Davis v. State

• Decision Date: 26 June 2008
• Docket Number: No. A08A0584.,A08A0584.
• Citation: 292 Ga. App. 782,666 S.E.2d 56
• Parties: DAVIS v. The STATE.
• Court: Georgia Court of Appeals

292 Ga. App. 782

666 S.E.2d 56

292 Ga.App. 782

DAVIS v. The STATE.

No. A08A0584.

Court of Appeals of Georgia.

June 26, 2008.

Reconsideration Dismissed July 17, 2008.

James E. Jarvis, Jr., for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

MILLER, Judge.

A Lowndes County jury found Calvin Jerome Davis guilty of rape, kidnapping, armed robbery, and three counts of possession of a firearm during the commission of a crime. On appeal, Davis claims that the trial court erred in (i) denying his motion for a directed verdict of acquittal, (ii) admitting his in-custody statements to police, (iii) failing to charge the jury on his theory of the case, (iv) admitting hearsay evidence, (v) allowing testimony based on statements not produced to the defense during discovery, and (vi) improperly charging the jury on the crime of conspiracy. Davis also contends that he received ineffective assistance of trial counsel. For the reasons set forth below, we find no error and affirm.

The standard of review on appeal of a criminal conviction is whether, after viewing the evidence in a light favorable to the verdict, any rational trier of fact could have found the defendant guilty of the crime charged beyond a reasonable doubt. The defendant no longer enjoys the presumption of innocence, and we determine only the sufficiency of the evidence. We do not weigh the evidence or assess witness credibility.

(Footnotes omitted.) Johnson v. State, 289 Ga.App. 435, 657 S.E.2d 333 (2008).

So viewed, the evidence shows that on the morning of May 2, 1993, a Lowndes County Sheriff's officer found a woman's partially clothed body lying on the side of Orr Road in Lowndes County. The victim was holding a pair of pants in her left hand. Strewn along the road up to a quarter mile from the body the officer found a purse, military ID card, ATM card, a $20 and $5 bill, and some loose change. A warrant was subsequently issued for Davis's arrest in connection with the victim's death.

On July 30, 1994, an officer with the Kent Police Department in Kent, Washington, stopped Davis for speeding, and a computer check showed that Davis was subject to the Georgia arrest warrant. Davis fled the scene on foot, but was apprehended a short time later. After being apprised of his Miranda rights, Davis gave an oral statement to Kent police officers regarding events in Valdosta, Georgia, the previous year. Approximately an hour later, Davis made a recorded statement.

Davis told the officers that Jermaine Bryant had picked him up at Davis's girlfriend's apartment in Valdosta. Sometime after they "rode off talking," they spotted the victim walking down the road, and Bryant asked her if she needed a ride. The victim, who appeared to be intoxicated, declined the offer at first but eventually got into the back seat. Bryant pulled out a gun and told the victim, "give it up, bitch," which Davis understood to be a demand for money. Davis punched Bryant, hoping that he would drop the gun. When that failed, Davis jumped out of the car and ran away. He heard a single gun shot when he jumped out of the car.

Davis later told a Lowndes County officer that he had gotten into the back seat with the victim, and that, after she began to rub on his leg and kiss him, they had sexual intercourse until she pushed him off. According to this statement, he later asked Bryant to pull the car over so that he could use the restroom. After Davis got out of the car and went into the bushes, he heard two gun shots. When he ran back over to the car he found the victim lying down on the ground with her panties down, and he then ran from the scene.

Davis related a third version of events to an inmate in the Lowndes County jail. Davis told the inmate that he had been driving the car, and that the "other guy" got into the back of the car with a gun and raped the victim. The two men then swapped places, and Davis got into the back seat and had sex with the victim. Bryant subsequently took the victim out of the car and shot her, after which Davis fled the scene. Davis also told Bryant's girlfriend, Valencia Johnson, that he and Bryant had picked up the victim and planned to rob her.

Davis was indicted for murder, rape, kidnapping, and armed robbery, and four counts of possession of a firearm during the commission of a crime. At the July 1996 trial, the medical examiner testified that the victim died as a result of gunshot wounds to the right side of the head and the left side of the neck. The medical examiner also performed a "rape kit" on the victim's body, and then submitted swabs taken from the vaginal area to the Georgia Bureau of Investigation laboratory for DNA testing. The genetic material in the rape kit was positive for Bryant and negative for Davis.

The jury found Davis guilty of rape, kidnapping, armed robbery, and three counts of possession of a firearm during the commission of a crime. The jury found Davis not guilty of murder and one count of possession of a firearm during the commission of a crime. Davis appeals following the denial of his motion for a new trial.

1. Davis claims that the trial court committed reversible error by denying his motion for a directed verdict of acquittal. "It is well-settled in Georgia that there is no error in denying a defendant's motion for a directed verdict of acquittal where the evidence is sufficient to authorize a rational jury to find a defendant guilty beyond a reasonable doubt." (Citation omitted.) Brown v. State, 269 Ga. 67, 68-69(1), 495 S.E.2d 289 (1998).

Davis does not deny that evidence showed that the victim was raped, kidnapped, and robbed, all at gunpoint. See OCGA §§ 16-6-1 (rape); 16-5-40 (kidnapping); 16-8-41 (armed robbery); OCGA § 16-11-106 (possession of a firearm during commission of a crime); Dasher v. State, 281 Ga.App. 326, 329(1)(b), 636 S.E.2d 83 (2006) (although victim got into the car voluntarily, once the defendant refused to let her out of the car and held her against her will, a kidnapping occurred). Davis argues, however, that because Bryant had control of the car and the gun, which he tried to make Bryant drop, and because only Bryant's genetic material was found in the victim, the evidence was insufficient to show that he committed the crimes. We disagree.

Any person who "[i]ntentionally aids or abets in the commission of the crime" is a party thereto and may be charged with and convicted of the crime. OCGA § 16-2-20(a), (b)(3). That Davis aided and abetted in the commission of the crimes was supported by evidence that Davis and Bryant were willing companions; that they stopped to pick up the victim; that Davis and Bryant intended to rob the victim; that Davis assisted Bryant by driving the car at or about the time Bryant was raping the victim; and that Davis then swapped places with Bryant so he could have sexual intercourse with the victim. Thus, any rational trier of fact could conclude beyond a reasonable doubt that Davis was a party to the crimes for which he was convicted. See Norris v. State, 220 Ga.App. 87, 89(2), 469 S.E.2d 214 (1996) ("criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted") (citation and punctuation omitted); Robinson v. State, 208 Ga.App. 528, 529(1), 430 S.E.2d 830 (1993) (although appellant claimed that there was no evidence he either had a gun or knew that his partner was going to use a gun, the jury was authorized to conclude that appellant aided and abetted the commission of the armed robbery). The trial court did not err in denying Davis's motion for a directed verdict.

2. (a) Davis contends that he did not make a knowing and intelligent waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because he was suffering from the effects of pepper spray; because his emotional state of mind prevented him from making an intelligent waiver; because a written and not oral waiver was required; and because officers' failure to reread him his Miranda rights before taking the second statement precluded its admission. We disagree.

Evidence adduced at the Jackson-Denno hearing showed that after Davis fled from the traffic stop, officers used pepper spray in the course of taking him into custody. An officer flushed out Davis's eyes with water to soothe the resulting irritation, and he was moved into a cell. After Davis asked to speak with officers, two officers went into the cell and one of the officers informed Davis of his Miranda rights, including the right to remain silent and the right to a lawyer. The officer then asked Davis if he understood those rights and whether, having those rights in mind, he wished to talk to the officers. Davis responded affirmatively. Approximately 45 minutes passed between the time that the officer flushed out Davis's eyes and the time that the officer informed Davis of his Miranda rights.

The officers heard Davis's oral statement at approximately 3:00 p.m., and then obtained a recorded statement at approximately 4:10 p.m. Davis was not asked to sign a written waiver of his rights with respect to either statement. The officers did not inform Davis of his Miranda rights before he gave the second statement, although they asked Davis beforehand if he still wanted to talk and if he wanted to waive his rights, and Davis responded that he did.

The trial court did not abuse its discretion in finding that, under the totality of circumstances, Davis's statements were freely and voluntarily made following a waiver of his Miranda rights. "Factual and credibility determinations of this sort will not be reversed by the appellate court unless clearly erroneous." (Citatons omitted.) Spain v. State, 243 Ga. 15, 16(1), 252 S.E.2d 436 (1979). Although Davis may have been suffering the continued effects of pepper spray...