FINAL COPY
294 Ga. 579

                        S13A1842. DUBOSE v. THE STATE.


       HINES, Presiding Justice.

       Kenneth Dubose appeals from his conviction and sentence for the felony

murder of Roscoe Harris, while in the commission of aggravated assault. For

the reasons that follow, we affirm.1

       Construed to support the verdict, the evidence showed that Dubose was

an associate of Lamont Armstrong, who was the brother of Harris’s wife. On

June 9, 2006, after seeking him for more than a year, law enforcement officers

arrested Armstrong on a variety of drug and assault charges. Harris worked as

a jailer for the Telfair County Sheriff, and Armstrong considered him to blame

for Armstrong’s arrest.           After the arrest, Shenerica Clark, Armstrong’s

girlfriend, moved into Harris’s home; she kept in contact with Armstrong, who


       1
         Harris was killed on June 16, 2006. On August 21, 2006, a Telfair County grand jury
indicted Dubose, along with Lamont Armstrong and Shenerica Clark, for malice murder. Dubose
was tried alone before a jury March 27-30, 2007, found guilty of felony murder while in the
commission of aggravated assualt, and on March 30, 2007, was sentenced to life in prison for that
crime. Dubose moved for a new trial on April 23, 2007; he amended the motion on August 11,
2009, February 9, 2010, February 10, 2010, February 11, 2010, and finally on March 30, 2010. On
June 17, 2013, the motion, as amended, was denied. On July 12, 2013, Dubose filed a notice of
appeal; the appeal was docketed in this Court for the September 2013 term and submitted for
decision on the briefs.
had secured a cell phone despite being in jail. At least once after Armstrong’s

arrest, Dubose was inside the Harris home with Clark.

      On the night of the shooting, Dubose went into Harris’s house, and into

the master bedroom, where Harris, his wife, and baby were asleep; Harris was

positioned with his head at the foot of the bed, toward the door. Dubose turned

on the light, and fatally shot Harris once in the head; he then fled through the

living room of the house and out the front door. Harris’s wife, who had taken

a powerful pain-relieving pill, awoke to find the bedroom light on, and Harris

on the bed; he had a bullet hole in his head and was positioned as though he had

sat up from lying down, and was falling back.

      Armstrong testified that, by cell phone, he directed Dubose to go to

Harris’s home on the night of the shooting to scare Harris by shooting him in the

leg; shortly before the shooting, Armstrong told Clark to open the door to the

house. Cell phone records showed numerous calls between the cell phones of

Clark, Dubose, and Armstrong before and after the shooting.

      Clark testified that she did not open the door to the house and did not

know how Dubose entered. She also testified that Dubose called her just before

the shooting and asked her why the children in the house were still up; she then

                                       2
took at least one child to a bedroom and went to her own bedroom and covered

her head with blankets, as she knew that Dubose would soon shoot Harris.

When the shot was fired, she emerged from the bedroom, asked a child what had

happened, and saw a man running from the house; she could not see his face, but

identified Dubose by his “body figure.”

      After being given his Miranda2 warnings, Dubose gave a custodial

statement to Agent Durden of the Georgia Bureau of Investigation; in it, Dubose

admitted shooting Harris for fear of Armstrong, but said he thought he was

shooting him in the leg, as it was dark in the bedroom. At trial, Dubose

produced an alibi witness who testified that he went to Dubose’s residence to

buy marijuana and was conversing there with him during the time that Harris

was killed; Dubose testified that he had not mentioned this witness to Durden,

believing that the information was best saved for his defense attorney. Dubose

also testified that he was approached about shooting Harris to scare him, but

refused, and that on the night of the shooting, he had lent his cell phone to

Quinton Johnekins; by the time law enforcement officers arrived at his residence

after the shooting, Johnekins had returned to the residence and the cell phone

      2
          Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

                                              3
was then inside the residence. He also testified that he was lying when he told

Durden that he had attempted to shoot Harris on an earlier date, but did not

when a child appeared outside the home.

       1. The evidence authorized the jury to find Dubose guilty beyond a

reasonable doubt of the crime of which he was convicted. Jackson v. Virginia,

443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       2. Dubose contends that the trial court erred in denying his motion to

suppress the written statement he gave to Agent Durden on June 18, 2006. An

audio recording of the interview during which the statement was made was

introduced at the Jackson v. Denno3 hearing and played for the court, and then

introduced into evidence at trial and played for the jury.4 During the interview,

Dubose apparently asked whether Durden5 could “find out about giving me a

lawyer now. I can’t talk to nobody. I don’t even think my mama (and them)

know where I’m at.”6 Durden assured Dubose that his parents did know where


       3
           Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
       4
           The recording was not transcribed.
       5
           Extraneous noise makes Dubose’s speech on the recording unclear.
       6
         In a prior interview, Dubose, who was 21 years of age, had expressed the desire to speak
with his mother.

                                                4
he was, told Dubose that lawyers “come around” through the jail, and that he

could talk with one. Durden then said that, since Dubose had “mentioned

talking to a lawyer,” the rules were “clear,” and that if Dubose wanted to talk to

a lawyer before speaking with Durden any further, Durden needed to “make sure

they were clear on that”; he also said that if Dubose was asking for a lawyer,

Durden needed to stop talking to Dubose, but if Dubose wanted to talk more,

Durden needed to make sure they were “clear on that.” Dubose apparently

asked what Durden would do in his place,7 and Durden said that he could not

discuss that until it was clear whether Dubose was asking for a lawyer, or

wished to talk further. Dubose responded that he would talk further, was not

asking for a lawyer right now, but was “gonna need one eventually,” and that he

and Durden could talk more. Later in this interview, Dubose signed a document

stating that: he was threatened with being killed if he did not cooperate with

Armstrong; on Armstrong’s instructions, he shot Harris in what he believed to

be the leg; it was dark in the room in which he shot Harris; and, Clark had

informed him by cell phone that Harris was inside the home.

      Dubose contends that he invoked his right to counsel, that at that point,

      7
          The recording is not clear on this point.

                                                  5
Durden should have ceased the interview, and that everything that transpired

during the interview, including the written statement, should have been

suppressed. See Edwards v. Arizona, 451 U. S. 477, 484-485 (II) (101 SCt

1880, 68 LE2d 378) (1981).

             A suspect who asks for a lawyer at any time during a
      custodial interrogation may not be subjected to further questioning
      by law enforcement until an attorney has been made available or
      until the suspect reinitiates the conversation. If the police persist in
      questioning a suspect who has requested that counsel be present,
      any resulting statements made by the suspect are inadmissible in the
      State’s case-in-chief. In order for a suspect to properly invoke his
      right to counsel during a custodial interrogation, he must articulate
      his desire to have counsel present sufficiently clearly that a
      reasonable police officer in the circumstances would understand the
      statement to be a request for an attorney. (Citations and punctuation
      omitted.) [Cit.]

Willis v. State, 287 Ga. 703, 704 (2) (699 SE2d 1) (2010). “‘An invocation must

be clear and unambiguous; the mere mention of the word “attorney” or “lawyer”

without more, does not automatically invoke the right to counsel.’ [Cits.]”

Reaves v. State, 292 Ga. 582, 586 (2) (b) (740 SE2d 141) (2013).

      [I]f the defendant “makes reference to an attorney that is ambiguous
      or equivocal in that a reasonable officer in light of the
      circumstances would have understood only that the suspect might
      be invoking the right to counsel,” cessation of the questioning is not
      required. Davis v. United States, 512 U. S. 452, 459 (114 SC 2350,
      129 LE2d 362) (1994).

                                         6
Fitz v. State, 275 Ga. 349, 353 (3) (b) (566 SE2d 668) (2002) (Emphasis

supplied).

       Such an unclear reference to an attorney is what occurred here. Dubose’s

mention of a lawyer was coupled with what appeared to be a renewal of his

request to speak with his family, and it was uncertain what he was

communicating; Durden proceeded to clarify that uncertainty, and Dubose

clearly stated that he did not wish to speak with a lawyer at that point, but

anticipated wanting one later. See Reaves, supra at 586-587.8

       3. At the time of trial, the Telfair County courthouse was undergoing

renovation, the courtroom available therein was deemed inadequate, and

consequently Dubose’s trial was held in the Wheeler County courthouse.

OCGA § 15-6-18, as in effect at the time of trial, and specifically OCGA § 15-6-

18 (c) (1),9 required essentially two things for a criminal trial in a county the size

       8
          “[F]ollowing a Jackson v. Denno hearing, this Court will not disturb the trial court’s factual
and credibility determinations unless they are clearly erroneous. [Cit.]” Wright v. State, 285 Ga. 428,
432 (2) (677 SE2d 82) (2009). Although the issue of invocation of the right to counsel was not the
focus of the Jackson v. Denno hearing, in ruling on Dubose’s motion, the trial court stated: “I find
no problems with Miranda warnings being given at the appropriate opportunity and the waiver forms
indicating that the defendant did not want a lawyer. There is no indication he ever asked for a
lawyer.”
       9
           Then OCGA § 15-6-18 read:

                (a) If for any cause it shall or may be impracticable to hold any session or

                                                   7
sitting of any superior or state court at the courthouse or other place provided by law
therefor, it shall be lawful to hold court and any session or sitting thereof at such
place as the proper authorities of the county in and for which the court is to be held
may from time to time provide for such purpose, provided that except as provided in
subsection (b) of this Code section no session or sitting of any superior court may be
held under this subsection at any place other than the county site of the county of
such court.
         (b) The provisions of this subsection shall apply only in a county in which
there exists a state court with one or more courtrooms regularly utilized by the state
court outside the county site. In any such county any session of superior court may
be held outside the county site in a courtroom of the state court, subject to the
following conditions and limitations:
                  (1) The senior judge or chief judge of superior court (such
         terms meaning the active judge who is senior in time of service) must
         enter a written order for such session of superior court to be so held
         outside the county site, and such order must incorporate a written
         finding that it is impracticable for the session of court to be held at
         the county site;
                  (2) A judge of the state court must enter a written order
         consenting for such session of superior court to be held in the
         courtroom of the state court;
                  (3) The holding of superior court sessions shall not affect the
         place of filing of documents to be filed with the superior court, except
         for documents filed in open court which may be filed where the
         session of court is held; and
                  (4) Any state court making courtroom space available to the
         superior court under this subsection shall be authorized under the
         same rules to hold sessions of state court in facilities of the superior
         court.
         (c) Notwithstanding the provisions of subsections (a) and (b) of this Code
section:
                  (1) In each county of this state having a population of not
         more than 50,000 according to the United States decennial census of
         1990 or any future such census, if for any cause it shall or may be
         impractical to hold any session or sitting of any superior or state court
         at the courthouse or other place provided by law therefor or if it
         should appear to the governing authority of the county that the best
         interest of the public would be served by the furnishing of alternate
         or additional facilities for the holding of any session or sitting of any
         superior or state court, it shall be lawful to hold court and any session
         or sitting thereof at such place or places as the governing authority of
         the county in and for which the court is to be held may from time to

                                          8
of Telfair County to be held in a location other than the county courthouse of

that county: provision for such a location by the proper governing authority of

the county, and the consent of the accused. Although the record shows that

Dubose consented to the move, nothing in the record on appeal shows a proper

resolution by the County Board of Commissioners authorizing the action.

However, a failure to show full compliance with then-OCGA § 15-6-18 (c) (1)

does not establish reversible error; harm from the irregularity must also be

shown. Goodman v. State, 293 Ga. 80, 83 (2) (742 SE2d 719) (2013).

      Dubose fails to show any such harm. In this Court, Dubose asserts that,


              time, by appropriate resolution, provide for such purpose, provided
              that no session or sitting of any superior court or state court may be
              held under this subsection at any place that is not open to and
              accessible by the public; provided, further, that no criminal jury trial
              shall be conducted in such alternate or additional facility without the
              consent of the accused; and
                       (2) In each county of this state where the county site is located
              in an unincorporated area of the county and the governing authority
              of such county determines by appropriate resolution that the best
              interest of the citizens of such county would be served by the
              construction of a courthouse annex or satellite courthouse outside the
              county site, it shall be lawful to hold any session or sitting of superior
              or state court or grand jury and to conduct all other related business
              of the courts at such annex or satellite courthouse.
              (d) All acts of a superior court or state court done at a place provided therefor
      by the county authorities, other than at the county courthouse or other place of
      holding such court as fixed by law, shall have the same force and effect as if the same
      had been done at the regular courthouse or other place fixed by law for the holding
      of such court, including the satisfaction of the requirements of Code Section 15-6-17.


                                                 9
had trial been held in the Telfair County courthouse, certain evidence that

appellate counsel believes might have been useful would have been readily at

hand. However, he raised the issue of noncompliance with then-OCGA § 15-6-

18 (c) (1) in an amendment to his motion for new trial, but at the hearing

thereon, he produced no evidence that the conduct of his trial was negatively

impacted by the change in location, and thus fails to establish any harm thereby.

      4. Dubose asserts that, after trial, the State destroyed a videotape from a

convenience store that depicted a police informant and another person together

near the time of the murder, and posits that the State destroyed the videotape to

protect the informant, who was the true killer of Harris.

      In dealing with the failure of the state to preserve evidence which
      might have exonerated the defendant, a court must determine both
      whether the evidence was material and whether the [State] acted in
      bad faith in failing to preserve the evidence. Arizona v. Youngblood,
      488 U.S. 51 (109 SC 333, 102 LE2d 281) (1988). To meet the
      standard of constitutional materiality, the evidence must possess an
      exculpatory value that was apparent before it was destroyed, and be
      of such a nature that the defendant would be unable to obtain
      comparable evidence by other reasonably available means.
      California v. Trombetta, 467 U. S. 479 (104 SC 2528, 81 LE2d
      413) (1984). [Cit.]


Clay v. State, 290 Ga. 822, 841-842 (5) (C) (725 SE2d 260) (2012).            And


                                       10
Dubose fails to show either materiality of the evidence or bad faith by the State.

No evidence was presented that the claimed informant actually appeared on the

videotape; the tape was available at trial, and trial counsel testified that, to his

recollection, the tape quality was such that nothing of value could be discerned

from it. Further, Dubose fails to show that the State acted in bad faith in

destroying the tape. Id.

      5. The trial court instructed the jury on the law of witness identification

and that it was for the jury to determine whether, under the facts and

circumstances of the case, witnesses “sufficiently identif[ied] the defendant

beyond a reasonable doubt as the perpetrator of the alleged crime or that he was

a party to it.”10 Dubose contends the reference to being a party to the crime was

error because no eyewitness identified anyone but Dubose, and that

identification was simply false. However, in addition to her testimony that it

was Dubose she saw running from the home immediately after the shooting,

Clark testified that Dubose called her cell phone shortly before the shooting and

asked why the children were still up. The defense attacked the credibility of

Clark’s eyewitness identification, elicited testimony that Harris’s nine-year-old

      10
           The court also instructed the jury on the law of parties to a crime.

                                                  11
stepdaughter had given a description of the man who ran from the home that

conflicted with Clark’s identification and with Dubose’s appearance, and argued

that this discrepancy helped establish reasonable doubt.                         Given Clark’s

testimony regarding Dubose’s telephone call immediately before the shooting,

the jury could infer that, even if her eyewitness identification of him was

incorrect, he was working in concert with someone else in an attempt to ensure

that the children were not in a position either to be harmed when Harris was

shot, or to serve as witnesses. Accordingly, the portion of the jury instruction

referring to Dubose being a party to the crime was authorized by the evidence.

See White v. State, 289 Ga. 511, 513 (2) (712 SE2d 834) (2011); Mallory v.

State, 271 Ga. 150, 152-153 (4) (517 SE2d 780) (1999).

      Nor did the court’s determination regarding what jury instructions were

authorized by the evidence amount to a comment upon the evidence. See

OCGA § 17-8-57.11 That “‘statute is violated only when the trial court’s


      11
        OCGA § 17-8-57 reads:
              It is error for any judge in any criminal case, during its progress or in his
      charge to the jury, to express or intimate his opinion as to what has or has not been
      proved or as to the guilt of the accused. Should any judge violate this Code section,
      the violation shall be held by the Supreme Court or Court of Appeals to be error and
      the decision in the case reversed, and a new trial granted in the court below with such
      directions as the Supreme Court or Court of Appeals may lawfully give.

                                                12
instruction, considered as a whole, assumes certain things as facts and intimates

to the jury what the judge believes the evidence to be.’ [Cit.]” Simmons v. State,

291 Ga. 705, 708 (5) (733 SE2d 280) (2012). The court instructed the jury that

no ruling, comment, or facial expression of the court’s was intended to convey

any opinion of the evidence, and if the jury had so construed any such ruling,

comment, or facial expression, it was to put that impression aside. Viewed in

context, no reasonable juror would construe the court’s instruction on

identification to be a comment upon the evidence. Id.

      6. Finally, Dubose contends that his trial counsel failed to provide

effective representation in several respects. In order to prevail on such a claim,

he must show both that counsel’s performance was deficient, and that the

deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga.

782, 783 (1) (325 SE2d 362) (1985), citing Strickland v. Washington, 466 U. S.

668 (104 SCt 2052, 80 LE2d 674) (1984). To meet the first prong of the

required test, he must overcome the “strong presumption” that counsel’s

performance fell within a “wide range of reasonable professional conduct,” and

that counsel’s decisions were “made in the exercise of reasonable professional

judgment.” Id. The reasonableness of counsel’s conduct is examined from

                                       13
counsel’s perspective at the time of trial and under the particular circumstances

of the case. Id. at 784. To meet the second prong of the test, he must show that

there is a reasonable probability that, absent any unprofessional errors on

counsel’s part, the result of his trial would have been different. Id. at 783. “‘We

accept the trial court’s factual findings and credibility determinations unless

clearly erroneous, but we independently apply the legal principles to the facts.’

[Cit.]” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

      (a) Dubose contends trial counsel was ineffective in not fully arguing that

the trial court should suppress any and all statements made after he contends that

he invoked his right to counsel. See Division 2, supra. However, as outlined

above, id., Dubose made no clear invocation of his right to counsel, and thus any

failure to make this argument does not provide support for finding trial counsel

ineffective. Nations v. State, 290 Ga. 39, 44 (4) (d) (717 SE2d 634) (2011).

      (b) Evidence of Dubose’s interviews with Durden was presented to the

jury by playing audio recordings of them. At times during the interviews,

Durden told Dubose that he knew Dubose was not telling the truth, and related

to Dubose what was said during the investigation by other persons who did not

testify at trial. Dubose now contends that trial counsel should have moved to

                                        14
redact these statements. See Axelburg v. State, 294 Ga. App. 612, 615-617 (2)

(669 SE2d 439) (2008).

      First, trial counsel testified during the hearing on the motion for new trial

that he wanted the jury to understand “how much browbeating, how much

interrogation” had taken place. Given the evidence trial counsel had to combat,

including the statement Dubose had given Durden, Dubose fails to show that

this was an unreasonable strategy. See Woods v. State, 291 Ga. 804, 808 (2)

(733 SE2d 730) (2012); Lambert v. State, 287 Ga. 774, 776 (2) (700 SE2d 354)

(2010).

      Further, Dubose fails to show prejudice from the failure to move to redact

the interviews. “It is true enough that, generally speaking, ‘[a] trial witness may

not give opinion testimony on ultimate matters within the jury's province,

including the defendant’s credibility.’ [Cit.]” Butler v. State, 292 Ga. 400, 405

(3) (a) (738 SE2d 74) (2013) (Footnote omitted). But an interviewer in

Durden’s position is not offering opinion testimony, but fact testimony about

what was, in fact, said during the interviews, even though such statements

themselves

      contained an opinion. As we have explained before, “law

                                        15
      enforcement interrogations are, by their very nature, attempts to
      determine the ultimate issue and the credibility of witnesses.” [Cit.]
      “Comments made in such an interview and designed to elicit a
      response from a suspect do not amount to opinion testimony, even
      when [testimony reflecting] the comments is admitted at trial.”
      [Cits.]

Id. at 406. To the extent that Dubose now argues that the statements should

have been redacted because they were “without probative value or [were] too

prejudicial to be admitted,” id., he fails to show such. There was probative

value in explaining why Dubose’s version of events changed, and, under the

circumstances, any reasonable juror would have expected that Durden did not

believe Dubose’s earlier versions of events. Id. at 406-407.

      (c) Dubose contends that trial counsel should have objected to what he

describes as the illegal seizure of his cell phone when he first went to the police

station. However,

      “‘[w]hen trial counsel’s failure to file a motion to suppress is the
      basis for a claim of ineffective assistance, the defendant must make
      a strong showing that the damaging evidence would have been
      suppressed had counsel made the motion.’” Biggs v. State, 281 Ga.
      627, 631-632 (642 SE2d 74) (2007) (citation omitted).

Williams v. State, 290 Ga. 533, 535 (2) (a) (722 SE2d 847) (2012). And Dubose

fails to meet this burden; although Dubose testified at the hearing on the motion


                                        16
for new trial, he did not address this issue. As the trial court noted in its order

on the motion for new trial, the evidence regarding the cell phone’s acquisition

by law enforcement officers presented at trial, which related to the chain of

custody, did not show that it was illegally seized.

       (d) Dubose contends that trial counsel should have secured the testimony

of Harris’s nine-year-old stepdaughter, or of the law enforcement investigator

who interviewed her. Dubose speculates that she could have testified that she

knew him and did not recognize him as the person she saw on the night of the

murder. However, he did not produce either the stepdaughter or the investigator

to present evidence during the hearing on the motion for new trial, and thus fails

to show a reasonable probability that the outcome of his trial would have been

different if trial counsel had secured the testimony of either witness. See

Crowder v. State, 294 Ga. 167, 169 (3) (751 SE2d 334) (2013).12

       Similarly, to the extent that Dubose contends that trial counsel failed to

investigate other crimes committed by other persons, so as to show that those

persons could have committed the murder of Harris, he has failed to place such

       12
         The substance of the stepdaughter’s statement to the investigator was placed before the jury
through the cross-examination of a different investigator, and trial counsel argued that it contributed
to showing reasonable doubt. See Division 5, supra.

                                                  17
evidence in the record, and thus fails to show a reasonable probability that the

outcome of his trial would have been different if trial counsel had acted as

Dubose now contends he should have. Id.

      Judgment affirmed. All the Justices concur.



                         Decided February 24, 2014.

      Murder. Telfair Superior Court. Before Judge Mullis.

      John G. Wolinski, Jimmonique R. S. Rodgers, for appellant.

      Timothy G. Vaughn, District Attorney, Joshua W. Powell, Assistant

District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway

Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney

General, Ryan A. Kolb, Assistant Attorney General, for appellee.




                                      18
