Jones v. StateJones v. State
- Reporters:
- , , ,
- Before:
- Melton
MELTON, Justice.
Following a jury trial, Antonio Jones was found guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a felony in connection with the shooting death of Akili Stewart.1 On appeal Jones contends that the evidence presented at trial was insufficient to support his convictions and that thе trial court erred with respect to various evidentiary matters. We affirm.
1. Viewed in the light most favorable to the jury‘s verdict, the evidence reveals that, on March 28, 2012, Jones and Cory Thomas went to a home on Lee Street in DeKalb County, where Jones had been renting a roоm. When Jones and Thomas arrived at the home, Stewart and Terry Roach were already there. Jones and Thomas
Roach ran out of the house just as another friend of his was arriving at the door. This friend saw Stewart‘s dead body on the floor of the house, and Roach said to the friend that Jones and Thomas had killed him. Roach‘s friend immediately left the scene, and Roach left the scene in his own car. Roach сalled 911 to report the murder as Jones and Thomas pursued him in another car. Jones and Thomas called Roach several times after the shooting and told him to stay quiet about it, and they also enlisted Jones’ cousin, an individual with the nickname “Black,” to call and threaten Roach in order to get him to stay quiet about the murder.
The night after the murder, Jones and Thomas attempted to dispose of Stewart‘s body by dumping it in a Walton County utility easement and lighting it on fire, but a witness saw the flames from the highway and called the police. While this witness was on the phone with 911, Jones and Thomas saw him, drove by him as they were leaving the scene in Jones’ car, shot at him, and sped off.
This evidence was sufficient to enable a rational trier of fact to find Jones guilty of all of the crimes of which he was convicted beyond a reasonablе doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. For the first time on appeal, Jones contends that the trial court erred in admitting into evidence the testimony of Francis Spiller, the State‘s expert witness on geo-cell phone analytics, because the State did not establish that the scientific techniques invоlved in geo-analytics were valid and capable of producing reliable results. See
Specifically:
First, there must be an error or defect — some sort of “[d]eviation from a legal rule” — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the trial court proceedings.” Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error ” ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”
(Punctuation and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011), quoting Puckett v. United States, 556 U. S. 129, 135 (II) (129 SCt 1423, 173 LE2d 266) (2009). See also Gates v. State, 298 Ga. 324 (3) (781 SE2d 772) (2016). “[B]eyond showing a clear or obvious error, ‘plain-error analysis ... requires the appellant to make an affirmative showing that the error probably did affect thе outcome below.’ ” (Citation and punctuation omitted.) Gates, supra, 298 Ga. at 327 (3).
Here, assuming without deciding that Jones could show any clear or obvious error in the trial court‘s admission of Spiller‘s testimony, he cannot “affirmative[ly] show[ ] that the [alleged] error probably did affect the outcomе below.” Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d 707) (2013). Spiller‘s testimony was used to indicate how the police were able to determine that, on the day of the murder — but the day before the victim‘s body was disposed of by being burned — Jones’ cell phone was located “about fourteen miles from [where] the [victim‘s] burned bоdy [was found].” Setting aside the fact that Spiller‘s testimony did nothing to actually place Jones at the scene of the murder or the specific location where Stewart‘s body was burned, ample evidence actually placed Jones at the murder scene and the location where he and Thomas attempted to cover up the crime, and further identified Jones as the man who killed Stewart by shooting him five times. The evidence also revealed that Jones made further efforts to cover up the crime by threatening an eyewitnеss to the murder itself. In light of the overwhelming evidence of Jones’ guilt, “it cannot be said that any error in the admission of [Spiller‘s testimony] likely affected the outcome below.” Gates, supra, 298 Ga. at 328 (3).
3. In the absence of an objection at trial, Jones argues that the trial court committed plain еrror by allowing the State to elicit testimony from GBI Investigator Elizabeth Bigham, in which she stated that the information that she obtained from Roach during her investigation was more consistent with other evidence collected than the information that she obtained from Jones. Jones asserts that this testimony from Investigator Bigham constituted improper bolstering of Roach‘s testimony See
In order to succeed on his claim of plain error, Jones must show, among other things, a legal error that is “clear or obvious, rather than subject to reasonable dispute.” Kelly, supra, 290 Ga. at 33 (2) (a). Here, Jones cannot show such a clear or obvious error. More specifically, although
it is improper to ask a testifying [witness] whether another witness is lying. ... [The Eleventh Circuit has held that] it is often necessary ... to focus a witness on the differences and similarities between his testimony and that of another witness. This is permissible provided he is not asked to testify as to the veracity of the other witness.
(Citation and punctuation omitted; emphasis supplied.) United States v. Schmitz, 634 F3d 1247, 1268-1269 (IV) (D) (11th Cir. 2011). See also United States v. McGill, 815 F3d 846, 914 (XIII) (D) (D.C. Cir. 2016) (questioning “designed to compare the defendant‘s factual account with other witnesses’ and allow jurors to draw their own conclusions” is “unobjectionаble“) (citation omitted).4
In the instant case, it is not clear that the testimony in question speaks directly to whether Roach was actually telling the truth. The record reveals that, during his cross-examination of Investigator Bigham, Jones raised the idea that Bigham‘s investigation may have been insufficient, because she was never able to find and interview an individual named “Black” in order to verify Roach‘s story that Black had threatened him after Stewart‘s murder. During the State‘s redirect, the State asked Investigator Bigham whether she was able to corroborate muсh of the information that Roach provided to her,
Jones’ assertions to the contrary notwithstanding, this testimony did not speak directly to Roach‘s truthfulness. Rather, the testimony was elicited in direct response to questions raised about the manner in which Investigator Bigham conducted her investigation, and involved whether aspects of that investigation lined up with information provided by Roach. We find no “clear or obvious” error from the admission of this testimony that would satisfy the rigorous requirements of establishing plain error. See Kelly, supra.
4. Citing Davis v. State, 279 Ga. 786, 788 (5) (621 SE2d 446) (2005), Jones asserts that the trial court erred by admitting into evidence a recоrding of a July 11, 2012 phone call made from the DeKalb County jail in which Jones admitted that he was at the house where Stewart was shot at the time of the murder. In Davis, we held that the State laid a proper foundation for the admission into evidence of a recorded phone сall from a jailed inmate where it established
that the jail recording system accurately records the phone calls; that the calls are stored in a computer databank; that the recorder was working properly; that inmates are aware that their telephone conversations are subject to being recorded; that the recording had not been altered; and that the investigating detective recognized the voices on the recording as belonging to appellant [and others].
Id. However, due to the passаge of Georgia‘s new Evidence Code, the foundational factors from Davis regarding the admission into evidence of an automated recording such as the one at issue in this case are no longer applicable. Instead,
Subject to any other valid objection ... audio recordings produced at a time when the device producing the items was not being operated by an individual person or was not under the personal control or in the presence of an individual operator shall be admissible in evidеnce when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered. ...
Here, the State showed, through the testimony of Lieutenant C. Patterson that the jаil recording system accurately records phone calls and that the system recorded Jones’ phone call at the time that he made it. Following Lieutenant Patterson‘s testimony, the State called Investigator Bigham to the stand, who knew Jones’ voice and who estаblished that the man in the recording who made the phone call sounded like Jones. Because this competent evidence would tend to show reliably that the automated recording was in fact a recording of the phone call that Jones made from jail, we find nо error in the trial court‘s determination that this evidence was admissible. See, e.g., United States v. Spence, 566 Fed. Appx. 240, 243 (2) (4th Cir. 2014) (“The proponent of an audio recording carries the burden of demonstrating that the recording was sufficiently authentic to be admitted into evidence. ... Under
Judgment affirmed. All the Justices concur.