Davis v. State

• Decision Date: 24 April 2007
• Docket Number: No. S07A0116.,S07A0116.
• Citation: Davis v. State, 644 S.E.2d 113, 281 Ga. 871 (Ga. 2007)
• Parties: DAVIS v. The STATE.
• Court: Georgia Supreme Court

281 Ga. 871

644 S.E.2d 113

DAVIS v.The STATE.

No. S07A0116.

Supreme Court of Georgia.

April 24, 2007.

Lee William Fitzpatrick, Lee W. Fitzpatrick & Associates, Kennesaw, for Appellant.

James David McDade, Dist. Atty., Christopher Robert Johnson, James Alan Dooley, Asst. Dist. Attys., Douglasville; Thurbert E. Baker, Atty. Gen., Laura D'Ann Dyes, Asst. Atty. Gen., Dept. of Law, Atlanta, for Appellee.

THOMPSON, Justice.

AppellantFrederick Lee Davis was convicted of malice murder, two counts of felony murder, kidnapping with bodily injury, two counts of armed robbery, and aggravated battery, all arising out of the shooting death of Stacey Leigh.¹He appeals from the trial court's denial of his motion for new trial.After reviewing appellant's enumerations of error, we affirm in part and reverse in part with direction.

1.Viewed in the light most favorable to the verdict, the jury was authorized to find that on the day of the crimes appellant and two other men went to the victim's home where they fatally beat and shot the victim, then stole jewelry, cash, and a gun.A neighbor witnessed appellant and the two men hurriedly exit Leigh's home and flee in an automobile.The neighbor wrote down the vehicle's license number and gave it to police, who determined the car was registered to appellant.

The next day, appellant, who was shot during the crimes, instructed his wife to discard his bloody clothing in a place where it could not be easily found.Appellant then sought medical treatment at the hospital, where he was arrested.Appellant's wife subsequently led officers to appellant's clothing.Guns used in the crimes were discovered on the shoulder of a road near the victim's home.

Several days after his arrest, appellant attempted suicide.When a sheriff's department investigator went to the jail to check on appellant's status, appellant asked to speak with him.The investigator declined because appellant was represented by counsel.Appellant stated that the attorney no longer represented him and that he wanted to talk.Appellant proceeded to tell the investigator that the guns discovered by police had been discarded from his car by the other men.

On August 9, 1999, the investigator conducted another interview with appellant after appellant sent several letters stating that he wished to talk.During this conversation, appellant offered to provide the names of the other men if the State promised not to charge appellant with murder.The investigator informed appellanthe could not agree to such a deal and he began walking appellant back to his cell.As they passed an assistant district attorney in the hall, appellant asked the ADA if he could speak to him.The ADA inquired whether appellant had been advised of his Miranda rights, to which appellant responded that he wanted to talk, and the ADA pointed out that he could not talk to appellant because he was represented by counsel.Appellant then reiterated his desire to trade information regarding the other perpetrators for an agreement not to charge him with murder.

The evidence presented by the State was sufficient to authorize a rational trier of fact to find appellant guilty of the crimes charged beyond a reasonable doubt.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Contrary to appellant's contention, the trial court did not err by failing to merge the armed robbery counts into the felony murder count predicated on the underlying felony of armed robbery.When a defendant is convicted of malice murder and felony murder of the same victim, and of the separately charged felony on which the felony murder count is predicated, the felony murder count is vacated by operation of OCGA § 16-1-7, and the defendant may be sentenced for the felony conviction so long as the felony is not included in the murder as a matter of fact or law.Malcolm v. State,263 Ga. 369(5), 434 S.E.2d 479(1993).Armed robbery and malice murder are separate crimes which do not merge as a matter of law.SeeBaines v. State,276 Ga. 117(3), 575 S.E.2d 495(2003);Lemay v. State,264 Ga. 263, 265(1), 443 S.E.2d 274(1994).Nor do the crimes in this case merge as a matter of fact.SeeBlockburger v. United States,284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306(1932)(test to determine whether there are two offenses or one is whether each provision requires proof of fact which other does not);Drinkard v. Walker,281 Ga. 211, 214, 636 S.E.2d 530(2006)(adoptingBlockburger"required evidence" test);OCGA § 16-1-6.Evidence showing appellant's intent to rob the victim was not used in proving the murder, and evidence that appellant shot the victim was not used to prove the armed robbery.Thus, armed robbery was not included in the murder charge as a matter of fact or law and there was no merger.

3.Nor did the court err by failing to merge the aggravated battery and kidnapping with bodily injury counts.Appellant asserts that these counts merged because the injury caused by the battery was the same bodily injury alleged in the kidnapping count.The record demonstrates that count 4 of the indictment charged appellant with kidnapping with bodily injury consisting of a broken leg and multiple wounds to the victim's head.In count 7, appellant was charged with committing the offense of aggravated battery by "seriously disfiguring [the victim's] body by repeatedly beating him in the head."Count 4 thus contained an additional injury, a broken leg, which was not included in count 7, and the evidence which authorized appellant's conviction of aggravated battery is separate and distinct from the evidence which authorized his conviction of kidnapping with bodily injury.SeeScott v. State,276 Ga. 195(1), 576 S.E.2d 860(2003)(aggravated assault conviction authorized where evidence of beating was separate and distinct from evidence of choking which supported murder conviction);Claypool v. State,188 Ga.App. 642(6), 373 S.E.2d 765(1988)(separate convictions for rape and kidnapping with bodily injury authorized where defendant charged with more than one rape and victim was beaten during the rapes).CompareGuillen v. State,258 Ga.App. 465(6), 574 S.E.2d 598(2002)(aggravated battery and kidnapping with bodily injury convictions merged where evidence establishing bodily injury was same as that used to establish injury resulting from aggravated battery).See generallyLowe v. State,267 Ga. 410(1)(b), 478 S.E.2d 762(1996). ...