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Denson v. State

Supreme Court of Georgia

December 23, 2019

DENSON
v.
THE STATE.

          Peterson, Justice.

         Calvin Denson appeals his convictions for malice murder and armed robbery in connection with the shooting death of Julian Hernandez.[1] Denson argues that the evidence was insufficient to support his convictions; that the introduction of an audio recording violated his rights under the Confrontation Clause, because the recording contained statements of a witness who did not testify at trial and was not previously cross-examined; and that trial counsel was ineffective in failing to object to certain statements made by the prosecutor during closing arguments. We affirm because the evidence was legally sufficient to support Denson's convictions, the audio recording did not contain testimonial statements and thus the Confrontation Clause did not apply, and Denson failed to show a reasonable probability that the outcome of his trial would have been different had trial counsel objected to the challenged statements.

         Viewed in the light most favorable to the jury's verdicts, the evidence shows that in September 2011, Julian Hernandez and Luis Hernandez both worked on a construction project at Fort Benning and shared a motel room in Columbus. On September 9, Julian invited Stella Lindsey and Christina Clark to his motel room. Julian, Luis, Lindsay, and Clark drank and talked for some time before Luis said that he wanted some cocaine. Clark said she could get some, and she called Dominique Lowe.

         Lowe arrived at the hotel sometime later and brought crack cocaine, but Julian and Luis said they wanted powder cocaine instead. Julian pulled out all of his money and gave Lowe $60 to bring back powder cocaine. Julian and Luis had just cashed their paychecks and had more than $3, 000 in cash between them.

         Lowe left the hotel room and called Denson. While Lowe was gone, Clark took a call from Marcus Price, who was in jail at the time, and expressed concern that Lowe would not return. Lowe returned to the motel with a small bag of powder cocaine. Luis and the others did not believe that Lowe provided $60 worth of cocaine, but Lowe assured them that it was "good stuff." Clark was still on the phone with Price at the time and passed the phone to Lowe. After getting off the phone, Lowe left the motel room.

         Less than a minute later, Denson walked into the motel room, carrying a pistol and covering his face with a rag. Denson told everyone to get on the floor and demanded their money. Julian rushed Denson and a struggle ensued, causing Denson to drop the rag covering his face and giving Lindsey a clear look at him. Denson's gun went off during the struggle, at which time Luis and Clark, who was still on the phone with Price, ran into the bathroom. The struggle continued and Denson fired several gunshots at Julian, hitting him in his chest, left arm, right thigh, and left leg. Julian died as a result of the gunshot wound to his chest.

         Denson left the motel room, but returned about 30 seconds later to search the room; while there, he wiped down the room. Lindsey called 911 and found Julian's wallet outside the motel room.

         1. Denson argues that the evidence was insufficient to prove that he committed the crimes for which he was convicted. We disagree.

         When we consider the sufficiency of the evidence, we view the evidence in the light most favorable to the verdicts and evaluate whether a rational trier of fact could have found 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). "Under this review, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact." Mims v. State, 304 Ga. 851, 853 (1) (a) (823 S.E.2d 325) (2019) (citation and punctuation omitted).

         Clark and Lindsey both identified Denson as the shooter in photographic lineups and at trial. Denson argues that both women's identification testimony was not credible based on impeachment evidence he introduced at trial. He also argues that their identification testimony, by itself, was insufficient because it was not corroborated by any physical evidence. The State was not required to produce any physical evidence, however, because "the testimony of a single witness is generally sufficient to establish a fact, and the lack of corroboration with physical evidence only goes to the weight of the evidence and the credibility of the testifying witness, which is solely within the purview of the jury." Johnson v. State, 296 Ga. 504, 505 (1) (769 S.E.2d 87) (2015) (citation and punctuation omitted); see also OCGA § 24-14-8 ("The testimony of a single witness is generally sufficient to establish a fact."). Considering all the evidence in the light most favorable to the verdicts, we conclude that the jury was authorized to find beyond a reasonable doubt that Denson was guilty of the crimes of which he was convicted.

         2. Denson argues that, because Price was not available to testify at trial, the trial court violated his Confrontation Clause right by introducing into evidence an audio recording of the phone call between Clark and Price that occurred during the commission of the crime.[2] Denson did not object to the admission of the audio recording at trial, [3] and so we review his claim only for plain error. See OCGA § 24-1-103 (d); see also Adams v. State, 306 Ga. 1, 3 (1) (829 S.E.2d 126) (2019) (plain error review under OCGA § 24-1-103 (d) is available for unpreserved challenges to evidentiary rulings).

         To establish plain error, Denson "must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity[, ] or public reputation of judicial proceedings." State v. Herrera-Bustamante, 304 Ga. 259, 264 (2) (b) (818 S.E.2d 552) (2018). The failure to meet one element of this test dooms a plain error claim, see id., and so it is here.

         A Confrontation Clause violation occurs when an out-of-court "testimonial" statement is admitted into evidence and the declarant is unavailable at trial and was not previously subjected to cross-examination. See Crawford v. Washington, 541 U.S. 36, 68 (124 S.Ct. 1354, 158 L.Ed.2d 177) (2004). "A statement is testimonial if its primary purpose was to establish evidence that could be used in a future prosecution." Favors v. State, 296 Ga. 842, 845 (2) (770 S.E.2d 855) (2015) (citation and punctuation omitted).

         Here, the recorded phone call contains statements from Price to Clark, but also statements from Price to unknown inmates and Price's friends and family whom Clark contacted using a three-way call feature. Denson does not identify which of Price's statements were objectionable, but even considering all of them, none were testimonial. Price's statements were made shortly before and during the crimes ⸺ before Lowe and Denson were arrested for their involvement. Price's statements to Clark, family and friends, and unknown inmates at the jail were not made to assist a future prosecution and, thus, are not testimonial. See Allen v. State, 300 Ga. 500, 504 (3) (796 S.E.2d 708) (2017) ...


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