Dublin v. State

• Decision Date: 13 September 2017
• Docket Number: S17A0822.
• Parties: DUBLIN v. The STATE.
• Court: Georgia Supreme Court

302 Ga. 60

805 S.E.2d 27

DUBLIN

v.The STATE.

S17A0822.

Supreme Court of Georgia.

Decided: September 13, 2017

James Kenneth Luttrell, P.O. Box 4104, Canton, Georgia 30114, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Scott Orion Teague, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Leigh Ellen Patterson, District Attorney, Emily Griffin Johnson, A.D.A., FLOYD COUNTY DISTRICT ATTORNEY'S OFFICE, 3 Government Plaza, Suite 108, Rome, Georgia 30161, for Appellee.

Peterson, Justice.

Willie Dublin appeals his convictions for felony murder and other crimes stemming from the fatal shooting of Terry Slack during an attempted robbery.¹ He raises an ineffective assistance of counsel claim based on his counsel's failure to object to hearsay and what he contends was an improper comment on his pre-trial silence, as well as other enumerations of error related to the admission of additional hearsay and other acts evidence. We conclude that the alleged hearsay was admissible under the co-conspirator exception to the hearsay rule. Dublin has not shown that trial counsel's failure to object to a detective's comment on his silence prejudiced his defense. And we find that the trial court did not abuse its discretion in denying a mistrial after a witness alluded to some prior bad acts. We also reject Dublin's argument that the evidence was insufficient to support his convictions and we therefore affirm them. We vacate the judgment in part, however, as the trial court erred by merging the count of aggravated assault with intent to rob into the offense of felony murder, and we remand for the trial court to sentence Dublin on that aggravated assault count.

The evidence presented at trial showed that Dublin, co-defendants Darnell Mitchell and Dewayne Reynolds, and others gathered at Reynolds's home to celebrate New Year's Eve on December 31, 2012. Dublin admittedly had a Glock handgun with him that night. Mitchell testified that he, Reynolds, and Dublin discussed robbing Slack, who lived one street away and was believed to have marijuana in his shed. Reynolds's live-in girlfriend, Judy Cronan (his wife by the time of trial), testified that she overheard the three men talking on her porch that night and "they were talking about doing a lick or a hit or something like that." Dublin's brother, Terrence Redwine, told police that he was with the other three men that evening and admitted to hearing them making plans to rob someone. Slack was fatally shot in the back that night, but there was conflicting evidence at trial as to who pulled the trigger.

A neighbor, Davonte Mostiller, testified that he saw four people in an abandoned lot across from Slack's house as he walked home from the store that night. He said he could not tell whether they were men or women because it was dark. He observed that one was wearing a blue and white striped collared shirt. Evidence at trial showed that Dublin and Mitchell were wearing dark clothingthat night, and Reynolds wore a blue and white striped collared shirt. Redwine testified that he, Dublin, Mitchell, and Reynolds went to the vacant lot that night—Redwine testified that he did not know why they were there—then turned back to Reynolds's house after about 10 or 15 minutes.

Mitchell and Reynolds² testified at Dublin's trial. Mitchell testified that he proceeded to Slack's house with Dublin and Reynolds and lingered in the vacant lot for about 10 minutes, but they turned back after they believed they were observed by Mostiller, and that he left Reynolds's house thereafter. Mitchell said he later spoke with Reynolds, who said, "I didn't mean to shoot him." In his trial testimony, Reynolds denied going to Slack's house that night, but the jury heard a recording of a police interview in which Reynolds admitted that he, Mitchell, and Dublin went to Slack's house. In that interview, Reynolds claimed Dublin was the shooter.

Cronan (Reynolds's wife) testified that on the day after the shooting she overheard Dublin, Mitchell, and Reynolds discussing Slack's death, including that they did not intend to kill him. Mitchell's girlfriend, Tonya Dupree, also testified that at some point she overheard Dublin, Mitchell, and Reynolds talking about the shooting. Based on her eavesdropping, Dupree testified she understood "they was trying to rob him, and I guess a struggle came out or whatever, and they said Willie Dublin froze up. He wouldn't shoot when they told him to shoot or whatever, so Dewayne Reynolds snatched the gun, and he shot."

Dublin's girlfriend, Kristina Watson, initially rebuffed investigators' attempt to speak with her. She ultimately cooperated, however, leading investigators to a pond where she and Dublin had disposed of the gun (which she had given him). Watson testified at trial that Dublin asked her to lie to the police for him regarding the events of New Year's Eve. She testified that she heard Reynolds confess to shooting Slack and that Dublin told her that he had given Reynolds the gun. She also testified that she heard Mitchell, Reynolds, and Dublin discussing their alibis.

Dublin testified at trial. He acknowledged being at Reynolds's home on New Year's Eve. He testified that at some point in the evening he followed Reynolds to Slack's house and witnessed Reynolds pull the trigger of a gun while standing no more than five or six feet away from Slack, then hand Dublin the gun. But Dublin testified that he did not know of any plan for a robbery and was surprised by the shooting. Dublin admitted that the gun used to shoot Slack was his, that he later disposed of it, and that he had Watson lie for him.

Convicted of felony murder and other crimes, Dublin argued in an amended motion for new trial that the trial court erred by admitting hearsay testimony by Dupree and by not declaring a mistrial when Reynolds testified as to other bad acts by Dublin, and that trial counsel was ineffective for failing to object to certain hearsay testimony or a detective's remark that Dublin had declined to speak with police. The trial court denied the motion, and this appeal followed.

1. Dublin argues that his trial counsel was ineffective for failing to object to inadmissible hearsay from Kristina Watson and Judy Cronan. We conclude that any objection to this testimony would have been futile.

In order to establish that trial counsel was ineffective, Dublin must show both that trial counsel's performance was deficient, and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The failure to pursue a futile objection does not amount to ineffective assistance." Ventura v. State, 284 Ga. 215, 218 (4), 663 S.E.2d 149 (2008). "We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003) (citation and punctuation omitted).

Dublin argues that counsel should have objected to Cronan's testimony that she overheard certain statements both on New Year's Eve and the following day. She testified that she overheard Dublin, Mitchell, and Reynolds planning a robbery the night of the shooting. Cronan also testified that the following day she overheard Dublin, Mitchell, and Reynolds discussing Slack's death, and encouraging each other "not to say anything." Dublin also argues that trial counsel should have objected to testimony by Watson that she overheard the men discussing possible alibis the day after the shooting. In denying Dublin's motion for new trial, the trial court ruled that the testimony of the two women was admissible because the statements fell within the co-conspirator exception to the hearsay rule and the witnesses could identify the people they overheard speaking.

Dublin argues that the testimony of neither Watson nor Cronan falls under the hearsay exception because the State failed to establish a conspiracy between Dublin and his co-defendants independent of the alleged co-conspirator declarations. Under OCGA § 24–8–801 (d) (2) (E), a statement by a defendant's co-conspirator made "during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy[,]" is not excluded by the hearsay rule when offered against the defendant. A conspiracy need not be charged in order for the exception to apply. OCGA § 24–8–801 (d) (2) (E). For evidence to be admissible under this rule, the government must prove the existence of a conspiracy by a preponderance of the evidence. United States v. Hasner, 340 F.3d 1261, 1274 (11th Cir. 2003).³ In determining the existence of a conspiracy, the trial court may consider both the co-conspirator's statements and independent external evidence, although the co-conspirator's statement alone does not suffice. Id. In considering whether a conspiracy was established for purposes of the rule, we do not require that the conspiracy be proven prior to the admission of the evidence in question, but only that the conspiracy was proven at trial. Id. at 1274–1275.⁴ Here, the State established by a preponderance that Dublin, Reynolds, and Mitchell conspired to rob Slack, and so Dublin's argument fails.

Dublin also argues that the testimony of Watson and Cronan was inadmissible as unreliable because the women did not specify who said what in the conversations they purportedly overheard. Dublin quotes a U.S. Supreme Court opinion construing the Confrontation Clause for the proposition that "hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." Lilly v. Virginia, 527 U.S. 116, 138, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (citation and punctuation...