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.
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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.
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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.
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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
61a
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.