307 Ga. 545 FINAL COPY
S19A1396. DENSON v. THE STATE.
PETERSON, Justice.
Calvin Denson appeals his convictions for malice murder and
armed robbery in connection with the shooting death of Julian
Hernandez.1 Denson argues that the evidence was insufficient to
support his convictions; that the introduction of an audio recording
violated his rights under the Confrontation Clause because the
recording contained statements of a witness who did not testify at
1 The crimes occurred on September 9, 2011. In March 2012, a Muscogee
County grand jury indicted Denson and co-defendant Dominique Lowe for malice murder, three counts of felony murder (predicated on armed robbery, criminal attempt to commit a felony, and aggravated assault), and armed robbery. Denson and Lowe were tried together before a jury in April 2013. Two felony murder counts were nolle prossed, and the jury found Denson guilty of malice murder, felony murder predicated on armed robbery, and armed robbery. The jury found Lowe not guilty of malice murder but guilty on the remaining charges. The trial court sentenced Denson to life imprisonment for malice murder and a 20-year consecutive term for armed robbery; the felony murder conviction was vacated by operation of law. On May 7, 2013, Denson filed a timely motion for new trial through new counsel, and he amended the motion in May 2016. Following a hearing, the trial court denied Denson’s amended motion for new trial on February 20, 2019. Denson timely appealed, and his case was docketed to this Court’s August 2019 term and submitted for a decision on the briefs. trial and was not previously cross-examined; and that trial counsel
was ineffective in failing to object to certain statements made by the
prosecutor during closing arguments. We affirm because the
evidence was legally sufficient to support Denson’s convictions, the
audio recording did not contain testimonial statements and thus the
Confrontation Clause did not apply, and Denson failed to show a
reasonable probability that the outcome of his trial would have been
different had trial counsel objected to the challenged statements.
Viewed in the light most favorable to the jury’s verdicts, the
evidence shows that in September 2011, Julian Hernandez and Luis
Hernandez both worked on a construction project at Fort Benning
and shared a motel room in Columbus. On September 9, Julian
invited Stella Lindsey and Christina Clark to his motel room.
Julian, Luis, Lindsey, and Clark drank and talked for some time
before Luis said that he wanted some cocaine. Clark said she could
get some, and she called Dominique Lowe.
Lowe arrived at the hotel sometime later and brought crack
cocaine, but Julian and Luis said they wanted powder cocaine
2 instead. Julian pulled out all of his money and gave Lowe $60 to
bring back powder cocaine. Julian and Luis had just cashed their
paychecks and had more than $3,000 in cash between them.
Lowe left the hotel room and called Denson. While Lowe was
gone, Clark took a call from Marcus Price, who was in jail at the
time, and expressed concern that Lowe would not return. Lowe
returned to the motel with a small bag of powder cocaine. Luis and
the others did not believe that Lowe provided $60 worth of cocaine,
but Lowe assured them that it was “good stuff.” Clark was still on
the phone with Price at the time and passed the phone to Lowe. After
getting off the phone, Lowe left the motel room.
Less than a minute later, Denson walked into the motel room,
carrying a pistol and covering his face with a rag. Denson told
everyone to get on the floor and demanded their money. Julian
rushed Denson and a struggle ensued, causing Denson to drop the
rag covering his face and giving Lindsey a clear look at him.
Denson’s gun went off during the struggle, at which time Luis and
Clark, who was still on the phone with Price, ran into the bathroom.
3 The struggle continued and Denson fired several gunshots at Julian,
hitting him in his chest, left arm, right thigh, and left leg. Julian
died as a result of the gunshot wound to his chest.
Denson left the motel room, but returned about 30 seconds
later to search the room; while there, he wiped down the room.
Lindsey called 911 and found Julian’s wallet outside the motel room.
1. Denson argues that the evidence was insufficient to prove
that he committed the crimes for which he was convicted. We
disagree.
When we consider the sufficiency of the evidence, we view the
evidence in the light most favorable to the verdicts and evaluate
whether a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt of the crimes of which he was convicted.
See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d
560) (1979). “Under this review, we must put aside any questions
about conflicting evidence, the credibility of witnesses, or the weight
of the evidence, leaving the resolution of such things to the
discretion of the trier of fact.” Mims v. State, 304 Ga. 851, 853 (1) (a)
4 (823 SE2d 325) (2019) (citation and punctuation omitted).
Clark and Lindsey both identified Denson as the shooter in
photographic lineups and at trial. Denson argues that both women’s
identification testimony was not credible based on impeachment
evidence he introduced at trial. He also argues that their
identification testimony, by itself, was insufficient because it was
not corroborated by any physical evidence. The State was not
required to produce any physical evidence, however, because “the
testimony of a single witness is generally sufficient to establish a
fact, and the lack of corroboration with physical evidence only goes
to the weight of the evidence and the credibility of the testifying
witness, which is solely within the purview of the jury.” Johnson v.
State, 296 Ga. 504, 505 (1) (769 SE2d 87) (2015) (citation and
punctuation omitted); see also OCGA § 24-14-8 (“The testimony of a
single witness is generally sufficient to establish a fact.”).
Considering all the evidence in the light most favorable to the
verdicts, we conclude that the jury was authorized to find beyond a
reasonable doubt that Denson was guilty of the crimes of which he
5 was convicted.
2. Denson argues that, because Price was not available to
testify at trial, the trial court violated his Confrontation Clause right
by introducing into evidence an audio recording of the phone call
between Clark and Price that occurred during the commission of the
crime.2 Denson did not object to the admission of the audio recording
at trial,3 and so we review his claim only for plain error. See OCGA
§ 24-1-103 (d); see also Adams v. State, 306 Ga. 1, 3 (1) (829 SE2d
126) (2019) (plain error review under OCGA § 24-1-103 (d) is
available for unpreserved challenges to evidentiary rulings).
To establish plain error, Denson
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307 Ga. 545 FINAL COPY
S19A1396. DENSON v. THE STATE.
PETERSON, Justice.
Calvin Denson appeals his convictions for malice murder and
armed robbery in connection with the shooting death of Julian
Hernandez.1 Denson argues that the evidence was insufficient to
support his convictions; that the introduction of an audio recording
violated his rights under the Confrontation Clause because the
recording contained statements of a witness who did not testify at
1 The crimes occurred on September 9, 2011. In March 2012, a Muscogee
County grand jury indicted Denson and co-defendant Dominique Lowe for malice murder, three counts of felony murder (predicated on armed robbery, criminal attempt to commit a felony, and aggravated assault), and armed robbery. Denson and Lowe were tried together before a jury in April 2013. Two felony murder counts were nolle prossed, and the jury found Denson guilty of malice murder, felony murder predicated on armed robbery, and armed robbery. The jury found Lowe not guilty of malice murder but guilty on the remaining charges. The trial court sentenced Denson to life imprisonment for malice murder and a 20-year consecutive term for armed robbery; the felony murder conviction was vacated by operation of law. On May 7, 2013, Denson filed a timely motion for new trial through new counsel, and he amended the motion in May 2016. Following a hearing, the trial court denied Denson’s amended motion for new trial on February 20, 2019. Denson timely appealed, and his case was docketed to this Court’s August 2019 term and submitted for a decision on the briefs. trial and was not previously cross-examined; and that trial counsel
was ineffective in failing to object to certain statements made by the
prosecutor during closing arguments. We affirm because the
evidence was legally sufficient to support Denson’s convictions, the
audio recording did not contain testimonial statements and thus the
Confrontation Clause did not apply, and Denson failed to show a
reasonable probability that the outcome of his trial would have been
different had trial counsel objected to the challenged statements.
Viewed in the light most favorable to the jury’s verdicts, the
evidence shows that in September 2011, Julian Hernandez and Luis
Hernandez both worked on a construction project at Fort Benning
and shared a motel room in Columbus. On September 9, Julian
invited Stella Lindsey and Christina Clark to his motel room.
Julian, Luis, Lindsey, and Clark drank and talked for some time
before Luis said that he wanted some cocaine. Clark said she could
get some, and she called Dominique Lowe.
Lowe arrived at the hotel sometime later and brought crack
cocaine, but Julian and Luis said they wanted powder cocaine
2 instead. Julian pulled out all of his money and gave Lowe $60 to
bring back powder cocaine. Julian and Luis had just cashed their
paychecks and had more than $3,000 in cash between them.
Lowe left the hotel room and called Denson. While Lowe was
gone, Clark took a call from Marcus Price, who was in jail at the
time, and expressed concern that Lowe would not return. Lowe
returned to the motel with a small bag of powder cocaine. Luis and
the others did not believe that Lowe provided $60 worth of cocaine,
but Lowe assured them that it was “good stuff.” Clark was still on
the phone with Price at the time and passed the phone to Lowe. After
getting off the phone, Lowe left the motel room.
Less than a minute later, Denson walked into the motel room,
carrying a pistol and covering his face with a rag. Denson told
everyone to get on the floor and demanded their money. Julian
rushed Denson and a struggle ensued, causing Denson to drop the
rag covering his face and giving Lindsey a clear look at him.
Denson’s gun went off during the struggle, at which time Luis and
Clark, who was still on the phone with Price, ran into the bathroom.
3 The struggle continued and Denson fired several gunshots at Julian,
hitting him in his chest, left arm, right thigh, and left leg. Julian
died as a result of the gunshot wound to his chest.
Denson left the motel room, but returned about 30 seconds
later to search the room; while there, he wiped down the room.
Lindsey called 911 and found Julian’s wallet outside the motel room.
1. Denson argues that the evidence was insufficient to prove
that he committed the crimes for which he was convicted. We
disagree.
When we consider the sufficiency of the evidence, we view the
evidence in the light most favorable to the verdicts and evaluate
whether a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt of the crimes of which he was convicted.
See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d
560) (1979). “Under this review, we must put aside any questions
about conflicting evidence, the credibility of witnesses, or the weight
of the evidence, leaving the resolution of such things to the
discretion of the trier of fact.” Mims v. State, 304 Ga. 851, 853 (1) (a)
4 (823 SE2d 325) (2019) (citation and punctuation omitted).
Clark and Lindsey both identified Denson as the shooter in
photographic lineups and at trial. Denson argues that both women’s
identification testimony was not credible based on impeachment
evidence he introduced at trial. He also argues that their
identification testimony, by itself, was insufficient because it was
not corroborated by any physical evidence. The State was not
required to produce any physical evidence, however, because “the
testimony of a single witness is generally sufficient to establish a
fact, and the lack of corroboration with physical evidence only goes
to the weight of the evidence and the credibility of the testifying
witness, which is solely within the purview of the jury.” Johnson v.
State, 296 Ga. 504, 505 (1) (769 SE2d 87) (2015) (citation and
punctuation omitted); see also OCGA § 24-14-8 (“The testimony of a
single witness is generally sufficient to establish a fact.”).
Considering all the evidence in the light most favorable to the
verdicts, we conclude that the jury was authorized to find beyond a
reasonable doubt that Denson was guilty of the crimes of which he
5 was convicted.
2. Denson argues that, because Price was not available to
testify at trial, the trial court violated his Confrontation Clause right
by introducing into evidence an audio recording of the phone call
between Clark and Price that occurred during the commission of the
crime.2 Denson did not object to the admission of the audio recording
at trial,3 and so we review his claim only for plain error. See OCGA
§ 24-1-103 (d); see also Adams v. State, 306 Ga. 1, 3 (1) (829 SE2d
126) (2019) (plain error review under OCGA § 24-1-103 (d) is
available for unpreserved challenges to evidentiary rulings).
To establish plain error, Denson
must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity[,] or public reputation of judicial proceedings.
2 The phone call had been recorded because Price was an inmate at the
time.
Co-defendant Lowe raised a Confrontation Clause objection, but 3
Denson did not join Lowe’s objection. 6 State v. Herrera-Bustamante, 304 Ga. 259, 264 (2) (b) (818 SE2d 552)
(2018) (citation and punctuation omitted). The failure to meet one
element of this test dooms a plain error claim, see id., and so it is
here.
A Confrontation Clause violation occurs when an out-of-court
“testimonial” statement is admitted into evidence and the declarant
is unavailable at trial and was not previously subjected to cross-
examination. See Crawford v. Washington, 541 U. S. 36, 68 (124 SCt
1354, 158 LE2d 177) (2004). “A statement is testimonial if its
primary purpose was to establish evidence that could be used in a
future prosecution.” Favors v. State, 296 Ga. 842, 845 (2) (770 SE2d
855) (2015) (citation and punctuation omitted).
Here, the recorded phone call contains statements from Price
to Clark, but also statements from Price to unknown inmates and
Price’s friends and family whom Clark contacted using a three-way
call feature. Denson does not identify which of Price’s statements
were objectionable, but even considering all of them, none were
testimonial. Price’s statements were made shortly before and during
7 the crimes — before Lowe and Denson were arrested for their
involvement. Price’s statements to Clark, family and friends, and
unknown inmates at the jail were not made to assist a future
prosecution and, thus, are not testimonial. See Allen v. State, 300
Ga. 500, 504 (3) (796 SE2d 708) (2017) (co-defendant’s statements
made to a third party shortly after crimes and before any arrests
were not testimonial). As a result, there was no error, much less
plain error, in admitting the recording.
3. Denson argues that trial counsel was ineffective for failing
to object to two statements made by the prosecutor during closing
arguments. Denson argues that the prosecutor’s statement that
Denson was part of a group that sold drugs was not supported by
any trial evidence, and that the prosecutor improperly commented
on Price’s character by referring to him as a drug dealer. Denson did
not preserve this ineffective assistance claim because he did not
raise it in his motion for new trial, as amended, or at the hearing on
that motion, nor did he obtain a ruling on such claim from the trial
court. See Prince v. State, 295 Ga. 788, 793 (2) (b) (764 SE2d 362)
8 (2014). But even if the claim had been preserved, it would fail.
For Denson to prevail on any of his claims, he must satisfy the
familiar standard of Strickland v. Washington, 466 U. S. 668, 687
(104 SCt 2052, 80 LE2d 674) (1984), which requires a showing both
that trial counsel’s performance was constitutionally deficient and
that Denson was prejudiced by this deficient performance. See
Mims, 304 Ga. at 854-855 (2). Even if a defendant shows that his
trial counsel was constitutionally deficient, he must also prove that
he was prejudiced as a result, which requires a showing of “a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Davis v.
State, 299 Ga. 180, 183 (2) (787 SE2d 221) (2016) (citation and
punctuation omitted).
Even if the prosecutor’s comments were inappropriate, Denson
cannot show that trial counsel’s failure to object prejudiced him, and
his ineffectiveness claim fails on this basis. See Leanos v. State, 303
Ga. 666, 669 (2) (814 SE2d 332) (2018) (“[A] failure to meet either of
the [Strickland] prongs is fatal to an ineffectiveness claim.”). It is
9 difficult to believe that any reference regarding the character of
Price, who was not connected to the charged crimes and who the jury
already knew was in prison, would have affected the outcome of
Denson’s trial. And the jury had already heard evidence connecting
Denson to Lowe, who sold drugs to the victims. In addition, the
prosecutor’s statements were not evidence, and the trial court
properly instructed the jury as much. See Kidd v. State, 304 Ga. 543,
545 (2) (820 SE2d 46) (2018) (holding that prosecutor’s comment
during opening statements, even if considered improper, was not
harmful in part due to jury instruction that counsel’s arguments are
not evidence). Moreover, the evidence against Denson was strong ⸺
two eyewitnesses identified Denson as the shooter. Given this
record, Denson cannot establish a reasonable probability that the
outcome of his trial would have been different had counsel objected.
Judgment affirmed. All the Justices concur.
DECIDED DECEMBER 23, 2019. Murder. Muscogee Superior Court. Before Judge Mullins. Hagler, Jackson & Walters, Richard C. Hagler, for appellant.
10 Julia F. Slater, District Attorney, George E. Lipscomb II, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth H. Brock, Assistant Attorney General, for appellee.