CourtListener 10680325

Full text

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 29, 2024

S24A0351. JONES v. THE STATE.

BOGGS, Chief Justice.

Appellant Darious Jones challenges his 2016 conviction for

felony murder in connection with the beating death of Faith Parke.

Appellant contends that the evidence was constitutionally

insufficient; that, due to his mental condition, the trial court erred

by allowing him to decide whether to testify without further inquiry;

that the trial court erred in refusing to give the voluntary

manslaughter-related instructions that he requested; and that the

trial court erred in sentencing him to life without the possibility of

parole. However, as explained below, we conclude that the evidence

was sufficient because, among other things, Appellant arranged to

meet Parke at the location where she died; Appellant’s DNA and

fingerprints were at the crime scene, including on a doorstop bar
near Parke’s body; and Parke had injuries matching the pattern on

the end of that doorstop bar. Furthermore, Georgia law does not

require a trial court to advise a defendant concerning his right to

testify or to make the type of inquiry that Appellant asserts the trial

court should have made here, and the trial court properly refused to

give Appellant’s requested instructions regarding voluntary

manslaughter because no evidence supported them. Finally,

Appellant’s sentencing argument fails. Accordingly, we affirm.1

1. Viewed in the light most favorable to the verdicts, the

1The crime occurred on May 12, 2015. On July 30, 2015, a DeKalb
County grand jury indicted Appellant for malice murder, felony murder, and
aggravated assault. At a trial from August 29 to September 2, 2016, the jury
found Appellant not guilty of malice murder but guilty of felony murder and
aggravated assault. The trial court sentenced Appellant to serve life in prison
without the possibility of parole for felony murder. The aggravated assault
count merged. Appellant filed a timely motion for new trial, which he amended
with new counsel on July 6, 2021. On August 17, 2022, before the trial court
held a hearing or ruled on the motion for new trial, Appellant filed a notice of
appeal. After an evidentiary hearing on August 11, 2023, the trial court
entered an order denying the motion on September 20, 2023. Appellant’s
original notice of appeal ripened upon the entry of the trial court’s denial of his
motion, see State v. Hood, 295 Ga. 664, 664-665 (763 SE2d 487) (2014)
(explaining that a notice of appeal filed before a trial court denies a motion for
new trial ripens upon a denial of that motion), and although Appellant was not
required to do so, he also filed a timely amended notice of appeal on October
16, 2023, after the trial court denied his motion. The case was docketed in this
Court for the term beginning in December 2023 and submitted for a decision
on the briefs.
2
evidence at trial showed the following. On May 11, 2015, Appellant

texted and called Parke, arranging to meet and to pay her money in

exchange for sexual acts. After texting and calling each other’s

phones throughout the night and into the next morning, they

eventually agreed to meet on May 12 at a vacant house next door to

where Appellant lived with his mother, and that Appellant would

pay $80 for 30 minutes of Parke’s time. A neighbor who lived across

the street from the vacant home testified that at around 9:00 a.m.

on May 12, she saw a young female wearing a striped dress and

talking on a cell phone park a PT Cruiser vehicle in front of the

vacant house. The neighbor did not see the female enter the house.

A few hours later, Bernard Nguyen, a maintenance man,

arrived at the vacant home to prepare it for a new tenant. As he

began cleaning on May 12, he noticed blood in an upstairs bathroom.

He then noticed blood near the stairs that he overlooked when he

first went up the stairs. Not finding anyone upstairs, he checked a

downstairs bedroom, where he saw a woman later identified as

Parke face-down on the floor in a pool of blood. Nguyen called his

3
wife and then 911. Nguyen further testified that the home had two

sliding glass doors that led to the outside, one in the living room and

another in the bedroom where he found Parke’s body. Both sliding

glass doors usually had matching metal doorstop bars that secured

them, and both bars were in place the day before when Nguyen left.

On May 12, however, the doorstop bar was missing from the door of

the bedroom where he found Parke.

Investigator Kelly Freeman of the DeKalb County Police

Department responded to the scene. She observed that the doorstop

bar was missing from the door in the bedroom where Nguyen

discovered Parke’s body. However, she found the missing doorstop

bar in the closet of that bedroom. In the kitchen trashcan, she found

what appeared to be bloody paper towels, a condom, and a condom

wrapper. Nguyen testified that when he left the house the day

before, there was no blood anywhere inside, nor was there a condom

in the trashcan. Investigator Freeman took photos of Parke’s head,

including “possible brain matter” that was exposed due to a “defect

to [Parke’s] head” and possible defensive wounds. Parke’s wounds

4
were so severe that Investigator Freeman could see directly into

Parke’s skull. Photos that Investigator Freeman took at the crime

scene were admitted into evidence and showed that Parke was

wearing striped clothing.

Sergeant M.S. McLendon of the DeKalb County Police

Department testified that he obtained a search warrant for Parke’s

car and inspected her cell phone. He found the last phone number

that Parke’s phone contacted, discovered that the phone number

belonged to Appellant, and found Appellant’s address, which was

next door to the crime scene. Sergeant McLendon further testified

that he obtained a search warrant for Appellant’s DNA, went to

Appellant’s house, and transported Appellant to the police station to

execute the search warrant. At the police station, Sergeant

McLendon noticed “cuts and injuries” on Appellant’s hands.

Jennifer Jones, Appellant’s mother, testified that Appellant

was about 21 at the time of Parke’s death, had “ADHD, . . .

opposition defiant disorder, mild mental retardation, and . . . [a]

learning disability,” and graduated high school with a “transitional

5
diploma” for students with “disabilities that most likely would not

be able to pass the high school graduation test because their IQ is

too low and they already know that they won’t.” Jennifer further

recalled that on May 16, police came to her house, which she shared

with Appellant and other relatives. An officer drove Appellant to the

police station, and Jennifer followed them to the station. Jennifer

informed police that Appellant “had a disability.”

On the way home from the police station that evening with

Appellant, Jennifer “kept asking him what’s going on.” Appellant

“had a frightened look on his face” and eventually told her that “it

was a accident. You know I wouldn’t hurt nobody.” Appellant’s eyes

filled with tears as he spoke. They drove home without talking

further. When they got home and were walking into the house,

Appellant said, “[I]t’s a bag in the garage.” Jennifer found a black

trash bag in the garage of her home but could not bring herself to

open it. The next day, Jennifer drove Appellant to the police station

to “turn him in,” took the bag with her, and again told police that

Appellant “ha[d] a disability.” Police obtained a search warrant for

6
the bag, which one officer testified smelled “like a decomposing

body,” and examined it. Inside, officers found various items,

including clothes, shoes, a washcloth, gloves, and a towel, which

were bloody. Police then arrested Appellant for murder.

At trial, Erica Turner of the Georgia Bureau of Investigation

testified as an expert for the State in latent print examinations.

Turner identified Appellant’s fingerprint on the doorstop bar that

police collected from the closet of the bedroom where Parke’s body

was found. She also matched to Appellant a fingerprint on a piece of

vinyl siding that was located on the outside of the house near the

sliding glass door leading to that bedroom.

Betzaida Maldonado of the Georgia Bureau of Investigation

testified for the State as an expert in DNA analysis and typing.

Maldonado testified that the condom police found in the trashcan of

the home contained Appellant’s DNA.

Dr. Gerald Gowitt, the chief medical examiner for DeKalb

County who performed Parke’s autopsy, testified for the State as an

expert in forensic pathology. Dr. Gowitt explained that Parke’s

7
injuries were mostly “confined to the head and neck and right and

left arms” and that her injuries were “too numerous to count.” He

further recounted that during the autopsy he discovered “pattern

injuries” on the left side of Parke’s head and face that matched the

end of a doorstop bar recovered from the scene. The pattern injuries

were “entirely consistent with being struck with a significant

amount of force by the end of that pipe, not by the shaft part, but by

the end of that pipe, enough to bruise the skin and leave a mark on

the skin in the form of a bruise that looks like the end of the rubber

stopper” on the doorstop bar, and Dr. Gowitt testified that he was

fairly confident that Parke’s injuries were “made by the end of [the]

doorstop” bar. He also noted that Parke had a bite mark on her left

elbow, that some of her injuries appeared to be defensive, and that

she had $50 in cash tucked underneath her clothing. Dr. Gowitt

concluded that Parke would have been “awake and aware of what

was happening to her” for a portion of the beating and that her cause

of death was blunt head trauma.

2. Appellant first contends that the evidence was insufficient

8
as a matter of constitutional due process to support his conviction.

See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560)

(1979). In Appellant’s estimation, the State presented conflicting

and questionable evidence at trial that might have confused the jury

and did not authorize the jury to find that the State proved the

essential elements of the crimes beyond a reasonable doubt. “In

evaluating a challenge to the sufficiency of the evidence as a matter

of constitutional due process, we view the evidence presented at trial

in the light most favorable to the verdicts and ask whether any

rational trier of fact could have found the defendant guilty beyond a

reasonable doubt of the crimes of which [he] was convicted.” Lopez

v. State, ___ Ga. ___, ___ (898 SE2d 441) (2024). Indeed, “it is well

settled that it is the role of the jury to resolve conflicts in the

evidence and to determine the credibility of witnesses, and the

resolution of such conflicts adversely to the defendant does not

render the evidence insufficient.” Reed v. State, 314 Ga. 534, 537

(878 SE2d 217) (2022) (cleaned up).

The evidence presented at trial and summarized in part above

9
was sufficient to authorize Appellant’s conviction. The search of

Parke’s phone and testimony at trial showed that Appellant

arranged to meet Parke on the same day as and at the same location

where the maintenance man found her body. Appellant’s

fingerprints were on the doorstop bar from the closet of the bedroom

where Parke’s body was found as well as on the siding outside the

room, and Parke’s pattern injuries matched the design on the end of

the doorstop bar. See Reaves v. State, 292 Ga. 545, 545-546 (739

SE2d 368) (2013) (holding that the evidence was sufficient to

authorize the defendant’s conviction for felony murder, relying, in

part, on evidence that the child victim had pattern injuries, and the

patterns matched a baseball bat and a broken umbrella police

recovered from the defendant’s home). Appellant’s DNA was also on

the condom police recovered from the trashcan. See Ballard v. State,

297 Ga. 248, 248-249 & n.1, 255 (773 SE2d 254) (2015) (holding that

the evidence was sufficient to support conviction for felony murder

predicated on aggravated assault, relying, in part, on evidence that

defendant’s DNA was on a water bottle in the hotel room, which

10
placed the defendant at the crime scene). The jury was not required

to accept Appellant’s claim that the killing was an accident and

could have concluded based on the evidence recited above that he

beat Parke intentionally, causing her death. See Brown v. State, 291

Ga. 892, 895 (734 SE2d 23) (2012) (recognizing a jury’s authority to

disbelieve a defendant’s version of events and to accept the State’s

theory of the case). Accordingly, Appellant’s contention fails.

3. Appellant further argues that due to his “mental condition,”

the trial court erred by allowing him to decide whether to testify

without some further inquiry than the one the trial court

conducted.2 After the State rested, the trial court sent the jury out

and asked Appellant whether he had discussed with his attorneys

whether he would testify or needed more time:

TRIAL COURT: I’ll go ahead and give Mr. Jones’s
admonition now about testifying. Mr. Jones, please stand.

2 Because the State does not argue that Appellant waived this argument

by failing to object at trial and Appellant’s argument fails, we assume without
deciding that this argument was preserved for ordinary appellate review.
Compare Gibson v. State, 290 Ga. 6, 9, 11 (717 SE2d 447) (2011) (holding that
the defendant’s failure to make an objection at trial regarding the defendant’s
decision not to testify waived the issue for appeal but addressing the merits of
the defendant’s argument anyway).
11
Mr. Jones, I am assuming that you’ve had an adequate
opportunity to discuss whether or not you’re going to take
the witness stand with your attorneys, Mr. Queen and
Mr. Tailor. However, I am under an obligation, a duty, to
advise you that even though it’s not recommended that
you ever do anything without consulting with your
attorney first, the law requires me to remind you that you
and you alone make the decision about whether or not you
will or will not take the witness stand. My only question
to you — I don’t need to know whether you’re going to take
the witness stand or not. I know some judges require it,
but I don’t. What I do need to know from you is if you have
had an adequate opportunity to consult with Mr. Queen
and Mr. Tailor about taking the witness stand? Yes or no.
APPELLANT: Yes.
TRIAL COURT: Yes. So you don’t need any more time to
discuss that issue with them; is that correct?
APPELLANT: No, Sir.
TRIAL COURT: All right. Very well. State, are you
satisfied with the admonition concerning the defendant’s
right to testify or not testify in this case from the Court?
THE STATE: Yes, Your Honor.
TRIAL COURT: Defense?
DEFENSE COUNSEL: Yes.

Shortly afterward, defense counsel requested permission to speak

with Appellant alone, which the trial court permitted. Defense

counsel then sought additional time to speak with Appellant’s

mother, which the trial court also allowed. Afterward, the trial court

brought the jury back in, and the defense rested without Appellant

12
testifying in his own defense.

“In Georgia, whether or not to testify in one’s own defense is

considered a tactical decision to be made by the defendant himself

after consultation with his trial counsel and there is no general

requirement that a trial court interject itself into that decision-

making process.” Burton v. State, 263 Ga. 725, 728 (438 SE2d 83)

(1994). We have consistently rejected arguments like the one

Appellant makes here. We have observed, for example, that “the

trial judge has no duty to advise a defendant of the right to testify

or to ascertain on the record whether the defendant’s waiver of that

right is voluntary, knowing, and intentional.” Id. (cleaned up).

Likewise, we have noted that “mandat[ing] the trial court to engage

in an on-the-record colloquy with a defendant to inquire of the non-

testifying defendant whether he desires to waive his right to testify”

was not required, although we observed that conducting such a

colloquy would be “the better practice.” Barron v. State, 264 Ga. 865,

866 n.2 (452 SE2d 504) (1995). We have not retreated from that

view. See, e.g., Williams v. State, 292 Ga. 844, 854 (742 SE2d 445)

13
(2013); Spencer v. State, 287 Ga. 434, 438-439 (696 SE2d 617) (2010);

Sanford v. State, 287 Ga. 351, 355 (695 SE2d 579) (2010); Gibson v.

State, 283 Ga. 377, 380 (659 SE2d 372) (2008).

Appellant does not specifically argue that he was incompetent

to stand trial, but merely refers to his impaired “mental condition.”

Nothing in the record at trial suggested that Appellant wanted to

testify or that he did not understand that he was giving up his right

to do so. Appellant does not explain what inquiry the trial court was

required to provide that it did not, and to the extent he does suggest

additional action, such action is not supported by our precedent. See,

e.g., Spencer, 287 Ga. at 438-439. 3

4. Next, Appellant contends that the trial court erred in failing

to instruct the jury on the lesser offense of voluntary manslaughter

3 Although Appellant cursorily suggests in a heading of his brief that his

decision to testify “was not knowingly and freely made,” Appellant failed to
support that contention with any legal argument or citation to authority. Thus,
to the extent that this is a different argument, it is abandoned. See Former
Supreme Court Rule 22 (2023) (providing that enumerations of error not
supported by argument or citation to authority are abandoned). See also
Everett v. State, ___ Ga. ____, ____ n.4 (____ SE2d ___) (2024) (argument that
the defendant “purported to enumerate as error” was abandoned under Former
Rule 22 where the defendant “failed to support this particular assertion with
any argument or citation to legal authority”).
14
and the principle of mutual combat.

Appellant asserts in his brief that the evidence indicated a

“ferocious struggle” occurred before Parke’s death, pointing to

evidence that blood was everywhere at the crime scene and that both

he and Parke sustained injuries. He argues that this struggle

constitutes serious provocation. OCGA § 16-5-2 (a) states:

A person commits the offense of voluntary manslaughter
when he causes the death of another human being under
circumstances which would otherwise be murder and if he
acts solely as the result of a sudden, violent, and
irresistible passion resulting from serious provocation
sufficient to excite such passion in a reasonable person;
however, if there should have been an interval between
the provocation and the killing sufficient for the voice of
reason and humanity to be heard, of which the jury in all
cases shall be the judge, the killing shall be attributed to
deliberate revenge and be punished as murder.

“A trial court is required to grant the defendant’s request for a

charge on the lesser included offense of voluntary manslaughter if

there is any evidence, however slight, to support such a charge.”

Wilkerson v. State, 317 Ga. 242, 247 (892 SE2d 737) (2023) (cleaned

up). Whether slight evidence supports the charge is a question of

law. See id. Evidence that a defendant and victim fought prior to a

15
homicide or that a victim resisted a defendant’s unlawful act is not

the type of serious provocation that the law recognizes as being

sufficient to warrant an instruction on voluntary manslaughter. See

Johnson v. State, 313 Ga. 698, 700 (873 SE2d 123) (2022); Thompson

v. State, 312 Ga. 254, 258 (862 SE2d 317) (2021).

Parke’s apparent struggle with Appellant prior to her death

does not constitute serious provocation. See Funes v. State, 289 Ga.

793, 795 (716 SE2d 183) (2011) (reiterating that evidence of a fight

prior to a killing does not constitute serious provocation). Thus, the

trial court did not err in refusing to instruct the jury on voluntary

manslaughter.

Nor does evidence of a struggle warrant an instruction on

mutual combat. “A finding that a defendant was engaged in mutual

combat at the time the victim was killed may authorize the jury to

find the defendant guilty of voluntary manslaughter[.]” Moore v.

State, 307 Ga. 290, 295 (835 SE2d 610) (2019) (cleaned up). “Mutual

combat occurs when there is combat between two persons as a result

of a sudden quarrel or such circumstances as indicate a purpose,

16
willingness, and intent on the part of both to engage mutually in a

fight.” 4 Venturino v. State, 306 Ga. 391, 398 (830 SE2d 110) (2019)

(cleaned up). “Evidence of an ordinary scuffle or fight typically does

not warrant a charge on mutual combat.” Russell v. State, 303 Ga.

478, 481 (813 SE2d 380) (2018). Similarly, “reluctance, or fighting to

repel an unprovoked attack, is self-defense, and is authorized by the

law, and should not be confused with mutual combat.” Tidwell v.

State, 312 Ga. 459, 463 (863 SE2d 127) (2021) (cleaned up).

Appellant has not pointed to any evidence of “combat between”

Parke and him “as a result of a sudden quarrel or such

circumstances as indicate a purpose, willingness, and intent on the

part of both to engage mutually in a fight.” Venturino, 306 Ga. at

398 (cleaned up). See also Tidwell, 312 Ga. at 463 (holding that the

trial court did not err in failing to instruct on mutual combat where

the victim “was ambushed” by the defendant and others and tried to

4 We continue to recognize a conflict in Georgia law as to whether mutual

combat requires both combatants to be armed with deadly weapons. See Moore,
307 Ga. at 296 n.9; Russell v. State, 303 Ga. 478, 481 n.2 (813 SE2d 380) (2018);
White v. State, 287 Ga. 713, 723-724 (699 SE2d 291) (2010). However, we need
not resolve that conflict here.
17
protect himself); Wainwright v. State, 305 Ga. 63, 72 (823 SE2d 749)

(2019) (rejecting argument that a voluntary manslaughter

instruction based on mutual combat was warranted where the

victims tried to defend themselves). Accordingly, the trial court did

not err in failing to instruct on mutual combat.

5. Finally, Appellant argues that the trial court erred in

sentencing him to life without parole by failing to properly consider

the mitigation evidence he presented.5 At the sentencing hearing,

Appellant presented the testimony of Dr. Allison Paganelli, a

psychologist. Dr. Paganelli testified that she evaluated Appellant

before the trial in this case and concluded that he was competent to

stand trial as an adult. Dr. Paganelli diagnosed Appellant with post-

5 The State does not argue that Appellant waived this argument by
failing to object at sentencing and only raising the issue for the first time in his
amended motion for new trial. Because Appellant’s argument fails, we assume
without deciding that Appellant preserved this argument. Compare Marshall
v. State, 309 Ga. 698, 701-704 (848 SE2d 389) (2020) (holding that the
defendant waived alleged sentencing error where the sentence was not void
and he “did not raise this claim in the trial court, either at the presentence
hearing or in his motion for new trial, and his trial counsel affirmatively
waived any objection . . . by stating the defense had no argument to make”
about the alleged sentencing error).
.
18
traumatic stress disorder, a language disorder, and other disorders,

noting that his brain resembled that of a teenager. Finally, Dr.

Paganelli testified that Appellant’s symptoms could be managed

through medication and treatment. At the close of the hearing before

sentencing Appellant, the trial court told Appellant, “I’ve considered

the mitigation that you and your attorney have presented.”

OCGA § 16-5-1 (e) (1) provides, “A person convicted of the

offense of murder shall be punished by death, by imprisonment for

life without parole, or by imprisonment for life.” “Although the

legislature defines crimes and sets the ranges of sentences, trial

courts generally have the discretion to fashion sentences that fit the

crimes [of] which the defendant is convicted, so long as the sentences

fall within the statutory ranges.” State v. Riggs, 301 Ga. 63, 68 (799

SE2d 770) (2017) (cleaned up). Moreover, if sentences that trial

courts impose fall within the statutory limits, appellate courts

generally will not review them. See Monroe v. State, 250 Ga. 30, 36

(295 SE2d 512) (1982).

Life without parole falls within the statutory sentencing

19
parameters for murder, see OCGA § 16-5-1 (e) (1), and the trial court

expressly stated that it considered Appellant’s mitigation evidence

before announcing its sentence. Accordingly, Appellant’s claim that

the trial court erred in sentencing him to life without parole fails.

Judgment affirmed. All the Justices concur.

319 Ga. 140
FINAL COPY