296 Ga. 376 FINAL COPY
S14A1296. DURHAM v. THE STATE.
BLACKWELL, Justice.
Javon Durham was tried by a Bibb County jury and convicted of murder
and other crimes related to the killing of Cornelius Baldwin. Durham appeals,
contending only that the trial court erred when it allowed the State to introduce
certain testimony. Upon our review of the record and briefs, we find no error,
and we affirm.1
1. Viewed in the light most favorable to the verdict, the evidence shows
that, around 3:00 on the afternoon of January 9, 2010, Baldwin and his
girlfriend, Sharon Dotson, were preparing to leave Baldwin’s home in Macon
so that they could pick up Dotson’s older children from school. Dotson put her
1 The crimes were committed on January 9, 2010. Durham was indicted on March 30, 2010, and he was charged with felony murder, aggravated assault, and two counts of armed robbery. Durham was tried beginning on January 26, 2011, and the jury returned its verdict two days later, finding Durham guilty on all counts. The aggravated assault merged with the felony murder, see Malcolm v. State, 263 Ga. 369, 372-374 (5) (434 SE2d 479) (1993), and on February 18, 2011, Durham was sentenced to imprisonment for life for the felony murder and concurrent terms of life imprisonment for each count of armed robbery. Durham timely filed a motion for new trial, and he later amended it. The trial court denied his motion on October 31, 2013, and Durham filed a notice of appeal on November 27, 2013. The case was docketed in this Court for the September 2014 term and submitted for decision on the briefs. two younger children in the bac kseat of Baldwin’s vehicle. As Dotson got into
the front passenger seat, she saw a purple car pull up to the home. Dotson heard
a gunshot, and she saw a man get out of the purple car and shoot at Baldwin.
Baldwin suffered gunshot wounds to his right arm and chest, with the chest
wound involving a puncture of his diaphragm and leaving it difficult for him to
speak.
The gunman approached Baldwin, and as he did, Dotson heard Baldwin
say, “Yavon, man, why [are] you doing this . . . ?” The assailant demanded that
Baldwin give over all his money, and Baldwin gave the assailant his money belt
and his coat, in the pocket of which was an envelope containing a “large sum of
money.” The assailant then approached Dotson and demanded her cell phone,
which she provided to him.
Dotson used Baldwin’s cell phone to call 911, and Baldwin again stated
that “Yavon” shot him. Baldwin was still responsive when paramedics arrived
on the scene approximately five minutes later, and he told a paramedic in the
ambulance that he was shot by his “homeboy Javon.” Baldwin died at the
hospital as a result of the injuries he sustained in the shooting.
2 Later that day, and into the following morning, Detective David Patterson
contacted persons whose phone numbers he found on Baldwin’s cell phone.
During this process, Patterson spoke with Jamaal Ragins, who had been
acquainted with both Durham and Baldwin for several years. When Patterson
asked Ragins if Baldwin knew anyone named “Yavon,” Ragins responded that
Baldwin knew Javon Durham, and Ragins further explained that Baldwin had
a habit of pronouncing the letter “J” as a “Y,” so that he would refer to Durham
as “Yavon.” That same day, Patterson showed Dotson a photo lineup that
included Durham’s photograph, and Dotson identified Durham as the assailant.
Patterson’s investigation also revealed that Durham’s girlfriend, Genisha
Thomas, drove a purple Ford Fusion. Dotson later identified that car as the one
driven by Durham when he shot Baldwin. Thomas initially provided false
information to police investigators, but she later admitted that Durham was in
sole possession of her purple car while she was getting her hair braided at a
beauty shop, beginning around 10:00 on the morning of January 9. After the
shooting, Durham parked the purple car at Macon State College2 and walked to
2 Macon State College is now known as Middle Georgia State College.
3 Thomas’s apartment, which was nearby. He told Jayne High, who was one of
Thomas’s roommates, that he had gotten into an altercation in which shots were
exchanged with some of his “homeboys.” High agreed to drive Durham in her
car to pick up Thomas at the beauty shop, and both High and Thomas saw that
Durham had placed a black handgun on the floorboard of High’s car. Durham
told Thomas that he had “got into it with some boys” and fired some shots at
them, but he was not sure if anyone was hit. Thomas acknowledged that Durham
then took her shopping in Warner Robins and that Durham — who had no job
— used cash to buy her a new laptop computer, clothes, and shoes. That
evening, High agreed to let Durham use her ID to check into a hotel (which he
again paid for with cash). And Durham took Thomas, High, and another
roommate — Jaydalia Bennett — shopping at a mall in Morrow the next day,
where he used several hundred dollars in cash to buy himself clothes and shoes.
That evening, Durham called High so that she would use her ID to let him check
into a different hotel, and when High saw him, he gave her $2,000 in cash and
told her to give it to Thomas. Thomas admitted that she wrapped up the money
and hid it in a closet.
4 Durham does not dispute that the evidence is sufficient to sustain his
convictions, but consistent with our usual practice in murder cases, we have
independently reviewed the record to assess the legal sufficiency of the
evidence. When we consider the legal sufficiency of the evidence, “we must
view the evidence in the light most favorable to the verdict and leave questions
of credibility and the resolution of conflicts in the evidence to the jury.” Bradley
v. State, 292 Ga. 607, 609 (1) (a) (740 SE2d 100) (2013). So viewed, we
conclude that the evidence adduced at trial was legally sufficient to authorize a
rational trier of fact to find beyond a reasonable doubt that Durham was guilty
of felony murder and the armed robberies of both Baldwin and Dotson. Jackson
v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Durham claims that the trial court violated his Sixth Amendment right
to confrontation when it allowed several statements made by Baldwin to be
introduced at trial. First, the trial court allowed the jury to hear a recording of
the 911 call in which Baldwin could be heard saying that it was “Yavon” who
shot him. Second, the trial court allowed Patterson to testify that he overheard
Baldwin tell the paramedic in the ambulance that he was shot by his “homeboy
Javon.” Durham now claims that both of these statements were testimonial in
5 nature and therefore inadmissible under the Confrontation Clause of the Sixth
Amendment.3 But Durham’s argument before the trial court was not that these
statements were inadmissible under the Confrontation Clause, but rather that
they were inadmissible hearsay. Prior to trial, Durham filed a “Motion in Limine
to Exclude Hearsay Statements,” and at the hearing on that motion, Durham
argued that the statements did not qualify for any exemption under the hearsay
rule. The trial court disagreed, finding that the statements at issue were dying
declarations, and Durham offered no other objection to their admissibility.
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296 Ga. 376 FINAL COPY
S14A1296. DURHAM v. THE STATE.
BLACKWELL, Justice.
Javon Durham was tried by a Bibb County jury and convicted of murder
and other crimes related to the killing of Cornelius Baldwin. Durham appeals,
contending only that the trial court erred when it allowed the State to introduce
certain testimony. Upon our review of the record and briefs, we find no error,
and we affirm.1
1. Viewed in the light most favorable to the verdict, the evidence shows
that, around 3:00 on the afternoon of January 9, 2010, Baldwin and his
girlfriend, Sharon Dotson, were preparing to leave Baldwin’s home in Macon
so that they could pick up Dotson’s older children from school. Dotson put her
1 The crimes were committed on January 9, 2010. Durham was indicted on March 30, 2010, and he was charged with felony murder, aggravated assault, and two counts of armed robbery. Durham was tried beginning on January 26, 2011, and the jury returned its verdict two days later, finding Durham guilty on all counts. The aggravated assault merged with the felony murder, see Malcolm v. State, 263 Ga. 369, 372-374 (5) (434 SE2d 479) (1993), and on February 18, 2011, Durham was sentenced to imprisonment for life for the felony murder and concurrent terms of life imprisonment for each count of armed robbery. Durham timely filed a motion for new trial, and he later amended it. The trial court denied his motion on October 31, 2013, and Durham filed a notice of appeal on November 27, 2013. The case was docketed in this Court for the September 2014 term and submitted for decision on the briefs. two younger children in the bac kseat of Baldwin’s vehicle. As Dotson got into
the front passenger seat, she saw a purple car pull up to the home. Dotson heard
a gunshot, and she saw a man get out of the purple car and shoot at Baldwin.
Baldwin suffered gunshot wounds to his right arm and chest, with the chest
wound involving a puncture of his diaphragm and leaving it difficult for him to
speak.
The gunman approached Baldwin, and as he did, Dotson heard Baldwin
say, “Yavon, man, why [are] you doing this . . . ?” The assailant demanded that
Baldwin give over all his money, and Baldwin gave the assailant his money belt
and his coat, in the pocket of which was an envelope containing a “large sum of
money.” The assailant then approached Dotson and demanded her cell phone,
which she provided to him.
Dotson used Baldwin’s cell phone to call 911, and Baldwin again stated
that “Yavon” shot him. Baldwin was still responsive when paramedics arrived
on the scene approximately five minutes later, and he told a paramedic in the
ambulance that he was shot by his “homeboy Javon.” Baldwin died at the
hospital as a result of the injuries he sustained in the shooting.
2 Later that day, and into the following morning, Detective David Patterson
contacted persons whose phone numbers he found on Baldwin’s cell phone.
During this process, Patterson spoke with Jamaal Ragins, who had been
acquainted with both Durham and Baldwin for several years. When Patterson
asked Ragins if Baldwin knew anyone named “Yavon,” Ragins responded that
Baldwin knew Javon Durham, and Ragins further explained that Baldwin had
a habit of pronouncing the letter “J” as a “Y,” so that he would refer to Durham
as “Yavon.” That same day, Patterson showed Dotson a photo lineup that
included Durham’s photograph, and Dotson identified Durham as the assailant.
Patterson’s investigation also revealed that Durham’s girlfriend, Genisha
Thomas, drove a purple Ford Fusion. Dotson later identified that car as the one
driven by Durham when he shot Baldwin. Thomas initially provided false
information to police investigators, but she later admitted that Durham was in
sole possession of her purple car while she was getting her hair braided at a
beauty shop, beginning around 10:00 on the morning of January 9. After the
shooting, Durham parked the purple car at Macon State College2 and walked to
2 Macon State College is now known as Middle Georgia State College.
3 Thomas’s apartment, which was nearby. He told Jayne High, who was one of
Thomas’s roommates, that he had gotten into an altercation in which shots were
exchanged with some of his “homeboys.” High agreed to drive Durham in her
car to pick up Thomas at the beauty shop, and both High and Thomas saw that
Durham had placed a black handgun on the floorboard of High’s car. Durham
told Thomas that he had “got into it with some boys” and fired some shots at
them, but he was not sure if anyone was hit. Thomas acknowledged that Durham
then took her shopping in Warner Robins and that Durham — who had no job
— used cash to buy her a new laptop computer, clothes, and shoes. That
evening, High agreed to let Durham use her ID to check into a hotel (which he
again paid for with cash). And Durham took Thomas, High, and another
roommate — Jaydalia Bennett — shopping at a mall in Morrow the next day,
where he used several hundred dollars in cash to buy himself clothes and shoes.
That evening, Durham called High so that she would use her ID to let him check
into a different hotel, and when High saw him, he gave her $2,000 in cash and
told her to give it to Thomas. Thomas admitted that she wrapped up the money
and hid it in a closet.
4 Durham does not dispute that the evidence is sufficient to sustain his
convictions, but consistent with our usual practice in murder cases, we have
independently reviewed the record to assess the legal sufficiency of the
evidence. When we consider the legal sufficiency of the evidence, “we must
view the evidence in the light most favorable to the verdict and leave questions
of credibility and the resolution of conflicts in the evidence to the jury.” Bradley
v. State, 292 Ga. 607, 609 (1) (a) (740 SE2d 100) (2013). So viewed, we
conclude that the evidence adduced at trial was legally sufficient to authorize a
rational trier of fact to find beyond a reasonable doubt that Durham was guilty
of felony murder and the armed robberies of both Baldwin and Dotson. Jackson
v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Durham claims that the trial court violated his Sixth Amendment right
to confrontation when it allowed several statements made by Baldwin to be
introduced at trial. First, the trial court allowed the jury to hear a recording of
the 911 call in which Baldwin could be heard saying that it was “Yavon” who
shot him. Second, the trial court allowed Patterson to testify that he overheard
Baldwin tell the paramedic in the ambulance that he was shot by his “homeboy
Javon.” Durham now claims that both of these statements were testimonial in
5 nature and therefore inadmissible under the Confrontation Clause of the Sixth
Amendment.3 But Durham’s argument before the trial court was not that these
statements were inadmissible under the Confrontation Clause, but rather that
they were inadmissible hearsay. Prior to trial, Durham filed a “Motion in Limine
to Exclude Hearsay Statements,” and at the hearing on that motion, Durham
argued that the statements did not qualify for any exemption under the hearsay
rule. The trial court disagreed, finding that the statements at issue were dying
declarations, and Durham offered no other objection to their admissibility.
Because Durham did not raise a claim under the Confrontation Clause
until his appeal, he has failed to properly preserve such a challenge for appellate
review. “There is a distinct difference between a challenge to the admission of
evidence based upon the Confrontation Clause and that based upon an exception
to the hearsay rule,” such as the exception for dying declarations. Walton v.
State, 278 Ga. 432, 434 (1) (603 SE2d 263) (2004) (citation omitted).
3 Durham does not challenge the admissibility of the statement Baldwin made immediately after being shot, in which he asked “Yavon, man, why [are] you doing this . . .?” In a separate enumeration of error, Durham challenges as inadmissible hearsay the testimony provided by Ragins about a statement made to him by Detective Patterson, but Durham did not raise any objection to the admissibility of that statement at trial or in his pretrial motion. As a result, Durham has waived appellate review of this issue. See Johnson v. State, 292 Ga. 785, 787-788 (3) (741 SE2d 627) (2013).
6 Although the rules concerning the Confrontation Clause and hearsay evidence generally protect similar values, they do not always prohibit the same evidence. The Confrontation Clause may bar the admission of some evidence that would be admissible under an exception to the hearsay rule. The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.
Yancey v. State, 275 Ga. 550, 557 (3) (570 SE2d 269) (2002) (citations and
punctuation omitted). Because Durham’s only argument before the trial court
was that the statements at issue were inadmissible hearsay, we are foreclosed
from considering his claim under the Confrontation Clause.4
3. Finally, Durham alleges that the trial court erred when it permitted
Ragins to testify that Baldwin had a habit of pronouncing the letter “J” as a “Y”
and that he would pronounce Durham’s name as “Yavon” instead of “Javon.”
According to Durham’s argument on appeal, the State failed to show that Ragins
was qualified to provide his opinion of Baldwin’s speech patterns. But Durham
did not make any objection to this testimony before the trial court, and he has
4 Even if it were otherwise, the United States Supreme Court has found that “admission of a dying declaration was an exception to the general rule that a prior opportunity to cross-examine was a necessary condition for admissibility of testimonial statements.” Walton, 287 Ga. at 434-435 (1) (citing to Crawford v. Washington, 541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004)).
7 waived this claim on appeal. See Johnson v. State, 292 Ga. 785, 787-788 (3)
(741 SE2d 627) (2013).5
Judgment affirmed. All the Justices concur.
Decided January 20, 2015.
Murder. Bibb Superior Court. Before Judge Christian, Senior Judge.
Green B. Moore III, Sean I. Brodie, for appellant.
K. David Cooke, Jr., District Attorney, Shelley T. Milton, Assistant
District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Clint C. Malcolm, Assistant Attorney General, for appellee.
5 Even if it were otherwise, a layperson may provide his opinion about the distinctive mannerisms of a person whom he has observed. See Dawson v. State, 283 Ga. 315, 320-321 (4) (658 SE2d 755) (2008).