DAVENPORT v. THE STATE
S20A0035
Supreme Court of Georgia
309 Ga. 385
BETHEL, Justice.
FINAL COPY
Briаn Colby Davenport appeals his convictions for malice murder and other crimes in connection with the death of Debora Lynn Abney.1 Davenport contends that the evidence was
Viewed in the light most favorable to the jury‘s verdicts,2 the evidence shows that on March 11, 2016, deputies from the Catoosa County Sheriff‘s office responded to a reported shooting. Upon
Davenport initially told officers that he and Abney had been in court earlier that day for a Department of Family and Children Services (“DFCS“) hearing concerning their two younger children and that Abney was upset after the hearing. After leaving the courthouse, they stopped at a few locations to purchase alcohol and items to make sandwiches. The two then went on a picnic, where Abney began drinking. Davenport told officers that Abney shot herself when he was standing at the trunk of the vehicle. He said that he ran around the vehicle, saw that Abney had shot herself, and called his mother (who called another person who then called 911).
A GBI agent testified that when he arrived on the scene, he observed Davenport wiping his head, neck, and torso with a cloth. He did not observe any blood on Davenport, but did notice drops of
During his interview with police, after being given Miranda warnings,4 Davenport initially stated that upon seeing that Abney had shot herself and was bleeding, he took off running. But after being confronted with the finding of mud in the barrel of the gun,
Two of Abney‘s daughters testified about witnessing Davenport strike Abney and, in one instance, observed Davenport holding a gun to Abney‘s head. A police officer testified that he had previously responded to a domestic violence incident between Davenport and Abney. A DFCS caseworker who had been working with the family testified that she observed recent injuries to Abney on one visit, which Abney told her resulted from Davenport hitting and biting her, and that on another occasion, Abney called her and confided in
1.
Davenport argues that the evidence is legally insufficient to
When we consider the sufficiency of the evidence as a matter of federal due process, we view the evidence in the light most favorable to the verdict and evaluate whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S. Ct. 2781, 61 L. Ed. 2d 560) (1979). “Under this review, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact.” (Citation and punctuation omitted.) Mims v. State, 304 Ga. 851, 853 (1) (a) (823 SE2d 325) (2019). Further, as a matter of Georgia statutory law,
Here, Davenport‘s own expert witness testified that it was unlikely that Abney shot herself in the back of the head. The State‘s forensic pathology expert and crime scene investigation expert both determined the case to be a homicide rather than a suicide. Further, numerous pieces of evidence suggested that the crime scene had been staged by the time law enforcement arrived: the gun was found in Abney‘s left hand even though she was right-handed, mud and
2.
Davenport next argues that the trial court committed a harmful error when it permitted the State, pursuant to
Assuming without deciding that the trial court abused its discretion in admitting the challenged evidence, any error was harmless and does not require reversal. “A nonconstitutional error is harmless if it is highly probable that the error did not contribute to the verdict.” Adkins v. State, 301 Ga. 153, 158 (3) (a) (800 SE2d 341) (2017). Here, the evidence presented against Davenport, though circumstantial, was very strong. As noted above, the forensic evidence indicated that Davenport shot Abney, attempted to cover up the crime, and then fabricated a story to the police that Abney killed herself. Additionally, substantial evidence was introduced detailing Davenport‘s history of violence against Abney, which included threatening her with a firearm. Thus, considering the evidence presented at trial and weighing it as reasonable jurors would, we conclude that it is highly probable the outcome of the trial would have been no different had the trial court excluded evidence
3.
Lastly, Davenport argues that the trial court abused its discretion in admitting hearsay evidence of prior difficulties between him and Abney.7 We disagree.
The State filed a notice of intent to introduce residual hearsay testimony pursuant to
A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.
The State offered statements Abney made about Davenport‘s threats and physical abuse to her mother and the DFCS caseworker
cannot say that statements from a wife to her friends or family . . . which describe acts of domestic violence, do not, in fact, bear an increased level of trustworthiness. Likewise, in light of the often-secretive nature of domestic violence, we can also envision that such statements might be highly probative.
Smart v. State, 299 Ga. 414, 422 (3) (788 SE2d 442) (2016). See also Jacobs v. State, 303 Ga. 245, 251 (2) (811 SE2d 372) (2018) (concluding that the trial court did not abuse its discretion in determining that the statements from the victim to her friends and her own text messages describing the nature of her abusive relationship with the defendant prior to her death had the requisite exceptional guarantees of trustworthiness to be admissible at trial pursuant to Rule 807). Moreover, to the extent Abney‘s daughter
4.
In Division 1 of this opinion, we employed our customary practice of determining sua sponte whether sufficient evidence supported all of Davenport‘s convictions as a matter of constitutional due process, even though he raised a sufficiency challenge only to his murder conviction. Wе have exercised our discretion to decide sufficiency issues sua sponte in murder appeals for decades. Today we announce that we will end that practice beginning with cases docketed to the term of court that begins in December 2020. The Court will begin assigning cases to the December Term on August 3, 2020.
Our long practice of deciding unraised sufficiency claims has been purely an exercise of discretion; no law requires it. Over the years, reasons to change course have become clear, and the only real reason to continue our practice is the length of time we have followed it. That is not enough.
(a) Sua sponte sufficiency review appears to have begun decades
Some background is helpful to understanding how we reached this point, although a definitive answer appears lost to time. As early as 1968, we reviewed sua sponte the constitutional sufficiency of the evidence as to at least some convictions for which a sentence of death was imposed (although we did not explain why we did so). See Dixon v. State, 224 Ga. 636, 637 (1) (163 SE2d 737) (1968) (although no argument was made in death penalty case as to sufficiency of the evidence, and thus the issue was abandoned, “we have studied the evidence and find that it discloses an extremely brutal murder, and that the jury was authorized to find that the defendant was the perpetrator of the crime“). The next year, we again reviewed sua sponte sufficiency in a death penalty case, citing only Dixon in stating that we felt “constrained” to do so. Jackson v. State, 225 Ga. 790, 794 (7) (171 SE2d 501) (1969) (“While the general grounds of the motion for new trial were technically waived . . . , nevertheless, in a capital felony case such as this one, we feel
But this approach was not consistently applied during the late 1960s and early 1970s; in other cases in which the appellant was sentenced to death, we expressly declinеd to consider sufficiency where not argued by the appellant. See, e.g., Johnson v. State, 226 Ga. 511, 516 (8) (175 SE2d 840) (1970) (“The general grounds and
In 1973, the Georgia legislature enacted Code of 1933, § 27-2537 and essentially codified sufficiency review in all cases in which an appellant had been sentenced to death. See Ga. L. 1973, pp. 159, 165-167, § 4. This new Code section, which is found in its present form at
Although we did not cite that statutory provision frequently in the years that followed, there is some indication that we viewed the new statute as requiring us to review the sufficiency of the evidence in capital cases. See Coley v. State, 231 Ga. 829, 837 (IV) (204 SE2d 612) (1974) (after setting aside sentence of death for rape, we reviewed the sufficiency of the evidence, saying that doing so was “mandated under the 1973 Death Penalty Statute,” despite noting that sufficiency was not argued and “normally would be considered abandoned“); see also Gregg v. State, 233 Ga. 117, 118 (1) (210 SE2d 659) (1974) (noting the general grounds were “nоt argued by the appellant and thus normally [would be] deemed to be abandoned,” but nevertheless reviewing the evidence upon those grounds “because of the capital punishment imposed“). During this time, we also conducted sua sponte sufficiency review in capital cases without citing the statute. See, e.g., Johnson v. State, 242 Ga. 649, 650 (250 SE2d 394) (1978) (before addressing enumerations of error, without citing any particular authority requiring sua sponte review,
We also decided appeals in death penalty cases after the 1973 statute without affirmatively stating that we considered sufficiency. See, e.g., Harris v. State, 237 Ga. 718 (230 SE2d 1) (1976). But of course the statutorily mandated review of the death sentence in all such cases — including considering whether the sentence “was imposed under the influence of passion, prejudice, or any other arbitrary factor” or was “excessive or disproportionate to the penalty imposed in similar cases”9 — necessarily involved considerations similar to whether the evidence in fact constitutionally supported a conclusion that the appellant was guilty of a capital offense. See Harris, 237 Ga. at 734 (III) (concluding that the evidence supported the jury‘s finding of the statutory aggravating circumstance).
A new set of rules governing death penalty cases, promulgated
in 1980, cemented the requirement that we should review the sufficiency of the evidence in every case in which a death sentence was imposed. That year, the General Assembly mandated further procedures for appellate review of death penalty cases, enacting legislation requiring this Court to establish a uniform procedure for reviewing challenges to convictions and sentences in cases in which the death penalty had been imposed. See Ga. L. 1980, pp. 390, 391-392, § 1. Later that year, we adopted such a procedure for “every case in which the death penalty is sought on an indictment returned after August 15, 1980.” 246 Ga. A-1. That
This shift toward uniform review of the sufficiency of the evidence in cases in which the death penalty had been imposed in the 1970s and 1980s was not automatically followed, however, in cases in which an appellant had received a lesser sentence on a murder conviction. See, e.g., Brown v. State, 234 Ga. 632, 634 (2) (217 SE2d 150) (1975) (concluding, in murder case in which a life sentence was imposed, that “appellant did not argue his enumeration of error on the general grounds and it is deemed abandoned“); see also Gay v. State, 235 Ga. 240 (219 SE2d 156) (1975) (reviewing sufficiency of evidence as to murder conviction as argued, but deeming any argument as to other conviction abandoned). So far as we can tell, it appears to be the rare 1970s
In 1979, the United States Supreme Court made clear that the
Moreover, even post-Jackson, this Court did not engage in an explicit sufficiency review in every murder case. See, e.g., Gibbons v. State, 253 Ga. 283 (319 SE2d 861) (1984) (no explicit sufficiency review in murder cаse in which a life sentence was imposed); Coles v. State, 253 Ga. 12 (315 SE2d 655) (1984) (same). In short, it is difficult to discern when we began reviewing the sufficiency of the
(b) We cannot now identify a compelling reason to retain our current practice of sua sponte review of the sufficiency of the evidence in cases in which the aрpellant is not sentenced to death, and there are good reasons to abandon that practice.
Murder now carries a minimum sentence of life in prison with the possibility of parole, a long sentence indeed. But we conduct a sufficiency analysis for all convictions in murder cases, regardless of sentence length, and we do not perform sua sponte sufficiency review in non-murder cases involving life sentences or cases with cumulative sentences exceeding any known life expectancy. See, e.g.,
Of course, the requirement that each criminal conviction be supported by sufficient evidence is imposed by the
Finally, some might think thаt sufficiency should always be reviewed because insufficient evidence is tantamount to actual innocence. But such a view would misunderstand the nature of appellate sufficiency review. When we consider sufficiency, we consider all the evidence admitted at trial, regardless of whether the trial court erred in admitting some of that evidence. See Chavers v. State, 304 Ga. 887, 891 (2) (823 SE2d 283) (2019); McDaniel v. Brown, 558 U. S. 120, 131 (III) (130 SCt 665, 175 LE2d 582) (2010). To understand the significance of this principle, imagine two factually identical cases, in both of which the main evidence is a constitutionally inadmissible video that shows the defendant committing the crime. In the first case, the video was properly excluded from evidence; we conclude that the evidence — without the video was insufficient. In the second case, the video was erroneously admitted; although on appeal the defendant would have a strong argument to reverse the conviction due to the evidentiary error, we would conclude that the evidence — with the video — was
Due process sufficiency is not at all the same thing as actual innocence. And actual innocence is a claim that Georgia law allows to be brought even when other claims might be subject to certain procedural bars. See Perkins v. Hall, 288 Ga. 810, 824 (III) (D) (708 SE2d 335) (2011); Valenzuela v. Newsome, 253 Ga. 793, 796 (4) (325 SE2d 370) (1985). Accordingly, any categorical similarity that may appear to exist between sufficiency claims and actual innocence is superficial and cannot justify suа sponte review.
On the other side of the ledger lie several good reasons not to review convictions for sufficient evidence sua sponte. In our view, and with no meaningful countervailing consideration beyond the frequency and duration of our practice, these reasons convince us to change course.
First, and most importantly, our legal system presupposes an adversarial process. See, e.g., Franks v. State, 278 Ga. 246, 250 (599 SE2d 134) (2004) (in evaluating claims of ineffective assistance of counsel, “we are not interested in grading lawyers’ performances;
Next is the distinct but related point that we ordinarily should respect strategic decisions by parties and their lawyers about what arguments to assert on appeal. We always are obligаted to inquire into our own jurisdiction; parties cannot by agreement confer upon us a power to adjudicate that we do not already possess. See Jenkins v. State, 284 Ga. 642, 642 (670 SE2d 425) (2008) (“It is incumbent upon this Court to inquire into its own jurisdiction.“) (citation and punctuation omitted); Foster v. Phinizy, 121 Ga. 673, 678 (49 SE 865) (1905) (“parties by consent cannot confer jurisdiction upon a court in reference to a matter of which the court has no jurisdiction“). But as to virtually everything else, it is almost always a better course to decide the appeal the parties bring us, rather than the appeal we might have brought were we in counsel‘s shoes.
Finally, our practice of deciding sua sponte the sufficiency of the evidence supporting every conviction in every murder case cоnsumes a volume of judicial resources far out of proportion to the likely benefit. Direct appeals of cases with murder convictions make up a substantial percentage of this Court‘s docket; our practice of sua sponte reviewing sufficiency in so many cases consumes a considerable amount of resources but seldom results in a reversal of a conviction. Many reversals that do occur involve only a sentence for a lesser offense that has no practical effect, given that the defendant has also received a sentence of life in prison or life without
In short, there are multiple good reasons to change course. We acknowledge that the decades and thousands of murder appeals in which we have applied this practice is a potential reason to keep it. But as discussed above, this broad practicе has never had a solid foundation; although the precise origins of our practice of deciding sua sponte the sufficiency of the evidence for all convictions in murder cases are unclear, they appear to have been rooted in the death penalty, based on a statute that applies only to cases in which the death penalty is sought, and we will continue to review the
Of course, before we overrule prior precedent without an intervening change in the law, we must consider the doctrine of stare decisis, and the most important stare decisis consideration is the strength of the reasoning of the рrecedent we are reconsidering. See State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010). But here, we have no holding to overrule, much less reasoning to consider; rather, we simply have developed a practice over time in which we have exercised our discretion in a consistent way. And in the most recent case in which we decided to change course in our exercise of similar discretion, we did so without a consideration of stare decisis. See Dixon v. State, 302 Ga. 691, 696-698 (4) (808 SE2d 696) (2017) (abandoning our discretionary practice of sua sponte addressing merger errors that benefit the defendant, without addressing stare decisis considerations). Thus, stare decisis does not stand in the way of the conclusion we reach today.
Nevertheless, the long-standing nature of the practice
Judgment affirmed. All the Justices concur.
DECIDED JULY 2, 2020.
Murder. Catoosa Superior Court. Before Judge House.
Jerry W. Chappell II, for appellant.
Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Leslie A. Coots, Assistant Attorney General, for appellee.