GA Supreme Court to hear Albany case - WALB.com, Albany News, Weather, Sports

Tchywaskie Jones is appealing his conviction of Street Gang Terrorism in connection with the shooting of Donald Winchester, in an altercation at the Carver Park pool in Albany in 2009.

The case is scheduled for Monday, October 1, 2012. Albany attorney Jim Finklestein is Jones' lawyer.

The Supreme Court of Georgia prepared this summary of the facts in the case:

JONES V. THE STATE (S12A1626)

            In this Dougherty County case, a young man is appealing his conviction for violation of the Street Gang Terrorism and Prevention Act, arguing that the law is unconstitutional and the state provided no evidence linking him to membership in a gang.

            FACTS: According to state prosecutors, on the afternoon of June 16, 2009, several young women were with their children at the Carver Park pool in Albany, GA, when they were attacked by another group of girls. One of the young women was holding her baby, who was struck.

When the baby's father, Dabkowski Luke, heard about it, he, Tchywaskie Jones, and two others went to the pool parking lot. According to the defense, they headed there to see if any males had been involved in the altercation, and to fight them if they had. According to the state, they were members of the "Southside Bloods" gang.

 Also headed to the pool parking lot was Jerry Lee Harris, who prosecutors said was a member of the rival gang, the "Crips." Upon Luke's and Jones' arrival, someone yelled out, "Y'all take y'all's slob asses back where you came from." "Slob" is gang slang for a member of the Bloods. Harris, who was on one side of the parking lot, pulled out a 9mm pistol and began shooting at Jones and the others.

Donald Winchester, a bystander walking near the pool, was shot in the hip. According to an off-duty police officer, who was nearby at his mother's house, multiple gunshots were fired. The state contended Jones came to the pool with a .22 caliber pistol. Harris allegedly took the first shot, and, according to the state, the evidence supports he was the one who hit Winchester. But the state also says a witness saw Jones and his fellow gang members fleeing the scene with guns.

When officers searched a car outside Jones' home, they found a .22 caliber pistol and a bullet-proof vest. When they interviewed Jones, he told them the gun was his, according to the state. A shell casing at the scene was consistent with being fired from Jones' gun. The state contended that Jones and Harris were the only two shooting, and that Jones and his fellow Bloods gang members instigated the shooting by entering Crips gang territory and brandishing weapons.

            In August 2010, a jury convicted Jones of aggravated assault and violating the street gang statute. He was sentenced to 20 years for aggravated assault and 15 years on the street gang charge, with the first 10 to be spent in prison. Jones now appeals to the state Supreme Court.

            ARGUMENTS: His attorney argues Jones' convictions should be reversed based on 10 errors, with the first being that Jones' constitutional right to due process was violated "because the state introduced no evidence in support of one or more essential elements of each of the two offenses for which appellant was convicted." "The State never introduced any evidence at trial that Appellant had ever been a member of, employed by, or associated with any street gang, including the Southside Bloods," his attorney argues in 107-page briefs. "The State never introduced any evidence at trial that Appellant shot Donald Winchester. The State never introduced any evidence at trial that Appellant was party to the crime of the person who shot Donald Winchester...." Rather, Jones' attorney argues, the evidence showed that Jones, Luke and his friends "were the victims of the unprovoked aggravated assault by codefendant Jerry Harris, and that a stray bullet aimed at the crowd by Jerry Harris struck Donald Winchester while Winchester was walking on the grassy verge behind them." As to the so-called witness who supposedly saw Jones with a weapon running away from the scene: "The State produced no witness who saw Appellant with a weapon, no witness who saw Appellant get out of a vehicle ‘used in the shooting' and running with other subjects who had weapons in their hands, and no witness who claimed to have been told this information by any alleged witness, such as Charlie Boone," the attorney argues. "The State did not produce Charlie Boone." Indeed, the prosecution's key witness, the off-duty police officer, testified he saw no one other than Harris with a gun that day, including Jones. Jones is also due to a reversal of his convictions due to the prosecutor attacking his character by making false accusations, including asking him questions about misdemeanor convictions he committed while a juvenile and asking witnesses if they were aware of his earlier "involvement in a shooting at the Henderson gym between the Bloods and the Crips." The attorney argues the trial court was wrong to deny his motion asking the court to declare the Georgia Street Gang and Terrorism Prevention Act unconstitutional, which is vague and overly broad. While the state Supreme Court upheld the statute as constitutional in 2009 in Rodriguez v. State, "[t]he statute itself is unconstitutional on other grounds, and cannot be saved," the attorney argues. Specifically, "it contains within it and criminalizes conduct which can only be ascertained by referencing laws from jurisdictions which are not even named, let alone defined in the code section…."

            The state argues there was "overwhelming evidence" of Jones' guilt. Prior to trial, two of Jones' co-defendants entered guilty pleas, "admitting the shooting was committed in furtherance of the Southside Bloods street gang," the state writes in briefs. "Appellant ‘was a party to the aggravated assault. Although it is unclear who fired first in the melee, [Appellant]…fired his weapon. The jury…[found] that, even if the victim [was] not hit by [Appellant's] bullets, [he was] struck when [Crips] members and…other Southside [Bloods] members…fired during the gun battle." The state also argues that prosecutors did not improperly attack Jones' character by questioning witnesses about Jones' juvenile record or his involvement in a previous gang shooting. And the state also argues the anti-gang statute is constitutional and that the state Supreme Court has already ruled in Rodriguez that it is not unconstitutionally vague or overly broad. "A statute does not become constitutionally invalid merely because it does not define each and every term it contains," the state contends.

Attorney for Appellant (Jones): James Finkelstein

Attorneys for Appellee (State): Gregory Edwards, District Attorney, Matthew Breedon, Chief. Asst. D.A.