Davis v. State
| Decision Date | 20 May 1996 |
| Docket Number | No. S96A0181,S96A0181 |
| Citation | 471 S.E.2d 191,266 Ga. 801 |
| Parties | DAVIS v. The STATE. |
| Court | Georgia Supreme Court |
Viveca Famber, Fulton County Public Defender, Atlanta, for Davis.
Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Caroline Wight Donaldson, Asst. Atty. Gen., Henry Newkirk, Carl Greenberg, Asst. Dist. Attys., Atlanta, for the State.
Brian Anthony Davis brings this appeal from his conviction for murder. 1 The victim, Sapp, was found in a wooded area, shot to death, his body partially burned and with an electrical cord tied to an ankle and his neck. Witnesses testified that Davis, Jones, and Sapp went into the woods, but only Davis and Jones returned, and that both Jones and Davis, who was a juvenile, claimed to have done the shooting. According to witnesses, Davis took other juveniles to the scene after the shooting, urinated on the body, poured gasoline on it and lit it, and dragged it to a ditch by tying an electrical cord to the body. Jones and Davis each testified in his own defense at their joint trial and implicated each other as the killer. Jones was acquitted and Davis was convicted and sentenced to life imprisonment.
1. Although Davis makes no issue on appeal regarding the sufficiency of the evidence to convict him, we have reviewed the record and conclude that the evidence at trial, set out in general terms above, was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Davis was guilty of murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. During the testimony of a witness for the State, the prosecutor produced a statement the witness had earlier given in which he stated that Jones shot Sapp. Davis's complaint on appeal that the failure of the prosecution to reveal the statement before trial pursuant to his request 2 violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is unavailing: " Stephens v. State, 264 Ga. 761(3), 450 S.E.2d 192 (1994).
3. In three enumerations of error, Davis attacks the trial court's denial of his motion to sever his trial from Jones's. The denial of the motion to sever was not error. Absent an abuse of discretion, the denial of a motion to sever the trial of co-indictees in a capital case in which the death penalty is not sought is not reversible error. Chapman v. State, 263 Ga. 393(2), 435 S.E.2d 202 (1993). The existence of purported antagonistic defenses between two co-indictees is not sufficient to warrant the grant of a separate trial, absent a showing of harm. Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975). Davis has made no such showing. His complaint that he could not effectively impeach Jones has no merit: there is no reason to believe that he could have compelled Jones to testify for him at a separate trial, and the State's evidence was sufficient to convict Davis without testimony from Jones. Contrary to Davis's assertion on appeal, the trial court did not exclude evidence that Jones had a motive to kill Sapp because Sapp owed him a drug debt. Davis proffered the testimony and the trial court reserved a ruling until a more complete showing was made, but no further showing was made.
4. Davis complains that the trial court unfairly limited his impeachment of a witness by refusing to order the court reporter to read back the testimony the witness had just given. Whether the trial court will require the court reporter to read former testimony is a matter resting in its sound discretion. Pass v. State, 227 Ga. 730(13), 182 S.E.2d 779 (1971). Here, the trial court noted that the jury had just heard the testimony involved and could remember what had been said. We conclude that no abuse of discretion has been shown.
5. Davis enumerates as error the trial court's refusal to give curative instructions in response to what he characterizes as the State vouching for the credibility of its witnesses. The prosecuting attorney asked one of the State's witnesses whether he was telling the truth then or in an earlier contradictory statement, and asked another witness, who had testified that Jones claimed responsibility for the shooting, whether Davis had told the witness what "really happened." The latter question, considered in context, was plainly directed at eliciting Davis's version of the events as related to the witness, and did not amount to vouching for the witness's credibility. The first question came in the context of impeaching the witness by showing a contradictory statement. Although the question was not posed on cross-examination, it was asked in the course of impeaching the witness. The current state of the law permitting a party to impeach that party's own witnesses (see Rollins v. State, 262 Ga. 698, 699(1), 425 S.E.2d 285 (1993)) makes applicable here the holding in Loomis v. State, 78 Ga.App. 153(8), 51 S.E.2d 13 (1948), that it is proper to ask a witness confronted with contradictory testimony on which occasion the witness was telling the truth.
6. The record being devoid of any evidence that the killing was preceded by any serious provocation, the trial court did not err in refusing to give Davis's requested charge on voluntary manslaughter. Gooch v. State, 259 Ga. 301(3), 379 S.E.2d 522 (1989).
7. Davis complains on appeal that the trial court erred in refusing to give Davis's requested charge on circumstantial evidence. The record reveals, however, that the language Davis contends should have been given in charge was not in a request concerning circumstantial evidence, but was included in a requested charge on presence at the scene of a crime. Furthermore, the request did not accurately track the law on circumstantial evidence. Walker v. State, 213 Ga.App. 407(8), 444 S.E.2d 824 (1994). The trial court did not err in refusing the request.
Alternatively, Davis contends that the trial court, even absent a request, was required to give a complete charge on circumstantial evidence in the language of OCGA § 24-4-6 because the State's case depended entirely upon circumstantial evidence. While Davis's...
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