Dobbins v. State

309 Ga. 163

844 S.E.2d 814

DOBBINS

v.The STATE.

S20A0402

Supreme Court of Georgia.

Decided: June 16, 2020

Deborah Lorraine Leslie, The Leslie Group, LLC, 186 North Avenue, Suite 107, Jonesboro, Georgia 30236, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Katherine DeRosa Emerson, Assistant Attorney General, Department of Law, 40 Capitol Square SW, Atlanta, Georgia 30334-1300, Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Mathew Eli Plott, A.D.A., Office of the Fulton County District Attorney, 136 Pryor Street SW, Third Floor, Atlanta, Georgia 30303, Attorneys for the Appellee.

Warren, Justice.

A jury convicted Michael Dobbins of malice murder and other crimes in connection with the shooting death of Hollis David Boddie.¹ On appeal, Dobbins contends that the evidence was insufficient to support his convictions; that the trial court erred by failing to grant Dobbins's motion for mistrial, to rebuke the prosecutor, or to give a curative instruction when the prosecutor referenced Dobbins's "previous trial" before the jury; and that his trial counsel rendered constitutionally ineffective assistance by failing to provide written notice of her intent to use a prior conviction of one of the State's witnesses for impeachment purposes. Seeing no reversible error, we affirm.

1. Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial showed the following. During the hours leading up to the shooting on December 5, 2015, a group of friends were playing cards and drinking beer in the courtyard of their apartment complex. The group included Dobbins, Boddie, Carla Hines, Shanterria Habersham, and Michael Adkins. At one point, Dobbins and Adkins began arguing about $5 that Adkins owed Dobbins. Dobbins became "mad" and "started acting crazy." According to Hines, Dobbins also began arguing with Boddie, who "was sitting there getting smart and stuff," causing Dobbins to respond by saying, "who do you think you talking to?" and by yelling "bang, bang, bang" while laughing.

At some point, Dobbins went to his apartment and returned to the courtyard with a gun visibly "hanging out his pocket."² Soon after Dobbins returned with his gun, Adkins and Hines decided to return to their apartments, leaving Dobbins, Boddie, and Habersham together in the courtyard. Hines, however, continued to watch the remaining three from her apartment window. As Habersham, Dobbins, and Boddie sat together, Dobbins pulled out his gun. Boddie told him "son, put that up." Dobbins complied, either putting the gun back in his pocket or in his lap. Habersham decided to leave the courtyard to return to her apartment, leaving only Dobbins and Boddie behind in the courtyard. Habersham testified that about a "minute and a half" after leaving, she heard four or five gunshots. Hines testified that from her apartment, she heard Dobbins say "who you think you talking to," and heard yelling. She testified that she looked out her window, she saw Dobbins "get up and that's when I saw him shoot [Boddie]," and that she was "very confident" about what she saw. Hines called the police and said Dobbins killed Boddie. Police arrived shortly thereafter. After talking to some of the residents in the apartment complex, including Hines, police arrested Dobbins, who was still at the scene.

Two months after the shooting, Clinton Hill, a resident of the same apartment complex, told residents Willie White and Demarko Smith that Dobbins had given Hill the gun that Dobbins used to shoot Boddie. Hill said he threw the gun over the fence near the apartment complex, but investigators could not find it. Hill died four days later from medical causes unrelated to this case. Although law enforcement never located the murder weapon, forensic analysis of the bullets recovered from Boddie's body determined that the bullets were all fired from the same firearm and were all "consistent with being fired from a Ruger Taurus or a Smith & Wesson .38 Special or a .357 magnum revolver."

2. Dobbins argues that there is insufficient evidence to support his convictions. Specifically, he points to testimony from the State's gunshot primer residue analyst that the "hand collection kit" with gunshot primer residue samples from Dobbins's hands was "contaminated or was improperly collected," and that the analysis of Dobbins's clothing "failed to reveal any particles characteristic[ ] of gunshot primer residue." He also argues that the evidence was insufficient because the lead detective's investigation was deficient, because Hill—who told White and Smith that Dobbins gave him the murder weapon—was known for his lack of truthfulness, because Hill's statements were unreliable, and because the murder weapon was never found. We disagree.

When evaluating challenges to the sufficiency of the evidence, we view the evidence presented at trial in the light most favorable to the jury's verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Jones v. State , 304 Ga. 594, 598, 820 S.E.2d 696 (2018). "We leave to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts," Smith v. State , 308 Ga. 81, 839 S.E.2d 630, 635 (2020), and we do not reweigh the evidence, Ivey v. State , 305 Ga. 156, 159, 824 S.E.2d 242 (2019). And "[a]lthough the State is required to prove its case with competent evidence, there is no requirement that it prove its case with any particular sort of evidence." Plez v. State , 300 Ga. 505, 506, 796 S.E.2d 704 (2017). "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld." Smith , 308 Ga. at 84, 839 S.E.2d 630 (citation and punctuation omitted).

Here, the evidence presented at trial—including testimony that Dobbins and Boddie were arguing before the shooting, an eyewitness's testimony that she saw Dobbins shoot Boddie, Dobbins's presence at the crime scene, and testimony that Dobbins possessed the murder weapon and disposed of it by giving it to another resident of the apartment complex—was sufficient to authorize a rational jury to find Dobbins guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ; McCoy v. State , 292 Ga. 296, 296, 736 S.E.2d 425 (2013) (evidence, which included "[w]itnesses [who] saw appellant and the victim arguing minutes before the shooting; [and] one [who] saw appellant shoot the victim," was sufficient to support convictions).

3. Dobbins argues that the trial court erred when it failed to grant his motion for mistrial, rebuke the prosecutor, or give a curative instruction, in accordance with OCGA § 17-8-75, when the prosecutor referenced Dobbins's "previous trial" before the jury. For the reasons explained below, we conclude that Dobbins waived his right to complain on appeal that the trial court erred in denying his motion for mistrial or in failing to give a curative instruction, and that—even assuming the trial court committed error by not rebuking the prosecutor—any such error was harmless.

Before the trial at issue in this appeal, Dobbins was tried for the same crimes, but his first trial ended with a hung jury and mistrial. In the trial at issue in this case, during the direct examination of a witness, the State—in the process of trying to call the witness's attention to a prior inconsistent statement—said, "I'm handing you a copy of the transcript from the previous trial." Dobbins's counsel asked to approach the bench, and, at a sidebar conference, said: "Your Honor, the State just mentioned a previous trial. I would move for a mistrial. This is not information that the jury is allowed to know." The trial court said to the prosecutor, "[y]ou didn't say hearing. You said trial," but then ruled: "Well, I'm going to deny the motion for a mistrial. With that ruling, do you want a curative instruction? It would probably just highlight it at this point." Trial counsel responded: "Well, I think for the record I just have to except to the court not granting a mistrial. I don't think a curative instruction would help under these circumstances, without waiving ... the objection, your Honor." The trial court then told the prosecutor, "[i]t would be a good opportunity for you to re-ask it the right way. That might help some, so do that," which the prosecutor did by asking the witness, "have you had an opportunity to review your previous testimony of a prior hearing in this case?" At the conclusion of the witness's testimony, the jury was dismissed for lunch, and the trial court reminded the attorneys, "it's been inadvertent," but "[w]e don't want to refer to it as anything other than a prior hearing, prior proceeding. Don't make reference to a prior trial. I don't think it's error at this point. So just be mindful moving forward."

Under OCGA § 17-8-75,

Where counsel in the hearing of the jury makes statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

Here, Dobbins moved for a mistrial based on the prosecutor's reference to "the previous trial," and the trial court denied that motion. Under the circumstances of this case, however, we need not decide if the trial court abused its discretion in denying Dobbins's motion...