Davis v. State

• Decision Date: 28 April 2009
• Docket Number: No. S09A0395.,S09A0395.
• Citation: 676 S.E.2d 215,285 Ga. 343
• Parties: DAVIS v. The STATE.
• Court: Georgia Supreme Court

676 S.E.2d 215

285 Ga. 343

DAVIS v. The STATE.

No. S09A0395.

Supreme Court of Georgia.

April 28, 2009.

Brian Steel, Garland, Samuel & Loeb, Donald F. Samuel, Firestone & Morris, Bruce H. Morris, Atlanta, for appellant.

Paul L. Howard Jr., District Attorney, Elizabeth A. Baker, Bettieanne C. Hart, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Christopher R. Johnson, Assistant Attorney General, for appellee.

CARLEY, Justice.

A jury found Scott Winfield Davis guilty of malice murder and two counts of felony murder. The trial court entered judgment of conviction on the malice murder, and sentenced Davis to life imprisonment. The felony murder verdicts were vacated by operation of law. Malcolm v. State, 263 Ga. 369, 372(4), 434 S.E.2d 479 (1993). The trial court denied a motion for new trial, and Davis appeals.^*

1. Construed most strongly to support the verdict, the evidence shows that after two years of marriage, Davis' wife filed for divorce and moved out of the couple's home. Davis, who did not want to get divorced threatened to kill anyone who had a sexual relationship with his wife. Davis' wife subsequently began dating David Coffin, and Davis hired a private investigator to follow her. Davis asked the investigator to locate Coffin's home address and telephone number, and after the investigator provided the information to him, Davis said that he was going to drive by Coffin's residence during the next weekend. That Saturday night, Coffin's house was burglarized, and his car was stolen. During the burglary, a call was made from Coffin's home to Davis' house, and later that night Davis made repeated calls to his wife's apartment, asking if she was sleeping with Coffin.

Two days after the burglary, Davis called in sick to work, and sometime that night, Coffin was fatally shot inside his house. The next morning, Coffin's car and other items stolen from his home were found burning near a MARTA station. A gas can and bag found inside the burning car were identified as being similar to items owned by Davis. That night, Coffin's house was destroyed by arson, and his body was found inside.

That same night, Davis made false reports to the police about having twice been attacked by an unidentified assailant at his own house, claiming one attack before, and another attack after, the fire at Coffin's home. During his statement to police about the alleged attacks, Davis said that he knew Coffin had been shot. However, at that time, the police did not know Coffin had been shot due to the charred condition of his body. It was not until the autopsy was later performed that the cause of death was revealed to be a gunshot wound to the head. A few days later, Davis attempted to establish an alibi for himself by asking a neighbor to say that he had seen Davis at a gym on the night of the murder. The evidence is sufficient to authorize a rational trier of fact to find Davis guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Davis claims that the trial court improperly allowed the State, during closing argument, to elicit sympathy from the jury and inject religion into the case by dimming the lights and calling for a moment of silence. However, Davis' claim does not accurately reflect what occurred at trial. The record reveals that the prosecutor merely asked the jurors to remember the victim, after which the lights were dimmed as pictures of the victim, which had been introduced into evidence, were displayed. This did not constitute a call for a moment of silence or an improper religious reference. See Millen v. State, 267 Ga.App. 879, 885, 600 S.E.2d 604 (2004) (on Motion for Reconsideration) (no improper invitation to base verdict on religion). Moreover, because the photographs were properly admitted as evidence in the case, it was not inappropriate for the State to display them during closing argument. See McPherson v. State, 274 Ga. 444, 453(19), 553 S.E.2d 569 (2001) (no error for State, during closing argument, to display photograph of victim in life that had been admitted at trial). Even if the argument could be construed as an attempt to evoke sympathy, "[a]rgument which evokes sympathy ... is not necessarily improper." James v. State, 270 Ga. 675, 680(12), 513 S.E.2d 207 (1999). See also Dupree v. State, 267 Ga. 38, 40(3), 472 S.E.2d 299 (1996) (not error for a prosecutor to point out victim's family in the courtroom). Furthermore, any purported harm was cured when the trial court instructed the jurors that they could only consider the evidence and the law as charged, and that sympathy for the victim and his family should play no role in their verdict. See Harper v. State, 249 Ga. 519, 535(14), 292 S.E.2d 389 (1982) (no reversible error where, after State's alleged attempt to elicit sympathy during closing argument, court charged jury that sympathy could play no role in their determination of guilt or innocence).

3. Davis contends that the trial court improperly charged the jury on the law of party to a crime when there was not any evidence to support such a charge. Contrary to this contention, the trial court did not charge the jury on the substantive law of party to a crime. Rather, the court's instruction on the defense of alibi included the following:

Presence of the defendant at the scene of the crime alleged, or the defendant's involvement as a coconspirator or as a party to the crime, is an essential element of the crimes set forth in this indictment, and the burden of proof rests upon the state to prove such beyond a reasonable doubt.

This brief mention of party to a crime within the alibi instruction "appears to be no more than a passing general reference...." Francis v. State, 266 Ga. 69, 72(3), 463 S.E.2d 859 (1995). Moreover, a review of the charge as a whole shows that the trial court fully instructed the jury as to the crimes charged, the presumption of innocence, the defense of alibi, and the State's burden of proof. Within the context of the entire jury charge, it is highly probable that the passing reference to the term "party to the crime" did not contribute to the verdict, and therefore any impropriety was harmless. See Richards v. State, 251 Ga. 447, 449(1), 306 S.E.2d 302 (1983) (incidental use of the word "confession" in the jury charge did not contribute to the verdict); Green v. State, 240 Ga.App. 650, 652(2), 523 S.E.2d 632 (1999) (passing reference to prior difficulties in jury charge was harmless error).

4. Davis argues that two witnesses for the State were improperly allowed to give their opinions about the ultimate issue in the case. Greg Gatley, who was Davis' neighbor, testified that he "believed [Davis] was involved in this murder at some point." Later, a detective testified that his investigation revealed that no one other than Davis had a motive to kill the victim.

With regard to Gatley's testimony, the trial court denied Davis' motion for a mistrial, but sustained his objection to the testimony, struck the testimony from the record, and gave the jury a curative instruction to disregard it. The grant or denial of a motion for a mistrial lies within the sound discretion of the trial court, which will not be disturbed on appeal unless it was manifestly abused. Hunt v. State, 268 Ga.App. 568, 572(2), 602 S.E.2d 312 (2004). In the instant case, "`[g]iven the trial court's curative efforts ... and the lack of apparent prejudice, we find no abuse of discretion in the denial of [the] motion() for mistrial.' [Cit.]" Smith v. State, 271 Ga. 507, 508(3), 521 S.E.2d 562 (1999).

As for the detective's testimony, Davis "did not raise [an ultimate issue] objection at trial, and is therefore procedurally barred from raising the issue on appeal. [Cit.]" Huntley v. State, 271 Ga. 227, 230(5), 518 S.E.2d 890 (1999). Moreover, even if Davis had raised such an objection, it is without merit because the detective's testimony concerned only the issue of motive, which was not the ultimate issue in the case. "Inasmuch as the [detective] was not opining on the ultimate issue of fact and the jury was free to conclude that the [detective] was incorrect, this enumeration presents no grounds for reversal. [Cit.]" Johnson v. State, 266 Ga. 380, 384(3), 467 S.E.2d 542 (1996).

5. Davis contends that the private investigator hired by him was part of his divorce legal team, that all communications between him and the private investigator are thus protected by the attorney-client privilege, and that the trial court therefore erred in denying his motion in limine to bar the private investigator from testifying about his communications with Davis regarding the victim's home address. However, as the trial court recognized in denying the motion in limine, this issue has already been decided adversely to Davis in a prior appeal.

When the private investigator was subpoenaed to testify before the grand jury, Davis filed a motion to quash the subpoena based on attorney-client privilege. The trial court denied the motion, and the Court of Appeals affirmed that denial on the basis that the subject communications fall within the crime-fraud exception to the privilege, which provides that "the attorney-client privilege does not extend to communications which occur before perpetration of a fraud or commission of a crime and which relate thereto. [Cit.]" In re Fulton County Grand Jury Proceedings, 244 Ga.App. 380, 382, 535 S.E.2d 340 (2000). This Court denied Davis' petition for certiorari from the Court of Appeals' ruling, which is "binding in all subsequent proceedings in [the] case in the lower court and in the Supreme Court or the Court of Appeals as the case may be." OCGA § 9-11-60(h). Accordingly, the trial court did not abuse its discretion in denying the motion in limine. See Thompson v. State, 277 Ga.App. 323, 324(2), 626 S.E.2d 825 (2006) (denial of motion in limine reviewed for abuse of discretion).

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