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Final Copy 290 Ga. 486 S11A1775. DUKES v. THE STATE.

MELTON, Justice. Following his conviction for the malice murder, felony murder, and aggravated assault of Demetric Johnson, Brian Dukes appeals, contending that the trial court erred by admitting certain evidence and by giving an improper jury instruction.1 For the reasons set forth below, we affirm. 1. Viewed in the light most favorable to the verdict, the record shows that, on the night of September 8, 2006, Dukes watched movies with Charles Gordon, Constance Jamison, and Johnson at Gordon's apartment. At one point, Gordon, who was sitting in the living room with Jamison, told Dukes to go in the kitchen On December 4, 2006, Dukes was indicted for malice murder, felony murder, and aggravated assault. Following a jury trial, Dukes was convicted on all counts, and he was sentenced to life imprisonment for malice murder. The conviction for felony murder was vacated by operation of law, see Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993), and the remaining conviction for aggravated assault was merged. On April 7, 2009, Dukes filed a motion for new trial, amended on January 7, 2011 and January 20, 2011, and the trial court denied the motion on April 6, 2011. Following the filing of a timely notice of appeal, Dukes' case was docketed to the September 2011 term of this Court and submitted for decision on the briefs.
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and help himself to some food. Gordon noticed that Dukes was wearing a black glove with a blade sticking out between his fingers as he went into the kitchen, where Johnson was at the moment. Shortly thereafter, Dukes and Johnson began fighting in the kitchen. The fight then led them into the living room, where Dukes was hitting and stabbing Johnson. Gordon witnessed the altercation as it happened in the living room. Frightened by the fight, Gordon and Jamison ran out of the apartment. Dukes then left, and Johnson was discovered with 43 stab wounds, from which he died. At about 3:00 a.m. that night, Dukes showed up at his mother's house wearing only jockey shorts, socks and slippers. Dukes told her that he ran there from the home he shared with his brother, Oliver, because his girlfriend had challenged him to do it. Dukes also told his mother that he was thinking of reenlisting in the Army because he might as well get paid for killing instead of doing it for free. The next morning police arrested Dukes at his mother's house. In October 2006, Dukes told a cellmate, Rintu Cunningham, that he killed Johnson with a knife at the apartment of a guy named Charles. Dukes further explained to Cunningham that, after the murder, he fled to his mother's house through the woods and discarded the knife and glove along the way. Dukes
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stated that he also threw away all of his bloody clothing and showed up at his mother's house in just boxers. This evidence was sufficient to enable the jury to determine that Dukes was guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Dukes contends that the trial court erred by improperly defining "malice aforethought" in response to a request from the jury for a recharge on this concept during deliberations. We disagree. It is undisputed that, in its initial charge to the jury, the trial court gave a correct and detailed charge on malice murder to the jury. Nonetheless, during deliberations, the jury requested a recharge on the concept of "malice aforethought." After lengthy discussion, the trial court instructed: Malice aforethought exists where the person doing the act which causes death has an intention to cause death. Premeditation, as the term is usually used, means a prior determination or plan to commit an act. Premeditation is not an element of the offense of murder and therefore need not be proven by the State to establish malice aforethought. However, any evidence of premeditation, or lack of it, may be considered by you insofar as it relates to the existence, or nonexistence, of malice at the time of the alleged killing. Dukes now argues that this instruction confused the jury by giving undue

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emphasis to the concept of premeditation. There is no merit to this argument. As an initial matter, the trial court's instruction was based on the pattern charge and was legally correct. See OCGA

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