Davis v. State

• Decision Date: 18 November 2003
• Docket Number: No. A03A2150, No. A03A2151.
• Citation: 264 Ga. App. 221,590 S.E.2d 192
• Parties: DAVIS v. The STATE. Stephens v. The State.
• Court: Georgia Court of Appeals

590 S.E.2d 192

264 Ga. App. 221

DAVIS v. The STATE.

Stephens v. The State.

Nos. A03A2150, A03A2151.

Court of Appeals of Georgia.

November 18, 2003.

R. Edward Furr, Jr., Penny D. Furr, Decatur, for appellant (case no. A03A2150).

Joseph E. Williams, Decatur, for appellant (case no. A03A2151).

Robert W. Lavender, Dist. Atty., Marsha D. Cole, Asst. Dist. Atty., for appellee. PHIPPS, Judge.

A multi-count indictment was returned charging Deangelo T. Davis, Derrick Stephens, Anthony Adams, Raymond Broughton, and Earnest Wilson with having committed various crimes against Stacey Powers and Kim Duncan. Adams, Broughton, and Wilson pled guilty prior to trial; and Wilson testified at trial on behalf of the state. Davis and Stephens were tried jointly and convicted of armed robbery (two counts each), burglary, and possession of cocaine. Davis was also convicted of aggravated assault and possession of a firearm during the commission of a crime (two counts). Both Davis and Stephens moved for a new trial. The issue of ineffective assistance of trial counsel was raised at the hearing on the motions. The trial court denied the motions.

In Case No. A03A2150, Davis appeals. In Case No. A03A2151, Stephens appeals. They challenge the sufficiency of the evidence to support their convictions, the trial court's denial of their requests for funds to hire an independent investigator, the admission in evidence of the cocaine they were charged with possessing, certain jury instructions, and the effectiveness of their trial lawyers. Additionally, Davis contends that the trial court erred in denying him the right to make an opening statement, and Stephens complains of the admission of a pretrial statement he made to police. Finding no basis for reversal in either case, we affirm the judgments.

1. We find no merit in either Davis's or Stephens's challenge to the sufficiency of the evidence.

The state's evidence showed that Powers was living with his girlfriend Duncan in Colbert in May 1999. Powers, a former drug dealer, operated a car detailing shop. In the early morning hours of May 20, several males broke into the residence he and Duncan were occupying, rousted them from their sleep, bound and partially blindfolded them, and threatened to kill them if they did not give them all of the money and drugs on the premises. At the time, both Powers and Duncan were nude. Although neither of them could positively identify any of their assailants, Duncan observed that one of them was wearing black and white All Star Converse tennis shoes. Duncan testified that that man ripped a ring from her finger, and repeatedly kicked her and hit her in the back of the head with a gun. Powers testified that he was stomped, punched, and beaten over his entire body by one of the other men. Unable to find any drugs, the intruders fled in a Jeep Cherokee after stealing money, clothing, household furnishings, and a handgun. Duncan and Powers quickly unbound themselves, grabbed a shotgun, and, still nude, began to pursue their fleeing assailants in a car. They soon spotted the Jeep with their stolen possessions in the back window. During a chase from Colbert to Athens, gunfire was exchanged between the occupants of the two vehicles. In Athens, the victims' car became disabled, and they telephoned the police and obtained clothing. They provided a description of the Jeep as well as its tag number.

A police officer spotted the Jeep in Athens and followed it more than ten miles. During the officer's pursuit, he observed various items being thrown from the Jeep. The Jeep was eventually stopped by police at a roadblock. Stephens was identified as the driver. He had head wounds caused by shotgun pellets. Davis was identified as the front seat passenger. He was wearing tennis shoes of the type described by Duncan, and a large amount of money was found in his possession. Items of personal property stolen from Duncan and Powers were found by police in the Jeep and along that part of the roadway traveled by the Jeep. A package of cocaine and various handguns were among the found items. A large amount of currency identified as that taken from the victims was also found in the possession of Davis and his cohorts. Wilson's testimony corroborated Duncan's claim that Davis was in possession of a handgun during his invasion of her home.

Under the standard set forth in Jackson v. Virginia,¹ this evidence authorized any rational trier of fact to find beyond a reasonable doubt that Davis and Stephens burglarized the residence occupied by Duncan and Powers; that, once inside, they took money, clothing, and other personal property from Duncan and Powers by use of a gun; that Davis also committed an aggravated assault on Duncan by striking her in the head with a handgun and was, therefore, in possession of a firearm during the commission of a crime; and that Davis and Stephens, along with the other occupants of the Jeep, had been in possession of the cocaine found along the roadway.

2. We find no merit in Davis's contention that the trial court erred in denying him the right to make an opening statement.

At the beginning of the trial, counsel for Davis reserved his right to make an opening statement until the close of the state's evidence.² Because neither Davis nor Stephens testified or presented any other evidence after the state rested, the trial court ruled that Davis's attorney could make a closing argument but not an opening statement. Because the purpose of opening statement is to give the jury and the court an outline of the evidence that the party anticipates presenting,³ we find no harm.⁴ Contrary to argument advanced by Davis, the trial court was under no obligation to warn defense counsel at the outset of the trial that opening statement at the close of the state's evidence would be inappropriate if no additional evidence were to be introduced.

3. Davis and Stephens also contend that the trial court erred in refusing to hold an ex parte hearing on their motion for funds to hire an independent defense investigator and in denying the motion.

Davis, Stephens, and Wilson, as indigent defendants, filed pretrial motions for funds to hire a defense investigator. It is undisputed that prior to trial the court conducted an unreported ex parte hearing with all defense counsel present; that, through the grant of Wilson's motion, the court ordered expenditure of $1,500 for a defense investigator; and that the investigator hired by Wilson was supposed to have shared information with the other defense attorneys. Shortly before trial, Broughton, Adams, and Wilson pled guilty, and Wilson appeared as a state's witness at trial. After the jury selection at trial, counsel for Davis requested additional funds to hire an investigator, stating that he and Stephens's attorney had received nothing from the investigator hired by Wilson, and that they therefore needed an investigator to obtain certified copies of Wilson's felony convictions for impeachment purposes. The prosecuting attorney thereupon informed the court that the state had already furnished defense counsel with Wilson's conviction record. Counsel for Stephens acknowledged that although receipt of certified copies of Wilson's prior convictions "would solve that problem," the defense was also in need of Powers's criminal record. Counsel for Davis added that both the state and the defense needed to place Powers under subpoena, as his whereabouts were unknown. The court, however, denied the defense request as untimely. As a result, Davis's attorney later represented to the court that defense counsel had "gone into our own pockets for private investigation in this case."

In Georgia, it has been held that "`[i]nstances of specific misconduct may not be used to impeach a witness' character or veracity unless the misconduct has resulted in the conviction of a crime involving moral turpitude, [cits.], and the proper method of proving such a conviction is by the introduction of a certified copy thereof. [Cit.]' [Cit.]"⁵ As to an indigent criminal defendant's request for public funds to hire an investigator, "the general rule applies that the grant or denial of a motion for assistance of expert witnesses and other investigative services lies within the sound discretion of the trial court, and that some special need must be demonstrated to the trial court to grant funds to hire an investigator. [Cit.]"⁶ Brooks v. State⁷ held that "in making the requisite showing defendant could be placed in a position of revealing his theory of the case. He therefore has a legitimate interest in making that showing ex parte."⁸ When appealing the denial of a motion for funds to hire an investigator, a criminal defendant must also show harm to obtain a reversal.⁹

Prior to trial, the defendants in this case were allowed to make an ex parte showing of their need for public funds to hire an investigator. At trial, counsel for Davis and Stephens expressed a need for additional funds to investigate or subpoena state's witnesses Powers and Wilson. They did not request another ex parte hearing. Therefore, there is no merit in their complaint that the trial court erred in refusing to hold one.

Powers appeared at trial and testified as a state's witness. Therefore, Davis and Stephens were not harmed by the trial court's denial of their request for funds to subpoena him. Certified copies of prior felony convictions against Wilson for two counts of entering an automobile and two counts of financial transaction card theft, entered in 1995 and obtained in the DeKalb Superior Court, were provided to the defense and entered into evidence. Consequently, Davis and Stephens were not harmed by the court's denial of funds to obtain this impeaching evidence.

On direct examination, Powers admitted that at one time he had been a drug dealer and that criminal charges had been brought against him but were dismissed. On cross-examination,...