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DUNCAN v. THE STATE

Supreme Court of Georgia1999-04-27No. S99A0107
271 Ga. 16515 S.E.2d 388

Summary

Holding. The judgment convicting Duncan of malice murder and sentencing him to life imprisonment is affirmed, and his motion for new trial is denied.

Reginald Duncan was convicted of malice murder in the death of Leroy Dixon, who was shot in the back while reaching toward his car. The evidence at trial established that Duncan obtained a pistol from a nearby house during an argument about drugs and fired two shots at the victim. Duncan later confessed to police that he shot the victim, though he claimed self-defense based on an alleged knife threat. The court found the prosecution presented sufficient evidence for a rational jury to convict beyond a reasonable doubt.

Duncan challenged his conviction on three grounds. First, he argued the trial court erred by allowing the prosecutor to comment during closing argument on his failure to call certain witnesses to testify. The court rejected this challenge because evidence had been presented identifying potential witnesses to the shooting who were available to testify. Second, Duncan contended that a crime lab blood-alcohol report showing the victim was intoxicated should have been admitted as a business record exception to hearsay, but the court found no proper foundation was established and the report was not included in the appellate record for review.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Sufficiency of evidence to support murder conviction
  • Propriety of prosecutor's closing argument comment on defendant's failure to call witnesses
  • Admissibility of crime lab blood-alcohol test results as business records

Procedural posture

Duncan appealed from the trial court's denial of his motion for new trial following his conviction for malice murder.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Hunstein, Justice.

Reginald Duncan was convicted of the malice murder of Leroy Dixon, a/k/a Bo Diddly, who died as a result of a gunshot wound inflicted by Duncan. Duncan was sentenced to life imprisonment. He appeals from the denial of his motion for new trial. We affirm.

1. The jury was authorized to find that on January 11, 1995 Duncan and Bo Diddly were involved in an argument about drugs and that during the argument Duncan went to a friends nearby house and obtained a .380 caliber pistol. When Duncan returned he fired two shots at Bo Diddly who was reaching into his car to unlock his car door. Bo Diddly was killed by a bullet which entered his back, passed through his lung and heart and lodged in his bicep. Duncan fled the scene and was later arrested and placed in a jail cell with an acquaintance, Addison. Duncan told Addison that he killed Bo Diddly and also informed him of the whereabouts of the concealed murder weapon. Duncan gave a statement to police in which he confessed that he shot Bo Diddly, although he claimed it was in self-defense because Bo Diddly had threatened him with a knife.

Viewed in a light most favorable to the verdict, we find this evidence sufficient to enable a rational trier of fact to find Duncan guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Duncan contends the trial court erred in refusing to grant a mistrial after the prosecutor commented during closing argument on Duncan’s failure to produce a witness. A prosecutor is permitted to comment during closing argument on the failure of the defendant to produce a certain witness as long as the argument is derived from evidence properly before the fact finder. Morgan v. State, 267 Ga. 203, 206 (3) (476 SE2d 747) (1996). On cross-examination, a GBI agent identified Addison and another individual, Adrian Byrd, as individuals who witnessed the shooting. Accordingly, there was evidence before the jury of the existence of a witness with knowledge of material and relevant facts who was not called as a witness and it was proper for the State to comment on Duncan’s failure to call such witness to testify at trial.

3. Parian, a GBI firearms expert, testified about the physical evidence relating to the gunshot which killed the victim. On cross-examination, Duncan’s counsel sought to question Parian about the contents of a GBI crime lab report containing results of a blood test administered to Bo Diddly which showed that he was intoxicated at the time he was shot. Duncan’s claim that the blood-alcohol test results should have been admitted under the business records exception to the hearsay rule lacks merit because there is nothing in the record to indicate that Parian was qualified to relate the facts upon which the entry of the blood-alcohol test results were made. Generally, “those portions of business records which contain conclusions, opinions, estimates and impressions of third parties who are not before the court are not admissible.” Malcolm v. State, 263 Ga. 369, 370 (3) (434 SE2d 479) (1993). Assuming arguendo that Duncan hac laid a proper foundation for the introduction of this report, the result! would not change because we cannot review any alleged error about) the admissibility of a report which is not included in the appellate record. Id. at 371 (3).

Decided April 27, 1999.

David C. Walker, for appellant.

Dupont K. Cheney, District Attorney, James S. Archer, Assistant I District Attorney, Thurbert E. Baker, Attorney General, Daniel G. f Ashburn, Assistant Attorney General, for appellee.

Judgment affirmed.

All the Justices concur.

The homicide occurred on January 11,1995. Duncan was indicted in Bryan County on November 6, 1995 on the charge of murder. He was found guilty on June 27, 1996 and sentenced to life imprisonment. His motion for new trial was filed July 3, 1996 and denied on August 18, 1998. A notice of appeal was filed on September 9, 1998. The appeal was docketed in this Court on October 14,1998 and submitted for decision without oral argument.

The prosecutor stated: “[The incident] occurred at a time when there’s the defendant there and two of his buddies . . . Willie Addison and another person whom [Duncan’s attorney] questioned [the police investigator] about, as if he had some great information that he would be willing to impart to you in this trial. He was not called by the defense. The man just disappeared. I submit to you that these were the defendant’s Mends who would say just about anything for him.”