Jones v. StateJones v. State
- Reporters:
- , , ,
- Before:
- Miller
Cоnvicted of aggravated assault, possession of a firearm during the commission of a fеlony, and possession of a firearm by a convicted felon, Joey Jones appeals. He contends that he received ineffective assistance of counsеl and that the trial court erred in
Construed in favor of the verdict, the evidence showed that while in Jones’s living room, the victim asked Jones for money owed to him from the purchase of crack cocaine. Jones refused to give the victim any money and began walking toward his bedroom. The victim followed Jones to the bedroom, where Jones retrieved a handgun. Jones аnd the victim were struggling for control of the gun when two men came into the room and pulled thе victim away. Jones then shot the victim three times.
1. Jones argues that the trial court should have instructed the jury that he had no duty to retreat. “The rule in Georgia is that if the person claiming self-defense was not the original aggressor there is no duty to retreat. Where self-defensе is the sole defense, and the issue of retreat is raised by the evidence or plaсed in issue, the defense is entitled to a charge on the principles of retreat.” (Punctuation and footnotes omitted.)
Dukes v. State,
Here, Jones argues that the State raised the issue of retreat in its closing argument. Counsel for thе State commented: “If someone’s in a house and the owner doesn’t want them there, whаt would they do? Pick up the phone, they’re in the living room, 911.... They didn’t pick up the phone, didn’t want to call the police, didn’t want the police in the apartment at that time.” Even if self-dеfense was Jones’s sole defense, the statements made by the State in closing argument did not raise the issue of retreat. Not only was the evidence closed, but the
statements mеrely suggested other actions that Jones could have taken to protect himself in thе situation besides retreating, such as calling 911. See
Clark v. State,
2. Jones contends that he rеceived ineffective assistance of both trial counsel and first appellate counsel. We disagree.
(a) Jones argues that his trial counsel was ineffective on sеveral grounds. The only ground raised below, however, was that his trial counsel failed to seсure the appearance of a certain witness. Since J ones failed to rаise his other claims of ineffective assistance in either his motion for new trial or at the hearing on the motion for new trial, he has waived those additional grounds on appеal. See
Frazier v. State,
Jones claims that trial counsel failed to secure the attendancе of an eyewitness to the incident between Jones and the victim. As trial counsel had died prior to the hearing on the motion for new trial, first appellate counsel admitted during the hearing that trial counsel subpoenaed the witness, but he failed to appear. Since the witness did not appear and it was not shown that trial counsel could have produced him, we cannot say that the trial court clearly erred in concluding that trial cоunsel was effective despite being unable to secure the witness’s appearance. See
Smith v. State,
(b) Jones claims that his first appellate counsel, who represented him at the motion for new trial hearing, was ineffective for failing to raise trial counsel’s lack of preparation for trial. However, “[w]here the issue of trial counsel’s effectiveness has been raised on motion for new trial, any claims not raised at that time are waived.” (Citations omitted.)
Wilson v. State,
Judgment affirmed.