Durden v. State

Devin Durden was convicted by a Muscogee County jury of felony murder, armed robbery, and a firearms charge after a taxi driver named Dewayne Chronister was shot and killed during a robbery. Two co-defendants who pled guilty testified against Durden, describing how they planned the robbery and identifying him from gas station surveillance video. A police detective also testified at length identifying Durden as the person shown in that same footage, based on clothing and hairstyle. On appeal, Durden argued the trial judge should not have allowed the detective's identification testimony and should have instructed the jury that testimony from an accomplice needs to be backed up by other evidence, especially since the judge told the jury a single witness's testimony can be enough to prove a fact. The Supreme Court of Georgia found these were errors but concluded they almost certainly did not change the jury's verdict, so it upheld the conviction. It did, however, throw out Durden's separate armed robbery sentence because that crime legally merges into the felony murder conviction under Georgia law.

The court held that although the trial judge likely erred by allowing extensive detective identification testimony and by omitting an accomplice-corroboration instruction, Durden failed to show these errors probably changed the trial's outcome given the corroborating accomplice testimony and other evidence, so his convictions stand except that his armed robbery sentence must be vacated because it merges into the felony murder conviction.

The ruling shows Georgia courts will excuse even clear trial mistakes, like skipping a required jury instruction, when other strong evidence supports the verdict. It also reinforces that when felony murder is based on an underlying felony like robbery, defendants cannot be separately sentenced and punished for both crimes.

Affirmed in part and vacated in part

1. To win on an unobjected-to error, Durden had to satisfy the plain-error test, which requires showing a clear legal mistake that likely changed the outcome of the trial and seriously harmed the fairness of the proceedings.
2. Even assuming the detective's testimony identifying Durden from surveillance video improperly went beyond what a non-expert witness may state under Georgia's lay-opinion rule (O.C.G.A. § 24-7-701(a)), that testimony simply repeated what the two accomplices, who knew Durden personally, had already told the jury, so it likely made no difference to the verdict.
3. The trial court also clearly erred by telling jurors that a single witness's testimony can generally prove a fact without also telling them that an accomplice's testimony alone is not enough and must be backed up by other evidence, a rule known as accomplice corroboration.
4. That omission likely did not change the outcome because the two accomplices' accounts backed each other up, and additional evidence, including surveillance footage, a matching shell casing, taxi company records, and the recovered cell phone, independently corroborated their testimony.
5. Looking at both errors together did not change the analysis, because the identification testimony was repetitive of properly admitted evidence and the accomplice testimony was well supported, so there was no combined prejudice requiring reversal.
6. Because Durden was convicted of felony murder based on armed robbery as the underlying crime, Georgia law requires that the armed robbery conviction and sentence merge into and disappear inside the felony murder conviction, so the separate armed robbery sentence had to be vacated.

• felony murder conviction
• accomplice testimony
• surveillance video identification
• jury instructions
• armed robbery merger