Dolensek v. State, 558 S.E.2d 713 (Ga. 2002). · Go Syfert
Dolensek v. State, 558 S.E.2d 713 (Ga. 2002). Cases Citing This Book View Copy Cite
47 citation events (47 in the last 25 years) across 2 distinct courts.
Strongest positive: Johnson v. State (ga, 2024-08-13)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (rule) Johnson v. State (2×)
Ga. · 2024 · confidence medium
See Stepp-McCommons, 309 Ga. at 403-404 (2) (a) (no error in 20 omitting accident instruction where defendant testified he shot the victim in self-defense without intending to “murder” the victim); Morris v. State, 303 Ga. 192, 199-200 (V) (C) ( 811 SE2d 321 ) (2018) (accident instruction unwarranted when evidence supported only a self-defense instruction); Dolensek v. State, 274 Ga. 678, 681 (6) ( 558 SE2d 713 ) (2002) (no error in omitting accident instruction when evidence demonstrated only that the defendant acted intentionally “to defend himself and to scare off his attackers”). 2…
discussed Cited as authority (rule) Hill v. State
Ga. Ct. App. · 2009 · confidence medium
Dolensek v. State, 274 Ga. 678, 681 (6) ( 558 SE2d 713 ) (2002) (the defendant admitted that he intentionally shot the victim); Jenkins v. State, 270 Ga. 607, 608 (2) (a) ( 512 SE2d 269 ) (1999) (the victim sustained multiple stab wounds to the chest, neck, and head, and the defendant continued to severely beat the victim after a police officer ordered him to stop); Shorter u.
cited Cited as authority (rule) Williams v. State
Ga. Ct. App. · 2008 · confidence medium
Additionally, there must be evidence showing that the “declarant spoke from personal knowledge.” (Citations and punctuation omitted.) Dolensek v. State, 274 Ga. 678, 679 (2) ( 558 SE2d 713 ) (2002).
discussed Cited as authority (rule) Miller v. State
Ga. · 2008 · confidence medium
The case was docketed in this Court on August 17,2007, and submitted for decision on the briefs on October 8, 2007. 2 Jackson v. Virginia, 443 U. S. 307, 309 (99 SC 2781, 61 LE2d 560) (1979); In re Wmship, 397 U. S. 358, 361-364 (90 SC 1068, 25 LE2d 368) (1970). 3 Tuff v. State, 278 Ga. 91, 92-93 ( 597 SE2d 328 ) (2004); Chapel v. State, 270 Ga. 151, 154-156 ( 510 SE2d 802 ) (1998). 4 Tuff, 278 Ga. at 93 ; Dolensek v. State, 274 Ga. 678, 680 ( 558 SE2d 713 ) (2002). 5 Tuff, 278 Ga. at 93 ; Ward v. State, 271 Ga. 648, 650 ( 520 SE2d 205 ) (1999). 6 See Bryant v. State, 282 Ga. 631,638 ( 651 SE2…
cited Cited as authority (rule) Kuykendoll v. State
Ga. Ct. App. · 2006 · confidence medium
Dolensek v. State, 274 Ga. 678, 679 (2) ( 558 SE2d 713 ) (2002).
discussed Cited as authority (rule) Quillian v. State
Ga. · 2005 · confidence medium
Dolensek v. State, 274 Ga. 678, 680 (3) ( 558 SE2d 713 ) (2002). “ ‘To make this prima facie showing, the defendant must show that the victim was the aggressor, the victim assaulted the defendant, and the defendant was honestly trying to defend himself....’ [Cit.]” Knight v. State, supra at 561 (4).
discussed Cited as authority (rule) Brown v. State
Ga. · 2004 · confidence medium
Ross v. State, 276 Ga. 747, 748 (2) ( 583 SE2d 850 ) (2003); Spencer v. State, 275 Ga. 192, 193 (3) ( 563 SE2d 839 ) (2002); Dolensek v. State, 274 Ga. 678, 681 ( 558 SE2d 713 ) (2002); Oliver v. State, 274 Ga. 539, 540 ( 554 SE2d 474 ) (2001).
discussed Cited as authority (rule) Tuff v. State
Ga. · 2004 · confidence medium
The record was certified on December 2,2003, the appeal was docketed on December 10, 2003, and submitted for decision on briefs. 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 Wall v. State, 269 Ga. 506, 509 ( 500 SE2d 904 ) (1998). 4 Wall, 269 Ga. at 508, n. 3 . 5 Myers v. State, 275 Ga. 709, 712 ( 572 SE2d 606 ) (2002) (where testimony concerning prior difficulties is hearsay, it is not admissible unless it meets an exception to the rule against the admission of hearsay). 6 Chapel v. State, 270 Ga. 151, 154-156 ( 510 SE2d 802 ) (1998). 7 Dolensek v. State, 274 Ga. 6…
discussed Cited as authority (rule) Sweney v. State
Ga. Ct. App. · 2003 · confidence medium
Eldridge and Mikell, JJ, concur. 1 Dolensek v. State, 274 Ga. 678, 679 (2) ( 558 SE2d 713 ) (2002). 2 See Jackson v. State, 255 Ga. App. 279, 282 (2) ( 564 SE2d 865 ) (2002). 3 Jackson, supra; Moore v. State, 217 Ga. App. 207, 210 (5) ( 456 SE2d 708 ) (1995). 4 Cook v. State, 273 Ga. 574, 575 (2) ( 543 SE2d 701 ) (2001). 5 Court of Appeals Rule 27 (c) (2). 6 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Bollinger v. State, 259 Ga. App. 102, 104 (1) ( 576 SE2d 80 ) (2003); Strange v. State, 250 Ga. App. 735, 736 ( 552 SE2d 899 ) (2001).
discussed Cited as authority (rule) Ross v. State
Ga. · 2003 · confidence medium
Marshall v. State, supra at 741 (2); Chapman v. State, 275 Ga. 314, 316 (3) ( 565 SE2d 442 ) (2002); Spencer v. State, 275 Ga. 192, 193 (3) ( 563 SE2d 839 ) (2002); Dolensek v. State, 274 Ga. 678, 681 (5) ( 558 SE2d 713 ) (2002); Oliver v. State, 274 Ga. 539, 540 (2) ( 554 SE2d 474 ) (2001). “ ‘Unlike malice murder, felony murder does not require intent to kill; rather, the defendant only must have intended to commit the underlying felony.
discussed Cited as authority (rule) Morgan v. State
Ga. · 2002 · confidence medium
Moreover, any Harris error would be harmless where, as here, the jury acquits the defendant of malice murder and convicts him of felony murder instead. *226 Dolensek v. State, 274 Ga. 678, 681 (5) ( 558 SE2d 713 ) (2002). 8.
discussed Cited as authority (rule) Spencer v. State
Ga. · 2002 · confidence medium
The appeal was docketed in this Court on December 7, 2001, and was orally argued on March 11, 2002. 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 Washington v. State, 274 Ga. 428, 430 ( 554 SE2d 173 ) (2001). 4 Id. 5 273 Ga. 608, 610 ( 543 SE2d 716 ) (2001). 6 Dolensek v. State, 274 Ga. 678, 681 ( 558 SE2d 713 ) (2002); Oliver v. State, 274 Ga. 539, 540 ( 554 SE2d 474 ) (2001).
discussed Cited "see" Morris v. State (2×)
Ga. · 2018 · signal: see · confidence high
See Dolensek v. State , 274 Ga. 678 , 680, 558 S.E.2d 713 (2002) ; Shorter v. State , 270 Ga. 280 , 280, 507 S.E.2d 757 (1998).
discussed Cited "see" Morris v. State (2×)
Ga. · 2018 · signal: see · confidence high
See Dolensek v. State, 274 Ga. 678, 680 ( 558 SE2d 713 ) (2002); Shorter v. State, 270 Ga. 280, 280 ( 507 SE2d 757 ) (1998).
examined Cited "see" Cuyuch v. State (4×)
Ga. Ct. App. · 2007 · signal: see · confidence high
See Dolensek v. State, 274 Ga. 678, 679 (2), 558 S.E.2d 713 (2002).
discussed Cited "see" Orr v. State
Ga. · 2006 · signal: see · confidence high
See Pitts v. State, 280 Ga. 288 ( 627 SE2d 17 ) (2006) (non-testimonial 911 recordings properly admitted as res gestae). 4 Dolensek v. State, 274 Ga. 678, 679 ( 588 SE2d 713 ) (2002). 5 Id. at 679 (quoting Freeman v. Lambert, 268 Ga. App. 751, 752-753 ( 309 SE2d 873 ) (1983)). 6 Andrews v. State, 249 Ga. 223 ( 290 SE2d 71 ) (1982). 7 For example, Ferguson, who had prior convictions for giving false information to police officers, testified that only Orr fired a gun during the crime.
discussed Cited "see, e.g." Key v. State (2×)
Ga. Ct. App. · 2008 · signal: compare · confidence medium
Compare Dolensek v. State, 274 Ga. 678, 679 (2) ( 558 SE2d 713 ) (2002).
Retrieving the full opinion text from the archive…
Dolensek
v.
the State
S01A1610.
Supreme Court of Georgia.
Jan 14, 2002.
558 S.E.2d 713
2002 Ga. LEXIS 24
Sharon L. Hopkins, for appellant., Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, Thurbert E. Baker, Attorney General, Madonna M. Heinemeyer, Assistant Attorney General, for appellee.
Carley.
Cited by 22 opinions  |  Published
Carley, Justice.

Jason Marcus Dolensek was found guilty of felony murder, aggravated assault, and one count of possession of a firearm during the commission of a felony. The trial court correctly treated the underlying felony of aggravated assault as having “merged, as a matter of law, into the felony murder [so that] a separate sentence for that underlying felony [was] not . . . authorized. [Cit.]” Malcolm v. State, 263 Ga. 369, 372 (5) (434 SE2d 479) (1993). Therefore, the trial court entered judgments of conviction and sentenced Dolensek to life imprisonment for felony murder and a consecutive term of years for firearm possession. A motion for new trial was denied, and he appeals. [1]

1. Construed in support of the verdict, the evidence shows that Dolensek and several friends drove to an apartment complex and there confronted the victim and a group of his friends. The confrontation stemmed from a growing conflict over the termination of a romantic relationship between a man in the victim’s group, Max Wu, and a woman in Dolensek’s group. After fighting began, Dolensek fired a gun several times. One shot struck and killed the victim, who did not have a gun and did not make any threats to use a weapon. When police arrived, Dolensek was still at the scene and admitted[*679] that he shot the victim, but asserted that he did so in self-defense. The evidence was sufficient to authorize a rational trier of fact to find Dolensek guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Knight v. State, 271 Ga. 557, 558 (1) (521 SE2d 819) (1999).

2. Dolensek contends that the trial court erred in excluding a portion of a 911 tape from evidence. The tape contains Kimberly James’ description of what she was seeing from her apartment window. Near the end of the tape, some 10 to 12 minutes after the shooting, however, is the background statement of her brother-in-law Robert James indicating that someone just left the scene with a gun. Defense counsel asserted that Mr. James’ statement comes within the res gestae and necessity exceptions to the hearsay rule, but the trial court ruled that it was inadmissible hearsay.

Statements made by bystanders are admissible as part of the res gestae to throw light on an occurrence, but only if they are clearly free from all suspicion of device or afterthought and are not merely the expression of opinions or conclusions. OCGA § 24-3-3; Henderson v. State, 210 Ga. 680, 682-683 (2) (82 SE2d 638) (1954).

“The res gestae exception . . . dispenses with the presence of the declarant in court and with the administering of an oath, but it cannot properly dispense with the requirement that in some way, at least, and with some degree of persuasive force, it must appear that he was in reality a witness to the thing which he declared.” [Cit.] . . . Absent evidence showing that the declarant spoke from personal knowledge, the statement is reduced to a mere expression of an opinion or conclusion, which is inadmissible. [Cits.]

Freeman v. Lambert, 168 Ga. App. 751, 752-753 (1) (309 SE2d 873) (1983). See also A Child’s World v. Lane, 171 Ga. App. 438, 441 (4) (319 SE2d 898) (1984). The transcript indicates some uncertainty as to whether Mr. James’ statement was based on his personal knowledge. Ms. James was looking at the crime scene, but did not see another gun herself, and testified that it was possible that Mr. James heard someone in the parking lot claiming to have seen a gun. Other circumstances also support the trial court’s ruling. Mr. James’ statement involved the possession of a weapon by an unidentified person at a time well after completion of the crime itself. See Felder v. State, 270 Ga. 641, 645 (8) (514 SE2d 416) (1999); Jones v. State, 167 Ga. App. 847, 848-849 (3) (307 SE2d 735) (1983). The determination of admissibility under the res gestae exception to the hearsay rule is left to the sound discretion of the trial court and will not be disturbed on appeal unless that determination is clearly erroneous. Andrews v. [*680] State, 249 Ga. 223, 227-228 (290 SE2d 71) (1982). We find that the trial court’s ruling that Mr. James’ statement was inadmissible under the res gestae exception was not clearly erroneous.

In seeking admission of Mr. James’ statement, Dolensek also relied on the necessity exception. The State conceded that the declar-ant was unavailable, but argued that there were not sufficient indi-cia of reliability. The determination under the necessity exception of whether the testimony was accompanied by particular guarantees of trustworthiness is, like the applicability of the res gestae exception, a matter for the trial court’s discretion and will be disturbed only if there is an abuse of that discretion. Thomas v. State, 274 Ga. 156, 162-163 (8) (549 SE2d 359) (2001); White v. State, 273 Ga. 787, 790 (3) (546 SE2d 514) (2001). As noted above, Mr. James’ statement may itself have been based on hearsay. Furthermore, he gave a subsequent written statement to police which makes no mention of anyone leaving the scene with a gun. Accordingly, we find that the exclusion of Mr. James’ statement on the 911 tape was not an abuse of the trial court’s discretion. See McCulley v. State, 273 Ga. 40, 42 (2) (a) (537 SE2d 340) (2000).

3. Dolensek urges that the trial court erred in prohibiting him from presenting evidence of threats Mr. Wu made against others prior to the crime. Relying on the doctrine of transferred intent in the context of self-defense, Dolensek argues that the evidence was admissible to show the reasonableness of his belief that Mr. Wu meant to cause him deadly harm. See McMichen v. State, 265 Ga. 598, 610 (20) (458 SE2d 833) (1995). In order to introduce such evidence, however, Dolensek initially had to establish a justification defense as to which the prior threats of Mr. Wu would be relevant. See Johnson v. State, 270 Ga. 234, 236 (3) (507 SE2d 737) (1998). To make a prima facie showing of self-defense under the doctrine of transferred intent, Dolensek would have to show that Mr. Wu was an aggressor who assaulted him and that, although he actually shot the victim, he was honestly trying to defend himself from Mr. Wu. See Stobbart v. State, 272 Ga. 608, 610 (2) (533 SE2d 379) (2000). However, Dolensek did not testify either that Mr. Wu attacked him or that he feared Mr. Wu. Indeed, other testimony demonstrated that Mr. Wu was part of a different group of the victim’s friends. That group did not attack Dolensek, but was involved in a separate altercation with a friend of his. Thus, the trial court correctly excluded evidence of the prior threats by Mr. Wu.

4. Dolensek also enumerates as error the trial court’s exclusion of evidence of pre-trial threats made subsequent to the crime by Mr. Wu against friends of Dolensek who were called as witnesses by the State. This evidence is no more relevant to the justification defense than are the prior threats of Mr. Wu discussed in Division 3. See[*681] Daniel v. State, 205 Ga. App. 737, 738 (3) (423 SE2d 432) (1992). Dolensek generally argues that Mr. Wu’s subsequent threats, made 11 months before trial, impact the credibility of the witnesses who were threatened. However, Dolensek has not shown how Mr. Wu’s conduct was detrimental to his defense. See generally Williams v. State, 201 Ga. App. 866, 867 (2) (412 SE2d 586) (1991); Daniel v. State, 196 Ga. App. 160, 162 (4) (395 SE2d 638) (1990). The preexisting animosity between Mr. Wu and Dolensek and his friends was uncontroverted. There was no evidence that the testimony of the State’s witnesses who were allegedly intimidated by Mr. Wu was inconsistent with any pre-trial statements to the police. The trial court properly held that this line of inquiry was not relevant to a determination of credibility.

Decided January 14, 2002. Sharon L. Hopkins, for appellant. Daniel J. Porter, District Attorney, David K. Keeton, Assistant [*682] District Attorney, Thurbert E. Baker, Attorney General, Madonna M. Heinemeyer, Assistant Attorney General, for appellee.

[*681] 5. Citing our recent decision in Harris v. State, 273 Ga. 608, 610 (2) (543 SE2d 716) (2001), Dolensek complains of the trial court’s charge to the jury that it may infer the intent to kill from his use of a deadly weapon. Although this charge was erroneous under Harris, the error was harmless because the jury acquitted Dolensek “of malice murder and, instead, convicted him of felony murder. Unlike malice murder, felony murder does not require intent to kill; rather, the defendant only must have intended to commit the underlying felony. [Cits.]” Oliver v. State, 274 Ga. 539, 540 (2) (554 SE2d 474) (2001).

6. Relying on Turner v. State, 262 Ga. 359 (2) (418 SE2d 52) (1992), Dolensek also contends that the trial court erred by refusing to instruct the jury on the defense of accident. Although, under Turner, instructions on both accident and self-defense may be appropriate where the facts support inferences as to both, the evidence presented at trial demonstrated that Dolensek intentionally fired his gun. Shorter v. State, 270 Ga. 280 (2) (507 SE2d 757) (1998). According to his own testimony, he fired his weapon to defend himself and to scare off his attackers. “Such an intentional firing does not invoke the legal defense of accident. [Cits.]” Berry v. State, 267 Ga. 476, 478 (3) (480 SE2d 32) (1997). Because the evidence presented on Dolen-sek’s behalf failed to raise the defense of accident, the trial court did not err by refusing to give a charge on that defense. Shorter v. State, supra; Berry v. State, supra.

Judgments affirmed.

All the Justices concur.
1

The crimes occurred on April 6,1998. The grand jury returned the indictment on January 6,1999. The jury found Dolensek guilty on March 11,1999, and the trial court entered the judgments of conviction and sentences on March 16, 1999. Dolensek filed a motion for new trial on March 30,1999, and amended it on August 22, 2000. The trial court denied that motion on September 18, 2000, and Dolensek filed a notice of appeal on October 16, 2000. The case was docketed in this Court on July 27, 2001 and submitted for decision on September 17, 2001.