Herbert Edward Jones v. State
A21A0090
| Ga. Ct. App. | Jun 15, 2021Background
- Herbert Jones was convicted by a jury of rape after two acquaintances observed him allegedly performing sexual acts on an unconscious victim in an apartment.
- The victim was unconscious for an extended period, awakened with smelling salts, and reported no consent; medical exam found bruising and collected vaginal swabs.
- GBI DNA testing found DNA on a vaginal swab matching Jones or his paternal male relatives.
- Jones gave a recorded police interview denying sexual contact and denying why his DNA would be present.
- At trial the court gave a pattern jury instruction cautioning that a defendant’s out-of-court statement must be considered "with great care and caution;" Jones expressly stated he had no objection to the charge.
- Post-conviction, Jones moved for a new trial claiming the instruction was erroneous and that trial counsel was ineffective for requesting it; the trial court denied relief and the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction cautioning about out-of-court statements | Instruction was erroneous and prejudicial | Jones waived review by not objecting at trial; he had requested the charge so plain-error review is barred | Waived; no appellate review and plain-error exception inapplicable because Jones requested the charge |
| Ineffective assistance for requesting the cautionary instruction | Counsel was deficient for requesting a charge that misstated use of exculpatory statements | Even if deficient, Jones cannot show Strickland prejudice given the charge context and strong evidence (witnesses + DNA) | Claim fails for lack of prejudice under Strickland; conviction affirmed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing ineffective-assistance two-prong test)
- Pena v. State, 297 Ga. 418 (defendant who requests a charge waives plain-error review of that charge)
- Blankenship v. State, 301 Ga. App. 602 (appellate review barred if no timely, specific objection to jury charge)
- Williamson v. State, 305 Ga. 889 (contextual reading of charge prevents misinterpretation as singling out defendant’s exculpatory statements)
- Pincherli v. State, 295 Ga. App. 408 (cautioning against "great care and caution" charge when defendant’s statements are exculpatory)
- McKenzie v. State, 293 Ga. App. 350 (recommending modification of pattern instruction to refer only to incriminatory statements)
- Dresbach v. State, 308 Ga. 423 (no need to address both prongs of Strickland if one prong is not met)
- Campbell v. State, 292 Ga. 766 (discussing Georgia pattern criminal jury instructions)