Jackson v. State

FINAL COPY


                 S22A0399. JACKSON v. THE STATE.


      ELLINGTON, Justice.

      A Richmond County jury found Andre Jackson guilty of the

armed robbery of Joseph Williams. A different Richmond County

jury found Jackson guilty of felony murder predicated on the armed

robbery of L. V. Wilson and of the murder of Jquanda Johnson by

stabbing her with a knife.1 On appeal, Jackson contends that, in the


      1 Williams was robbed on June 21, 2010. L. V. Wilson was killed on June

28, 2010, and Johnson was killed on or about June 30, 2010. On October 26,
2010, a Richmond County grand jury returned a 13-count indictment including
the Williams robbery, the Wilson and Johnson murders, and an armed robbery
of a fourth victim. Jackson filed a motion to sever counts concerning each of
the four victims from all the other counts for trial. On September 22, 2013, the
trial court granted Jackson’s motion to sever in part, as to the counts arising
from the Williams robbery; the trial court reserved ruling as to the severance
of the remaining counts. At a trial that ended on September 25, 2013, a jury
heard Count 1 (armed robbery of Williams), Count 2 (burglary of Williams’s
home), and Count 3 (possession of a firearm during the commission of a crime).
That jury found Jackson guilty on Counts 1, 2, and 3. On September 25, 2013,
the trial court sentenced Jackson to life in prison without parole on Count 1,
20 years in prison on Count 2, and five years in prison on Count 3. At the
State’s request, the trial court entered an order of nolle prosequi as to Count
12 (possession of a firearm by a convicted felon on the date of the Williams
robbery). Jackson filed a motion for new trial on October 3, 2013.
Williams robbery trial, the trial court abused its discretion in

denying his motion in limine to exclude an out-of-court statement



       On April 13, 2015, Jackson filed a second motion to sever the trials of the
Wilson murder, the Johnson murder, and the armed robbery against the fourth
victim, an issue on which the trial court reserved ruling in its September 22,
2013 order. On November 21, 2016, the trial court entered an order on several
pending pretrial motions, ruling that Jackson’s motion to sever “was, in effect,
GRANTED IN PART AND DENIED IN PART, in that the State indicated its
intention to proceed to trial only on Counts 6, 7, 8, 9, 10 and 11, with Counts
1, 2, 3, and 12 [the Williams robbery counts] having already been tried and
Counts 4, 5, and 13 to be offered for dismissal prior to trial.” On June 19, 2017,
the trial court granted the State’s request for an order of nolle prosequi as to
the counts concerning the fourth victim (Counts 4 and 5), on the basis that the
alleged victim, Rodney Tucker, gave a false name (Chris Allen Tucker) when
he reported the incident to the sheriff’s office. The trial court granted Jackson’s
motion to proceed pro se.
       At a trial that ended on August 4, 2017, a jury heard Count 6 (malice
murder of Wilson), Count 7 (felony murder of Wilson predicated on armed
robbery), Count 8 (possession of a firearm during the commission of a crime),
Count 9 (malice murder of Johnson), Count 10 (felony murder predicated on
aggravated assault of Johnson), and Count 11 (possession of a knife during the
commission of a crime). The State did not submit Count 13, possession of a
firearm by a convicted felon on the date of the Johnson murder, to the jury.
The jury found Jackson guilty on Counts 7, 9, 10, and 11 and not guilty on
Counts 6 and 8. Count 10 was vacated by operation of law, and the trial court
entered an order of nolle prosequi as to Count 13. On August 4, 2017, the trial
court sentenced Jackson to life in prison without parole on Count 9 and five
years in prison on Count 11, for an aggregate sentence from both trials of life
without parole plus 25 years in prison. Jackson filed a timely motion for new
trial. On July 18 and August 19, 2019, Jackson filed amended motions for new
trial, which included matters pertaining to both trials.
       Following a combined hearing on the 2013 motion for new trial from the
first trial, the 2017 motion for new trial from the second trial, and the
amendments, the trial court denied the motions for new trial in a single order
on June 24, 2021. Jackson filed a timely notice of appeal, and the case was
docketed in this Court to the term beginning in December 2021 and submitted
for a decision on the briefs.
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made by Johnson in the days between the robbery and her death. In

addition, Jackson contends that, in the murder trial, the trial court

abused its discretion in denying his motion to sever the offenses

charged for the Wilson murder from the offenses charged for the

Johnson murder. For the reasons explained below, we affirm.

     The evidence in the robbery trial showed the following. In June

2010, Jackson and Johnson were in a romantic relationship.

Williams, who was known as “Little Joe,” agreed to repair the

transmission of Johnson’s car for $300; she paid him $100 in

advance. After Williams removed the transmission, he developed

cardiovascular problems that required a stent; he was instructed not

to lift anything heavy. On June 20, Johnson went to Williams’s

house to ask about the car, and he told her he would not be able to

put the car back together. Williams asked her to leave and called the

police when she refused.

     Williams testified that, the next day, Jackson knocked on his

door and asked for “Joe.” Williams answered the door and told

Jackson, whom he did not know, that he was not able to repair

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Johnson’s car at that time. As Williams attempted to close the door,

Jackson kicked the door, splitting the wood around the strike plate;

forced his way inside; “flash[ed]” a handgun; told Williams to get on

the floor; put the gun to Williams’s head; and demanded his money.

Williams’s mother, Mildred Burns, entered the room, and Jackson,

still brandishing the gun, told her, “I know you [have] some money;

give me $150 to let [Williams] live.” Jackson took a bag containing

Williams’s money and identification. Williams asked for his

identification back, and Jackson returned it. Then Jackson ran

outside and drove away. Williams saw a woman in the car. He

testified that he got a good look at Jackson’s face during the robbery,

and he identified Jackson as the robber. Burns also testified about

the robbery and about Johnson’s previous visit to ask about her car.

Burns identified Jackson in court, stating that she had gotten a good

look at the man who broke into their home and took Williams’s

money at gunpoint and was “sure” that Jackson was that man.

     Porchia Littleton testified that she and Johnson had been close

friends since childhood. In May 2010, Johnson’s car was not

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running, and “Joe” was going to repair it. Littleton went with

Johnson once to ask Williams about the car. Jackson and Johnson

visited Littleton’s home on June 21. Shortly after they left, police

officers arrived and wanted to search the house. The officers refused

to say who they were looking for, so Littleton did not admit them.

Later that week, Jackson and Johnson visited again. During that

visit, while Jackson was in another room, Littleton told Johnson

about the police visit, and Johnson said she probably knew why the

police went to the house: because she and Jackson “went over to

Joe’s house to talk about the car” and to “shake Joe up” and “scare

him,” and “[Jackson] stuck [Williams] up. . . . [Johnson] said she was

in the car, and the next thing she knew, she looked and [Jackson]

had a gun to [Williams].” Littleton testified that Johnson “was

freaked out a little bit when she explained it” to Littleton, and

whispered it so Jackson could not hear, and that robbing Williams

“was not what the plan was.” Littleton testified that, before

Johnson’s death, she had seen Jackson with a black handgun “pretty

often.” Littleton identified Jackson at trial.

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     In the murder trial, the evidence showed the following. Several

witnesses testified that, in June 2010, Jackson was a drug dealer.

Rodney Tucker testified that, on June 25, he traveled to Augusta to

visit Nekea Johnson, Johnson’s younger sister. That day, Tucker

gave Jackson some cocaine to sell over the weekend, and Jackson

agreed to pay him on Monday, June 28. On the morning of June 28,

Tucker and Nekea drove to Johnson’s residence to meet with

Jackson and get the money. Tucker testified that, when he got out

of the car, Jackson abruptly pulled a gun on him and demanded,

“give me my money.” Tucker argued that he did not owe Jackson

money — rather, Jackson owed him money. From the look in

Jackson’s eyes, Tucker believed that Jackson was going to shoot

him. Just then, Tucker testified, Johnson put her arm around

Tucker’s shoulder. He testified, “I believe that’s when she saved my

life.” Nekea also testified that Jackson pulled a gun on Tucker as

soon as they arrived. Nekea testified that Tucker pulled money from

his pocket and dropped it, saying, “you can have the money, just

don’t kill me.” Nekea testified that her sister ran toward Jackson,

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“trying to stop it,” and “he kicked her, and she fell back.” Tucker and

Nekea fled and went to the sheriff’s office and reported the robbery.

Tucker gave his brother’s name, Chris Allen Tucker, rather than his

own when reporting the incident to the sheriff’s office.

     Marcus Tyler testified that he and Jackson sometimes pooled

their money and bought drugs from Wilson to resell. Tyler testified

that he and Jackson bought drugs to resell from Wilson on June 23

or 24. Tyler testified that the drugs were not of acceptable quality,

and Jackson was going to get his and Tyler’s money back. Jackson

called Tyler on June 28 and asked him to meet him at Wilson’s

house. When Tyler arrived, he walked over to a shed where Wilson

conducted drug business, and he found Jackson standing over

Wilson and hitting him in the head. Tyler testified that he asked

what was going on. Jackson turned around, pointed a gun at Tyler,

and asked him, “are you with me or against me?” And then Jackson

cut Wilson’s throat with a knife. Tyler fled. At approximately noon

on June 28, a neighbor found Wilson on her front porch, with his

throat slashed, bleeding and unconscious. She called 911. An

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autopsy showed that Wilson died from multiple sharp-force injuries

that severed the major arteries in his neck.

     Tyler testified that, later on the day that Jackson cut Wilson’s

throat, Tyler answered a cell phone on Jackson’s porch. Tyler

testified that it was Johnson calling, and she said, “you[’re] go[ing]

to jail; you robbed my brother-in-law.” After Tyler informed Johnson

that she was speaking to him, not to Jackson, she told him that the

police were coming. That evening or the next, Jackson asked Tyler

to drop him off at Johnson’s place. Jackson said he was going to “fix

that b**ch.” Tyler testified that Jackson returned home about an

hour later, took a shower, and then went out to the back yard and

burned some clothes.

     Reginald Hudson, Johnson’s estranged husband, testified that,

on the morning of June 28, Johnson told him and Nekea that

Jackson had robbed Nekea’s boyfriend the previous evening. Hudson

testified that Johnson felt like she needed protection, because

Jackson had a key to her apartment, and that Johnson called

someone she knew who had an “assault rifle” and tried to get that

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gun. Nekea testified that, on the evening of June 28, Johnson went

to Nekea’s house and told her that she did not have “anything to do

with” the robbery of Tucker and that she was going to “get” Jackson.

Mariah Federick testified that she often drove Jackson and Tyler

around for drug sales. On June 29, Federick heard Jackson arguing

with Johnson on a phone call, after which he said that he was going

to “have to kill this b**ch.”

     Littleton testified that Johnson told her about witnessing the

robbery of Tucker on the day it happened, June 28, and Johnson said

that she was worried about Jackson, who she thought was “on

something” and acting “crazy.” Littleton testified that Jackson sent

Johnson threatening messages that day, saying that he knew where

she was and calling her a “sitting duck.” In the days following,

Littleton called and texted Johnson repeatedly to check on her, but

Johnson did not answer. On the morning of June 30, Littleton drove

by Johnson’s residence and saw Jackson walking in the yard and

circling the building.

     On July 2, after several days without Johnson answering her

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phone, Nekea and her mother, Patrice Knox, drove to Johnson’s

apartment and knocked on the door without response. Knox called

the rental office and asked that they send someone over to open the

door. The police came, found no sign of forced entry, entered the

apartment, and found Johnson lying dead in a bedroom. The broken-

off blade of a knife was embedded in her chest. An autopsy

performed on July 3 indicated that Johnson died from multiple stab

wounds to her chest, face, left arm, and left shoulder that penetrated

her heart and lungs and caused massive bleeding. Johnson died,

according to the medical examiner, at least “a couple of days” before

the autopsy, but the time of death could not be further specified.

Crime scene investigators found a belt with an unusual “metal skull”

buckle lying in a pool of blood beside Johnson’s body. No blood was

on top of the buckle, indicating that the belt was dropped there after

the pool of blood had formed. Nekea testified that she had previously

seen Jackson wearing that belt buckle.

     1. Jackson contends that the trial court abused its discretion in

denying his motion in limine during the robbery trial to exclude

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testimony by Littleton that Johnson told her that she and Jackson

went to Williams’s house to talk about her car and “shake [Williams]

up” and “[Jackson] stuck [Williams] up.” The State characterized

Johnson’s out-of-court statement as implicating herself in the armed

robbery and therefore as a “statement against interest” by an

unavailable declarant under OCGA § 24-8-804 (b) (3) and argued

that it was sufficiently corroborated to be admissible under that

Code provision.

     Assuming without deciding that the trial court abused its

discretion in admitting Johnson’s out-of-court statement under

OCGA § 24-8-804 (b) (3), any such error was harmless. “[T]he

erroneous admission of hearsay is harmless where substantial,

cumulative, legally admissible evidence of the same fact is

introduced.” Anglin v. State, 

 (2) (

)

(2017). See also Lopez v. State, 

 (2) (b) (

) (2021) (same). Because Johnson’s statement was cumulative of

other legally admissible and substantial evidence that Jackson

robbed Williams, principally Williams’s and Burns’s eyewitness

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testimony and definite in-court identifications, any error in the trial

court’s ruling was harmless. See Lopez, 

 (2) (b);

Anglin, 

 (2).

      2. Jackson contends that the trial court abused its discretion in

denying his motion in the murder trial to sever the offenses in the

stabbing death of Wilson from the offenses in the stabbing death of

Johnson, which, he argues, were joined solely because they were of

a similar nature and were all committed in the last week of June

2010.2

      “Where offenses are joined in a single indictment, a defendant




      2 The State contends that Jackson waived appellate review of this issue,

noting that, in the September 22, 2013 order entered prior to the trial on the
Williams robbery counts, the trial court reserved ruling as to the severance of
the remaining counts, and averring that, prior to the second trial, Jackson “did
not renew this motion or seek a final order from the trial court on the severance
of the murder counts.” The record shows otherwise. As recited in footnote 1,
supra, Jackson filed a second motion to sever on April 13, 2015, again asking
that the counts involving Wilson as a victim be tried separately from all other
counts and that the counts involving Johnson as a victim be tried separately
from all other counts. On November 21, 2016, the trial court entered an order
on several pretrial motions, ruling that Jackson’s motion to sever “was, in
effect, GRANTED IN PART AND DENIED IN PART, in that the State
indicated its intention to proceed to trial only on Counts 6, 7, 8, 9, 10 and 11,
with Counts 1, 2, 3, and 12 [the Williams robbery counts] having already been
tried and Counts 4, 5, and 13 to be offered for dismissal prior to trial.”
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has a right to severance where the offenses are joined solely on the

ground that they are of the same or similar character because of the

great risk of prejudice from a joint disposition of unrelated charges.”

Moon v. State, 

 (5) (

) (2021) (citation and

punctuation omitted).

     If severance is not mandatory, it is nevertheless
     incumbent upon the trial court to determine whether
     severance was necessary to achieve a fair determination
     of the defendant’s guilt or innocence as to each offense. To
     make that determination, the court should consider
     whether in view of the number of offenses charged and
     the complexity of the evidence to be offered, the trier of
     fact will be able to distinguish the evidence and apply the
     law intelligently as to each offense.

 (citation and punctuation omitted). “Severance is generally not

warranted where the crimes charged occurred over the same period

of time and stem from a course of continuing conduct.” Carson v.

State, 

 (2) (a) (

) (2020) (citation and

punctuation omitted). Where joinder “is based upon the same

conduct or on a series of acts connected together or constituting

parts of a single scheme or plan, severance lies within the sound

discretion of the trial judge since the facts in each case are likely to

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be unique.” 

 (2) (a) (citation and punctuation omitted).

     In this case, the evidence authorized the trial court to hold

that, beginning on the morning of June 28 and continuing for

another few days, Jackson engaged in a continuing course of

criminal violence relating to his involvement in the drug trade: he

robbed Tucker, Johnson’s sister’s boyfriend, who had supplied

Jackson with drugs two days earlier, and he beat Wilson, who had

recently supplied Jackson with poor quality drugs, and slashed his

throat. Jackson also threatened Johnson, who witnessed the robbery

of Tucker and even tried to intervene, and told Johnson she was “a

sitting duck.” Then he killed her by stabbing her repeatedly. The

trial court did not abuse its discretion in denying Jackson’s motion

to sever the offenses for trial. See Moon, 

 (5) (Count

for attempting to obtain a firearm by a convicted felon and murder

counts related to shooting death of victims were based on a series of

connected acts and occurred closely in time with each other, and the

trial court did not abuse its discretion in denying the defendant’s

motion to sever the offenses for trial.); Carson, 

-766

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(2) (a) (The trial court did not abuse its discretion in denying the

defendant’s motion to sever, where the robbery and battery of one

victim and the murder of a second victim occurred only a few blocks

apart and within a short period of time, and the defendant’s arrest

for the robbery led to DNA testing of his clothes and the

identification of the defendant as the second victim’s assailant.);

Doleman v. State, 

 (3) (

) (2018)

(The trial court did not abuse its discretion in denying the

defendant’s motion to sever offenses for trial where the offenses

arose from a crime spree consisting of an eight-week period during

which the defendant and his co-defendants committed a series of

robberies and assaults using the same weapons and stolen vehicles

from previous offenses.); Stinski v. State, 

 (15) (

) (2010) (The trial court did not abuse its discretion in

denying the defendant’s motion to sever offenses for trial arising out

of a crime spree committed on a single night in the same

neighborhood.).

     Judgment affirmed. All the Justices concur.

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                       Decided June 1, 2022.

     Murder. Richmond Superior Court. Before Judge Jolly.

     Bruce S. Harvey; The Bullard Firm, Brandon A. Bullard, for

appellant.

     Jared T. Williams, District Attorney, William S. Hammond,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, William C. Enfinger,

Assistant Attorney General, for appellee.




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