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Jackson v. State

Supreme Court of Georgia

June 24, 2019

JACKSON
v.
THE STATE.

          BENHAM, JUSTICE

         Torico Jackson appeals his convictions for malice murder and related offenses in connection with the stabbing death of John Ray. On appeal, Jackson claims that the trial court erred by failing to instruct the jury on the applicable statute of limitation for the relevant non-murder offenses, by admitting certain police reports, and by denying his motion for a mistrial; Jackson also asserts that trial counsel rendered constitutionally ineffective assistance in a number of ways. Although we find no reversible error with respect to Jackson's convictions, we determine that he has been improperly sentenced in part, and, as such, we vacate his sentence in relevant part and remand for resentencing.[1]

         Viewed in a light most favorable to the verdicts, the evidence adduced at trial established as follows. On the day he was last seen alive, Ray, a paralegal, spoke with a friend by telephone and indicated that he was at home in the company of an unnamed man, later identified as Jackson. Ray explained to his friend that, though he had been spending time with Jackson recently, a background check had revealed, among other things, that Jackson had a criminal history. Later that day, Ray spent time socializing with friends and was scheduled to help a soon-to-be roommate service her vehicle; Ray, however, did not arrive to help his future roommate and was never heard from again.

         In the early morning hours of the following day, an officer with the Atlanta Police Department observed a white Pontiac Grand Am - later identified as belonging to Ray - run a stop sign. The officer attempted to initiate a traffic stop, but the vehicle fled and subsequently crashed. When law enforcement discovered the wrecked vehicle, it was unoccupied; the car was covered in blood and the backseat was filled with property later identified as belonging to Ray, including electronics and a lockbox. The car was impounded, and swabs of the blood were sent for DNA testing.

         Days later, Ray was discovered dead in his residence, which had been secured and alarmed; he had been stabbed to death, and his hands were bound behind him with telephone cord. The crime scene smelled of bleach, and the washing machine held recently-laundered clothing, including a red, oversized Rocawear shirt. Investigators discovered blood in the bathroom where the assailant had apparently bathed. A search of Ray's computer revealed that he had conducted self-initiated background checks on a number of individuals, including Jackson, but there were no immediate leads in the case. The DNA from the blood in Ray's car did not immediately match a known individual, and, as a consequence, the case went cold; the DNA profile was entered into the Combined DNA Index System ("CODIS") on the chance that the DNA could be matched in the future to a known sample. Two years later, in 2006, CODIS preliminarily matched Jackson's DNA to the blood discovered in the wrecked Pontiac.

         In 2010, a detective revisited Ray's unsolved murder, reviewing evidence in the case and working to confirm the preliminary DNA match. A review of Ray's telephone records revealed that, around the time of the murder, phone calls were made between Ray's telephone and individuals who were acquainted with Jackson but not Ray. The cold-case detective also uncovered a photograph of Jackson amongst Ray's possessions; it was timestamped just two days before the murder. The investigation also led the detective to gather photographs of Jackson, and, in a photograph taken just two months before the murder, Jackson is depicted wearing a red, oversized Rocawear shirt, like the one found in Ray's washing machine. The cold-case detective learned that Jackson had told his girlfriend that a scar on his nose came from an accident in which he had flipped a car. Fulton County booking photographs of Jackson reveal that he must have sustained the injury sometime between March 24, 2004, and June 20, 2004; Ray was murdered and his car wrecked in May 2004. Finally, pursuant to GBI requirements, on June 20, 2011, the investigator obtained a DNA sample from Jackson to confirm the preliminary match. While taking the sample, investigators spoke with Jackson - after he waived his Miranda[2]rights - and Jackson provided no insight into Ray's death, even lying about living in the same neighborhood. The DNA match was later confirmed.

         At trial, Jackson did not dispute that he had killed Ray. Instead, Jackson asserted that he acted in self-defense. The defense theory was that the two men were romantically involved and that they fought after Ray confronted Jackson with his criminal background and then Ray disclosed his HIV-positive status. According to the defense, Ray struck Jackson with a vodka bottle, and Jackson grabbed a kitchen knife to defend himself. The defense asserted that Jackson panicked and, knowing that Ray's house had been burglarized numerous times, staged the scene to make it appear as if the murder had occurred during a robbery. The defense explained at trial that the laundry, bleaching, and bathing was a result of Jackson's attempt to limit his exposure to HIV.

         1. Though not raised by Jackson as error, in accordance with this Court's standard practice in appeals of murder cases, we have reviewed the record and find that the evidence, as summarized above, was sufficient to enable a rational trier of fact to find Jackson guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Jackson first argues that there was a fact question as to whether three of the non-homicide counts in the indictment (armed robbery, burglary, and possession of a knife during the commission of a felony) were timely prosecuted, and, thus, that the jury should have been given relevant instructions on the statute of limitation and its tolling.[3] As Jackson acknowledges, there was no request for such an instruction, so this enumeration is reviewed for plain error. See OCGA § 17-8-58 (b).

         To establish plain error with respect to jury instructions, Jackson "must demonstrate that 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." Hood v. State, 303 Ga. 420, 425 (811 S.E.2d 392) (2018). "Satisfying all four prongs of this standard is difficult, as it should be." (Citation and punctuation omitted.) State v. Kelly, 290 Ga. 29, 32-33 (718 S.E.2d 232) (2011).

         "In criminal cases, the statute of limitation[] runs . . . from the time of the criminal act to the time of indictment." Hall v. Hopper, 234 Ga. 625, 626 (1) (216 S.E.2d 839) (1975). "[W]here an exception is relied upon to prevent the bar of the statute of limitation[], it must be alleged and proved." Hollingsworth v. State, 7 Ga.App. 16, 16 (65 S.E.2d 1077) (1909). Indeed, the State bears the burden at trial "to prove that a crime occurred within the statute of limitation, or, if an exception to the statute is alleged, to prove that the case properly falls within the exception." (Punctuation and citations omitted) Jenkins v. State, 278 Ga. 598, 604 n.31 (604 S.E.2d 789) (2004). Where a claim of instructional error is made, we examine the jury charge as a whole. See Woodard v. State, 296 Ga. 803 (771 S.E.2d 362) (2015).

         Here, as to each non-murder count of the indictment, the State alleged, as an exception to the relevant limitation period, that Jackson's "identity . . . was unknown to the State of Georgia until June 20, 2011." See OCGA § 17-3-2 (2).[4] The gravamen of Jackson's argument is that, in the absence of an instruction, the jury would not have known about the State's burden with respect to the statute of limitation. According to Jackson, the trial court should have instructed the jury to consider "whether the State proved that the identity of the person who committed the crime was unknown until June 20, 2011, as averred in the indictment." While the trial court did not specifically instruct the jury on the statute of limitation each count of the indictment was read to the jury, and the jury was instructed to "consider each count in the indictment separately" and that the State was required to "prove every material allegation in each count and every element of the crime charged beyond a reasonable doubt for each count." (Emphasis supplied.) See McLane v. State, 4 Ga. 334, 342 (1848) (explaining that an exception to the statute of limitation is a material allegation that must be alleged in an indictment). The indictment was also sent back with the jury following the charge, and the jury was instructed that its deliberation could not commence until it received the indictment and other evidence. We must presume the jury followed the trial court's instruction. See Allen v. State, 277 Ga. 502 (3) (c) (591 S.E.2d 784) (2004). Jackson cites no precedent requiring a more detailed instruction on the statute of limitation or the applicable tolling exception. See State v. Herrera-Bustamante, 304 Ga. 259, 264 (272 S.E.2d 552) (2018) (recognizing that "[a]n error cannot be plain where there is no controlling authority on point" (citation and punctuation omitted)). Under these circumstances, we cannot say that the trial court's failure to specifically instruct the jury on the relevant statute of limitation or tolling amounts to "clear and obvious error." Kelly, 290 Ga. at 34.

         3. Jackson next contends that the trial court erroneously permitted the State to adduce police reports concerning two prior burglaries at Ray's residence. According to Jackson, the reports were irrelevant, were inadmissible hearsay, and were offered through a witness who had no personal knowledge about either incident. Jackson also complains that the State used the reports to somehow connect him to the earlier incidents and to bolster its theory that Ray was not killed in self-defense.

         We agree with the State, however, that any error with respect to the admission of these police reports was harmless. The evidence connecting Jackson to Ray's murder was significant; further, the jury was aware that Jackson was incarcerated at the time of one burglary (and, thus, could not have been involved), and the jury also learned that Ray himself believed that Jackson played no role in the other burglary. Accordingly, there is no reversible error.

         4. Jackson next argues that the trial court erred when it failed to grant his motion for a mistrial following "repeated" testimony concerning Jackson's failure to come forward with information about the murder. Specifically, Jackson argues that the testimony violated Mallory v. State, 261 Ga. 625 (409 S.E.2d 839) (1991), [5] as well as Jackson's rights under the Fifth Amendment to the United States Constitution and his right against self-incrimination under the Georgia Constitution. This argument is not preserved.

         During the State's re-direct examination of an investigating detective, the following exchange occurred:

Q. [D]id this defendant once ever come to you and say, "I killed John Ray in self-defense?"
A. No, ma'am.
Q. Had he come to you back in 2004 and said, "It was me. I'm the one you are ...

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