Petition for Writ of Certiorari — Roderick Jones, Petitioner v. Tommy Bowen, Warden

Supreme Court briefOct 8, 2024

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No. ______

In the

Supreme Court of the United States

RODERICK JONES,

Petitioner,

v.

TOMMY BOWEN, WARDEN,

Respondent.

-----------------------------------------ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF GEORGIA

-----------------------------------------APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

------------------------------------------

Leigh Stevens Schrope

Counsel of Record

LAW FIRM OF SHEIN,

BRANDENBURG & SCHROPE

2392 North Decatur Road

Decatur, GA 30033

(404) 633-3797

leigh@msheinlaw.com

Counsel for Petitioner

GibsonMoore Appellate Services, LLC

206 East Cary Street ♦ Richmond, VA 23219

804-249-7770 ♦ www.gibsonmoore.net

ia

TABLE OF CONTENTS

Appendix

Page:

Order Denying Application for

Certificate of Probable Cause to

Appeal the Denial of Habeas Corpus

Supreme Court of Georgia

filed July 16, 2024 ............................................ 1a

Final Order

Superior Court of

Dodge County State of Georgia

filed November 3, 2023 ................................... 2a

U.S. Const. amend. V .......................................... 39a

U.S. Const. amend. VI......................................... 40a

U.S. Const. amend. XIV, § 1 ............................... 41a

Excerpts of Transcript of

Criminal Jury Trial Before

The Honorable W. Travis Sakrison

Superior Court of Coweta County

State of Georgia

on June 22-24, 2015........................................ 42a

Excerpts of Transcript of an

Evidentiary Hearing Before

The Honorable Howard C. Kaufold, Jr.

Superior Court of Coweta County

State of Georgia

on June 27, 2022 ............................................. 88a

Application for Certificate of Probable

Cause to Appeal Habeas Corpus

Supreme Court State of Georgia

filed November 29, 2023 ............................. 110a

1a

[FILED JULY 16, 2024]

SUPREME COURT OF GEORGIA

Case No. S24H0400

July 16, 2024

The Honorable Supreme Court met pursuant to

adjournment. The following order was passed:

RODERICK JONES v.

TOMMY BOWEN, WARDEN.

Upon consideration of the application for

certificate of probable cause to appeal the denial of

habeas corpus, it is ordered that it be hereby denied.

All the Justices concur.

Trial Court Case No. 21HC0497

SUPREME COURT OF THE

STATE OF GEORGIA

Clerk's Office, Atlanta

I certify that the above is a true extract

from the minutes of the Supreme Court of

Georgia.

Witness my signature and the seal of said

court hereto affixed the day and year last

above written.

, Clerk

2a

[FILED NOVEMBER 3, 2023]

IN THE SUPERIOR COURT OF

DODGE COUNTY STATE OF GEORGIA

RODERICK JONES,

GDC # 0001092001,

Petitioner,

v.

TOMMY BOWEN, Warden,

Respondent.

Habeas Action File No. 21 HC-0497

FINAL ORDER

Roderick Jones ("Petitioner") filed an Application

for Writ of Habeas Corpus ("Writ") on October 13,

2021 challenging the validity of his June 24, 2015

Coweta County conviction following a jury trial. The

Court, as a preliminary finding, determines that

Petitioner's Writ was timely filed within the

provisions of O.C.G.A. § 9-14-42(c) and was filed on

the appropriate, required Administrative Office of the

Courts ("A.O.C.") forms and the allegations therein

have been verified. At the time of filing, Petitioner

was a state prisoner incarcerated in Dodge State

Prison located in Dodge County, Georgia. Venue and

jurisdiction are proper in the Superior Court of Dodge

County under O.C.G.A. § 9-14-43. Legal service was

perfected on the Warden of Dodge State Prison on

December 20, 2021. Based on the foregoing findings,

the Court has jurisdiction over the parties and subject

matter jurisdiction to adjudicate the allegations set

out in Petitioner's Writ. An evidentiary hearing

("Hearing") was held on June 27, 2022 in Dodge

County, Georgia. Having considered the evidence and

argument presented by both parties, and in

3a

accordance with applicable law, the Court makes the

following findings:

PROCEDURAL HISTORY

Petitioner was indicted for kidnapping (Count 1);

terroristic threats (Count 2); battery, family violence

(Count 3); assault on an unborn child (Count 4); and

cruelty to children in the first degree (Count 5).

(Habeas Transcript 62-63) [hereinafter HT].

Petitioner pled not guilty and was tried by a jury on

June 22-24, 2015. The jury returned a verdict of guilty

on all Counts. (HT 505-06). Petitioner was sentenced

as follows: Count 1, twenty (20) years to serve; Count

2, five (5) years to serve consecutive to the sentence in

Count 1; Count 3, twelve (12) months to serve

consecutive to the sentence in Count 2; Count 4,

twelve (12) months to serve consecutive to the

sentence in Count 3; Count 5, twelve (12) months to

serve consecutive to the sentence in Count 4. (HT 130,

524-25). Petitioner was sentenced as a recidivist

pursuant to O.C.G.A. 17-10-7(a) and (c). (HT 130,

525). Petitioner's aggregate sentence was twentyeight (28) years to serve.

Petitioner's convictions and sentences were upheld

on appeal by the Court of Appeals of Georgia in an

unreported opinion on October 27, 2017. Jones v.

State, No. A17A0696 (Ga. Ct. App. 2017); (HT 678-86).

The Court of Appeals of Georgia described the

relevant facts of the case as follows:

[T]he record shows that on November 27,

2013, Jones and his wife entered into a verbal

argument during which the wife called 911.

The wife then took the couple's two-year-old

son and drove to her mother's house. Jones

followed his wife to her mother's house, entered

4a

the house without permission, and resumed

the argument. When the wife refused to drive

Jones to LaGrange, he hit her in the face,

pushed her to the ground, dragged her through

the house by the hair, and choked her. The

victim was five months pregnant at the time of

the incident. Jones admitted at trial that he hit

the victim, causing her to fall and suffer

bruising.

After striking the victim, Jones ordered her

to get their son and put him in the couple's

truck. After placing their son into the back

seat, the victim felt lightheaded and sat down

on the ground. Jones then picked up the victim

and placed her in the passenger seat of the

truck. Although the victim did not want to

leave with Jones, she could not prevent him

from driving away from the mother's house. As

he drove, Jones threatened to kill the victim

and to "bury her body where nobody [could]

find her." The victim managed to escape when

the truck was stopped at a red light.

Bystanders stopped to assist the victim, who

was crying and appeared to be in pain, and

called 911. Medical records showed that the

victim suffered dried blood in her nose,

swelling on the left side of her lips, and

bruising on the upper and lower lip.

Jones, No. A17A0696, slip op. at 1-2 (Ga. Ct. App. Oct.

27, 2017); (HT 678-79).

Petitioner was represented by Jackie Patterson at

trial and on appeal ("trial/appellate counsel").

Petitioner, through new counsel, timely filed his Writ

on October 13, 2021. Petitioner amended the Writ on

5a

June 20, 2022. The evidentiary Hearing was held on

June 27, 2022.

ISSUES

Petitioner presented the following grounds for

relief, as amended:

Ground One: Petitioner was denied his

constitutional right to maintain his innocence

and due process. (Amended Writ 9).

Ground Two: Ineffective assistance of counsel

for

trial/appellate

counsel's

conceding

Petitioner's guilt. (Amended Writ 12).

Ground Three: Ineffective assistance of

counsel for trial/appellate counsel's failure to

request a charge on justification. (Amended

Writ 13).

Ground Four: Trial court committed plain

error in instructing the jury. (Amended Writ

15).

Ground Five: Ineffective assistance of counsel

for trial/appellate counsel's failure to object to

the trial court's instructions or to raise plain

error on appeal. (Amended Writ 21).

Ground Six: Ineffective assistance of counsel

for trial/appellate counsel's failure to object to

improper closing arguments at trial. (Amended

Writ 22).

Ground Seven: Trial court erred in failing to

stop the State from arguing facts not in

evidence;

trial/appellate

counsel

was

ineffective in failing to object. (Amended Writ

23).

6a

Ground Eight: Ineffective assistance of

counsel for trial/appellate counsel's failure to

object to irrelevant expert testimony.

(Amended Writ 24).

Ground Nine: Cumulative effect of errors

violated Petitioner's due process rights and the

right to effective assistance of counsel.

(Amended Writ 26).

At the Hearing, trial/appellate counsel testified

and was cross-examined and documentary evidence

was admitted. The evidence was closed at the

conclusion of the Hearing. The transcript was filed on

May 25, 2023. Petitioner timely filed a post-hearing

brief on June 23, 2023. Respondent timely filed a

response brief on July 17, 2023. Petitioner filed a

reply brief on July 24, 2023.

RULING

In habeas corpus, a petitioner has the burden to

prove by a preponderance of the evidence that his

constitutional rights were violated and to complete

the habeas record with relevant records from trial and

appellate proceedings. Gaither v. Gibby, 267 Ga. 96,

97 (1996); Holt v. Ebinger, 303 Ga. 804, 807(2018).

"Under O.C.G.A. § 9-14-48(d), a habeas petitioner is

procedurally barred from raising a claim if he failed

to comply with Georgia procedural rules at trial and

on appeal." Humphrey v. Wilson, 282 Ga. 520, 524

(2007). In Turpin v. Mobley, 269 Ga. 635, 637 (1998),

the Supreme Court of Georgia explained:

To show cause, [a petitioner] must demonstrate

that some objective factor external to the

defense impeded counsel's efforts to raise the

claim that has been procedurally defaulted. To

7a

show

prejudice,

[a

petitioner]

must

demonstrate actual prejudice that worked to

his actual and substantial disadvantage,

infecting [the] entire trial with error of

constitutional dimensions. The only exception

to the cause and prejudice test is the granting

of habeas corpus relief to avoid a miscarriage of

justice, which is an extremely high standard.

Id. (cleaned up).

"Generally, a claim of ineffectiveness must be

asserted at the earliest practicable moment and,

when it is not, the claim is waived and thus

procedurally barred." Dawson v. State, 302 Ga. App.

842, 843 (2010), overruled on other grounds by

Schoicket v. State, 312 Ga. 825 (2021). Essentially,

new counsel must raise the ineffectiveness of previous

counsel at the first possible stage of post-conviction

review. White v. Kelso, 261 Ga. 32, 32 (1991).

Petitioner, represented by new counsel in habeas, is

now limited to only those claims of ineffective

assistance with regard to immediately preceding

counsel-in this case, trial/appellate counsel. Accord

State v. Butler, 301 Ga. 814, 817-18 (2017).

Additionally, because Petitioner's trial attorney also

served as his appellate attorney, trial/appellate

counsel could not reasonably be expected to assert or

argue his own ineffectiveness on appeal. E.g., White,

261 Ga. at 32. As such, Petitioner's claims of

ineffective assistance of trial/appellate counsel in

Grounds Two, Three, Five, Six, and Eight are not

procedurally barred or defaulted, and Petitioner has

appropriately raised these claims for the first time in

habeas. Petitioner's ineffective assistance claims will

be addressed based on the legal standard, below.

8a

Ineffective assistance of counsel is a recognized

claim for the violation of the constitutional right to

assistance of counsel. Strickland v. Washington, 466

U.S. 668 (1984). To succeed on an ineffective

assistance of counsel claim, Petitioner must make

affirmative showings of both deficient performance

and prejudice under the two-pronged test established

in Strickland. Id. at 687. "Failure to make the

required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim."

Cushenberry v. State, 300 Ga. 190, 197 (2016) (quoting

Strickland, 466 U.S. at 700). Where a petitioner fails

to prove either prong, the court is not required to

examine the other prong. Keener v. State, 301 Ga. 848,

850 (2017).

The deficient performance prong requires a

showing that counsel performed his duties in an

objectively unreasonable way, considering the

circumstances and professional norms. Humphrey v.

Walker, 294 Ga. 855, 859 (2014). A petitioner has the

burden of overcoming a strong presumption of

reasonable professional assistance by counsel.

Morgan v. State, 275 Ga. 222, 227 (2002).

An attorney is not ineffective for failure to raise a

meritless issue on appeal. Gramiak v. Beasley, 304

Ga. 512, 513 (2018); see also Ellis v. State, 292 Ga.

276, 286 (4) (2013) (trial counsel's failure to make a

meritless objection at trial cannot amount to

ineffective assistance). As the Supreme Court of

Georgia has recognized:

It is the attorney's decision as to what issues

should be raised on appeal, and that decision,

like other strategic decisions of the attorney, is

presumptively correct absent a showing to the

9a

contrary by the defendant. The process of

winnowing out weaker arguments on appeal

and focusing on those more likely to prevail, far

from being evidence of incompetence, is the

hallmark of effective appellate advocacy.

Accordingly, it has been recognized that in

attempting to demonstrate that appellate

counsel's failure to raise a ... claim constitutes

deficient performance, it is not sufficient for the

habeas petitioner to show merely that counsel

omitted a nonfrivolous argument, for counsel

does not have a duty to advance every

nonfrivolous argument that could be made.

Rather, in determining under the first

Strickland prong whether an appellate

counsel's performance was deficient for failing

to raise a claim, the question is not whether an

appellate attorney's decision not to raise the

issue was correct or wise, but rather whether

[the] decision was an unreasonable one which

only an incompetent attorney would adopt.

Hooks v. Walley, 299 Ga. 589, 591 (2016) (quoting

Arrington v. Collins, 290 Ga. 603, 604 (2012)).

Accordingly, this Court presumes appellate counsel's

performance was not deficient and the decision as to

which issues to raise on appeal was reasonable, 1 and

1 At the Hearing, trial/appellate counsel testified as to the

steps he took in Petitioner's case when determining which issues

to raise on appeal:

Q: When you were in your process in preparing for the

appeal, you reviewed the transcript?

A: Yes.

Q: You reviewed the law?

A: Yes.

10a

Petitioner bears the burden of overcoming this

presumption. Morgan v. State, 275 Ga. 222, 227

(2002).

The prejudice prong requires a showing of a

reasonable probability that, but for counsel's deficient

performance, the result of the proceeding would have

been different. Taylor v. Metoyer, 299 Ga. 345, 348

(2016). "A reasonable probability is a probability

sufficient to undermine confidence in the outcome."

Id. "[M]ere speculation ... is insufficient to establish

Strickland prejudice," and Petitioner "must

affirmatively prove prejudice, because attorney errors

come in an infinite variety and are as likely to be

utterly harmless in a particular case as they are to be

prejudicial." Pierce v. State, 286 Ga. 194, 198 (2009)

(citing Strickland, 466 U.S. at 693).

Ground One

In Ground One, Petitioner claims he was denied

his constitutional right to maintain his innocence and

due process. (Amended Writ 9). Petitioner claims that

during closing argument, trial/appellate counsel

unilaterally conceded his guilt, thereby violating his

constitutional right to maintain his innocence.

Specifically, Petitioner argues his trial testimony was

in support of a defense of justification because he only

Q: And you found the issues that you thought had the

most likelihood of success on direct appeal?

A: That's correct.

Q: You didn't intentionally leave any issues out?

A: No.

Q: It wouldn't be your practice to not raise an issue of

merit?

A: On appeal, I would raise every issue that I see as

valid.

(HT 17-18).

11a

hit the victim when she came running at him a second

time. (Amended Writ 11). Therefore, Petitioner

concludes, he expressed a "clear wish to maintain his

innocence on all charges[,]" and despite that wish,

trial/appellate counsel conceded Petitioner's guilt on

battery/family-violence, assault on an unborn child,

cruelty to children in the third degree, and perhaps

terroristic threats. (Amended Writ 11-12).

In McCoy v. Louisiana, the United States Supreme

Court explained "[w]hen a client expressly asserts

that the objective of 'his defence' is to maintain

innocence of the charged criminal acts, his lawyer

must abide by that objective and may not override it

by conceding guilt." 138 S. Ct. 1500, 1509(2018)

(quoting U.S. Const. amend VI) (emphasis in

original).

The

Court

explained

the

"trial

management" role of counsel is to "provide[] his or her

assistance by making decisions such as 'what

arguments to pursue, what evidentiary objections to

raise, and what agreements to conclude regarding the

admission of evidence."' Id. at 1508 (quoting Gonzalez

v. United States, 553 U.S. 242, 248 (2008). The Court

further explained the Sixth Amendment allows a

criminal defendant "[a]utonomy to decide that the

objective of the defense is to assert innocence" and

such decisions "are not strategic choices about how

best to achieve a client's objectives; they are choices

about what the client's objectives in fact are." McCoy,

138 S. Ct. at 1508.

Thus, where counsel concedes a client's guilt in

direct contradiction to his express wishes, such an

error is a structural error which does not require a

showing of prejudice because "[s]uch an admission

blocks the defendant's right to make the fundamental

choices about his own defense. And the effects of the

12a

admission would be immeasurable, because a jury

would almost certainly be swayed by a lawyer's

concession of his client's guilt." Id. at 1511. Therefore,

as to Ground One, the Court must determine whether

such a structural error occurred resulting in denial of

Petitioner's constitutional right to maintain his

innocence. For the reasons below, the Court rules no

such error occurred in Petitioner's case.

Petitioner did not testify at the Hearing, so the

Court is constrained to the trial court record in

determining what his chosen defense strategy was.

Having reviewed Petitioner's trial testimony, it is not

accurate to say his chosen theory of defense was

justification as he claims in his Amended Writ. See

(Amended Writ 11). Petitioner's testimony was mixed

as to his guilt, and he acknowledged the argument

with the victim "kind of got out of proportion," and

that he was partially to blame for the altercation

becoming physical. (HT 376). For example, when

Petitioner was asked how his wife's nose started

bleeding, he acknowledged:

When I grabbed the keys, I was trying to turn

around .... I provoked that situation because

when I grabbed the keys ... and she grabbed

and snatched it back. So they fell and hit the

ground and ... she came at me hitting and ... the

first time ... I didn't punch her or hit her. She

was still trying to fight and that's when I kind

of stiffened and that's when she fell out.

(HT 386).

On cross examination, Petitioner acknowledged a

second time that he provoked the physical altercation

when he tried to get the keys and leave. (HT 387).

Petitioner's description of the physical altercation is

13a

more akin to a claim that he hit the victim by accident

instead of trying to defend himself (i.e. justification).

Petitioner explained:

[A]fter I got the keys I was really trying to be

slick and leave out of the house, and she wasn't

going for it, and when a woman's upset and she

mad, it ain't nothing you can do to stop her.

I'm trying to run away from the situation, but

when I pushed my hand back, I end up hitting

her. I felt if I would have grabbed her, that

would have intensified the situation. So I never

put my hands on her physically and try to

control her.

(HT 392). Petitioner never expressed that he was in

fear of receiving any injury, or that fear of such injury

was the reason for hitting the victim. Accordingly,

Petitioner's trial testimony does not support a defense

theory of justification. See O.C.G.A. § 16-3-21(a).

However, on several occasions, Petitioner

adamantly denied kidnapping his wife and

threatening to kill her. (HT 382-83, 390). Petitioner

acknowledged at one point "[t]hat's the only reason I

wanted to come to trial because I said, how could I

plead out to something I never said or done .... I never

said I was going to kill her or I never kidnapped her

or my child." (HT 380-81). Therefore, there is some

evidence that Petitioner was willing to concede his

guilt as to the family violence battery charge and the

related charges of assault on an unborn child and

cruelty to children in the third degree, but Petitioner

clearly maintained his innocence as to terroristic

threats and kidnapping.

14a

The record reflects trial/appellate counsel

conceded guilt on battery family violence, assault on

an unborn child, and cruelty to children in the third

degree. 2 Because Petitioner's testimony reflected

some willingness to accept responsibility for battery

2 During closing argument, trial/appellate counsel stated:

My client told you that he accidentally hit [his wife]

as he was trying to take the keys and leave. Now,

realistically, I believe that no man should ever hit a

woman, period. As a result of that, whether it was an

accident or whether it was intentional, I could have

asked the judge to give you a charge because the law says

if something happens by accident or if something

happens because a person is justified, then he's not

guilty of that crime.

I could have asked the judge that and you-all would

have had to consider whether busting her nose ... was

justified .... I'm telling you, ladies and gentlemen, it

doesn't matter to me whether he hit her nose by accident,

this man is guilty of family violence battery. My client

has no idea I was going to tell you that and you should

find him guilty.

No man should ever hit a woman for any reason. My

client - I'm going to be real and I got to say family

violence battery when you go back and deliberate, put in

that blank line I find Mr. Jones guilty of family violence

battery.

…

And I hate to tell you this, he's guilty of committing

assault upon an unborn child, so when you go back there,

write in that form, guilty of assaulting an unborn child

.... I'm conceding to you that this man is guilty.

…

It's unacceptable to have a child witness or see any

form of violence and Georgia law says that if you are the

primary aggressor and if the child witnesses an act of

violence, then, you're guilty of cruelty to a child in the

third degree. Ladies and gentlemen, once again I've got

to keep it real. He's guilty.

(HT 429-31).

15a

and the related charges, it cannot be said that

Petitioner clearly expressed a desire to maintain his

innocence. See McCoy, 138 S. Ct. at 1509.

Consequently, there was no structural error as to

trial/appellate counsel's concessions of guilt as to

those charges because trial/appellate counsel's

concessions of guilt were not in direct contradiction to

Petitioner's fundamental choice about his own

defense. See id. at 1511.

Furthermore, trial/appellate counsel never

conceded Petitioner's guilt as to terroristic threats

and kidnapping. 3 Therefore, trial/appellate counsel's

actions were consistent with Petitioner's fundamental

decision to maintain his innocence as to those

charges. Consequently, there was no structural error

with respect to Petitioner's autonomy rights relating

to his defense. See id.

3 Trial/appellate counsel stated:

[B]ut on the terroristic threats, you actually heard

my client say, I've never threatened anybody. You heard,

well, yes, he used the words, I'm going to bury your body,

get some drugs and you will never be found.

I'm going to tell you, ladies and gentlemen, I don't

know if he's guilty of that charge ... I've got some doubt

in my mind, so I can't tell you.

…

Did this man actually kidnap his wife. The answer is

no.

…

He hit her, all of that. We're not disputing that, but

my client told you at no time did he ever force her into

that vehicle. The State wants you to believe it was forced.

Mr. Jones told you it was not forced.

…

[Y]ou should find him not guilty of terroristic threats

and not guilty of kidnapping.

(HT 432-34).

16a

Accordingly, Ground One provides no basis for

relief.

Ground Two

In Ground Two, Petitioner claims trial/appellate

counsel was ineffective for conceding Petitioner's guilt

at trial. (Amended Writ 12).

The only exception to the rule in McCoy is "[i]f a

client declines to participate in his defense, then an

attorney may permissibly guide the defense pursuant

to the strategy [he] believes to be in the defendant's

best interest." See id. at 1509. For example, if counsel

informs a defendant that he thinks the best strategy

is to admit guilt in hopes of leniency, and if the

defendant is unresponsive, "counsel's strategic choice

is not impeded by any blanket rule demanding the

defendant's explicit consent." Florida v. Nixon, 125

U.S. 175, 177 (2004). In such cases, there is no

presumption of prejudice, and the reasonableness of

counsel's performance is evaluated under the

Strickland standard. Nixon, 125 U.S. at 177 ("[I]f

counsel's strategy, given the evidence bearing on the

defendant's guilt, satisfies the Strickland standard,

that is the end of the matter; no tenable claim of

ineffective assistance would remain.").

As discussed in Ground One, trial/appellate

counsel conceded Petitioner's guilt as to family

violence battery, assault on an unborn child, and

cruelty to children in the third degree, but did not

concede guilt as to terroristic threats and kidnapping.

To prevail on a claim of ineffective assistance of

counsel based on trial/appellate counsel's concessions

of guilt, Petitioner bears the burden of proving

trial/appellate counsel's actions fell below the

Strickland standard. Nixon, 543 U.S. at 177. Thus,

17a

the Court must answer: "Did counsel's representation

fall below an objective standard of reasonableness?"

Id For the reasons stated below, the Court rules trial

counsel's performance was reasonable.

The State presented ample evidence of Petitioner's

guilt, including but not limited to: a recorded jail call

where Petitioner repeatedly tried to convince the

victim not to testify against him at trial (HT 253-57);

testimony from a domestic violence expert

establishing the circumstances of Petitioner's

relationship with the victim was consistent with a

domestic violence relationship (HT 277-92); testimony

from at least four witnesses who encountered the

victim in a nearby parking lot immediately after the

victim ran from the truck while parked at a stop light

- testimony which reflected the victim was hysterical,

in pain, and bleeding from her nose and mouth and

had told the witnesses Petitioner had threatened to

kill her (HT 294-320); recorded 911 calls from two of

the witnesses at the scene in the parking lot where

the victim had run for help (HT 298-99; 308-09);

testimony from the victim's mother as to prior

difficulties between Petitioner and the victim as well

as the victim's mother's description of the events that

transpired on the day of the altercation and

photographs she took of the scene in her home where

the physical altercation occurred (HT 320-34); and

testimony from the victim's grandmother who sat

with the victim at the hospital after the incident and

described how the victim had a bald spot in her head

from where she had been dragged by her hair and that

the victim had told her Petitioner threatened to kill

her (HT 335-40). Furthermore, Petitioner admitted in

his own testimony that he provoked the physical

altercation. See Ground One, supra.

18a

At the Hearing, trial/appellate counsel testified

his strategy was to try to get Petitioner found not

guilty of the most serious charge (kidnapping). (HT 9).

Given the evidence against Petitioner, it was

reasonable for trial/appellate counsel to concede guilt

on the lesser charges to gain credibility on the most

serious offense of kidnapping. See St. Germain v.

State, 358 Ga. App. 163, 166 (2021) (demonstrating

that it can be reasonable trial strategy for an attorney

to concede guilt on lesser offenses to avoid conviction

on more serious crimes); see also Nixon, 125 U.S. at

177 ("[I]f counsel's strategy, given the evidence

bearing on the defendant's guilt, satisfies the

Strickland standard, that is the end of the matter; no

tenable claim of ineffective assistance would

remain."). As such, Petitioner failed to carry his

burden to show trial/appellate counsel's performance

was deficient, and Petitioner's ineffective assistance

claim fails. Cushenberry, 300 Ga. at 197 ("Failure to

make the required showing of either deficient

performance or sufficient prejudice defeats the

ineffectiveness claim.").

Even if trial/appellate counsel's performance was

deficient, Petitioner failed to demonstrate prejudice.

To the extent Petitioner takes issue with

trial/appellate counsel's failure to consult with him

regarding the concessions of guilt in closing argument

(Amended Writ 11-12), trial/appellate counsel's

"failure to fulfill the duty to consult regarding trial

strategy does not in and of itself constitute ineffective

assistance." Harris v. State, 358 Ga. App. 802, 810

(2021) (quoting Hendrix v. State, 298 Ga. 60, 64 (2) (a)

(2015)). "In the context of a failure-to-consult claim ...

[Petitioner] must establish that his counsel's failure

to consult was prejudicial to his defense, i.e., that

19a

there is a reasonable probability that, but for

counsel's failure to consult, the result of his trial

would have been different." Harris, 358 Ga. App. at

810 (quoting Blackwell v. State, 302 Ga. 820, 826 (3)

(2018)).

In light of the evidence presented at trial, there is

no reasonable probability that the jury's verdict

would have been different if trial/appellate counsel

had consulted with Petitioner and decided not to

concede guilt on the lesser offenses of family violence

battery, assault on an unborn child, and cruelty to

children in the third degree. See Jones v. State, No.

A17A0696 (Ga. Ct. App. Oct. 27, 2017) (holding

Petitioner's convictions were supported by sufficient

evidence). Consequently, Petitioner failed to carry his

burden to demonstrate prejudice, and his ineffective

assistance claim fails. Cushenberry, 300 Ga. at 197

("Failure to make the required showing of either

deficient performance or sufficient prejudice defeats

the ineffectiveness claim.").

Accordingly, Ground Two provides no basis for

relief.

Ground Three

In Ground Three, Petitioner claims trial/appellate

counsel was ineffective for his failure to request a

charge on justification. (Amended Writ 13).

Trial/appellate counsel's testimony at the Hearing

was initially that he had overlooked the justification

jury charge, and it "probably slipped [his] mind." (HT

9). When his recollection was refreshed with the trial

transcript, he acknowledged that he did, in fact, waive

the justification defense, and he could think of no

strategic reason for doing so. (HT 9-10). However, the

20a

trial transcript clearly shows trial/appellate counsel

considered whether to request a jury charge on

justification, and he determined it was not warranted

based on the facts of the case and the evidence

presented. Trial/appellate counsel stated during the

charge conference:

Your Honor, I've had a chance to consider

all that [(referencing a justification charge)]

and my argument to the jury is where it won't

be necessary for the judge to give those type of

charges in terms of justification or any other

defenses.

Usually, I would, Judge, but under the

unique facts of this case, I - and my strategy I

would prefer that not be given.

(HT 406).

As discussed in Ground One, supra, Petitioner's

chosen theory of defense was not congruent with

justification.

Despite

trial/appellate

counsel's

testimony at the Hearing that there was "no

legitimate or strategical reason" (HT 10) to have

waived the justification instruction, the record clearly

reflects otherwise. Trial/appellate counsel's entire

closing argument was calculated to admit guilt to

lesser offenses and gain credibility on his requests

that the jury find Petitioner not guilty on the

terroristic threat charge and the most serious charge

of kidnapping. 4

If trial/appellate counsel had requested a

justification instruction, it is not likely the jury would

have found Petitioner was justified in his actions

4 See n.2 and n.3, supra (detailing the relevant portions of

trial/appellate counsel's closing arguments).

21a

since Petitioner's trial testimony was devoid of any

credible references that he hit the victim to defend

himself and considering Petitioner admitted he

provoked her. See O.C.G.A. §§ 16-3-21(a), (b)(l). Thus,

trial/appellate counsel chose the strategy he felt

would be most likely to obtain a more favorable

verdict for Petitioner, and as discussed in Ground

Two, supra, trial/appellate counsel's strategy of

admitting guilt was reasonable given the weight of

the evidence against Petitioner.

Trial/appellate counsel may now second-guess his

decision not to request a justification instruction, 5 but

that has no bearing on whether his strategy was a

reasonable one at trial. Simpson v. State, 298 Ga. 314,

318 (4) (2016) ("[H]indsight has no place in an

assessment of the performance of trial counsel, and a

lawyer second-guessing his own performance with the

benefit of hindsight has no significance for an

ineffective assistance of counsel claim.") (citations

and punctuation omitted). Consequently, Petitioner

failed to carry his burden to show trial/appellate

counsel's performance was deficient, and Petitioner's

ineffective assistance claim fails. Cushenberry, 300

Ga. at 197 ("Failure to make the required showing of

5 Trial/appellate counsel testified:

Q: When you say you don't recall having a strategical

reason to not ask for the justification defense, is that as

you sit here today?

A: Well, in hindsight, I should have asked, but at the

time, clearly, I must have been having a bad trial day

with all the errors that she [habeas counsel] found and I

happen to agree with her. I don't see any reason why I

did not raise those issues.

(HT 18).

22a

either deficient performance or sufficient prejudice

defeats the ineffectiveness claim.").

Even if trial/appellate counsel's performance was

deficient, Petitioner failed to demonstrate prejudice

because counsel's failure to request a justification

instruction likely did not influence the jury's verdict

considering the weight of the evidence against

Petitioner as to those counts. See Jones v. State, No.

A17A0696 (Ga. Ct. App. Oct. 27, 2017) (holding

Petitioner's convictions were supported by sufficient

evidence). Consequently, Petitioner's ineffective

assistance claim fails. Cushenberry, 300 Ga. at 197

("Failure to make the required showing of either

deficient performance or sufficient prejudice defeats

the ineffectiveness claim.").

Accordingly, Ground Three provides no basis for

relief.

Ground Four

In Ground Four, Petitioner claims the trial court

committed plain error in instructing the jury.

(Amended Writ 15). Petitioner cited several alleged

"critical errors" in the jury instructions:

For example, the court (a) used the term

"terroristic threats" to define the term

terroristic threats; (b) expanded the threat for

terroristic threats; (c) explained the harm part

of a battery without explaining that it was

talking about battery; (d) misstated the

definition of battery family violence; and (e)

read the cruelty to children in the third degree

charge to the jury when it said it was defining

battery.

23a

(Amended Writ 15). Petitioner also stated in his

Amended Writ "[a]s no objection was lodged to these

charges, they should be reviewed for plain error."

(Amended Writ 18). 6 Under O.C.G.A. § I 7-8-58(b),

failure to object to a jury charge before the jury retires

for deliberation "shall preclude appellate review ...

unless such portion of the jury charge constitutes

plain error which affects the substantial rights of the

parties." E.g., Grullon v. State, 313 Ga. 40, 45 (2021).

This claim is procedurally defaulted in habeas

corpus because it was not raised on appeal and

Petitioner failed to allege any facts in Ground Four to

show cause for noncompliance with the requirement

to raise the issue on appeal. O.C.G.A. § 9-14-48(d);

Black v. Hardin, 255 Ga. 239, 240 (1985) ("[F]ailure

to enumerate as error on appeal any alleged error or

deficiency stands on like footing with a failure to

make timely objection in the trial court-that is, the

same shall be waived. Being waived, there then exists

a procedural bar to its consideration in habeas corpus

proceedings, under the same circumstances as

pertain to like waivers in the trial court.").

Even if the claim is not procedurally defaulted,

Petitioner failed to show he suffered any prejudice as

a result of the jury charges. "The only requirement

regarding jury charges is that the charges, as given,

were correct statements of the law and, as a whole,

would not mislead a jury of ordinary intelligence."

Corbin v. State, 305 Ga. App. 768, 771 (2010) (cleaned

6 The Code section cited by Petitioner, O.C.G.A. § 17-8-58(b),

explains "plain error may be considered on appeal even if it was

not brought to the court's attention[.]" (emphasis added). Habeas

corpus is not an appellate proceeding. See Brown v. Ricketts, 233

Ga. 809, 811 ( 1975) ("The writ of habeas corpus is not to be used

as a means of obtaining a second appeal.").

24a

up). To establish plain error, Petitioner must show

"the instructional error was not affirmatively waived,

was obvious beyond reasonable dispute, likely

affected the outcome of the proceedings, and seriously

affected the fairness, integrity, or public reputation of

judicial proceedings." Hamilton v. State, No.

S23A0670, slip op. 10 (Ga. Sep. 19, 2023) (quoting

Smith v. State, 307 Ga. 680, 687-88 (3) (2020)). "If

[Petitioner] fails to establish any one of these

elements, his plain error claim fails." See Hamilton,

No. S23A0670, slip op. at 10 (Ga. Sep. 19, 2023)

(cleaned up).

Petitioner's plain error claim fails because it is not

likely the jury was confused or misled by the

instructions, as a whole, and given the weight of the

evidence against Petitioner as discussed in Ground

Two, supra, it is not likely the jury would have

reached a different outcome. See Hamilton, No.

S23A0670, slip op. at 10 (Ga. Sep. 19, 2023); Corbin,

305 Ga. App. at 771; Jones, No. A17A0696 (Ga. Ct.

App. Oct. 27, 2017) (holding Petitioner's convictions

were supported by sufficient evidence).

Accordingly, Ground Four provides no basis for

relief.

Ground Five

In Ground Five, Petitioner claims trial/appellate

counsel was ineffective for his failure to object to the

trial court's instructions or to raise plain error on

appeal. (Amended Writ 21). Unlike in Ground Four,

Petitioner, in Ground Five, has alleged ineffective

assistance of trial/appellate counsel as the reason for

his failure to raise plain error on appeal. To determine

whether counsel was ineffective, the Court must first

determine whether there was any plain error. If not,

25a

the issue would have been meritless on appeal, and

trial/appellate counsel would not have been

ineffective for his failure to raise the issue on appeal.

See Beasley, 304 Ga. at 513.

As discussed in Ground Four, Petitioner pointed

out several instances of alleged "critical errors" in the

trial court's instructions to the jury. Petitioner claims

trial/appellate counsel should have noticed these

errors and his failure to recognize and raise these

issues on appeal constituted deficient performance.

(Amended Writ 21). Petitioner claims counsel's

allegedly deficient performance "reasonably affected

the outcome of the case as the jury was misinstructed

as to the actual law, the guilt of the Petitioner was

emphasized, and the jury was very likely confused."

(Amended Writ 21).

As discussed in Ground Four, supra, Petitioner's

plain error claim with respect to the jury instructions

fails because he did not show the jury was misled by

the instructions, and he did not show that the

outcome of the trial would have been different but for

the alleged errors. Consequently, trial/appellate

counsel was not ineffective for his failure to argue

plain error at trial because the issue was meritless,

nor was trial/appellate counsel ineffective for his

failure raise a meritless issue on appeal. See Beasley,

304 Ga. at 514.

Accordingly, Ground Five provides no basis for

relief.

Ground Six

In Ground Six, Petitioner claims trial/appellate

counsel was ineffective for his failure to object to

improper closing arguments at trial. (Amended Writ

26a

22). Petitioner contends the State improperly

bolstered the victim's credibility. Petitioner cited the

following remarks by the State:

If that was theatrics, she needs to change her

career path. She needs to go into acting because

she convinced four bystanders who didn't know

her, convinced them to stop and take care of

her, to use their phone and terrified that she

needed their immediate assistance. She

convinced Detective Bugg, she convinced

Officer Condit, the doctors and nurses at the

hospital. She convinced her mother and her

grandmother she was truly frantic.

She did all this convincing. Her acting skills

are so on point she convinced over eight to ten

people that she was truly hysterical. You heard

her 911 tape. She convinced me.

(HT 423-24) (emphasis added); (Amended Writ 22).

The State prefaced these remarks by accurately

summarizing Petitioner's trial testimony that the

victim was putting on a show when she got out of the

truck at the red light and became hysterical as

witnessed by the bystanders. 7 Thus, in context, the

State's remarks in closing were in response to

Petitioner's insinuation the victim had embellished

some facts about the incident.

"The longstanding rule is that counsel may not

state to the jury his or her personal belief about the

veracity of a witness." Bolden v. State, 272 Ga. 1, 2

7 (HT 422-23). For example, during Petitioner's testimony

while he was explaining his version of events during the physical

altercation with the victim, he made a general statement "when

a woman's upset and she mad, it ain't nothing you can do to stop

her." (HT 392).

27a

(2000). In Bolden, the only two witnesses at trial were

Bolden and the police officer who arrested him, and

each gave conflicting testimony relating to the

circumstances of Bolden's arrest for DUI and driving

without headlights. Id In closing argument, the

solicitor stated: "You look at what you heard from the

officer, who I thought was very credible." Id Counsel

for Bolden objected to the argument as improperly

bolstering the credibility of the police officer. Id The

trial court overruled the objection, and the jury found

Bolden guilty of both offenses. Id. On appeal, the

Supreme Court of Georgia found "the solicitor

improperly commented on the credibility of the state's

only witness, and the trial court should have

sustained Bolden's objection." Id In reversing the trial

court's judgment, the Court held "[b]ecause the police

officer's testimony went beyond his report and his

credibility was the primary issue in dispute at trial,

we cannot conclude that it is highly probable that the

solicitor's bolstering of the officer's credibility did not

contribute to the verdict." Bolden, 272 Ga. at 2.

Petitioner's case is distinguishable from Bolden in

that there were several witnesses for the State

including police officers, bystanders, and one of

Petitioner's ex-girlfriends. Unlike Bolden, Petitioner's

case did not hinge solely on the credibility of a single

adverse witness. While it was improper for the State

to comment "[ s ]he convinced me," when speaking

about the victim, it is not probable the State's

comments contributed to the verdict given the weight

of the other evidence against Petitioner, as discussed

in Ground Two, supra. See also Bolden, 272 Ga. at 2.

Consequently, even if trial/appellate counsel's

performance was deficient for failing to object to the

28a

improper comment in closing argument, 8 Petitioner's

ineffective assistance claim fails because he failed

carry his burden to demonstrate prejudice. See

Metoyer, 299 Ga. at 348 (holding the prejudice prong

of Strickland requires a showing of a reasonable

probability that, but for counsel's deficient

performance, the result of the proceeding would have

been different); Cushenbeny, 300 Ga. at 197 ("Failure

to make the required showing of either deficient

performance or sufficient prejudice defeats the

ineffectiveness claim.").

Accordingly, Ground Six provides no basis for

relief.

Ground Seven

In Ground Seven, Petitioner claims the trial court

erred in failing to stop the State from arguing facts

not in evidence, and trial/appellate counsel was

ineffective in failing to object. (Amended Writ 23).

Petitioner cited to the State's comments in closing

argument regarding a 2010 Troup County case that

was dropped: "You heard about a 2010 Troup call. It

got dropped because she [(the victim)] didn't want to

do anything with it. They're not going to do anything."

(HT 443); (Amended Writ 23 ). The 2010 incident the

State was referring to was a 911 call made by the

victim when Petitioner broke a plate and cut the

victim's arm. See (HT 154, 263-65).

Petitioner claims the trial court's failure to

interject during the State's closing argument

8 At the Hearing, trial/appellate counsel testified he had no

strategic reason for failing to object to the State's improper

comment because he "simply missed it." (HT 14).

29a

amounted to plain error under O.C.G.A. § 17-8-75,

which states:

Where counsel in the hearing of the jury make

statements of prejudicial matters which are not

in evidence, it is the duty of the court to

interpose and prevent the same. On objection

made, the court shall also rebuke the counsel

and by all needful and proper instructions to

the jury endeavor to remove the improper

impression from their minds; or, in his

discretion, he may order a mistrial if the

prosecuting attorney is the offender.

However, the Supreme Court of Georgia has held that

unpreserved challenges to closing arguments in nondeath penalty cases are not subject to review on

appeal, even for plain error. Moon v. State, 311 Ga.

421, 426 (2021). Thus, to the extent Petitioner

challenges the trial court's failure to interject during

closing argument, that claim has been waived and is

now procedurally defaulted in habeas. See id.;

O.C.G.A. § 9-14-48(d); Black, 255 Ga. at 240

("[F]ailure to enumerate as error on appeal any

alleged error or deficiency stands on like footing with

a failure to make timely objection in the trial courtthat is, the same shall be waived. Being waived, there

then exists a procedural bar to its consideration in

habeas corpus proceedings, under the same

circumstances as pertain to like waivers in the trial

court.").

As to Petitioner's ineffective assistance claims, the

Court must nevertheless determine whether there

was any plain error because "the procedural bar [is]

exactly the reason that ineffective assistance claim

may have ... merit." Gordon v. Caldwell, 303 Ga. 715,

30a

717 (2018). If there was plain error, Petitioner may be

able to show "more than a 'reasonable probability'

that the outcome would have been different ... [if]

raising the issue at trial or on direct appeal would

have resulted in a new trial or a directed verdict of

acquittal as a matter of law." Henderson v. Hames,

287 Ga. 534, 536-37 (2010). "In this situation, the

ineffectiveness analysis often becomes coextensive

with the analysis of the legal issue that counsel failed

to raise." Id. at 537.

Here, there was no plain error in this instance

because trial/appellate counsel agreed prior to trial

that the 2010 incident was relevant as to prior

difficulties between Petitioner and the victim. (HT

154). At trial, the 911 call made by the victim in

connection with the 2010 incident was admitted as

evidence and played for the jury with no objection

from trial/appellate counsel. (HT 262-63). The victim

testified as to her recollection of the 2010 incident.

(HT 263-65). The record shows that four days after

the 2010 incident, the victim revised her statement to

say she was injured by accident. (HT 264).

Additionally, the State's domestic violence expert

testified extensively about the characteristics of

domestic violence relationships, and confirmed that

the victim changing her story was consistent with

behavior exhibited by someone in an abusive

relationship. (HT 291-92). As such, contrary to

Petitioner's argument, the 2010 incident was in

evidence, and the State's comments about the 2010

incident in closing argument were entirely proper as

summarizing facts presented to the jury. Thus, there

was no basis for trial/appellate counsel to object or for

the trial court to interject and give a curative

instruction under O.C.G.A. § 17-8-25. See also

31a

Hamilton, No. S23A0670, slip op. at 10 (Ga. Sep. 19,

2023) (Petitioner's claim fails each and every

requirement of the plain error test).

Additionally, trial/appellate counsel agreed ahead

of time that the incident was admissible as a prior

difficulty between Petitioner and the victim. (HT

154). Trial/appellate counsel's decision not to object

was reasonable, having conceded the admissibility of

the 2010 incident and having had the opportunity to

cross examine the victim and the domestic violence

expert regarding their testimony relating to the

incident. Consequently, Petitioner failed to carry his

burden to demonstrate trial/appellate counsel's

performance was deficient, and his ineffective

assistance claim fails. Cushenberry, 300 Ga. at 197

("Failure to make the required showing of either

deficient performance or sufficient prejudice defeats

the ineffectiveness claim.").

Even if trial/appellate counsel's performance was

deficient, Petitioner's ineffectiveness claim still fails

because Petitioner failed to carry his burden to

demonstrate prejudice - that is, Petitioner failed to

show how the outcome of his trial would have been

any different but for trial/appellate counsel's failure

to object. See Metoyer, 299 Ga. at 348 (holding the

prejudice prong of Strickland requires a showing of a

reasonable probability that, but for counsel's deficient

performance, the result of the proceeding would have

been different); Cushenberry, 300 Ga. at 197 ("Failure

to make the required showing of either deficient

performance or sufficient prejudice defeats the

ineffectiveness claim.").

Accordingly, Ground Seven provides no basis for

relief.

32a

Ground Eight

In Ground Eight, Petitioner claims trial/appellate

counsel was ineffective for his failure to object to

irrelevant expert testimony. (Amended Writ 24).

Petitioner claims a large part of the domestic violence

expert's testimony was "entirely irrelevant to the

charges and was introduced solely to inflame the

passions and prejudices of the jury." (Amended Writ

24). For example, Petitioner claimed the expert

testified that "when someone is ready to leave an

abuser that is when they are at most risk of being

murdered" and "she testified the violence escalates

over time." (Amended Writ 24-25). Petitioner also

claims the State capitalized on the expert's testimony

by saying in closing argument: "And you heard from

[the domestic violence expert] and she's had many

clients who have died at the hands of their abusers.

We may have been trying a murder case." (Amended

Writ 25); (HT 445).

The domestic violence expert testified as

follows:

Q: In your experience is it difficult for the

victim of domestic violence to leave their

abuser?

A: Yes. In national statistics, usually a victim

[leaves] seven to eight times, some leaving

to leave for the final time, and usually that's

the result of fear, but it's also the most

dangerous time and it's when we see most

of our domestic violence homicides occur

when they leave the relationship. If that

victim is attempting to leave that's the most

- - when they're most at risk for increased

violence.

33a

…

Q: And over time with the victims that you've

treated and met with, does the violence stay

the same or does it fluctuate?

A: In my experience the violence escalates over

time.

…

Q: And it can start with verbal abuse or

smashing property?

A: Yes, around the victim. And then it

escalates.

Q: Now, out of the over a thousand victims that

you've worked with, have you ever had any

victims that were killed by their abuser?

A: Unfortunately, yes.

(HT 281-82, 290).

"[T]he term 'relevant evidence' means evidence

having any tendency to make the existence of any fact

that is of consequence to the determination of the

action more probable or less probable than it would be

without the evidence." O.C.G.A. § 24-4-401. "In

determining whether the expert's testimony is

relevant, the trial court must consider the 'fit'

between the expert testimony and the issues in

dispute. Expert testimony is helpful to the trier of any

fact only to the extent that testimony is relevant to

the task at hand and logically advances a material

aspect of the case." Allen v. CFYC Construction, LLC,

354 Ga. App. 890, 893 (2020) (cleaned up). "Expert

testimony is admissible to explain the behavior of a

domestic violence victim who does not report abuse or

leave the abuser, and to explain a domestic violence

34a

victim's contradictory statements about what

happened." Vass v. State, 347 Ga. App. 535, 541

(2018) (cleaned up).

Here, the domestic violence expert's testimony

was relevant to explain the reasons the victim revised

her statements to police regarding the related 2010

incident and to explain her contradictory trial

testimony which significantly downplayed the

severity of the events which led to Petitioner's

charges. See id.; (HT 230-66). Petitioner concedes that

the expert's testimony regarding domestic violence

victims changing their stories and returning to

abusers "may have been proper," but still argues that

the expert's testimony about escalating violence and

homicides was irrelevant, inflammatory, and

prejudicial.

The expert's testimony referencing escalating

violence was relevant to the facts of the case given: (1)

the broken plate incident in 2010 and the fact the

victim called police to report Petitioner had thrown a

plate at her but only four days later changed her story

to say she was injured by accident; and (2) the

evidence at trial which showed the second incident of

violence involved an alleged battery, kidnapping, and

terroristic threats. As such, the expert's testimony

about escalating violence had a logical connection to

the material facts presented at trial and the issues to

be decided by the jury. See Allen, 354 Ga. App. at 893.

The expert's passing comment relating to

homicides was simply illustrative of her answer to the

State's question of whether a domestic violence victim

may find it difficult to leave an abuser. In context, the

expert's testimony described the nature of the

potential danger faced by a domestic violence victim

35a

who is thinking of leaving an abusive relationship,

which was relevant to the victim's state of mind when

testifying in court against her abuser. As such, the

jury could have found the expert's testimony helpful

in assessing what weight to attribute to the victim's

statements and to understand why her trial

testimony was contradictory to the other evidence

presented at trial, which strongly suggested

Petitioner's guilt. See Vass, 347 Ga. App. at 541.

Consequently, an objection by trial/appellate

counsel as to the relevance of the domestic violence

expert's testimony would have lacked merit. 9 It is

well-established that an attorney is not ineffective for

failure to make a meritless objection. E.g., Moore v.

State, 354 Ga. App. 145, 155 (2020). Therefore,

Petitioner's ineffective assistance claim fails as to

trial/appellate counsel's failure to object to the

domestic violence expert's testimony.

As to trial/appellate counsel's failure to object to

the State's remarks during closing argument, the

State's remarks came at the end of the argument prior

to the jury breaking for lunch. The State's comment

"[w]e may have been trying a murder case" (HT 445)

was an "isolated comment" in conjunction with a

Because the expert testimony was relevant, it was

admissible, and Petitioner has cited no exception which would

make the expert testimony inadmissible. O.C.G.A. § 24-4-402.

Trial/appellate counsel did not object to any of the domestic

violence expert's testimony, but he did successfully crossexamine the domestic violence expert by getting her to

acknowledge that she never interviewed the victim and had no

specific knowledge of Petitioner's relationship with the victim.

(HT 290-91). However, "the fact that the [domestic violence

expert] did not personally interview the victim went only to the

weight, not the admissibility, of her testimony." Cf Gipson v.

State, 332 Ga. App. 309, 316, n.6 (2015).

9

36a

statement which accurately summarized the

unobjected-to testimony of the domestic violence

expert. "The State's single, off-hand comment does

not rise to the level of egregiousness necessary to

establish prejudice under Strickland." Cf Brown v.

State, 325 Ga. App. 237, 245 (2013). As such, even if

trial/appellate counsel's performance was deficient,

Petitioner failed to demonstrate he was prejudiced by

the State's off-hand remark at the tail-end of closing

argument. As a result, Petitioner's ineffective

assistance claim fails. Cushenberry, 300 Ga. at 197

("Failure to make the required showing of either

deficient performance or sufficient prejudice defeats

the ineffectiveness claim.").

Accordingly, Ground Eight provides no basis for

relief.

Ground Nine

In Ground Nine, Petitioner claims the cumulative

effect of errors violated Petitioner's due process rights

and the right to effective assistance of counsel.

(Amended Writ 26). In order for the Court to consider

the cumulative effect of errors arising from ineffective

assistance of counsel, there must first be a finding of

at least two errors. State v. Lane, 308 Ga. 10, 15 (1),

21 (4) (2020); Williams v. State, 358 Ga. App. 152, 157

(2021).

Here, all of Petitioner's ineffective assistance

claims failed because he either did not establish

trial/appellate counsel's performance was deficient or

he did not establish he was prejudiced by

trial/appellate

counsel's

alleged

deficient

performance. Cushenberry, 300 Ga. at 197 ("Failure

to make the required showing of either deficient

performance or sufficient prejudice defeats the

37a

ineffectiveness claim."). Additionally, Petitioner's

claims relating to plain error by the trial court failed

because it is not likely the jury would have reached a

different verdict but for the alleged errors. See

Hamilton, slip op. at 10. As such, multiple errors do

not exist for which the Court may consider the

"cumulative error" effect. Williams, 358 Ga. App. at

157 ("[T]here are not multiple errors, [so] there can be

no cumulative error.").

Accordingly, Ground Nine provides no basis for

relief.

CONCLUSION

WHEREFORE, the instant Petition for Writ of

Habeas Corpus is DENIED.

If Petitioner desires to appeal this Order,

Petitioner must fi le a written application for

certificate of probable cause to appeal with the Clerk

of the Supreme Court of Georgia within thirty (30)

days from the date of this Order. Petitioner must also

file a Notice of Appeal with the Clerk of the Superior

Court of Dodge County within the same thirty (30

period.

38a

IN THE SUPERIOR COURT OF DODGE COUNTY

STATE OF GEORGIA

RODERICK JONES,

GDC # 0001092001

Petitioner,

v.

TOMMY BOWEN, Warden,

Respondent.

CIVIL ACTION NO. 21HC-0497

CERTIFICATE OF SERVICE

Comes now, Candi Dokey, Judicial Assistant to

Judge Howard Kaufold, Jr. and hereby certifies that

the original of the FINAL ORDER has been filed with

the Clerk of Dodge Superior Court and that true and

correct copies of the same have been served this day,

on all parties as follows:

Leigh Schrope, Attorney for Petitioner

via PeachCourt: leigh@msheinlaw.com

Ron Daniels, SAAG

via PeachCourt: ron@danitelstaylorlaw.com and

rebecca@dlawllc.com

This the 3 day of November, 2023.

39a

UNITED STATES CONSTITUTIONAL

AMENDMENT V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

40a

UNITED STATES CONSTITUTIONAL

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be

confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his

defence.

41a

UNITED STATES CONSTITUTIONAL

AMENDMENT XIV

Sec. 1. [Citizens of the United States.] All persons

born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

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[ON JUNE 22-24, 2015]

THE SUPERIOR COURT OF COWETA COUNTY

STATE OF GEORGIA

STATE OF GEORGIA,

vs.

RODERICK THORVAYDOUS JONES

Defendant.

CASE NO. 2014-SU-R-924

TRANSCRIPT OF CRIMINAL JURY TRIAL

VOLUME 1 OF 3

BEFORE THE HONORABLE

W. TRAVIS SAKRISON

SUPERIOR COURT JUDGE

MONDAY, JUNE 22, 2015

10:45 A.M.

APPEARANCES:

ON BEHALF OF THE STATE:

TRACY (TREY) S. REEVES, JR., ESQUIRE

ASSISTANT DISTRICT ATTORNEY

COWETA COUNTY DISTRICT ATTORNEY'S

OFFICE

72 Greenville Street

P.O. Box 2564

Newnan, Georgia 30264

ON BEHALF OF THE DEFENDANT:

JACKIE G. PATTERSON, ESQUIRE

ATTORNEY AT LAW

THE PATTERSON FIRM

2790 Peachtree Road

43a

Suite 650

Atlanta, Georgia 30305

DAWN M. DAVIDSON, CSR, RPR

OFFICIAL COURT REPORTER

ESTEB & ASSOCIATES, LLC

P.O. BOX 2324

NEWNAN, GEORGIA 30264

***

Attorney?

THE DEFENDANT: Yes, sir.

THE COURT: And so after discussing this with

your attorney, which is my understanding from what

Mr. Patterson said earlier that you did want to testify,

I assume y'all have discussed this?

THE DEFENDANT: Yes, sir.

THE COURT: After discussing with your attorney,

do you want to personally testify in this case or not?

THE DEFENDANT: Yes, sir.

THE COURT: Then, I find the defendant has

decided to testify with the complete understanding of

his rights.

Everybody ready?

(Thereupon, the jurors were

seated in the jury box.)

MR. REEVES: The State has rested at this time.

THE COURT: Mr. Patterson, do you have

anything.

MR. PATTERSON: We'd call Roderick Jones to the

stand.

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RODERICK JONES

after having been first duly sworn, was examined

and testified as follows:

DIRECT EXAMINATION

BY MR. PATTERSON:

Q. Tell the jury your full name.

A. Roderick Jones.

Q. How old are you?

A. Thirty-two.

Q. Where are you from?

A. Originally from Lagrange, Georgia.

Q. And at the time of this incident, where were you

living?

A. Two Glen Street.

Q. Did you have a job at the time of this incident?

A. At the time I was working at McDonald's.

Golden Corral and worked at McDonald's. I had left

Golden Corral and worked at McDonald's.

Q. The jury knows you have a couple of children.

A. Four in all; one deceased and one on the way.

Q. And let's talk about this incident. Let's first of

all talk about the first part of the day when you went

there and nothing occurred. Tell us about that.

A. Well, the day on the 27th, it was the day before

Thanksgiving. Me and my wife had left from

Palmetto, left to get established in another

apartment. I told her I didn't feel comfortable because

some people had stolen some of my lawn mower

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equipment that was outside, and she was on her way

to get ready for work and I told her I don't feel

comfortable in this house without a phone and no

transportation.

And it occurred -- she snatched up the phone, I'm

on my way to work, and we argued and just so

happened what intensified from that point she left the

baby bag in the car and I had to run out of the house

and when I stopped, I ran to the corner of Glen and

Murray and I don't know if y'all know anything about

-- being I was standing there I didn't really like the

area. I ran out to the road and tried to flag her down,

Shay, stop. She stopped and backed back up. The baby

bag in the truck. Now, leave me the phone. She got

out and I pulled the door open. I went back to the door

and I locked the door.

I ain't staying in that house by myself. Take me to

Lagrange. She got out of the truck like she was -because she had the keys, the house keys on the truck

key ring, so she jumped out of the truck and unlocked

the door and said get out of the truck -- to get out of

the truck. I ain't going. Leave the phone. I don't feel

comfortable there.

She got on the phone with her mother and told her

to come up the street and call her mama and next

thing I know I didn't know she had called the police. I

found out this morning she had called the police. And

when the police came, we had a discussion back and

forth about what was going on. I told him I was like,

look, I don't feel comfortable staying here. Told Shay

to take me to Lagrange. She told me to get out. I ain't

got no phone or transportation.

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Look, sir, these homes situation ain't getting no

better. I left my wife the keys to the truck. Baby in the

truck. I left walking.

Q. And what happened after you left walking?

A. After I left walking, I don't know the street area,

but I passed the bar and I was going back up toward

like going toward the Mexican restaurant and

Chevron. I don't know the street, but when I was

walking past the Spanish, she passed me first. Then,

the police passed her following her behind her so I

knew where she was going. She was going to her

house. And it had just snowed like the day before that,

so I walked. I made it almost to Kroger and I was

coming up through the parking lot. I didn't have

anything on but a shirt and sweat pants and a guy

had seen me, and, sir, can I please use your phone.

He was like, look, my wife just left and I tried to

get in, Shay, baby, come up here and get me.

Q. So you used a stranger's phone to call her?

A. Yes

So when I used this phone, he was like, man, I

wasn't trying to hurt you, but five or ten minutes, I

got to go to work. I had take you whatever you go I'll

trying to go to Lagrange. No. I can't do that for you. If

it was anywhere in the area, I could take you. If you

let me use my phone. She hung up on me and I was

like, man, please, Shay, come get me. You're on your

own. Call your daddy or uncle, one of your home boys.

It's over with you. Just so she hung up again on me.

I gave him the phone and walked to American Deli

and I asked one of the females at work could I please

use the phone and she let me use her phone and you

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know where I'm at if you want to come down here, you

know, so I hung up the phone.

Ten minutes trying to warm up. I walked all the

way from American Deli, all the way down Bullsboro

to her mother's house. And when I got to where her

mother stayed, I walked in. As soon as I knocked on

the door, she came to the door and she was on the

phone and she opened up the door and as soon as she

opened up the door and came back in and I walked in,

she let me in and I was like, Shay, why you doing like

that.

She was playing like she was talking on the phone

with her mama, so when she came back she walked

around the island, just like two ways you can go in the

kitchen. She went around and started going back and

forth around the table and she was telling me -- she

was acting like she was, mama he's right here. If he

don't get out of here, I'm going to call the police on his

A again.

I was like saying, I didn't come up here to get ln

trouble. I seen her purse laying on the corner of the

chair at the bar, so I said forget it because she kept

wanting me to follow her around. I'm not going to keep

playing like this and I walk off and grabbed her purse

and when she came and when she yanked it, that's

when the purse fell out and I snatched the keys up.

I'm going. I was fixing to go and that's when she ran

behind me, started hitting me, so first time I pushed

her off and she came back at me again.

And second time I turned around like, really, man,

it had me upset when she came at me, but when I

turned around I hit my wife and I call and Shay, she

really easily bruised and as soon as she fell down,

man, we ain't got to -- you keep trying to provoke the

48a

situation. I didn't come up here to get in any trouble.

She went screaming and hollering, you going to jail.

MR. REEVES: I believe I'll have to object to this

testimony and ask that some questions be asked at

some point instead of allowing one long narrative.

MR. PATTERSON: He's simply telling the jury

what happened and he's relaying his version.

THE COURT: Just, again, Mr. Patterson, let's see

if we can focus on questions.

DIRECT EXAMINATION (Cont'd)

BY MR. PATTERSON:

Q. I'm going to go ask you questions and give you

a chance to go further.

You indicated she started hitting you after she fell.

A. When she hit the floor, I tried to come to her,

quit trying to fight me. Only thing I'm trying to do is

go home. After that she got up and she was like, look,

I'm fixing to take you home and let me get RJ. She

went upstairs and got RJ. When she got downstairs,

she was like, I don't feel good. I don't feel good. Let me

get RJ. She slid down on the wall.

Q. Was she inside or outside?

A. She was inside. And she slid down like right

where there's a four-way walk in like the door is a

little wall and before you go in the door, she got right

there and she couldn't so she slid down on the wall

and sat down and let me get RJ.

He had dosed off and he had had a little sippy cup.

Once I got him in the truck, I came back and I noticed

she tried to get up and walk out on her own.

49a

So when she tried to get up and walk out on her

own, when she walked out, I was looking at her and I

seen that she was like she's really emotional and I

went to her aid and that's when she kind of said, hold

up; let me sit down.

I was like, Shay, you got to quit fighting. Only

thing I'm trying to do is get home. Come on. I'm fixing

to go home and I'm going to help you and we're going

to go to the hospital. I'm going to take you to Piedmont

from here. When you walk out of her mama's house,

it's like three steps. She sat down on the last third

step and I went and kind of grabbed her and put her

arm around mine. I never went and put her in the car.

We walked to the truck.

Q. And where was RJ at this time?

A. He was in the car seat. I had put him in the car

seat.

Q. So you put RJ in the car before you start dealing

with your wife?

A. She had came downstairs with RJ. She got to

the bottom of the steps and whole time I'm standing

it kind of got out of proportion, snatched the purse.

She snatched her purse. I grabbed the keys and when

I got ready to grab the keys because she knew I was

going to leave.

Q. Tell us about once again how she got from the

house to the car.

A. From the house - Q. Let me ask the question first.

Tell us how she got from inside the house to in the

car with you from inside of the house. You’re accused

of kidnaping her.

50a

A. She -- after she got up, it was like she was trying

to get herself together and by the time she got to the

third step, I walked up and she was like, you all right.

She sat down and I was like, come on, Shay, you got

to go to the hospital, and that's when I put my hands

-- put her shoulder over my shoulder and I lift her and

kind of with baby steps. When women be pregnant

they be waddling and I had already opened up the

door for her She got in the truck. I closed the door

behind her. We pulled out.

Q. And tell us what happened once you got in the

car and where you went to.

A. There were some other things said and we left.

I forget the name -- Madrid -- when we come out, it's

like by Food Depot -- we left to go back towards 29

because I didn't want to take no chances getting on

the highway. When we get up towards Badcock and

Enterprise and McDonald's, she noticed I didn't bear

off to get in the far lane to go towards Piedmont, so I

stayed in the lane.

Q. When she got in the car with you, where did she

think you-all were going when she got in the car with

you?

A. I told her I would take her to Piedmont, but

when we started going she started saying a lot of

other stuff. She started saying like, I'm going to get

(unintelligible), so she wished all type of bad stuff on

me. Come on. I didn't come up here to go to jail.

Only thing I'm trying to do is to get home. She

realized, then, take me to the hospital. I ain't fixing to

go to the hospital. When we get to Lagrange, I will

take you to the emergency room there. I'm not fixing

to go to Piedmont. They call one time you plan you

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couldn't call your mama and you call them again.

When we got to the stop light -- when we get to, but

we got to go out from up here. You take me home

because I feel like I took her that she would go in and

I would be stuck.

Q. So what happened once you got stopped at the

red light?

A. We were back and forth about going to the

hospital. I'm not going to go to Piedmont. I'll take you

to West Georgia when we get to Lagrange.

Get me home. I've got something for you and that's

when she hit the floor. Don't nobody know what was

said in that truck but her, but when she hit that door.

Q. What was said in that truck?

A. That's what I'm getting to now.

She was like, look, you think you fixing to leave me

up here. I'm pregnant. I've got a child. I almost lost

my job. She said, your A fixing to go to jail, and take

me to the hospital.

Shay, I will take you to the hospital when we get

home -- when you get me home. I'm not going to

Piedmont.

All right. I got something for your A, and when she

hit the door, I tried like kind of and when I grabbed

her, it was like she was trying to jump out. She said,

help, help, he's trying to kill me. And when she said

that, I let her go like, oh, my God, what's going on.

Shay, don't do that.

But then it was cars behind us blowing to go. The

light had changed so I made a u-turn and came in

Enterprise parking lot. I jumped out of the truck and

ran up to her. Don't do it like this. I didn't come up

52a

here for this. And she went running, running back

and forth, help, he's trying to kill me. It was an older

black guy pulled up at first. My wife, we just had a

little conversation when she took off. She ran back

towards the road, and when she ran back towards

McDonald's, I tried to go to McDonald's to get her.

By the time I seen all those people, I took off, but

on my way going back towards 29, I didn't know that

her phone was left in the truck like under the seat.

The phone started ringing. I picked the phone up and

that's when her brother, Drake, had called and me

and him was talking and he listened to me for a

minute and I told him, Drake, I didn't come up here

for this.

I left Lagrange. I've been up here trying to take

care of -- I might not have the best job, but I've got a

job. All the things Shay's been doing, she's using the

police against me. If I can't get you to do nothing, I'm

-- and she knew that was my biggest fear getting up

here and getting in trouble.

Q. That you threatened to get drugs and kill her

and hide her body, tell us about that.

A. In all, I didn't find out all this when I got home

and I dropped the child off. Long story short, once I

got arrested and I find this out is at preliminary

hearing. I never knew what I was charged with. I was

charged with kidnapping.

Q. Let me back up a minute.

Did you -- let's talk about, did you ever tell her in

the truck that you were going to kill her and hide her

body?

A. That's the only reason I wanted to come to trial

because I said, how could I plead out to something I

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never said or done. I never -- I never threatened her

for her life. I never said I was going to kill her or I

never kidnapped her or my child.

Q. So you went on to Lagrange after that; is that

correct?

A. Yes, sir.

Q. Tell us what happened in Lagrange.

A. On the way going, once I got to Lagrange, her

brother called first time and then Drake called. And

after me and him talked, her mama called right after

that, and, Ms. Harrison, she wouldn't have it. She was

like, you're going to jail.

Q. What did you eventually do with your child?

A. She told me to meet her with the baby; we're

taking RJ to Stella.

Q. When you get home, did you do that?

A. I said at the time, I said, Ms. Harrison, I just

got off with Drake. If you can get Drake to meet me - you don't want to meet up with Drake right now

because they want to kick your butt. Once I got home,

my sister came. As soon as I got to Lagrange, my mom

and sister had already knew, so when she came she

was like, bro, it's over with. My mama work for ICC,

so they came.

Telling her that if I came that way notified them

and -MR. REEVES: Judge, can I object.

the officers came to two Glenn Street, here go the

keys. Here go the debit card. This situation, to calm it

down, I will leave. Like the situation with my oldest

daughter. And jumped in the truck and left.

54a

Q. And last but not least, how did her nose start

bleeding? How did her nose start bleeding?

A. When I grabbed the keys, I was trying to turn

around. I really I provoked that situation because

when I grabbed the keys -- when I grabbed and she

grabbed and snatched it back. So they fell and hit the

ground and started and she came at me hitting and I

first -- back the first time, but I didn't punch her or

hit her. She was still trying to fight and that's when I

kind of stiffened and that's when she fell out. She

started saying like she was hurt.

MR. PATTERSON: No further questions, Your

Honor.

THE COURT: All right, Mr. Reeves.

CROSS EXAMINATION

BY MR. REEVES:

Q. Mr. Jones, you were in the car on November

27th, 2013?

A. Yes, sir.

Q. And you were driving and you put RJ in the

back seat and he was wake at that time?

A. No, sir. He was not awake at that time.

***

THE COURT: The substance evidence essential

for the facts of contention, essentially the prior

inconsistent statement. Well, I'm just going to give

the pattern on that.

All right. We have an amended request to charge,

includes intent and inference. Intent, is that not

covered in the pattern?

55a

MR. REEVES: The State would be fine with the

pattern charge on that, Your Honor.

THE COURT: For felony, so you want me to add

this to the terroristic threats other charge.

MR. REEVES: To the cruelty to children in third

degree as it's charged in the indictment and that the

enforceable felony was in the presence of a child, so

this would further explain to the jury that enforceable

felony to the child was terroristic threats of murder.

MR. PATTERSON: We would object to what the

State is saying she wants you to enforce – use it for

the terroristic threat.

MS. WOOD: It can be both. It's explaining the law

that the third degree is a forcible felony in the

presence of a child. So under the law, terroristic

threats is a forcible felony.

But cruelty to children, I will give the part of the

pattern that deals with forcible felony, but the other

part where it narrows it on the terroristic threat, on

anything else, may be a little too much.

MR. REEVES: Thank you, Judge.

THE COURT: All right. The defendant's

statement is not of use, so charges on voluntariness

are unnecessary.

MR. REEVES: That's correct. Did I miss that?

THE COURT: Definition of crime intent; we talked

about that. Mere presence, mere association, venue.

Now, as to Mr. Jones' specific request, wanted

prior inconsistent statements -- I mean prior

difficulty, but not on similar transaction. So all right.

56a

The other crimes wrongs and acts, pattern charge.

All right I'll give the pattern on similar transactions

or other crimes.

All right. Mr. Patterson, are you requesting

anything?

MR. PATTERSON: Specifically justification, what

is described by Mr. Jones.

THE COURT: Go ahead.

MR. PATTERSON: Your Honor, I've had a chance

to consider all that and my argument to the jury is

where it won't be necessary for the judge to give those

type of charges in terms of justification or any other

defenses.

Usually, I would, Judge, but under the unique

facts of this case, I -- and my strategy I would prefer

that not be given.

THE COURT: Any response?

MR. REEVES: Judge, we have no issue with that

if that's his strategy.

THE COURT: Well, I don't want this to come up

some sort of error down the road. So if I gave a charge

on justification, just justification alone and

affirmative justification, you aren't objecting to that?

MR. PATTERSON: Not at all.

I'm not objecting. We're not requesting. We see no

error if you give that charge or not.

MR. REEVES: Judge, I would ask that you not

give it if defense is not requesting it as I don't believe

it would be error since the defense has stated it is part

of their defense strategy to not go that route.

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THE COURT: Okay. So I'll give - - is there

***

***

literally putting the ball in your court because that's

where it is. We do not tolerate violence against

women, and even if we have a victim who does not

want our help, who does not want to prosecute, who

won't protect herself, we are called to do that, and I'm

asking you at this time to take a stand to think about

setting a precedence in our community that we live in

here in Coweta County, and what we are going to

tolerate and what we are not going to tolerate because

hitting a woman in any instance is not right. That is

why I'm in front of you talking about it.

I am going to sit down, but think about that, about

why this is important, not just for Sondrica, but for

RJ and for Journey and for the precedence that we are

setting here in Coweta County.

Thank you.

MR. PATTERSON: Thank you, Judge.

Ladies and gentlemen, I just want to say I'm so

fortunate Ms. Woods really can't read my mind, so I'm

going to tell you this. Last night when I was putting

together my power point presentations to give to youall, does it really take a power point to show that this

case a pitiful, that this case is a tragedy, and there are

no winners in this case. The prosecutor continues to

tell you that she anticipates I'm going to say this, say

that, but all I'm going to do, ladies and gentlemen, is

keep it real.

I cannot lose credibility with you otherwise. I'm

going to make it clear to you all five counts that she

58a

talked about and some things I'm going to tell you my

client doesn't know I'm going to tell you.

Let's talk about the family violence battery. My

client told you that he accidentally hit her as he was

trying to take the keys and leave. Now, realistically, I

believe that no man should ever hit a woman, period.

As a result of that, whether it was an accident or

whether it was intentional, I could have asked the

judge to give you a charge because the law says if

something happens by accident or if something

happens because a person is justified, then, he's not

guilty of that crime.

I could have asked the judge that and you-all

would have had to consider whether busting her nose

was by way of testimony or whether he was justified.

That's what the judge would have told you. I'm telling

you, ladies and gentlemen, it doesn't matter to me

whether he hit her nose by accident, this man is guilty

of family violence battery. My client has no idea I was

going to tell you that and you should find him guilty.

No man should ever hit a woman for any reason.

My client -- I'm going to be real and I got to say family

violence battery when you go back and deliberate, put

in that blank line, I find Mr. Jones guilty of family

violence battery. When Mr. Reeves gets up here, he

shouldn't have anything to talk to you about family

violence battery.

Let's talk about assault upon an unborn child. The

statute actually says it says that Mr. Jones would

have to intentionally try to cause a violent injury to

an unborn child. Clearly, there was no testimony he

intended to commit an injury to an unborn child, but

as I said earlier, striking a woman is unacceptable.

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I'm going to tell you, ladies and gentlemen, when

you get in that jury deliberation room, although, he

hit her in the face, it's still an assault. And I hate to

tell you this, he's guilty of committing assault upon

an unborn child, so when you go back there, write in

that form, guilty of assaulting an unborn child. To

talk about that anymore, I'm conceding to you that

this man is guilty.

Cruelty to a child in the third degree. It’s

unacceptable to have a child witness or see any form

of violence and Georgia law says that if you are the

primary aggressor and if the child witnesses an act of

violence, then, you're guilty of cruelty to a child in the

third degree. Ladies and gentlemen, once again I've

got to keep it real. He's guilty.

So when Mr. Reeves gets back up, he should have

no reason to talk about this incident of cruelty to child

in the third degree. He's already guilty of three. I'm

going to concede that. I never thought as a lawyer my

client is guilty of anything, but he's guilty of those

three things. Tell each other, let's go ahead and mark

guilty on these three counts because that's what it is.

Terroristic threats, the judge is going to tell you,

he's going to say, well, in order for a person to be

guilty of terroristic threats, he must threaten to

commit to terrorize another person. Now, you heard

from his wife, Ms. Jones, she's a battered person. She

is a victim of domestic violence. That's undisputed.

There's no way I would insult your intelligence and

tell you she's not the victim. There was no question

about that.

That's undisputed, but on the terroristic threats,

you actually heard my client say, I've never

threatened anybody. You heard, well, yes, he used the

60a

words, I'm going to bury your body, get some drugs

and you will never be found.

I'm going to tell you, ladies and gentlemen, I don't

know if he's guilty of that charge.

There were witnesses that came and said he was

guilty of it. I can only say on that charge I'm going to

leave it up to you. Because I can't determine whether

he did or did not use terroristic threats on Ms. Jones,

but I will tell you what reasonable doubt is, so we'll

get into that in just a minute. If he's guilty of it, I

would say I don't know. I've got some doubt in my

mind, so I can't tell you.

Let's talk about the kidnapping, which is the most

serious charge. We have the seven deadly sins. It's

called that for a reason. Kidnapping falls under the

category of seven deadly sins. Don't concern yourself

with punishment because you're not to concern

yourself with that. I can't tell you what would happen

to Mr. Jones as a part of seven deadly sins. Please

keep that in mind as you deliberate this case. Keep

that in mind.

When he said, I've got to take you to the hospital,

he said he reached down, put one hand on the

shoulder and put her in the vehicle. I'm going to take

you to the hospital. He did note he wanted to go to

Lagrange.

He wanted to end this relationship when he got

into the pressure and his wife saw he was going in a

different direction. Saying help me, help me.

Ladies and gentlemen, I'm simply going to ask you

to do what's fair and reasonable in the case. Did this

man actually kidnap his wife. The answer is no. It was

a domestic violence situation and we've acknowledged

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this is true domestic violence, but domestic violence

and kidnapping are two different things. If you

convict this man of kidnapping, it ain't going to

***

***

Lagrange. She went from inside the house to outside

the house. Slight movement there. You are authorized

to convict for kidnapping. And he picked her up and

put her in the car. You are authorized to convict for

kidnapping. He put her in a car and drove her from

her mom's house till they got to McDonald's. You're

authorized to convict and you should convict for

kidnapping.

And ladies and gentlemen she doesn't have to say

against her will, and she doesn't have to say I was

kidnapped. She told you on the stand, I didn't want to

go to Lagrange. I didn't want to go. But the defendant

wanted to take her and he made her go and force

doesn't have to be, I physically pulled you to

Lagrange. It was, I fight you and tell you to get in the

car and go to Lagrange. I just wanted it to stop, so I

went.

It was never what she wanted to do because she

was afraid if she kept getting beat she and -- and then

she finally took one moment of courage and jumped

out of the car after he said that he was going to kill

her, and then said he was going to kill her and bury

her body, and she believed him in that moment and

jumped out of the car at the Bullsboro intersection

where there are tons of cars and the busiest

intersection, pregnant and bleeding in fear for her

life.

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You heard the fear in her voice and they don't

know anything about Sondrica. In that moment she

was -- she thought he was going to kill her. And you

heard from Cassie Habler and she's had many clients

who have died at the hands of their abusers. We may

have been trying a murder case.

Thank you.

THE COURT: All right. I guess we're about an

hour. And I will have to give you instructions. Let's

take about a five-minute break and come back and

we'll give you instructions.

Don't discuss this among yourselves or anybody

else.

(Thereupon, the jurors were excused to the jury

room.)

THE COURT: All right. Is there anything we need

to take up?

MR. REEVES: No, Judge; not from the State.

Ready

All right. Let’s bring them back in and get going.

(Therefore, the jury was seated in the jury box.)

THE COURT: All right. And before I get started

again, I apologize. I’m still under the weather.

Ladies and gentlemen, as we begin the jury

instruction process, I'm going to remind you, you must

not communicate with anyone by any means about

this case through any media, such as a telephone, cell

phone, smart phone, iphone, blackberry, any Internet

or instant message service, any Internet chatroom or

facebook, Linked In, youtube or Twitter to

communicate to anyone any investigation about this

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case or to conduct any research about this case until

you reach your verdict.

You are considering the case of the State of

Georgia versus Roderick Jones. And a Grand Jury has

indicted Mr. Jones.

Again, the Grand Jurors aforesaid in the name

and behalf of the citizens of the State of Georgia

charge and accuse Roderick Jones with the offense of

kidnapping OCGA, 16-5-40, said accused in the state

of Georgia and in the county of Coweta, on or about

the 27th day of November 2013, did unlawfully abduct

and steal away Sondrica Jones without lawful

authority or warrant and held such person against

her will, said act resulting in bodily injury to Sondrica

Jones, contrary to the laws of state of Georgia, the

good order, peace and dignity, thereof.

Count two, Grand Jury aforesaid in the name and

behalf of the citizens of the State of Georgia charge

and accuse Roderick Jones with the offense of

terroristic threats, OCGA 16-11-37(a) in that the said

accused in the state of Georgia in the county of

Coweta, on or about the 27th day of November 2013,

did threaten to commit murder, a crime of violence

with the purpose of terrorizing Sondrica Jones,

contrary to the laws of the state of Georgia, the good

order, peace and dignity, thereof.

Now, Count three, the Grand Jury aforesaid in the

name and behalf of the citizens of the state of Georgia

charge and accuse Roderick Jones with the offense of

battery, family violence, OCGA 16-5-23.1(f)(1) in that

the said accused, in the state of Georgia and in the

county of Coweta, on or about the 27th day of

November, 2013, did intentionally cause physical

bodily harm to Sondrica Jones, said person being the

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present spouse of said accused, by striking said

person about the face and head with hands and fists,

contrary to the laws of the State of Georgia, the good

order, peace and dignity, thereof.

Count four, Grand Jury aforesaid in the name and

behalf of the citizens of the state of Georgia charge

and accuse Roderick Jones with the offense of assault

on an unborn child, OCGA 16-5-28, in that the said

accused in the state of Georgia and in the county of

Coweta, on or about the 27th day of November, 2013,

did unlawfully without legal justification attempt to

inflict violent injury to the unborn child of Sondrica

Jones by striking said person, being approximately

five months pregnant about the face, head and body

with hands and fists, contrary to the laws of the state

of Georgia, the good order, peace and dignity, thereof.

Count five, the Grand Jurors, in the name and

behalf of the citizens of the State of Georgia charge

and accuse Roderick Jones with the offense of cruelty

to children in the third degree, OCGA 16-5-70(d), in

that the said accused in the state of Georgia in the

county of Coweta, on or about the 27th of November,

2013, being the primary aggressor, did intentionally

allow Roderick Thorvaydous Jones, Jr., a child under

the age of eighteen years, to witness the commission

of the offense of terroristic threats, a forcible felony,

upon Sondrica Jones, contrary to the laws of the state

of Georgia, the good order, peace and dignity, thereof.

Peter John Skandalakis,

Coweta County Circuit.

District

Attorney,

The defendant has entered a plea of not guilty to

this indictment and this forms the issue for you to

decide. Neither the indictment nor the plea of not

guilty should be considered as evidence. The

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defendant is presumed to be innocent until proven

guilty. The defendant enters upon the trial of the case

with a presumption of innocence in his favor. This

forms the remaining issue with the defendant until it

is overcome by the State with evidence that is

sufficient to convince you beyond a reasonable doubt

that the defendant is guilty of the offenses charged.

No person should be convicted of any crime unless and

until each element of the crime is proved beyond a

reasonable doubt.

The burden of proof rests with the State to prove

ever material allegation of the indictment and every

essential element of the crime charged beyond a

reasonable doubt. Also, there is no burden of proof

upon the defendant whatsoever and the burden never

shifts to the defendant to introduce evidence or to

prove his innocence.

However, the State is not required to prove the

guilt of the accused beyond all doubt or to a

mathematical certainty. Reasonable doubt means

just what it says. A reasonable doubt is the doubt of a

fair-minded impartial juror honestly seeking the

truth. A reasonable doubt is based upon common

sense and reason. It does not mean a vague or

arbitrary doubt, but it is a doubt for which a reason

can be given arising from a consideration of the

evidence or lack of evidence, a conflict in the evidence,

or any combination of these.

If after giving consideration to all the facts and

circumstances of this case your minds are wavering or

unsettled or unsatisfied, then, that is a doubt of the

law and you must acquit the defendant. But if the

doubt does not exist in your mind as to the guilt of the

accused, then, you would be authorized to convict the

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defendant. If the State fails to prove the defendant's

guilt beyond a reasonable doubt, it would be your duty

to acquit the defendant.

The facts and circumstances that merely place

upon the defendants a grave suspicion of the crime

charged or that merely raise a speculation or

conjecture of the defendants' guilt are not sufficient to

authorize a conviction of the defendants.

It is my duty and responsibility to determine the

law that applies to this case and to instruct you on the

law. You are bound by these instructions. It's your

responsibility to determine the facts of the case from

all the evidence presented. Then, you must apply the

law I give you in the charge to the facts as you find

them to be.

You will decide this case based upon the evidence.

Evidence is the means by which any fact that is put

in issue is established or proved. Evidence includes all

of the testimony of witnesses and to any exhibit

admitted during the trial. The indictment, the plea of

not guilty, opening or closing remarks of attorneys or

questions asked by the attorneys are not evidence.

Evidence may be direct evidence or circumstantial

evidence, or both. And in considering evidence you

may use reason and common sense to make discussion

and reach conclusions. You should not be concerned

whether evidence is direct or circumstantial, which

may be seen or heard or otherwise directly sense and

such as by smell or taste or touch. It may be brought

into court by the . to of exhibit where the testimony of

direct evidence. So it is evidence that points

immediately to the issue at question. When direct

evidence points to an obvious likely or reasonable

conclusion even though that conclusion was not

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heard, seen or tasted or touched, that is said to be

circumstantial or indirect evidence.

Circumstantial evidence is the proof of facts or

circumstances by direct evidence from which you may

infer other related or connected facts that are

reasonable and justified in light of your experience. It

is evidence that only tends to establish a conclusion

in question by its consistency with such conclusion or

elimination of other conclusions.

Sometimes circumstantial evidence may point to

more than one conclusion. To authorize evidence, the

proved fact must not only be consistent with the

theory of guilt, but also include every other

reasonable theory other than the guilt of the accused

that does not require a higher or greater degree of

certainly based on circumstantial evidence than on

direct evidence.

When dependent upon circumstantial evidence or

direct evidence, the true test is whether evidence is

sufficiently convincing to satisfy you beyond a

reasonable doubt. If not, you must acquit. If so, you

may convict. There is no rule that either

circumstantial evidence or direct evidence is stronger

than the other. The circumstantial evidence and

direct evidence on any given issue is a question of fact

for you, the jury, to decide.

The jury must determine credibility of witnesses.

in deciding this you may consider all the facts and

circumstances of the case including the witness's

manner of testifying, their means and opportunity of

knowing the facts about which they testify, the nature

of the facts about which they testify, the probability

or improbability of their testimony, their interest or

68a

lack of interest in the outcome of the case and their

personal credibility as you observed them.

Testimony has been given in this case by certain

witnesses who are termed expert. Expert witnesses

are those who because of their training and

experience possess knowledge in that particular area

that is not common knowledge or knowledge to the

average citizen. Their knowledge is based upon their

training and experience. You are not required to

accept the testimony of any witness, expert or

otherwise. Testimony of an expert like that of all

witnesses is to be given only such weight and credit

as you think it is properly entitled to receive.

No specialized knowledge might be helpful a

person who has special training or experience in that

field is allowed to state an opinion about a matter, but

that does not mean you must accept the witness's

testimony. As with any other witness's testimony, you

must decide for yourself whether to rely on the

opinion.

In determining the credibility of witnesses and

any testimony by them in court you may consider

where applicable evidence offered to attack the

credibility or believability of any such witness. This

may include opinions of other witnesses, specific

instances of conduct of witnesses brought out on

cross-examination of that or another witness that

may relate to the witnesses testimony or bias of that

witness.

In determining the credibility of any witness

whose credibility has been attacked as I've described

above and any testimony by him or her in court, you

may consider whether evidence was offered to support

the credibility or believability of such witness.

69a

This may include specific instance of conduct of a

witness brought out in cross-examination that may

relate to the witness's testimony and truthfulness or

testimony that's bought out to show a lack of bias for

a party.

To impeach a witness is to prove a witness is

unworthy of belief. A witness may be impeached by

disproving the facts to which the witness testified,

proof that the witness has been convicted of a felony,

proof that the witness has been convicted of a crime

involving dishonesty or making a false statement,

proof of contradictory statements previously made by

the witness about matters relevant to the witness's

testimony and to the case.

Identity is a question of fact for you to determine.

Your determination of identity is dependent upon the

credibility of the witness or witnesses offered for this

purpose. You should consider all the factors

previously charged you regarding credibility of

witnesses. Some, but not all of the factors you may

consider in assessing reliability of identification are

the opportunity of the witness to view the alleged

perpetrator at the time of the alleged incident, the

witness's degree of attention toward the alleged

perpetrator at the time of the alleged incident.

The possibility of mistaken identity whether the

witness's identification may have been influenced by

factors other than the view that the witness claimed

to have and whether the witness on any prior occasion

did not identify the defendant in this case as the

alleged perpetrator.

It is for you to say whether under the evidence in

this case the testimony of the witnesses and the facts

and circumstances of the case sufficiently identify

70a

these defendants beyond a reasonable doubt as the

perpetrators of the alleged crime or that the

defendants were a party to it.

It is not necessary that the defendants show that

another person committed the alleged offense. If you

do not believe that the defendant has been sufficiently

identified as the person who committed the alleged

crime or was a party to it or if you have any

reasonable doubt about such, then, it would be your

duty to acquit the defendants.

The burden of proof rests on the State to prove

beyond a reasonable doubt the identity of this

defendant as the person who committed the alleged

crime in this bill of indictment.

The defendant is charged with a crime against the

laws of this state. A crime is a violation of the statute

of this state in which there is a joint operation of an

act or omission to act. An intent is an essential

element of any crime and must be proved by the State

beyond a reasonable doubt.

Intent may be shown in many ways provided that

you the jury believe that it existed from the proven

facts before you. It may be inferred from the proven

circumstances or by acts and conduct or it may be in

your discretion inferred when it is the natural and

necessary consequence of the act. Whether or not you

draw such an inference is a matter solely within your

discretion.

Criminal intent does mean an intention to violate

the law or to violate a penal statute, but means simply

the intention to commit the act that is prohibited by

the statute. These defendants will not be presumed to

have acted with criminal intent, but you may find

71a

such intention or the absence of it upon a

consideration of words, conduct, demeanor, motive

and other circumstances connected with the act for

which the accused are being prosecuted.

The defendant will not be presumed to have acted

with criminal intent, but you may find such intention

or the absence of it upon the consideration of words,

conduct demeanor, motive and other circumstances

conduct with the act for which the accused is being

prosecuted.

A jury is not authorized to find a person who was

merely present at the scene of the commission of a

crime at the time of its perpetration guilty of the

consent in and occurrence in the commission of a

crime -- and concurrence in the commission of a crime.

Unless the evidence shows beyond a reasonable doubt

that such person committed the alleged crime and

helped in the actual perpetration of the alleged crime

or participated in the criminal endeavor.

The law provides that a criminal action shall be

tried and indicted in a county in which the crime was

committed. In a prosecution in any case in which it

cannot be determined in what county the crime was

committed, venue is proper and may be proved in any

county in which the evidence shows beyond a

reasonable doubt that it might have been committed.

Venue, that is, the crime was committed in Coweta

County is a jurisdictional fact that must be proved by

the State beyond a reasonable doubt as to each crime

charged in the indictment. Just as any element of the

offense, venue must be proved by direct or

circumstantial evidence or both.

72a

A person commits a kidnapping when that person

abducts or steals away without lawful authority or

warrant and holds such person against such person's

will. To prove abduction or stealing away the State

must prove that the victim was moved. The movement

of the victim must be more than a change of position

and such movement must be more than that which is

incidental to or the fleeing of another crime.

When during a kidnapping a person abducted

receives bodily injury, however slight, that

constitutes kidnapping with bodily injury. It is not

necessary to prove that the act of kidnapping directly

produced the injury. However, the evidence must

show beyond a reasonable doubt that any such injury

was caused during the period of time of the

kidnapping and is in some way connected to the

alleged abduction.

A person commits the offense of a terroristic threat

when he or she threatens to commit any crime of

violence for the purpose of terroristic threat. No

person shall be convicted under this subsection on the

uncorroborated testimony of the party to whom the

threat is communicated. So intentionally causes

substantial physical harm or visible bodily harm and

bodily harm may include but not limited to blackened

eyes, swollen lips or other facial and body parts.

A person commits the offense of battery, family

violence, when such, person, who is the primary

aggressor, intentionally allows a child under the age

of 18 to witness the commission of a forcible felony,

battery, or family violence battery; or such person,

who is the primary aggressor, having knowledge that

a child under the age of 18 is present and sees or hears

73a

the act, commits a forcible felony, battery, or family

violence battery.

For the purpose of the law the term unborn child

means a member of the species homo sapien at any

stage of development who is carried in the womb. A

person commits the offense of battery of an unborn

child when such person, without legal justification,

intentionally inflicts physical harm upon an unborn

child. A forcible felony is any felony that involves the

use or threat of physical force or violence against any

person.

A person commits the offense of cruelty to children

in the third degree when a person who is the primary

aggressor intentionally allows a child under the age

of eighteen to witness the commission of a forcible

felony battery or family violence battery or such

person who is the primary aggressor having

knowledge that the person is under the age of

eighteen is present and sees or hears the act and

commits a forcible felony or family violence battery.

Every person is presumed to be of sound mind and

discretion, but the presumption may be rebutted.

Whether or not you make any such inference is a

matter solely within your discretion.

The testimony of a single witness is sufficient to

establish a fact. Generally, there is no legal

requirement of corroboration of a witness provided

you find the evidence is sufficient.

By no ruling or comment that the Court has made

during the progress of the trial has the Court

intended to express any opinion on the facts of this

case, upon the credibility of the witnesses, upon the

74a

evidence or upon the guilt or innocence of the

defendants.

Evidence of prior difficulties between the

defendant and the alleged victim has been admitted

for the sole purpose of illustrating, if it does so

illustrate, the state of feeling between the defendant

and the alleged victim and the bent of mind and

course of conduct on the part of the defendant.

Whether this evidence illustrates such matters is

a matter solely for you, the jury, to determine, but you

are not to consider such evidence for any other

purpose.

Should you find that any witness has made any

other statement inconsistent with the witness's

testimony from the stand in this case and that such

prior inconsistent statement is material to the case

and the witness's testimony, then you are authorized

to consider that other statement not only for

impeachment of the witness, but also as substantive

evidence in this case.

If after considering the testimony and evidence

presented to you together with the charge of the

Court, you find and believe beyond a reasonable doubt

that the defendant in the state of Georgia and in the

county of Coweta, on or about November 27th, 2013,

did commit the offenses of Count one, kidnapping,

that's alleged in the indictment you would be

authorized to find the defendant guilty in that event,

and the form of your verdict would be, we the jury find

the defendant guilty.

If after considering the testimony and evidence

presented to you, you find beyond a reasonable doubt

that the defendant in the state of Georgia and in the

75a

county of Coweta, did on or about the 27th day of

November commit the offense of terroristic threats as

alleged in the indictment, you would be authorized to

find the defendant guilty and in that event the form

of the verdict would be, we the jury find the defendant

guilty.

If you do not believe the defendant is guilty after

considering the testimony and evidence presented to

you with the charge of the Court, you should find and

believe beyond a reasonable doubt that the defendant

in the state of Georgia and in the county of Coweta,

did on or about November 27th,2013, commit the act

of family violence, battery as alleged in the

indictment, you would be authorized to find the

defendant guilty. And the form of your verdict would

be, we, the jury, find the defendant guilty.

If after considering the evidence and testimony

presented to you together with the charge of the Court

you should find and believe beyond a reasonable

doubt the defendant in the state of Georgia and in the

county of Coweta, did on or about the 27th day of

November, 2013, commit the offense of assault on an

unborn child as alleged in the indictment, you would

be authorized to find the defendant guilty, and the

form of your verdict would be, we, the jury, find the

defendant guilty.

And if after considering together with the charge

of the Court, you should find beyond a reasonable

doubt that the defendant in the state of Georgia and

in the county of Coweta, on or about the 27th day of

November, 2013, did commit the offense of cruelty to

a child in the third degree as alleged in the

indictment, you would be authorized to find the

defendant guilty of that offense, and the form of your

76a

verdict would be, we the jury find the defendant

guilty.

If you do not believe the defendant is guilty of

Count one, two, three, four or five: kidnapping;

terroristic threats; battery, family violence; cruelty to

children in the third degree or assault on an unborn

child, or if you have any reasonable doubt as to

defendant's guilt, then, it would be your duty to acquit

the defendant, in which event the form of the verdict

would be, we, the jury, find the defendant not guilty

to kidnapping as alleged in the indictment, not guilty

to terroristic threats as alleged in the indictment, not

guilty to, battery, family violence, or not guilty to

assault on an unborn child or not guilty to cruelty to

children in the third degree. Your verdict should be a

true verdict based upon the evidence.

You are not to show favor over one party or the

other. It's your duty to consider the facts without

favor, affection or sympathy to either party. In

deciding this case, you should not decide based upon

their national origin, sexual preference, economic or

corporate status, race or religion.

You are only concerned with the guilt or innocence

of the defendant. You are not to concern yourselves

with punishment, if any.

One of your first duties in the jury room will be to

select one of your number as foreperson who will

preside over your deliberations and who will sign the

verdict to which all twelve of you voluntarily agree,

consult with one another and consult of so I must

today this indication for you've but you should do so

only after discussion and considering of the cast with

your fellow juror if you are convinced that it is wrong.

77a

However, you should never surrender an honest

opinion in order to be congenial because of opinions of

other jurors. Whatever your verdict is, it must be

unanimous, that is, agreed to by all twelve of you in

writing and signed by one of your members as

foreperson, dated and returned and published to this

Court.

With that, you may now retire to the jury room. Do

not begin your deliberations until you receive the

indictment and any evidence that has been admitted

in this case.

Carol Wilson, are you alternate juror, so if you

would remain here just a minute.

The rest of you may retire to the jury.

(Thereupon, the jurors were excused to the jury

room.)

MR. REEVES: Judge, there was –

THE COURT: Other than similar transaction, was

there anything else I left out?

MR. REEVES: Well, with the prior difficulties

charge, I believe that when I put that charge in, I did

not change out the language. It should have been for

intent and absence of mistake or accident. Instead it

was read as course of conduct.

And I believe if we just add the independent act

and correct the prior difficulties curative with that

issue.

MR. PATTERSON: If it helps the State, we don't

see any harm with what you gave, although, we waive

erring later, but we have no objection.

78a

MR. REEVES: I would like to recharge them on

the prior difficulties and independent acts since we

did bring in Ms. Williams for that specific purpose.

THE COURT: All right. And so that we're clear

this is the third line of that first sentence. And the

alleged victim. And yes and the intent and the

absence of mistake or is it not on the part of the

defendant.

MR. PATTERSON: Judge, we really don't see any

real need for it.

THE COURT: I understand, but still I'd – I left out

similar transaction so we've got to redo that.

MR. REEVES: Can I request to make it a little bit

clearer we would ask for the pattern on prior

difficulties. Evidence of prior difficulties with the

defendant and the alleged victim have been submitted

for the sole purpose of illustrating feelings, the

feelings between the defendant and the alleged

victim, the reasonableness of any alleged fears by the

defendant or alleged victim, whether the evidence

illustrates, that's what the pattern says.

MR. PATTERSON: If I remember, Judge, you read

that.

THE COURT: I understand. All right.

Anything else?

MR. PATTERSON: No, Judge.

MR. REEVES: Maybe just a reading of the

independent act pattern as adjusted to our purpose.

THE COURT: This is like the third time I've gone

over it, but okay.

MR. REEVES: Thank you, Judge.

79a

THE COURT: Those were the reasons why I was

given in the motion for similar transaction.

MR. REEVES: That's correct, Your Honor.

THE COURT: Okay. All right.

(Thereupon, the jurors were seated in the jury

box.)

THE COURT: Thanks for being so patient. Turns

out that there's an additional charge we need to give,

so if you would bear with me.

Evidence of prior difficulties or lack thereof

between the defendant and the alleged victim has

been admitted for the sole purpose of illustrating, if it

does illustrate, the state of feelings between the

defendant and the alleged victim.

The reasonableness of any alleged fears by the

alleged victim whether this illustrates such matters

is a matter solely for you the jury to determine, but

you are not to consider such evidence for any other

purpose.

In order to prove the case, the State must show

intent, identity or disprove any absence of mistake or

accident. The State has offered evidence of other

crimes, wrongs or acts allegedly committed by the

accused. You are permitted to consider that evidence

only insofar as it may relate to those issues and not

for any other purpose. You may not infer the

defendant would commits such crimes. The evidence

may be considered only to the extent that it may show

intent, identity, mistake or disprove mistake or

accident that the State is required to prove in the

crimes charged in the case now on trial.

80a

Such evidence if any may not be considered by you

for any other purposes. The defendant is on trial for

the offenses charged in this bill of indictment and only

those, not for any other acts, even though such act

may have been brought up during the course of this

trial.

Before you may consider any other alleged acts for

the purposes stated, you must first determine

whether the accused committed those alleged acts

and you must first determine whether the act shed

any light on the element of the offenses charged or the

issues in the case which the act was committed in the

crimes charged in this indictment in this trial.

Remember to keep in mind the limited use and

prohibited use of this evidence about other acts of the

defendant.

All right. At this time now you may retire to the

jury room. And do not, as I said, do not begin

deliberations until we send back the evidence.

(Therefore, the jurors were sent to the jury room.)

THE COURT: All right. No objection to the

charge?

MR. PATTERSON: No objection.

MR. REEVES: No objection.

THE COURT: And I want to make sure everybody

is clear on what we're sending back.

MR. PATTERSON: I think State's Exhibit one

should not go back. It involves statements of the

doctor and it would be continuing witness. It should

not go back to the jury.

THE COURT: Mr. Reeves?

81a

MR. REEVES: Judge, I think that it should go

back as the injuries to her are certainly part of counts

one and three and State would ask that they do go

back.

MR. PATTERSON: Your Honor, a continuing

witness rule would be violated.

THE COURT: This is the part where the doctor

summarizes what the victim said?

MR. REEVES: That's correct, Judge.

***

***

transpired.)

THE COURT: All right. We have a question from

the jury. Feels like Groundhog's Day.

Can we ask for Exhibit one, Piedmont Hospital

medical records.

And that's the continuing witness rule.

MR. PATTERSON: Right. I apologize, Judge.

I have not found any law to the contrary.

THE COURT: I'll say this. I did look it up purely

for economic reasons, actually, and there is a case

Hodson V Mawson(ph) that discusses medical records

and allows for them, but I have concerns about some

of the summary was some of the statements as they

were read during the course of the trial. Anyway, did

seem like the summary of some of the victim's

testimony that I would have concerns about.

So I guess what I would prefer to do really what I

said before. I do think the medical records can go

back, but if there is a way to redact that summary or

82a

whatever, that part of the record from the report -- I

don't know if it's a separate section or whatever,

there's a separate page in there.

MR. REEVES: Judge, that would be page five

***

***

certainly heard a great deal of reservation and

some doubt she's having, but I did not get the

impression from talking to her that she would not be

willing to make an effort. I don't think that at this

time it would be appropriate to remove her based on

the words that she said. All right.

So we have a question.

We have two questions.

Question number one: Can we hear exhibit seven,

the 911 hearing, again?

Questions number two: Can we have the exact

legal definition of terroristic threats?

MR. REEVES: I'm fine.

MR. PATTERSON: Just have a question about it.

I'm wondering if they wrote that question down while

this jury was in here or while they were all together.

That would be very important.

THE COURT: We'll have to ask them that. I think

that’s a legitimate question.

Can we go ahead and answer this question

because it's likely they will give us the same

questions back.

Can you go ahead and give us your thoughts.

One question was, can they hear the exhibit,

83a

***

***

911 tape or whatever?

MR. REEVES: It's up there. I can set up the

computer.

And, Judge, just in the interest of not having to

bring the jury in and back out, I would like to give you

one final argument on the medical record issue and

appropriate charges.

THE COURT: They asked for it two hours ago. If I

give them an additional piece of paper, I'm not

inclined to hear -MR. MC MURRY: And I did find that law and it

did take a couple of hours, and I'd ask for the

opportunity to present that law to you.

THE COURT: All right. Go ahead and make your

record.

MR. MC MURRY: Thank you, Judge.

As it was a question as to whether or not the

medical records in their entirety would be a violation,

the State did contend and does contend, although, I

did not articulate the legal rule being that, the

medical records are not a violation of continuing

witness rule. That’s generally reserved for affidavits

and depositions. Written testimony that is sent back

with the jury does not go back with the jury.

***

***

that matter.

THE COURT: Has Mr. Patterson seen this?

84a

MR. PATTERSON: Your Honor, this clearly would

be inappropriate.

Certain evidence although admitted for your

consideration cannot go with you to the jury room so

that page five has been removed pursuant to those

rules.

Your Honor, sometimes a prosecutor has to that's

can't breathe life we're still pock so fight for the truth

no matter what.

MR. PATTERSON: It's not about the truth. This is

whether it's admissible or not to go back to the jury.

THE COURT: All right. I'll take it under

advisement and take up whatever Mr. Barrow

handed me.

All right. So it's my understanding that these two,

they have added a couple of words to the questions.

Question one: We all want to ask to hear Exhibit

seven, Herring, again.

Question two: Can we get the exact legal definition

of terroristic threats. And then in parentheses,

questions were made before the lunch.

So does anybody want to see this?

MR. REEVES: I'm fine, Judge.

THE COURT: Are we ready to play it?

MR. REEVES: Yes, Your Honor. I think the CD

may be in the back with them, though.

THE COURT: That's the only copy you have.

I believe. Exhibit seven.

Mr. Barrow, can you get Exhibit seven and bring

it out.

85a

THE BAILIFF: Absolutely.

THE COURT: I'm going to recharge on the pattern

as to terroristic threats.

Mr. Reeves, I think it is a continuing witness

problem.

MR. REEVES: Thank you for your consideration.

THE COURT: Are we ready to go?

MR. REEVES: Not yet.

(Thereupon, the jurors were seated in the jury

box.)

THE COURT: Ladies and gentlemen, you had

presented us with two questions.

Question number one: Can we hear Exhibit

number seven, the 911 call of Mrs. Herring, again,

and the answer is yes. You can go ahead and play

that.

(Thereupon, State's Exhibit seven was played for

the jurors.)

THE COURT: All right. Question number two:

Can we get an exact legal definition of legal terroristic

threats.

I'll remind you all of the charge that I had given

you earlier today, but specifically as it relates to

terroristic threats, a person commits the offense of a

terroristic threat when he or she threatens to commit

any crime of violence for the purpose of terroristic

threat. No person shall be convicted under this

subsection on the uncorroborated testimony of the

party to whom the threat is communicated.

86a

You may now continue to the jury room to continue

your deliberations.

(Thereupon, the jurors were sent to the jury room

to continue deliberations.)

THE COURT: Does anyone have anything they

need to take up at this time?

MR. REEVES: Nothing from the State.

***

***

MR. REEVES: Thank you, Judge.

THE COURT: All right. Will you bring them back.

(Thereupon, the jurors were seated in the jury

box.)

THE COURT: All right. It's my understanding

that we've received another question and the question

relates to Page five of the medical records that's

missing. And as it relates to that piece of the

document, one, I will remind you I charged you two

different times that you, the jury, determine the facts

in this case from the testimony that you hear and the

evidence that's introduced in court during the trial

and that you are the one that decides what testimony

you're going to believe and the weight and value of

that testimony.

Nothing that I say or no comment that I make

during the course of the trial or now indicates

anything about the evidence one way or another. But

I will add that it's for the Court to determine the law,

and the law requires that certain evidence cannot go

out with you in the jury room, and that's not a

comment on the evidence one way or another. So it's

87a

for you to determine the facts of the case based on

your recollection of the testimony and what you saw

and heard during the course of the trial.

All right. You may now go back and continue your

deliberations.

(Thereupon, the jurors were sent to the jury room

to continue deliberations.)

THE COURT: No objection from the defense.

MR. REEVES: None from the State.

THE COURT: All right. We'll be in recess.

(Thereupon,

deliberations.)

court

was

in

recess

during

THE COURT: We ready to bring the jury in?

(Thereupon, the jurors were seated in the jury

box.)

THE COURT: All right. It's my understanding you

have a verdict.

THE FOREMAN: That's correct.

THE COURT: I'm going to read the verdict.

In the Superior Court of Coweta County, the State

versus Roderick Jones, we, the jury, find the

defendant guilty of kidnapping. Count two, we, the

jury, find the defendant

***

88a

[ON JUNE 27, 2022]

IN THE SUPERIOR COURT OF

DODGE COUNTY, GEORGIA

RODERICK JONES

GDC# 0001092001

VS.

TOMMY BOWEN, WARDEN

PETITION FOR WRIT OF HABEAS CORPUS

21HC-0497

TRANSCRIPT OF AN EVIDENTIARY HEARING

JUNE 27, 2022

HONORABLE HOWARD C. KAUFOLD, JR.,

JUDGE

DODGE COUNTY SUPERIOR COURT,

PRESIDING

APPEARANCE OF COUNSEL:

FOR THE PETITIONER:

LEIGH SCHROPE

2392 NORTH DECATUR ROAD

DECATUR, GEORGIA 30033

FOR THE RESPONDENT:

RONALD E. DANIELS, S.A.A.G.

P.O. BOX 4939

EASTMAN, GEORGIA 31023

Cindy Grimes

Official Court Reporter

211 West Graham Street

McRae-Helena, Georgia 31055

89a

***

copy of the Court of Appeals decision in this case.

THE COURT: Any objection?

MR. DANIELS: No objection, Judge.

THE COURT: It is admitted without objection.

MS. SCHROPE: If it is all right with Your Honor,

we can proceed with our witness.

THE COURT: That will be fine. Mr. Patterson, if

you will come up to the witness box. Remain standing

until the oath is given and after that you can be

seated.

(Witness takes the stand)

MS. SCHROPE: Do you swear to tell the truth, the

whole truth and nothing but the truth, so help you

God?

MR. PATTERSON: I do.

THE COURT: Mr. Patterson, let me tell you this.

In the future, attorneys wear ties in front of the Court

and I’m fine. You are appropriately dressed other

than that, but if you ever appear before this Court

again make sure you have a tie on.

MR. PATTERSON: And I didn’t because I guess I

considered myself a witness and not necessarily the

trial attorney.

THE COURT: I didn’t ask for an excuse, Mr.

Patterson. I instructed you to wear a tie.

MR. PATTERSON: Not a problem.

THE COURT: You’re a member of the Bar and I

think ties, even if you are a witness, are appropriate.

90a

MR. PATTERSON: I understand.

THE COURT: Very good.

(Whereupon, having been duly sworn, the witness

testified as follows:

DIRECT

EXAMINATION

OF

PATTERSON BY MS. SCHROPE:

JACKIE

Q Good morning, Mr. Patterson. Can you please

state your full name for the record?

A Jackie Patterson.

Q What do you do for a living, Mr. Patterson?

A I am an attorney.

Q How long have you been an attorney?

A Thirty years.

Q Are you licensed in Georgia?

A Yes.

Q What does your practice mainly consist of?

A About 75% criminal defense and the remaining

is personal injury.

Q What about appeals? Do you do criminal

appeals?

A Yes.

Q What percentage is appellate work?

A I would probably say ten to fifteen percent.

Q What do you normally do to prepare for a trial?

A So I review all the discovery and interview all of

the witnesses.

91a

Q Do you recall representing Mr. Jones in Coweta

County

in approximately 2014, 2015?

A I do.

Q Do you recall generally what the charges were?

A Yes.

Q Did you follow your normal preparation?

A Absolutely.

Q Do you recall what the verdict was in this case?

A He was guilty of all counts?

Q Did you represent Mr. Jones on direct appeal?

A I did.

Q Did you consider advising him whether or not he

might want to get new counsel for the appeal?

A I probably didn’t because if I did the appeal, we

probably didn’t have any discussion about him getting

other counsel.

THE COURT: Hang on. Let me make sure I

understand what your testimony is. You’re saying

that you discussed with him whether or not you were

representing him on appeals?

MR. PATTERSON: Yes, I discussed with him that

I would be his appellate attorney.

THE COURT: All right.

BY MS. SCHROPE (cont’d):

Q Did you discuss with him possibly getting a new

attorney to evaluate your performance?

A I did not.

92a

Q Do you normally discuss that with your clients

after a trial?

A Not if I’m going to do the appeal.

Q Well, what do you normally do to prepare for the

appeal?

A I generally read the transcript and see if there’s

any potential errors that I can find throughout the

trial.

Q Do you believe you followed that normal practice

in this case?

A Yes.

Q Do you recall what issues you raised on direct

appeal?

A Yes. Simply that the trial court violated

commenting on the evidence.

Q Did the Court of Appeals ultimately agree with

you?

A They disagreed.

Q Did Mr. Jones testify at trial?

A I do believe he did.

Q During his testimony, did he make any

admissions to putting his hands on Ms. Jones?

A He did.

Q Why did he say?

A I think he said that he struck her after she hit

him or something like that.

Q During closing, did Mr. - - did you admit Mr.

Jones’s guilt on any of the counts?

93a

A I think on some of the charges except the

kidnaping.

Q Did you have permission from Mr. Jones to do

this?

A I don’t recall getting his permission. I think it

was simply my strategy to try to get him found not

guilty of the most serious charge.

Q Do you know if Mr. Jones knew you were going

to do this?

A I don’t think he did.

Q And you did this shortly after he testified that

he was justified?

A That’s correct.

Q Do you recall waiving the charge on justification

in this case?

A It probably slipped my mind. I don’t think I

waived it. I just overlooked it and didn’t notice it.

Q If the record - - here, let me show that page.

MS. SCHROPE: May I approach, Your Honor?

THE COURT: You may.

MS. SCHROPE: I am showing Mr. Patterson what

is page 265 and 266 of the trial transcript.

THE COURT: For the purpose of?

MS. SCHROPE: To refresh his recollection.

THE COURT: All right.

MS. SCHROPE: Sorry, it is 266 into 267. I’m

showing to refresh your recollection starting on line

23.

94a

BY MS. SCHROPE (cont’d):

A Yes.

Q Does this help refresh your recollection of

whether or not you waived the charge of justification?

A What I see here is specifically justification what

is described by Mr. Jones and the Court said, go

ahead. So I’m not following - Q Flip over to the back side.

A Oh, okay. Yes, I appears that I waived it.

Q Is there a reason that you did this?

A I can’t think of a legitimate or a strategical

reason.

Q During trial, did you object to any of the Court’s

jury instructions?

A I don’t’ think so.

Q Do you recall the Court instructing and I will

quote and this quote comes from page 321 to 322 of

the trial transcript.

THE COURT: Hold on just a second. Say that

again.

MS. SCHROPE: I said, do you recall the Court

instructing the jury and I’m about to read a quote of

what the Court instructed, which comes from page

321 and 322 of the trial transcript.

BY MS. SCHROPE (cont’d):

Q And the Court instructed, “a person commits the

offense of a terroristic threat when he or she

threatens to commit any crime or violence for the

purpose of a terroristic threat. No person shall be

convicted under this subsection on an uncorroborated

95a

testimony of the party to whom the threat is

communicated so intentionally causes substantial

physical harm or visible bodily harm and bodily harm

may include but not limited to blackened eyes,

swollen lips or other facial and body parts. The person

commits the offense of battery, family violence when

such a person who is the primary aggressor

intentionally allows a child under the age of 18 to

witness the commission of a forcible felony battery or

family violence battery. Such person who is a primary

aggressor having knowledge that a child under the

age of 18 is present and sees or hears that act commits

a forcible felony battery or family violence battery.”

Do you recall that instruction?

A Yes.

Q Do you object to this instruction?

A There is no question that is confusing as it can

get. I should’ve objected to that. That is - - I’ve never

heard a jury charge, that I can recall, after you said

that, it is extremely confusing to the jury.

Q Do you recall the Court instructing and I’m

again going to quote and this is a direct quote from

page 313 of the trial transcript. “You should not be

concerned with whether evidence is direct or

circumstantial which may be seen, or heard, or

otherwise directly sensed in such as by smell or taste

or touch and may be brought into Court by the . Two

of the exhibits where the testimony of direct evidence

so it is evidence that points immediately to the issue

at question.” Do you recall this instruction?

A That is equally as confusing. I can’t understand

how I missed that. That is clearly confusing.

96a

Q So you don’t have a reason for not objecting to

that?

THE COURT: What was the page number of

those?

MS. SCHROPE: That’s on page 313.

BY MS. SCHROPE (cont’d):

Q The next instruction I’m going to ask about is on

page 314. Do you recall the Court instructing the jury

that the proved fact must not only be consistent with

the theory of guilt but also exclude every other

reasonable theory other than guilt of the accused that

does not require a higher or greater degree of

certainty based circumstantial evidence than on

direct evidence?

A That is not a correct statement of law. Also, that

would be completely confusing to the jury. I have no

idea how I missed that, but I did.

Q And do you recall one last one, and I’m not going

to read this whole long because it’s really long, but I

have cited it in my brief. Did you have a chance to

review my brief?

A Yes, I did.

Q Do you recall in that brief that I quote, for a

couple of pages, the Court’s jury instruction about

what the jury should do if it’s found guilty? If it finds

the defendant guilty?

A Yes.

Q These instructions, Your Honor, on page 324 to

327 of the trial transcript. After reviewing the direct

quote, do you think that unduly emphasized the guilt

of the defendant?

97a

A No question it did.

Q Did you object?

A I did not.

Q Is there a reason you did not?

A I simply missed it.

Q Did you raise any errors in the jury instruction

through plain error on appeal?

A I did not.

Q Is there a reason you did not?

A I do not know. I don’t have a reason, in other

words.

Q But you did review the transcript?

A Yes, absolutely.

Q Did you or do you recall the State arguing in

closing about if this was theatrics she must be the

best actress and I’m paraphrasing, ‘cause she’s

convince many people, including the prosecutor

himself?

A I do recall that.

Q Did you object to this as bolstering?

A I did not.

Q Is there a reason you did not?

A There was no strategic reason I did not. I simply

missed it.

Q Do you recall the State arguing in closing that

some prior charges had been dismissed because the

alleged victim didn’t want to pursue them?

A Yes.

98a

Q Had there been any testimony that that’s why

they were dismissed?

A It was not.

Q Did you object to this being an argument outside

of evidence?

A I did not.

Q Is there a reason you did not?

A I do not have a reason.

Q Do you recall the State calling an expert?

A I do.

Q Did this expert testify - MS. SCHROPE: Your Honor, this might touch

very briefly on the charge, so if we want to ask the

kids to step out for a minute.

THE COURT: To me they aren’t kids. They’re

children.

MS. SCHROPE: Children, sorry.

THE COURT: Just let them step out for just a

minute. I am sorry. I just don’t think that young

children ought to hear things about people they may

look up to in a derogatory fashion.

MS. SCHROPE: I apologize, Your Honor.

THE COURT: That’s all right.

(The children exit the courtroom)

THE COURT: Go ahead.

BY MS. SCHROPE (cont’d):

Q Do you recall whether this expert was a

domestic abuse expert?

99a

A Yes, it was.

Q Do you recall her testifying about escalating

violence?

A Yes.

Q Do you recall her testifying about the risk of

homicide?

A Yes.

Q Do you recall the State arguing in closing that

this could have been a murder trial?

A That is correct.

Q Was this case - - were the allegations in this case

relating to escalating incidents?

A It was not.

Q Was it related to one specific incident?

A Yes.

Q Did you object to the expert testifying to these

two things as being irrelevant and prejudicial?

A I did not object.

Q Is there a reason you did not?

A I do not have a reason.

MS. SCHROPE: Thank you. That’s all the

questions I have for right now.

THE COURT: Can the children come back in or

are you going to cross as to this last subject?

MR. DANIELS: I don’t believe so, Judge.

THE COURT: Mr. King, if you will, let the children

back in please.

(The children enter the courtroom)

100a

THE COURT: Cross-examination, Mr. Daniels.

CROSS-EXAMINATION OF MR. PATTERSON

BY MR. DANIELS:

Q Good morning, Mr. Patterson.

A Good morning.

Q Where did you go to law school?

A Thurgood Marshall at Texas Southern.

Q When did you become a member of the Georgia

Bar?

A May, 1992.

Q Have you been a member in good standing since

you joined the Bar?

A Yes.

Q Can you just briefly give us an overview of what

you’ve done in your practice since you joined the Bar?

A Primary criminal defense, appellate and

personal injury.

Q Was that for yourself or other firms?

A No. I have always been self-employed.

Q How did you come to represent Mr. Jones?

A I’m sure someone called me and asked me to

represent him and they retained me. I don’t know who

called me because it’s been so long ago, but I’m

confident his family called me to represent him.

Q Is it typical for you to represent someone at the

both the trial level and then on direct appeal?

A Yes. I’ve done probably over 115 appeals and I’ve

done them all basically from my trials itself.

101a

THE COURT: Let me make sure I understand. For

these 115 appellate cases that you’ve handled, you

were the trial counsel for each and every one of them?

MR. PATTERSON: That is correct.

BY MR. DANIELS (cont’d):

Q When you were in your process in preparing for

the appeal, you reviewed the transcript?

A Yes.

Q You reviewed the law?

A Yes.

Q And you found the issues that you thought had

the most likelihood of success on direct appeal?

A That’s correct.

Q You didn’t intentionally leave any issues out?

A No.

Q It wouldn’t be your practice to not raise an issue

of merit?

A On appeal, I would raise every issue that I see

as valid.

Q When you say you don’t recall having a

strategical reason to not ask for the justification

defense, is that as you sit here today?

A Well today, in hindsight, I should have asked,

but at the time, clearly, I must have been having a

bad trial day with all the errors that she found and I

happen to agree with her. I don’t see any reason why

I did not raise those issues.

102a

Q If, contemporaneously, you said that you had a

strategical reason, would that be more accurate than

your testimony today?

A No. I cannot see any strategic reason for me

missing those errors that I should’ve raised.

Q When you indicated that you don’t recall having

a discussion with Mr. Jones about essentially

admitting guilt as to some counts, is that an

affirmative memory you have of I did not talk to him

about it or do you just not recall one way or the other?

A In trial, at times, things come up spontaneously

and you have to deal with it at that time. So, I’m

confident that I made the decision without consulting

with him about conceding on everything except the

kidnaping because I knew that carried the most time

in prison. So, my primary focus was on the kidnaping.

So, that was the reason.

Q Did he ever object to you and say, why did you

do that?

A I don’t think he had a way of objecting because I

think I said it so quickly because it caught my

attention at that time. I simply made those

statements without consulting with him.

Q Did he say anything after you came back to the

table and sat down?

A No.

Q Did he, at any point and time, say Mr. Patterson,

I thank you for representing me at trial, but I think

you messed up?

A Most defendants won’t know that since they

don’t know the law so I don’t think he had...

103a

THE COURT: That was not the question. The

question was did he raise that issue with you.

BY MR DANIELS (cont’d):

A Do you mean after the trial?

Q Yes, sir.

A Not that I can recall.

Q So, at no point and time during your

representation of him, post-conviction, did he say, I

want a different lawyer because I think you messed

up?

A He did not because I certainly would have

allowed him to get a new lawyer.

Q How many cases have you tried?

A In 30 years, I average about 45 trials a year so...

THE COURT: Forty-five jury trials a year?

MR. PATTERSON: Yes, sir. Believe it or not, it has

been almost 1000 trials in 30 years. Sometimes my

trials I have two or three jury trials a week depending

on whether it is a speeding ticket, DUI, yes, that is

correct.

BY MR. DANIELS (cont’d):

Q How many felony jury trials?

A I would probably say 500 of those.

Q Is it correct to say that you didn’t see any of

these issues until you were contacted by Mr. Jones’s

habeas counsel?

A That is correct.

MR. DANIELS: That is all I have, Judge.

104a

THE COURT: Anything on re-direct?

MS. SCHROPE: Yes, briefly, Your Honor.

REDIRECT

EXAMINATION

PATTERSON BY MS. SCHROPE:

OF

MR.

Q Mr. Patterson, do you think you could have

missed some possible issues on appeal in this case?

A I’m sorry. Can you repeat that?

Q Do you think you might have missed some

meritorious issues on appeal in this case?

A Oh, it is no question. All the issues that you

raised in this. I missed every one of them. I clearly

had a bad day that trial.

MS. SCHROPE: Judge, if I could...

THE COURT: Well, hold on just a minute. It was

a bad day at the trial, but after the trial was over with,

the transcript was completed, and you went through

the process of a motion for new trial, you continued to

have a bad day?

MR. PATTERSON: When I read the transcript, I

have to admit, Judge, I just didn’t notice those errors.

MS. SCHROPE: Judge, if I may approach with

page 290 and 291 of the trial transcript to help refresh

Mr. Patterson.

THE COURT: First off, ask him to determine

whether he needs refreshing.

MS. SCHROPE: Sorry. It was in response to a

question he was asked.

BY MS. SCHROPE (cont’d):

105a

Q You said you don’t think that Mr. Jones knew

you were going to concede his guilt. Do you recall

whether you told the jury anything about this?

A I don’t recall.

MS. SCHROPE: If I may refresh his recollection

with page 290 and 291 of the trial transcript.

THE COURT: Go ahead.

BY MS. SCHROPE (cont'd):

Q On page 290, drawing

particularly to lines 10 and 11.

your

attention

A Yes.

Q On page 29l{unintelligible) which on the flip

side. Lines 5 and 6.

A I see it.

Q Does this help refresh your recollection whether

you told the jury about Mr. Jones's knowledge?

A Yes. I told them that he had no idea that I was

going to tell the jury this.

Q And you did this immediately after he testified

in his own defense?

A That is correct.

Q And his testimony, just to clarify, was that he

was justified?

A Yes.

Q After your closing, when you came back to the

table, were you going to have another chance to get up

and talk to the jury?

A No.

106a

Q So, if Mr. Jones had said that he was upset with

that decision, would you have had a chance to take it

back?

A I would not have.

THE COURT: But he did respond. He did not

respond to you telling this jury he was guilty of

several of these charges.

MR. PATTERSON: That's correct. I do not recall

Mr. Jones and I having any conversation back at the

table after I made those comments.

BY MS. SCHROPE (cont'd):

Q But, even if you did, you wouldn't have been able

to undo it?

A That's correct.

Q And I just want to make sure ...

THE COURT: Hold on just a second. I want to

make sure my mind is clear. Did he reference that

situation after the verdict was reached or entered?

MR. PATTERSON: He did not. I don't think we

ever had a conversation about me conceding his guilt

on some of the charges.

THE COURT: Thank you. Go ahead.

BY MS. SCHROPE (cont'd):

Q And because you were representing him on

direct appeal, you did not discuss possible claims of

ineffective assistance of counsel against yourself?

A That's correct.

Q And so he didn’t know that was a possible time

to raise those?

107a

A That is correct.

MS. SCHROPE: That's all the questions I have,

Your Honor.

THE COURT: Anything on re-cross?

MR. DANIELS: Yes, Your Honor.

RE-CROSS

EXAMINATION

PATTERSON BY MR. DANIELS:

OF

MR.

Q Mr. Patterson, you didn't intentionally botch

this trial?

A Oh, absolutely not.

Q In fact, I understand you enjoy a pretty good

reputation.

A Absolutely.

Q In fact, I think you style yourself as the Bentley

lawyer and you've had a lot of success; is that right?

A That is correct.

Q And you wouldn't have intentionally botched

this appeal?

A No. It would certainly be unethical to

intentionally botch an appeal.

Q And you are generally proud of your work

product?

A Absolutely.

MR. DANIELS: That's all I have, Judge

THE COURT: Let me ask you something.

THE COURT: Mr. Patterson. Do you have any

type relationship with Mr. Jones and/or his family?

108a

MR. PATTERSON: No, they are total strangers

except for me representing him.

THE COURT: Are you aware of - - Let me ask it

this way. This 115 cases that you have tried and then

went through the appellate process with, none of

those folks you sat down and explained the potential

or possibility that you may have committed error and

they needed to obtain other counsel?

MR. PATTERSON: Maybe one or two in my whole

career because generally if I am doing the appeal, I

don't see where I made any error during trial and

that's why that topic really never came up much.

Maybe on two occasions.

THE COURT: Let me ask it this way. How many

times have you testified in a habeas proceeding other

than today?

MR. PATTERSON: I'd probably say in my whole

career, it may be ten.

THE COURT: Did it relate as to this type of

scenario?

MR. PATTERSON: Never. This is a complete first

for me.

THE COURT: All right.

THE COURT: Ma'am, anything as a result of my

questions to Mr. Patterson? Anything further?

MS. SCHROPE: No, Your Honor.

THE COURT: Mr. Daniels?

109a

MR. DANIELS: No, Your Honor.

THE COURT: Is Mr. Patterson excused?

MS. SCHROPE: Yes, Your Honor, as far as I am

concerned.

***

110a

[FILED NOVEMBER 29, 2023]

THE SUPREME COURT

STATE OF GEORGIA

RODERICK JONES, GDC 0001092007

Applicant,

vs.

TOMMY BOWEN, WARDEN

Respondent.

Habeas Case No. 21hc0497K

APPLICATION FOR CERTIFICATE

OF PROBABLE CAUSE TO

APPEAL HABEAS CORPUS

Leigh S. Schrope

State Bar of Georgia No. 680749

Elizabeth Brandenburg

State Bar of Georgia No. 467608

Law Firm of Shein, Brandenburg & Schrope

2392 North Decatur Rd.

Decatur, GA 30033

(404) 633-3797

(404) 633-7980 (Fax)

accurately instruct the jury on the law and counsel

failed to object. The habeas court misconstrued the

evidence and ignored the contents of the instructions

in order to deny relief, resulting in serious

Constitutional violations.

III. ENNUMERATION OF ERRORS

1. Applicant was Denied His Constitutional Right

to Maintain his Innocence and Due Process.

2. Counsel was Ineffective

Applicant’s Guilt.

in

Conceding

111a

3. The Trial Court Plainly Erred in Instructing

the Jury and Counsel was Ineffective in Failing

to Object to the Instructions or Raise this on

Appeal.

4. The Cumulative Effect of the Errors Requires

Relief.

As this is an application to appeal from a habeas

petition, this Court has jurisdiction over this case

pursuant to O.C.G.A. § 9-14-52(b).

IV.ISSUES OF CONSTITUTIONAL

SIGNIFICANCE

I. APPLICANT WAS DENIED OF HIS

CONSTITUTIONAL RIGHT TO MAINTAIN HIS

INNOCENCE AND DUE PROCESS

During Mr. Jones’s closing, without any

forewarning, defense counsel conceded Mr. Jones’s

guilt on battery/family violence, assault on an unborn

child, cruelty to children in the third degree, and,

perhaps, terroristic threats. (HT. 428-433). Applicant

had decided to exercise his Constitutional right to a

jury trial and testified that he only hit Sondrica

because she was running at him a second time –

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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