Davenport v. State

859 S.E.2d 52, 311 Ga. 667

• Court: Supreme Court of Georgia
• Decided: June 1, 2021
• Docket: S21A0295
• Status: Published

Opinion

311 Ga. 667 FINAL COPY

S21A0295. DAVENPORT v. THE STATE.

BETHEL, Justice.

A Tift County jury found Deanthony Davenport guilty of malice

murder and other crimes in connection with the shooting death of

Willie Bernard Thomas. On appeal, Davenport argues that the

evidence presented at trial was insufficient to sustain his

convictions; that his trial counsel rendered constitutionally

ineffective assistance by failing to request a curative instruction or

move for a mistrial based on hearsay evidence; and that the trial

court erred by refusing to charge the jury on voluntary

manslaughter. For the reasons set forth below, we affirm.1

1 The shooting occurred on August 22, 2014. On September 8, 2014, a

Tift County grand jury indicted Davenport and co-defendant Austin McIntyre for malice murder, felony murder predicated on criminal attempt to commit armed robbery, and other crimes. After a joint jury trial held from March 7 to 10, 2017, a jury found Davenport guilty on all counts. The jury found McIntyre guilty on all counts except for malice murder and a firearm offense. McIntyre’s case is not part of this appeal. The trial court sentenced Davenport to life in prison for malice murder 1. (a) Viewed in the light most favorable to the verdict, the

evidence presented at trial showed the following. According to

Austin McIntyre, on the evening of August 22, 2014, Davenport and

McIntyre formed a plan to rob Thomas at his residence. Thomas

was one of Davenport’s childhood friends and lived with several

other family members at his grandparents’ home in Tift County. On

prior occasions, Davenport had purchased drugs from Thomas to

resell, spending as much as $2,000 in a single purchase. Based on

their previous interactions, Davenport knew that Thomas often

carried large amounts of cash on his person.

To set their plan in motion, Davenport and McIntyre borrowed

a car from McIntyre’s girlfriend and drove to Thomas’s house so they

could look at the property and prepare for the robbery. Shortly after,

and concurrent and consecutive terms of years for the other crimes. The trial court purported to merge the felony murder count into the malice murder count, but the felony murder count was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993). On April 7, 2017, Davenport filed a motion for new trial, which was subsequently amended by new counsel. Following a hearing, the trial court denied the amended motion for new trial on August 20, 2020. Davenport filed a notice of appeal on September 2, 2020. This case was docketed in this Court to the term commencing in December 2020 and submitted for a decision on the briefs.

2 McIntyre went to visit Derrick Britt and asked to borrow a gun to

“hit a little lick.”2 After obtaining a gun from Britt, McIntyre gave it

to Davenport.

That evening, Davenport and McIntyre returned to Thomas’s

home still planning to rob Thomas. As Davenport and McIntyre

approached the house, Davenport saw Thomas in the house and

began firing the gun at him through the glass front door. Davenport

fired a total of three shots, two of which struck Thomas, who was

holding a handgun. Thomas’s family heard the noise and discovered

Thomas had been shot. Before collapsing on the kitchen floor,

Thomas named Davenport as the shooter. After Thomas collapsed

on the floor, his mother took the handgun out of Thomas’s hands and

hid it before the police arrived. Thomas died at the scene before the

police arrived. Investigators recovered three shell casings and a

bullet from the scene.

After the shooting, Davenport and McIntyre returned the gun

2 Britt testified that “hitting a little lick” meant to “come up with some

money” by robbing someone. 3 to Britt, and Davenport told Britt that he had shot Thomas. After

returning the handgun, Davenport went to his aunt’s house to hide

from the police. The next morning, the police arrested Davenport.

While in custody together at the county jail, Davenport confided in

his cousin, Torrence Billings. Billings asked to speak with law

enforcement officers and informed them that Davenport admitted

going to Thomas’s house to rob him, firing a handgun at Thomas

three times, hitting Thomas twice, and returning the gun to Britt.

Police officers later executed a search warrant at Britt’s

residence and recovered a .40-caliber Glock pistol and three unfired

rounds. A firearm examiner for the GBI testified that the bullet and

shell casings recovered from the scene of the shooting were all fired

from the pistol recovered from Britt’s residence. A GBI medical

examiner conducted an autopsy on Thomas and determined that the

cause of death was gunshot wounds to the abdomen and neck and

that the manner of death was homicide. The medical examiner noted

that two bullets found in Thomas’s body had passed through glass

before striking Thomas.

4 Davenport testified that he had been selling cocaine for over 11

years and had several felony convictions, including a prior

conviction for conspiracy to commit armed robbery. Davenport also

testified that on the day of the shooting, he borrowed a gun from

Britt to confront Thomas over a “bad” batch of drugs and “botched”

drug deal, but that he never intended to shoot him. Davenport

claimed that as soon as he arrived, Thomas “came out shooting” at

him, and it was only then that he fired back. However, according to

the GBI crime scene investigator there was “nothing at the scene to

corroborate that Thomas ever fired a weapon” and the stippling on

Thomas’s skin was a result of Thomas’s close proximity to the front

door glass shattering toward him. As such, the investigator testified

that the shattered glass found at the scene indicated that Thomas

never stepped outside the house before Davenport shot him.

(b) Davenport asserts that the evidence was insufficient to

support his convictions. When evaluating the sufficiency of the

evidence to support a conviction, “the relevant question is whether,

after viewing the evidence in the light most favorable to the

5 prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” (Emphasis

omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt

2781, 61 LE2d 560) (1979). On appeal, “this Court does not reweigh

the evidence or resolve conflicting testimony.” Mosby v. State, 300

Ga. 450, 452 (1) (796 SE2d 277) (2017).

Davenport testified that he knew Thomas carried large

amounts of cash or drugs on his person. Witnesses saw Davenport

driving around Thomas’s house prior to the shooting. Britt testified

that Davenport and McIntyre borrowed a gun from him “to hit a

little lick,” which meant they planned to rob someone. Further,

Davenport admitted to his cousin that he obtained the gun so he

could go to Thomas’s house to rob him and admitted that he shot

Thomas. Just before he died, Thomas identified Davenport as his

shooter. Finally, Davenport testified that he shot Thomas as a result

of a “botched” drug deal. This evidence, viewed in the light most

favorable to the verdicts, established each of the elements of the

crimes of which Davenport was convicted.

6 Davenport nonetheless argues that the evidence was

insufficient in light of his assertion that he acted in self-defense.

“When a defendant effectively raises an affirmative defense such as

self-defense[,] the State bears the burden of disproving the asserted

defense beyond a reasonable doubt.” Mosby, 300 Ga. at 451 (1). A

person is “justified” in using deadly force “only if he or she

reasonably believes that such force is necessary to prevent death or

great bodily injury to himself or herself or a third person[.]” OCGA

§ 16-3-21 (a).

Davenport emphasizes in his appellate brief to this Court that

Thomas was actually armed at the scene and that Thomas’s mother

took the gun out of Thomas’s hands after he was shot. However, the

crime scene investigator found no spent shell casings other than the

three matched to Davenport’s gun and testified that there was

“nothing at the scene to corroborate that Thomas ever fired a

weapon.” Further, Davenport testified that Thomas exited his home

and began firing at Davenport, but two GBI experts testified, based

on the stippling on Thomas’s skin and the shattered glass at the

7 scene, that Thomas had not stepped out of his house when

Davenport shot him.

Although Davenport testified that he acted in self-defense, his

arguments on appeal essentially ask this Court to reweigh the

evidence presented at trial. However, these were matters within the

province of the jury to consider and decide, and the jury, “as the sole

arbiter of witness credibility,” was free to disbelieve Davenport and

his theory of self-defense. Martin v. State, 306 Ga. 538, 541 (1) (832

SE2d 402) (2019); see also Ferguson v. State, 297 Ga. 342, 344 (1)

(773 SE2d 749) (2015) (jury was authorized to disbelieve defendant’s

self-defense theory). The evidence presented at trial was sufficient

to support Davenport’s convictions.

2. Davenport contends that he received ineffective assistance

of counsel when his trial counsel failed to request a curative

instruction or to move for a mistrial after the jury heard hearsay

testimony from Thomas’s mother. We disagree.

To obtain relief based on ineffective assistance of counsel,

Davenport must show both that his counsel’s performance was

8 constitutionally deficient and that this deficient performance

prejudiced him. See Strickland v. Washington, 466 U. S. 668, 687

(III) (104 SCt 2052, 80 LE2d 674) (1984). “To prove deficient

performance, [Davenport] must show that his attorney performed at

trial in an objectively unreasonable way considering all the

circumstances and in the light of prevailing professional norms.”

(Citation and punctuation omitted.) Anthony v. State, 303 Ga. 399,

410 (9) (811 SE2d 399) (2018). To show prejudice, Davenport must

prove that his lawyer’s error was “so serious as to deprive [him] of a

fair trial, a trial whose result is reliable.” Strickland, 466 U. S. at

687 (III). To that end, Davenport “must show a reasonable

probability sufficient to undermine confidence in the outcome that,

but for counsel’s alleged unprofessional errors, the result of the

proceeding would have been different.” (Citation and punctuation

omitted.) Anthony, 303 Ga. at 410 (9). An appellant must prove both

prongs of the Strickland test, and if he fails to prove one prong, it is

not incumbent upon this Court to examine the other prong. Williams

v. State, 305 Ga. 776, 778 (2) (827 SE2d 849) (2019).

9 During the State’s direct examination of Thomas’s mother, the

following exchange occurred:

Q: Had you seen — you knew [Davenport], you knew who that was? A: Yes. Q: Did you see him over at your house that day? A: No, he don’t never — he never come into the house. I asked Bernard, I said, “Bernard, why [Davenport] don’t come over here and see you?” He said, “Mama, I don’t deal with [Davenport] no more.” He said, “He ain’t right.” He said, “[Davenport] is out here robbing.” Q: Well, what about — DAVENPORT’S TRIAL COUNSEL: Objection, Your Honor, to hearsay. COURT: I sustain the objection.

Following this exchange, the trial court struck the testimony

and instructed the jury to disregard the statements, so the

prosecutor moved on. At the hearing on Davenport’s motion for new

trial, trial counsel testified that he meant to move for mistrial, but

could not precisely recall why he did not, and that looking back, he

thought that would have been the proper course of action. He

testified that it was not part of his trial strategy to avoid moving for

a mistrial or requesting a curative instruction.

Even assuming trial counsel was deficient for failing to request

10 a curative instruction or move for mistrial, Davenport was not

prejudiced because the hearsay testimony was cumulative of other

evidence. See Koonce v. State, 305 Ga. 671, 675 (2) (c) (827 SE2d 633)

(2019) (defendant failed to show prejudice resulting from failure to

object or move for mistrial based on certain hearsay testimony that

was “largely cumulative of other, unobjected-to evidence of the same

facts”); see also Wilson v. State, 297 Ga. 86, 87-88 (2) (772 SE2d 689)

(2015) (no prejudice where the challenged testimony was cumulative

of other evidence). Moreover, the trial court struck the hearsay

evidence and instructed the jurors to disregard it, an instruction we

presume they followed. See Holmes v. State, 273 Ga. 644, 648 (5) (c)

(543 SE2d 688) (2001).

Additionally, at trial, Davenport testified that he had a long

history of criminal behavior, which included a prior felony conviction

for conspiracy to commit armed robbery. Thus, even assuming

Davenport’s trial counsel performed deficiently by not moving for a

mistrial or a curative instruction, there is no reasonable probability

that Thomas’s mother’s reference to Davenport’s “robbing” affected

11 the trial’s result, because that statement merely confirmed

Davenport’s own testimony regarding his involvement in a prior

robbery. See Koonce, 305 Ga. at 676 (2) (d) (no prejudice resulting

from failure to move for mistrial because hearsay statements were

cumulative of defendant’s own testimony). Davenport’s claim of

ineffective assistance fails.

3. Davenport also contends that the trial court erred by

refusing to instruct the jury on voluntary manslaughter as a lesser

offense of malice murder. We disagree.

Davenport made a written request for a jury charge on

voluntary manslaughter. At the charge conference, the trial court

explained to the parties that the evidence presented at trial did not

authorize the charge. The trial court stated “while the jury charges

on self-defense and voluntary manslaughter are not mutually

exclusive, the provocation necessary to support a charge of voluntary

manslaughter is different from that which would support a claim of

self-defense.” After the trial court charged the jury, trial counsel

made no objection to the charge as given.

12 In the absence of an objection at the time of the charge, this

Court reviews this issue only for plain error pursuant to OCGA § 17-

8-58 (b).3 See White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012)

(quoting OCGA § 17-8-58 (b)). Where an alleged error regarding a

jury instruction is not affirmatively waived, reversal is authorized

under plain error review if the instruction was erroneous, the error

was obvious, the instruction likely affected the outcome of the

proceedings, and the error seriously affected the fairness, integrity

or public reputation of judicial proceedings. See Morris v. State, 303

Ga. 192, 197 (V) (811 SE2d 321) (2018).

A charge on voluntary manslaughter is warranted where there

3 OCGA § 17-8-58 provides:

(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury’s hearing and presence. (b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section. 13 is slight evidence showing that the accused was so provoked that he

“reacted passionately rather than simply in an attempt to defend

himself” when he killed the victim. (Citation and punctuation

omitted.) Jackson v. State, 301 Ga. 878, 880 (2) (804 SE2d 357)

(2017). But, “neither fear that someone is going to pull a gun nor

fighting are the types of provocation which demand a voluntary

manslaughter charge.” Smith v. State, 296 Ga. 731, 737 (3) (770

SE2d 610) (2015). Whether the defendant presented any evidence of

provocation sufficient to excite the passions of a reasonable person

is a question of law. See Campbell v. State, 292 Ga. 766, 767 (2) (740

SE2d 115) (2013).

Davenport’s claim fails because there was no error, plain or

otherwise, in the trial court’s refusal to give a voluntary

manslaughter instruction. Davenport pursued a self-defense

strategy at trial, claiming that he went to Thomas’s home to resolve

an issue from a prior drug deal and that Thomas suddenly attacked

him. Davenport testified multiple times that he did not shoot

Thomas due to any heightened emotion or anger. Further, in his

14 account to both Britt and Davenport’s cousin, the shooting was the

result of a botched armed robbery. Because there was no evidence to

support a jury charge on voluntary manslaughter, the trial court did

not err in refusing to give the charge. Accordingly, this enumeration

fails.

Judgment affirmed. All the Justices concur.

Decided June 1, 2021.

Murder. Tift Superior Court. .Before Judge Cross.

Conger & Smith, Gregory D. Smith, Margaret O. Rentz,

for appellant.

C. Paul Bowden, District Attorney; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney

General, Paula K. Smith, Senior Assistant Attorney General,

William C. Enfinger, Assistant Attorney General, for appellee.