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Georgia Hearsay Admissible Under Co-Conspirator Exception

by Mark Wilson

The Georgia Supreme Court held that a criminal defendant was not denied effective assistance of trial counsel when his attorney failed to object to hearsay and a detective’s improper comment on his pre-trial silence. Rather, the hearsay was admissible under a co-conspirator exception to the hearsay rule, and he failed to show that he was prejudiced by the comment on his silence.

Willie Dublin, Darnell Mitchell, Dewayne Reynolds, and others were celebrating New Year’s Eve at Reynolds’ home on December 31, 2012. Dublin possessed a handgun. Mitchell, Reynolds, and Dublin discussed robbing Terry Slack, who lived one street away, because they believed he had marijuana in his shed.

Reynolds’ girlfriend, Judy Cronan, overheard the men discussing their plan to rob Slack. They were later seen in an abandoned lot across from Slack’s house. Mitchell and Reynolds admitted that the three of them went to Slack’s house, and Slack was fatally shot in the back during a robbery attempt.

The three men were charged with murdering Slack. Mitchell and Reynolds provided statements to police and testified against Dublin. Several other witnesses also testified about things they heard the men say before and after the crime.

Dublin was found guilty of felony murder and sentenced to life without the possibility of parole. He filed a motion for a new trial, arguing that the court erred in admitting hearsay testimony and in failing to declare a mistrial when Reynolds testified to other bad acts committed by Dublin. He also asserted that trial counsel was ineffective for failing to object to hearsay testimony and a detective’s remark that Dublin declined to speak with police. The trial court denied the motion for a new trial.

The Georgia Supreme Court affirmed. The Court first concluded that trial counsel was not ineffective for failing to object to hearsay testimony because that testimony was admissible under OCGA § 24-8-801(d)(2)(E), a co-conspirator declaration exception to the Georgia hearsay rule.

Next, the Court determined that counsel was not ineffective for failing to object to a detective’s testimony that Dublin did not show a willingness to talk to police. “Even if counsel’s failure to object to the testimony of Detective Richerson in question amounted to deficient performance, Dublin has not shown prejudice from his counsel’s failure to raise such an objection,” the Court concluded. “Dublin … has not shown a reasonable probability that Richerson’s remark affected the outcome of the trial.”

The Supreme Court also rejected Dublin’s argument that the trial court abused its discretion in failing to grant a mistrial due to Reynolds’ testimony about prior bad acts. Noting that the trial court gave a curative instruction, the Supreme Court determined that “the trial court’s instruction … was sufficient to protect Dublin from any prejudicial effect of Reynolds’s vague, nonresponsive allusion to prior discussions of robbing someone.” See: Dublin v. State, 805 S.E.2d 27 (Ga. 2017). 

 

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Dublin v. State




 

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