Davis v. State

820 S.E.2d 10, 304 Ga. 547
Supreme Court of Georgia·Decided October 9, 2018·No. S18A1169·Published·Cited by 3 cases

Opinion

Boggs, Justice.

*12**547In May of 2009, a jury found Billy Randy Davis, Joseph Andrews, and Tremaine "Dick" Calhoun guilty of malice murder and felony murder in the shooting death of Cornelius Lowe.1 Davis was sentenced to life imprisonment. His second amended motion for new trial was denied, and he appeals, asserting error in the admission of a co-defendant's statement, denial of his motion to sever, and merging rather than vacating his felony murder conviction. For the reasons stated below, we affirm.

Construed to support the verdict, the evidence showed that two young girls walking home from school discovered the victim's body on a footpath in the city of Eatonton in the late morning of February 5, 2004. The victim was lying on his back with his right front pants pocket turned out. He had sustained four gunshot wounds to the head, at least one of which left powder deposits on his clothing. Forensic evidence showed that he was on his knees when he was shot.

The victim, who was known to sell marijuana, was last seen shortly after midnight, in the early morning of February 5. The friends who were with him at that time testified that his cell phone rang between 15 and 20 times, and telephone records confirmed that testimony. The last number to call the victim's phone was assigned to Wykeshia Andrews, and co-defendant Andrews asked to use her phone shortly before the time of the murder. Wykeshia Andrews testified that it was "probably" true that Andrews used her phone.

**548She also testified that the victim carried small red baggies of marijuana for delivery. Police discovered several similar red baggies near the victim's body. Later on February 5, a witness observed a shoe box top containing small red bags of marijuana in the possession of Andrews and Calhoun.

Several local residents recalled hearing shots fired around 1:00 a.m. on February 5. An eyewitness, Hargrove, testified that she was walking down the street and saw three men chasing someone down the footpath, and then heard "a lot of shots." Frightened, she ran to a nearby trailer, where a group of men were playing cards, and asked an acquaintance, Wesley, if he had heard the gunshots. When the group appeared uninterested, she continued on her way. A short time later, Hargrove saw two men running back out of the footpath, and the taller of the two ducked behind a nearby vacant house. Hargrove met with a sketch artist and described the two men she had seen running past her. The resulting sketches were displayed to the jury. Hargrove reluctantly acknowledged that the two men she saw could have been Davis and Calhoun.

Wesley testified that Hargrove came to the door of the trailer at about 1:00 a.m. and recounted the incident. He said that Hargrove told him that the two men she saw running away were Calhoun and "the other one looked like Billy Randy Davis." Wesley further testified that Calhoun and Davis had *13threatened him and that Calhoun had offered him money not to testify. A police officer testified that he saw Andrews, Calhoun, and Davis together the afternoon before the murder. Another eyewitness, Evans, gave a recorded statement to police in which he identified Andrews and Calhoun as the men he saw running in the area at the time of the murder. He marked for police on a sketch plan where he saw the men running into the footpath, and then back out after he heard gunshots.2

Footprint casts taken from the area around the body were similar to shoes worn by Andrews and Calhoun. When police searched a shed behind the vacant house described by Hargrove as the place to which the taller man ran, they discovered a "very old" .22 caliber revolver, dating to the 1940s or 1950s, hidden up between the rafters. Ballistic testing revealed that the Winchester brand .22 caliber bullets removed from the victim's body had "definite marks" consistent with bullets **549test fired from the recovered revolver, although the bullets were so damaged by impact that the firearms expert could not "say with one hundred percent certainty" that they were fired from that revolver. A partial box of Winchester brand .22 ammunition was discovered in Andrews' bedroom. "Touch DNA" testing was performed on the handle of the revolver and excluded Andrews and Calhoun. However, the recovered DNA matched Davis' DNA in 14 out of 16 locations, and the DNA expert concluded that Davis could "very possibly" have contributed that DNA to the gun handle.

Another witness, Sanders, testified that he gave Davis a ride in the early evening of February 5, and Davis asked him "how to cover up a murder." Sanders testified that Davis told him "he had been involved in a murder, but he didn't kill nobody" and that two people were with him, though he did not name them. Sanders told Davis, "I don't want to know nothing about it." Andrews' half-brother testified that he had a discussion with Andrews, Calhoun, and Davis after he found Andrews in tears and asked what was wrong. Andrews and Davis said they intended only to rob the victim, but a confrontation occurred, they began chasing him, and he fell or was shot and fell. He was begging for his life when Calhoun shot him again. Another witness, Jackson, confronted Calhoun about the murder, saying, "Y'all didn't have to do him like that." Calhoun responded that he "did what he had to do" and "what I give a f--- about killing a n------." A neighbor, Smith, heard Calhoun admit that he had killed someone for Andrews. After she told Andrews' mother about the statement, Calhoun and Andrews confronted her and told her she "will be next in line." Two other witnesses overheard Andrews tell Calhoun that he was not going to talk or take a murder charge if Calhoun did not.

A jailhouse witness, Arnold, testified that Andrews told him that he, Calhoun, and another person intended to rob the victim with "an old revolver" but that Calhoun shot him, went through his pants pocket, and threw away the gun. Another jailhouse witness, Lankford, testified that Calhoun told him they robbed drug dealers with "an old .22 revolver, western style" and shot the victim in the face and head.3 And a third jailhouse witness, Swain, testified that Andrews told him that he, Calhoun, and Davis met the victim by chance on their way to rob Wesley. They pulled a gun on the victim to rob him, but he ran away, and Calhoun shot him because he could identify them. Davis' former girlfriend and the mother of two of his children testified that Davis told her that "they robbed [the victim]

**550and he tried to run and they shot him." She testified that Davis had threatened her, saying that he "would blow my brains out like he did Lowe." Davis *14was angry because Andrews "got drunk and told his girlfriend what they had done."

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Davis v. State, 820 S.E.2d 10, 304 Ga. 547 (Ga. 2018).

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