Evans v. State

• Decision Date: 04 May 2020
• Docket Number: S20A0007
• Citation: 842 S.E.2d 837,308 Ga. 582
• Parties: EVANS v. The STATE.
• Court: Georgia Supreme Court

308 Ga. 582

842 S.E.2d 837

EVANS

v.The STATE.

S20A0007

Supreme Court of Georgia.

Decided: May 4, 2020

Rouse & Copeland, Amy Lee Copeland, for Appellant.

John Thomas Durden, Jr., District Attorney, Sandra Dutton, A.D.A., Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, for Appellee.

McMillian, Justice.

Appellant Jimmy Dale Evans appeals his convictions for murder and other crimes related to the deaths of Tavoris Antoine Calhoun and Dezmon Devonshae Thomas.¹ Evans argues that because he was visibly intoxicated at the time he made statements to law enforcement and consented to a search of his home and person, the statements and consent were involuntarily given and the trial court should have granted his motion for new trial on this ground. Relatedly, Evans argues that his trial counsel was ineffective for failing to file a motion to suppress at trial on the same basis. Because Evans has failed to show error or ineffective assistance of counsel, we affirm.

Viewed in the light most favorable to the verdicts, the evidence at trial showed that late on the night of October 18, 2006, a husband and wife, who lived next door to Evans, heard gunshots, and then saw someone dragging what appeared to be a body and placing it inside a car. The wife called 911, and the car drove away. Approximately 30 minutes later, while on the phone with 911 a second time, the wife saw Evans walk down the road and enter his home. Although the police responded to the couple's 911 calls, they did not begin investigating in earnest until the next morning after the husband spoke with the local chief of police, who then contacted the Georgia Bureau of Investigation ("GBI"). Upon examining the road near the couple's house and Evans’ home, investigating officers located a large pool of blood, another smaller pool of blood, and long drag marks between the two. The blood in the road was later tested and determined to match Thomas’ DNA.

During the investigation, Evans’ girlfriend came out of the home she shared with Evans and was asked if she heard anything the night before, but she denied hearing anything and went back inside. Evans then came out of the home, and the officers asked him if he had heard anything the previous night. Evans responded that his girlfriend and he both heard what they thought was a drive-by shooting, the sound of which caused his girlfriend to jump up and run to another room. Evans said that he looked out of the window and saw a car drive down the road, turn around, and come back. He then showed the officers the path the car took. He also told police that he believed the weapon fired could have been a rifle but that it sounded more like "a .44 Magnum Super Blackhawk pistol." Evans also said that the shooting might have been "a drug deal gone bad."

The GBI agent then conducted interviews in the neighborhood and, based on information that he obtained, went back to talk to Evans about his drug use, at which time Evans admitted that he had purchased cocaine the previous night from Calhoun. After observing "spots" of blood on Evans’ hand, pants, and ear, the agent asked him to come to the City of Hagan Police Department for an interview, and Evans agreed.

At the police department, Evans signed a consent for the police to swab the blood on his body, while giving benign explanations for why the blood was present. Later testing revealed that some of the swabbed blood from Evans’ ear contained Calhoun's DNA.

Evans was then returned to his house where he signed another consent form for the officers to search the home. In that search, police recovered two .44 Magnum shell casings, drug paraphernalia, a spoon containing white residue that later tested positive for cocaine, blood in the area of the bathroom sink, a blood-spattered bar of soap, and a blood-spattered towel. Based on the suspected cocaine residue found in the residence, Evans and his girlfriend were arrested for possession of cocaine that evening and transported to the Evans County Sheriff's Office.

Earlier that day, Calhoun had been reported missing and a description was given of his car, a 1999 Mitsubishi Galant. The bodies of Calhoun and Thomas were subsequently found in the car, which had been driven into the woods and crashed into a tree. Calhoun's body was in the front passenger seat while Thomas’ body was in the back seat. Blood spatter and bullet fragments, including a metal jacket from a bullet, were found inside the car. Thomas had at least one gunshot wound

to the head; Calhoun was shot once in the back of the head. A latent palm print lifted from the rear driver-side quarter panel of the car matched Evans’ right palm. Officers also found a debit card belonging to Evans’ girlfriend in the rear passenger seat.

Law enforcement then obtained two separate search warrants for Evans’ home, which were executed the next day, on October 20, 2006. During those searches, police recovered a wallet containing Calhoun's driver's license, a .44 Magnum Super Blackhawk handgun hidden in a closet ceiling, and a small quantity of marijuana. Ballistics testing confirmed that the metal jacket recovered from the Mitsubishi was fired from the .44 Magnum found at Evans’ home.

Also that day, Evans was read his Miranda rights² and was interviewed while in custody. Evans told police he called Calhoun on October 18 to ask for a delivery of crack cocaine, although Evans did not have enough money to pay for it. Thomas drove Calhoun to Evans’ house. Evans said he took the Blackhawk gun from his boss's truck³ and had it in his waistband when he met with Calhoun and Thomas inside the car. Evans admitted that he first shot Thomas because Thomas pointed a gun at him and demanded money. Evans then shot Calhoun when Calhoun argued with him. Evans explained that he pulled Thomas’ body out of the driver's seat of the car and put Thomas’ body down in the roadway when the car began to roll away.

Evans chased after the car, put it into park, and then dragged Thomas’ body to the car and put it in the back seat. He said he drove the car into the woods and threw Thomas’ gun there; however, police did not locate any firearm during a subsequent grid search of the area. Evans took crack cocaine from the vehicle and went home to use it. Evans had crack cocaine on his person when he was arrested.

Evans testified to a similar story at trial, admitting that he shot Calhoun and Thomas; however, Evans testified at trial that Calhoun had a gun and he shot Calhoun first. Evans said he then shot Thomas when Thomas began reaching for Evans’ gun. He admitted to driving Calhoun's and Thomas’ bodies in the car and crashing it into a tree and that he was in possession of crack cocaine when he was arrested.

1. Evans does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, as is this Court's general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial was sufficient to authorize a rational jury to find Evans guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Evans asserts that the trial court erred in denying his motion for new trial on the ground that his consent to search his person and home and the statements he made to law enforcement on October 19, 2006, were not voluntary because he was clearly and visibly under the influence of drugs at the time, and, therefore, the evidence should have been suppressed. Although Evans filed a motion to suppress evidence seized from the two search warrants executed on his home on October 20, he did not move to suppress the evidence seized the day before, which was based on Evans’ consent to search his person and home. As this Court has previously explained,

[a] motion to suppress must be in writing and state facts showing that the search and seizure were unlawful. In the absence of such a motion, the State has no burden to prove the lawfulness of the manner in which evidence was obtained, and the accused fails to preserve any error with respect to the suppression of the evidence.

Hernandez v. State, 294 Ga. 903, 904, 757 S.E.2d 109 (2014) (citation and punctuation omitted). See also Rodriguez v. State , 295 Ga. 362, 367 (2) (a), 761 S.E.2d 19 (2014) ; OCGA § 17-5-30 (b). Accordingly, Evans has not preserved this issue for appeal.⁴

Likewise, this Court has also held that the failure to assert before the trial court that a statement to police is inadmissible fails to preserve the issue for appeal. See Lee v. State , 281 Ga. 511, 512-13 (2), 640 S.E.2d 287 (2007) (defendant waived review of claim that his statement to police was involuntarily obtained when he failed to raise the issue below); Nixon v. State , 255 Ga. 656, 658 (2) (a), 340 S.E.2d 7 (1986) (no error in admission of a statement made to police after defendant made an explicit request for an attorney where defendant failed to raise the argument at trial, even after the district attorney suggested the possibility of a Jackson-Denno hearing). Here, before trial, Evans neither moved to suppress nor raised any issue regarding the non-custodial statements he made on October 19.

Moreover, on the first day of trial, the State mentioned the potential need for a hearing under Jackson v. Denno , 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and Evans’ counsel indicated that Evans wanted the hearing. Although counsel cross-examined the State's witness about the events of October 19 and 20, 2006, she raised no argument before or after the hearing asserting that Evans’ non-custodial statements were involuntary, and therefore inadmissible. The trial court ruled only that the custodial statements given after Evans received the Miranda warning...