Dugar v. State

314 Ga. 376

877 S.E.2d 213

DUGAR

v.The STATE.

S22A0707

Supreme Court of Georgia.

Decided: August 9, 2022

Meredith Anne Gardial, Grisham, Poole, & Carlile, P.C., 151 Main Street, Suite 301, Canton, Georgia 30114, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Randal Matthew McGinley, District Attorney, Alcovy Judicial Circuit District Attorney's Office, 1132 Usher Street, NW, Room 313, Covington, Georgia 30014, for Appellee.

Boggs, Chief Justice.

In 2017, Rita Mary Dugar shot and killed Jon Trevor Townley at the home of Dugar's ex-boyfriend, Juandrago Carter, in Covington. Dugar called 911 and was arrested at the scene. According to Dugar, she accidentally shot Townley while attempting to fire a warning shot during a melee involving Townley, Carter, and two other individuals, Shane Dobbs and Sarah Smith. At a 2021 bench trial, the court convicted Dugar of felony murder, aggravated assault, and a firearm-possession offense. She appeals, asserting four enumerations of error, all related to her waiver of a jury trial.¹

Dugar contends that: (1) the original trial judge made remarks at a bond hearing that unduly influenced her decision to waive her right to a jury trial and, citing OCGA § 17-8-57, contends that the trial judge improperly commented on the merits of her case; (2) the State failed to show that her waiver of a jury trial was knowing, voluntary, and intelligent; (3) her trial counsel was ineffective for failing to advise her of her right to revoke her waiver of a jury trial after the case was reassigned to a new judge; and (4) counsel's actions denied her the right to revoke her waiver of a jury trial. For the reasons that follow, we affirm.²

1. Dugar first asserts that the original trial judge's remarks during an initial bond hearing unduly influenced her to waive her right to a jury trial, rendering the waiver involuntary. This claim is meritless.

(a) Two months after the shooting and before Dugar was indicted, the original trial judge presided over a bond hearing. The prosecutor summarized the facts of the case and asked that the court deny bond because Dugar was "facing ... possibly being charged with malice murder and felony murder" and had attempted to contact Carter multiple times from the jail about his statement to police. The judge stated that he was less concerned about the risk of flight than the possibility of witness intimidation or collusion, and the public defender, who was representing Dugar at the time, said that Dugar was willing to have no contact with the witnesses to the shooting. The judge then had the following exchange with counsel for the parties:

COURT: Because nobody else was charged, which I'm not sure how you all do that and I don't know enough about it. This murder happened – well, this incident occurred, the death occurred we shall say in February .... Less than 60 days ago.

DEFENSE COUNSEL: She's been in custody since the time, which was ... February 28th, and she is willing to remain away from any of those individuals. Judge, just to give you a little bit more insight as to the kind of the relation of these folks, Ms. Dugar was only there with the other individuals, she was not part of the actual argument, and [the prosecutor] is correct that she did cooperate with police, did let them know that she was the one that –

COURT: Well, she made the call apparently. You said 911 call; right?

DEFENSE COUNSEL: She did call 911.

COURT: Which is not the usual in the situation of an alleged murderer.

DEFENSE COUNSEL: That's correct.

COURT: So I heard all of that.

DEFENSE COUNSEL: She did ... remain on the scene to talk to police and did admit that she was trying to fire a warning shot to try to break up the argument.

COURT: I know. This is what we're going to do. All right. I'm not going ... to grant a bond today and rather than there being a denial of record I'll withhold ruling thereon. I hope, [prosecutor], you all are going to look at this as you mentioned felony murder and malice murder you may look at it the other way.... This is something that might be better viewed as manslaughter ... based on the snippet that I've gotten involved and she made the call. All right. So I'm saying as you all review it, you know ... don't scan it, but do that as well. Let's withhold my ruling on the bond. Okay. Give you all a chance to flesh out more facts. Because I'm with you, I don't know how people go to a fight and the only one that gets ... arrested is her. And especially talking about felony murder.... And underlying certainly I presume was the robbery or whatever – the theft that they were seeking –

STATE: Aggravated assault, Your Honor.

COURT: All right. So in any event, you all flesh it out. That's what you all get paid the big bucks for.

At a second bond hearing a month later, after Dugar had been indicted, the attorneys reminded the original trial judge of his earlier statement at the first bond hearing, and the prosecutor provided more information to the court, including further details of Dugar's recorded calls from the jail to Carter. The judge denied Dugar bond:

COURT: It's kind of hard to swallow that. Okay. She made a call after the prelim [that is, the first appearance hearing in magistrate court] to a witness.... [T]hat's a problem for me.... It's kind of hard to swallow that.... She made a call on the day of the prelim to a witness she had just heard in court.... That's not what innocent folks do. And then to say on the call that we have to get our story straight to better help me to do that. Now, you can take that and you can spin it anyway you want to, but there's not any way I can spin it. Bond denied. We'll let it fall where it may. File your speedy [trial motion] and we'll get a trial. I've got speedies in the record so we'll find out where they are. So bond denied.

Attempting to clarify the basis for the bond ruling, the prosecutor asked, "[T]he bond is denied for intimidating and influencing witnesses?" The judge replied, "And for a risk to the community, you can note both."

Later the same month, new counsel filed an entry of appearance on behalf of Dugar, and six months later filed a motion for dismissal under the immunity statute, OCGA § 16-3-24.2, on the basis of justification by self-defense. The original trial judge presided over an evidentiary hearing in April 2018, at which Dugar, Carter, Smith, a sheriff's deputy, and a Social Circle police officer all testified regarding the confrontation.³ The trial court denied the motion from the bench, stating, "The Court's going to find that there has been not in any way sufficient showing that this motion should be granted, and I will deny the defendant's motion for dismissal for immunity from prosecution as so pled in this matter."

At an October 2019 status conference before a senior judge, the prosecutor said that Dugar's attorney had recently informed the State that he planned to seek a bench trial. The prosecutor asked "for a week or so to make that determination [i.e., whether the State would agree to Dugar's request for a bench trial] and then get with obviously [the original trial judge's] office to schedule that bench trial." At a third hearing in April 2020, the original trial judge declined to reconsider his denial of bond to Dugar, and the possibility of having a bench trial rather than a jury trial was again discussed.

The judge instructed Dugar's counsel to

go over it and ... Ms. Dugar can have a chance now to understand this is a very important decision for her to ... make. And I certainly want her to have every opportunity to talk to [her counsel] before she signs [a waiver of her right to a jury trial.] This is no longer theory; she will be waiving her constitutional right to a jury trial in this matter. All right. I'll see you in two weeks.

Two weeks later, the original judge presided over a status conference held by video, at which the parties discussed in detail Dugar's desire to waive her right to a jury trial. The judge questioned Dugar regarding the waiver, and Dugar said that she had signed a formal waiver of her right to a jury trial; that she had discussed it with her attorney; that she understood it was her choice, not her attorney's choice; that nobody had put any force or pressure on her to sign the waiver; and that she was "knowingly, voluntarily, and willingly" waiving her right to a jury trial. The judge asked Dugar if she had any questions, and she responded, "No, Your Honor." Dugar filed her formal waiver on the same day, and a bench trial was set for July 21, 2020.

Before the trial could be held, however, the original trial judge died, and Dugar's case was reassigned. The State informed the successor trial judge that the parties had agreed to a bench trial, and the trial took place from February 23 to 24, 2021. Dugar did not testify, but she called three witnesses who testified to her peaceful character. The trial court found Dugar not guilty of malice murder but guilty of the remaining charges, and later denied Dugar's motion for new trial.

(b) Dugar claims that the original trial judge's remarks at the initial bond hearing regarding the facts of the case and the possible charges against her exerted "undue influence" on her decision to waive her right to a jury trial, therefore rendering her waiver involuntary. She relies heavily upon Ealey v. State , 310 Ga. App. 893, 898, 714 S.E.2d 424 (2011), where the Court of Appeals held that the State failed to meet its burden to show that a defendant's waiver of his right to a jury trial was voluntary. But the facts in Ealey bear no resemblance to this case.

In Ealey , after the denial of a motion to suppress, Ealey waived his right to a jury trial in open court but then immediately sought to revoke it, stating that he had not...