318 Ga. 729 FINAL COPY
S24A0270. DURDEN v. THE STATE.
MCMILLIAN, Justice.
Appellant Devin Durden was convicted of felony murder and
other crimes in relation to the shooting death of Dewayne
Chronister.1 On appeal, Durden argues that the trial court
committed plain error by (1) permitting a detective to provide
extensive narrative testimony identifying Durden as the person
1 Chronister died on October 17, 2016. On December 19, 2017, a Muscogee County grand jury indicted Durden, along with Dontavis Screws and Jasmine Thomas, charging them with malice murder (Count 1), felony murder predicated on armed robbery (Count 2), armed robbery (Count 3), and possession of a firearm during commission of a felony (Count 4). Following Screws’s guilty plea to the lesser offenses of voluntary manslaughter and robbery and Thomas’s guilty plea to the lesser offense of robbery, Durden was tried from February 26 through March 1, 2019, and a jury found him not guilty of malice murder but guilty of all the remaining counts. On April 2, 2019, the trial court sentenced Durden to life in prison for felony murder, a consecutive sentence of ten years to serve for armed robbery, and a consecutive sentence of five years to serve for possession of a firearm during the commission of a felony. Durden filed a timely motion for new trial on April 12, 2019, which was amended on December 9, 2020. Following a hearing on January 6, 2022, the trial court denied Durden’s motion for new trial, as amended, on February 1, 2022. Durden filed a timely notice of appeal on February 17, 2022, and the case was docketed to the term of this Court beginning in December 2023 and thereafter submitted for a decision on the briefs. depicted in surveillance footage and (2) instructing the jury on
single-witness testimony without also instructing it on accomplice
corroboration. Durden also argues that the cumulative harm caused
by these alleged errors warrants reversal. For the reasons that
follow, we affirm in part and vacate in part.
Viewed in the light most favorable to the jury’s verdict, the
evidence at trial showed that in the early-morning hours of October
17, 2016, officers from the Columbus Police Department were called
to the Parkwood mobile home park off Farr Road, where the body of
Chronister, a taxi driver, was found in the driver’s seat of his taxi.
Chronister died from a gunshot to the head; the bullet entered the
left side of his head and was recovered from his brain. Law
enforcement’s investigation—which included a review of the taxi
company’s call logs showing the number that called for the taxi and
where that caller requested to be picked up, a nearby gas station
from which law enforcement was able to obtain and review
surveillance footage—led them to identify Durden, Dontavis Screws,
and Jasmine Thomas as suspects and arrest them for the crimes.
2 Co-indictees Screws and Thomas both testified on behalf of the
State as part of their plea bargains. Thomas testified that around
4:00 a.m. on the morning of October 17, 2016, Durden knocked on
the door of her home as she and Screws were asleep inside. She said
that Screws let Durden inside, and Durden asked Screws, “are you
trying to make some money?” After some more discussion, during
which Thomas saw Durden handling a firearm, Thomas called a taxi
for Durden and Screws and told them to go to the nearby gas station,
which was less than a five-minute walk away, to meet the taxi.2
After she called the taxi for the men and they left, Thomas went
back to sleep. She testified that Durden and Screws returned around
7:00 a.m., and she heard them talking about how to divide “the
money,” with Durden telling Screws that Screws was not getting
half because “you did not do anything.” Thomas testified that
Durden then told them that he was “fixing to go drop the gun off
2 Call logs from the taxi company showed that Thomas’s cell phone number was used to call for a taxi in the early-morning hours of October 17 and that Thomas’s request for a taxi was the last pick-up Chronister made before his death. 3 because it was hot,” and he left. After Durden left, Screws told
Thomas that when their taxi arrived at Farr Road to drop them off,
Durden “got out and had opened the cab driver’s door and said, it’s
a robbery and shot the man in the head.” Thomas identified Durden
from a photo captured by the gas station’s surveillance camera,
testifying that she recognized Durden from the clothes he had worn
to her home that night and from a speaker that hung from his belt
and that there was not “any doubt in [her] mind” about who he was.
She also identified Durden and Screws from the surveillance video
when it was played for her.
Screws testified that Durden came to Screws and Thomas’s
house late at night on October 17 while he and Thomas were in bed.
Durden and Screws began talking, and Durden “pulled out his gun
and sat it on the counter,” and told Screws that he wanted to “[g]o
hit a lick” to “get some money,” meaning he wanted to commit a
robbery.3 They decided to have Thomas call a taxi for them to rob.
3 Screws recognized the gun to be a .380-caliber High Point. When law
enforcement processed the crime scene, they recovered a .380-caliber shell
4 According to Screws, he and Durden then walked to the gas station,
where they got in the taxi, and they had the driver take them to the
Parkwood mobile home park on Farr Road, where Durden “held the
gun on the man and then he shot the man and that’s when we took
off running. He got the money and we took off running.”4 Screws
testified that Durden took the victim’s wallet and cell phone, that
Durden threw the cell phone in a ditch as they ran back to Screws’s
home,5 and that after they arrived back at Screws’s home, they split
the money and Durden left. Screws also identified Durden from the
gas station’s surveillance video, getting in the taxi with Screws and
wearing the same shoes that law enforcement later recovered from
Durden, as well as from a still shot from that video, which Screws
testified showed a Bluetooth speaker that Durden wore hanging
casing on the ground near the taxi driver’s door, which a firearms expert examined and testified was “consistent with being fired from a high point .380 semi-automatic pistol.” 4 Surveillance footage from the Parkwood mobile home park showed a
taxi enter Parkwood at around 5:00 a.m.; about five minutes later, two men are shown fleeing Parkwood on foot down Farr Road; the taxi was never shown exiting the mobile home park. 5 Law enforcement later recovered Chronister’s cell phone from the ditch
where Screws told them Durden had thrown it. 5 from his belt.
Columbus Police Detective Stuart Carter testified that he was
the lead investigator’s partner and assisted in the investigation by,
among other things, obtaining and reviewing the surveillance
footage from the gas station, where Chronister’s taxi had been last
dispatched. As Detective Carter began discussing that footage
during his direct examination, he testified, “we believe this to be the
defendant that’s in the courtroom today and there are several factors
that we relied on.” Detective Carter went on by pointing out that the
individual depicted in the footage wore a particular “style of
sweatpants”; a wristwatch “with a rather large face”; a Bluetooth
speaker hanging from his waist; and “most significant[ly],” a “very
distinctive” yellow, green, and grey pair of shoes, which Detective
Carter determined from his investigatory research to be Nike
Pegasus 32 shoes. These items ended up being “similar” or
“identical” to clothing items and accessories, including a pair of Nike
Pegasus 32 shoes, recovered from the residence where Durden told
6 Detective Carter he had been “staying” upon Durden’s arrest.6
Detective Carter also explained that the individual in the
surveillance footage had a “distinctive” and “almost an identi[cal]
hair style” to Durden’s at the time of his arrest. Detective Carter
also identified Durden from several still shots from the surveillance
footage based on “[t]he clothing that I pointed out, the shoes that we
would later recover, [and] the physical build of the individual.”
According to Detective Carter, the footage showed Durden and
Screws getting into Chronister’s taxi at the gas station at around
5:00 a.m. Within minutes, Chronister was shot and killed at the
nearby Parkwood mobile home park.
1. Conceding that the above-described testimony of
Detective Carter was permitted “[w]ithout meaningful objection or
6 We note that Detective Carter testified regarding two portions of the
gas station’s video surveillance footage from the night of the crimes: one from earlier that night, and the other from the time the crimes were unfolding. In the footage from earlier that night, it is relatively easy to make out the facial features of the person whom Detective Carter identified as Durden, but in the footage from later that night when the individual (along with Screws) approached and got into Chronister’s taxi, it is more difficult to make out the identity of the individual, who had his hood pulled up at that point.
7 admonishment,” Durden contends that the trial court plainly erred
in permitting Detective Carter to testify at length that Durden was
the person depicted in the surveillance video and still images, thus
violating the limitation on lay opinion imposed by OCGA § 24-7-701
(a) (“Rule 701 (a)”).
To establish plain error, Durden must meet each prong of a
four-prong test:
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Washington v. State, 312 Ga. 495, 498 (1) (863 SE2d 109) (2021)
(citation and punctuation omitted). “As we have noted, affirmatively
establishing all four prongs is a difficult standard to satisfy.” Id. at
8 498-99 (1) (citation and punctuation omitted). “This Court does not
have to analyze all elements of the plain-error test where an
appellant fails to establish one of them.” Payne v. State, 314 Ga. 322,
325 (1) (877 SE2d 202) (2022).
Here, Durden hinges his argument on an alleged violation of
OCGA § 24-7-701 (a), which provides:
(a) If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are: (1) Rationally based on the perception of the witness; (2) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and (3) Not based on scientific, technical, or other specialized knowledge within the scope of Code Section 24-7-702.
We have explained that “where there is ‘some basis for concluding
that a witness is more likely to correctly identify a defendant as the
individual depicted in surveillance [images], then lay opinion
testimony identifying a defendant in surveillance [images] is
admissible under Rule 701.’” Glenn v. State, 306 Ga. 550, 555 (3)
(832 SE2d 433) (2019) (quoting Glenn v. State, 302 Ga. 276, 280 (II)
9 (806 SE2d 564) (2017)).
We start by noting that the vast majority of Detective Carter’s
relevant commentary on the surveillance footage was non-opinion,
factual testimony about the attire he personally observed worn by
the individual depicted therein and the attire he personally
recovered from Durden’s residence, and as such, that testimony is
not governed by Rule 701 (a)’s provisions regarding lay opinion
testimony. See Cooper v. State, 317 Ga. 676, 685 (2) (895 SE2d 285)
(2023). As for Detective Carter’s identification of Durden from the
surveillance footage, Durden argues that because Detective Carter
was not familiar with him on a personal level and had “no unique
first-hand experience with Durden,” Detective Carter could not be
permitted under Rule 701 (a) to opine that Durden was the
individual depicted therein and that the trial court thus clearly
erred in permitting such testimony.
Assuming without deciding that the trial court clearly erred in
permitting Detective Carter’s identification testimony, we conclude
that Durden has failed to show that the error affected the outcome
10 of the proceedings because the identification testimony was
cumulative of Thomas’s and Screws’s identification of him from the
same surveillance footage. Durden makes no argument that either
Thomas’s or Screws’s identification testimony was improper, and
they were more familiar with Durden than Detective Carter, making
their identification testimony more compelling. Thus, Durden
cannot satisfy the third prong of the plain error test. See Grier v.
State, 313 Ga. 236, 245 (3) (f) (869 SE2d 423) (2022) (“Appellant has
not met his burden under the plain error standard to show a
reasonable probability that the outcome would have been different,
as the improperly admitted [testimony] was merely duplicative of
other properly admitted evidence.”). Accordingly, this enumeration
of error fails.
2. Conceding that trial counsel neither requested an
accomplice-corroboration charge nor objected to the trial court’s
failure to give such charge, Durden also contends that the trial court
plainly erred by failing to instruct the jury on accomplice
corroboration despite charging the jury that the testimony of a
11 single witness is generally sufficient to establish a fact. See OCGA §
24-14-8 (“The testimony of a single witness is generally sufficient to
establish a fact. However, in certain cases, including . . . felony cases
where the only witness is an accomplice, the testimony of a single
witness shall not be sufficient. Nevertheless, corroborating
circumstances may dispense with the necessity for the testimony of
a second witness.”); OCGA § 17-8-58 (b) (“Failure to object in
accordance with subsection (a) of this Code section shall preclude
appellate review of such portion of the jury charge, unless such
portion of the jury charge constitutes plain error which affects
substantial rights of the parties. Such plain error may be considered
on appeal even if it was not brought to the court’s attention as
provided in subsection (a) of this Code section.”). Durden’s claim
fails.
Here, the trial court committed clear and obvious error in
failing to give the accomplice-corroboration charge while giving the
single-witness charge since Durden’s co-indictees, Screws and
Thomas, testified at trial, see State v. Johnson, 305 Ga. 237, 240
12 (824 SE2d 317) (2019); Stanbury v. State, 299 Ga. 125, 130-31 (2)
(786 SE2d 672) (2016), and Durden did not affirmatively waive the
instructional error. But the record demonstrates that the error
likely did not affect the outcome of Durden’s trial, such that he has
not satisfied the third prong of the plain error test. See Rice v. State,
311 Ga. 620, 623 (1) (857 SE2d 230) (2021). Co-indictees Screws and
Thomas each testified regarding Durden’s involvement in the
crimes; their testimony “substantially corroborated each other’s
testimony”; and “[i]t is well-settled that an accomplice’s testimony
may be corroborated by the testimony of another accomplice.”
Hurston v. State, 310 Ga. 818, 830 (3) (c) (854 SE2d 745) (2021)
(citation and punctuation omitted); see also Payne, 314 Ga. at 327
(1) (“[H]ad the jury been given an accomplice-corroboration
instruction, the testimony of any witness the jury concluded was an
accomplice could have been corroborated by [ ] non-accomplice
witnesses or by the testimony of another accomplice.”). Moreover,
their testimony was also corroborated by other evidence, including
the gas station and mobile home park surveillance footage showing
13 that Durden and Screws rode in Chronister’s taxi from the store to
the crime scene; the recovery of a .380-caliber shell casing on the
ground near Chronister’s taxi door that was consistent with being
fired from a High Point .380 pistol, corroborating Screws’s testimony
as to the type of gun Durden possessed and where Durden stood
when he shot Chronister; testimony and records from the taxi
service corroborating Screws’s and Thomas’s testimony that Thomas
called for a taxi for Screws and Durden during the early-morning
hours of October 17, 2016; and the recovery of the victim’s cell phone
from the location where Screws told law enforcement that Durden
had thrown it. Had the charge been given, it is highly likely the jury
would have returned the same verdict. See Payne, 314 Ga. at 326-27
(1) (failure to give accomplice-corroboration charge despite giving
single-witness charge likely did not affect trial outcome where other
evidence and witness testimony, including that of other potential
accomplices, implicated appellant in the crimes); Rice, 311 Ga. at
623-24 (1) (clear error in failing to charge jury on accomplice
corroboration despite giving single-witness charge likely did not
14 affect trial outcome where jury could have found accomplices’
testimony was mutually corroborating and where there was other
substantial and consistent evidence showing appellant participated
in crimes). Cf. Johnson, 305 Ga. at 241 (holding that trial court’s
failure to give accomplice-corroboration charge likely affected trial’s
outcome where “virtually all of the incriminating evidence flowed
from” accomplice).
Durden has not shown that the trial court’s clear error in
failing to give an accomplice-corroboration charge likely affected the
outcome of his trial, and therefore he has not satisfied the third
prong of the plain-error test. Accordingly, this enumeration of error
also fails.
3. Durden contends that cumulatively, the trial court’s
alleged errors were harmful and merit reversal. “When this Court
has identified or presumed more than one error, although the effect
of each on its own might have been harmless,” we will “consider
collectively, rather than individually, the prejudicial effect, if any, of
the trial court errors.” Nundra v. State, 316 Ga. 1, 16 (6) (885 SE2d
15 790) (2023) (citation and punctuation omitted). Even considering the
assumed error in permitting Detective Carter’s identification
testimony and the error in failing to give an accomplice-
corroboration instruction, we conclude that Durden has not
demonstrated under the plain-error standard that, but for these
errors, the outcome of the proceeding would have been different. As
noted above, Detective Carter’s identification testimony was
cumulative of other unobjected-to testimony (mainly, that of the
accomplices who also corroborated one another by both identifying
Durden from the same surveillance footage), and there was ample
evidence otherwise corroborating the accomplices’ testimony. Thus,
this claim fails. See Payne, 314 Ga. at 334 (4) (no cumulative
prejudice from failure to give accomplice-corroboration instruction
and failure to object to hearsay testimony because hearsay
testimony was cumulative and “[t]he jury heard a significant
amount of incriminating testimony”).
4. Finally, although Durden does not raise the issue on
appeal, “[w]hen the only murder conviction is for felony murder and
16 a defendant is convicted of both felony murder and the predicate
felony of the felony murder charge, the conviction for the predicate
felony merges into the felony murder conviction.” Allen v. State, 307
Ga. 707, 710-11 (5) (838 SE2d 301) (2020) (citation and punctuation
omitted). Because Durden’s conviction for felony murder is
predicated on armed robbery, the trial court should not have
separately sentenced Durden on the armed robbery conviction.
Therefore, we exercise our discretion to vacate Durden’s conviction
and sentence for armed robbery. See Dixon v. State, 302 Ga. 691,
696-97 (4) (808 SE2d 696) (2017) (appellate court has discretion to
correct merger error that is clear and obvious, particularly when
such error harms the defendant).
Judgment affirmed in part and vacated in part. All the Justices concur.
17 Decided March 19, 2024 — Reconsideration denied April 16, 2024.
Murder. Muscogee Superior Court. Before Judge McBride.
Ryan C. Malone, Angela B. Dillon, for appellant.
Stacey S. Jackson, District Attorney, Cynthia D. McDonald,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.
Malcolm, Senior Assistant Attorneys General, M. Catherine Norman,
Assistant Attorney General, for appellee.