Davis v. State

• Decision Date: 10 March 2021
• Docket Number: A20A1727
• Citation: 358 Ga.App. 832,856 S.E.2d 411
• Parties: DAVIS v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 832

856 S.E.2d 411

DAVIS

v.The STATE.

A20A1727

Court of Appeals of Georgia.

March 10, 2021

Joseph Scott Key, Kayci Nicole Timmons, for Appellant.

Penny Alane Penn, Jennifer Lynn Scalia, for Appellee.

Pipkin, Judge.

Appellant Joshua Davis was convicted by a jury of two counts of vehicular homicide, four counts of serious injury by vehicle, driving under the influence, and reckless driving. He appeals following the denial of his motion for new trial, arguing that the evidence was insufficient to convict him, that the trial court erred by admitting evidence of his refusal to submit to blood or urine testing under Georgia's implied consent statute, that the trial court erred by failing to grant a mistrial when the State made allegedly improper closing arguments, and that he was denied effective assistance of counsel at trial. As set forth below, we now affirm.

Construed to support the jury's verdict,¹ the evidence shows that on May 7, 2016, Scott Blake was traveling westbound on McGinnis Ferry Road when he observed an orange and black truck, which, as it was later determined, was being driven by Davis, weave in and out of its lane approximately three to five times. Blake testified that he did not want to be behind the truck because of the erratic driving, so he passed the truck but continued to observe it in his rear view mirror.

Blake turned right onto Old Atlanta Road and observed Davis’ truck, which was directly behind him, make the same turn. Blake saw Davis’ truck weave outside of its lane of travel a "few" more times, until they reached a point where the road curves "pretty severely" to the right, at which time Davis continued straight into the oncoming lane of travel. Davis’ truck then collided "head on" with a "work" truck, which was pulling a Bobcat trailer."² Several occupants of the work truck testified that they saw Davis’ truck coming toward them in their lane and that their driver, Aldolfo Mendoza, braked and attempted to take evasive action but that they could not get out of the path of the oncoming vehicle because of a guard rail. Blake said he heard Mendoza apply his brakes and saw him steer toward the guardrail, but that it did not appear that Davis applied his brakes or took any action to avoid the collision.

Blake stopped his vehicle and, after observing several people trying to assist the occupants of the work truck, checked on Davis. According to Blake, he knocked on the window to try and get Davis’ attention, but Davis did not respond, although Blake could see that he was conscious. Blake attempted to enter the truck, but the driver's side door was jammed shut and the passenger's side door was locked. Concerned because the truck was leaking fluids and smoking, Blake broke out the passenger's side window and opened the door. Blake observed that Davis was bleeding a "little bit" from his lip and appeared to be dazed and "out of it." Blake said the first thing that Davis did when he was out of the vehicle was to ask about the location of his cell phone, and Blake told him it was still in the truck. Davis recovered his cell phone, and then he asked Blake what happened. Blake told Davis what he saw, and Davis told Blake that he had looked down at his phone and the next thing he knew he was on the side of the road. Blake encouraged Davis to sit along the side of the road, but Davis kept trying to go back in his vehicle and even after law enforcement arrived, Davis had to be "repeatedly retrieved" from his vehicle. Blake also testified that Davis did not complain about any injuries and that the only injury he observed was a small trickle of blood on Davis’ lip.

Another witness – O'Neil Foster – stopped to render aid. He testified that when he first saw Davis in his truck he appeared to be unconscious, but that after Davis was taken out of the vehicle, he started smoking a cigarette and then he walked around his truck. He testified that Davis appeared to be "nonchalant," and that he did not observe Davis go toward the work truck or attempt to render aid.

Deputy John Christopher Hiott with the Forsyth County Sheriff's office was the first law enforcement officer to arrive on the scene. Deputy Hiott first approached the work truck and ascertained that everyone in the vehicle appeared to have suffered injuries and that Mendoza was entrapped and appeared to be severely injured. Deputy Hiott then approached Davis, who was walking around and seemed "dazed and confused," although when asked, he told Deputy Hiott he was fine. Davis provided his driver's license, but did not comply with Deputy Hiott's repeated requests that he wait outside of his vehicle. Deputy Hiott testified that it appeared that Davis was trying to find something in his truck, looking under the seat, behind the seat, and in the center console; he also observed Davis move objects around in the back of the truck. While Davis initially appeared to be disoriented and confused, by the time Davis was questioned by emergency medical services workers, he did not appear to have any immediately detectable cognitive impairment. Davis was asked several times if he wanted medical treatment, but he declined.

Mendoza was transported to Grady Memorial Hospital where he died from his injuries several weeks later. The passengers of the work truck were transported to another hospital, and two of the passengers were determined to have suffered serious injuries.³

Due to the injuries and severity of the accident, Deputy Hiott contacted the traffic specialist unit, and Deputy Andrew Ives of the Forsyth County Sheriff's Office was assigned to investigate the collision. Based on his initial walk-through of the crash cite, Deputy Ives concluded that Davis’ vehicle had crossed over the centerline.

After completing his walk through and speaking with Deputy Hiott, Deputy Ives approached Davis. He said that he noticed that Davis had some dried blood on his lip, that he had scratches on his arm, an abrasion on his knee

, and an abrasion on his left shoulder and neck consistent with seat belt use. Deputy Ives testified that based on Davis’ speech – which he said seemed "somewhat thick and a little slow" – Davis’ "unusually" constricted pupils, and the manner in which the crash occurred, Deputy Ives requested another deputy to conduct a DUI investigation while he continued to investigate the crash.

Davis told Deputy Ives that he had reached down to grab his cell phone shortly before the collision, and prior to his arrest, Davis gave law enforcement permission to look at his phone. When Deputy Ives examined the phone, he noticed that it appeared that call and text data from approximately 12:30 p. m. to 4:00 p. m. had been erased from Davis’ phone. When asked about the missing information, Davis told police that his fiancee had deleted it the day before. Deputy Ives asked Davis how his fiancee could have deleted information the day before it occurred, and Davis did not have an answer. The phone was taken into evidence and a more extensive analysis was consistent with Davis having deleted information from his phone, which was also confirmed by an examination of Davis’ cell phone records.

Deputy Ives’ investigation of the crash confirmed his initial impression that the collision was the result of Davis leaving his lane of travel and crossing over into the oncoming lane, at which point he struck the work truck. Deputy Ives also testified that it appeared that Mendoza had attempted to take evasive action to avoid the collision but there was no physical evidence indicating that Davis had braked or otherwise tried to avoid the collision.

Davis was on probation at the time of the collision and had waived his Fourth Amendment rights as a condition of his probation. The parties agreed that a stipulation to that effect would be read to the jury, and the trial court gave a limiting instruction before the State read the stipulation. The stipulation specifically stated that, as part of waiving his Fourth Amendment rights, Davis had consented to testing of his bodily fluids for drugs or alcohol. In addition to the limiting instruction, the stipulation itself advised the jury that the fact that Davis was on probation was introduced only for the limited purpose of explaining the Fourth Amendment waiver and should not be considered for any other purpose.

Deputy Mike Downing, a member of the Forsyth County Sheriff's Office DUI Task Force, conducted the DUI portion of the investigation. Deputy Downing testified that he noticed that Davis had a bloody lip, and observed that Davis’ demeanor was casual, appearing somewhat nonchalant. Deputy Downing also noticed that Davis’ pupils were pinpointed, but he also noted that Davis was sitting in direct sunlight. He described Davis’ speech as "thickened," with a "heavy context of consonant sounds."

Deputy Downing asked Davis if he would consent to field sobriety testing. Davis agreed, and Deputy Downing questioned him about any injuries or preexisting conditions that would affect his performance. Davis mentioned that he had been injured in the eye with a stick at an early age, and mentioned his knee being injured in the wreck. Deputy Downing first conducted the horizontal gaze nystagmus

("HGN") evaluation; and Davis exhibited zero clues out of six on the test. Deputy Downing testified that his performance on this test basically eliminated central nervous system depressants, such as alcohol and inhalants, as a cause of impairment. Deputy Downing also had Davis blow into an alco-sensor, and the results indicated Davis was not under the influence of alcohol.

Davis also performed the walk and turn test. On this test, Davis exhibited three out of eight clues indicating possible impairment; Deputy Downing testified that two clues were indicative of impairment. Deputy Downing then had Davis perform the one-leg stand. Davis exhibited three out of four clues on that test, and Deputy Downing testified two out of four clues indicates possible impairment. Deputy...