her statement that she saw Jones shoot Gibson.
Antonio Stewart, another inmate, testified that, while Jones
was awaiting trial, Jones told him that while riding with Adrece and
his girlfriend’s sister, he saw Gibson walking, got out of his car, and
shot at him. Jones also told Stewart that he then ran back to his
house, entered through a window, and hid the firearm, which he
later buried. After Stewart talked to the police, Jones instructed
another person, Shelby Henderson, to create an e-mail address and
5 send a threatening e-mail to Stewart prior to the trial.
2. Jones first argues that the trial court committed plain error
by declining to instruct the jury on his requested pattern charge for
the lesser offense of voluntary manslaughter.2 The trial court
declined to give the charge, stating, “I don’t think the facts fit.”
Later, after the giving of the final charge to the jury, Jones did not
object to the trial court’s decision not to give an instruction on
voluntary manslaughter. See OCGA § 17-8-58 (a) (“Any party who
objects to any portion of the charge to the jury or the failure to charge
the jury shall inform the court of the specific objection and the
grounds for such objection before the jury retires to deliberate. Such
objections shall be done outside of the jury’s hearing and presence.”).
2 The pattern jury instruction for voluntary manslaughter provides as
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314 Ga. 466 FINAL COPY
S22A0744, S22A0745. JONES v. THE STATE (two cases).
BETHEL, Justice.
A Coffee County jury found Samuel Edward Jones guilty of
malice murder and other crimes in connection with the shooting
death of Terrance Gibson. In these consolidated cases, Jones
appeals, arguing that the trial court erred by refusing to charge the
jury on voluntary manslaughter and that his trial counsel provided
constitutionally ineffective assistance.1 We disagree with both
1 Gibson’s death occurred on November 18, 2018. On January 30, 2019,
Jones was indicted by a Coffee County grand jury for malice murder, two counts of influencing a witness, and possession of a firearm by a convicted felon. On November 4, 2020, the trial court entered a judgment of nolle prosequi on the firearm-possession charge. On November 18, 2020, Jones was indicted by a Coffee County grand jury for an additional count of possession of a firearm by a convicted felon during the commission of a crime. The court held a bifurcated trial in May 2021. At the trial on the three remaining counts of the 2019 indictment, the trial court granted Jones’s motion for a directed verdict on the second count of influencing a witness, and the jury found Jones guilty of malice murder and the first count of influencing a witness. At the trial on the sole count of the 2020 indictment, the same jury found Jones guilty of possession of a firearm by a convicted felon during the commission of a crime. The trial court then sentenced Jones to life in prison contentions and affirm.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. In October 2018,
Jones was in a relationship with Danielle Wilson. Danielle lived
with her mother, Adrece Wilson, at Adrece’s house. Adrece’s other
daughter, Desiree, and Adrece’s boyfriend, Demichael Green, also
lived in the house.
In mid-October, Gibson had a conflict with Adrece in the front
yard of her house during which the two argued and Gibson
discharged a firearm several times. After the conflict, Adrece went
back inside the house, and Jones and Green came outside. Jones and
Green accosted Gibson, and both fired shots at Gibson as Gibson
walked away.
Approximately one month after this confrontation, on
without the possibility of parole for malice murder, five years concurrent for influencing a witness, and 15 years consecutive for the firearm-possession count. On May 14, 2021, Jones filed motions for new trial in both cases, which he later amended through new counsel. Following a hearing on February 11, 2022, the trial court denied the motions, as amended. On February 14, 2022, Jones filed notices of appeal in these cases. These cases were docketed to this Court’s April 2022 term, submitted for decisions on the briefs, and consolidated for opinion. 2 November 18, Jones was riding in a car with Desiree with Adrece
driving. As they were about to return Jones to his residence, they
noticed Gibson walking down a nearby street. Adrece testified that
Jones got out of the car and “had some kind of words” with Gibson.
Though she could not hear what the two said, she did hear Gibson
say, “No, no, no,” before attempting to run away from Jones. Jones
then shot at Gibson. Gibson fell but then got back up and continued
running. Gibson was shot once in the back and died from his injury.
A witness observed Jones running from the general area where
he heard gunshots fired and then saw Jones run to a house. The
witness directed police officers to the house, where they spoke with
Jones after the incident. Jones told one of the officers that he had
gone to a store, come back to this house, and was about to take out
the trash when he heard gunshots.
The police arrested Jones on December 7, 2018. Following his
arrest, Jones spoke with Desiree by phone from jail and told her that
he was going to send her a letter containing a story she needed to
memorize. The letter, which was admitted into evidence at trial,
3 instructed Desiree that her story was that she did not see any
shooting on November 18 and that she later learned of the shooting
on social media. The letter also instructed her to say that Green was
in the car with them and that Green got out of the car while Jones
remained in the vehicle.
At trial, the State introduced a second letter addressed to
Desiree that had been found in Jones’s jail cell during a search. In
that letter, Jones told Desiree that “all that you saying is, we left the
store to drop [Jones] off home.” Desiree was to say that when they
got close to his house, Jones told Adrece to stop the car, and he got
out of the vehicle and ran “back up the street.” When Adrece turned
the car around to follow Jones, Desiree saw a truck “coming down
fast” and saw a black handgun fired out of the truck’s passenger-
seat window, at which time Desiree put her head down. In the letter,
Jones further instructed Desiree to say that she never got out of the
car and never saw the person’s face who was shooting but saw a
“black hand” come out of the window. She was also to say that she
heard lots of shots fired, that she “never saw the victim,” that she
4 “did see another person walking during the time of the shooting” but
could not make out who he was because his back was turned, that
she did not know where Jones “went or was doing at the time the
shots went off,” and that she should answer that she “d[id not]
remember” or “d[id not] know” to any questions she got “trapped on.”
Finally, the letter told Desiree to say that Green had previously shot
at “GB.”
While he was in jail, Jones also spoke with Adrece’s sister,
Sharon, over the phone. Jones offered to give her money he expected
to receive from a lawsuit in exchange for Sharon persuading Adrece
to change her statement that she saw Jones shoot Gibson.
Antonio Stewart, another inmate, testified that, while Jones
was awaiting trial, Jones told him that while riding with Adrece and
his girlfriend’s sister, he saw Gibson walking, got out of his car, and
shot at him. Jones also told Stewart that he then ran back to his
house, entered through a window, and hid the firearm, which he
later buried. After Stewart talked to the police, Jones instructed
another person, Shelby Henderson, to create an e-mail address and
5 send a threatening e-mail to Stewart prior to the trial.
2. Jones first argues that the trial court committed plain error
by declining to instruct the jury on his requested pattern charge for
the lesser offense of voluntary manslaughter.2 The trial court
declined to give the charge, stating, “I don’t think the facts fit.”
Later, after the giving of the final charge to the jury, Jones did not
object to the trial court’s decision not to give an instruction on
voluntary manslaughter. See OCGA § 17-8-58 (a) (“Any party who
objects to any portion of the charge to the jury or the failure to charge
the jury shall inform the court of the specific objection and the
grounds for such objection before the jury retires to deliberate. Such
objections shall be done outside of the jury’s hearing and presence.”).
2 The pattern jury instruction for voluntary manslaughter provides as
follows: For voluntary manslaughter, the State must prove that the Defendant (1) caused the death of another person (2) under circumstances that would otherwise be murder (3) and acted only because of a sudden, violent, and irresistible passion that resulted from serious provocation (4) which was sufficient to excite such passion in a reasonable person. If you decide that enough time passed between the provocation and the killing for a reasonable person to have “cooled off” and regained judgment, then the killing is not voluntary manslaughter. Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 2.10.41. 6 We therefore review Jones’s claim of error regarding the failure to
give a voluntary manslaughter charge for plain error only. See
OCGA § 17-8-58 (b) (“Failure to object in accordance with subsection
(a) of this Code section shall preclude appellate review of such
portion of the jury charge, unless such portion of the jury charge
constitutes plain error which affects substantial rights of the
parties. Such plain error may be considered on appeal even if it was
not brought to the court’s attention as provided in subsection (a) of
this Code section.”).
A failure to charge amounts to plain error only to the extent that the failure was erroneous, the error was obvious, the failure to charge likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.
(Citation and punctuation omitted.) Burke v. State, 302 Ga. 786, 789
(2) (809 SE2d 765) (2018). “We need not analyze all of the elements
of this test when, as in this case, the defendant has failed to
establish one of them.” (Citation and punctuation omitted.) Early v.
State, 313 Ga. 667, 672 (2) (b) (872 SE2d 705) (2022).
7 “A voluntary manslaughter charge is required when there is
slight evidence that the defendant acted ‘solely as the result of a
sudden, violent, and irresistible passion resulting from serious
provocation sufficient to excite such passion in a reasonable person.’”
Jones v. State, 301 Ga. 1, 5-6 (2) (799 SE2d 196) (2017) (quoting
OCGA § 16-5-2 (a)), overruled on other grounds by Worthen v. State,
304 Ga. 862 (823 SE2d 291) (2019).
In reviewing this issue in conjunction with Jones’s motion for
new trial, the trial court adhered to its decision to forgo a charge on
voluntary manslaughter, reasoning that the charge was not
required because there was no evidence supporting it. Considering
the evidence presented at trial, we agree with the trial court’s
conclusion.
Jones points to evidence that he and Gibson were “members of
rival gangs” and had been in a “shootout” only a month before
Gibson’s death. Jones also relies on Adrece’s testimony that just
before Gibson was shot by Jones, Jones and Gibson had a “violent
exchange” immediately prior to the shooting. Even assuming,
8 arguendo, that Jones’s assertions were correct, the trial court was
authorized to find as a matter of law that the month-long interval
between the shootout between Jones and Gibson and the murder
was a sufficient cooling-off period such that the earlier confrontation
“did not constitute even slight evidence of provocation.” Harris v.
State, 280 Ga. 372, 373 (2) (627 SE2d 562) (2006) (where the
purported provocation was a month-old beating by the victim, the
trial court could conclude, as a matter of law, that the incident did
not constitute even slight evidence of provocation necessitating a
voluntary manslaughter charge due to the cooling off period). See
also Hatchett v. State, 259 Ga. 857, 858 (1) (388 SE2d 694) (1990)
(three-week interval between defendant’s discovery of a love letter
to the victim and the alleged shooting sufficient to authorize the trial
court to conclude, as a matter of law, that the discovery did not
constitute provocation warranting a voluntary manslaughter charge
because of the “lengthy cooling off period”).
Moreover, as for evidence of the “violent exchange” between
Jones and Gibson before the shooting, Adrece’s testimony was that
9 after Jones left the vehicle and confronted Gibson, the two “had some
kind of words” and that Gibson said “No, no, no,” before attempting
to run away from Jones, who shot at him. This Court has previously
stated that “[a]s a matter of law, angry statements alone ordinarily
do not amount to ‘serious provocation’ within the meaning of OCGA
§ 16-5-2 (a).” Merritt v. State, 292 Ga. 327, 331 (2) (737 SE2d 673)
(2013). See also Orr v. State, 312 Ga. 317, 321 (2) (862 SE2d 513)
(2021) (same); Jones, 301 Ga. at 6-7 (2) (evidence that appellant
appeared to exchange angry words with rival gang members prior to
shooting did not support voluntary manslaughter instruction).
Thus, we cannot say that the trial court clearly or obviously erred in
concluding that there was no evidence of serious provocation, and
therefore we conclude that the trial court did not plainly err in
declining to give a charge on voluntary manslaughter.
3. Jones next argues that his conviction for malice murder
should be reversed because he received ineffective assistance at trial
due to his counsel’s failure to object to the trial court’s refusal to
charge the jury on voluntary manslaughter. Because Jones cannot
10 establish that his counsel was constitutionally deficient, his claim
fails.
In order to succeed on his claim of ineffective assistance, [Jones] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his or her burden of proving either prong of the Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984) test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.
(Citation and punctuation omitted.) Lyons v. State, 309 Ga. 15, 25
(8) (843 SE2d 825) (2020).
As we explained above in Division 2, even if Jones’s trial
counsel had preserved an objection to the trial court’s failure to give
an instruction on voluntary manslaughter by objecting as set forth
in OCGA § 17-8-58 (a), such an objection would have been meritless,
as there was no basis for the trial court to instruct the jury on
voluntary manslaughter. Trial counsel’s performance is not deficient
where he fails to make a meritless objection. See Lyons, 309 Ga. at
11 27 (8) (b) (“Failure to lodge meritless objections does not support an
ineffective assistance claim.”). This claim of ineffective assistance of
counsel therefore fails.
Judgments affirmed. All the Justices concur.
Decided August 23, 2022.
Murder. Coffee Superior Court. Before Judge Brooks.
Robert L. Persse, for appellant.
George E. Barnhill, District Attorney, Ian L. Sansot, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Michael A. Oldham, Assistant Attorney
General, for appellee.