Dukes v. StateDukes v. State
Following a jury trial, Damarcus Antwan Dukes was convicted of malice murder and related offenses in connection with crimes committed against Demarius Denham, Dankevion Chatman, and Uzamoake Moh.1 On appeal, Dukes raises three claims of trial court
1. Relevant to this appeal,2 the evidence presented at trial shows that, on November 30, 2018, Tony Hudgens, one of Dukes’s best friends, went to the apartment of a drug dealer known as “Bigs” to buy some marijuana. Sometime thereafter, Dukes arrived; Bigs sold Hudgens some marijuana and then told him to leave. As
Moh, who was still waiting in her car, looked up and saw Dukes standing by her window with a gun by his side. Dukes told her, “Get the f**k out of the car before I blast you.” Moh dropped her phone and got out of the car. As she ran, she watched Dukes and three other men get into her car and drive off. Just then, Derricott came out of the building. Moh and Derricott borrowed a phone, called 911,
Hudgens, who had made his way to the breezeway of the nearby Ashford Oaks apartment complex, saw the same black Infiniti enter the parking lot and back into a spot. Hudgens saw Dukes step out of the car with three other men5; the group emptied the car of its contents and then began selling the stolen items. At one point, Denham and Chatman, who knew Dukes, approached the group because Denham wanted to buy a toy car for his son. Chatman gave Denham a $100 bill, told Denham to go to a nearby gas station to purchase some drinks and cigarettes, and then return with the change to buy the toy.
When Denham arrived at the gas station, Derricott and Moh were speaking with the police. Derricott saw Denham, who was a family friend, and told him that he had just been robbed. Denham asked if Moh had an Infiniti because someone “just hit for an Infiniti,” to which Derricott replied “yes.” Moh stayed with officers
Denham called Chatman and told him that Derricott had been robbed, and that the Infiniti parked at Ashford Oaks belonged to his friends. When Denham returned to Ashford Oaks, he and Chatman confronted Dukes about the robbery. Though Chatman remained calm, Denham became passionate during the discussion. When the verbal exchange between Denham and Dukes turned heated, Dukes brandished a gun and shot Denham. As Chatman attempted to move Denham away from the gunfire, Chatman was shot in the shoulder. Denham suffered five gunshot wounds to the torso and died at the scene. Chatman was shot multiple times, but was able to escape from the shooting before collapsing at a friend’s nearby apartment.
At trial, a stipulation was read to the jury that Dukes was on first offender probation at the time of the November 2018 crimes. Dukes took the stand and testified that Denham became aggressive
2. Dukes alleges that the trial court abused its discretion by allowing both Derricott and Hudgens to testify to inadmissible hearsay. The State argues that Derricott’s testimony about a hearsay statement by Moh was properly admitted as an excited utterance, see
a. Testimony of Derricott
The record shows, in pertinent part, that Moh testified about the hijacking and robbery and identified Dukes as her assailant. She explained that, immediately after the carjacking, she saw Derricott and told him, “They stole my car.” Derricott testified after Moh, and the following exchange occurred:
Prosecutor: What was [Moh] doing?
Derricott: Crying.
Prosecutor: Do you know why she was crying?
Derricott: Somebody just took her car.
Dukes: Objection to hearsay.
Prosecutor: Your Honor, the witness has already testified.
Trial Court: Overruled. You can answer.
Derricott: Somebody had took the car from her.
Prosecutor: Did you actually see anybody take the car from her?
Derricott: No.
Prosecutor: Where were you when that was happening?
Derricott: Inside.
Dukes: Objection. Speculation.
Trial Court: Overruled.
Prosecutor: Let me ask you this, Mr. Derricott: when you left – when you got out of the car and went inside the apartment, was [Moh] still in the car?
Derricott: Yes.
Prosecutor: Was the car still outside?
Derricott: Yes.
Prosecutor: After the altercation and you left the
Derricott: No.
Prosecutor: What did [Moh] tell you?
Derricott: Somebody took the car.
Dukes alleges that Derricott testified to inadmissible hearsay regarding Moh’s statement about her car being stolen. We see no error. “[A] trial court’s decision whether to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion.” (Citation omitted.). Lyons v. State, 309 Ga. 15, 21 (4) (843 SE2d 825) (2020). Here, the record shows that Moh was still in a state of excitement resulting from the robbery when she informed Derricott that her car was stolen. And “whether a hearsay statement was an excited utterance is determined by the totality of the circumstances. . . . The critical inquiry is whether the declarant is still in a state of excitement resulting from that event when the declaration is made.” (Citations and punctuation omitted.) Atkins v. State, ___ Ga. ___ (2) (850 SE2d 103) (2020). Moh was crying when she told Derricott that her car had been stolen, and the statement was made immediately after the event. See Blackmon v. State, 306 Ga. 90 (2) (829 SE2d 75) (2019) (victim’s statements made moments after startling event fell under excited utterance exception). Accordingly, the trial court did not abuse its discretion by admitting Moh’s hearsay statement into evidence.
b. Testimony of Hudgens
Later in the State’s case-in-chief, Chatman was called as a witness and testified concerning his initial discussion with Dukes regarding the robbery of Derricott and Moh. Specifically, Chatman testified, in pertinent part,
Prosecutor: You heard the name Bigs from [Dukes]?
Chatman: Yeah.
Prosecutor: How did that come about?
Chatman: When – can I say?
Prosecutor: Yeah.
Chatman: When I said y’all know y’all robbed my folks, right, he went, for real, big bro. I’m like yeah. . . . And then [Dukes] was like, man, let me call this n***a Bigs right quick. He pulled out his phone.
Prosecutor: So when you said you know y’all robbed my folks –
Chatman: Right.
Prosecutor: - who were you saying that to?
Chatman: I was saying that to [Dukes] and Slim and them.
Prosecutor: How did [Dukes] react when you said that
Chatman: He said, for real, big bro. Like for real, like that.
Prosecutor: So after he said for real, what did he do next?
Chatman: He pulled his phone out.
Prosecutor: Do you know who he called?
Chatman: Bigs.
Prosecutor: How do you know that?
Chatman: Because he said it on his phone.
Prosecutor: Do you know if [Dukes] ever actually spoke to Bigs?
Chatman: It went to voicemail. He put it on speaker.
Prosecutor: So you could hear the voicemail?
Chatman: Yeah.
Prosecutor: After [Dukes] tried to call Bigs, how did [Dukes] react to getting voicemail?
Chatman: He was just like – he was frustrated. Called [Bigs] about five times. . . . He called [Bigs] about five times back to back.
Chatman testified that, as Dukes was attempting to reach Bigs, Denham was talking passionately to the group in the breezeway and making a bit of a scene. Chatman explained that, when Dukes failed to reach Bigs, he yelled, “[T]his is bulls**t,” which caused Denham to respond, “[A]in’t nobody even talking to you.”
Hudgens was called as a witness after Chatman. During his direct examination, Hudgens testified that, prior to the shooting,
Prosecutor: And when you were at the apartment complex, after you saw [Dukes] in the car, did [Dukes] say anything about Bigs?
Hudgens: No.
Prosecutor: No?
Dukes: Objection to relevance, your Honor, and hearsay. And it’s not related to this case.
Trial Court: Overruled.
Hudgens: But Bigs had a main part of everything, how I see it. How I see it, he put everything together
Prosecutor: Okay. Well, I’m just sticking with what –
Hudgens: Yeah. Yeah. Yeah.
Prosecutor: – with [Dukes] and what you heard [Dukes] say. Okay? So did you ever hear the word Bigs come out of [Chatman’s] mouth?
Hudgens: Yeah.
Dukes: Objection to hearsay.
Prosecutor: Your honor, the witness has already testified.
Hudgens: Yes, sir, I did.
The Court: Hold on. Overruled. He can answer.
Prosecutor: Did you ever hear the word Bigs come out of [Chatman’s] mouth?
Hudgens: Yeah.
Prosecutor: After you heard the word “Bigs” come out of [Chatman’s] mouth, what did [Dukes] say?
Hudgens: [Dukes] didn’t say nothing. [Chatman] said to me –
Dukes: Objection to what [Chatman] said.
Trial Court: Sustained. Ask a new question.
Prosecutor: Did [Dukes] mention anything about Bigs triple[-]crossing him?
Hudges: Yes.
Dukes objected again, arguing that his statement about Bigs triple-crossing him was inadmissible hearsay because it did not qualify as a statement against self-interest.6 The prosecutor responded, in pertinent part:
So with respect to the statement made by [Dukes] as to Bigs triple[-]crossing him, as Mr. Chatman has already testified that [Dukes] was trying to get on the phone with Bigs after [Chatman] said, you know, y’all robbed one of my friends’ people, and the response from Mr. Dukes was, oh, for real, let me get in touch with Bigs, Mr. Dukes attempts to get in touch with Bigs five separate times. And this supports Mr. Hudgens’ statements as to Bigs triple[-]crossing him, supports and makes it more or less – is more probative as to whether or not [Dukes] was involved in the carjacking that took place with respect to the incident that occurred prior to the homicide.
On appeal, Dukes alleges that Hudgens’ testimony that he heard Chatman say Bigs’ name was inadmissible hearsay. We agree with the State that any error in the admission of this testimony was
3. Dukes alleges that the trial court erred by excluding expert testimony from Dr. Michael Heninger, the Fulton County medical examiner, about how amphetamines would have affected Denham’s behavior prior to the shooting. We see no reversible error.
During its case-in-chief, the State called Dr. Heninger to testify about Denham’s autopsy. During his direct examination, Dr. Heninger testified that Denham had .11 milligrams of amphetamine per liter in his blood at the time of his death. On cross-examination, defense counsel asked Dr. Heninger to explain what amphetamines were, to which Dr. Heninger testified that “[a]mphetamine is a stimulant that was invented in World War II to keep pilots awake. It was used quite a bit. It has a lot of toxic effects. One of its derivatives is methamphetamine or meth, which is – .” The State raised a relevance objection at this point, and defense counsel responded, “The relevance is the condition of the victim at the time that the event happened. It’s a self-defense case, your Honor.” The State replied that Dr. Heninger was not qualified to give an expert
Dukes then elicited testimony that Dr. Heninger was a medical doctor, that he had taken courses in pharmacology, that he had prescribed medications, and that he was aware of the effects of amphetamines on a person’s “fight or flight” response. He testified that the focus of his practice was to determine cause of death, including when medications caused death. When asked what the effect of amphetamines was on the body, Dr. Heninger responded, “It’s a stimulant. It makes people not sleep. It makes – kind of raises their heart rate, gets them ready to do fight or flight, that kind of thing.” The State objected, again arguing that Dukes had still not laid a proper foundation. Defense counsel responded,
He’s already testified to it. And that’s all I’m going to ask him. I’m not going to ask him anything further, particularly not with respect to this defendant because
he’s not qualified to testify to that, to this particular defendant under these particular circumstances.
The trial court sustained the State’s objection, granted the State’s motion to strike the last portion of the medical examiner’s testimony, and instructed the jury to disregard Dr. Heninger’s last statement.
On appeal, Dukes claims that the trial court erred by striking the last portion of Dr. Heninger’s testimony and by prohibiting counsel from further cross-examining the medical examiner about the effects of amphetamines on a person. As an initial matter, the portion of Dukes’ enumeration claiming trial court error for prohibiting further cross-examination is not preserved for appellate review. In response to the prosecutor’s last objection, Dukes informed the trial court, “That’s all I’m going to ask him,” and further acknowledged that Dr. Heninger was not qualified to give any additional testimony on the topic. And, “[a]ffirmative waiver, as opposed to mere forfeiture by failing to object, prevents reversal.” Wallace v. State, 303 Ga. 34, 37 (2) (810 SE2d 93) (2018).
Turning to the portion of Dukes’ claim concerning the trial court’s striking of Dr. Heninger’s testimony that amphetamine is “a stimulant. It makes people not sleep. It makes – kind of raises their heart rate, gets them ready to do fight or flight, that kind of thing,” any error in striking this testimony was harmless. Dr. Heninger had previously testified to the stimulant effect of amphetamines on a person’s system. Further, the medical examiner’s testimony was cumulative of other, more specific evidence of Denham’s alleged pre-shooting aggression. The record shows that the jury heard from other witnesses, and from Dukes himself, that Denham: appeared to be “tripping”; was volatile during the pre-shooting confrontation; was passionate and making a scene prior to the shooting; and at one point during the confrontation, left and returned with a handgun. Finally, as defense counsel conceded, Dr. Heninger was “not qualified to testify to that, to this particular defendant under these particular circumstances,” and, instead, could only testify as to
4. Dukes alleges that the trial court erred by imposing separate sentences for Counts 15 and 16 of his indictment. Count 15 charged Dukes,
with the offense of possession of a firearm by a first offender probationer OCGA 16-11-131 (b), for the said accused, in the County of Fulton and State of Georgia, on the 30th day of November, 2018, sometime between the hours of 7:00 p.m. and 7:35 p.m., did knowingly and without lawful authority possess a certain firearm, to wit: a handgun; accused having been sentenced pursuant to Article 3 of Chapter 8 of Title 42 of the Official Code of Georgia Annotated to a term of probation as a Felony First Offender on March 18, 2014, by the Superior Court of DeKalb County, Indictment Number 14CR1690 – contrary to the laws of said State, the good order, peace and dignity thereof.
Count 16 of the indictment charged Dukes,
with the offense of possession of a firearm by a first offender probationer OCGA 16-11-131 (b), for the said accused, in the County of Fulton and State of Georgia, on the 30th day of November, 2018, sometime between the hours of 6:00 p.m. and 6:35 p.m., did knowingly and
without lawful authority possess a certain firearm, to wit: a handgun; accused having been sentenced pursuant to Article 3 of Chapter 8 of Title 42 of the Official Code of Georgia Annotated to a term of probation as a Felony First Offender on March 18, 2014, by the Superior Court of DeKalb County, Indictment Number 14CR1690 – contrary to the laws of said State, the good order, peace and dignity thereof.
Dukes contends that his sentences on these two counts should have merged because the State failed to make the times of the handgun possessions material averments in the indictment. Because of this, Dukes argues that double jeopardy precluded the trial court from sentencing him on both counts. We agree.
First, we must determine whether Dukes’ claim is one of procedural or substantive double jeopardy. “Procedural protections against double jeopardy apply only to multiple prosecutions, meaning multiple or successive indictments or criminal proceedings. . . . These procedural protections do not apply to a single indictment that contains multiple counts, even if those counts are deemed multiplicitous.” (Citation and punctuation omitted.) Williams v. State, 307 Ga. 778, 780 (838 SE2d 235) (2020). By contrast, the
As we explained in Scott v. State, 306 Ga. 507 (832 SE2d 426) (2019):
“Merger” refers generally to situations in which a defendant is prosecuted for and determined by trial or plea to be guilty of multiple criminal charges but then, as a matter of substantive double jeopardy law, can be punished – convicted and sentenced – for only one of those crimes. See generally
OCGA § 16-1-7 (a) ; Drinkard, [281 Ga. 211, 212 (636 SE2d 530) (2006)]. Merger analysis often involves counts charging two different crimes. As this Court has made clear, that is the context in which Drinkard’s “required evidence” test is applied. See Smith v. State, 290 Ga. 768, 773 n.4 (723 SE2d 915) (2012) (“[T]he ‘required evidence’ test [only applies] ‘where the same act or transaction constitutes a violation of two distinct statutory provisions[.]’” (emphasis in original) (quoting Drinkard, 281 Ga. at 215 (636 SE2d 530) (2006)).But merger questions may also arise when a defendant is charged with multiple counts of the same crime . . . . In this context, the merger analysis requires careful interpretation of the criminal statute at issue to identify the “‘unit of prosecution’” – “‘the precise act or conduct’”
that the legislature criminalized. Smith, 290 Ga. at 773 (emphasis omitted) (quoting State v. Marlowe, 277 Ga. 383, 384 (589 SE2d 69) (2003)). See also Coates v. State, 304 Ga. 329, 330 (818 SE2d 622) (2018).
(Emphasis in original; footnote omitted.) Scott, 307 Ga. at 509 (2). Here, Dukes was charged with multiple counts of the same crime – i.e., possession of a firearm by a first offender probationer. And, while this would normally trigger a “unit of prosecution” question, we need not perform such an analysis here. Instead, we agree with Dukes that the State’s failure to make the timeframe of the handgun possessions material allegations within the indictment caused Dukes to be improperly convicted and sentenced for the identical crime twice.
Generally speaking, when proving the time an offense was committed, the State is not “restricted to proof of the date alleged in the indictment but is permitted to prove its commission on any date within the statute of limitations.” (Citations and punctuation omitted.) Ledesma v. State, 251 Ga. 885, 885 (1) (a) (311 SE2d 427) (1984). “Where, however, the indictment specifically alleges the
Here, the State did not include language in the indictment to make the times that Dukes possessed a handgun (between 6:00 p.m. and 6:35 p.m. in Count 16, and between 7:00 p.m. and 7:35 p.m. in Count 15) material allegations to be proven at trial. Furthermore,
Based on the foregoing, we vacate Dukes’ convictions and sentences for the two counts of possession of a firearm by a first offender probationer and remand this case for the trial court to convict and resentence Dukes on only one of these counts.
5. Finally, in a single sentence, and without any argument or analysis, Dukes alleges that the combined trial court errors alleged in Divisions 2 and 3, supra, denied him a fundamentally fair
Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur.
Notes
On March 1, 2019, a Fulton County grand jury indicted Dukes for: one count of malice murder (Count 2 – Denham); three counts of felony murder predicated on aggravated assault, possession of a firearm by a first offender probationer, and participation in criminal street gang activity (Counts 3 through 5 – Denham); three counts of aggravated assault (Count 6 – Denham, Count 7 – Chatman, Count 13 – Moh); one count of aggravated battery (Count 8 – Chatham); one count of hijacking a motor vehicle in the first degree (Count 11 – Moh); one count of armed robbery (Count 12 – Moh); three counts of participating in criminal street gang activity (Counts 1, 5, and 10); and four weapons charges (Counts 9 and 14 – possession of a firearm during the commission of a crime, Counts 15 and 16 – possession of a firearm by a first offender probationer).
At a jury trial from October 21 through 25, 2019, Dukes was found guilty of malice murder (Count 2), two counts of felony murder (Counts 3 and 4), two counts of aggravated assault (Counts 6 and 7), one count of aggravated battery (Count 8), hijacking (Count 11), armed robbery (Count 12), and all four weapons charges (Counts 9, 14, 15, and 16). The trial court directed a verdict of acquittal for the aggravated assault of Moh (Count 13) and entered orders of nolle prosequi for one count of felony murder (Count 5) and the three counts of participating in criminal street gang activity (Counts 1, 5, and 10). Dukes was sentenced to life in prison without parole for malice murder (Count 2), a concurrent life sentence for armed robbery (Count 12), 20 years’ consecutive for aggravated battery (Count 8), 5 years’ consecutive for possession of a firearm during the commission of a crime (Count 9), 20 years’ consecutive for hijacking (Count 11), and 5 years’ each for the last three weapon charges (Counts 14, 15, and 16) to run consecutive, for a total of life without parole plus 60 years. All remaining counts were either merged for sentencing purposes or vacated by operation of law.
Dukes filed a motion for new trial on October 29, 2019, which he amended through new counsel on July 14, 2020. After a hearing, the trial court denied the motion as amended on October 2, 2020. Dukes timely filed a notice of appeal to this Court. The appeal was docketed to the term of Court beginning in December 2020 and was submitted for a decision on the briefs.