Durden v. State
299 Ga. 273
Ga.2016Background
- Defendant Johnathan Durden lived with girlfriend Alexa Blubaugh; Blubaugh had befriended victim Ricky Grice and went to Grice’s truck the day of the killing. Durden followed.
- Durden approached Grice at the driver’s side, attacked him with a knife, and made statements reflecting jealousy; Grice died of multiple stab wounds.
- Evidence included eyewitness testimony from Blubaugh, blood castoff consistent with Grice seated in the driver’s seat with the door shut, and a recorded five-hour custodial statement by Durden.
- Durden was tried, convicted of malice murder and related offenses, and sentenced to life without parole plus consecutive weapon-time. Felony murder vacated and aggravated assault merged with malice murder.
- Procedural dispute: initial July-term indictment was quashed; the district attorney reconvened the January-term grand jury (with at least one alternate substituted) which returned a second indictment the last day of the January term. Durden moved to quash the second indictment and lost.
- Trial objection dispute: defense argued in closing that Durden testified (referring to his custodial statement); prosecutor rebutted that the defendant did not testify under oath. Durden did not object at trial and now claims a violation of his right to remain silent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second indictment must be quashed because the January-term grand jury was not re-sworn after alternates replaced unqualified jurors | Durden: grand jurors must be re-sworn when alternates join; lack of re-sworn oath invalidates indictment | State: alternates may be sworn and serve within the same term; a grand jury need not be re-sworn during the same term so long as it was not discharged | Court: Affirmed indictment; substitutes were proper under OCGA and no re-swearing required within the same term (Grace controls) |
| Whether grand jury bailiffs were improperly sworn (thus invalidating the indictment) | Durden: bailiffs were sworn for July term as well and thus lacked authority to tend the January grand jury when it reconvened | State: bailiffs had been sworn to tend the January term and remained empowered during that term; later July swearing did not divest January authority | Court: Bailiffs were properly sworn for the January term; argument fails |
| Whether prosecutor’s rebuttal comment improperly commented on Durden’s failure to testify, warranting a curative instruction | Durden: prosecutor’s statement infringed his Fifth Amendment right and required a curative instruction | State: prosecutor corrected defense counsel’s misstatement that defendant testified; comment was permissible and not an impermissible comment on silence | Court: Issue not preserved (no contemporaneous objection); in any event prosecutor was correcting a misstatement and jury instructions protected defendant’s rights |
| Sufficiency of the evidence to support convictions | Durden: (general grounds) challenges sufficiency implicitly by appeal | State: presented witness testimony, physical and forensic evidence tying Durden to the stabbing | Court: Evidence sufficient to support convictions per Jackson v. Virginia standard |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency of the evidence review)
- State v. Grace, 263 Ga. 220 (grand jury properly summoned may recess and reconvene during the same term without being re-sworn)
- Mack v. State, 296 Ga. 239 (review standard: de novo when applying law to undisputed facts)
- Gates v. State, 298 Ga. 324 (plain-error review not available for unpreserved closing-argument remarks under Georgia law)
- Jones v. State, 123 Ga. App. 310 (clarifies that exposing an unsworn statement is not per se reversible error)
- Malcolm v. State, 263 Ga. 369 (felony murder vacatur rule referenced in sentencing adjustments)
- Bell v. State, 284 Ga. 790 (merger of aggravated assault with malice murder explained)