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
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.
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.
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
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
Mirandarights - and Jackson provided no insight
into Ray's death, even lying about living in the same
neighborhood. The DNA match was later confirmed.
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.
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).
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. 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).
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).
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
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). 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.
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.
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.
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),  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.
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 ...