Dukes v. State
| Decision Date | 17 May 2021 |
| Docket Number | S21A0399 |
| Citation | 858 S.E.2d 510,311 Ga. 561 |
| Court | Georgia Supreme Court |
| Parties | DUKES v. The STATE. |
Jackie Lynn Tyo, Georgia Public Defender Council Appellate Division, 270 Washington Street, Suite 5-145, Atlanta, Georgia 30334, for Appellant.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Leslie Anna Coots, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, David K. Getachew-Smith, Sr., Chief A.D.A., Lyndsey Hurst Rudder, Deputy D.A., Fani T. Willis, District Attorney, Fulton County District Attorney's Office, 136 Pryor Street, S.W., 3rd Floor, Atlanta, Georgia 30303, for Appellee.
Following a jury trial, Damarcus Antwuan Dukes was convicted of malice murder and related offenses in connection with crimes committed against Demarius Denham, Dankevion Chatman, and Uzamoake Moh.1 On appeal, Dukes raises three claims of trial court error. For the reasons discussed below, we affirm in part, vacate in part, and remand the case with direction.
1. Relevant to this appeal,2 the evidence presented at trial shows that, on November 30, 2018, Tony Hudgens, one of Dukes’ best friends, went to the apartment of a drug dealer known as "Bigs" to buy some marijuana. Sometime thereafter, Dukes arrived; Bigs sold Hudgens some marijuana and then told him to leave. As Hudgens left the apartment building, he saw a black Infiniti pull into the parking lot. Inside that car were Moh and her boyfriend, Curtis Derricott. Derricott got out of the car and went into one of the apartments while Moh stayed behind.3 Upon entering the apartment, Derricott got into an altercation with three men, ending with the men taking Derricott's cell phone, shoes, and money and then running out the back door.4
Moh, who was still waiting in her car, looked up and saw Dukes standing by her window with a gun by his side. Dukes told her, "Get the f**k out of the car before I blast you." Moh dropped her phone and got out of the car. As she ran, she watched Dukes and three other men get into her car and drive off. Just then, Derricott came out of the building. Moh and Derricott borrowed a phone, called 911, and headed to a nearby gas station to meet the police.
Hudgens, who had made his way to the breezeway of the nearby Ashford Oaks apartment complex, saw the same black Infiniti enter the parking lot and back into a spot. Hudgens saw Dukes step out of the car with three other men;5 the group emptied the car of its contents and then began selling the stolen items. At one point, Denham and Chatman, who knew Dukes, approached the group because Denham wanted to buy a toy car for his son. Chatman gave Denham a $100 bill, told Denham to go to a nearby gas station to purchase some drinks and cigarettes, and then return with the change to buy the toy.
When Denham arrived at the gas station, Derricott and Moh were speaking with the police. Derricott saw Denham, who was a family friend, and told him that he had just been robbed. Denham asked if Moh had an Infiniti because someone "just hit for an Infiniti," to which Derricott replied "yes." Moh stayed with officers at the gas station while Denham drove Derricott to the Ashford Oaks apartment complex. After Derricott identified Moh's car, Denham drove Derricott back to the gas station and told Derricott that he would get back all of Derricott's belongings.
Denham called Chatman and told him that Derricott had been robbed, and that the Infiniti parked at Ashford Oaks belonged to his friends. When Denham returned to Ashford Oaks, he and Chatman confronted Dukes about the robbery. Though Chatman remained calm, Denham became passionate during the discussion. When the verbal exchange between Denham and Dukes turned heated, Dukes brandished a gun and shot Denham. As Chatman attempted to move Denham away from the gunfire, Chatman was shot in the shoulder. Denham suffered five gunshot wounds to the torso and died at the scene. Chatman was shot multiple times, but was able to escape from the shooting before collapsing at a friend's nearby apartment.
At trial, a stipulation was read to the jury that Dukes was on first offender probation at the time of the November 2018 crimes. Dukes took the stand and testified that Denham became aggressive during their confrontation and eventually reached for a gun. He testified that he shot Denham in self-defense and also admitted shooting Chatman, but claimed it was an accident. Jerrod Williams was called as a witness for the defense and testified that, when Denham arrived in the breezeway, he was and was acting like "he was fittin’ to do something to us." Both Williams and Hudgens testified that, during the pre-shooting confrontation, Denham left the argument and returned with a gun on his waistband. However, no weapon was found at the scene of the shooting.
2. Dukes alleges that the trial court abused its discretion by allowing both Derricott and Hudgens to testify to inadmissible hearsay. The State argues that Derricott's testimony about a hearsay statement by Moh was properly admitted as an excited utterance, see OCGA § 24-8-803 (2), and that, though Chatman's statement was admitted in error through Hudgens’ testimony, that error was harmless. We agree with the State.
The record shows, in pertinent part, that Moh testified about the hijacking and robbery and identified Dukes as her assailant. She explained that, immediately after the carjacking, she saw Derricott and told him, "They stole my car." Derricott testified after Moh, and the following exchange occurred:
Dukes alleges that Derricott testified to inadmissible hearsay regarding Moh's statement about her car being stolen. We see no error. "[A] trial court's decision whether to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion." Lyons v. State , 309 Ga. 15, 21 (4), 843 S.E.2d 825 (2020). Here, the record shows that Moh was still in a state of excitement resulting from the robbery when she informed Derricott that her car was stolen. And (Citations and punctuation omitted.) Atkins v. State , 310 Ga. 246, 250 (2), 850 S.E.2d 103 (2020). Moh was crying when she told Derricott that her car had been stolen, and the statement was made immediately after the event. See Blackmon v. State , 306 Ga. 90, 94 (2), 829 S.E.2d 75 (2019) (). Accordingly, the trial court did not abuse its discretion by admitting Moh's hearsay statement into evidence.
Later in the State's case-in-chief, Chatman was called as a witness and testified concerning his initial discussion with Dukes regarding the robbery of Derricott and Moh. Specifically, Chatman testified, in pertinent part:
Chatman testified that, as Dukes was attempting to reach Bigs, Denham was talking passionately to the group in the breezeway and making a bit of a scene. Chatman explained that, when Dukes failed to reach Bigs, he yelled, "[T]his is bulls**t," which caused Denham to respond, "[A]in't nobody even talking to you."
Hudgens was called as a witness after Chatman. During his direct examination, Hudgens testified that, prior to the shooting, Dukes said that Bigs had "triple-crossed" him regarding the robbery. During this testimony, the following exchange occurred:
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