Davis v. State

• Citation: 651 S.E.2d 10,282 Ga. 368
• Decision Date: 03 August 2007
• Docket Number: No. S07W1642.,S07W1642.
• Parties: DAVIS v. The STATE.
• Court: Supreme Court of Georgia

282 Ga. 368

651 S.E.2d 10

DAVIS v. The STATE.

No. S07W1642.

Supreme Court of Georgia.

August 3, 2007.

Application for discretionary appeal. Chatham Superior Court. Before Judge Freesemann.

Thomas Howard Dunn, Atlanta, for Appellant.

Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., Savannah, Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Atlanta, for Appellee.

Upon consideration of Davis's application for discretionary appeal from the denial of his extraordinary motion for new trial, the same is hereby granted. As the recent order of the Georgia Board of Pardons and Paroles suspending Davis's execution has rendered his motion to stay execution moot, it is hereby dismissed.

The premature notice of appeal filed on July 17, 2007, pursuant to which the record has been transmitted to this Court, is deemed to have ripened upon the grant of this Application.

All the Justices concur, except CARLEY, HINES, and MELTON, JJ., who dissent.

CARLEY, Justice, dissenting.

Because the majority has seen fit to grant Davis' discretionary application, I cannot and will not address the underlying merits of the forthcoming appeal. However, I must dissent to today's order, because to do otherwise would require that I join the majority in what I perceive to be its complete disregard of the controlling standards for granting such an appeal as set forth in this Court's Rule 34. I find that disregard to be particularly objectionable where, as here, the discretionary appeal authorized by the majority will prolong an already extremely protracted judicial process.

That process began 18 years ago when the jury found, beyond a reasonable doubt, that Troy Anthony Davis murdered police officer Mark Allen McPhail. It is now more than 14 years since this Court unanimously affirmed Davis' conviction and sentence of death. Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (1993). More than five and one-half years have passed since state habeas proceedings were completed and reviewed by this Court and a writ of certiorari from the Supreme Court of the United States was denied. Davis v. Turpin, 273 Ga. 244, 539 S.E.2d 129 (2000), cert. denied, 534 U.S. 842, 122 S.Ct. 100, 151 L.Ed.2d 59 (2001). Thereafter, the federal district court denied a habeas petition, the United States Court of Appeals affirmed and denied rehearing en banc, and the Supreme Court recently denied certiorari. Davis v. Terry, 465 F.3d 1249, 1251 (11th Cir.2006), reh. denied, 219 Fed.Appx. 975 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 3010, ___ L.Ed.2d ___, 2007 WL 1222257 (2007). Only after a window for the carrying out of the death sentence was set for July 17-24, 2007, did Davis finally file an extraordinary motion for new trial on the ground of newly discovered evidence. The trial court denied that motion without conducting an evidentiary hearing, and Davis sought review by discretionary appeal on July 16. See OCGA § 5-6-35(a)(7); Crawford v. State, 278 Ga. 95, 96(1), 597 S.E.2d 403 (2004). At the earliest, the discretionary appeal that is granted today by the majority's order will be docketed and argued during the September 2007 term and may not be decided until the end of the January 2008 term.

On the same day that he applied for a discretionary appeal, Davis also filed an application for commutation of his death sentence with the Board of Pardons and Paroles, which suspended execution of the sentence for 90 days or until it lifts the suspension. See Ga. Const. of 1983, Art. IV, Sec. II, Par. II(d). However, the pendency of Davis' application for commutation of the death sentence in the executive branch does not and cannot in any way affect our decision on his application for discretionary appeal. The application seeks permission to appeal from the denial of an extraordinary motion for new trial, which motion relates to the underlying murder conviction itself. Obviously, Davis' conviction is an entirely separate and distinct consideration from the commutation of his death sentence. This Court's grant of a discretionary appeal certainly does not preserve the status quo and, in fact, will likely alter it. If the Board of Pardons and Paroles postpones its consideration of the application for commutation until such time as this Court addresses and resolves the more fundamental judicial proceedings with respect to Davis' conviction, then this Court's grant of the discretionary application will have altered the status quo by obviating the Board's pending review of the clemency petition. Furthermore, the grant of a discretionary appeal is not necessary to preserve the status quo in any other regard. Davis does not face imminent execution. The execution window has now closed and, if this Court affirms the trial court's denial of the extraordinary motion for new trial, and the Board lifts its stay, a new window would have to be set, and Davis would doubtless file a successive state habeas petition, which he has not yet done.

Moreover, although an execution may be stayed during the pendency of a granted discretionary appeal, preservation of the status quo is not one of the recognized grounds upon which to base the initial determination of whether to grant a discretionary appeal. Instead, an ...