MCDUFFIE V. THE STATE OF GEORGIA

The night of Aug. 18, 2004, Officer Kary Benton Sumate was outside the McRae City Police Station when he heard gunshots. Heading in their direction, Shumate saw a gold Jeep Cherokee stopped in the middle of the road with three men standing around it talking to the driver. As Shumate approached, the car sped off. It was later stopped by another officer. The driver was Eugene McDuffie. Soon after, officers found the body of Jurrell “Fat Man” Clark lying in the yard of the Gregg Apartment Complex near the apartment of George “Tony” Harris. According to several witnesses, earlier McDuffie had walked up to Harris’ porch where Harris and another man were sitting. The witnesses said Clark began yelling at McDuffie, claiming McDuffie’s father had stolen his “merchandise,” which is street slang for crack cocaine, from his backyard. While McDuffie admitted his father had taken the drugs, he said he wasn’t responsible for his father’s actions. McDuffie and Clark continued to argue until Clark threatened he was going to get his gun. As Clark turned to walk back toward his car, witnesses testified McDuffie remarked that Clark wasn’t the only person with a gun. While Clark’s back was to him, McDuffie pulled out his gun and fired two to three shots, hitting Clark in the back of his head and the top of his leg. McDuffie later tried to drag Clark’s body around to the back of the apartment complex, but it was too heavy.



McDuffie’s attorney argues that his constitutional rights were violated because his trial attorney provided ineffective assistance of counsel in several ways, and because McDuffie was denied his due process of law when the prosecutor made racist remarks during her closing argument. McDuffie must be given a new trial because his trial attorney failed to “properly challenge the State’s case against him, failed to present evidence to support his sole defense, and failed to adequately consult and advise him,” the attorney argues in briefs. “In this case, trial counsel’s deficiencies undermined the defendant’s opportunity for a fundamentally fair trial with an effective defense. Trial counsel failed to impeach testimony given by the State’s witnesses, failed to require an eyewitness to testify about evidence supporting the defendant’s



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sole defense, and failed to adequately consult the defendant about calling witnesses and his right to testify.” “Trial counsel’s failure to impeach the State’s witnesses was unreasonable in light of the defense’s case theory that the defendant was not the shooter,” McDuffie’s attorney argues. The attorney also contends that under the state Supreme Court’s 1943 decision in Hicks v. State, in closing, the prosecutor made a statement that was “so inflammatory and prejudicial that its injurious effect cannot be eradicated from the minds of the jurors by instruction from the court to disregard it.” Specifically the prosecutor said: “I’m sure you realized while the trial was going on that these witnesses, these young men, live by a different code and set of rules than the rest of us….They value things like having nifty rides painted up with the rims, diamond earrings, gold teeth. These are things they value in their community, in their culture.” McDuffie’s attorney argues that, “While the prosecutor did not use a racial epithet, this allusion is clearly one that calls for ‘us v. them.’ And the ‘them’ are people like Eugene McDuffie, a black man. It is troubling too since the jury was made up of all white citizens.” The attorney argues that the prohibitions in the Hicks decision apply in this case because “there was no evidence regarding cars or physical appearances or even jewelry during the trial.” “So in a case where the jury did not reflect the full makeup of the community, an argument about rims, diamond earrings and gold teeth was a highly probable influence on the jury,” the attorney argues. “As such, Mr. McDuffie didn’t receive a fair trial.” The State argues McDuffie was not denied his constitutional rights, and he received effective assistance of counsel. McDuffie claimed it was error for his attorney to fail to call GBI Agent Spencer Barron to testify for the purpose of showing the witnesses against McDuffie lacked credibility and were not to be believed. But McDuffie’s trial attorney later testified that she believed Barron’s testimony would have done more harm than good to her client. “The general rule in this regard is that whether or not to call a witness is within the province of trial counsel after consultation with their client,” the State argues in briefs. “If those decisions are reasonable, they do not constitute ineffective assistance of counsel.” Similarly, the trial attorney made a “strategic decision not to compel” the testimony of a woman who “was screaming and incoherent and refused to testify during the trial” out of fear. The trial attorney said the woman’s testimony at that point would have been unpredictable, and even if the woman testified that McDuffie was not the shooter, the attorney worried her testimony could have been seriously challenged during cross-examination. Finally, while every defendant has a right to testify in his own defense, “There is no right to be continuously informed of one’s right to testify, either by the court or by counsel,” the State contends. As to the prosecutor’s closing argument, “Under most circumstances, the statements complained of are those that are referring to or otherwise characterizing the defendant. Here, however, the complained of statement is in reference to the State’s witnesses.” The defense attorney argued in her closing argument that the “heart” of the State’s case was the four witnesses who testified at trial that McDuffie was the shooter, but their testimony was not credible, either because they had given different statements earlier or because they had denied knowing about the shooting. The State prosecutor’s statement was an attempt to describe to the jury why these witnesses may not immediately have reported their knowledge of the crime, the State argues. “Even assuming the statement was improperly prejudicial, it is a far cry to say it prejudiced the defendant when [it was] in reference to the State’s witnesses and not the defendant.”

A jury convicted McDuffie of malice murder, and he was sentenced to life in prison.