Dubose v. State
299 Ga. 652
| Ga. | 2016Background
- DuBose and victim Atima Smith lived together; after a late-night argument over alleged infidelity, shots were fired and Smith was killed. DuBose admitted killing her, claiming a sudden fit of passion.
- A witness (Smith’s daughter) heard the argument, heard gunshots, called 911, and saw DuBose leave carrying Smith’s Glock; investigators found Smith shot with DuBose’s Browning 9mm and found DuBose’s pistol nearby.
- DuBose was indicted on multiple counts including malice murder, two counts of felony murder, aggravated assault, unlawful possession of a firearm by a convicted felon, and related charges; the jury convicted him of two counts of felony murder, aggravated assault, unlawful possession by a felon, and the firearm-during-felony count, and found malice murder reduced to voluntary manslaughter.
- The trial court ultimately sentenced DuBose to life without parole for felony murder (predicated on unlawful possession by a convicted felon), plus consecutive terms for aggravated assault and the firearm-during-felony count; other counts merged or were vacated by operation of law.
- DuBose appealed (S16A1299) arguing (1) he should have been sentenced for voluntary manslaughter rather than felony murder, (2) felony murder and aggravated assault should have merged, and (3) the voluntary manslaughter jury instruction was deficient. A separate appeal (S16A1300) challenging a sentencing-clarifying order was dismissed for failure to assert error.
Issues
| Issue | DuBose's Argument | State's Argument | Held |
|---|---|---|---|
| Whether sentencing DuBose for felony murder was improper when jury convicted him of voluntary manslaughter | DuBose: Edge modified-merger rule requires vacatur of felony murder when voluntary manslaughter is found | State: Edge does not apply where felony murder is predicated on unlawful possession by a felon, an independent felony | Court: Held felony murder conviction/sentence proper; Edge rule inapplicable because predicate felony was independent unlawful possession of a firearm by a convicted felon |
| Whether felony murder and aggravated assault should merge for sentencing | DuBose: offenses merge because based on same conduct | State: Under controlling precedent, separate sentencing is permitted where felony murder is predicated on unlawful possession and aggravated assault is by deadly weapon | Court: Held no merger error; sentencing on both counts proper under recent precedents |
| Whether the voluntary manslaughter jury instruction was plain error | DuBose: instruction insufficiently tailored and failed to clarify that infidelity between unmarried persons can be adequate provocation | State: Jury properly instructed; no timely objection; jury nonetheless acquitted on malice murder in favor of voluntary manslaughter | Court: Assuming any error, not plain — jury was able to consider and did find voluntary manslaughter, so no effect on outcome |
| Validity of appeal challenging trial court’s sentence-clarifying order (S16A1300) | DuBose: appealed the order (no asserted error in brief) | State: procedural dismissal | Court: Appeal dismissed for failure to assert error |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (legal sufficiency standard)
- Edge v. State, 261 Ga. 865 (1992) (modified merger rule for voluntary manslaughter and felony murder)
- Wallace v. State, 294 Ga. 257 (predicate-felony limitation on Edge rule)
- Grimes v. State, 293 Ga. 559 (application of merger principles)
- Lawson v. State, 280 Ga. 881 (refusing to extend Edge to felon-in-possession predicate)
- Amos v. State, 297 Ga. 892 (same as to unlawful possession predicate)
- Crayton v. State, 298 Ga. 792 (permitting sentencing for both felony murder predicated on unlawful possession and aggravated assault)
- White v. State, 287 Ga. 713 (jury’s role in determining malice and intent)
- Smith v. State, 272 Ga. 874 (merger and vacatur principles)
- Green v. State, 283 Ga. 126 (merger jurisprudence)
- Rowland v. State, 264 Ga. 872 (procedural standard for dismissal of appeal)
- State v. Kelly, 290 Ga. 29 (plain error standard for jury instructions)
- Gates v. State, 298 Ga. 324 (closing-argument errors not reviewable for plain error)