Edward Samuel Dukes v. State ( 2021 )

SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
August 23, 2021
In the Court of Appeals of Georgia
A21A1074. DUKES v. THE STATE.
PIPKIN, Judge.
Following a jury trial, Appellant Edward Samuel Dukes was convicted of
various criminal offenses1 in connection with the shooting of Destinee Neal. Dukes
filed a timely motion for new trial, which the trial court denied. Dukes now appeals the
denial of his motion for new trial. For the reasons more particularly explained below,
we affirm.
At the outset, we note that Dukes’ failure to comply with this Court’s rules has
hampered our review of this case. Part One of Dukes’ brief includes a section titled
1
On March 7, 2018, Dukes was convicted of criminal attempt to commit
murder, kidnapping with bodily injury, aggravated battery, aggravated assault,
possession of cocaine with intent to distribute, possession of a controlled substance,
and possession of a firearm during the commission of a felony.
“Statement of Case,” which combines a statement of fact with cursory argument; this
section is largely limited to single-sentence arguments and includes no application of
relevant law to the facts. Part Three, which is titled “Argument,” contains two
subsections, the first of which alludes to the standard of review, while the second is a
one paragraph recapitulation of the arguments presented in Part One; this portion of
the brief is entirely devoid of any meaningful analysis or citation to legal authority. In
fact, Dukes’ brief does not contain a single citation of authority. His brief also fails to
identify the method by which each enumeration of error was preserved for
consideration as required by Court of Appeals Rule 25 (a) (1). To the extent that this
Court can discern Dukes’ arguments, we will address them.
1. Dukes asserts that the trial judge was biased against him. Dukes is not entitled
to relief on this claim.
Dukes argues that “numerous comments were made by the trial judge which
indicated that she had predetermined that he was guilty.” In support of this argument,
Dukes points to statements by the trial court that Dukes could be removed from the
courtroom if he behaved in a manner that the court deemed disruptive. We fail to see
how this admonishment is indicative of bias. A trial judge has the power to maintain
order in the courtroom, Pleas v. State, 268 Ga. 889, 891 (3) (495 SE2d 4) (1998), and
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it is within the bounds of the trial court’s authority to remove a defendant from the
courtroom after warning him or her that continued disruptive behavior will result in
removal. Weaver v. State, 288 Ga. 540, 542 (3) (705 SE2d 627) (2011). Importantly,
this admonition occurred outside the presence of any potential jurors.2 Dukes has failed
to identify any law, judicial canon, or other code of conduct that the trial court violated
in admonishing him regarding his courtroom behavior. Accordingly, this argument is
without merit.
2. Dukes also argues that, because of a conflict between Dukes and trial counsel,
counsel should have been disqualified from representing him. Once again Dukes offers
little in support of this argument and asserts that because “counsel called him a liar in
open court,” both counsel and the trial court should have disqualified counsel from
further representing him.
Dukes’ brief does not explain the reason for his dissatisfaction with trial counsel,
but he does point to a discussion in the transcript between counsel and the trial court
regarding discovery, complaining that he did not have an opportunity to review
discovery provided by the State in his case. Trial counsel denied those claims and
2
See OCGA § 17-8-57 (a) (1) (prohibiting judges from expressing an opinion
to the jury “as to whether a fact at issue has or has not been proved or as to the guilt
of the accused”).
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stated that he provided copies of the discovery to Dukes well in advance of trial and
reviewed the State’s evidence with him in person, discussing trial strategy and
potential defenses.
While the record certainly reflects that there was some disagreement between
Dukes and trial counsel, the trial court was authorized to conclude that Dukes’ request
for a change of counsel was a delay tactic. Dukes does not point to “a conflict of
interest, an irreconcilable conflict, or a complete breakdown in communication
between counsel and client” that would require dismissal of appointed counsel. Bryant
v. State, 268 Ga. 616, 617 (2) n.4 (491 SE2d 320) (1997). “The Sixth Amendment
guarantees effective assistance of counsel, not preferred counsel or counsel with whom
a meaningful relationship can be established.” (Citation and punctuation omitted.)
Wright v. State, 356 Ga. App. 597, 598 (848 SE2d 467) (2020). The record indicates
that trial counsel represented Dukes for approximately 13 months prior to trial but that
Dukes did not attempt to retain new counsel until after the case was set for trial.3
Further, the trial court was authorized to believe trial counsel’s representations
3
Four days before Dukes’ trial began, an attorney appeared in court at the
requests of Dukes’ family but ultimately announced to the court that he would not be
able to represent Dukes.
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regarding their communication and preparation over Dukes’ allegations. Id. at 600 (1).
Accordingly, this argument is without merit.
3. Dukes argues that the entire panel of jurors was tainted after several jurors
expressed possible bias during jury selection and that the proper way to conduct jury
selection is by questioning each juror individually. This argument is without merit.
The management of voir dire is within the trial court’s sound discretion, which
we will not disturb absent abuse. Heng v. State, 251 Ga. App. 274, 279 (4) (554 SE2d
243) (2001). And as this Court explained in Allen v. State, “the right to examine jurors
individually [does] not encompass isolated examination.” 239 Ga. App. 899, 899 (522
SE2d 502) (1999).
“Generally, dismissal of a jury panel is required when, during voir dire, a
prospective juror relays information that is specific to the defendant and germane to
the case for which the defendant is on trial. Dismissal is not required, however, when
the statements establish only gossamer possibilities of prejudice.” (Citation and
punctuation omitted.) Logan v. State, 265 Ga. App. 134, 136 (3) (593 SE2d 14) (2003).
Here, after the trial court read the indictment, a number of jurors responded in the
affirmative when asked whether they harbored any bias for or against the accused and
whether they formed an opinion regarding Dukes’ guilt or innocence. None of those
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jurors provided specific statements regarding Dukes or the case at issue, nor were any
of those jurors seated on the jury. Additionally, the trial court thereafter granted
defense counsel’s request to conduct individual voir dire. Accordingly, Dukes is not
entitled to relief here.
4. Dukes also argues that he was denied a fair trial because he was improperly
placed in solitary confinement. We disagree.
During jury selection, the State alleged Dukes had communicated with a person
outside of the jail in an attempt to influence a witness or witnesses in the case, and the
State requested that Dukes be held in solitary confinement while at the detention
center. Based on those allegations, the court granted the State’s motion and ordered
that Dukes was to have no phone privileges.
Again, Dukes’ argument is limited to a single sentence and his brief does not
offer any reasoned analysis in support of his argument or otherwise explain how being
placed in solitary confinement while at the detention center adversely impacted his
right to a fair trial. Dukes does not argue or otherwise identify anywhere in the record
where he was denied access to his attorney or legal documents or otherwise denied
“meaningful access to the courts.” (Citation and punctuation omitted.) See Blaine v.
State, 305 Ga. 513, 520 (3) (826 SE2d 82) (2019).
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Finally, in addition to being placed in solitary confinement at the detention
center, Dukes was also absent from the courtroom during various stages of the
proceedings; he was held in a holding cell at the courthouse, equipped with audio such
that he could hear the proceedings in the courtroom as they were happening. While a
criminal defendant has a right to be present during all critical stages of the proceedings,
Champ v. State, 310 Ga. 832, 840-841 (2) (b) (854 SE2d 706) (2021), that right
“belongs to the defendant, and he is free to relinquish it if he so chooses,” (Citation and
punctuation omitted.) Brewner v. State, 302 Ga. 6, 11 (II) (804 SE2d 94) (2017). “The
right to be present is waived if the defendant personally waives it in court[.]” (Citation
and punctuation omitted.) Id. Here, after being instructed of his right to be present,
Dukes repeatedly announced in open court, during the course of the trial and in the
presence of counsel, that he did not want to sit with counsel in the courtroom and
elected to sit in a holding cell at the courthouse during the proceedings. To the extent
that Dukes can be understood to be challenging his absence from the courtroom, we
conclude that Dukes voluntarily waived his right to be present during his trial. See
Coley v. State, 272 Ga. App. 446, 449 (3) (612 SE2d 608) (2005) (“[Defendant] was
voluntarily absent from the trial, and thus he waived his right to be present.”).
Judgment affirmed. Miller, P. J., and Hodges, J., concur.
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