Davis v. State, S17A0176

• Decision Date: 19 June 2017
• Docket Number: S17A0176
• Citation: 801 S.E.2d 897
• Parties: DAVIS v. The STATE.
• Court: Georgia Supreme Court

301 Ga. 397

801 S.E.2d 897

DAVIS

v.The STATE.

S17A0176

Supreme Court of Georgia.

Decided: June 19, 2017

Bruce Steven Harvey, LAW OFFICES OF BRUCE S. HARVEY, 146 Nassau Street, N.W., Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Michael Alexander Oldham, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Michael Douglas Morrison, A.D.A., Daniel J. Porter, District Attorney, Christopher Michael Quinn, Senior A.D.A., GWINNETT COUNTY DISTRICT ATTORNEY'S OFFICE, 75 Langley Drive, Lawrenceville, Georgia 30046, for Appellee.

Boggs, Justice.

Appellant Hunter Mason Davis was tried before a jury and found guilty of felony murder (two counts), armed robbery, aggravated assault, and possession of a firearm during the commission of a felony (two counts) in the shooting death of Angelo Larocca.¹ He now appeals, asserting multiple claims of error. For the following reasons, we affirm in part and vacate in part, and remand this case for resentencing.

1. Viewed in the light most favorable to the verdict, the evidence showed that Davis and his friend Brandon Mosley were often seen together at The Columns, an apartment complex in Gwinnett County where Mosley lived. On June 26, 2011, the victim, Larocca, and his girlfriend purchased Xanax pills from Davis after being introduced to him by Sierra Hounchell, a mutual acquaintance. Obtaining Davis' cell phone number from Thomas Cope, another friend, the victim made arrangements on June 28 to buy more Xanax from Davis. Davis thereafter contacted both Hounchell and Cope to ask if they knew whether the victim had anyone who might retaliate against him if he robbed the victim. Cope did not inform the victim of his conversations with Davis.

Shortly before 2:00 p.m. on June 28, 2011, the victim, his girlfriend and another couple—David Varvari and Madison Leftwich—drove to The Columns per directions the victim received via cell phone. Text messages and cell phone records showed numerous contacts between the victim and Davis between 12:15 and 1:39 p.m. on that day. As instructed, the victim went to an apartment behind building 1000 to purchase the drugs and, exiting the car, walked around the back of the building. Shortly thereafter, the victim called his girlfriend and, sounding scared, told her to hold the money out the car window. The girlfriend realized that something was wrong because the victim had taken the money with him. She testified that as she hung up the phone, a man appeared at the driver's side window, demanding the money. After informing him she did not have the money, the individual walked away in the same direction the victim had taken. Hearing two gunshots, she and the other occupants of the car drove out of the complex, but returned shortly thereafter. Varvari exited the vehicle and ran in the direction taken by the victim, but was stopped by a security officer who had found the victim's body lying in the building stairwell. No money was found on the victim's body, but shell casings from a 9-millimeter gun and a cigarette butt with Davis' DNA were found next to it. According to the medical examiner, the victim died from a gunshot wound

to the chest.

That same afternoon, Davis' friend, Mosley, walked to a carwash near the apartment complex and informed a friend working there that he had just shot someone over some pills. Borrowing a cell phone, Mosley called another friend to pick him up from the carwash and, upon being picked up, informed the driver that he had shot someone and directed the driver to a nearby neighborhood to pick up Davis. According to the driver, upon entering the vehicle, Davis asked Mosley why he shot the victim. Later that night, Davis informed his girlfriend that he killed someone and that he had been with Mosley.

Based on the contacts between Davis and the victim on the day of the shooting, investigators went to Davis' house where they left word to have Davis contact them. Thereafter, Davis' girlfriend drove him to a nearby convenience store to meet with officers. When the officers arrived, Davis immediately placed his hands behind his back saying, "go ahead and take me to jail." After informing Davis that he was not under arrest, the officers asked him to accompany them to police headquarters for an interview and Davis agreed. He rode unhandcuffed in the front seat of an unmarked patrol car to the station. During his videotaped interview, Davis admitted the victim contacted him about buying Xanax, but made no mention of Mosley or Mosley's involvement with the victim's murder. At the conclusion of the interview, Davis was allowed to leave the police station and was not arrested until almost two weeks later.

The evidence presented at trial and summarized above was sufficient to enable a jury to find Davis guilty beyond a reasonable doubt of the crimes for which he was convicted, either directly or as a party to the crime. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).²

2. Davis argues that the trial court erred in allowing evidence of Mosley's gang affiliation. At the start of trial, Davis' counsel argued that the State should not be able to elicit testimony that Mosley had tattoos showing an affiliation with a gang, and that Mosley identified himself as being associated with that gang in a text message to Davis. The trial court ruled that it would allow evidence that one of Mosley's tattoos and a text message he sent to Davis referenced the name of a gang. Evidence was presented that Mosley had a tattoo on his chest and arm that read "ABT Stunna." An investigator testified that Mosley had been documented as a member of the ABT gang, Davis' girlfriend testified that Mosley's street name was "Stunna," and a sergeant testified that Mosley identified himself in a text to Davis as "ABT Stunna" following the shooting.

Georgia's new Evidence Code governs the admission of the evidence here.³ Generally, "[a]ll relevant evidence shall be admissible," OCGA § 24-4-402, but it "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." OCGA § 24-4-403. And the trial court's rulings on the exclusion or admission of evidence are reviewed for a clear abuse of discretion. Parks v. State , 300 Ga. 303, 305-306 (2), 794 S.E.2d 623 (2016). Moreover, the exclusion of relevant evidence under Rule 403 "is an extraordinary remedy that should be used only sparingly." Davis v. State , 299 Ga. 180, 189 (2) (b), 787 S.E.2d 221 (2016) ; Olds v. State , 299 Ga. 65, 70 (2), 786 S.E.2d 633 (2016).

The State sought to show a connection between the robbery and murder and the history of the gang, and the foreseeable consequence of Davis' participation in the robbery with Mosley. And as the trial court found, the evidence was also relevant to identify Mosley as the person who communicated with Davis by text shortly after the murder using someone else's phone. Although Davis argues that evidence of Mosley's gang affiliation was improper because neither he nor Mosley was charged with gang activity, "[t]here is no requirement that the State charge a defendant with violating the prohibition of participation in criminal street gang activity in OCGA § 16-15-4 in order to admit otherwise relevant evidence of gang activity." (Citations omitted.) Wolfe v. State , 273 Ga. 670, 674 (4) (c), 544 S.E.2d 148 (2001).⁴

In light of the purpose expressed by the State and evidence of the communication between Davis and Mosley after the murder with Mosley using the name "ABT Stunna," we cannot say that the trial court abused its discretion in allowing the admission of evidence of Mosley's gang affiliation. See Olds , supra, 299 Ga. at 69-70 (2), 786 S.E.2d 633 ; OCGA § 24-4-401 (" ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). And, in light of the strong evidence of Davis' participation in the crimes, we conclude that it is highly probable that the admission of this evidence did not contribute to the jury's verdict. See Noel v. State , 297 Ga. 698, 701-702 (3), 777 S.E.2d 449 (2015).

3. Davis argues that the trial court erred by admitting "so-called similar transaction evidence" because the State failed to meet its burden under Williams v. State , 261 Ga. 640, 642 (2), 409 S.E.2d 649 (1991). Specifically, the testimony was that approximately two years prior to the shooting, Davis was in possession of "an all black handgun, 9-millimeter" and was "show[ing] it off," and a month or two prior to the shooting, either Davis or Mosley indicated that a 9-millimeter was "our[s]." Davis also complains of testimony that just prior to the murder, Cope sent the victim, who was looking for Xanax, Davis' cell phone number. Davis contends that the evidence was far removed in time, highly prejudicial and irrelevant.⁵

But any error in the trial court allowing evidence of the 9-millimeter handgun was harmless in light of the strong evidence of Davis' guilt. See, e.g., Glover v. State , 296 Ga. 13, 16 (3), 764 S.E.2d 826 (2014). And, evidence that Cope sent Davis the victim's cell phone number two days before the shooting was admissible to prove the circumstances surrounding the victim's presence at the scene of the shooting, even if it incidentally places Davis' character at issue. See United States v. Edouard , 485 F.3d 1324, 1344 (II) (C) (11^th Cir. 2007) ; United States v. Foster , 889 F.2d 1049, 1053 (III) (A) (1) (11^th Cir. 1989).

4. Davis contends that the trial court erred in denying his request for a continuance on the morning of trial to retain new counse...