Dunbar v. State

309 Ga. 252

845 S.E.2d 607

DUNBAR

v.The STATE.

S20A0167

Supreme Court of Georgia.

Decided: June 29, 2020

David T. Lock, David T. Lock, LLC, P.O. Box 14286, Savannah, Georgia 31416, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Matthew Blackwell Crowder, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Margaret Ellen Heap, Jennifer Leigh Parker, Christine Sieger Barker, Office of the District Attorney Eastern Judicial Circuit, 133 Montgomery Street, Ste 600, P.O. Box 2309, Savannah, Georgia 31402, for Appellee.

Melton, Chief Justice.

Following a jury trial, Shanika Dunbar appeals her convictions for the murder of Theron Robbins and possession of a firearm during the commission of a felony.¹ Dunbar contends that the evidence presented at trial was insufficient to support the verdict, the trial court erred by admitting an irrelevant AK-47 rifle into evidence, and the trial court erred by allowing testimony regarding the withdrawal of consent to search Dunbar's home. For the reasons set forth below, we affirm.

1. Dunbar contends that the evidence presented at trial does not support her convictions, but instead supports a finding that she acted in self-defense. We disagree.

When evaluating the sufficiency of evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation and emphasis omitted.) Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." (Citation and punctuation omitted.) Hayes v. State , 292 Ga. 506, 506, 739 S.E.2d 313 (2013).

Viewed in this light, the evidence shows that, on the night of June 9, 2016, Johnnie Lovett drove Robbins and his 10-year-old son to the home of Benny Glaze, which was located in Chatham County. Robbins and his son waited in the car, while Lovett went into Glaze's backyard to sell Glaze some marijuana.

Meanwhile, Dunbar drove up and parked just past Lovett's car. Dunbar, who was upset with Robbins for pointing a gun at her sister (the mother of Robbins's son) several days prior, got out of her vehicle and approached Lovett's car. Robbins got out of Lovett's car, and he and Dunbar began arguing. Dunbar testified that, when she confronted Robbins about the incident with her sister, Robbins replied, "I don't know what the f*** you talking about. I don't give a f*** about none of y'all b*****s and I'll kill all y'all b*****s."

Lovett and Glaze heard Robbins and Dunbar arguing. They came out of the back yard to see Robbins and Dunbar shoving each other. Lovett tried to separate the two, but Robbins pushed him away. Shortly thereafter, Dunbar turned and walked back toward her vehicle. According to Robbins's son, after Dunbar took a few steps, she stopped, turned around, and shot Robbins twice — once in the chest and once in the head.

Nearby neighbors heard Robbins's and Dunbar's heated argument. As they debated whether to call 911, they heard a gunshot, followed by "F*** you, n*****," and then another gunshot. They called 911 and rushed out to help Robbins. By the time they reached him, Dunbar, Lovett, and Glaze had all fled. Despite a neighbor's attempt to administer aid, Robbins died before police arrived on the scene.

After shooting Robbins, Dunbar pulled Robbins's son from Lovett's car and drove him to the home of one of his other aunts, who lived around the corner. She dropped him off and told him not to tell anyone what had happened. When interviewed by the police later that evening, Dunbar denied having seen Robbins that night, denied being involved in the shooting, and denied having ever felt threatened by Robbins.

During the ensuing investigation, the police obtained Dunbar's and Glaze's phone records, which showed numerous phone calls between Dunbar and Glaze in the days leading up to the murder, including a call just moments before the murder. Dunbar also called Glaze just minutes after the murder, and again about 20 minutes later. Additionally, phone records showed a call from Dunbar to Lovett roughly 20 minutes after Robbins's murder. The police also obtained Glaze's Facebook records, which contained a conversation between him and a friend that took place a few days after the murder, in which Glaze says "Dunbar" was the shooter.

At trial, Dunbar asserted that she shot Robbins in self-defense, after Robbins pulled a gun from his waistband during their argument. Robbins's son acknowledged that his father carried a gun in his waistband, but testified that Robbins never pulled his gun during the argument. Dunbar claimed to have blacked out after the first shot, and did not remember taking a second shot at Robbins. After going home, her husband took the gun from her. The murder weapon was never recovered.

Based on the foregoing, we conclude that the evidence was sufficient to enable the jury to find beyond a reasonable doubt that Dunbar was guilty of the crimes for which she was convicted. See Jackson , 443 U.S. at 319 (III) (B), 99 S.Ct. 2781. See also Goodson v. State , 305 Ga. 246, 248 (1) (b), 824 S.E.2d 371 (2019) ("Questions about the existence of justification are for the jury to resolve, and the jury may reject any evidence in support of a justification defense and accept evidence that a shooting was not done in self-defense.").

2. Dunbar contends that the trial court abused its discretion by admitting into evidence an AK-47 rifle and ammunition, which were not connected to Robbins's murder. We disagree.

We review a trial court's admission of evidence for an abuse of discretion. See Taylor v. State , 302 Ga. 176, 180, 805 S.E.2d 851 (2017). The record shows that the trial court initially ruled that the AK-47 rifle and the ammunition for various types of handguns, which were found during a search of Dunbar's home conducted four days after the murder, were inadmissible, as they were not relevant to any issue in the case. See OCGA § 24-4-401. During Dunbar's cross-examination, the prosecutor asked Dunbar what happened to the gun she used to shoot Robbins. Dunbar said that she did not know what had happened to the gun. She testified that her husband took it from her, because she "never wanted to see a gun in [her] life." Immediately following this testimony, the prosecutor sought to introduce the AK-47 rifle and the ammunition to impeach Dunbar's statement. Dunbar's counsel argued that the items were not relevant and that their prejudicial effect outweighed their probative value. Over Dunbar's objection, the trial court ruled the items admissible for impeachment purposes.

The trial court did not abuse its discretion in allowing the State to introduce the AK-47 rifle and ammunition for impeachment purposes. In light of Dunbar's testimony that her husband had removed the murder weapon from the home because she "never wanted to see a gun in [her] life", the State was entitled to show that — just days later — an AK-47 rifle and ammunition for various types of handguns were found in Dunbar's home and she was aware of their presence. See OCGA § 24-6-621 ("A witness may be impeached by disproving the facts testified to by the witness."). See also Taylor v. State , 302 Ga. 176, 180, 805 S.E.2d 851 (2017) ("[T]he State ha[s] a right to a thorough and sifting cross-examination of appellant's direct testimony.").

Dunbar's reliance on Nichols v. State , 282 Ga. 401, 405 (2), 651 S.E.2d 15 (2007), for a different result is misplaced. Not only was Nichols decided under Georgia's old Evidence Code, but our ruling in that case specifically addressed the admissibility of evidence introduced as the res gestae of an arrest when that evidence was wholly unrelated to the crime in question. Because Dunbar's trial was held after adoption of Georgia's current Evidence Code, and as the evidence in this case was introduced not as the res gestae of an arrest, but for impeachment purposes, our holding in Nichols is inapposite.

And although Dunbar argues that, even if admissible for impeachment purposes, the evidence should have been excluded pursuant to OCGA § 24-4-403 ("Rule 403"),² "the exclusion of relevant evidence under Rule 403 is an extraordinary remedy that should be used only sparingly." (Citation and punctuation omitted.) Venturino v. State , 306 Ga. 391, 395 (2) (b), 830 S.E.2d 110 (2019). Under the circumstances of this case, we cannot say that the trial court abused its discretion in determining that the probative value of the evidence outweighed the danger of unfair prejudice. Dunbar asserts that the admission of this evidence created "a subconscious suggestion of propensity for violence." However, it was only after Dunbar herself opened the door for its admission that the State introduced the evidence to contradict Dunbar's statement that she had never wished to see a gun again. And, during its closing argument, the State only referred to the AK-47 rifle and ammunition in the context of Dunbar's truthfulness. At no time did the State suggest to the jury that the evidence demonstrated Dunbar's propensity for violence, and the trial court gave a limiting instruction that the evidence was only to be used for impeachment purposes.

3. Finally, Dunbar claims that the trial court erred by allowing the State to elicit testimony about the withdrawal of consent to search her home.³ She asserts that this testimony violated her right against self-incrimination protected by the Fifth Amendment of the United States Constitution and Article I, Section 1, Paragraph XVI of the Georgia Constitution ("Paragraph XVI"). We discern no error.

At trial, Dunbar objected to the testimony regarding withdrawal of consent to...