DUNSTON v. THE STATE (Two Cases)

Dallas McCabe and Akhemu Dunston were convicted in Oconee County of felony murder and attempted sale of marijuana after a plan to rob Joseph Jackson during a fake drug deal ended with a third man, Ryan O'Neal, shooting Jackson as McCabe drove away and Jackson clung to the car. On appeal to the Supreme Court of Georgia, both men argued the evidence could not support their convictions, and that jurors who talked among themselves about gang testimony and expressed safety fears should have led to a mistrial. McCabe also argued jurors should have been removed and that his trial lawyer was ineffective for not seeking a separate trial and not objecting to the prosecutor's closing argument. Dunston argued the trial judge should have sever his trial from McCabe's and should have given a fuller jury instruction on proximate cause. The court rejected every argument. It found the evidence, including text messages planning the robbery and McCabe's flight to Mexico, was enough for the jury to convict both men as parties to the crime, and that the jury misconduct and instructions issues were either harmless or properly handled by the trial judge.

The court held that sufficient evidence supported both convictions as parties to the crime, that the jurors' pretrial-deliberation conversations and safety concerns were harmless beyond a reasonable doubt, that severance and juror-removal rulings were within the trial court's discretion, and that trial counsel was not constitutionally ineffective.

The ruling reinforces that Georgia juries can convict people who plan or drive during a robbery-turned-shooting even without pulling the trigger, and confirms trial judges have wide latitude to manage juror safety concerns and joint trials without automatically triggering a new trial.

Judgments affirmed

1. The court applied the standard from Jackson v. Virginia, asking only whether a rational jury could have found guilt beyond a reasonable doubt when viewing the evidence in the light most favorable to the verdict, without reweighing conflicting testimony.
2. Because Georgia law treats anyone who intentionally aids, encourages, or helps plan a crime as a party to it, the court found that text messages planning 'a money move,' McCabe's role as driver, and his flight to Mexico were enough to show both men shared a common intent to rob Jackson, supporting the felony murder verdicts.
3. On the claim that only misdemeanor theft occurred, the court explained that under Georgia law force used to keep stolen property, even after the victim first handed it over, can turn the crime into robbery if the force and the taking happen close together in time, which the jury could find here from the dragging and shooting.
4. Reviewing the denial of a mistrial for abuse of discretion, the court found that although jurors briefly discussed gang-related fears during a recess, none discussed the actual evidence of guilt, and the trial judge's questioning and warnings were enough to make any irregularity harmless beyond a reasonable doubt.
5. On severance, the court applied a three-factor test looking at jury confusion, spillover evidence, and conflicting defenses, and concluded that because both defendants faced identical evidence and blamed the same third man, a joint trial was not so unfair as to violate due process.
6. Applying the two-part Strickland test for ineffective assistance, requiring both a professional shortcoming and a resulting likely change in outcome, the court found McCabe's lawyer made a reasonable strategic choice not to seek severance and had sound reasons not to object to the prosecutor's closing argument.

• felony murder
• jury misconduct
• gang evidence
• severance of trials
• ineffective assistance of counsel