Dugar v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.
In the Supreme Court of Georgia
Decided: August 9, 2022
S22A0707. DUGAR v. THE STATE.
BOGGS, Chief Justice.
In 2017, Rita Mary Dugar shot and killed Jon Trevor Townley
at the home of Dugar’s ex-boyfriend, Juandrago Carter, in
Covington. Dugar called 911 and was arrested at the scene.
According to Dugar, she accidentally shot Townley while attempting
to fire a warning shot during a melee involving Townley, Carter, and
two other individuals, Shane Dobbs and Sarah Smith. At a 2021
bench trial, the court convicted Dugar of felony murder, aggravated
assault, and a firearm-possession offense. She appeals, asserting
four enumerations of error, all related to her waiver of a jury trial. 1
The crimes occurred on February 28, 2017. On May 5, 2017, a Newton
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County grand jury indicted Dugar for malice murder, felony murder,
aggravated assault, and possession of a firearm during the commission of a
Dugar contends that: (1) the original trial judge made remarks
at a bond hearing that unduly influenced her decision to waive her
right to a jury trial and, citing OCGA § 17-8-57, contends that the
trial judge improperly commented on the merits of her case; (2) the
State failed to show that her waiver of a jury trial was knowing,
voluntary, and intelligent; (3) her trial counsel was ineffective for
failing to advise her of her right to revoke her waiver of a jury trial
after the case was reassigned to a new judge; and (4) counsel’s
actions denied her the right to revoke her waiver of a jury trial. For
the reasons that follow, we affirm. 2
felony. At a bench trial from February 23 to 24, 2021, the court found Dugar
not guilty of malice murder but guilty of the remaining counts. The trial court
sentenced Dugar to imprisonment for life for felony murder and to a
consecutive term of five years on probation for the firearm possession
conviction; the court merged the aggravated assault charge into the felony
murder conviction. Dugar filed a timely motion for new trial, which she
amended with new counsel on June 25, 2021. After a hearing on August 12,
2021, the trial court denied the motion on December 29, 2021. Dugar filed a
timely notice of appeal directed to the Court of Appeals, which properly
transferred the case to this Court on February 10, 2022. The case was docketed
in this Court for the April 2022 term and submitted for a decision on the briefs.
2 As Dugar does not challenge the sufficiency of the evidence to support
her convictions, we note only those portions of the record necessary to address
her claims of error. We no longer routinely review evidentiary sufficiency sua
sponte, except with respect to murder convictions resulting in the death
penalty. See Davenport v. State, 309 Ga. 385, 398-399 (4) (b) (846 SE2d 83)
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1. Dugar first asserts that the original trial judge’s remarks
during an initial bond hearing unduly influenced her to waive her
right to a jury trial, rendering the waiver involuntary. This claim is
meritless.
(a) Two months after the shooting and before Dugar was
indicted, the original trial judge presided over a bond hearing. The
prosecutor summarized the facts of the case and asked that the court
deny bond because Dugar was “facing . . . possibly being charged
with malice murder and felony murder” and had attempted to
contact Carter multiple times from the jail about his statement to
police. The judge stated that he was less concerned about the risk of
flight than the possibility of witness intimidation or collusion, and
the public defender, who was representing Dugar at the time, said
that Dugar was willing to have no contact with the witnesses to the
shooting. The judge then had the following exchange with counsel
for the parties:
COURT: Because nobody else was charged, which I’m not
(2020).
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sure how you all do that and I don’t know enough about
it. This murder happened – well, this incident occurred,
the death occurred we shall say in February . . . . Less
than 60 days ago.
DEFENSE COUNSEL: She’s been in custody since the
time, which was . . . February 28th, and she is willing to
remain away from any of those individuals. Judge, just to
give you a little bit more insight as to the kind of the
relation of these folks, Ms. Dugar was only there with the
other individuals, she was not part of the actual
argument, and [the prosecutor] is correct that she did
cooperate with police, did let them know that she was the
one that –
COURT: Well, she made the call apparently. You said 911
call; right?
DEFENSE COUNSEL: She did call 911.
COURT: Which is not the usual in the situation of an
alleged murderer.
DEFENSE COUNSEL: That’s correct.
COURT: So I heard all of that.
DEFENSE COUNSEL: She did . . . remain on the scene
to talk to police and did admit that she was trying to fire
a warning shot to try to break up the argument.
COURT: I know. This is what we’re going to do. All right.
I’m not going . . . to grant a bond today and rather than
there being a denial of record I’ll withhold ruling thereon.
I hope, [prosecutor], you all are going to look at this as you
mentioned felony murder and malice murder you may
look at it the other way. . . . This is something that might
be better viewed as manslaughter . . . based on the snippet
that I’ve gotten involved and she made the call. All right.
So I’m saying as you all review it, you know . . . don’t scan
it, but do that as well. Let’s withhold my ruling on the
bond. Okay. Give you all a chance to flesh out more facts.
Because I’m with you, I don’t know how people go to a
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fight and the only one that gets . . . arrested is her. And
especially talking about felony murder. . . . And
underlying certainly I presume was the robbery or
whatever – the theft that they were seeking –
STATE: Aggravated assault, Your Honor.
COURT: All right. So in any event, you all flesh it out.
That’s what you all get paid the big bucks for.
At a second bond hearing a month later, after Dugar had been
indicted, the attorneys reminded the original trial judge of his
earlier statement at the first bond hearing, and the prosecutor
provided more information to the court, including further details of
Dugar’s recorded calls from the jail to Carter. The judge denied
Dugar bond:
COURT: It’s kind of hard to swallow that. Okay. She
made a call after the prelim [that is, the first appearance
hearing in magistrate court] to a witness. . . . [T]hat’s a
problem for me. . . . It’s kind of hard to swallow that. . . .
She made a call on the day of the prelim to a witness she
had just heard in court. . . . That’s not what innocent folks
do. And then to say on the call that we have to get our
story straight to better help me to do that. Now, you can
take that and you can spin it anyway you want to, but
there’s not any way I can spin it. Bond denied. We’ll let it
fall where it may. File your speedy [trial motion] and we’ll
get a trial. I’ve got speedies in the record so we’ll find out
where they are. So bond denied.
Attempting to clarify the basis for the bond ruling, the prosecutor
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asked, “[T]he bond is denied for intimidating and influencing
witnesses?” The judge replied, “And for a risk to the community, you
can note both.”
Later the same month, new counsel filed an entry of
appearance on behalf of Dugar, and six months later filed a motion
for dismissal under the immunity statute, OCGA § 16-3-24.2, on the
basis of justification by self-defense. The original trial judge
presided over an evidentiary hearing in April 2018, at which Dugar,
Carter, Smith, a sheriff’s deputy, and a Social Circle police officer all
testified regarding the confrontation. 3 The trial court denied the
motion from the bench, stating, “The Court’s going to find that there
has been not in any way sufficient showing that this motion should
be granted, and I will deny the defendant’s motion for dismissal for
immunity from prosecution as so pled in this matter.”
At an October 2019 status conference before a senior judge, the
prosecutor said that Dugar’s attorney had recently informed the
3 Dobbs did not testify at the immunity hearing; a sheriff’s deputy
testified that the State had been unable to locate him.
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State that he planned to seek a bench trial. The prosecutor asked
“for a week or so to make that determination [i.e., whether the State
would agree to Dugar’s request for a bench trial] and then get with
obviously [the original trial judge’s] office to schedule that bench
trial.” At a third hearing in April 2020, the original trial judge
declined to reconsider his denial of bond to Dugar, and the
possibility of having a bench trial rather than a jury trial was again
discussed. The judge instructed Dugar’s counsel to
go over it and . . . Ms. Dugar can have a chance now to
understand this is a very important decision for her to . . .
make. And I certainly want her to have every opportunity
to talk to [her counsel] before she signs [a waiver of her
right to a jury trial.] This is no longer theory; she will be
waiving her constitutional right to a jury trial in this
matter. All right. I’ll see you in two weeks.
Two weeks later, the original judge presided over a status
conference held by video, at which the parties discussed in detail
Dugar’s desire to waive her right to a jury trial. The judge
questioned Dugar regarding the waiver, and Dugar said that she
had signed a formal waiver of her right to a jury trial; that she had
discussed it with her attorney; that she understood it was her choice,
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not her attorney’s choice; that nobody had put any force or pressure
on her to sign the waiver; and that she was “knowingly, voluntarily,
and willingly” waiving her right to a jury trial. The judge asked
Dugar if she had any questions, and she responded, “No, Your
Honor.” Dugar filed her formal waiver on the same day, and a bench
trial was set for July 21, 2020.
Before the trial could be held, however, the original trial judge
died, and Dugar’s case was reassigned. The State informed the
successor trial judge that the parties had agreed to a bench trial,
and the trial took place from February 23 to 24, 2021. Dugar did not
testify, but she called three witnesses who testified to her peaceful
character. The trial court found Dugar not guilty of malice murder
but guilty of the remaining charges, and later denied Dugar’s motion
for new trial.
(b) Dugar claims that the original trial judge’s remarks at the
initial bond hearing regarding the facts of the case and the possible
charges against her exerted “undue influence” on her decision to
waive her right to a jury trial, therefore rendering her waiver
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involuntary. She relies heavily upon Ealey v. State, 310 Ga. App.
893, 898 (714 SE2d 424) (2011), where the Court of Appeals held
that the State failed to meet its burden to show that a defendant’s
waiver of his right to a jury trial was voluntary. But the facts in
Ealey bear no resemblance to this case.
In Ealey, after the denial of a motion to suppress, Ealey waived
his right to a jury trial in open court but then immediately sought to
revoke it, stating that he had not understood and that he wanted a
jury trial. See id. at 894-895. The trial court then addressed Ealey
directly, stating that if he waived his right to a jury trial, the court
would grant a supersedeas bond, “which would let you out of jail
pending appeal” of his motion to suppress. Id. at 895. The court
added, “I’ll tell you what I’ll do, I’ll give you the minimum [sentence
if convicted] . . . and then like I said, I’ll go ahead and grant you a
supersedeas bond.” Id. at 896. The court also pointed out that at a
jury trial the court would “find out a lot more information about a
case,” and that in sentencing Ealey if a jury found him guilty, the
court was “not bound by anything I said I would do at the end of a
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bench trial, the maximum you could get would be 31 years – no,
excuse me, 41 years.” Id. Then, “[a]fter a brief pause in the
proceedings, the court stated that it needed an answer [from Ealey]
‘in 30 seconds.’” Id. When Ealey protested that “this was just
dumped on me this morning,” the court responded that Ealey had
had “plenty of time to think about it.” Id. at 897. Ealey then waived
his right to a jury trial, and the court found him guilty after a bench
trial. Based on these circumstances, a majority of the Court of
Appeals concluded that the trial court’s ruling that Ealey
voluntarily waived his right to a jury trial was clearly erroneous. See
id. at 899.4
Even assuming that Dugar’s undue-influence theory could
support a claim that her waiver of a right to a jury trial was not
voluntary, and that the circumstances in Ealey amounted to
sufficient undue influence to render the waiver there involuntary,
the circumstances here do not raise even remotely similar concerns.
4 Two judges dissented, reasoning that the trial court never coerced or
threatened Ealey. Id. at 900 (Andrews, J., dissenting).
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Here, the original trial judge’s remarks at the pre-indictment bond
hearing involved no threats or promises; did not mention a bench or
jury trial, much less pressure Dugar to choose one over the other or
threaten Dugar with a heavier sentence if she chose a jury trial and
the jury found her guilty; and were directed to counsel rather than
to Dugar personally. See Kennedy v. Hines, 305 Ga. 7, 11 (2) (823
SE2d 306) (2019) (noting in the context of a guilty plea that
statements that are factual or that involve no threats, pressure, or
indication of a preference for a particular decision “simply [are] not
comparable to the types of threats, statements about a trial court’s
desire to sentence a defendant harshly, or statements coaxing
defendants to plead guilty, that we have said render a guilty plea
involuntary.” (Citations and punctuation omitted.)).
Moreover, the judge’s remarks and Dugar’s decision to waive
her right to a jury trial occurred over three years apart, separated
by intervening hearings that resulted in decisions unfavorable to
Dugar: the original trial judge twice denied Dugar’s requests for
bond and also denied her motion for immunity after receiving
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extensive testimony from multiple witnesses. The original trial
judge’s statements here in a completely unrelated hearing three
years earlier are not comparable with the statements made in Ealey
at the time of the defendant’s decision, which placed the defendant
under pressure to decide immediately and signaled a preference for
the defendant to waive his rights.
Whatever Dugar may have believed or hoped regarding the
original trial judge’s remarks explaining the reasons for continuing
the initial bond hearing, more than three years before Dugar waived
her right to a jury trial and nearly four years before her bench trial
was conducted by a different judge, the successor trial judge did not
clearly err in rejecting Dugar’s assertion that those remarks
rendered involuntary her waiver of a jury trial. Accordingly, this
claim lacks merit.
(c) Dugar also claims that the original judge’s remarks at the
initial bond hearing were improper regardless of when they were
made, arguing from OCGA § 17-8-57 that comments expressing a
judge’s opinion as to the merits of a case cannot be made “during any
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phase of any criminal case.” But that statute does not apply to
comments made outside the presence of the jury. See OCGA § 17-8-
57 (a) (1) (“It is error for any judge, during any phase of any criminal
case, to express or intimate to the jury the judge’s opinion as to
whether a fact at issue has or has not been proved or as to the guilt
of the accused.” (Emphasis supplied.)). See also Carson v. State, 308
Ga. 761, 766-767 (3) (843 SE2d 421) (2020). Moreover, even in the
presence of a jury, “the remarks of a judge explaining a reason for
his ruling are neither an expression of opinion nor a comment on the
evidence.” (Citations and punctuation omitted.) Horton v. State, 310
Ga. 310, 320 (3) (a) (849 SE2d 382) (2020). The original trial court’s
comments explaining his reasons for continuing the initial bond
hearing thus would not have violated OCGA § 17-8-57, even if it
applied here. This claim is therefore without merit.
2. Dugar next asserts that the State failed to show that she
knowingly, voluntarily, and intelligently waived her right to a jury
trial. We disagree.
“Because the right to a jury trial is a fundamental
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constitutional right, the burden is on the State to show that [a
defendant] made a knowing, intelligent and voluntary waiver of that
right.” (Citation omitted.) Balbosa v. State, 275 Ga. 574, 575 (1) (571
SE2d 368) (2002). Moreover, to ensure that a defendant has waived
the right to a jury trial “voluntarily, knowingly and intelligently,”
the trial court should conduct a colloquy with the defendant
personally. Id.5
As explained above, after an earlier hearing at which the
original trial judge cautioned Dugar that the waiver of her right to
a jury trial was “a very important decision” and emphasized the
importance of conferring with her counsel before deciding, the same
judge presided over a status conference held by video, at which the
parties discussed in detail Dugar’s desire to waive her right to a jury
trial and to be tried by the court without a jury. The original judge
then questioned Dugar about her decision, and based on her
5 Agee v. State, 311 Ga. 340, 343-344 (2) (857 SE2d 642) (2021),
characterizes the State’s burden as “beyond a reasonable doubt,” citing
Balbosa. Although Balbosa does not expressly reference that standard, no
party has asked that we re-examine either precedent, and we need not do so to
decide this case.
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answers, he found that she had knowingly, voluntarily, and
intelligently waived her right to a jury trial. This was sufficient to
meet the State’s burden to show that Dugar’s waiver was adequate.
See Watson v. State, 274 Ga. 689, 690-691 (2) (558 SE2d 704) (2002)
(statement of defendant in open court that he knew he had a right
to a jury trial and that he wished to forgo that right, in addition to
counsel’s statement that he had discussed the matter with
defendant, was sufficient to show that defendant “personally,
knowingly, voluntarily, and intelligently waived his right to a trial
by jury”).
Moreover, Dugar testified at the motion for new trial hearing
that as the trial began she “believed that having a bench trial was
the correct thing to do.” She further acknowledged that her
complaint was about the outcome of the trial rather than the
decision to waive her right to a jury trial. Indeed, aside from her
claim of “undue influence,” Dugar makes no argument that her jury
trial waiver was anything but knowing, voluntary, and intelligent.
Accordingly, this claim is without merit.
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3. Dugar also contends that she was denied the effective
assistance of counsel. To prevail on a claim of ineffective assistance
of counsel, Dugar must show both that her trial counsel’s
performance was deficient and that she suffered prejudice as a
result. See Strickland v. Washington, 466 U. S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984).
To establish deficient performance, Dugar must overcome a
strong presumption that her trial counsel’s conduct “falls within the
broad range of reasonable professional conduct” and demonstrate
that her counsel “performed in an objectively unreasonable way,
considering all circumstances and in the light of prevailing
professional norms.” (Citation and punctuation omitted). Smith v.
State, 296 Ga. 731, 733 (2) (770 SE2d 610) (2015). To establish
prejudice, Dugar must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U. S. at 694(III) (B). An appellant must satisfy both prongs of the Strickland
test, and if the showing fails as to one prong, “it is not incumbent
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upon this Court to examine the other prong.” (Citation and
punctuation omitted.) Smith, 296 Ga. at 733 (2). The trial court’s
factual findings will be affirmed unless clearly erroneous. See id.
Dugar asserts that her attorney’s performance was deficient
because he “did not know that the Appellant had the right to revoke
her jury waiver and therefore, advised her to proceed with a bench
trial in front of her newly assigned judge.” However, this assertion
is belied by the record. Dugar testified at the motion for new trial
hearing that she discussed the possibility of a bench trial with her
attorney, and that when the case was assigned to a new judge, she
and her attorney discussed
putting in something to have that waiver revoked or
withdrawn or whatever the terminology is and he said he
was going to do some digging into how the new judge . . .
handles cases . . . and he was going to weigh the pros and
cons and I told him that he’s my counsel and I trust him,
whichever way he feels is better suited or which would
help my case would be the way that we’d go.
And Dugar’s trial counsel testified at the motion for new trial
hearing that he discussed having a bench trial rather than a jury
trial with Dugar “multiple times,” including after the original trial
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judge died. Dugar characterizes trial counsel’s testimony as stating
that he “‘could not find any case law that would support’ the
Appellant revoking her jury waiver,” asserting that counsel
“therefore advised [Dugar] to proceed with a bench trial in front of
her newly assigned judge.” (Emphasis supplied.) That
characterization is inaccurate. The record shows that trial counsel
testified that he did not find any case law supporting an automatic
right to withdraw a jury trial waiver because the presiding judge
had passed away. Trial counsel further testified that he advised
Dugar to proceed with a bench trial not because she could not revoke
the waiver, but because the shooting “was just a horrible accident”
and he thought that a judge would agree with that conclusion,
noting that the successor trial judge agreed at least in part by
acquitting Dugar of malice murder.
Moreover, the successor trial judge concluded in denying
Dugar’s motion for new trial that trial counsel’s advice to Dugar
regarding the waiver of a jury trial was not unreasonable, in light of
the facts and circumstances of the case and counsel’s research.
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“[T]he reasonableness of strategic decisions of counsel – in this case,
whether to advise his client to waive [her] right to a jury trial – are
to be examined from counsel’s perspective at the time of trial and
under the particular circumstances of the case.” (Citations and
punctuation omitted.) Butler v. State, 313 Ga. 675, 683 (4) (a) (872
SE2d 722) (2022). Particularly since “trial counsel’s decisions
relating to strategy and tactics are not judged by hindsight,” we
cannot say that trial counsel’s reasons for advising Dugar to waive
her right to a jury trial were “objectively unreasonable considering
all the circumstances and in the light of prevailing professional
norms.” (Citations and punctuation omitted.) Id. at 684. Dugar has
not shown deficient performance, and her ineffective assistance of
counsel claim accordingly fails.
4. Finally, Dugar contends that the trial court denied her right
to revoke her waiver of a jury trial. However, in her brief on appeal,
Dugar has not included any citation to the record showing that she
ever attempted to revoke her waiver of a jury trial, and our
examination of the record likewise reveals no evidence that she
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attempted to revoke it. “It is well established that the burden is on
the party alleging error to show it by the record.” (Citations and
punctuation omitted.) Suggs v. State, 310 Ga. 762, 767 (5) (854 SE2d
674) (2021). Moreover, “this Court is not required to scour the record
for support for an appellant’s arguments.” (Citation and punctuation
omitted.) Glover v. State, 309 Ga. 102, 107 (3) (844 SE2d 743) (2020).
Accordingly, this claim provides no basis for reversal. Id.Judgment affirmed. All the Justices concur.
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