Lead Opinion
Dutсh Davis was convicted of felony murder predicated on a drug transaction and attempted violation of the Georgia Controlled Substances Act (“VGCSA”).
1. Viewed in the light most favorable to the verdict, the evidence
2. During the charge conference, Davis requested a special jury instruction that self-defense is a valid justification to felony murder based on Heard v. State,
In Heard, the trial court instructed the jury that self-defense is not a defense to felony murder. Heard,
That is not the casе here. Davis was not simply a status offender. Rather, he “made an affirmative choice to engage in a dangerous and potentially violent criminal activity” when he participated in the drug transaction. See Smith v. State,
3. Next, Davis claims that the trial court erred when it overruled the defense objection to the prosecutor’s closing argument, in which she asserted that Davis’s admission to the attempted VGCSA count meant that he was automatically guilty of felony murder. Specifically, Davis complains that the prosecutor misstated the law when she told the jury that “if you go on a marijuana drug deal and someone dies, you are responsible for their death.”
It is well settled that counsel “is permitted wide latitude in closing argument, and any limitatiоn of argument is a matter for the court’s discretion.” Watkins v. State,
Given the latitude allowed during closing argument, the trial court did not abuse its discretion in overruling Davis’s objection to
4. Contrary to Davis’s assertion, there was a sufficient nexus between the VGCSA and the victim’s death to show that Davis’s participation in the drug transaction was the рroximate cause of Dalton’s death. Proximate cause exists if Davis’s felony
directly and materially contributed to the happening of a subsequent accruing immediate cause of the death, or if. . . the homicide (was) committed within the res gestae of the felony . . . and is one of the incidental, probable consequences of the execution of the design to commit the [predicate felony].
State v. Jackson,
Here, the marijuana transaction was the proximate cause of Dalton’s death. It is undisputed that Davis contacted Dalton and requested a meeting to buy drugs. Allegations that the Dаvis brothers intended to rob Dalton and Simpson or that Dalton and Simpson planned to rob the Davis brothers are not dispositive. Regardless of whether an attempted robbery took place, the four men met for a drug transaction and something went wrong. It is undisputed that during the course of those events, Justin Dаvis shot and killed Dalton. Therefore, “the felony the defendants committed directly and materially contributed to the happening of a subsequent accruing immediate cause of the death.” Jackson, supra,
Further, the requirement that the underlying offense must be foreseeably dangerous has been met. “In determining whether а felony [is inherently dangerous to human life], this Court does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed.” Hulme, supra,
5. Davis complains that the trial court did not properly instruct the jury regarding the connection betwеen the predicate felony and the death of the victim and the requirement that the underlying felony be inherently dangerous. Davis did not contemporaneously object to either of the complained-of charges. Nevertheless, we are required to consider whether the court’s jury instruction constitutes plain error since appellant properly enumerated and argued the issues on appeal. See State v. Kelly,
(a) The trial court properly instructed the jury regarding the necessary legal connection between the predicate felony and the death of the victim. The trial court gave the following instruction:
In order for a homicide to have been done in the commission of this felony, there must be some connection between the felony and the homicide. The homicide must have been done in carrying out the unlawful act or acts and not collateral to it. It is not enough that the hоmicide occurred soon or presently after the felony was attempted or committed. There must be such a legal relationship between the homicide and the felony so as to cause you to find that the homicide occurred before the felony was at an end. The felony must have a legal relationship to the homicide, be at least concurrent with it in part and be a part of it in an actual or material sense.
The instruction is a correct statement of the law, and viewing the charge as a whole, we find that the jury was fully and fairly
(b) The trial court did not commit error when it did not specifically charge the jury with rеspect to the inherent dangerousness of the underlying felony. “A felony is inherently dangerous when it is dangerous per se or by its circumstances creates a foreseeable risk of death.” Shivers, supra,
6. Finally, Davis asserts that his trial counsel gave ineffective assistance when he consented to the trial court’s answer to the jury’s questions regarding whether a conviction for the attempted VGCSA automatically required a conviction for the felony murder charge, failed to press the court to explain that if Justin was justified in shooting the victim that Davis could not be convicted of felony murder, and argued inconsistently during the charge cоnference as to whether self-defense applied in the felony murder context. These enumerations of error are without merit.
Georgia courts recognize a strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. Robinson v. State,
All of Davis’s complaints about his trial counsel relate to counsel’s alleged failure to bring errors in the jury charges to the trial court’s attention. As we have already determined that the complained-of jury charges were proper, and Davis’s trial counsel’s conduct fell well within the broаd range of reasonable professional conduct, we hold that Davis’s trial counsel was not ineffective. Thus, there is no reasonable likelihood of a different outcome had trial
Judgment affirmed.
Notes
The crimes occurred on March 30, 2006. Davis was indicted in Pulton County on charges of malice murder, felony murder during the commission of aggravated assault, two counts of aggravated assault, possession of a firearm during the commission of a felony, attempted armed robbery, felony murder predicated upon a “marijuana drug transaction while in possession of a deadly weapon in a rеsidential area,” and attempted violation of the VGCSA. He was found guilty of felony murder predicated on the drug transaction and VGCSA and sentenced to life in prison plus five years. His motion for new trial, filed September 14, 2010, was denied April 11, 2011. The appeal was docketed for the September 2011 term in this Court and was submitted for decision on the briefs.
The entire charge delivered to the jury follows:
A person is justified in threatening or using force against another person when and to the extent that he . .. reasonably believes that such a threat or force is necessary to defend himself... against the other’s imminent use of unlawful force. A pei’son is justified in using forcе that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself... or to prevent the commission of a forcible felony. The State has the burden of proving beyond a reasоnable doubt that the defendant was not justified.
A person is not justified in using force if that person initially provokes the use of force against himself. . . with the intent to use such force as an excuse to inflict bodily harm upon the assailant or is attempting to commit, is committing or is fleeing after the commission or аttempted commission of a felony or was the aggressor or was engaged in combat by agreement....
In applying the law of self-defense, a defendant is justified to kill or use force against another person in defense of self or others. The standard is whether the circumstances were such thаt they would excite not merely the fears of the defendant but the fears of a reasonable person. ...
Concurrence Opinion
concurring.
I write elsewhere today to express my doubts about the validity of this Court’s decision in Heard v. State,
I am authorized to state that Presiding Justice Carley and Justice Hines join in this concurrence.