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. Viewed in the light most favorable to the verdict, the evidence showed that Davis and his friend Brandon Mosley were often seen together at The Columns, an apartment complex in Gwinnett County where Mosley lived. On June 26, 2011, the victim, Larocca, and his girlfriend purchased Xanax pills from Davis after being introduced to him by Sierra Hounchell, a mutual acquaintance. Obtaining Davis’ cell phone number from Thomas Cope, another friend, the victim made arrangements on June 28 to buy more Xanax from Davis. Davis thereafter contacted both Hounchell and Cope to ask if they knew whether the victim had anyone who might retaliate against him if he robbed the victim. Cope did not inform the victim of his conversations with Davis.
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 12:15andl:39p.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 the money with him. She testified that as she hung up the phone, a man appeared at the driver’s side window, demanding the money. After informing him she did not have the money, the individual walked away in the same direction the victim had taken. Hearing two gunshots, she and the other occupants of the car drove out of the complex, but returned shortly thereafter. Varvari exited the vehicle and ran in the direction taken by the victim, but was stopped by a security officer who had found the victim’s body lying in the building stairwell. No money was found on the victim’s body, but shell casings from a 9-millimeter gun and a cigarette butt with Davis’ DNA were found next to it. According to the medical examiner, the victim died from a gunshot wound to the chest.
That same afternoon, Davis’ friend, Mosley, walked to a carwash near the apartment
Based on the contacts between Davis and the victim on the day of the shooting, investigators went to Davis’ house where they left word to have Davis contact them. Thereafter, Davis’ girlfriend drove him to a nearby convenience store to meet with officers. When the officers arrived, Davis immediately placed his hands behind his back saying, “go ahead and take me to jail.” After informing Davis that he was not under arrest, the officers asked him to accompany them to police headquarters for an interview, and Davis agreed. He rode unhandcuffed in the front seat of an unmarked patrol car to the station. During his videotaped interview, Davis admitted the victim contacted him about buying Xanax, but made no mention of Mosley or Mosley’s involvement with the victim’s murder. At the conclusion of the interview, Davis was allowed to leave the police station and was not arrested until almost two weeks later.
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,
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.
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,
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,
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,
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,
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 trial, Davis’ counsel informed the trial court that his family wanted to hire attorney Bruce Harvey to represent him in the case. Davis’ father then explained to the trial court that over the three days before trial, he had spoken with Harvey who had agreed to take Davis’ case, and the reason he waited so late to talk to Harvey was because he needed to make sure he “had the funds,” and Harvey did not want a retainer “unless the Judge would continue [the trial] until he was available in December.” Davis explained to the trial court that he was not aware that he was going to trial until two weeks prior and that he “would feel more comfortable getting Mr. Harvey I just feel like I ... I don’t feel like I’m being represented like I should.” When the trial court asked Davis on what basis he felt that he was not being properly represented, Davis explained that his trial counsel did not file a motion he wanted her to file because “she said that wasn’t a good idea, that it wouldn’t be able to work.” But he admitted, “I feel like if I asked her, that she would file it.” Davis explained further that he felt he should have been informed that he “was going to trial more,” that counsel should have stopped him from meeting with the prosecutor early on in the case, and that counsel should have filed a motion for an investigator “on [his] behalf.” Trial counsel explained that although she had funds for an investigator, she did not
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,
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” referred to in the indictment that the jury considered was felony murder, as charged in Counts 1 and 2 of the redacted indictment, and the evidence was presented and the case was argued in that light, without any mention of malice 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,
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 redacted indictment charged Davis with “FELONY MURDER (O.C.G.A. 16-5-1) for the said accused .. . did then and there unlawfully while in
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 of indictment at the time the defendant was engaged in the commission of the felony . . . then you would be authorized to find the defendant guilty of murder.” In its charge to the jury on possession of a firearm during the commission of a felony, the court explained that “[t]he offense of murder is a felony under the laws of this state and it is defined as previously stated.”
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,
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 SC[t] 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,
(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 was not under arrest.
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 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 responded to officers during questioning and appeared coherent, if somewhat intoxicated.
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,
(b) Citing Riley v. California, _ U. S. _ (
(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
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,
(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 maybe 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,
Davis argues that some of the expert’s opinion testimony was cumulative of other evidence presented by the witnesses at trial and the State could have asked those witnesses the meaning of certain terms during their testimony. But the cumulative nature of one of the terms explained by the expert does not require the exclusion of his testimony Davis argues further that the expert’s opinion was mere speculation that invaded the province of the jury and impermissibly bolstered the testimony of the State’s witnesses. To the contrary, the expert, a detective, testified to his extensive experience with street slang. He explained further that he had previously testified in many robbery cases as a lead investigator or assistant, and participated in numerous witness interviews. The detective’s explanation of slang terms such as “jug” or “jugging” and “hit a lick,” terms that are not part of the everyday vernacular, was not impermissible. See Lowe v. State,
There was therefore no error in the admission of this evidence, so counsel could not be deficient for failing to file a futile motion. See Ventura v. State,
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,
7. Davis asserts that the trial court failed to exercise its discretion in granting a new trial under the grounds discussed in OCGA §§ 5-5-20, 5-5-21, and 5-5-25. He contends
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
Notes
The crimes occurred in June 2011. On October 5, 2011, a Gwinnett County grand jury indicted Davis on charges of malice murder, felony murder (two counts), armed robbery, aggravated assault, and possession of a firearm or knife during the commission of a felony (two counts). Following a May 2013 jury trial, Davis was found guilty on all charges with the exception of the charge of malice murder which was nolle prossed before trial. He was sentenced to life in prison plus five years; the trial court merged the aggravated assault and armed robbery charges into the corresponding felony murder charges, erroneously sentenced Davis on both felony murder counts with the second count to be served concurrently with the first (see footnote 7 below), and merged one possession of a firearm during the commission of a felony charge into the other. Davis’ motion for new trial was filed on May 28, 2013, amended by new counsel on August 4, 2014, and on August 6, 2014, and denied on December 18, 2015. His notice of appeal was filed on January 13, 2016. This case was docketed in this Court for the term beginning December 2016 and orally argued on January 24, 2017.
Mosley was tried in 2012 for malice murder and other crimes, convicted, and sentenced to life in prison without the possibility of parole; we affirmed his convictions in 2014. Mosley v. State,
Davis incorrectly asserts here that his trial was prior to the adoption of the new Evidence Code. However, this case was tried in May 2013, after the January 1, 2013 effective date of the new Code.
See also OCGA § 24-4-418 (c) (admissibility of criminal gang activity; “[t]his Code section shall not be the exclusive means to admit or consider evidence described in this Code section”).
The admissibility of evidence formerly known as “similar transactions” is now governed by OCGA § 24-4-404 (b).
A second count of possession of a firearm during the commission of a felony alleged armed robbery as the predicate felony.
We must, however, vacate Davis’ sentences on the felony murder counts. “Because both [felony] murder counts involved the same victim, one of the guilty verdicts was vacated by operation of law.” Cowart v. State,
The portion of video where Davis invoked his right to counsel and the statements thereafter was not played for the jury.
The subscriber listed was “George Davis,” which is the name of Davis’ father.
See OCGA § 24-7-707: “In criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” And,
[ajlthough Georgia’s new Evidence Code is applicable to the trial of this case, the evidentiary requirements relating to the admissibility of expert opinion testimony in a criminal case under the new Evidence Code (OCGA § 24-7-707) are nearly identical to those that applied under the former Evidence Code (OCGA § 24-9-67). Accordingly, it is appropriate to rely, as we do in this case, on decisions under the old Code. See Jones v. State,299 Ga. 40 , 42 (2) n. 2 (785 SE2d 886 ) (2016).
Mosby v. State,