Dubose v. State , 299 Ga. 652 ( 2016 )

In the Supreme Court of Georgia
Decided: September 12, 2016
S16A1299. DUBOSE v. STATE.
S16A1300. DUBOSE v. STATE.
BLACKWELL, Justice.
Courtney Anwar DuBose was tried by a DeKalb County jury and
convicted of felony murder, aggravated assault, and the unlawful possession of
a firearm during the commission of a felony, all in connection with the fatal
shooting of Atima Smith. In Case No. S16A1299, DuBose appeals from his
conviction and sentence, contending that the trial court erred when it sentenced
him for felony murder rather than voluntary manslaughter, when it sentenced
him separately for felony murder and aggravated assault, and when it charged
the jury on voluntary manslaughter. Those contentions, however, lack merit, and
in Case No. S16A1299, we affirm. In Case No. S16A1300, DuBose appeals
from an order of the trial court that clarified his sentence, but he fails to assert
any claim of error as to that order. Accordingly, we dismiss the appeal in Case
No. S16A1300. See Rowland v. State, 264 Ga. 872, 873-874 (1) (452 SE2d 756)
(1995).1
1. Viewed in the light most favorable to the verdict, the evidence shows
that DuBose and Smith were romantically involved, and they lived together in
an apartment in DeKalb County. In the late hours of August 23, 2012, DuBose
learned that Smith had received some text messages from another man.
Believing that Smith had been unfaithful to him, DuBose became enraged, and
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Smith was killed on August 24, 2012. DuBose was indicted on February 25, 2014,
and he was charged with malice murder, two counts of felony murder, aggravated assault,
the unlawful possession of a firearm by a convicted felon, the unlawful possession of a
firearm during the commission of a felony, and theft by taking. His trial began on March 10,
2014, and the jury returned its verdict four days later, finding him guilty of both counts of
felony murder, aggravated assault, the unlawful possession of a firearm by a convicted felon,
and the unlawful possession of a firearm during the commission of a felony. As to malice
murder, the jury found DuBose guilty of the lesser offense of voluntary manslaughter. He
was acquitted of theft by taking. After DuBose initially (and improperly) was sentenced for
both voluntary manslaughter and felony murder, the trial court resentenced him to
imprisonment for life without the possibility of parole for felony murder predicated on the
unlawful possession of a firearm by a convicted felon, imprisonment for twenty consecutive
years for aggravated assault, and imprisonment for five consecutive years for the unlawful
possession of a firearm during the commission of a felony. The other felony murder and the
voluntary manslaughter were vacated by operation of law, and the unlawful possession of a
firearm by a convicted felon merged into the felony murder for which it was the predicate
felony. See Smith v. State, 272 Ga. 874, 881 (6) (c) (536 SE2d 514) (2000); see also Green
v. State, 283 Ga. 126, 130 (2) (657 SE2d 221) (2008). DuBose timely filed a motion for new
trial on April 3, 2014, and he amended it on October 16, 2015. The trial court denied his
motion on November 24, 2015, and (as to Case No. S16A1299) DuBose timely filed a notice
of appeal directed to the Court of Appeals on December 21, 2015. The Court of Appeals
transferred the case to us on February 16, 2016, it was docketed in this court for the April
2016 term, and it was orally argued on July 11, 2016.
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he and Smith argued in the bedroom that they shared. Smith’s daughter — who
was sixteen years of age and had been staying with DuBose and Smith for the
summer — overheard the argument from another room in the apartment, and
shortly after midnight, she heard gunshots. She immediately called 911, and she
saw DuBose walk out of the apartment, carrying her mother’s Glock handgun.
When emergency personnel responded, they found that Smith had
sustained multiple gunshot wounds, and they found DuBose’s Browning 9-
millimeter pistol nearby. Smith later died as a result of her wounds. When
DuBose was arrested, he admitted that he killed Smith, but he claimed that he
did so in a sudden fit of passion after discovering what he considered evidence
of her unfaithfulness. DuBose does not dispute that the evidence is sufficient to
sustain his convictions. Nevertheless, as is our customary practice in murder
cases, we independently have reviewed the record with an eye toward the legal
sufficiency of the evidence. We conclude that the evidence adduced at trial was
legally sufficient to authorize a rational trier of fact to find beyond a reasonable
doubt that DuBose was guilty of the crimes of which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
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(1979). See also White v. State, 287 Ga. 713, 715 (1) (b) (699 SE2d 291) (2010)
(“[i]t is for a jury to determine from all the facts and circumstances whether a
killing is intentional and malicious”) (citation omitted).
2. At trial, the jury was charged on voluntary manslaughter as a lesser
offense included in malice murder, and as to malice murder, the jury accepted
that DuBose killed Smith as a result of an irresistible passion arising from
provocation and found him guilty of only voluntary manslaughter. DuBose
contends that the trial court erred when it sentenced him for a felony murder of
which the jury also found him guilty, rather than voluntary manslaughter. In
Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992), this Court adopted what has
come to be known as the “modified merger rule,” which holds that, when a
defendant is found guilty of voluntary manslaughter, he cannot also be
convicted of felony murder based on the same underlying acts. 261 Ga. at 868
(2). But this Court has consistently limited the application of the rule to cases
in which the felony murder is predicated on a felony that is itself integral to the
killing, typically an aggravated assault. See Wallace v. State, 294 Ga. 257, 258-
259 (2) (754 SE2d 5) (2013). See also Grimes v. State, 293 Ga. 559, 561 (2)
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(748 SE2d 441) (2013). Moreover, this Court has consistently refused to extend
the Edge rule to cases in which felony murder is predicated on the unlawful
possession of a firearm by a convicted felon. See, e.g., Amos v. State, 297 Ga.
892, 894 (2) (778 SE2d 203) (2015); Lawson v. State, 280 Ga. 881, 883 (3) (635
SE2d 134) (2006). Here, the felony murder for which DuBose was sentenced
was predicated upon the unlawful possession of a firearm by a convicted felon.
Although DuBose contends that his unlawful possession of a firearm was
not independent of the killing ¯ he says that he did not possess a firearm,
except when he grabbed Smith’s Glock to fire it at her ¯ this claim is belied by
the record, which shows that Smith was killed not with the Glock, but with
DuBose’s own Browning 9-millimeter pistol. His possession of that gun was
independent of the provoked passion that was the basis for the finding of guilt
as to voluntary manslaughter, and it was independent of the killing. Because the
felony murder charge in this case is predicated on the unlawful and independent
possession of a firearm by a convicted felon, the Edge modified merger rule
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does not apply.2 As a result, the trial court properly sentenced DuBose for felony
murder.
3. DuBose also claims that the trial court erred when it sentenced him for
both felony murder and aggravated assault. DuBose contends that the two
offenses should merge because they are based on the same conduct. But this
Court recently held in Crayton v. State, 298 Ga. 792, 801 (7) (784 SE2d 343)
(2016), that sentencing a defendant in virtually identical circumstances for both
felony murder (predicated on unlawful possession of a firearm) and aggravated
assault (assault by use of a deadly weapon) was proper. See also Lawson, 280
Ga. at 881 (3). Under the recent precedents of this Court, there was no error in
sentencing DuBose for both felony murder and aggravated assault.
4. Finally, DuBose contends that the trial court erred when it instructed the
jury about voluntary manslaughter. According to DuBose, the instruction at
issue was not sufficiently tailored to his case, and the trial court should have
clarified that infidelity between unmarried persons could result in sufficient
2
Because this is not a case in which the defendant only came into the unlawful
possession of a firearm due to “a sudden, violent, and irresistible passion resulting from
serious provocation” as described in OCGA § 16-5-2 (a), this case does not present the issues
discussed in concurring opinions in Clough v. State, 298 Ga. 594, 598-601 (783 SE2d 637)
(2016) (Blackwell, J., concurring), and Wallace, 294 Ga. at 260-263 (Melton, J., concurring).
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provocation to mitigate a killing under OCGA § 16-5-2 (a). DuBose
acknowledges that he failed to object to the jury instruction at trial, but he
argues that the instruction was plainly erroneous. See OCGA § 17-8-58 (b).
To show plain error, DuBose must establish not only that the jury
instruction was erroneous, but also that “it was obviously so” and that “it likely
affected the outcome of the proceedings.” State v. Kelly, 290 Ga. 29, 33 (2) (a)
(718 SE2d 232) (2011). Even assuming that the jury instruction in this case was
obviously erroneous, DuBose has failed to show that the jury was confused
about whether it could find him — as an unmarried person claiming to have
been provoked by infidelity — guilty of voluntary manslaughter as a lesser-
included offense. In fact, the jury in this case did accept DuBose’s defense on
one count, finding him guilty of voluntary manslaughter instead of malice
murder. It is, therefore, evident that the jury charges in no way confused or
hindered the jury in its ability to consider voluntary manslaughter as a lesser-
included offense. DuBose has failed to show that any error in the jury charges
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affected the outcome of the proceedings, and we conclude that the charges were
not plainly erroneous.3
Judgment affirmed in Case No. S16A1299. Appeal dismissed in Case No.
S16A1300. All the Justices concur.
3
DuBose also claims that the jury was confused about its ability to find him guilty of
voluntary manslaughter as a lesser-included offense based upon a Biblical reference made
by the prosecuting attorney during closing argument. But DuBose did not object to the
argument at trial, and “alleged errors . . . based on improper remarks during closing argument
are not subject to review on appeal for plain error.” Gates v. State, 298 Ga. 324, 328 (4) (781
SE2d 772) (2016).
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