Davis v. State

• Decision Date: 17 March 2008
• Docket Number: No. S07A1758.,S07A1758.
• Citation: 283 Ga. 438,660 S.E.2d 354
• Parties: DAVIS v. The STATE.
• Court: Georgia Supreme Court

660 S.E.2d 354

283 Ga. 438

DAVIS v. The STATE.

No. S07A1758.

Supreme Court of Georgia.

March 17, 2008.

Reconsideration Denied April 14, 2008.

Thomas Howard Dunn, Atlanta, Jason Ewart, Philip Horton, Danielle Garten, Washington, D.C., for Appellant.

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

Charles J. Ogletree, Jr., Cambridge, MA, Aimee Rebecca Maxwell, Atlanta, Keith Findley, Madison, WI, John L. Hardiman, New York, NY, Amicus Appellant.

MELTON, Justice.

Troy Anthony Davis was convicted of murdering Savannah police officer Mark MacPhail¹ and of related crimes. He was sentenced to death for the murder, and this Court affirmed. Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (1993), cert. denied, 510 U.S. 950, 114 S.Ct. 396, 126 L.Ed.2d 344 (1993). He filed a petition for writ of habeas corpus in the Superior Court of Butts County, and this Court affirmed the denial of that petition. 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). See also Davis v. Thomas, 266 Ga. 835, 471 S.E.2d 202 (1996) (reversing the habeas court's denial of a continuance). He filed a federal habeas petition, and his appeals from the denial of that petition failed. Davis v. Terry, 465 F.3d 1249 (11th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 3010, 168 L.Ed.2d 728 (2007). After the trial court issued a new order for his execution, Davis filed an extraordinary motion for new trial on July 9, 2007, eight days before the beginning of the week-long period set for his execution. See OCGA § 5-5-41(b). The trial court denied the extraordinary motion for new trial without conducting a hearing. Davis then filed an application for discretionary appeal and a motion for a stay of execution in this Court. While the application was pending, the State Board of Pardons and Paroles granted a temporary stay of execution and scheduled a hearing. On August 3, 2007, this Court dismissed Davis's motion for a stay of execution as moot and granted his application for discretionary appeal. Davis v. State, 282 Ga. 368, 651 S.E.2d 10 (2007). The State Board of Pardons and Paroles then rescinded its stay of execution and suspended its consideration of Davis's petition for clemency while this Court considers the instant appeal. In light of the following discussion, we conclude that the trial court did not abuse its discretion in denying Davis's extraordinary motion for new trial without first conducting a hearing, and, accordingly, we affirm.²

1. The evidence at trial authorized the jury to find the following: In the early morning of August 19, 1989, Davis was at a pool hall in Savannah with his friends, Sylvester "Red" Coles and sixteen-year-old Darrell "D.D." Collins. Nearby, a homeless man named Larry Young was exiting a convenience store. Coles asked Young for one of the beers Young had just purchased. When Young refused, Coles followed him up the street, cursing at him. Davis and Collins circled around a bank in an apparent flanking maneuver and joined Coles in surrounding Young. Someone shouted a threat about shooting Young, and Davis came from behind Young and struck him in the head with a pistol, injuring him badly. Collins fled as soon as Young was struck. Davis and Coles fled immediately afterward when it became obvious that the police were being called. Mark MacPhail, a police officer working off-duty at the nearby bus station and Burger King, began pursuing Davis and Coles and shouted for them to stop. Coles stopped, and MacPhail ran past him. Davis kept running and fired a handgun at MacPhail, who was shot and fell. Davis then stood over MacPhail smiling and fired again. Altogether, MacPhail was shot three times, once in the face, once in the right thigh, and once in the chest.

Earlier on the night of the murder, a man named Michael Cooper was shot while leaving a party. A bullet retrieved from Michael Cooper's body during his medical treatment was similar to bullets from the murder scene. Shell casings retrieved from the two scenes were matched with greater certainty. Testimony at trial identified Davis as the person who shot Michael Cooper.

At trial, Davis's defense centered on the theory that Coles was the murderer. Both Davis and Coles testified, each claiming their innocence. The evidence at trial authorized the jury to conclude beyond a reasonable doubt that Davis was the man who struck Larry Young and shot Officer MacPhail.

2. Because the statutes authorizing extraordinary motions for new trials are silent as to procedural details, "the procedural requirements for such motions are the product of case law." Dick v. State, 248 Ga. 898, 899(2), 287 S.E.2d 11 (1982). We have held that a new trial may be granted based on newly-discovered evidence only where the defendant shows each of the following:

(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

Timberlake v. State, 246 Ga. 488, 491(1), 271 S.E.2d 792 (1980) (punctuation and citations omitted). "Failure to show one requirement is sufficient to deny a motion for a new trial." Id. (emphasis supplied). Extraordinary motions for new trial are "not favored," and a "a stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on that ground." Crowe v. State, 265 Ga. 582, 590-591(15), 458 S.E.2d 799 (1995) (punctuation and citation omitted). A trial court's ruling on such a motion "will not be reversed unless it affirmatively appears that the court abused its discretion. [Cit.]" Young v. State, 269 Ga. 490, 491-492(2), 500 S.E.2d 583 (1998) (punctuation and citation omitted). For the reasons set forth below, we conclude that the trial court did not abuse its discretion in denying Davis's extraordinary motion for new trial without first conducting a hearing, particularly in light of the requirement under Timberlake that newly-discovered evidence be so material that it probably would result in a different verdict, Timberlake, 246 Ga. at 491(1), 271 S.E.2d 792, and in light of the duty of a defendant to present in the affidavits supporting his or her extraordinary motion for new trial "facts sufficient to authorize that the motion be granted," Dick, 248 Ga. at 899(2), 287 S.E.2d 11 (emphasis in original).

3. Davis's extraordinary motion for new trial relied primarily on affidavit testimony consisting of four types, recantations by trial witnesses, statements recounting alleged admissions of guilt by Coles, statements that Coles disposed of a handgun following the murder, and an alleged eyewitness account. We discuss each of these affidavits, which are the ones highlighted by Davis in his brief on appeal, by category below.

A. Recantations by Trial Witnesses

This Court has noted the general lack of credibility that should be assigned to recantation testimony in the context of an extraordinary motion for new trial, stating that such "[d]eclarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial." Norwood v. State, 273 Ga. 352, 353(2), 541 S.E.2d 373 (2001) (quoting Johnson v. State, 236 Ga.App. 764, 765(1), 513 S.E.2d 291 (1999)). Trial testimony is closer in time to the crimes, when memories are more trustworthy. Furthermore, the trial process itself, including public oaths, cross-examination, and the superintendence of a trial judge, lends special credibility to trial testimony. Accordingly, we have quoted the Court of Appeals as follows:

"The only exception to the rule against setting aside a verdict[,] without proof of a material witness' conviction for perjury, is where there can be no doubt of any kind that the State's witness' testimony in every material part is purest fabrication." Cit. A recantation impeaches the witness' prior testimony. Cit. However, it is not the kind of evidence that proves the witness' previous testimony was the purest fabrication. See, e.g., Fugitt v. State, [251 Ga. 451(1), 307 S.E.2d 471 (1983)] (the evidence offered was extrinsic proof that the witness' testimony was physically impossible; consequently, the trial court was able to determine the truth of the matter without having to take into account the witness' credibility).

Id. See also Drake v. State, 248 Ga. 891, 894, 287 S.E.2d 180 (1982). The trial court relied on this principle in disregarding the alleged recantations in Davis's case. Davis argues that the sheer number of recantations in his case demands a different analysis. Pretermitting whether such an argument might ever be persuasive, we find it unpersuasive in Davis's case in light of the analysis that follows. Thus, under the right for any reason principle, we conclude that Davis has failed to show that these alleged recantations support his extraordinary motion for new trial.

At trial, Jeffrey Sapp testified that he was an acquaintance of Davis and knew him by the nickname, "Rough as Hell." Sapp further testified at trial that Davis admitted that he struck Larry Young, shot Mark MacPhail, and then "finished the job." In an affidavit dated 1996, Sapp stated that he had lied to officers about Davis's admission because he wanted the officers to stop "harassing" him and that he later felt pressured by authorities to maintain his story at trial. Kevin McQueen also testified at trial that Davis confessed his guilt to him. McQueen testified that Davis, while in jail, admitted to shooting MacPhail and then...