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 opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 16, 2023
S23A0084. JONES v. THE STATE.
PINSON, Justice.
Bryan Jones was convicted of felony murder and other offenses
in connection with a shooting that killed Dorian Drewery and
injured Joshua Childs. 1 Jones now appeals, contending that (1) the
trial court erred in giving a jury instruction on other-acts evidence
Jones was indicted in June 2018 by a DeKalb County grand jury for
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malice murder, felony murder, two counts of aggravated assault (one count as
to Drewery and one count as to Childs), and one count of possession of a firearm
during the commission of a felony. At the conclusion of a jury trial held
September 23 to 27, 2019, Jones was acquitted of malice murder but found
guilty on all remaining counts. Jones was sentenced on October 3, 2019 to life
in prison without the possibility of parole for the felony murder count, plus a
consecutive 20-year term for the aggravated assault of Childs and a
consecutive 5-year term for the firearm-possession count. The remaining
aggravated assault count merged into the felony murder count for sentencing
purposes. Through new counsel, Jones filed a timely motion for new trial on
November 1, 2019, which was amended on April 1, 2022. Following a hearing,
the trial court denied the motion on June 8, 2022. Jones filed a timely notice of
appeal on July 6, 2022. The appeal was docketed to the term of this Court
beginning in December 2022 and was thereafter submitted for a decision on
the briefs.
under OCGA § 24-4-404 (b) when no such evidence was admitted at
trial; and (2) trial counsel rendered constitutionally ineffective
assistance in (a) agreeing to a stipulation that prejudiced Jones’s
defense and (b) failing to request a jury instruction on voluntary
manslaughter. But the trial court’s error in giving the other-acts
jury instruction was harmless: among other things, the court
omitted that oral instruction from the written instructions sent back
with the jury; it properly instructed that other acts could be
considered only if it was more likely than not that Jones had
committed them, and because there was no evidence of such other
acts, the jury could not have made that finding; and in any event,
the instruction had little relevance to the central question of
whether Jones’s use of deadly force was justified under the
circumstances. As for the ineffective-assistance claims, the record
shows that trial counsel’s decision to agree to the stipulation was the
product of a reasonable strategic effort to prevent the State from
offering potentially “devastating” rebuttal evidence. Similarly,
counsel’s decision not to request a jury instruction on voluntary
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manslaughter was reasonable given Jones’s desire to present an “all
or nothing” justification defense and the fact that the evidence
supporting voluntary manslaughter was thin. So Jones has failed to
establish trial error or ineffective assistance, and we therefore
affirm his convictions and sentences.
1. Drewery was shot and killed on the evening of March 17,
2018, at a gas station in Lithonia. It is undisputed that Jones was
the shooter, and the central question in the case was whether the
shooting was a justifiable act of self-defense.
The evidence at trial showed that Jones and Drewery were
both bikers who frequented that particular gas station, which was a
popular hangout for bikers and the site of two past altercations
between the two men. The first happened around two weeks before
the shooting: the men argued and shouted obscenities at each other,
and as Jones prepared to drive away, Drewery smacked Jones. A
witness to that incident testified that he heard Jones say to
Drewery, “[I]f I do something to you, I’m going to make sure that
you’re never seen again.”
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The second incident happened on the afternoon of the shooting,
when the men again got into an argument. A witness to that incident
testified that he saw Jones and Drewery arguing with each other
and then, as Jones walked away from Drewery, Jones said, “let me
go cover myself. I’m going to go shoot this n****.”
Afterwards, Jones and Drewery approached the gas station
security officer—off-duty DeKalb County police officer Marcus
Brooks—about their altercation. Drewery told Officer Brooks that
Jones had threatened to kill him, while Jones reported that he and
Drewery had been having “an ongoing problem” related to
“motorcycle rage” and that Drewery had recently slapped and
threatened him. Officer Brooks wrote up a police report for both men
for terroristic threats and told them to leave. Jones asked Officer
Brooks to escort him to his bike because he was scared, but Officer
Brooks declined.
The shooting happened around 8:30 p.m. that night. A group of
bikers had gathered at the gas station, and Jones and Drewery both
showed up. At some point, the men began arguing, and the
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argument ended with Jones shooting Drewery. Drewery was shot
four times: once in the back of his head, twice in his back, and once
in his buttocks. Childs, a bystander, was shot once in the leg.
Eyewitnesses gave mostly similar accounts of the shooting, but
they varied in certain respects. Witness Maurice Bonner testified
that on the night of the shooting, he was at the gas station talking
to Drewery when he saw Jones. Drewery said, “[T]here’s that b***h
mother f**ker right there, he’s always running his mouth.” Witness
Titus Rumph, who was standing with Bonner at the time, testified
that Jones made an obscene gesture to Drewery. Both Bonner and
Rumph testified that Drewery turned to Jones, and they began
“trash talking.”
Bonner testified that Drewery called Jones “a punk” and “a
b***h,” taunting that Jones was scared. Jones responded, “[D]o I
look like I’m scared?” while raising his arms, revealing a gun in his
waist belt. Jones, who had been headed toward the gas station’s
convenience store, turned and started walking back toward his bike.
Drewery continued the taunts, saying “[Y]ou’re scared, that’s why
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you’re way over there. And if you ain’t scared, we can do something
now.” Drewery started walking quickly toward Jones, still calling
him names. Bonner did not see a gun on Drewery, but he “figured
[Drewery] was going to try to hurt [Jones].” Jones turned toward
Drewery, and then Bonner heard the gunshots. He estimated the
men were 10 to 15 feet apart at the time.
Bonner also testified, on cross-examination, about a
confrontation he saw at the same gas station in May 2017 between
Drewery and a man named Joshua Booth, which began with “trash
talking” and escalated into pushing. Booth pulled out a knife, and
Drewery either pulled out or was handed a gun. Ultimately the
situation was diffused. Bonner also testified that Drewery was
“known to get violent.”
Witness Cornell Keith testified that he too was at the gas
station and heard someone say, “I have these hands for you,” which
got his attention. Keith turned to see Jones backing up, as if
retreating, and Drewery walking toward him “in a boxing stance.”
Keith saw Jones stop and pull out his gun; Jones did not rack the
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gun, fire warning shots, or tell Drewery to back up before firing.
Witness James Grimsley testified that he saw Drewery
walking toward Jones at a normal pace, with his hands open, and
then saw Jones pull the gun out when the men were about five feet
from one another. Drewery turned around to run, and then Jones
began firing the gun. Afterward, Jones walked calmly to his bike.
Childs testified that he saw Jones arrive and make eye contact
with Drewery. At some point, Childs saw the men “coming towards
each other” and then heard gunshots. He was knocked to the ground
by others who were diving down to avoid the shots, and then realized
he had been shot in the leg.
Officer Brooks testified that he was inside the gas station when
the shooting happened. He ran outside and approached Jones, who
said, “[H]e charged at me.” Officer Brooks arrested Jones and took
his gun; Jones was calm and compliant. Video footage from Officer
Brooks’s body camera showed that, as Jones was being detained and
handcuffed, Jones said Drewery had threatened him and “assaulted”
him in the past. Officer Brooks testified that no weapons were found
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on Drewery’s body.
The GBI firearms examiner testified that all the cartridge
casings, bullets, and metal jacket fragments collected at the scene
had been shot from Jones’s gun. The medical examiner testified that
no soot or stippling appeared on Drewery’s clothes, meaning that the
gun had been fired from an “intermediate or distant range.”
After the State rested, Jones’s counsel read to the jury a
stipulation, prepared by the defense and agreed to by the
prosecution, about the May 2017 incident between Drewery and
Booth. The stipulation stated:
One: Zachary Wallace is a person who was involved in the
motorcycle scene and knew both Bryan Jones and Dorian
Drewery prior to March 17th, 2018.
Two: Zachary Wallace did not witness the incident at
issue where Dorian Drewery was shot on March 17th,
2018.
Three: Zachary Wallace did witness an incident on May
29th, 2017 involving Joshua Booth and Dorian Drewery
via Facebook live. Zachary Wallace saw the two parties
arguing back and forth. He witnessed Joshua Booth with
a knife. He witnessed Dorian Drewery with a gun. Dorian
Drewery was making verbal threats to Joshua Booth.
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Four: On a telephone conversation, Zachary Wallace told
Bryan Jones what Zachary Wallace witnessed via
Facebook Live. Joshua Booth with a knife and Dorian
Drewery with a gun. Dorian Drewery was making verbal
threats to Joshua Booth.
Five: During the same telephone conversation between
Bryan Jones and Zachary Wallace, Bryan Jones told
Zachary Wallace a) I’m not fixing to let nobody just be
punking me and slapping me; b) if he approaches me,
threatens me, if he comes to me again like he is going to
try and fight me, slap me, or whatever, then I’m going to
shoot. I am going to protect myself.
The defense presented no other evidence.
2. Jones contends that the trial court erred by instructing the
jury on evidence of “other acts” admitted under OCGA § 24-4-404 (b)
(“Rule 404 (b)”)2. Before trial, the State served notice of its intent to
offer Rule 404 (b) evidence in the form of pending criminal charges
against Jones arising out of an alleged “road rage” incident. The trial
court later ruled that the State could offer this evidence solely for
the purpose of showing intent, knowledge, and absence of mistake.
2 Under that Code section, “[e]vidence of other crimes, wrongs, or acts
shall not be admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other
purposes, including, but not limited to, proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
9
At trial, the State did not present the Rule 404 (b) evidence during
its case-in-chief but considered presenting it during rebuttal, and
during the charge conference, the Rule 404 (b) language was
tentatively agreed to. Ultimately, the State did not present any
rebuttal evidence, but the 404 (b) language was not removed from
the jury charge. Thus, the trial court’s instructions to the jury
included that instruction, which began by saying, “[T]he State has
offered evidence of other crimes allegedly committed by the accused
. . .”3 Although Jones’s counsel objected after the court gave the
3 The relevant portion of the charge reads as follows:
In order to prove its case in Counts One through Five, the State
must show knowledge and intent and must negate or disprove
mistake. To do this, the State has offered evidence of other crimes
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 from such evidence that
the defendant is of character that would commit such crimes. The
evidence may be considered only to the extent that it may show the
elements of [sic] the State is required to prove of the crimes
charged in the case now on trial. Such evidence, if any, may not be
considered by you for any other purpose.
The defendant is on trial for the offense charged in this bill of
indictment only and not for any other acts. Before you may
consider any other alleged acts for the limited purpose stated, you
must first determine whether it is more likely than not that the
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instructions and asked for a curative instruction—and the State
agreed—the trial court declined to give one, instead opting to delete
the erroneous instruction from the written instructions sent back
with the jury.
There is no question that the Rule 404 (b) portion of this
instruction should not have been given, because the State did not
present any evidence of alleged other crimes committed by Jones.
See Rammage v. State, 307 Ga. 763, 767 (4) (838 SE2d 249) (2020)
(“‘There must be at least slight evidence produced at trial to
authorize a jury instruction.’”) (citation omitted). The question is
whether this undisputed error was harmless or not.
“Even when we find error in a jury charge, we will not reverse
accused committed the other alleged acts. If so, you must then
determine whether the acts shed any light on the elements of the
offense for which the act was admitted in the crimes charged in the
indictment in this trial.
Remember to keep in mind the limited use and the prohibited use
of this evidence about other acts of the defendant.
By giving this instruction, the Court in no way suggest [sic] to you
that the defendant has or has not committed any other acts, nor
whether any such acts, if committed, prove anything. This is solely
a matter for your determination.
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when the error is harmless, that is, when it is highly probable that
the instruction did not contribute to the verdict.” Jones v. State, 302
Ga. 892, 897 (3) (810 SE2d 140) (2018) (citation and punctuation
omitted). Accord Middleton v. State, 310 Ga. 365, 370 (3) (850 SE2d
126) (2020). To figure out whether an instructional error was
harmless, we assess it in the context of the instructions as a whole.
See Jones, 302 Ga. at 897 (3) (assessing effect of arguably misleading
instruction by reference to jury instructions in their totality). See
also Johnson v. State, 312 Ga. 481, 490 (3) (863 SE2d 137) (2021)
(noting that, in determining the impact of a challenged instruction,
“we do not evaluate jury charges in isolation, but rather consider
them as a whole”) (citation and punctuation omitted). And as with
other trial errors, in assessing harm “we review the record de novo,
and we weigh the evidence as we would expect reasonable jurors to
have done so.” Middleton, 310 Ga. at 370 (3).
Under these standards, the instructional error here was
harmless. First, the oral instructions told the jury it could consider
evidence of other alleged crimes only if it found it more likely than
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not that Jones committed such other crimes. Given that the State
actually presented no evidence of other crimes, the jury could not
have made the finding necessary to permit its consideration of any
other alleged crimes. Nor is there any indication from the record that
the jury was confused, either by the difference between the oral and
written instructions or by the language of the other-acts instruction
itself.
Further, the other-acts instruction had little to do with the
case’s central question, which was whether the shooting was a
justifiable act of self-defense. The jury was correctly instructed that
it could find that Jones was justified in using deadly force only if he
“reasonably believe[d] that such force [was] necessary to prevent
death or great bodily injury to himself or a third person, or to
prevent the commission of a forcible felony.” See OCGA § 16-3-21
(a). It is not at all clear how a suggestion from the mistaken oral
instruction that Jones had committed some undefined past crimes
would have had any bearing on whether, at the time of the shooting,
Jones reasonably believed that it was necessary to shoot Drewery in
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order to protect himself from grave or mortal harm. See Lewis v.
State, 291 Ga. 273, 278-279 (4) (731 SE2d 51) (2012) (giving of
improper jury charge on reliability of eyewitness testimony was
harmless given that eyewitness identification “did not play a
significant role in the State’s case”).
Finally, the evidence against Jones was quite strong: it was
undisputed that he shot the unarmed Drewery, without warning,
from a distance of several feet, in the back. So any confusion over
the oral instruction’s possible implication that Jones had committed
some unknown past crimes was unlikely to have affected the jury’s
determination on Jones’s guilt of the crimes against Drewery. See
Jones, 302 Ga. at 897-898 (3) (any error in particular instruction was
harmless within context of jury charge as a whole and in light of
“very strong” evidence of defendant’s guilt).
For all of these reasons, we conclude that it is highly probable
that the instructional error here did not contribute to the verdicts.
3. Jones next contends that his trial counsel rendered
constitutionally ineffective assistance in two respects. To succeed on
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a claim of ineffective assistance, a defendant must establish both
that his counsel’s performance was deficient and that he was
prejudiced as a result of that deficient performance. See Washington
v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022) (citing
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
674) (1984)).
To prove deficient performance, a defendant must establish
that counsel “performed his duties in an objectively unreasonable
way, considering all the circumstances and in the light of prevailing
professional norms.” Washington, 313 Ga. at 773 (3) (citation and
punctuation omitted). To overcome the “strong presumption” that
counsel performed reasonably, the defendant must show that “no
reasonable lawyer would have done what his lawyer did, or would
have failed to do what his lawyer did not.” Id. (citation and
punctuation omitted). To prove prejudice, a defendant must
establish that there is a “reasonable probability that, but for
counsel’s deficiency, the result of the trial would have been
different.” Id. A reasonable probability is a probability “sufficient to
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undermine confidence in the outcome” of the trial. Neal v. State, 313
Ga. 746, 751 (3) (873 SE2d 209) (2022) (citation and punctuation
omitted). An ineffective-assistance claim fails if the defendant fails
to establish either deficient performance or prejudice. See
Washington, 313 Ga. at 773 (3).
In reviewing a trial court’s ruling on an ineffective-assistance
claim, we accept the trial court’s factual findings and credibility
determinations unless they are clearly erroneous, but we
independently apply the relevant legal principles to the facts. See
Sullivan v. State, 301 Ga. 37, 40 (2) (799 SE2d 163) (2017).
(a) Jones first contends that his counsel rendered ineffective
assistance by agreeing to the stipulation about Zachary Wallace’s
account of Drewery’s encounter with Joshua Booth. Jones contends
that by stipulating that Jones told Wallace he “was going to shoot”
if Drewery approached, threatened, or tried to fight him, trial
counsel needlessly put forth evidence that undercut his defense by
suggesting he was primed to shoot Drewery, whether justified or
not.
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At the motion for new trial hearing, Jones’s trial counsel
testified that entering into the stipulation was a strategic decision
intended to avoid putting up any witnesses. That prevented the
State from offering rebuttal evidence of the road rage incident,
which counsel believed would have been “devastating” to the
defense.4 Counsel testified that he and his co-counsel drafted the
stipulation to include what they believed their witnesses would
otherwise testify to. As to the part of the stipulation about Jones’s
“I’m going to shoot” statement, counsel testified that he believed
“that was the language we expected to come out, whether we called
a live witness or . . . did it through a stipulation.” He also testified
that at the time he believed the impact of that evidence would have
been mitigated to some degree by the fact that Jones’s statement
was made almost a year before the shooting. In denying Jones’s
4 The gist of this evidence was that, around seven months before
Drewery’s shooting, Jones intentionally rammed his truck into the back of
another vehicle and tried to run it off the road while brandishing a gun,
ultimately causing an accident. According to the prosecutor, “at least” five
witnesses would testify that Jones was “the aggressor” in the incident. At the
time of the crimes here, Jones had been indicted for aggravated assault in
connection with the road rage incident and had been released on bond.
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motion for new trial, the trial court credited counsel’s testimony and
concluded that the decision to enter into the stipulation was
reasonable trial strategy.
We see no clear error in the trial court’s crediting of counsel’s
testimony, and we conclude, as the trial court did, that agreeing to
the stipulation was an objectively reasonable strategic decision by
counsel. Counsel determined that it was important to highlight for
the jury both that Drewery had brandished a gun in a past dispute
related to “the motorcycle scene” and that Jones was aware of that
incident. 5 Counsel determined that it would help Jones to do this
through a stipulation rather than live testimony, because it would
prevent the State from offering its “devastating” rebuttal evidence,
and he surmised that to get the State to agree, the stipulation would
have to include Wallace’s expected testimony in its entirety. We
cannot say that no reasonable attorney would have made these
determinations, and thus the decision to agree to the stipulation did
5 While Jones contends that Wallace’s testimony was unnecessary
because Bonner had already testified about Drewery’s altercation with Booth,
Bonner did not testify that Jones knew about the incident.
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not amount to deficient performance. See, e.g., Broxton v. State, 306
Ga. 127, 135 (2) (829 SE2d 333) (2019) (trial counsel’s agreement to
stipulation that defendant was a gang member, intended to bolster
defendant’s credibility and prevent jury from focusing on issues not
relevant to defense theory, was reasonable trial strategy); Norman
v. State, 303 Ga. 635, 639 (2) (814 SE2d 401) (2018) (trial counsel’s
agreement to stipulation, intended to prevent State from presenting
same evidence through multiple witnesses, was “eminently
reasonable” and did not offer a basis for an ineffective assistance
claim). So this claim of ineffective assistance fails.
(b) Jones also contends that trial counsel rendered ineffective
assistance in failing to ask for a jury instruction on voluntary
manslaughter.
Trial counsel testified at the motion-for-new-trial hearing that,
although he had considered requesting a voluntary manslaughter
instruction, Jones “always made it very clear” that he had acted in
self-defense and without any criminal intent. So counsel deferred to
Jones’s preference to pursue an “all or nothing” approach. The trial
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court credited counsel’s testimony and concluded that this decision
amounted to reasonable trial strategy.
We agree. Some evidence supported Jones’s self-defense claim,
including testimony that Drewery advanced on Jones after the
“trash-talking” began, as well as evidence of the parties’ past
altercations and Jones’s expression of fear earlier that day after his
run-in with Drewery. By contrast, it is questionable whether the
evidence supported an instruction on voluntary manslaughter,
because “words alone, regardless of whether they are highly
insulting, will not justify the excitement of such passion so as to
reduce the crime of murder to the lesser offense of voluntary
manslaughter.” Barron v. State, 297 Ga. 706, 708 (2) (777 SE2d 435)
(2015). And even assuming there was the “slight” evidence necessary
to support a voluntary-manslaughter instruction, see Hatney v.
State, 308 Ga. 438, 441 (2) (841 SE2d 702) (2020), it was not
objectively unreasonable for counsel to conclude that presenting
that theory would undermine Jones’s self-defense claim. See Velasco
v. State, 306 Ga. 888, 893-894 (3) (b) (834 SE2d 21) (2019) (holding
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that “[t]rial counsel did not act unreasonably in deciding to pursue
only a defense that was consistent with Appellant’s claim of selfdefense,” noting not only “the lack of evidence supporting a
voluntary manslaughter charge” but also “the general inconsistency
between self-defense and voluntary manslaughter claims”).
Counsel’s choice was reasonable, see id., and so this claim of
ineffective assistance fails, too.
Judgment affirmed. All the Justices concur.
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