Dailey v. State
| Decision Date | 29 May 2012 |
| Docket Number | No. A11A1894.,A11A1894. |
| Citation | 313 Ga.App. 809,723 S.E.2d 43,12 FCDR 440 |
| Parties | DAILEY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Sharon Lee Hopkins, Duluth, for appellant.
Daniel J. Porter, Dist. Atty., Tracie Hobbs Cason, Asst. Dist. Atty., for appellee.
In connection with a crime spree that culminated in a shoot-out with a law enforcement officer, Jay Matthew Dailey was tried by a jury, then convicted of various offenses against numerous victims. In this appeal, Dailey challenges on Miranda 1 grounds the admission of his police statements; he also challenges the denial of certain jury charge requests. Pretermitting whether any Miranda violation occurred, we conclude that the trial transcript confirms that any error in the admission of the contested statements was harmless. The transcript confirms also that Dailey was not entitled to the cited jury charges. We affirm.
The crime spree occurred at lunchtime on February 1, 2008, along a well-traveled stretch of roadway. To prove its case that Dailey had committed the crimes, the state called at trial numerous victims, bystanders, and responding officers. They recounted the following.
An 11–year–old boy who was visiting his great-grandmother at her house testified that he noticed a car parked at a nearby church, particularly because no other cars were there. Abruptly, with tires squealing, the car sped away from the church and crashed into a fire hydrant across the street. The driver, a man, got out of the car and began walking down the street. He was wearing a bulletproof vest; he was talking to himself and “shaking his head”; his gait was “kind of strange, like he was drunk”; and he was carrying in his hand what appeared to be a gun. The man walked out of the boy's view. Soon thereafter, the boy heard screams and gunfire.
A woman who was traveling that roadway to pick up her preschool children testified that, around the time in question, she saw a car positioned as though it had crashed into a fire hydrant; the car was located in a grassy area. A man was standing behind the car, putting on or adjusting a bulletproof vest. After doing so, the man darted across the street, and the woman could no longer see him.
Leresa Graham testified that, around the time in question, she was driving her gold SUV to her place of employment in the area. A man ran toward her in her lane of travel, and he was putting on what appeared to be a bulletproof police vest. Graham slowed her vehicle, and the man approached her window, stated that he was a police officer, displayed a police badge, claimed that he was hurt, and asked her to dial 911. But when she grabbed her phone, the man slapped it out of her hand, then sprayed pepper spray on her face. Graham screamed and closed her window, clamping the man's arm. The man repeatedly screamed that he would kill her. Barely able to see, Graham continued to scream for help. The man began “checking the [back] door” of Graham's vehicle. He eventually smashed Graham's window with an object she was unable to identify, threw the pepper spray cannister at her, then walked away. Because of the pepper spray effects, Graham could not ascertain the man's whereabouts, and she continued to scream for help about a man trying to kill her. Soon thereafter, Graham recalled, a man, and later, a police officer came to her aid. At trial, Graham described her injuries, and she identified Dailey as the man who had accosted her, injured her with pepper spray, and threatened to kill her.
Chuck Sheldt testified that, at about 11:00 a.m. or noon that day, he was driving along his usual route to his job. As he approached a gold SUV stopped in his travel lane, he saw a man standing outside the SUV beating on the driver's side window with “something in his hand.” The man was wearing a bulletproof vest. Although Sheldt drove around the commotion, he circled back to the SUV to render aid. By then, the driver's window of the SUV had been shattered, and the woman inside the vehicle was screaming “at the top of her lungs.” Sheldt stopped his truck at the SUV to talk to the man, who was about eight feet away. But the man, using both hands, raised a gun, then aimed it at Sheldt. Instantly, Sheldt ducked and “hit the gas pedal,” running his truck into a ditch before fleeing the scene. Sheldt dialed 911 and reported the gunman. At trial, Sheldt identified Dailey as the gunman.
Barry Smith's wife worked in the area. As he was taking lunch to her that day, he came upon a car positioned at a fire hydrant such that it appeared to have “taken a quick dart off the road.” Smith noted a man nearby who was staggering, “almost falling into the road”; Smith noted also that the man was wearing a vest. After dropping off his wife's lunch about a mile away, he traveled back along the same route. This time, he saw a gold SUV stopped in his lane of traffic, and a truck (and another vehicle) that had “pulled off across from” the stopped SUV. As Smith was slowly maneuvering around the vehicles, he encountered the man, who looked directly at him, raised in clasped hands what Smith discerned was a gun, then aimed the weapon at him. There was no one else near Smith, and he characterized the gunman's action as “deliberate” and targeted at him. Smith drove away from the area, saw a patrol car within a mile, flagged it down, and reported to the officer inside that a man wearing a vest had just pointed a gun at him. At trial, Smith identified Dailey as the gunman.
Paul Phillips was the officer flagged down by Smith. He testified that he was driving home from an extra job directing traffic in the area at about noon on the date in question. He was wearing a police jacket and duty pants when he stopped his marked patrol vehicle at the behest of a motorist waving insistently. Upon hearing the motorist's report about a gunman, Phillips activated his patrol car's blue lights and drove to the reported scene about a quarter-mile away. The officer saw an SUV stopped in the roadway, and alongside it on the ground, broken glass. He stopped near the SUV, then exited his patrol car. Screams were coming from the SUV, which was undulating from weight shifting. About this time, a man wearing police gear—a bulletproof vest and a duty belt—brandished a firearm, then “made a tactical maneuver around the corner of the back of the [SUV]” to face Phillips. Determining, thus, that the gunman was an officer, Phillips signaled to him that he was a law enforcement officer there to help. But the gunman aimed his gun at Phillips, who then commanded: “Police, drop the gun!” The man instead opened fire, severely wounding Phillips. Returning gunfire, Phillips retreated to his patrol car; shots continued to be fired at him, shattering the patrol car's windshield. The barrage ceased, however, and Phillips observed that the man's hand was bleeding and that the man nevertheless was attempting to “ function” his weapon. Thereupon, Phillips ordered the gunman to drop his weapon, walk toward him, then lie on the ground. This time, the shooter complied with Phillips's command. At about five feet from the patrol car, the shooter blurted: Phillips issued an “officer down” summons for assistance. Because of Phillips's severe wound, a motorist who meanwhile had stopped at the scene helped to restrain the shooter on the ground, while Phillips was “covering the defendant with [his] firearm to assure that he did not injure the public any further.” At trial, Phillips identified Dailey as the shooter.
The first officer to respond to Phillips's summons arrived to find a woman screaming in a gold SUV, stopped in a lane of traffic; a man lying on the ground, bleeding from a wounded hand; and an officer sitting in a patrol car, bleeding profusely from a wounded arm. Lying on the ground near the SUV were a bulletproof vest and a handgun. Based on information provided by Phillips, the woman in the gold SUV, and the man restraining the man with the wounded hand, the responding officer handcuffed the man lying on the ground. When the responding officer asked Phillips whether that man was the only perpetrator, Phillips responded yes. Also, the man himself volunteered, “I'm the perp ... I'm the only perp.” The man added that he had “messed up” and recommended that the responding officer “just shoot him in the head.” The responding officer found on the perpetrator's person two loaded firearms, ammunition clips, and a pocket knife. At trial, the responding officer identified Dailey as the man who had been lying on the ground with weaponry stashed on his person and who identified himself as the sole perpetrator of the crimes committed.
The second officer to respond to Phillips's summons arrived to find a man lying on the ground in handcuffs and an officer attending to Phillips's visible injury. This officer testified about a fourth handgun found in a nearby grassy area. He testified also that the handcuffed man said more than once that he was the only “perp on scene” and that he wanted the officers to kill him. At trial, this second responding officer identified Dailey as the man who claimed to have solely perpetrated crimes at the scene.
The third officer who responded testified that he arrived to find a bleeding, handcuffed man lying on the ground; a bleeding Phillips sitting in his patrol car with bullet holes through the driver's side of the windshield; a hysterical woman in a gold SUV; and a bulletproof vest lying on the ground. This third responding officer inspected the vest and found a bullet lodged in it. About this time, emergency medical personnel arrived and began to treat the wounded men. This responding officer accompanied the perpetrator during his ambulance transport to the hospital's emergency room to make sure that the man did not leave and did not hurt anyone else. At trial, this responding officer identified Dailey as the...
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