Jackson v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.
In the Supreme Court of Georgia
Decided: October 4, 2022
S22A0764. JACKSON v. THE STATE.
MCMILLIAN, Justice.
Following a jury trial in September 2018, Curtis Jackson was
convicted of malice murder in connection with the shooting death of
Vernard Mays. 1 On appeal, Jackson asserts that the trial court erred
Mays was killed on October 27, 2015. On April 12, 2016, a Bibb County
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grand jury jointly indicted Jackson; Jadarien Flowers; Michael Hardy, Jr.;
Drayson McDonald; and Addonis Rhodes for malice murder (Count 1), felony
murder predicated on aggravated assault with a deadly weapon (Count 2),
violation of the Georgia Street Gang Terrorism and Prevention Act (“Gang
Act”) (Count 3), and felony murder predicated on violation of the Gang Act
(Count 4). Prior to trial, Flowers, Hardy, and McDonald entered negotiated
guilty pleas to aggravated assault as a lesser-included offense of Count 2, with
the remaining counts to be nolle prossed following their truthful testimony
against Jackson and Rhodes; Hardy also entered a guilty plea to Count 3. At a
joint jury trial held from September 11 to 18, 2018, a jury found Jackson and
Rhodes guilty of all four counts. The trial court sentenced Jackson to serve life
in prison without the possibility of parole for malice murder; the remaining
counts were either merged for sentencing purposes or vacated by operation of
law. Rhodes’s conviction is not at issue in this appeal. Jackson timely filed a
motion for new trial, which he amended through new counsel on November 19,
2019. Following a hearing, the trial court denied the motion for new trial on
January 28, 2022. Jackson timely appealed. The case was docketed to the April
2022 term of this Court and submitted for a decision on the briefs.
(1) in failing to instruct the jury that it must find corroboration for
an accomplice’s testimony and (2) in failing to excuse Juror Number
22 for cause. Because we conclude that the trial court did not commit
any reversible error, we affirm.
The evidence produced at trial showed that on the afternoon of
October 27, 2015, a car accident occurred near Second and Ell Street
in Macon, outside the house where Mays lived with his mother,
Contessa Jones. Mays, who did not know any of the people involved,
helped render aid until EMTs arrived. Devonte Hollingshed, one of
the passengers injured in the accident, was a member of the “Crips”
street gang and had a gun with him in the car at the time of the
accident. While Hollingshed was transported to the hospital by
ambulance, another passenger, Tymario Williams, hid the gun in
the bushes outside Jones’s home because he was not sure whether
the gun was stolen. Marquis Simmons, Williams’s cousin, heard
about the accident and went to the scene to retrieve the gun.
Simmons later told police officers where the gun was stored in his
bedroom.
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Not knowing that Simmons had already retrieved the gun,
Jackson, also a Crips member, went to Jones’s house to locate the
gun along with Flowers (a fellow Crips member), Rhodes (a member
of the “10-12” street gang), and McDonald (a 10-12 member). Two
men nearby told Jackson that they had seen someone from Jones’s
house take the gun out of the bushes, so Jackson knocked on Jones’s
front door. Jackson became frustrated when someone inside Jones’s
house kept asking who was there but would not open the door.
The group then met up with Hardy, dropped Jackson’s car off
at a gym, and returned to Jones’s house in Hardy’s car. McDonald,
Flowers, Rhodes, and Hardy each had a gun with them; Jackson did
not. Jackson directed Hardy to park in an alley near Jones’s house.
According to Flowers, Jackson was “[s]till kind of frustrated” that he
could not find the gun. When no one answered the front door, they
went to the back door. Mays opened the back door, and Jackson
asked him about the gun. Mays responded, “I don’t know what you’re
talking about.” Jackson then said, “[W]ell, if something happens you
can’t say I didn’t say nothing.” As soon as Mays began to say,
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“[W]ell,” a gunshot rang out.
Flowers testified that Rhodes, who was carrying a .40-caliber
handgun, was the first to shoot, and then he, Hardy, and McDonald
also fired shots as they ran away. Flowers saw that Mays had been
shot before Mays went back inside the house. Everyone but Jackson
returned to Hardy’s car. As they drove away, Rhodes told them that
he “unloaded his whole clip and he knew he hit [Mays].” The next
day, Rhodes told Flowers that he shot Mays because Jackson “gave
him a look.”
Hardy testified that after their group confronted Mays about
the gun, Mays went back inside and was closing the door when
Jackson “looked at [Rhodes] some kind of way . . . like just like
shoot.” Jackson then ducked behind a truck, and Rhodes fired a shot.
Rhodes then ran off, and McDonald and Flowers started shooting
while they ran backwards. At that point, Hardy started shooting as
well. Everyone but Jackson, who was “nowhere to be found,” ran
back to Hardy’s car and sped away. Hardy dropped the other three
men off at a friend’s house and then went to a park and threw his
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gun away. Jackson called him later that night, but he did not
answer. 2
Mays’s uncle, known as “J-Bone,” testified that he was also a
Crips member and that on the night of the shooting he received a
message from Jackson around 8:30 p.m., stating, “Your people in the
house on the south side got my guns, and I’m telling you because
you’re my homie. I knocked on the door and they were talking
through the door.” He did not know that Jackson was referring to
Mays until he got a call from his sister that Mays had been shot.
Jones testified that around 7:00 p.m. that evening, a man
knocked loudly on her door, demanding that she open the door. The
man would not tell her who he was or what he wanted. Jones was
home alone at the time and refused to open the door. She then heard
the man talking to someone else in the yard, cursing and saying,
2 McDonald also testified pursuant to his plea agreement. According to
McDonald, the conversation between Jackson and Mays seemed normal at
first, but then there were multiple gunshots. McDonald ran back to the car,
and Hardy, Rhodes, and Flowers followed. Everyone was “hyped up about
shooting,” and Hardy said, “I just let the whole clip run.” He saw Rhodes fire
first, followed by Hardy.
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“I’m not going to be talking to this lady through no door.” She saw
about five men outside, but only one on the porch. They eventually
stopped knocking and left. When Mays arrived home later that
evening, the knocking began again. The person knocking again
refused to respond to their inquiries. After a time, the knocking
stopped, and Jones went to her bedroom. While in her room, she
heard Mays open the back door and a man say that he was coming
to get something. Mays told the man, “We ain’t got none of that.”
The man then said, “I know your uncle.” Mays told him, “We don’t
have it.” Then there was a pause and a gunshot. Mays ran into her
bedroom and said, “They shot me, Mama.” When she looked out the
back door, it looked like someone was coming up the steps, so she
locked her bedroom door, and she and Mays hid beside her bed while
she called 911. She heard several more gunshots as they hid. She
also heard the sound of crunching glass and someone say, “We got
to finish him off.” Mays died in her arms before law enforcement
officers arrived. In the days after Mays’s death, Jones saw a
Facebook post by Rhodes, wherein he referenced killing: “Now’s it’s
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like [Lucifer] the only person that understands my pain, he
understands that black hole in my soul . . . he understands why I
kill, he understands why I rob.”
Law enforcement officers observed multiple gunshot holes in
and around Jones’s house and recovered ten shell casings – three
.40-caliber casings, six .380-caliber casings, and one 9mm casing –
and five projectiles – four .40-caliber projectiles and one .380-caliber
projectile. Lieutenant Cedric Penson testified as an expert in gang
crimes and explained that a higher ranking gang member, such as
Jackson in this situation, would not normally carry a weapon
because he would have risen to the point where he did not have to
take that risk anymore. And because of Jackson’s influence and
control over the others, there would have been repercussions if they
had not gone along with Jackson. An autopsy revealed that Mays
died as a result of a bullet that traveled through his upper thighs,
severing his left femoral vein, before lodging in his upper left thigh.
A GBI firearms examiner identified the bullet recovered from Mays’s
autopsy as a .40-caliber projectile.
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Jackson testified in his own defense at trial. According to
Jackson, he was just trying to help Hollingshed find his gun. After
Mays told him that J-Bone was not home and that he did not have
the gun, Jackson thanked Mays and turned to leave. He then heard
three to four gunshots and took cover behind a truck. He saw
someone running down the street, shooting, and believed it was
either Hardy, Flowers, or Rhodes. He wanted to call 911, but his cell
phone battery had died. He admitted that he initially told
responding officers that he did not see the shooters’ faces and did
not identify the other four men until he was interviewed later that
night. He denied knowing that anyone had a gun, denied that they
went to Mays’s house with the intent to shoot him, and denied giving
a signal to shoot Mays. Jackson admitted that he had been
previously convicted of selling cocaine, criminal trespass, and
obstruction of government property, and, on cross-examination, the
State impeached Jackson’s testimony that he had not previously
been accused of shooting at anyone.
1. Jackson asserts that the trial court erred in failing to
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instruct the jury that an accomplice’s testimony must be
corroborated.
Under Georgia law, “[t]he testimony of a single witness is
generally sufficient to establish a fact.” OCGA § 24-14-8. However,
in “felony cases where the only witness is an accomplice, the
testimony of a single witness shall not be sufficient.” Id. Thus, when
witnesses testify at trial who may be considered accomplices,
corroborating evidence is required to support a guilty verdict. See
Edwards v. State, 299 Ga. 20, 22 (1) (785 SE2d 869) (2016).
Here, the trial court charged the jury, in relevant part:
The testimony of a single witness, if believed, is sufficient
to establish a fact. Generally, there is no legal
requirement of corroboration of a witness, provided you
find the evidence to be sufficient.
The trial court did not charge the jury on the statutory corroboration
requirement. Jackson concedes that because he neither requested
an accomplice charge nor objected to the single-witness charge as
given, we only review this claim for plain error. See OCGA § 17-8-58
(b) (“Failure to object in accordance with subsection (a) of this Code
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section shall preclude appellate review of such portion of the jury
charge, unless such portion of the jury charge constitutes plain error
which affects substantial rights of the parties.”); Munn v. State, 313
Ga. 716, 722 (3) (873 SE2d 166) (2022) (“Where a defendant does not
request that the trial court give a jury instruction, . . . this Court
only reviews for plain error.”).
To establish plain error, Jackson must meet each of the
following four prongs:
First, there must be an error or defect – some sort of
deviation from a legal rule – that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived . . . Second, the legal error must be
clear or obvious, rather than subject to reasonable
dispute. Third, the error must have affected the
appellant’s substantial rights, which in the ordinary case
means he must demonstrate that it affected the outcome
of the trial proceedings. Fourth and finally, if the above
three prongs are satisfied, the appellate court has the
discretion to remedy the error – discretion which ought to
be exercised only if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
Munn, 313 Ga. at 722 (3) (citation and punctuation omitted).
It is well settled that “the failure to give an accomplice-
corroboration charge [is] clear and obvious error where the trial
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included purported accomplice testimony but the jury was
instructed that facts could be established based on the testimony of
a single witness.” Palencia v. State, 313 Ga. 625, 628 (872 SE2d 681)
(2022). See also Stanbury v. State, 299 Ga. 125, 129 (2) (786 SE2d
672) (2016) (holding that “the trial court’s failure to provide a jury
charge regarding accomplice corroboration was clear error not
subject to reasonable dispute”). Thus, Jackson is able to meet the
first two prongs of the plain error test.
However, Jackson’s claim fails on the third prong of this test
because any error did not likely affect the outcome of the proceeding,
given that there was so much corroborating evidence presented at
trial that the jury – if properly instructed – was unlikely to have
returned a different verdict. See Rice v. State, 311 Ga. 620, 624 (1)
(857 SE2d 230) (2021). To satisfy OCGA § 24-14-8 and support a
guilty verdict, an accomplice’s testimony at trial must be
corroborated, and the amount of corroborating evidence need only
be slight. See Goodman v. State, 313 Ga. 762, 767-68 (2) (a) (873
SE2d 150) (2022). Moreover, “[i]t is well settled that an accomplice’s
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testimony may be corroborated by the testimony of another
accomplice.” Bedford v. State, 311 Ga. 329, 332 (1) (857 SE2d 708)
(2021) (citation and punctuation omitted).
Here, multiple witnesses, including Jackson, corroborated
that Jackson participated in the crimes, and the State presented
expert testimony that as an elder in the gang, Jackson would have
had the authority to order others to commit the crimes. The
testimony of McDonald, Flowers, and Hardy showed that Jackson
directed the group to return to Jones’s house and park in a nearby
alley and that Jackson then took the lead in asking Mays about the
gun. And both Flowers and Hardy testified that when Mays said
that he did not have the gun, Jackson gave Rhodes a look that meant
Rhodes should shoot Mays. Lieutenant Penson, an expert in gang
crimes, explained that “[t]ypically . . . the elders or the older
individual get somebody like a juvenile or a younger generation to
do the criminal act for them, so, you know, they can all – they can
have the deniability of being involved.” Lieutenant Penson was
familiar with Jackson and knew him to have a significant status
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among the younger generation of gang members, including Rhodes
and his co-indictees. In his expert opinion, because of Jackson’s
influence and control over the others, there would have been
repercussions if they had not followed Jackson’s instructions.
Moreover, Jackson testified at trial and admitted that he rode
to Jones’s house with Hardy, Flowers, Rhodes, and McDonald to
retrieve Hollingshed’s gun and that he was the one who confronted
Mays about the gun. Although Jackson denied knowing that the
other four men were armed and denied going to Jones’s house with
the intent to shoot anyone, the jury was free to disbelieve this
testimony, particularly where Jackson admitted that he initially
lied to the responding police officers and where the State impeached
Jackson’s testimony that he had not previously been accused of
shooting at anyone. See Howard v. State, 308 Ga. 574, 576 (842 SE2d
12) (2020). The State also introduced evidence of Jackson’s text
message to J-Bone from which the jury could infer that Jackson was
warning or threatening J-Bone’s family regarding the return of the
gun.
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Thus, even if the jury had been given an accomplice-
corroboration instruction, it likely would have determined that the
testimony of any accomplice was sufficiently corroborated by either
independent evidence or the testimony of another accomplice. See
Bedford, 311 Ga. at 332 (1); Montanez v. State, 311 Ga. 843, 849 (1)
(b) (860 SE2d 551) (2021) (“The necessary corroboration may consist
entirely of circumstantial evidence, and evidence of the defendant’s
conduct before and after the crime was committed may give rise to
an inference that he participated in the crime.”). Accordingly,
Jackson cannot show that the trial court’s failure to give the
accomplice-corroboration charge likely changed the outcome of the
trial. See Payne v. State, ___ Ga. ___, ___ (1) 2022 Ga. LEXIS 213, at
*9 (Case No. S22A0469, decided August 9, 2022) (“Given the number
of witnesses who implicated [Appellant] in the shooting, it is not
likely that the jury convicted him based on the uncorroborated
testimony of a single witness who was an accomplice.”); Rice, 311
Ga. at 624 (1) (because the testimony of a co-defendant and another
potential accomplice could be found mutually corroborating, trial
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court’s clear error in not giving an accomplice-corroboration charge
likely did not change the outcome of the trial).
2. Jackson also asserts that the trial court abused its discretion
by initially refusing to excuse Juror Number 22 for cause. We
disagree.
Under Georgia law, the trial court has broad discretion to
replace a juror with an alternate at any point during the proceedings
where it is shown that the juror is unable to perform his or her duty
or other legal cause exists. See OCGA § 15-12-172; Morrell v. State,
313 Ga. 247, 263 (3) (869 SE2d 447) (2022). “[T]he trial court’s
determination in matters such as this is based on the demeanor and
credibility of the juror in question, which are peculiarly in the trial
court’s province.” State v. Arnold, 280 Ga. 487, 490 n.2 (629 SE2d
807) (2006). We review a trial court’s decision in this regard for an
abuse of discretion. See Cummings v. State, 280 Ga. 831, 835 (6) (632
SE2d 152) (2006).
After the jury was empaneled, Juror Number 22 asked the
bailiff why she had been selected when she had told the attorneys
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that she knew the victim. 3 The following morning, the trial court
questioned Juror Number 22 on the record, and she told the court
that she had gone to school with Mays, explaining, “I don’t think we
ever had any classes together . . . but just like having little
conversations with him.” She responded that she did not know Mays
“outside of school or anything like that.” She also confirmed that she
had honestly responded during voir dire that she could be fair and
impartial in this case. When Jackson’s counsel asked Juror Number
22 why she had “hesitated” when answering the trial court’s
question about being fair and impartial, she responded:
Well at first I said I didn’t know, but he told me that he
needed me to be more specific on if I could do it or not, and
I just told him that I could, it’s just I know I’m an
emotional person on anything, so it’s just – that was just
my issue, it’s not basically as if I’m knowing him or I feel
anybody’s wrong, it’s just seeing different stuff, it’s just
like – it just makes me emotional, because I remember
when he was like that you will see like wounds and gun
wounds and all that, like it just automatically makes me
3 Voir dire was not transcribed by a court reporter. However, it appears
from other parts of the record that Juror Number 22 did disclose that she knew
the victim. When the trial court announced Juror Number 22’s later question
to the bailiff, the prosecutor responded that he had asked the potential juror
during voir dire if she could be fair and impartial, to which she had presumably
responded yes.
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emotional about it.
The trial court denied Jackson’s motion to remove her from the jury
at that point, finding “there’s been no bias that’s been proved.”
After the first day of trial, Juror Number 22 sent an email to
the trial court and the clerk, and the court spoke with her again on
the record. Juror Number 22 explained that she had gone to school
with many of the witnesses who had testified the first day, that she
had dated Flowers’s brother, and that she did not “feel safe having
anything to do with this case.” She responded that she did not feel
she could remain impartial, given the circumstances. The trial court
confirmed that Juror Number 22 had not talked about her concerns
with any of the other jurors and then granted Jackson’s motion to
remove her as a juror; an alternate became the twelfth juror.
Jackson contends that the trial court erred by failing to remove
Juror Number 22 for cause after his motion even though the record
shows that Juror Number 22 was ultimately excused. 4 In the similar
4 Jackson mistakenly states in his appellate brief that Juror Number 22
sat on the jury through the conclusion of the trial.
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situation in which a trial court refused to remove a juror for cause
and the defendant then exercised a peremptory strike on the
challenged juror, we held that the defendant must show harm to
prevail on his claim that the challenged juror should have been
removed for cause. See Willis v. State, 304 Ga. 686, 707 (11) (a) (820
SE2d 640) (2018) (overruling cases which had held that “causing a
defendant to unnecessarily use a peremptory strike on a juror that
should have been excused for cause is per se harmful error”). In that
context, we explained that harm resulting from the denial of a
request to excuse a juror for cause is shown by demonstrating that
one of the challenged jurors who served on the jury was unqualified.
See id. Here, Jackson ultimately obtained the relief that he
requested from the trial court – that the juror be excused for cause.
Thus, Jackson cannot demonstrate any harm from the trial court’s
initial failure to excuse Juror Number 22, and his claim fails. See id.Judgment affirmed. All the Justices concur.
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