Dulcio v. State

• Decision Date: 25 March 2013
• Docket Number: Nos. S12A1371,S12A1372.,s. S12A1371
• Citation: 740 S.E.2d 574,292 Ga. 645
• Parties: DULCIO v. The STATE. Morrison v. The State.
• Court: Georgia Supreme Court

292 Ga. 645

740 S.E.2d 574

DULCIO

v.The STATE.

Morrison

v.The State.

Nos. S12A1371, S12A1372.

Supreme Court of Georgia.

March 25, 2013.

Brandon Lewis, for appellant (case no. S12A1371).

Brenda Joy Bernstein, Atlanta, Lauren Elizabeth Goodhart, Sandy Springs, for appellant (case no. S12A1372).

Paul L. Howard, Jr., Dist. Atty., Christopher Michael Quinn, Paige Reese Whitaker, Asst. Dist. Attys., Paula Khristian Smith, Senior Asst. Atty. Gen., Clint Christopher Malcolm, Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., for appellee.

HINES, Justice.

Jeff Dulcio appeals his convictions for malice murder and possession of a firearm during the commission of a felony, and co-defendant Michelle Morrison appeals her convictions for felony murder while in the commission of aggravated assault and possession of a firearm during the commission of a felony, all in connection with the fatal shooting of Keith Brown. Dulcio challenges the sufficiency of the evidence and Morrison challenges the admission into evidence of certain testimony at trial; both claim that their respective trial attorneys were ineffective. For the reasons that follow, the challenges are without merit, and the convictions of both defendants are affirmed.¹

The facts construed in favor of the verdicts showed the following. On the evening of June 11, 2007, Dulcio, Morrison, Rutledge, and Stephen Woods, were together in Rutledge's hotel room. Rutledge, who ran an escort service, received a telephone call from Keith Brown, requesting the services of a prostitute. Rutledge had earlier been told by one of her prostitutes that Brown kept at least $40,000 in cash in his apartment, and Rutledge decided to send Morrison, one of her prostitutes, with Dulcio and Woods to Brown's apartment to rob Brown. Rutledge gave Dulcio a .380 caliber handgun, and Morrison drove Rutledge, Dulcio, and Woods to Brown's apartment complex. On their way, the four discussed how they would distribute the proceeds of the armed robbery.

Upon arrival, Woods was hesitant about robbing Brown, but Dulcio was “down to go with it” stating “f—this, man, I'm going to do what I got to do, and I ain't scared.” Rutledge and Morrison remained in the vehicle. Dulcio, with the .380 caliber pistol and wearing latex gloves, approached the balcony of Brown's apartment with Woods following at a distance. Dulcio jumped onto the balcony and began firing into the apartment. Woods, who did not have a weapon, ran back towards the vehicle. Rutledge, Morrison, and Woods could not locate Dulcio, and after hearing sirens, fled the scene. On their way back to Rutledge's hotel room, Dulcio telephoned Rutledge and pleaded with her to pick him up. Dulcio stated, “I think I killed him.” Rutledge telephoned another individual, Rick Shinault, who picked up Dulcio and brought him back to Rutledge's hotel room. Dulcio managed to elude the police and dispose of the handgun while waiting for his ride. Once back at Rutledge's hotel room, Dulcio bragged, “I killed him and then I seen him and I emptied the clip.”

In the early morning hours of June 12, 2007, Brown's neighbor heard gunshots, and from his balcony saw a man generally fitting Dulcio's description walking very quickly towards the exit of the gated apartment complex. The neighbor was able to get a “clear view” of the man—he was wearing black clothing and a bandana and was carrying a handgun, and when this man saw the neighbor watching him, he attempted to hide his handgun. Around 11:00 p.m. on June 11, 2007, another neighbor of Brown's brought food to Brown's apartment, and Brown told him that a prostitute was coming over later that night. In the past, this neighbor had seen a prostitute at Brown's apartment, who generally fit Morrison's description, including that she was wearing a pink wig; during that encounter, Brown had given the prostitute the entrance code to the apartment complex.

Brown's body was found inside his apartment; the body was riddled with bullet holes. Brown had sustained five gunshot wounds; the fatal bullet entered his chest in the armpit area, passed through a lung, and exited through the center of his back. The wounds were consistent with those produced by projectiles from a .380 caliber handgun. The police found Brown's glass balcony door shattered, and the bushes around the balcony trampled. A white latex glove found in the parking lot of Brown's apartment complex bore Dulcio's DNA. Cell phone records linked Brown and Morrison and Woods and Dulcio.

1. Dulcio contends that the State's case was based upon hearsay and circumstantial evidence, which did not exclude every reasonable hypothesis but that of his guilt; therefore, the evidence was insufficient as a matter of law to convict him of any crime. But, that is far from accurate.

As noted, the State's case was not based on hearsay or solely circumstantial evidence. There were, inter alia, multiple witnesses testifying as to Dulcio's direct involvement in Brown's murder; Dulcio's incriminating statements concerning his involvement; and found physical evidence placing Dulcio at the crime scene. In any event, the relevant inquiry on appeal when the sufficiency of the evidence is challenged is whether the evidence, when it is viewed in a light most favorable to the verdict or verdicts, would authorize a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the crime or crimes charged. Nichols v. State, 292 Ga. 290, 736 S.E.2d 407 (2013). Even accepting the premise that the evidence is solely circumstantial, in order to warrant a conviction the proved facts must be consistent with the hypothesis of guilt and exclude every other reasonable hypothesis save that of the guilt of the accused; generally, the reasonableness of hypotheses are for the jury to resolve. Id.

In this case, the evidence was sufficient to enable the jury to find both Dulcio and Morrison guilty beyond a reasonable doubt of the crimes of which they were convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Morrison contends that the trial court committed reversible error when it denied her motion for mistrial after State's witness Shinault gave testimony that co-indictee Rutledge, who was a fugitive at the time of trial, allegedly told him that the murder was Morrison's fault.² She urges that the statements were hearsay and violative of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Whether to grant a motion for a mistrial is within the sound discretion of the trial court, and this Court will not disturb the ruling on appeal unless it resulted from a manifest abuse of that discretion. Curry v. State, 291 Ga. 446, 452(4), 729 S.E.2d 370 (2012). In this case, the trial court twice instructed the jury to strike the comments from its consideration and to disregard that portion of Shinault's testimony, and there was no abuse in failing to grant a mistrial.

First, the statements did not constitute inadmissible hearsay. Pursuant to former OCGA § 24–3–5,³ statements made by a co-conspirator during the pendency of the criminal project, including in the concealment phase, are admissible against all other co-conspirators. Dyer v. State, 287 Ga. 137, 141(5), 695 S.E.2d 15 (2010). Here, there was evidence of the existence of an agreement among Rutledge, Dulcio, Morrison, and Woods to forcibly rob the victim, which triggered the events culminating in the victim's murder. The statements made by Rutledge plainly qualify as those made by a co-conspirator. Id.

As for an alleged violation of Bruton requiring the reversal of Morrison's convictions, the argument fails as well.

In Bruton, the U.S. Supreme Court ruled that the admission of the confession of a non-testifying co-defendant inculpating the defendant deprived the defendant of the right to cross-examine witnesses, included in the Sixth Amendment right to confront witnesses, even when the admission of the co-defendant's statement was accompanied by an instruction limiting the jury's consideration of the confession to the case against the confessing co-defendant.

Hanifa v. State, 269 Ga. 797, 801(2), 505 S.E.2d 731 (1998). But, Bruton prohibits only statements by a non-testifying co-defendant that directly inculpate the defendant; it is not violated if a co-defendant's statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence. Moss v. State, 275 Ga. 96, 99(2), 561 S.E.2d 382 (2002). The meaning of Shinault's recounting of statements about Morrison is unclear; it is just as credibly interpreted as Rutledge saying that Morrison was responsible for an argument which ensued prior to the shooting. And, the statements were non-testimonial. See Colton v. State 292 Ga. 509, 739 S.E.2d 380, 2013 WL 776733 (2013). Even assuming arguendo, that the recounting of Rutledge's statements did constitute a Bruton violation, the statements echoed other evidence that was admitted at trial, and therefore, cannot provide a basis for reversal of Morrison's convictions. Zackery v. State, 286 Ga. 399, 402(3), 688 S.E.2d 354 (2010).

3. Both Dulcio and Morrison contend that their separate trial attorneys were ineffective in numerous respects. However, in order to prevail on a claim of ineffective assistance of trial counsel, an appellant has to demonstrate that his or her attorney's performance was deficient, and that the deficiency caused such prejudice that there is a reasonable likelihood that, but for the attorney's error, the outcome at trial would have been different; in so doing, appellant must overcome the strong presumption that counsel's conduct fell within the range of reasonable professional conduct, which is broad. Sanford v. State, 287 Ga. 351, 356(5), 695 S.E.2d 579 (2010), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In its review, this Court gives deference to the trial court's factual findings, which...