An Albany man convicted in 2010 for violating Georgia Street Gang Terrorism Act could soon be a free man.
The Georgia Supreme Court found evidence was insufficient to prove Tchywaskie Lamar Jones was linked to a gang that was part of a shootout outside Carver Pool on June 16, 2009.
A jury found Jones guilty on both gang and aggravated assault charges. Both convictions were reversed. Under Georgia Law, the state cannot retry Jones on gang charges. However, prosecutor could still pursue a retrial on charges of aggravated assault.
Below is a summary of the high courts opinion.
In today's unanimous opinion, the high court has also reversed Jones' conviction for aggravated assault. Although the evidence was "legally sufficient to sustain the aggravated assault conviction," it must be reversed because the judge failed to direct jurors to ignore the prosecutor's unsupported statement in closing arguments that Jones had been involved in previous gang-related violence.
"Here, the evidence against Jones was not overwhelming, and it was highly prejudicial for the prosecuting attorney to argue that Jones had been involved in a prior gang shooting," Justice Keith Blackwell writes in today's opinion. "For these reasons, we cannot conclude that the generalized standard instruction given by the trial court was sufficient to cure the prejudice worked by the improper argument of the prosecuting attorney or that the failure of the trial court to do something more was harmless."
Jones, 27, is currently serving his sentence for both crimes in Hays State Prison.
According to the evidence at trial, 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 young women. One of the young women was holding a baby, who was struck. When the baby's father, Dabkowski Luke, heard about it, he, Jones, and at least three 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." At some point, someone yelled out, "Y'all take y'all's slob asses back where you came from." According to the state, "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 by Harris. According to an off-duty police officer, who was nearby, multiple gunshots were fired. The state contended Jones came to the pool with a .22 caliber pistol. And a witness reported that Jones fired his weapon, although that witness denied having made such a statement when he testified at trial. 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. A shell casing at the scene was consistent with being fired from Jones' gun. The state contended that Jones and his fellow Bloods gang members instigated the shooting by entering Crips gang territory.
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 then appealed to the state Supreme Court, arguing that the state never introduced any evidence at trial that Jones "had ever been a member of, employed by, or associated with any street gang, including the Southside Bloods." In today's opinion, the high court agrees.
"Although there was some evidence presented at trial about the existence and activities of the Southside Bloods, the State inexplicably failed to adduce any evidence that Jones was associated with the Southside Bloods or that his commission of an aggravated assault was intended in any way to further the interests of the Southside Bloods," the19-page opinion says. "No witness testified that Jones was a member of the Southside Bloods. No witness testified that those accompanying Jones at the time of the shooting were members of the Southside Bloods. No witness testified that Jones was associated in any way with the Southside Bloods." The state never identified who made the statement about "slob asses" or showed whether Jones had even arrived at the scene when it was made. "Because the evidence, even when viewed in the light most favorable to the State, is insufficient to show that Jones participated in criminal street gang activity while associated with a criminal street gang, his conviction under the Street Gang Act must be reversed," the opinion says.
In closing arguments, the prosecuting attorney improperly attempted to link Jones to an earlier gang-related shooting, stating, "there was a previous incident of gang violence between the Bloods and the Crips at the Henderson Gym. And then come to find out, who was there when all of that happened at Henderson Gym that day? Tchywaskie Jones." The state provided no evidence to support its claim, and Jones' lawyer immediately moved for a mistrial. Under state law, the judge was required to "rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds," or order a mistrial, today's opinion says. "But instead of directing the jurors to disregard the unsupported statement by the prosecuting attorney and admonishing him, the trial court gave only the standard jury charge that opening statements and closing arguments are not evidence." The judge refused to give any further instructions. "We conclude that the general instruction given by the trial court was an inadequate curative measure and did not serve ‘to remove the improper impression from [the jurors'] minds,'" as required by state law.
"Accordingly, the aggravated assault conviction also must be reversed."
Under today's opinion, the state may not retry Jones for violating the anti-gang statute. However, if he is retried for aggravated assault, the opinion allows the state to use the evidence seized as a result of the search warrant, even though the affidavit supporting the warrant contained several false statements, including that Jones was arguing with the victim before he was shot. Jones argued that as a result of the affidavit, the evidence should be suppressed. The state Supreme Court disagrees.
"Because the affidavit demonstrates the existence of probable cause, this enumeration of error has no merit," the opinion says.
Attorney for Appellant (Jones): James Finkelstein
Attorneys for Appellee (State): Gregory Edwards, District Attorney, Matthew Breedon, Chief. Asst. D.A.