State v. Davis-Kocsis, 5908

CourtCourt of Appeals of South Carolina
Writing for the CourtLOCKEMY, A.J.
PartiesThe State, Respondent, v. Gabrielle Oliva Lashane Davis-Kocsis, Appellant.
Docket Number5908,Appellate Case 2019-000687
Decision Date04 May 2022

The State, Respondent,
v.

Gabrielle Oliva Lashane Davis-Kocsis, Appellant.

No. 5908

Appellate Case No. 2019-000687

Court of Appeals of South Carolina

May 4, 2022


Heard February 16, 2022

Appeal From Berkeley County Maite Murphy, Circuit Court Judge.

Appellate Defender Susan Barber Hackett, of Columbia, and Jason Scott Luck, of Luck VI Ltd. Co. d/b/a Jason Scott Luck, Attorney at Law, of Bennettsville, both for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Julianna E. Battenfield, both of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent.

LOCKEMY, A.J.

Gabrielle Oliva Lashane Davis-Kocsis (Kocsis) appeals her convictions for murder, first-degree burglary, criminal conspiracy, and two counts of kidnapping and aggregate fifty-year sentence. On appeal, Kocsis argues the trial court erred in (1) failing to charge the current law of burglary, (2) failing to direct

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verdicts on the burglary and kidnapping charges, (3) sentencing her for kidnapping in light of her murder sentence, and (4) admitting a 911 call. We affirm.

FACTS

In 2016, a Berkley County grand jury indicted Kocsis for the murder of Mark Connor (Victim), first-degree burglary involving Rosemary Hoffberg and her home, criminal conspiracy, and the kidnappings of Alexis Nicole Murray and Whitney Renee Chance.

Pretrial, Kocsis moved to suppress State's Exhibit 1, which is a recording of a 911 call that consisted of Murray requesting emergency services to respond quickly, telling Victim not to die from his gunshot wound, describing that she and others had been pepper sprayed and Victim was shot, identifying Kocsis as a perpetrator, and stating they were asleep when Kocsis and the others came into the home. Chance can also be heard on the recording. Relying on Rule 403, SCRE, Kocsis argued the 911 call would "stir up the passions and prejudices of the jury via using emotion rather than facts." The State asserted all 911 calls are emotional, this call was not substantially prejudicial, and the 911 call provided a "real time" account immediately after the shooting. The trial court found State's Exhibit 1 admissible for "corroborative purposes and establishing the elements of the offense[s]" and stated "although [State's Exhibit 1] may be prejudicial, the probative value outweigh[ed] the prejudicial effects."[1]

In her opening statement, Kocsis asserted many of the witnesses, including herself, used methamphetamine, and she urged the jury to consider the credibility of the witnesses, their motives in testifying she was responsible for organizing how Victim was killed, and if she were "some drug leader."

During the first witness's testimony, the trial court admitted State's Exhibit 1 over Kocsis's renewed Rule 403 objection. Thereafter, the State presented evidence that Kocsis was a drug dealer, Victim stole over a thousand dollars and a motorcycle from her, and Kocsis "put a hit on" Victim.

On the day of Victim's death, Victim was staying at "Ms. Rose's" home, and there were several other people there, including Murray, Chance, Richard Curtis, Nick Varner, and Ms. Rose. Witnesses described Ms. Rose's home as a drug or "trap house." The trial court admitted photographs of Ms. Rose's home, which depicted

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a house that someone was living in-there was a beer can, cleaning supplies, furniture, and a calendar flipped to the correct month on the day of the incident. Two witnesses testified Ms. Rose slept in the home, including on the night in issue.

According to the State's witnesses, Kocsis, Matt Grainger, Grayson Griffin, and others broke into Ms. Rose's home in the early morning hours by breaking a window and kicking a door in[2] while they were looking for Victim. These witnesses detailed Kocsis sprayed bear mace, or pepper spray, inside the home and indicated to Grainger to shoot Victim. Thereafter, a gun went off, and Kocsis and the other intruders fled Ms. Rose's home.[3]

According to Varner, he told Chance to call 911-although Murray was the one who actually called 911 on State's Exhibit 1. Varner testified he told Chance to tell law enforcement that they were at Ms. Rose's home and stated law enforcement would know the location. Deputy Kimberly Vandiver, of the Berkeley County Sherriff's Office, testified she was one of the first responders and she spoke with "[t]he owner of the residence."

Murray testified that during the break-in, she was in a bedroom and did not feel free to leave because one of the men Kocsis was with was pointing a gun at her face. Chance, who was in the living room, also testified she did not feel free to leave during the incident; Chance emphasized the mace caused her pain and she had difficulty breathing because of it.

Melissa Freeman, who was with the intruders, testified Kocsis "orchestrated" the incident, and Freeman believed Kocsis and the others were only going to scare Victim. Griffin testified he sold drugs to Kocsis and did not know that someone was going to be killed when they went to Ms. Rose's home. However, Curtis testified he overheard a phone call between Griffin and Kocsis in which Griffin told Kocsis that "they [could not] let stuff like this happen and [let] people get away with it."

During cross-examination of many of the State's witnesses, Kocsis questioned the witnesses about their credibility, focusing on their drug usage, criminal records, possible benefits from testifying, and their recollections of what occurred.

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At the close of the State's case, Kocsis moved for a directed verdict. Specifically, she argued (1) "Rosemary Hoffberg" had not testified, her ownership and identity remained unknown, and witnesses broadly identified "Miss Rose"; (2) burglary required "proof of a possessory interest" and an "expectation of peace and security"; and (3) the State failed to present evidence that Kocsis knew Murray and Chance would be in the home. The trial court denied Kocsis's motion, finding there was evidence that this was a dwelling where Ms. Rose slept, Kocsis and the others broke into the dwelling, and Murray and Chance testified they did not feel free to leave.

Kocsis testified in her own defense and confirmed Victim took her money and motorcycle. According to Kocsis, the money that Victim stole actually belonged to Griffin because Griffin sold her drugs on credit. Kocsis asserted Griffin threatened that if she could not obtain the money from Victim, he "was going to take it out on [her]." Kocsis testified Griffin took out the hit on Victim, but Kocsis later acknowledged she shared information about the hit. According to Kocsis, she received a text message that Victim was at Ms. Rose's home, and Griffin wanted her to tell him where the home was located. She stated Griffin gave her a pistol to give to Grainger, which she later gave to Grainger, and Griffin tried to give her a gun to use personally, but she declined to take it. Kocsis testified that upon arriving to Ms. Rose's home, Griffin told her that he planned to smash a window to cause everyone to run out. Kocsis stated Griffin broke a window and Grainger attempted to kick the door in. Kocsis explained the door started coming open, and Ms. "Rose Hoffberg" was "standing behind the door." Kocsis identified Ms. Rose as the "owner of the house" and admitted she had "heard" about "Miss Rose's house"; Murray previously testified she saw Kocsis at Ms. Rose's home on several occasions over a period of three years.

Kocsis stated she entered the home and looked for Victim, and upon seeing Victim in the backroom, she sprayed him with the mace. According to Kocsis, Grainger believed Victim was "rushing at him"; Grainger fell in a hole in the floor, and the gun went off. Kocsis denied telling Grainger to shoot Victim. Kocsis asserted it was Griffin's idea to find Victim, she did not want Victim dead, and she did not have a choice about going to the home. Kocsis acknowledged the purpose of going to Ms. Rose's home was to obtain the stolen money. Kocsis denied the intention was to kill Victim and asserted the incident was not planned.

Curtis Jamison also testified in Kocsis's defense and asserted Kocsis was afraid of Griffin. The defense rested, and the trial court instructed the parties to send it jury instructions. In a memorandum, Kocsis requested the trial court charge Judge

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Ralph King Anderson's proposed jury charge[4] defining "without consent" after our supreme court issued State v. Singley[5] and an additional paragraph about an expectation of being safe and secure. The memorandum did not state any reasoning beyond that it was the "current South Carolina law." The requested charge stated the following:

The entry must have been without consent. "Enters a dwelling without consent" means to enter "without the consent of the person in lawful possession." In addition to the normal meaning of entry without consent, the phrase also includes entering by using deception, artifice, trick, or misrepresentation to gain consent to enter from the person in lawful possession.
A person in "lawful possession" has custody and control of, and the right and expectation to be safe and secure in, the dwelling in question.

The trial court held an off-the-record charge conference, and when on the record, Kocsis referenced her proposed burglary charge and only stated "we would object based on that." The trial court denied Kocsis's request, stating it thought the "[c]ourt's [standard] charge cover[ed her] concerns." Additionally, Kocsis renewed her directed verdict motion, which the trial court denied.

In her closing argument, Kocsis emphasized many of the State's witnesses were drug addicts, asserted they were liars, attacked their credibility, and contended their memories were faulty. Kocsis specifically went witness by witness in her closing argument and highlighted aspects about the individuals.

The trial...

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