Davis v. State

725 S.E.2d 280, 290 Ga. 757, 2012 Fulton County D. Rep. 1112, 2012 Ga. LEXIS 332
Supreme Court of Georgia·Decided March 23, 2012·No. S11A1776·Published·Cited by 55 cases

Opinions

HUNSTEIN, Chief Justice.

Dutch Davis was convicted of felony murder predicated on a drug transaction and attempted violation of the Georgia Controlled Substances Act (“VGCSA”).1 Davis’s motion for new trial was denied, and he now appeals that decision.

1. Viewed in the light most favorable to the verdict, the evidence [758] shows that Davis and his brother, Justin, went to a vacant apartment on Camp Creek Parkway on March 30, 2006 to buy marijuana from the victim, Lafe Dalton, and another man, Alan Simpson. Simpson testified that as Dalton was weighing the marijuana, Justin pulled a gun with the intent of robbing Dalton and Simpson. An altercation ensued, and Justin Davis shot Dalton. The Davis brothers fled after the shooting. Simpson called 911, but when the police arrived, Dalton was dead. Justin was convicted of felony murder predicated on the drug transaction and attempted VGCSA. His convictions were upheld by this Court. Davis v. State, 287 Ga. 173 (695 SE2d 251) (2010). The evidence in this case was sufficient for the jury to conclude beyond a reasonable doubt that Davis was guilty of felony murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. During the charge conference, Davis requested a special jury instruction that self-defense is a valid justification to felony murder based on Heard v. State, 261 Ga. 262 (3) (403 SE2d 438) (1991). Davis complains that the trial judge erred when it declined to give the requested instruction, but rather gave the pattern instruction, which stated in part that self-defense is inapplicable when the accused “[i]s attempting to commit [or] is committing ... a felony.” See OCGA § 16-3-21 (b) (2).2

In Heard, the trial court instructed the jury that self-defense is not a defense to felony murder. Heard, 261 Ga. at 262. This Court reversed, holding that a trial court may not prohibit a defendant from presenting a justification defense in a felony murder case where there is “sufficient evidence of a confrontation between the defendant and the victim, or other circumstances which ordinarily would support a charge on justification.” Id. at 262-263. We reasoned that [759] the legislature did not intend to preclude the defense of justification in all felony murder cases. Id. at 262. For example, it would be “unfair and illogical to deny a defendant the defense of justification against a felony murder charge merely because of his status as a convicted felon in possession of a firearm” or because “he happened to have 1.1 ounces of marijuana in his pocket when he killed someone while trying to defend himself.” Id. at 263, n. 3. Thus, the Heard decision clarified that self-defense is available as a defense to felony murder when authorized by the facts.

That is not the case here. Davis was not simply a status offender. Rather, he “made an affirmative choice to engage in a dangerous and potentially violent criminal activity” when he participated in the drug transaction. See Smith v. State, 290 Ga. 768, 771 (2) (723 SE2d 915) (2012). Therefore, the circumstances of this case are more analogous to a robber who kills someone while fleeing than they are to a status offender who kills someone in self-defense while he happens to possess 1.1 ounces of marijuana. Accordingly, the trial court was authorized to instruct the jury pursuant to OCGA § 16-3-21 (b) (2), which states in pertinent part that self-defense is inapplicable when the accused “[i]s attempting to commit [or] is committing ... a felony.” Smith, supra, 290 Ga. at 770.

3. Next, Davis claims that the trial court erred when it overruled the defense objection to the prosecutor’s closing argument, in which she asserted that Davis’s admission to the attempted VGCSA count meant that he was automatically guilty of felony murder. Specifically, Davis complains that the prosecutor misstated the law when she told the jury that “if you go on a marijuana drug deal and someone dies, you are responsible for their death.”

It is well settled that counsel “is permitted wide latitude in closing argument, and any limitation of argument is a matter for the court’s discretion.” Watkins v. State, 278 Ga. 414, 415 (2) (603 SE2d 222) (2004) (Citation and punctuation omitted). Here, the trial court found that the prosecutor’s comments were directed at the jury’s deliberations and were not a statement of the law. Further, the trial court instructed the jury twice that closing arguments are not evidence and that the trial court itself would instruct the jury on the law that applied to the case. Additionally, two hours into its deliberations, the jury presented the following question to the trial court: “If defendant is found guilty of count 8 [VGCSA], does that automatically make him guilty of count 7 [felony murder]?” After consulting with counsel for both sides, the trial court responded, “the answer to that question is ‘no’.” Neither party objected to the trial court’s answer to the jury’s question.

Given the latitude allowed during closing argument, the trial court did not abuse its discretion in overruling Davis’s objection to [760] the prosecution’s closing argument. Even if it had been error to allow the prosecutor’s comments during closing, the trial court’s subsequent instructions and response to the jury’s inquiry would render the error harmless.

4. Contrary to Davis’s assertion, there was a sufficient nexus between the VGCSA and the victim’s death to show that Davis’s participation in the drug transaction was the proximate cause of Dalton’s death. Proximate cause exists if Davis’s felony

directly and materially contributed to the happening of a subsequent accruing immediate cause of the death, or if. . . the homicide (was) committed within the res gestae of the felony . . . and is one of the incidental, probable consequences of the execution of the design to commit the [predicate felony].

State v. Jackson, 287 Ga. 646, 652 (2) (697 SE2d 757) (2010) (Citations and punctuation omitted). “The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life.” Hulme v. State, 273 Ga. 676, 678 (1) (544 SE2d 138) (2001). That is, the felony must be dangerous per se or by its circumstances create a foreseeable risk of death. Id.

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Davis v. State, 725 S.E.2d 280, 290 Ga. 757, 2012 Fulton County D. Rep. 1112, 2012 Ga. LEXIS 332 (Ga. 2012).

725 S.E.2d 280 (Davis v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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