S19A1432. DAVIS v. THE STATE.
Supreme Court of Georgia
307 Ga. 746
BOGGS, Justice.
DECIDED JANUARY 27, 2020.
FINAL COPY
1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed as follows. Davis lived with his older brother Jonathan Wright at their grandmother‘s house in Soperton. On the afternoon of July 11, 2011, Davis texted Wadley seeking to buy some cocaine and marijuana and asked Wadley to contact him. Wadley did not respond.
The next morning, Davis texted Wadley again about buying drugs, and this time Wadley respоnded. Davis asked Wadley to bring the drugs to Davis’ grandmother‘s house and described the location. Wadley replied that he was at work, and Davis said that he would wait for Wadley to come over. That afternoon, Davis twice texted Wadley to make sure that he was coming over, and both times Wadley said that he was. Davis told S. B., his then-girlfriend, who was a minor at the time, that someone was supposed to come over to
At 5:59 p.m., Davis texted Wadley to say that he was still waiting. At 6:01 p.m., Wadley replied, “K, on the way.” A few minutes later, one of Wadley‘s cousins saw Wadley pull into the driveway at Davis’ grandmother‘s house. Another cousin, Sandra Baker, also was in the area on her way to a convenience store and saw Wadley pull into the driveway. At 6:07 p.m., Wadley texted Davis and said, “I‘m here with the slabs.”2 Davis told Wright that Wadley was there and went outside to talk to Wadley. Davis had an old Smith & Wesson .32 caliber revolver — which S. B.‘s brother had previously seen him with — that he took with him to greet Wadley. On her way back from the convenience store, Baker, who knew Davis, saw him standing outside the front passenger-side door of Wadley‘s car talking to Wadley. Minutes later, Davis pulled out his revolver and shot Wadley — who was unarmed — twice in the head.
According to Wright, Davis ran into the house and told Wright, “I f**ked up. I burned a man,” which Wright understood to mean
Around 7:00 the next morning, Wadley‘s father went to Davis’ grandmother‘s house looking for Wadley and spoke to Davis and Wright. Davis admitted that Wadley had been there the day before and said that Wadley had sold him “some dust.” Once Wadley‘s father left, Davis and Wright left Soperton. Wadley‘s body was discovered in the trunk of his abandoned car in Vidalia later that morning.
On the afternoon of July 13, Davis texted S. B., “We need to talk about something and this is between me and you.” S. B. texted
On the night of July 13, Davis spoke with S. B. by telephone. According to S. B., Davis asked if she knew Wadley, and she said no. Davis told S. B. that Wadley had been killed and that people were saying that Davis and Wright had killed him. At first, Davis said that he did not do it, but then he said, “we didn‘t mean to . . . do it that way. . . . It wasn‘t supposed to happen like that.” Davis claimed that Wadley had tried to hurt him and said that he was not going to let Wadley do anything to him. Davis also asked S. B. to run away with him.
The medical examiner who performed Wadley‘s autopsy found
Although Davis does not challenge the sufficiency of the evidence to support his conviction, consistent with our usual practice, we have reviewed the evidence presented at trial and summarized above and conclude that it was sufficient to permit a reasonable jury to find — as this one did — that Davis was guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Davis argues that the trial court erred in allowing the State to elicit certain testimony from GBI Special Agent Kendra Lynn, the lead investigator on the case. We address those arguments in turn below.
(a) First, Davis contends that the trial court erred in allowing
Davis’ trial took place in December 2012, when the old Evidence Code was still in effect. With respect to the admissibility of evidence regarding an investigating officer‘s conduct, we explained:
It will be seen that only in rare instances will the “conduct” of an investigating officer need to be “explained,” as in practically every case, the motive, intent, or state of mind of such an officer will not be “matters concerning which the truth must be found.” At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something.
Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984). Applying
Based on the foregoing, the trial court in this case erred in admitting the challenged testimony on the theory that it was necessary to explain Lynn‘s course of conduct during the investigation, as that information simply was not relevant to determining Davis’ guilt or innocence. As in Teague, Lynn‘s investigatory actions did not need to be explained, given that Davis
To reverse Davis’ conviction, however, the error must have been harmful. See Cowart v. State, 294 Ga. 333, 341 (751 SE2d 399) (2013). As Davis conceded in his opening statement, there was ample evidence that Wadley was murdered at the house where Davis was staying; that Wadley died from two gunshot wounds to the head from a .32 caliber revolver; that his body was stuffed in the trunk of his car, which was abandoned in Vidalia; that on the night
(b) Next, Davis argues that the trial court erred in permitting Lynn to testify to prior consistent statements that both Wright and S. B. made to her, as that testimony inappropriately bolstered the credibility of those witnesses. We agree that the trial court abused its discretion in admitting this testimony, but we again conclude that the errors were harmless.
Lynn testified near the beginning of trial, before the State had called Wright or S. B. The State elicited testimony from Lynn regarding a number of prior statements Wright and S. B. had made to her. Most of those statements were consistent with Wright‘s and S. B.‘s eventual trial testimony and incriminated Davis. Trial counsel objected to those particular portions of Lynn‘s testimony on the grounds that they were hearsay and would improperly bolster
Under the old Evidence Code, a witness’ prior consistent statements were admissible at trial only where (1) the veracity of a witness’ trial testimony had been placed in issue at trial; (2) the witness was present at trial; and (3) the witness was available for cross-examination. See Baugh v. State, 276 Ga. 736, 738 (585 SE2d 616) (2003). But in Baugh we also explained that
“a witness‘s veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.” When there are no аllegations of recent fabrication, or improper influence or motive on cross-examination, “[t]he prior consistent statement is hearsay evidence improperly admitted to bolster the witness‘s credibility in the eyes of the jury.”
As previously stated, Lynn testified near the beginning of trial, before Wright or S. B. took the stand. The defense had not made any claims of recent fabrication, improper influence, or imprоper motive that the pretrial statements of Wright and S. B. could have served to rebut. Thus, Wright‘s and S. B.‘s pretrial statements to Lynn “were pure hearsay and [were] inadmissible to corroborate the witness or bolster their credibility” in the eyes of the jury. Baugh, 276 Ga. at 739. Accordingly, the trial court abused its discretion in admitting Lynn‘s testimony recounting Wright‘s and S. B.‘s pretrial statements.
Our focus again shifts to whether the trial court‘s evidentiary errors were harmful. See Baugh, 276 Ga. at 739. In making this determinatiоn, we cannot look to the improperly bolstered testimony to show that the bolstering error was harmless. See Cowart, 294 Ga. at 341-342. However, as noted above, the State presented strong independent evidence of Davis’ guilt, at least as a party to the
3. Davis argues that the trial court erred in denying his motion for a mistrial. We see no abuse of discretion аnd affirm the trial court‘s denial.
At trial, Davis’ counsel questioned Lynn on cross-examination about why she believed Wright‘s claims that Davis was the shooter and that the revolver belonged to Davis, despite Wright‘s admission that he put a man who might not have been dead yet into a trunk and abandoned the car on the side of the road. Trial counsel also asked why Lynn did not investigate whether S. B. had a motive to lie when S. B. told Lynn that Davis confessed. Dаvis’ trial counsel then asked, “so you‘re saying that these thirty people you talked to, none of whom were at the scene, somehow corroborated more with [Wright] . . . than with [Davis]?” Lynn replied, “Yes.” Davis’ trial counsel followed up by asking, “[T]hese thirty witnesses that you
On re-direct examination, Lynn testified that her investigation was more consistent with what Wright told her than with what Davis told her had happened. Lynn further testified that Wright‘s demeanor in talking to her and his hesitance tо implicate Davis were some of the reasons why she believed Wright and not Davis. On re-cross-examination, Davis’ counsel continued to question Lynn about why she believed Wright‘s statements to her. In response, Lynn said she believed Wright‘s account because of what other people had told her during her investigation about Wright and Davis. On further re-direct examination, the State asked Lynn, “Now, as to the evidence specifically thаt you gathered that narrowed it down to [Davis] being
Davis’ counsel immediately objected on the ground of bad character evidence and, outside the presence of the jury, moved for a mistrial. After hearing arguments from the parties, the trial court sustained the objection and said:
Okay. This is what I‘m going to do: I‘m not going to grant the mistrial, but I am going to instruct you to abandon that line of questioning. And I am going to instruct the jury that they‘re to disregard that question, as well as the response of the witness. And I‘m going to poll the jury and make sure that they can disregard that in the consideration of the evidence in the trial of this case. If any of them indicate that they cannot disregard it, then I am going to grant the mistrial. If they can disregard it, then in that circumstance I will allow the trial to continue on. That is the resolution that I am going to do. . . . I will not grant it. I will instruct you, though, that both parties are to refrain from any further reference to this testimony that we have just heard. You will not be allowed to include it in your argument, in your closing
arguments. You will not be allowed to use it in any further examination of any other witnesses. That will be the order of the [c]ourt.
After the jury returned to the courtroom, the trial court instructed the jurors as follows:
Ladies and gentlemen of the jury, when I asked y‘all to step out of the courtroom, just before that, the State had asked [Lynn] a question. [Lynn] was beginning a response to that question and the [d]efense objected. While y‘all were out, I had ruled that that objection is sustained. And, therefore, you should neither consider the question that was asked, nor this witness‘s response to that question that was responded to at that last question and answer, right before y‘all went out of the courtroom, okay? Because I have sustained that objection, it is most important that you not consider the question, nor the answer, in your deliberations during the trial of this case. Now, is there any of the jurors who cannot set aside and totally disregard that question and the response to that question as part of your deliberations? If you cannot set that aside and completely disregard it in your — in your deliberations, I want you to please stand up right now. Any of you? Okay. None have stood. That being the case, the trial will proceed.
We review the trial court‘s denial of a motion for a mistrial for an abuse of discretion. See Elkins v. State, 306 Ga. 351, 360 (830 SE2d 217) (2019). We will not disturb a trial court‘s ruling on a
Here, the trial court ensured that Davis retained his right to a fair trial by giving an emphatic curative instruction and polling the jurors as to whether they were able to disregard Agent Lynn‘s improper testimony. None of the jurors indicated that they were unable to disregard the State‘s question and Lynn‘s answer. Accordingly, the trial court did not abuse its discretion in this respect. See Childs v. State, 287 Ga. 488, 492-493 (696 SE2d 670) (2010) (no abuse of discretion in denial of mistrial where trial cоurt instructed jury to disregard improper witness testimony). See also Favors v. State, 305 Ga. 366, 370 (825 SE2d 164) (2019) (“Qualified jurors under oath are presumed to follow the instructions of the trial court.” (citation and punctuation omitted)).
4. Finally, Davis argues that, to the extent this Court concludes that he waived certain objections to Lynn‘s testimony by failing to raise them at trial, he received ineffective assistance of
Judgment affirmed. All the Justices concur, except Ellington, J., not participating.
DECIDED JANUARY 27, 2020.
Murder. Treutlen Superior Court. Before Judge Gillis.
Betsey L. Tate, for appellant.
L. Craig Fraser, District Attorney, Robert B. Faircloth, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine D. Emerson, Assistant Attorney General, for appellee.