DAVIS v. THE STATE
S17A0176
Supreme Court of Georgia
Decided June 19, 2017
301 Ga. 397
BOGGS, Justice.
FINAL COPY
Appellant Hunter Mason Davis was tried before a jury and found guilty of felony murder (two counts), armed robbery, aggravated assault, and possession of a firearm during the commission of a felony (two counts) in the shooting death of Angelo Larocca.1 He now appeals, asserting multiple claims of error. For the following reasons, we affirm in part and vacate in part, and remand this case for resentencing.
1. Viewed in the light most favorable to the verdict, the evidence showed
Shortly before 2:00 p.m. on June 28, 2011, the victim, his girlfriend and another couple — David Varvari and Madison Leftwich — drove to The Columns per directions the victim received via cell phone. Text messages and cell phone records showed numerous contacts between the victim and Davis between 12:15 and 1:39 p.m. on that day. As instructed, the victim went to an apartment behind building 1000 to purchase the drugs and, exiting the car, walked around the back of the building. Shortly thereafter, the victim called his girlfriend and, sounding scared, told her to hold the money out the car window. The girlfriend realized that something was wrong because the victim had taken
That same afternoon, Davis’ friend, Mosley, walked to a carwash near the apartment complex and informed a friend working there that he had just shot someone over some pills. Borrowing a cell phone, Mosley called another friend to pick him up from the carwash and, upon being picked up, informed the driver that he had shot someone and directed the driver to a nearby neighborhood to pick up Davis. According to the driver, upon entering the vehicle, Davis asked Mosley why he shot the victim. Later that night, Davis informed his girlfriend that he killed someone and that he had been with Mosley.
The evidence presented at trial and summarized above was sufficient to enable a jury to find Davis guilty beyond a reasonable doubt of the crimes for which he was convicted, either directly or as a party to the crime. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).2
Davis argues that the trial court erred in allowing evidence of Mosley‘s gang affiliation. At the start of trial, Davis’ counsel argued that the State should not be able to elicit testimony that Mosley had tattoos showing an affiliation with a gang, and that Mosley identified himself as being associated with that gang in a text message to Davis. The trial court ruled that it would allow evidence that one of Mosley‘s tattoos and a text message he sent to Davis referenced the name of a gang. Evidence was presented that Mosley had a tattoo on his chest and arm that read “ABT Stunna.” An investigator testified that Mosley had been documented as a member of the ABT gang, Davis’ girlfriend testified that Mosley‘s street name was “Stunna,” and a sergeant testified that Mosley identified himself in a text to Davis as “ABT Stunna” following the shooting.
Georgia‘s new Evidence Code governs the admission of the evidence here.3 Generally, “[a]ll relevant evidence shall be admissible,”
The State sought to show a connection between the robbery and murder and the history of the gang, and the foreseeable consequence of Davis’ participation in the robbery with Mosley. And as the trial court found, the evidence was also relevant to identify Mosley as the person who communicated with Davis by text shortly after the murder using someone else‘s phone. Although Davis argues that evidence of Mosley‘s gang affiliation was improper because neither he nor Mosley was charged with gang activity, “[t]here is no requirement that the State charge a defendant with violating the prohibition of participation in criminal street gang activity in
In light of the purpose expressed by the State and evidence of the communication between Davis and Mosley after the murder with Mosley using the name “ABT Stunna,” we cannot say that the trial court abused its discretion in allowing the admission of evidence of Mosley‘s gang affiliation. See Olds, supra, 299 Ga. at 69-70 (2);
3.
Davis argues that the trial court erred by admitting “so-called similar transaction evidence” because the State failed to meet its burden under Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649) (1991). Specifically, the testimony was that approximately two years prior to the shooting, Davis was in
But any error in the trial court allowing evidence of the 9-millimeter handgun was harmless in light of the strong evidence of Davis’ guilt. See, e.g., Glover v. State, 296 Ga. 13, 16 (3) (764 SE2d 826) (2014). And, evidence that Cope sent Davis the victim‘s cell phone number two days before the shooting was admissible to prove the circumstances surrounding the victim‘s presence at the scene of the shooting, even if it incidentally places Davis’ character at issue. See United States v. Edouard, 485 F3d 1324, 1344 (II) (C) (11th Cir. 2007); United States v. Foster, 889 F2d 1049, 1053 (III) (A) (1) (11th Cir. 1989).
4.
Davis contends that the trial court erred in denying his request for a continuance on the morning of trial to retain new counsel. On the morning of
Every person indicted for [a] crime has a most valuable and important constitutional right, which entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services. No person meeting these requirements should be deprived of his right to be represented by counsel chosen by himself, or forced to trial with the assistance only of counsel appointed for him by the court. Whether a particular defendant has exercised “reasonable diligence” in procuring counsel is a factual question, and the grant or denial of a request for continuance on grounds of absence of retained counsel is a decision within the sound discretion of the trial judge, reversible only for an abuse of that discretion.
(Citations and punctuation omitted; emphasis in original.) Flowers v. State, 275 Ga. 592, 594 (2) (571 SE2d 381) (2002). In denying the motion for a continuance made on the morning of trial, the trial court considered, among other things, Davis’ frustration concerning pretrial issues, but concluded that it did not appear that there would be any plea negotiation between the parties, and that “both sides are ready to go to trial. Both sides have their witnesses.” And the evidence showed that Harvey had given Davis’ family only a conditional agreement to take the case. Under these circumstances, we cannot say that the
5.
Davis contends that his conviction on Count 5, possession of a firearm during the commission of a felony, violated due process because it allowed the jury to convict him of a crime in a manner not charged in the indictment. More specifically, he asserts that it was error to submit Count 5 to the jury because the dismissed malice murder count was the underlying felony to Count 5. He claims that it was also error for the trial court to infer that the grand jury meant felony murder when Count 5 clearly alleged murder “as pertained to the dismissed malice murder count.”
As to this alleged error, if (as seems likely) the District Attorney was trying to charge possession of a firearm during the commission of the felony of malice murder in Count 6 of the original indictment, and the grand jury that returned the indictment understood Count 6 in that way, then when the District Attorney asked to nolle pros the malice murder count before jury selection, Davis might have requested that Count 6 be dismissed too. But he did not, and he was not then tried on that charge. Instead, as the case was presented to the jury at trial, Count 5 of the now-redacted indictment charged possession of a firearm during the commission of a felony, “to wit: murder.” The only “murder”
Davis did not raise a claim below that the variation between the crime originally indicted and the crime as actually tried was a material variance, so his argument here was not preserved for ordinary appellate review. See Johnson v. State, 295 Ga. 615, 617 (2) (759 SE2d 837) (2014). In any event, such a claim would have failed, because Davis has not shown that he was surprised by the way the firearm possession charge was tried or that he was prejudiced by any difference between the predicate felony being malice murder or felony murder (which are, it should be noted, both simply called “the offense of murder” in the murder statute, see
Davis argues further that the trial court‘s instruction to the jury on Count 5 allowed the jury to deviate from the redacted indictment. Counts 1 and 2 of
The trial court instructed the jury on the counts alleged in the redacted indictment, specifically charging the jury, “A person commits the crime of felony murder when in the commission of a felony that person causes the death of another human being,” and that “[i]f you find and believe beyond a reasonable doubt that the defendant committed the homicide alleged in this bill
As alleged in the redacted indictment, the predicate act for the possession charge was “murder,” and the only murder charge the jury was given at trial was the alleged felony murder. There was nothing in the trial court‘s instructions that allowed the jury to deviate from the charges in the redacted indictment. Therefore, the trial court did not err in its instructions to the jury. Compare King v. Waters, 278 Ga. 122, 123-124 (2) (598 SE2d 476) (2004) (lower court erred in failing to vacate possession conviction when predicate, an “essential element,” was vacated). And the evidence was certainly sufficient to support the jury‘s guilty verdicts on the felony murder and possession charges. Davis’ argument here fails.7
6.
Davis argues that he received ineffective assistance of counsel on several grounds.To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), an appellant must show both that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. If an appellant fails to meet either prong of the Strickland test, it is not incumbent upon this Court to examine the other prong.
(Citations and punctuation omitted.) Dunn v. State, 291 Ga. 551, 553 (4) (732 SE2d 524) (2012). Davis contends that trial counsel was ineffective for failing to challenge the voluntariness of his statement to police, for failing to file a motion to suppress the contents of his cell phone, and for failing to object to the trial court‘s qualification of an expert to explain slang terms and to the admission of Mosley‘s gang affiliation and activity. But Davis cannot establish that his trial counsel was ineffective on these grounds.
(a) Davis argues that counsel should have challenged the admission of his statement to police. In denying his motion for new trial on this ground, the trial court found that Davis voluntarily met with officers who informed him that he
The record reveals that a detective left his phone number with Davis’ father and asked that Davis contact him. Davis contacted the detective and agreed to meet him at a convenience store. When the detective arrived, Davis saw the detective‘s badge and gun and “turned around and basically put his hands behind his back and says, Okay, well, just go ahead and take me to jail.” The detective told Davis that he was not under arrest and that he only wanted to ask a few questions. Davis agreed to talk to police. He rode in the front seat of a patrol car to the police station and was not placed in handcuffs. Davis gave a statement to police but at the conclusion of the interview, invoked his right to counsel and left voluntarily.8 He was not arrested until nearly two weeks after the interview when he turned himself in.
Davis argues that he believed he was under arrest and was “high and falling asleep” when he gave his statement. The video recording shows that he fell asleep for a short period while he was alone in the interview room and admitted to the officer that he had “smoked” prior to the interview. But Davis
Even assuming that Davis was intoxicated, based on his demeanor, conduct, and responses to officers during the interview, he has not shown that any intoxication rendered his statement involuntary. See Norton v. State, 293 Ga. 332, 334-335 (2) (745 SE2d 630) (2013) (although defendant admitted he had taken 15-20 pills of Xanax and had been drinking bourbon, he appeared to understand what was occurring and his Miranda rights, and spoke freely with officers; no error in denial of motion to suppress where evidence supported court‘s determination that intoxication did not affect knowing and voluntary waiver of Miranda); Carter v. State, 285 Ga. 394, 398 (5) (677 SE2d 71) (2009) (although defendant admitted she had drugs in her system during interview with police, no error in admission of statement where evidence showed she was able to communicate with officers in “lucid and coherent manner“); see also Shelby v. State, 265 Ga. 118, 119 (2) (453 SE2d 21) (1995) (although defendant had been drinking and had a blood alcohol level of 0.24 an hour and a half before interview, he was alert enough to talk with officers and understand); Mullis v. State, 248 Ga. 338, 340-341 (9) (282 SE2d 334) (1981) (“the mere fact that the
(b) Citing Riley v. California, ___ U. S. ___ (134 SCt 2473, 189 LE2d 430) (2014), Davis argues that his trial counsel was ineffective in failing to move to suppress evidence “from an illegal search and seizure” of his cell phone without a search warrant. But Riley involved the seizure of cell phones incident to arrest and the search of digital information they contained. 134 SCt at 2493 (IV); Marchman v. State, 299 Ga. 534, 538-539 (2) (787 SE2d 734) (2016). Here, the testimony at trial and the videotape of Davis’ interview with police
(c) Davis argues that the court erred in concluding that his ineffective assistance claim failed because he had no standing. He asserts that trial counsel failed to challenge the admission of the telephone records the State obtained from the cell phone service provider. However, the record reveals that Davis was not the subscriber listed for the phone,9 and Davis has provided no evidence “that he had any legal link to the account, much less any ownership interest in it; nor has he shown that he was an authorized user on the account, or the de facto exclusive, primary, or customary user of the cell number at issue.” Hampton v. State, 295 Ga. 665, 669 (2) (763 SE2d 467) (2014). As the trial court found, Davis had no standing to seek suppression of the records at issue, and his trial counsel cannot be found to have performed deficiently in failing to
And in any event, even if Davis had standing and counsel had sought to suppress the records, Davis has not shown a reasonable probability that the outcome of his trial would have been different without them in light of the other strong evidence of his guilt. See Teasley v. State, 293 Ga. 758, 765 (4) (749 SE2d 710) (2013).
(d) Davis contends that counsel was ineffective in failing to object to the tendering of an expert, a police detective, to give testimony concerning the meaning of slang terms used by witnesses.
To qualify as an expert generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study. Formal education in the subject at hand is not a prerequisite for expert status. The trial court has broad discretion in accepting or rejecting the qualifications of the expert, and its judgment will not be disturbed on appeal absent an abuse of discretion.
(Citations and punctuation omitted.) Allen v. State, 296 Ga. 785, 790 (7) (770 SE2d 824) (2015).10
There was therefore no error in the admission of this evidence, so counsel
Moreover, in light of the strong evidence that Davis was, at the very least, a party to the crimes, he has failed to show that counsel‘s performance, even if deficient, resulted in a reasonable probability of a different outcome of the proceedings. See Rainwater v. State, 300 Ga. 800, 804 (3) (797 SE2d 889) (2017).
7.
Davis asserts that the trial court failed to exercise its discretion in granting a new trial under the grounds discussed in
Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur.
Decided June 19, 2017.
Murder. Gwinnett Superior Court. Before Judge W. Davis.
Bruce S. Harvey, for appellant.
Daniel J. Porter, District Attorney, Christopher M. Quinn, Michael D. Morrison, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.