Davenport v. State

• Decision Date: 02 July 2020
• Docket Number: S20A0035
• Citation: 309 Ga. 385,846 S.E.2d 83
• Parties: DAVENPORT v. The STATE.
• Court: Georgia Supreme Court

309 Ga. 385

846 S.E.2d 83

DAVENPORT

v.The STATE.

S20A0035

Supreme Court of Georgia.

Decided: July 2, 2020

Jerry W. Chappell, P.O. Box 621, Roswell, Georgia 30077, for Appellant.

Christopher Allen Arnt, Herbert E. Franklin, Lookout Mountain Judicial Circuit District Attorney's Office, P. O. Box 1025, 114 East Patton Street, LaFayette, Georgia 30728-1025, Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Leslie Anna Coots, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

Bethel, Justice.

Brian Colby Davenport appeals his convictions for malice murder and other crimes in connection with the death of Debora Lynn Abney.¹ Davenport contends that the evidence was insufficient to convict him, and that the trial court erred by admitting improper character evidence under OCGA § 24-4-404 (b) and certain hearsay evidence. We affirm because the evidence was legally sufficient to support Davenport's convictions, any error in the admission of the Rule 404 (b) evidence was harmless, and the trial court did not abuse its discretion in admitting the hearsay evidence. However, today we also announce that we will end our practice of sua sponte review of the constitutional sufficiency of the evidence supporting convictions in appeals of non-death penalty murder cases, beginning with cases that docket to the term of court that begins in December 2020. The Court will begin assigning cases to the December Term on August 3, 2020.

Viewed in the light most favorable to the jury's verdicts,² the evidence shows that on March 11, 2016, deputies from the Catoosa County Sheriff's office responded to a reported shooting. Upon arrival, an officer discovered Abney slumped over in the front passenger seat of a vehicle. Davenport was also at the scene, shirtless.

Davenport initially told officers that he and Abney had been in court earlier that day for a Department of Family and Children Services (DFCS) hearing concerning their two younger children and that Abney was upset after the hearing. After leaving the courthouse, they stopped at a few locations to purchase alcohol and items to make sandwiches. The two then went on a picnic, where Abney began drinking. Davenport told officers that Abney shot herself when he was standing at the trunk of the vehicle. He said that he ran around the vehicle, saw that Abney had shot herself, and called his mother (who called another person who then called 911).

A GBI agent testified that when he arrived on the scene, he observed Davenport wiping his head, neck, and torso with a cloth. He did not observe any blood on Davenport, but did notice drops of blood on Davenport's shoes.³ A gun was found in Abney's left hand, though Abney was right-handed. Mud and soil were found impacted in the barrel of the gun. The GBI agent testified the mud and soil should not have been in the gun if the weapon had remained in Abney's hand after being fired. Luminol testing later revealed the presence of blood on the dashboard of the vehicle, and the pattern indicated that it had been wiped away. Blood particles were also found on the front windshield. Finally, Abney had been shot in the back of the head, and gunshot primer residue was found on Davenport's clothing. The medical examiner concluded that the manner of death was homicide.

During his interview with police, after being given Miranda warnings,⁴ Davenport initially stated that upon seeing that Abney had shot herself and was bleeding, he took off running. But after being confronted with the finding of mud in the barrel of the gun, Davenport claimed that after he heard the gunshot, he saw the gun go flying out of the driver's side door. When the investigator told Davenport that the investigator had a "problem" with Davenport's revised version of events, Davenport then stated that the gun fell between the seat and the console in the vehicle, and that he got in the driver's seat to pick up the gun. Davenport said that he dropped the gun getting out of the car, and then stuck the gun back in Abney's left hand. Davenport told investigators that he did not tell them this version of events initially because he was worried they would think that he shot Abney.

Two of Abney's daughters testified about witnessing Davenport strike Abney and, in one instance, observed Davenport holding a gun to Abney's head. A police officer testified that he had previously responded to a domestic violence incident between Davenport and Abney. A DFCS case worker who had been working with the family testified that she observed recent injuries to Abney on one visit, which Abney told her resulted from Davenport hitting and biting her, and that on another occasion, Abney called her and confided in her that she was afraid for her life. Abney's mother also testified that she observed bruising on Abney, who told her that Davenport hit her, and that Abney told her she was afraid that Davenport would kill her. Abney's other daughter testified that she saw Davenport hitting Abney, that she would often go to pick up her mother to get her away from Davenport, and that Davenport regularly threatened Abney. Additionally, Abney's former landlord testified that she would hear Abney and Davenport arguing, and then would see bruises on Abney the following day.⁵ Finally, the expert witness called by the defense conceded that it was unlikely that Abney contorted herself enough in the vehicle to shoot herself with her non-dominant hand in the back of her head.

1. Davenport argues that the evidence is legally insufficient to sustain his conviction for malice murder because the evidence presented at trial did not exclude the reasonable hypothesis that Abney committed suicide. Although not raised as error, we also evaluate the legal sufficiency of the evidence presented at trial on the other counts for which Davenport was convicted.⁶

When we consider the sufficiency of the evidence as a matter of federal due process, we view the evidence in the light most favorable to the verdict and evaluate whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia , 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Under this review, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact." (Citation and punctuation omitted.) Mims v. State , 304 Ga. 851, 853 (1) (a), 823 S.E.2d 325 (2019). Further, as a matter of Georgia statutory law, "[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-14-6. However, "not every hypothesis is a reasonable one, and the evidence need not exclude every conceivable inference or hypothesis – only those that are reasonable." (Citation and punctuation omitted; emphasis in original.) Graves v. State , 306 Ga. 485, 487 (1), 831 S.E.2d 747 (2019). Whether a hypothesis is reasonable or not is for the jury to decide. See id. ; Outler v. State , 305 Ga. 701, 703 (1) (a), 827 S.E.2d 659 (2019) ; Murray v. State , 271 Ga. 504, 505 (1), 521 S.E.2d 564 (1999).

Here, Davenport's own expert witness testified that it was unlikely that Abney shot herself in the back of the head. The State's forensic pathology expert and crime scene investigation expert both determined the case to be a homicide rather than a suicide. Further, numerous pieces of evidence suggested that the crime scene had been staged by the time law enforcement arrived: the gun was found in Abney's left hand even though she was right-handed, mud and dirt were in the barrel of the gun, and the blood pattern on the dashboard and glove box area appeared to have been wiped down. Investigators also found gunshot primer residue on Davenport's clothes. Finally, Davenport gave inconsistent stories to police, and he had a history of physical violence and threats toward Abney. Considering all the evidence in the light most favorable to the verdicts, we conclude that the jury was authorized to find beyond a reasonable doubt that Davenport was guilty of malice murder and the other crimes of which he was convicted. The jury was also authorized to determine that the proved facts were not only consistent with Davenport's guilt but that they also excluded every other reasonable hypothesis as to how Abney died. Thus, when viewed as a whole, the evidence presented at trial was sufficient to support Davenport's convictions as a matter of due process and under OCGA § 24-14-6. See Frazier v. State , ––– Ga. ––––, –––– (2) (b), 841 S.E.2d 692, 696 (2020).

2. Davenport next argues that the trial court committed a harmful error when it permitted the State, pursuant to OCGA § 24-4-404 (b), to present evidence that Davenport allegedly abused his ex-wife more than 20 years before Abney's death. We disagree that the admission of this evidence was harmful to Davenport.

Assuming without deciding that the trial court abused its discretion in admitting the challenged evidence, any error was harmless and does not require reversal. "A nonconstitutional error is harmless if it is highly probable that the error did not contribute to the verdict." Adkins v. State , 301 Ga. 153, 158 (3) (a), 800 S.E.2d 341 (2017). Here, the evidence presented against Davenport, though circumstantial, was very strong. As noted above, the forensic evidence indicated that Davenport shot Abney, attempted to cover up the crime, and then fabricated a story to the police that Abney killed herself. Additionally, substantial evidence was introduced detailing Davenport's history of violence against Abney, which included threatening her with a firearm. Thus, considering the evidence presented at trial and weighing it as reasonable jurors would, w...