Dunn v. State

732 S.E.2d 524, 291 Ga. 551, 2012 Fulton County D. Rep. 2771, 2012 WL 3888216, 2012 Ga. LEXIS 699
CourtSupreme Court of Georgia
DecidedSeptember 10, 2012
DocketS12A1139
StatusPublished
Cited by19 cases

This text of 732 S.E.2d 524 (Dunn 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
Dunn v. State, 732 S.E.2d 524, 291 Ga. 551, 2012 Fulton County D. Rep. 2771, 2012 WL 3888216, 2012 Ga. LEXIS 699 (Ga. 2012).

Opinion

Thompson, Presiding Justice.

Appellant Torrance Dunn was convicted of malice murder, possession of a firearm during the commission of a crime, and five counts of felony obstruction in connection with the shooting death of Ramon Smith.1 His motion for new trial was denied, and he appeals. For the reasons that follow, we affirm.

1. Viewed in the light most favorable to the verdict, the jury was authorized to find that on the night of the crimes an Athens-Clarke County police officer observed a vehicle crashed into a roadside guardrail. When the officer stopped and looked in the vehicle’s window, she saw appellant punching, scratching, and biting the victim. The victim was deceased, but still buckled into the driver’s seat, with six gunshot wounds to his torso. Appellant’s mouth was bloody and he had what appeared to be brain matter on his leg. Evidence of appellant’s DNA was found on a pistol discovered on the steering column, and casings and bullets recovered in the vehicle by police matched a bullet removed from the victim.

Officers attempted to administer a gunshot residue test on appellant’s hands at the jail, and in doing so, they observed a hand injury which included blood and black powder residue consistent with appellant having recently discharged a firearm. After the booking process was completed, officers took appellant to see a jail nurse so she could evaluate his hand injury. Appellant told the nurse the [552]*552injury was due to a gunshot wound. Appellant subsequently admitted to a fellow inmate that he had ingested “bad cocaine” that made him paranoid, and he killed the victim because he was disrespectful. The State also presented evidence that appellant struggled with and hit several officers at both the scene and at the jail.

Although appellant challenges the sufficiency of the evidence, we conclude the evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends privacy guarantees in the Georgia Constitution precluded the admission into evidence of testimony of a jail nurse concerning statements made by appellant to her. See 1983 Ga. Const., Art. I, Sec. I, Par. I; Ga. Const., Art. I, Sec. I, Par. XIII. More specifically, appellant argues the nurse’s testimony was inadmissible because his medical records were obtained in violation of his right to privacy and the State would not have known about his statement to the nurse but for its improper receipt of the medical records. Even assuming for purposes of this opinion that the nurse’s testimony was admitted in violation of appellant’s right to privacy and that appellant did not waive this right by placing the nature and extent of his injuries at issue, see OCGA § 24-9-40 (a), we conclude the error was harmless beyond a reasonable doubt because the other evidence properly admitted against appellant was overwhelming. See Hatley v. State, 290 Ga. 480, 485 (722 SE2d 67) (2012) (evidence of guilt overwhelming where defendant was only male in room with victim and he admitted incriminating facts); Vaughn v. State, 248 Ga. 127, 131 (281 SE2d 594) (1981) (overwhelming evidence of “guilt can negate the possibility that the constitutional error contributed to the conviction”). Appellant was discovered alone with the victim in the vehicle where he was beating the victim; he was covered with the victim’s blood; the victim was shot six times by a gun found in the vehicle; evidence of appellant’s blood and DNA were found on the gun; and he admitted to another inmate that he shot the victim.

3. At trial, Detective Ricketts, who was also a certified emergency medical technician, was allowed to testify over appellant’s objection that on the night of the crimes he did not see any signs indicating appellant had suffered a head injury.2 Appellant contends admission of this testimony was error because the detective was [553]*553allowed to offer an expert opinion without proper foundation and without proper notice to appellant. We disagree. The detective’s testimony on direct examination included only his personal observations of appellant’s behavior and physical well-being on the night of the crimes. “A witness who personally observed the event to which [he] is testifying may state [his] impressions drawn from, and opinions based upon, the facts and circumstances observed by [him].” Smith v. State, 290 Ga. 428, 430 (721 SE2d 892) (2012). In addition, a “lay witness is permitted to give [his] opinion as to a defendant’s behavior, so long as it is based upon personal observation and the witness states the facts upon which an opinion is based.” Bridges v. State, 279 Ga. 351, 356 (613 SE2d 621) (2005). See OCGA § 24-9-65. To the extent appellant challenges testimony elicited on cross-examination, counsel elicited the unfavorable testimony and will not be heard to object to it because the detective’s answers were in direct response to defense counsel’s questions. See Simmons v. State, 271 Ga. 563, 567 (522 SE2d 451) (1999); Mosely v. State, 269 Ga. 17, 21 (4) (495 SE2d 9) (1998).

4. Appellant alleges trial counsel rendered ineffective assistance on several grounds. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), an appellant “must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” (Punctuation omitted.) Washington v. State, 276 Ga. 655, 658 (3) (581 SE2d 518) (2003). If an appellant fails to meet either prong of the Strickland test, it is not incumbent upon this Court to examine the other prong. Battles v. State, 290 Ga. 226, 229 (719 SE2d 423) (2011).

(a) Appellant claims trial counsel was ineffective because he introduced evidence of appellant’s drug use through the recorded statement of another witness. Even assuming counsel’s failure to redact evidence of appellant’s drug use from the recorded statement constitutes deficient performance, appellant has failed to demonstrate a reasonable probability the outcome of the trial would have been different had he done so. The evidence against appellant, including his own admission to a fellow inmate and physical evidence from the crime scene, was overwhelming. Accordingly, appellant cannot sustain his burden of proving ineffective assistance on this ground. See Simpson v. State, 289 Ga. 685 (5) (715 SE2d 142) (2011).

(b) Appellant also raises a claim of ineffective assistance based on counsel’s failure to object to the admission of evidence of his drug use through a witness for the State. However, a defendant has an obligation to raise all allegations of ineffective assistance of counsel at the earliest practicable moment, and any allegation not raised is [554]*554deemed waived. Simmons v. State, 281 Ga. 437, 438 (637 SE2d 709) (2006). This ground for ineffective assistance was not raised on amended motion for new trial and therefore is not preserved for review. Id.

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Bluebook (online)
732 S.E.2d 524, 291 Ga. 551, 2012 Fulton County D. Rep. 2771, 2012 WL 3888216, 2012 Ga. LEXIS 699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-state-ga-2012.