McCabe v. State

903 S.E.2d 78

MCCABE

v.The STATE.

Dunston

v.The State.

S24A0293

S24A0294

Supreme Court of Georgia.

Decided: June 11, 2024

Superior Court, Oconee County, Lawton E. Stephens, Judge

Leigh Ann Webster, Strickland Webster, LLC, 830 Glenwood Avenue SE, Suite 510-203, Atlanta, Georgia 30316, Ashleigh Bartkus Merchant, The Merchant Law Firm, P.C., 701 Whitlock Avenue, Suite J43, Marietta, Georgia 30064, for Appellant.

Benjamin Alston Pearlman, western judicial circuit public defender, 440 College Avenue North, Suite 220, Athens, Georgia 30601, for Appellant in S24A0294.

Patricia B. Attaway Burton, Deputy Attorney General, Clint Christopher Malcolm, Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Senior Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Sheila Ann Ross, ADA., Prosecuting Attorney’s Council of Georgia, 1590 Adamson Parkway, 4th Floor, Morrow, Georgia 30260, Deborah Gonzalez, District Attorney, Western Circuit District Attorney’s Office, 325 E. Washington Street, Suite 370, Athens, Georgia 30601, for Appellee.

Ellington, Justice.

Dallas McCabe and Akhemu Dunston appeal their convictions for felony murder and criminal attempt to sell marijuana in connection with the shooting death of Joseph Jackson.¹ Both appellants contend that the evidence was insufficient to sustain the jury’s verdicts and that the trial court erred by denying their motion for mistrial based on juror misconduct. McCabe separately contends that the trial court erred by denying his request to strike jurors for misconduct and that trial counsel rendered constitutionally ineffective assistance. Dunston separately contends that the trial court erred in failing to charge the jury more fully on proximate cause and in failing to sever his trial from McCabe’s. For the reasons explained below, we affirm.

Viewed in the light most favorable to the verdicts, the evidence presented at trial showed that Dunston, McCabe, and their coindictee Ryan O’Neal drove to Jackson’s home on the evening of July 16, 2019, with a plan to rob Jackson when they met him on the street in front of his home to sell him marijuana. As they were attempting to rob Jackson, McCabe drove off, and Jackson attempted to hold onto the car to retrieve his property. Jackson, who was dragged beside the car for about 100 yards, finally let go when O’Neal shot and fatally wounded him.

Dunston, his brother Quentin, and O’Neal had grown up together. The evidence shows that Dunston had sold marijuana to Jackson before. On the day of the shooting, Dunston messaged Jackson through Instagram, offering to sell him marijuana, and at 8:41 p.m., Jackson agreed to buy a certain amount for $30. Several minutes before 9:00 p.m., Dunston texted McCabe about taking part in a robbery - which he called "a money move" - . that he believed would yield about $500. McCabe responded that he was "down for it" and instructed Dunston to "set it up." Prior Instagram communications between Dunston and McCabe revealed that they had previously discussed committing robberies, using slang terms like "lick" and "play." The record also shows that Dunston called O’Neal several times that day.

Soon after the sale of marijuana was arranged, McCabe drove his car to pick up Dunston, O’Neal, and Quentin, and he took them to Jackson’s home. Jackson lived with his grandparents in Watkinsville. Dunston was in the front passenger seat, O’Neal sat behind Dunston, and Quentin was in the rear driver-side seat. They arrived at about 9:45 p.m. and met Jackson on the street outside of his home. As Jackson inspected the marijuana, Dunston asked for Jackson’s cell phone so that he could share his brother Isaiah’s phone number with him. Jackson handed Dunston his phone, but Dunston did not return it, and McCabe began to drive off. Jackson jumped on the car and held on in an attempt to recover his property, but McCabe continued driving and dragging Jackson down the road. O’Neal shot Jackson through the rear passenger-side window, shattering the glass. Jackson’s phone "flew" out the front passenger-side car window, and Jackson let go of the car.

Later that evening, a shirtless, shoeless, disoriented, and blood-covered Jackson knocked on his grandparents’ back door. The record shows that Jackson’s grandfather called 911 at 11:54 p.m. Police and emergency medical personnel responded immediately, and Jackson was taken to the hospital, where he died the following day from his wounds. About 100 yards from Jackson’s house, officers found on the side of the road Jackson’s shirt, cell phone, and ring. Blood and shattered glass consistent with tempered glass from a car window were also on the ground in close proximity to Jackson’s personal belongings, Jackson’s grandfather testified that about $30 to $40 was missing from where Jackson normally kept his cash.

The medical examiner who performed the autopsy on Jackson’s body observed abrasions over most of his body, consistent with "road rash" or "prolonged contact" with pavement. She further testified that Jackson had a bruise on his left arm consistent with a sharp edge, like the top part of a car window, as well as blunt force injuries to his hands. She recovered a 9-millimeter bullet from his body. The medical examiner testified that Jackson died due to a gunshot wound to his chest, blunt-force head trauma, and massive blood loss.

On the day after the shooting, Dunston deleted his Instagram account. He also texted a friend to "tell [McCabe] he can’t be driving his car like that [because] they [are] looking for a car with no back window." After Dunston was arrested on July 30 for failure to appear in court on an unrelated charge, he told police officers that O’Neal shot Jackson when Jackson got upset following a drug deal. Dunston did not admit that he tried to rob Jackson, but did admit that he deleted his Instagram account the day after the shooting.

Just after midnight "on August 1, officers found O’Neal hiding at a senior living facility in a closet of an apartment whose resident did not, know he was there. The officers arrested O’Neal and found a 9-millimeter pistol and related ammunition in his possession. An expert in firearms examination and identification with the GBI determined that the gun obtained from O’Neal fired the bullet that killed Jackson. The firearms expert also determined that the pistol was in working order, would not fire unless the trigger was pulled, and required 7.25 pounds of pressure to pull the trigger.

After the shooting, McCabe fled Georgia and eventually traveled to Mexico, where he obtained a new phone number and created a social media account using an alias. On August 1, pictures of McCabe’s car, which showed damage to the rear passenger-side window, were taken by tag-reader cameras in Texas as McCabe drove through the state. McCabe was located by the FBI, arrested by Mexican authorities, and returned to the United States.

In a pre-trial interview, McCabe admitted driving his car during the murder. He contended, however, that Dunston had offered him $30 for a ride and that he had no idea there was going to be a robbery. McCabe said that Dunston took $30 from Jackson and tried to roll the car window up without giving Jackson any marijuana. McCabe admitted that Jackson grabbed onto his car and began beating on the window, that McCabe started to drive away, and that O’Neal shot Jackson, breaking the rear passenger-side window. McCabe said that he drove away because O’Neal and Dunston threatened him, McCabe knew they were gang members, and he was not. But McCabe’s cell phone contained digital images of him posing with Bloods gang members and flashing gang signs while he was in Mexico. Dunston also revealed his Bloods gang affiliations in social media posts, and he and McCabe shared and understood the same Bloods slang. McCabe told the police that he had abandoned his car after the incident, and it was never recovered.

Although Quentin was originally charged along with the others in connection with Jackson’s murder, the charges were dismissed due to insufficient evidence against him. Quentin, who was granted immunity from prosecution, testified that O’Neal shot Jackson (although Quentin testified in O’Neal’s trial that McCabe shot Jackson). Quentin said that O’Neal was "acting weird" and "talking crazy" and that O’Neal said he had taken the drug Xanax. Quentin also testified that McCabe was the driver. Quentin denied that Dunston attempted to take Jackson’s phone, but Quentin was impeached with his pre-trial statement to the contrary.

[1, 2] 1. Both McCabe and Dunston contend that the evidence was constitutionally insufficient to support the jury’s verdicts.

When evaluating the sufficiency of the evidence as a matter of federal constitutional due process, we view the evidence presented at trial in the light most favorable to the prosecution and consider whether it was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)[.]

O’Neal v. State, 316 Ga. 264, 266 (1), 888 S.E.2d 42 (2023). "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." Id. (citation and punctuation omitted).

The co-defendants’ felony-murder convictions were predicated on criminal attempt to commit robbery by force, a felony. Felony murder occurs when a person "causes the death of another human being irrespective of malice" during the commission of a felony. OCGA § 16-5-1 (c). "A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial...