301 Ga. 397
Ga.2017Background
- On June 28, 2011 Angelo Larocca was shot and killed after arranging to buy Xanax; shell casings and a cigarette butt with Davis’s DNA were found at the scene. Brandon Mosley (co-participant) later admitted shooting someone; Mosley identified himself as “ABT Stunna” in a post-shooting text.
- Davis sold Xanax to the victim shortly before the murder, had multiple phone contacts with the victim the day of the killing, and was connected by witnesses and cell‑phone evidence to the meeting location.
- Davis voluntarily met with police, rode to the station unhandcuffed, gave a videotaped statement and was not arrested until nearly two weeks later; he also voluntarily surrendered a cell phone that was later searched under warrant.
- A Gwinnett County grand jury indicted Davis on malice murder, two counts of felony murder, armed robbery, aggravated assault, and two firearm‑during‑felony counts; malice murder was nolle prossed before trial. A jury convicted Davis of two counts of felony murder (same victim), armed robbery, aggravated assault, and two firearm counts; trial court later merged some counts and imposed life plus five years.
- On appeal Davis raised multiple claims: sufficiency of the evidence; admission of Mosley’s gang evidence; admission of similar‑transaction evidence; denial of continuance to obtain retained counsel; variance/indictment/ jury instructions regarding firearm‑during‑felony; ineffective assistance of counsel; and sentencing issues. The Supreme Court affirmed convictions in part, vacated duplicate felony‑murder sentencing and remanded for resentencing.
Issues
| Issue | Davis’s Argument | State’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for convictions | Evidence was inadequate to prove he was a principal or party to murder/robbery | Evidence of phone contacts, scene evidence, Mosley’s admissions, and Davis’ conduct made guilt provable | Affirmed: evidence sufficient under Jackson v. Virginia |
| Admission of Mosley’s gang evidence | Gang affiliation prejudicial and irrelevant; improper absent gang charge | Relevant to identity, post‑murder communications, and foreseeable consequences of joint criminal activity | No abuse of discretion; admission proper and harmless given strong case |
| Similar‑transaction / prior 9mm evidence | Prior 9mm references remote and prejudicial | Probative to show access to weapon and context; any error harmless | Any error harmless in light of strong evidence |
| Denial of continuance for retained counsel | Denial violated right to counsel of choice; family had engaged prospective counsel | Prospective counsel only gave conditional, late commitment; trial readiness favored no continuance | No abuse of discretion; defendant failed to show reasonable diligence |
| Variance re: firearm‑during‑felony predicate (malice vs. felony murder) and jury instruction | Count charged firearm possession during malice murder (dismissed); jury could convict on uncharged predicate | Redacted indictment and instructions tied possession count to felony murder actually tried; no surprise or prejudice | No reversible variance or instructional error; conviction stands |
| Ineffective assistance claims (failure to suppress statement/cell data, fail to object to expert, gang evidence) | Counsel should have challenged voluntariness, moved to suppress phone/searches, and objected to expert/gang testimony | Statements were voluntary/non‑custodial; phone voluntarily surrendered and then preserved; counsel not deficient because motions would be futile or lack of standing; no prejudice | Strickland prongs not met; counsel not ineffective |
| Sentencing duplication on two felony‑murder convictions | Not raised as such but sentencing on both counts improper because same victim | — | Vacated duplicate felony‑murder sentence and remanded for resentencing (trial court to select on which felony murder to sentence) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (evidence insufficient only if no rational trier could convict)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
- Flowers v. State, 275 Ga. 592 (right to counsel of choice; reasonable diligence standard)
- Williams v. State, 261 Ga. 640 (similar transaction admissibility standard)
- Wolfe v. State, 273 Ga. 670 (admission of gang evidence not dependent on gang charge)
- Cowart v. State, 294 Ga. 333 (vacatur of duplicate felony‑murder convictions)