302 Ga. 60 FINAL COPY
S17A0822. DUBLIN v. THE STATE.
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
1 Slack was killed on December 31, 2012. In an indictment filed on February 21, 2014, Dublin was charged with malice murder, felony murder, two counts of aggravated assault, and possession of a firearm during the commission of a felony. After a February 2015 trial, a jury acquitted Dublin of malice murder and found him guilty of the other counts. On March 17, 2015, the trial court sentenced Dublin to life without the possibility of parole on the felony murder count and five years’ imprisonment on the firearm count and merged the two counts of aggravated assault into felony murder. Trial counsel filed a motion for new trial on March 19, 2015. An amended motion for new trial was filed by appellate counsel on May 18, 2016. The trial court denied the motion on July 5, 2016. Dublin filed a notice of appeal on July 20, 2016, and the case was docketed to the term beginning in April 2017 and submitted for a decision on the briefs. 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
2 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
clothing that 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
2 Prior to Dublin’s trial, Reynolds was tried and convicted of felony murder and other crimes and sentenced to life in prison for the felony murder and five years to serve consecutively for possession of a firearm during the commission of a crime. We affirmed Reynolds’s convictions. See Reynolds v. State, 299 Ga. 781 (792 SE2d 393) (2016). The record suggests that Mitchell’s case had not been resolved at the time of Dublin’s trial.
3 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
4 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
5 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 SCt 2052, 80 LE2d 674) (1984). “The failure to pursue a futile
objection does not amount to ineffective assistance.” Ventura v. State, 284 Ga.
215, 218 (4) (663 SE2d 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 SE2d 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
6 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. Id. 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.
7 Hasner, 340 F3d 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
3 Where a provision of our new Evidence Code is borrowed from the Federal Rules of Evidence, we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the Supreme Court of the United States and the Eleventh Circuit. See Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d 633) (2016). Although OCGA § 24-8-801 (d) (2) (E) contains some language the federal rule does not, the additional language in the Georgia rule is drawn from federal case law. See Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 473 (5th ed. 2016). 4 Even under the old Evidence Code, we did not require the State to make out a prima facie case of conspiracy prior to the introduction of the statements, notwithstanding that the rule explicitly provided that co-conspirator declarations shall be admissible “[a]fter the fact of conspiracy is proved[.]” See Williams v. State, 293 Ga. 750, 753 (2) (749 SE2d 693) (2013).
8 the conversations they purportedly overheard. Dublin quotes a United States
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 SCt 1887, 144
LE2d 117) (1999) (citation and punctuation omitted). But to the extent that any
of the Lilly analysis has survived subsequent decisions, see Crawford
v.Washington, 541 U.S. 36 (124 SCt 1354, 158 LE2d 177) (2004), its
requirement of reliability certainly does not apply to nontestimonial statements
such as those made in furtherance of a conspiracy. See McClendon v. State, 299
Ga. 611, 617-618 (4) (b) (791 SE2d 69) (2016). Because Dublin’s arguments
as to the admissibility of Watson’s and Cronan’s testimony are unavailing, his
ineffectiveness claim based on trial counsel’s failure to object to that testimony
fails. See Ventura, 284 Ga. at 218 (4).
2. Relatedly, Dublin also argues that the trial court erred by allowing
Tonya Dupree to give hearsay testimony over trial counsel’s objection. Dublin
contends that the admission of this testimony was error because the State failed
to establish a conspiracy independent of the alleged co-conspirator declarations
9 and because the testimony lacked sufficient indicia of reliability due to Dupree’s
failure to identify who made the statements in question.5 Dublin’s first
argument is foreclosed by our conclusion above that the State did prove a
conspiracy by a preponderance of the evidence. And, again, the State need not
show any particular reliability of the declarants’ statements for Confrontation
Clause purposes.
3. Dublin argues that his trial counsel also was ineffective for failing to
object to a detective’s testimony that Dublin did not show a willingness to talk
to police. We disagree.
Detective Jeff Richerson testified that he attempted to speak with Watson,
Dublin’s girlfriend, a few days after the shooting. Asked whether Watson
wanted to speak with him, Richerson testified without objection, “No, not at
first. Myself and the other investigator went down to Willie Dublin’s house on
Maple and tried to talk with him and her, and neither one of them showed any
kind of willingness to talk with us, so we left the house.” Dublin argued in his
5 To the extent that a conclusory clause in a sentence of Dublin’s opening appellate brief raises a question as to whether the statements to which Dupree testified were made “during the course and in furtherance of the conspiracy” under OCGA § 24-8-801 (d) (2) (E), Dublin has failed to make any argument or offer any authority on that point, and, therefore, we do not consider any such argument. See Supreme Court Rule 22.
10 amended motion for new trial and contends on appeal that this amounted to a
violation of the rule articulated in Mallory v. State, 261 Ga. 625 (409 SE2d 839)
(1991), overruled on other grounds by Clark v. State, 271 Ga. 6, 10 (5) (515
SE2d 155) (1999). We held in Mallory that it is impermissible to comment on
a criminal defendant’s silence or failure to come forward, even where the
defendant’s silence was not induced by Miranda warnings and he takes the stand
in his own defense. Id. at 630 (5). To date we have declined to consider the
continuing validity of Mallory under the new Evidence Code. See Bradford v.
State, 299 Ga. 880, 886 (7) n. 7 (792 SE2d 684) (2016).6
We do not find it necessary to examine the viability of Mallory here,
either. In order to show prejudice from counsel’s deficient performance, the
defendant must show that a reasonable probability exists that, but for trial
counsel’s errors, the outcome of the proceeding would have been different.
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. Even if counsel’s failure to
6 Mallory was based on former OCGA § 24-3-36, which provided that “[a]cquiescence or silence . . . may amount to an admission,” as well as the Court’s conclusion, prior to the legislature’s adoption of OCGA § 24-4-403, that a comment on a defendant’s silence is “far more prejudicial than probative.” 261 Ga. at 630 (5).
11 object to the testimony of Detective Richerson in question amounted to deficient
performance, Dublin has not shown prejudice from his counsel’s failure to raise
such an objection.
Dublin argues that the improper comment contributed to the guilty verdict
because the evidence was “conflicted as to the identity and participation of the
co-defendants[.]” But Dublin was charged with felony murder predicated on the
crime of aggravated assault, and “a defendant need not personally possess a
weapon or fire a shot to be found guilty as a party to an aggravated assault, if the
evidence shows that he intentionally aided or abetted in the commission of the
crime.” Herrington v. State, 300 Ga. 149, 150 (1) (b) (794 SE2d 145) (2016)
(citing OCGA § 16-2-20 (b) (3)) (punctuation omitted). “Whether a person was
a party to a crime can be inferred from his presence, companionship, and
conduct before and after the crime was committed.” Id. (citation and punctuation
omitted). Moreover, a defendant may be convicted of possession of a firearm
during the commission of a felony even if he possesses the firearm only
constructively as a party to the crime. See Braithwaite v. State, 275 Ga. 884,
888 (8) (572 SE2d 612) (2002).
Here, multiple witnesses said they heard Dublin discuss with others the
12 possibility of robbing Slack. Although Mostiller was not able to identify the
men he saw in the vacant lot across from Slack’s house, Redwine and Mitchell
both placed Dublin at the vacant lot. Reynolds told police that he and Dublin
went to Slack’s house that night, and Dublin admitted as much. The evidence
showed at least one member of the group pointed a gun at Slack with the intent
to rob him: Reynolds told police that Dublin was the shooter, while Watson and
Mitchell testified that they heard Reynolds confess to shooting Slack, and
Dupree testified that, based on her eavesdropping on Dublin and his co-
conspirators, she understood that Reynolds snatched the gun from Dublin and
shot Slack. Although the evidence was conflicting as to whether Dublin was the
shooter, Dublin admitted that the gun used to shoot Slack was his, that he later
disposed of it, and that he asked Watson to lie for him. Dublin thus has not
shown a reasonable probability that Richerson’s remark affected the outcome
of the trial, particularly given that it was an isolated statement made in the
context of questioning about cooperation of Dublin’s girlfriend, not that of
Dublin. See Hernandez v. State, 299 Ga. 796, 800 (4) (792 SE2d 373) (2016)
(given collective weight of evidence refuting appellant’s claim of self-defense,
he cannot demonstrate reasonable probability outcome of trial would have been
13 different but for trial counsel’s failure to object under Mallory and other alleged
deficiency); Thomas v. State, 284 Ga. 647, 649 (3) (a) (670 SE2d 421) (2008)
(no error in denying ineffective assistance of counsel claim based on counsel’s
failure to object under Mallory where there was overwhelming evidence,
including eyewitness accounts, that appellant shot the unarmed victim).
4. Dublin argues that the trial court erred by not declaring a mistrial when
a co-defendant testified to inadmissible other acts evidence. We disagree.
Reynolds testified on direct examination as follows:
Q: So you never heard Willie or Darnell talk about robbing someone? A: I have heard some — them say something about robbing somebody on occasions, times before, but I never paid it no attention. Q: Okay. On December 31st, did you hear them talk about robbing anybody? A: I don’t think I did.
The trial court then sua sponte instructed the jury to disregard “that last
testimony,” telling the jury that it should “disregard . . . completely . . . any
events other than on December 31.” After Reynolds concluded his testimony,
trial counsel requested a mistrial, and the trial court denied the request. Dublin
argues on appeal that the trial court should have granted a mistrial because the
14 testimony improperly commented on Dublin’s character.
“The refusal to grant a mistrial based on a prejudicial comment lies within
the discretion of the trial court, and this Court will not interfere with that
discretion on appeal in the absence of a manifest abuse.” Turner v. State, 299
Ga. 720, 723 (5) (791 SE2d 791) (2016) (citation omitted). “Moreover, a new
trial will not be granted unless it is clear that the trial court’s curative instruction
failed to eliminate the effect of the prejudicial comment.” Id. (citation omitted).
The trial court’s instruction in this case was sufficient to protect Dublin from
any prejudicial effect of Reynolds’s vague, nonresponsive allusion to prior
discussions of robbing someone. Assuming that Dublin’s motion for a mistrial
was not made too late,7 the trial court did not abuse its discretion in failing to
grant appellant’s motion for a mistrial. See Williams v. State, 301 Ga. 712, 717
(4) (804 SE2d 31) (2017) (no abuse of discretion in denying mistrial where State
asked defendant if he was aware that a friend attempted to bribe a juror; the
judge told the jury to ignore the question and explained it had excused the juror
7 “A motion for mistrial must be promptly made as soon as the party is aware of the matter giving rise to the motion.” Ragan v. State, 299 Ga. 828, 833 (3) (792 SE2d 342) (2016) (motion for mistrial untimely where made only after the State concluded direct examination during which photographs in question were admitted) (citation and punctuation omitted).
15 because she had been in the courtroom when she was supposed to be in the jury
room); Turner, 299 Ga. at 722-723 (5) (no abuse of discretion in denying
mistrial where witness testified that about a week before the shooting with
which defendant was charged she saw defendant smoking marijuana); Rafi v.
State, 289 Ga. 716, 720 (4) (715 SE2d 113) (2011) (trial court did not abuse its
discretion in denying motion for mistrial when witness referred to defendant as
drug dealer).
5. Finally, Dublin argues that, setting aside what he claims is inadmissible
hearsay, the State did not introduce sufficient evidence to support his
convictions. As detailed in Divisions 1 and 2, we reject his claims that the State
was permitted to present inadmissible hearsay evidence. In any event, in
reviewing the sufficiency of the evidence, we “consider all of the evidence
admitted by the trial court, regardless of whether that evidence was admitted
erroneously.” Cowart v. State, 294 Ga. 333, 343 (6) (751 SE2d 399) (2013)
(citation and punctuation omitted). And as detailed above, the trial evidence
was legally sufficient to authorize a rational trier of fact to find beyond a
reasonable doubt that Dublin was guilty of felony murder, aggravated assault
with intent to rob, aggravated assault with a firearm, and possession of a firearm
16 during the commission of a felony. See Jackson v. Virginia, 443 U.S. 307, 319
(99 SCt 2781, 61 LE2d 560) (1979).
6. The trial court erred in merging both Count 3 (aggravated assault with
intent to rob) and Count 4 (aggravated assault with a deadly weapon) into the
felony murder account. We held in the case of Dublin’s co-defendant,
Reynolds, that this same handling of the counts at sentencing was error as to
Reynolds. See Reynolds, 299 Ga. at 786 (4). The offense of aggravated assault
with intent to rob does not merge into felony murder predicated on aggravated
assault with a deadly weapon, as
[Dublin]’s conviction on the charge of aggravated assault with intent to rob required proof of intent to rob that the State was not required to prove in order to convict him on felony murder predicated on aggravated assault with a deadly weapon. Likewise, the felony murder count required proof that the appellant caused the death of the victim, which the State was not required to prove in order to convict for aggravated assault with an intent to rob.
Id. at 786 (4) n. 3 (citations omitted). We therefore vacate the judgment in part
and remand for the trial court to enter a sentence on the count of aggravated
assault with intent to rob. Id. at 786 (4).
Judgment affirmed in part and vacated in part, and case remanded with
direction. All the Justices concur.
17 Decided September 13, 2017.
Murder. Floyd Superior Court. Before Judge Niedrach.
James K. Luttrell, for appellant.
Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District
Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,
Scott O. Teague, Assistant Attorney General, for appellee.