Ashley Lyndol Jones, 23, was
sentenced to death in June 1995 in Coffee County.
On March 31, 1993, in
Ware County, Mr. Jones and co-defendant Allen Brunner were drinking and
driving in a stolen vehicle when it developed car trouble. Mr. Jones
knocked on the door at Carlton Keith Holland's home and asked for help.
As Mr. Holland, 39, leaned over the engine and his wife watched through
the window, Mr. Jones slammed a wrench and later a sledgehammer on Mr.
Mr. Brunner was sentenced to life without parole. In
March, the state Supreme Court affirmed Mr. Jones' conviction and death
(267 Ga. 592)
(481 SE2d 821)
Murder. Coffee Superior Court. Before Judge Blount.
Ashley Jones was convicted of the malice murder
of Keith Holland and also felony murder, armed robbery, theft by
taking a motor vehicle, and misdemeanor theft by taking.
1 The jury recommended the death
penalty, finding the following aggravating circumstances: the murder
was committed during the commission of an armed robbery; and the
murder was outrageously and wantonly vile, horrible and inhuman in
that it involved torture, depravity of mind, or aggravated battery
to the victim. 2 The trial court
sentenced Jones to death and Jones appeals. We affirm.
The jury was authorized to find that Jones and
his co-defendant, Allen Bunner, 3
began the crime spree which led to the death of Keith Holland on the
night before the murder, when they stole four cases of beer from a
convenience store in Ware County. The co-defendants fled in an
automobile with three other companions, who were waiting for them
outside the store. The group spent the remainder of the night
driving around aimlessly and drinking the stolen beer, until their
car broke down, and Jones and Bunner left the others, stating they
were going to find a truck.
The co-defendants stole a Ford truck, belonging
to Rudolph Melton, which was parked in front of Melton's residence.
After driving around for several more hours in the stolen truck,
they arrived at the home of the victim, Keith Holland.
Bunner knocked on Holland's front door at
approximately 5:00 a.m. and asked Holland's wife Mamie for
assistance, on the pretext that the truck's battery was dead. Mamie
Holland woke her husband, and he went outside to assist Bunner. As
Holland was leaning over to look in the engine compartment of the
truck, Jones struck him in the head from behind with a sledge hammer.
Mamie Holland witnessed the first blow from her
dining room window and reacted by screaming for Jones to stop and by
banging on the window. Jones turned and looked at her but continued
to pound the victim, inflicting at least six blows to the head and
face, all of which were potentially fatal. Prior to leaving in the
victim's truck, Jones got out of the vehicle and hit the victim
again, while he was lying on the ground. EMS workers arrived within
minutes after the co-defendants' departure. Because of the injuries
to the victim's face, EMS workers were unable to perform CPR or
intubate the victim, and he died before reaching the hospital.
Jones and Bunner drove to Florida in the victim's
truck. They tossed Holland's personal belongings out of the truck
along the way, and pawned two chain saws belonging to Melton. Police
learned of their whereabouts through telephone calls made by the
codefendants to a friend in Georgia, and they were arrested at a
welcome station south of the Georgia-Florida line. The victim's
truck, which Jones and Bunner had burned, was found in the woods a
short distance away.
The evidence was sufficient to enable rational
jurors to find Jones guilty beyond a reasonable doubt of the crimes
for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99
SC 2781, 61 LE2d 560) (1979).
1. Jones contends that the trial court erred in
denying his motion for a second change of venue. Pursuant to Jones'
first motion for change of venue, his trial was moved to Coffee
County. On the first day of voir dire, the jurors were divided into
panels of 12, and after the first juror was called, the remaining 11
jurors were placed in the same jury room. In response to preliminary
questioning by the trial court, prospective juror number eight,
Michael Maxwell, stated that he had opined to the other prospective
jurors in the jury room that Jones was guilty, and many of the other
jurors in the room had also expressed their opinions regarding Jones'
guilt. Jones moved to disqualify Maxwell, moved for a mistrial, and
renewed his motion for change of venue. The trial court denied Jones'
motions for mistrial and change of venue but granted Jones' requests
to disqualify Maxwell and to re-examine the jurors who had been
questioned before Maxwell. The trial court also instructed the
jurors not to discuss the case among themselves.
(a) Jones contends that the trial court erred in
denying his motion for change of venue under Jones v. State,
261 Ga. 665 (409 SE2d 642) (1991). To
justify a change of venue under Jones, a defendant must show either
that the trial setting was inherently prejudicial as a result of
pretrial publicity, or actual bias on the part of the individual
jurors. See Fugate v. State, 263 Ga. 260 (7)
(431 SE2d 104) (1993). Jones does not allege that the trial
setting in Coffee County was inherently prejudicial. With regard to
the prejudice of individual jurors, Jones offers no proof that a
high percentage of jurors had prior knowledge or had formed opinions
about the case, based on what they had read or heard, or that there
was a relatively high excusal rate. See Woodbury v. State,
264 Ga. 31 (2) (440 SE2d 461) (1994);
Childs v. State, 257 Ga. 243 (2) (357 SE2d
48) (1987); Chancey v. State, 256 Ga.
415 (5) (349 SE2d 717) (1986). Absent proof of factors such
as these, Jones was not entitled to a change of venue, and therefore
the trial court did not abuse its discretion by refusing to grant
the motion. Id.
(b) Jones contends that the trial court abused
its discretion in denying his motion for mistrial as a result of
prospective juror Maxwell's allegations that the jurors in his jury
room expressed opinions regarding Jones' guilt. Jones thus asserts
that the jury pool was tainted. At the time of Jones' motion, the
only suggestion that the jury was tainted came from Maxwell. The
trial court, in response to Maxwell's allegations, immediately took
remedial measures to protect Jones' rights by disqualifying Maxwell,
allowing Jones to reexamine the other jurors, who had previously
been qualified, and instructing the jurors not to discuss the case
among themselves. See, e.g., Rogers v. State,
256 Ga. 139 (2) (344 SE2d 644) (1986); Parker v. State,
255 Ga. 167 (3) (336 SE2d 242) (1985).
Only three of the jurors who were in the jury room at the time the
improper comments were made were qualified for the jury panel. These
jurors stated they had formed no fixed opinion regarding Jones'
guilt or innocence and could decide the case on the evidence
presented at trial and the instructions of the trial court. Norton
v. State, 263 Ga. 448 (435 SE2d 30) (1993).
Jones did not move to disqualify these jurors.
The granting of a motion for mistrial is within
the discretion of the trial court, and the trial court's ruling will
not be disturbed on appeal unless a mistrial is required to preserve
Jones' right to a fair trial. Cowards v. State,
266 Ga. 191 (3) (465 SE2d 677) (1996).
Absent evidence to the contrary, we find the remedial measures taken
by the trial court were sufficient to ensure that Jones received a
fair trial, and the trial court did not abuse its discretion in
denying Jones' motion.
2. Jones contends that the trial court erred in
denying his motion for mistrial based on improper "victim impact"
testimony, given by the victim's wife, Mamie Holland, during the
sentencing phase of trial. Jones particularly objects to what he
deems to be an excessive display of emotion by Holland while
testifying, and he contends that the trial court should have
required the district attorney to advise the victim's family to
avoid such displays. Jones also argues that the prosecutor's leading
questions to Holland were improper.
(a) Under OCGA 17-10-1.2,
and Livingston v. State, 264 Ga. 402 (1) (444
SE2d 748) (1994), victim impact evidence is limited to the
impact of the offense upon the victim's family or community. In
accordance with the provisions of the statute, a hearing was held
ten days prior to trial to determine the scope of the testimony
allowed and the particular questions asked. The transcript of that
hearing reveals that the trial court ruled that Holland's testimony
would be brief and the questions allowed would be specifically
related to Jones' culpability. Holland was permitted to testify that
she was married to the victim for 21 years; that she witnessed his
brutal murder by Jones; that she still suffers because of the crime;
and that she fears for herself and her family. The questions, which
were relatively few, were approved by the trial court prior to
trial, and were phrased by the district attorney. Holland's
responses were generally limited to several words. Based on our
review of the record, we do not find that the content or the extent
of Holland's testimony was improper.
(b) Jones argues that Holland's testimony was
inflammatory because Holland sobbed while testifying and suggests
Holland's emotional reaction was rehearsed, since she displayed less
emotion when she testified before the trial court out of the
presence of the jury. Under OCGA 17-10-1.2
(a) (1), victim impact evidence "shall be permitted only in such a
manner and to such a degree as not to inflame or unduly prejudice
the jury." We have granted the trial court unusually broad
discretion in admitting such evidence, in part because "we presume
that trial courts will follow the dictates of the statute in not
admitting inflammatory or unduly prejudicial evidence. . ."
Livingston, supra at 405. Our reliance on the trial court's sound
discretion is particularly appropriate when the objection is to the
manner in which the witness testifies, since the trial court can see
and hear the juror while we must rely on a cold record. The record
in this case reflects only that the victim sobbed while testifying.
There is no indication that her testimony was prolonged, or that her
display of emotion disrupted the trial.
Under OCGA 17-10-35
(c) (1), a sentence of death cannot be "imposed under the influence
of passion, prejudice or any other arbitrary factor"; however, the
passion proscribed by our law refers to that engendered by racial or
religious prejudice or other arbitrary factors. Livingston, supra at
404, citing Conner v. State, 251 Ga. 113,
121 (303 SE2d 266) (1983). The passion
or emotion shown in this case is not the product of any arbitrary
factor but the direct result of Jones' own actions. The trial
court's denial of Jones' motion for mistrial as a result of
Holland's testimony was not an abuse of discretion.
(c) Jones argues that the trial court should have
issued an order requiring that the district attorney warn the
victim's family members against any visible display of emotion that
would be disruptive, as the trial court did in the trial of John
Mark Waldrip. See Livingston v. State, 264 Ga. at 406. Although the
trial court did issue such an order in that trial, we held that
there is no authority for imposing such "prophylactic measures." Id.
at 407. Moreover, the trial court's order in that case was directed
at family members seated in the courtroom; and not family members
who appeared as witnesses. Id. at 406.
(d) The trial court acted within its discretion
in allowing the prosecutor to ask Mamie Holland leading questions in
order to ensure that Holland's testimony remained within the
parameters outlined in OCGA 17-10-1.2
(a) (1). Knight v. State, 266 Ga. 47 (4)
(b) (464 SE2d 201) (1995); Ford v.
State, 232 Ga. 511 (10) (207 SE2d 494) (1974).
3. Jones contends that the trial court erred in
denying his motion for mistrial when, during closing argument in the
sentencing phase of trial, the district attorney referred to the
fact that Jones' counsel was appointed. The granting of a motion for
mistrial is within the discretion of the trial court, and the trial
court's ruling will not be disturbed on appeal unless a mistrial is
required to preserve a defendant's right to a fair trial. Cowards v.
State, 266 Ga. at 194. We do not find that this statement by the
prosecutor denied Jones a fair trial. Construing the comment in the
context of the argument as a whole, it is clear that it was not the
prosecutor's manifest intention to comment on Jones' status as an
indigent prisoner. On the contrary, the prosecutor was merely
arguing that although Jones had not suffered any violation of his
rights, and the law provides for the punishment being sought in his
case, Jones had violated the victim's rights by acting as his judge,
jury, and executioner. Arguments of this type are not improper. See,
e.g., Thornton v. State, 264 Ga. 563 (4)
(c) (449 SE2d 98) (1994). The trial
court did not abuse its discretion in denying Jones' motion for
4. The jury found the following aggravating
circumstances: OCGA 17-10-30 (b) (2) (the
murder was committed while the defendant was engaged in the capital
felony of armed robbery); OCGA 17-10-30
(b) (7) (the murder was outrageously and wantonly vile, horrible and
inhuman in that it involved torture, depravity of mind, or
aggravated battery). The evidence supports these findings. OCGA
17-10-35 (c) (2).
5. Jones' death sentence was not imposed as the
result of impermissible passion, prejudice or other arbitrary
factor. OCGA 17-10-35 (c) (1). The
death sentence is not excessive or disproportionate to penalties
imposed in similar cases, considering both the crime and the
defendant. The similar cases listed in the Appendix support the
imposition of the death sentence in this case.
Christenson v. State, 262
Ga. 638 (423 SE2d 252) (1992); Ferrell v. State,
261 Ga. 115 (401 SE2d 741) (1991);
Stripling v. State, 261 Ga. 1 (401 SE2d 500)
(1991); Romine v. State, 256 Ga. 521
(350 SE2d 446) (1986); Cargill v. State,
255 Ga. 616 (340 SE2d 891) (1986);
Ingram v. State, 253 Ga. 622 (323 SE2d 801)
(1984); Spivey v. State, 253 Ga. 187
(319 SE2d 420) (1984); Putman v. State,
251 Ga. 605 (308 SE2d 145) (1983);
Wilson v. State, 250 Ga. 630 (300 SE2d 640)
(1983); Berryhill v. State, 249 Ga.
442 (291 SE2d 685) (1982); Dick v. State,
246 Ga. 697 (273 SE2d 124) (1980). See
also Lee v. State, 258 Ga. 82 (365 SE2d 99)
(1988); Ford v. State, 257 Ga. 461
(360 SE2d 258) (1987); Beck v. State,
255 Ga. 483 (340 SE2d 9) (1986); Roberts v. State,
252 Ga. 227 (314 SE2d 83) (1984);
Mincey v. State, 251 Ga. 255 (304 SE2d 882)
(1983); Solomon v. State, 247 Ga. 27
(277 SE2d 1) (1981).
Richard E. Currie, District Attorney, Michael J.
Bowers, Attorney General, Wesley S. Horney, Assistant Attorney
General, for appellee.
1 The crimes occurred on March 31,
1993. Jones was indicted in Ware County on April 7, 1993. The State
filed its notice of intent to seek the death penalty on July 22, 1993.
Jones was tried before a jury in Coffee County pursuant to a change of
venue and was convicted on all counts and sentenced to death for malice
murder on June 14, 1995. Jones was also sentenced to life in prison for
armed robbery; 20 years in prison for theft by taking a motor vehicle;
and 12 months in prison for misdemeanor theft by taking, all sentences
to run consecutive to each other. Jones filed a motion for new trial on
July 14, 1995, which was denied by the trial court on June 20, 1996.
Jones filed a notice of appeal on July 1, 1996. The case was docketed in
this Court on July 11, 1996 and was orally argued on October 21, 1996.
17-10-30 (b) (2) & (7).
3 Bunner was tried separately from
Jones and received a sentence of life without parole. He did not appeal
John R. Thigpen, Sr., for appellant.
Ashley Lyndol Jones