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302 Ga. 60
Ga.
2017
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Background

  • On Dec. 31, 2012, Terry Slack was shot and killed during an attempted robbery; Willie Dublin was tried and convicted of felony murder (predicate: aggravated assault), two counts of aggravated assault, and possession of a firearm during the commission of a felony; acquitted of malice murder.
  • Evidence: Dublin attended a New Year’s Eve gathering with co-defendants Darnell Mitchell and Dewayne Reynolds; witnesses overheard the three discussing a robbery; Reynolds wore a blue-and-white striped shirt matching a witness description; Dublin admitted ownership of the gun and that he disposed of it and asked his girlfriend to lie.
  • Testimony was conflicting about who fired the fatal shot: Reynolds at times implicated Dublin; other witnesses reported Reynolds confessed to shooting Slack or said Reynolds snatched the gun from Dublin and shot.
  • Several witnesses (Cronan, Watson, Dupree) testified to out-of-court statements by Dublin and the co-defendants; the State relied on the co-conspirator exception to admit this hearsay.
  • Dublin moved for a new trial arguing (1) trial counsel was ineffective for not objecting to hearsay and to a detective’s comment about Dublin’s refusal to speak, (2) the court erred admitting hearsay and denying a mistrial for a co-defendant’s mention of prior bad acts, and (3) insufficient evidence. The trial court denied the motion; on appeal the Supreme Court of Georgia affirmed convictions but vacated and remanded on merger/sentencing for aggravated assault with intent to rob.

Issues

Issue Dublin's Argument State's Argument Held
Admissibility of Watson/Cronan hearsay under co-conspirator exception Statements were inadmissible hearsay because conspiracy not independently proven and declarants didn’t identify speakers State proved conspiracy by preponderance via independent evidence; statements made during and in furtherance of conspiracy admissible Admission proper under OCGA § 24-8-801(d)(2)(E); counsel’s failure to object not prejudicial (futile)
Dupree hearsay testimony Dupree’s testimony lacked independent corroboration and speaker identification; thus inadmissible Same co-conspirator proof supports admission; Confrontation Clause inapplicable to nontestimonial co-conspirator statements Admission upheld; argument foreclosed by conspiracy proof and Confrontation Clause analysis
Ineffective assistance for failing to object to detective’s comment that Dublin and girlfriend were unwilling to talk Comment violated Mallory (impermissible remark on defendant’s silence) and counsel should have objected Even if objectionable, the remark was isolated and would not have changed outcome given weight of evidence; no prejudice under Strickland No prejudice shown; ineffective-assistance claim denied
Mistrial request after Reynolds referenced prior discussions of robbing others Testimony improperly injected other bad acts and should have led to mistrial Statement was vague/nonresponsive; court gave curative instruction to disregard events other than Dec. 31; discretion to deny mistrial Trial court did not abuse discretion; curative instruction sufficient

Key Cases Cited

  • Strickland v. Washington, 466 U.S. 668 (establishes ineffective-assistance two-prong test)
  • Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence review)
  • Mallory v. State, 261 Ga. 625 (1991) (prohibits comment on defendant’s silence)
  • Ventura v. State, 284 Ga. 215 (failure to pursue futile objection does not establish ineffectiveness)
  • Reynolds v. State, 299 Ga. 781 (related co-defendant decision addressing merger/sentencing error)
  • Herrington v. State, 300 Ga. 149 (party liability: need not personally fire weapon if aided/abetted assault)
  • Braithwaite v. State, 275 Ga. 884 (constructive possession of firearm as party to crime)
  • Lilly v. Virginia, 527 U.S. 116 (discussed reliability requirement; distinguished for nontestimonial co-conspirator statements)
  • Crawford v. Washington, 541 U.S. 36 (Confrontation Clause framework; distinguishes testimonial vs nontestimonial)
  • United States v. Hasner, 340 F.3d 1261 (11th Cir.) (co-conspirator exception: court may consider statements plus independent evidence to prove conspiracy)
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Case Details

Case Name: Dublin v. State
Court Name: Supreme Court of Georgia
Date Published: Sep 13, 2017
Citations: 302 Ga. 60; 805 S.E.2d 27; S17A0822
Docket Number: S17A0822
Court Abbreviation: Ga.
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