Dunbar v. State

845 S.E.2d 607, 309 Ga. 252

• Court: Supreme Court of Georgia
• Decided: June 29, 2020
• Docket: S20A0167
• Status: Published

Opinion

309 Ga. 252 FINAL COPY

S20A0167. DUNBAR v. THE STATE.

MELTON, Chief Justice.

Following a jury trial, Shanika Dunbar appeals her convictions

for the murder of Theron Robbins and possession of a firearm during

the commission of a felony.1 Dunbar contends that the evidence

presented at trial was insufficient to support the verdict, the trial

court erred by admitting an irrelevant AK-47 rifle into evidence, and

the trial court erred by allowing testimony regarding the withdrawal

of consent to search Dunbar’s home. For the reasons set forth below,

1 A Chatham County grand jury indicted Dunbar on September 21, 2016,

for malice murder, felony murder predicated on aggravated assault, cruelty to children in the first degree, and possession of a firearm during the commission of a felony. At a jury trial that took place from September 25 to 28, 2018, Dunbar was acquitted of the child cruelty count and found guilty of all remaining counts. On October 17, 2018, the trial court sentenced Dunbar to life without the possibility of parole for malice murder plus five consecutive years for possession of a firearm during the commission of a felony. The felony murder count was vacated by operation of law. See Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993). On October 22, 2018, Dunbar filed a motion for new trial, which she subsequently amended on April 19, 2019. The trial court denied the motion on July 15, 2019. Dunbar filed a timely notice of appeal, and her case was docketed to the term of this Court beginning in December 2019 and submitted for a decision on the briefs. we affirm.

1. Dunbar contends that the evidence presented at trial does

not support her convictions, but instead supports a finding that she

acted in self-defense. We disagree.

When evaluating the sufficiency of evidence, “the relevant

question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319

(III) (B) (99 SCt 2781, 61 LE2d 560) (1979). “This Court does not

reweigh evidence or resolve conflicts in testimony; instead, evidence

is reviewed in a light most favorable to the verdict, with deference

to the jury’s assessment of the weight and credibility of the

evidence.” (Citation and punctuation omitted.) Hayes v. State, 292

Ga. 506, 506 (739 SE2d 313) (2013).

Viewed in this light, the evidence shows that, on the night of

June 9, 2016, Johnnie Lovett drove Robbins and his ten-year-old son

to the home of Benny Glaze, which was located in Chatham County. Robbins and his son waited in the car, while Lovett went into Glaze’s

back yard to sell Glaze some marijuana.

Meanwhile, Dunbar drove up and parked just past Lovett’s car.

Dunbar, who was upset with Robbins for pointing a gun at her sister

(the mother of Robbins’s son) several days prior, got out of her

vehicle and approached Lovett’s car. Robbins got out of Lovett’s car,

and he and Dunbar began arguing. Dunbar testified that, when she

confronted Robbins about the incident with her sister, Robbins

replied, “I don’t know what the f*** you talking about. I don’t give

a f*** about none of y’all b******s and I’ll kill all y’all b******s.”

Lovett and Glaze heard Robbins and Dunbar arguing. They

came out of the back yard to see Robbins and Dunbar shoving each

other. Lovett tried to separate the two, but Robbins pushed him

away. Shortly thereafter, Dunbar turned and walked back toward

her vehicle. According to Robbins’s son, after Dunbar took a few

steps, she stopped, turned around, and shot Robbins twice — once

in the chest and once in the head.

Nearby neighbors heard Robbins’ and Dunbar’s heated argument. As they debated whether to call 911, they heard a

gunshot, followed by “F*** you, n*****,” and then another gunshot.

They called 911 and rushed out to help Robbins. By the time they

reached him, Dunbar, Lovett, and Glaze had all fled. Despite a

neighbor’s attempt to administer aid, Robbins died before police

arrived on the scene.

After shooting Robbins, Dunbar pulled Robbins’s son from

Lovett’s car and drove him to the home of one of his other aunts, who

lived around the corner. She dropped him off and told him not to

tell anyone what had happened. When interviewed by the police

later that evening, Dunbar denied having seen Robbins that night,

denied being involved in the shooting, and denied having ever felt

threatened by Robbins.

During the ensuing investigation, the police obtained Dunbar’s

and Glaze’s phone records, which showed numerous phone calls

between Dunbar and Glaze in the days leading up to the murder,

including a call just moments before the murder. Dunbar also called

Glaze just minutes after the murder, and again about 20 minutes later. Additionally, phone records showed a call from Dunbar to

Lovett roughly 20 minutes after Robbins’s murder. The police also

obtained Glaze’s Facebook records, which contained a conversation

between him and a friend that took place a few days after the

murder, in which Glaze says “Dunbar” was the shooter.

At trial, Dunbar asserted that she shot Robbins in self-defense,

after Robbins pulled a gun from his waistband during their

argument. Robbins’s son acknowledged that his father carried a gun

in his waistband, but testified that Robbins never pulled his gun

during the argument. Dunbar claimed to have blacked out after the

first shot, and did not remember taking a second shot at Robbins.

After going home, her husband took the gun from her. The murder

weapon was never recovered.

Based on the foregoing, we conclude that the evidence was

sufficient to enable the jury to find beyond a reasonable doubt that

Dunbar was guilty of the crimes for which she was convicted. See

Jackson, 443 U.S. at 319 (III) (B). See also Goodson v. State, 305

Ga. 246, 248 (1) (b) (824 SE2d 371) (2019) (“Questions about the existence of justification are for the jury to resolve, and the jury may

reject any evidence in support of a justification defense and accept

evidence that a shooting was not done in self-defense.”).

2. Dunbar contends that the trial court abused its discretion

by admitting into evidence an AK-47 rifle and ammunition, which

were not connected to Robbins’s murder. We disagree.

We review a trial court’s admission of evidence for an abuse of

discretion. See Taylor v. State, 302 Ga. 176, 180 (805 SE2d 851)

(2017). The record shows that the trial court initially ruled that the

AK-47 rifle and the ammunition for various types of handguns,

which were found during a search of Dunbar’s home conducted four

days after the murder, were inadmissible, as they were not relevant

to any issue in the case. See OCGA § 24-4-401. During Dunbar’s

cross-examination, the prosecutor asked Dunbar what happened to

the gun she used to shoot Robbins. Dunbar said that she did not

know what had happened to the gun. She testified that her husband

took it from her, because she “never wanted to see a gun in [her]

life.” Immediately following this testimony, the prosecutor sought to introduce the AK-47 rifle and the ammunition to impeach

Dunbar’s statement. Dunbar’s counsel argued that the items were

not relevant and that their prejudicial effect outweighed their

probative value. Over Dunbar’s objection, the trial court ruled the

items admissible for impeachment purposes.

The trial court did not abuse its discretion in allowing the State

to introduce the AK-47 rifle and ammunition for impeachment

purposes. In light of Dunbar’s testimony that her husband had

removed the murder weapon from the home because she “never

wanted to see a gun in [her] life,” the State was entitled to show that

— just days later — an AK-47 rifle and ammunition for various

types of handguns were found in Dunbar’s home and she was aware

of their presence. See OCGA § 24-6-621 (“A witness may be

impeached by disproving the facts testified to by the witness.”). See

also Taylor, 302 Ga. at 180 (3) (“[T]he State ha[s] a right to a

thorough and sifting cross-examination of appellant’s direct

testimony.”).

Dunbar’s reliance on Nichols v. State, 282 Ga. 401, 405 (2) (651 SE2d 15) (2007), for a different result is misplaced. Not only was

Nichols decided under Georgia’s old Evidence Code, but our ruling

in that case specifically addressed the admissibility of evidence

introduced as the res gestae of an arrest when that evidence was

wholly unrelated to the crime in question. Because Dunbar’s trial

was held after adoption of Georgia’s current Evidence Code, and as

the evidence in this case was introduced not as the res gestae of an

arrest, but for impeachment purposes, our holding in Nichols is

inapposite.

And although Dunbar argues that, even if admissible for

impeachment purposes, the evidence should have been excluded

pursuant to OCGA § 24-4-403 (“Rule 403”),2 “the exclusion of

relevant evidence under Rule 403 is an extraordinary remedy that

should be used only sparingly.” (Citation and punctuation omitted.)

Venturino v. State, 306 Ga. 391, 395 (2) (b) (830 SE2d 110) (2019).

2 OCGA § 24-4-403 states: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Under the circumstances of this case, we cannot say that the trial

court abused its discretion in determining that the probative value

of the evidence outweighed the danger of unfair prejudice. Dunbar

asserts that the admission of this evidence created “a subconscious

suggestion of propensity for violence.” However, it was only after

Dunbar herself opened the door for its admission that the State

introduced the evidence to contradict Dunbar’s statement that she

had never wished to see a gun again. And, during its closing

argument, the State only referred to the AK-47 rifle and

ammunition in the context of Dunbar’s truthfulness. At no time did

the State suggest to the jury that the evidence demonstrated

Dunbar’s propensity for violence, and the trial court gave a limiting

instruction that the evidence was only to be used for impeachment

purposes.

3. Finally, Dunbar claims that the trial court erred by allowing

the State to elicit testimony about the withdrawal of consent to search her home.3 She asserts that this testimony violated her right

against self-incrimination protected by the Fifth Amendment of the

United States Constitution and Article I, Section I, Paragraph XVI

of the Georgia Constitution (“Paragraph XVI”). We discern no error.

At trial, Dunbar objected to the testimony regarding

withdrawal of consent to search her home on grounds of hearsay,4

relevancy, and improper character evidence. Because she did not

object to the trial court on the constitutional grounds she now raises,

we review this evidentiary claim only for plain error. See OCGA

§ 24-1-103 (a), (d) (requiring timely objections to include the specific

grounds, but allowing courts to “tak[e] notice of plain errors affecting

substantial rights although such errors were not brought to the

attention of the court”). See also Anthony v. State, 302 Ga. 546, 549

(II) (807 SE2d 891) (2017) (“In order to preserve an objection for

3 On the night of the murder, when police interviewed Dunbar at her

home, she initially consented to a search, but her husband refused consent. After that, neither Dunbar nor her husband signed the consent-to-search forms, and the detective who testified referred to this as a “withdrawal” of consent. 4 Dunbar’s husband did not testify at trial. appellate review, the specific ground of the objection must be made

at the time the challenged evidence is offered.”). It is not enough

that Dunbar raised the constitutional grounds in her motion for new

trial. At this stage, the assertion is untimely. State v. Herrera-

Bustamante, 304 Ga. 259, 263 (2) (a) (818 SE2d 552) (2018)

(applying plain error review where argument was raised for the first

time in motion for new trial).

Under plain error review, there must exist a clear or obvious

error, which has not been affirmatively waived by the appellant, and

which affects the appellant’s substantial rights. See State v. Kelly,

290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). If such error exists and

it “seriously affects the fairness, integrity or public reputation of

judicial proceedings,” the appellate court has the discretion to

remedy the error. Id. (Citation and punctuation omitted.)

The record does not indicate that Dunbar affirmatively waived

this argument. Consequently, we turn to whether the trial court

committed a “clear or obvious” error. It is well established that the

Fifth Amendment’s protection against self-incrimination is limited to testimonial evidence. See Doe v. United States, 487 U.S. 201, 207

(108 SCt 2341, 101 LE2d 184) (1988). As law enforcement’s request

to search Dunbar’s home did not seek testimonial evidence from

Dunbar, her Fifth Amendment argument is unavailing. See id.; see

also, e.g., Gilbert v. California, 388 U.S. 263, 266-267 (87 SCt 1951,

18 LE2d 1178) (1967); Schmerber v. California, 384 U.S. 757, 760-

765 (86 SCt 1826, 16 LE2d 908) (1966).

However, Paragraph XVI of the Georgia Constitution does not

limit its protections to testimonial evidence. See Bell v. State, 293

Ga. 683, 686 (3) n.4 (748 SE2d 382) (2013). Dunbar relies on our

holding in Elliott v. State, 305 Ga. 179 (824 SE2d 265) (2019), to

argue that gathering evidence through a search of her home equates

to compelling Dunbar to be a witness against herself, and admission

of her refusal to consent to that search, therefore, violates her right

against self-incrimination. But, Elliott is of no help to Dunbar.

While it is true that Elliott held that admission of a refusal to

consent to a breath test violated the defendant’s right against self-

incrimination under Paragraph XVI, our holding did not extend to the refusal to consent to any search as Dunbar indicates. Elliott held

that, because Paragraph XVI protects against self-incrimination

through certain types of compelled acts, admission of the refusal to

consent to a breath test (which requires the compelled act of deep-

lung breathing) would violate the defendant’s constitutional right

against self-incrimination. See Elliott, 305 Ga. at 189 (III), 209 (IV).

Elliott and our underlying decision in Olevik v. State, 302 Ga. 228

(806 SE2d 505) (2017), were careful to distinguish that their scope

does not extend to all types of searches, but is limited to breath tests.

Thus, Dunbar fails to show that the trial court’s admission of this

testimony was plain error, as her argument would require extending

the existing precedent embodied in Elliott and Olevik beyond its

current scope. See Herrera-Bustamante, 304 Ga. at 264 (2) (b) (“The

current law considered is the law at the time of appellate review

rather than at trial, but an error is not plain under current law if a

defendant’s theory requires the extension of precedent.”) (citations

and punctuation omitted).

Given that Dunbar cannot point to controlling precedent showing that the search of her home — and, by extension, her

withdrawal of consent to search — falls within the protections

against self-incrimination embodied in Paragraph XVI, we cannot

conclude the trial court committed “clear or obvious” error.5

Judgment affirmed. All the Justices concur.

DECIDED JUNE 29, 2020. Murder. Chatham Superior Court. Before Judge Bass. David T. Lock, for appellant. Meg E. Heap, District Attorney, Jennifer L. Parker, Christine S. Barker, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.

5 Dunbar does not argue that the trial court’s admission of testimony

regarding withdrawal of consent violates her right to due process under the Fifth and Fourteenth Amendments to the United States Constitution, so we do not address it here. But see United States v. Runyan, 290 F3d 223, 249 (5th Cir. 2002).