Dixon v. State

751 S.E.2d 69, 294 Ga. 40, 2013 Fulton County D. Rep. 3352, 2013 WL 5878163, 2013 Ga. LEXIS 891
CourtSupreme Court of Georgia
DecidedNovember 4, 2013
DocketS13A0954
StatusPublished
Cited by9 cases

This text of 751 S.E.2d 69 (Dixon v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dixon v. State, 751 S.E.2d 69, 294 Ga. 40, 2013 Fulton County D. Rep. 3352, 2013 WL 5878163, 2013 Ga. LEXIS 891 (Ga. 2013).

Opinion

HINES, Presiding Justice.

Jarmarvis Dixon appeals from his convictions and sentences for the malice murder of Thomas Vinson, and other crimes associated with that killing. For the reasons that follow, we affirm.1

Construed to support the verdicts, the evidence showed that Vinson was working on a rental house he owned. On the evening of December 22, 2006, Dixon and Ronregus Watts were walking on the sidewalk along the street on which Vinson’s rental house was located, and the two men approached Vinson near the door to the house. The men asked Vinson for directions, and one of them struck Vinson on the head with a pistol; the other man covered Vinson’s mouth with his hand. The men forced Vinson to relinquish his wallet, cell phone, and keys. One man went to Vinson’s pickup truck, started it, and maneuvered the truck out of the carport; the other man took Vinson inside the house and shot him.

Susan Mercer, a neighbor who lived down the street from Vinson’s rental house, was driving home that evening and noticed two men walking down the street; when Mercer pulled into her driveway and turned off her car, one of the men stood behind it. Suspicious, Mercer started her car again, backed it out of the driveway, drove away, and used her cell phone to call her husband. After relating the incident to him, he told her to return to their house and that Ken Allen, their neighbor who lived across the street, would assist her. After she arrived back at the house, Allen, having been telephoned by Mercer’s husband, arrived on foot; Mercer pointed out to Allen two [41]*41men down the street, and Allen escorted Mercer into her house. Allen then went to his vehicle, drove down the street, and saw two men leaning against the porch railing at Vinson’s house; Vinson’s truck was in the carport of the house, but Allen did not see Vinson. Allen turned his vehicle around, and as he approached Vinson’s house, he saw Vinson’s truck in the street with one man in the driver’s seat; Allen heard a loud noise “like a two-by-four hitting against the cement,” and a man ran from the house and jumped through the passenger’s side door of Vinson’s truck, which was then driven away. Allen followed the truck for a brief time and then placed a telephone call to emergency services and reported the truck as a stolen vehicle. Allen returned to Vinson’s house where he noticed blood in the carport, leading to the door of the house. Allen entered the house, found Vinson’s body in the first room, and was shortly joined by responding police officers. Vinson had been killed by a bullet, fired at close range, that entered his skull above his right eye; he also had multiple lacerations on his scalp.

A few days later, Dixon told his cousin, Shameka Neely, that he “got some money’ from “some dude” and produced Vinson’s obituary from his pocket. Dixon told Neely that he and Watts had killed Vinson, and showed her Vinson’s credit card that he and Watts had used to purchase items at a local grocery store. Dixon and Watts later returned to the same grocery store and tried to use the card again, but law enforcement officers were called and arrested them; Dixon had Vinson’s credit card in his possession,2 and clothing Dixon was wearing had DNA on it that matched that of Vinson.

1. On January 2, 2007, while Dixon was in custody, Neely contacted Detective Redding and told him that Dixon wanted the law enforcement investigators to know that he did not shoot Vinson; Neely also said that Dixon would talk to Redding if he went to the jail to speak with him. The next day, January 3, 2007, Redding went to the jail, told Dixon that he had spoken with Neely and that Neely said Dixon wished to speak with him, and asked Dixon whether he, in fact, wished to speak with him. Dixon responded by asking whether “he” —presumably Watts — gave a statement implicating Dixon. Redding repeated his inquiry as to whether Dixon wished to speak with him, and received a similar reply; Redding continued to ask if Dixon wished to speak with him, and Dixon protested that Redding was not answering his questions. Redding then informed Dixon that he would answer Dixon’s questions, but that first, Dixon must be informed of [42]*42his rights. Redding read Dixon the Miranda3 warnings, and Dixon waived his rights and agreed to talk with the detective.4

Dixon moved to exclude evidence of the January 3, 2007 interview, contending that it was conducted in violation of what he claims was a previously-invoked right to counsel. However, Dixon points to nothing in the record that shows he had previously invoked his Fifth Amendment right to have counsel present during custodial interrogation. Thus, nothing supports any claim that the January 3, 2007 waiver of the right to have counsel present during the interview was “insufficient to justify police-initiated interrogation [under Edwards v. Arizona, 451 U. S. 477, 484-485 (II) (101 SCt 1880, 68 LE2d 378) (1981)].” Sosniak v. State, 287 Ga. 279, 285 (1) (B) (695 SE2d 604) (2010). The fact that counsel was appointed for Dixon at a prior appearance before the trial court does not afford him relief under the Sixth Amendment in this circumstance. See Montejo v. Louisiana, 556 U. S. 778 (129 SCt 2079,173 LE2d 955) (2009); Sosniak, supra at n. 2. In any event, even assuming that Dixon had invoked his right to counsel prior to the January 3, 2007 interview, “an accused may waive the previously-invoked, right [to counsel] by initiating further communication with the police.” Tesfaye v. State, 275 Ga. 439, 441 (2) (569 SE2d 849) (2002) (Citations omitted.) And, the initiation of such communication can be done through a third person. See Borders v. State, 270 Ga. 804, 809 (3) (514 SE2d 14) (1999). See also Harvell v. State, 275 Ga. 129, 130 (2) (562 SE2d 180) (2002). Evidence supported the trial court’s determination that the interview of January 3, 2007 was at Dixon’s instigation, and it was not error to refuse to suppress the statements Dixon made during that interview. See Stokes v. State, 281 Ga. 825, 831 (6) (642 SE2d 82) (2007).5

2. Dixon contends that his trial counsel failed to provide effective representation. In order to prevail on this claim, he must show both [43]*43that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). To meet the first prong of the required test, he must overcome the “strong presumption” that counsel’s performance fell within a “wide range of reasonable professional conduct,” and that counsel’s decisions were “made in the exercise of reasonable professional judgment.” Id. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. Id. at 784. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different. Id. at 783.

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Bluebook (online)
751 S.E.2d 69, 294 Ga. 40, 2013 Fulton County D. Rep. 3352, 2013 WL 5878163, 2013 Ga. LEXIS 891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dixon-v-state-ga-2013.