Denson v. State

FINAL COPY

                 S19A1396. 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



     1 The crimes occurred on September 9, 2011. In March 2012, a Muscogee

County grand jury indicted Denson and co-defendant Dominique Lowe for
malice murder, three counts of felony murder (predicated on armed robbery,
criminal attempt to commit a felony, and aggravated assault), and armed
robbery. Denson and Lowe were tried together before a jury in April 2013. Two
felony murder counts were nolle prossed, and the jury found Denson guilty of
malice murder, felony murder predicated on armed robbery, and armed
robbery. The jury found Lowe not guilty of malice murder but guilty on the
remaining charges. The trial court sentenced Denson to life imprisonment for
malice murder and a 20-year consecutive term for armed robbery; the felony
murder conviction was vacated by operation of law. On May 7, 2013, Denson
filed a timely motion for new trial through new counsel, and he amended the
motion in May 2016. Following a hearing, the trial court denied Denson’s
amended motion for new trial on February 20, 2019. Denson timely appealed,
and his case was docketed to this Court’s August 2019 term and submitted for
a decision on the briefs.
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, Lindsey, 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

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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.

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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, 

 (

, 61 LE2d

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, 

 (1) (a)

                                   4
(

) (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, 

 (1) (

) (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

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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, 

 (1) (

) (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.




        2 The phone call had been recorded because Price was an inmate at the

time.

       Co-defendant Lowe raised a Confrontation Clause objection, but
        3

Denson did not join Lowe’s objection.
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State v. Herrera-Bustamante, 

 (2) (b) (

)

(2018) (citation and punctuation omitted). The failure to meet one

element of this test dooms a plain error claim, see 

 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, 

 (

, 158 LE2d 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, 

 (2) (

) (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

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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, 

 (3) (

) (2017) (co-defendant’s statements

made to a third party shortly after crimes and before any arrests

were not testimonial). As a result, there was no error, much less

plain error, in admitting the recording.

     3. Denson argues that trial counsel was ineffective for failing

to object to two statements made by the prosecutor during closing

arguments. Denson argues that the prosecutor’s statement that

Denson was part of a group that sold drugs was not supported by

any trial evidence, and that the prosecutor improperly commented

on Price’s character by referring to him as a drug dealer. Denson did

not preserve this ineffective assistance claim because he did not

raise it in his motion for new trial, as amended, or at the hearing on

that motion, nor did he obtain a ruling on such claim from the trial

court. See Prince v. State, 

 (2) (b) (

)

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(2014). But even if the claim had been preserved, it would fail.

     For Denson to prevail on any of his claims, he must satisfy the

familiar standard of Strickland v. Washington, 

(

, 80 LE2d 674) (1984), which requires a showing both

that trial counsel’s performance was constitutionally deficient and

that Denson was prejudiced by this deficient performance. See

Mims, 

 (2). Even if a defendant shows that his

trial counsel was constitutionally deficient, he must also prove that

he was prejudiced as a result, which requires a showing of “a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Davis v.

State, 

 (2) (

) (2016) (citation and

punctuation omitted).

     Even if the prosecutor’s comments were inappropriate, Denson

cannot show that trial counsel’s failure to object prejudiced him, and

his ineffectiveness claim fails on this basis. See Leanos v. State, 

 (2) (

) (2018) (“[A] failure to meet either of

the [Strickland] prongs is fatal to an ineffectiveness claim.”). It is

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difficult to believe that any reference regarding the character of

Price, who was not connected to the charged crimes and who the jury

already knew was in prison, would have affected the outcome of

Denson’s trial. And the jury had already heard evidence connecting

Denson to Lowe, who sold drugs to the victims. In addition, the

prosecutor’s statements were not evidence, and the trial court

properly instructed the jury as much. See Kidd v. State, 

 (2) (

) (2018) (holding that prosecutor’s comment

during opening statements, even if considered improper, was not

harmful in part due to jury instruction that counsel’s arguments are

not evidence). Moreover, the evidence against Denson was strong ⸺

two eyewitnesses identified Denson as the shooter. Given this

record, Denson cannot establish a reasonable probability that the

outcome of his trial would have been different had counsel objected.

     Judgment affirmed. All the Justices concur.



                  DECIDED DECEMBER 23, 2019.
     Murder. Muscogee Superior Court. Before Judge Mullins.
     Hagler, Jackson & Walters, Richard C. Hagler, for appellant.

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     Julia F. Slater, District Attorney, George E. Lipscomb II,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Elizabeth H. Brock,
Assistant Attorney General, for appellee.




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