305 Ga. 640
FINAL COPY
S19A0250. DAVIS v. THE STATE.
BLACKWELL, Justice.
Appellant Robert Maurice Davis was tried by a Newton County
jury and convicted of the murders of his wife, Bernadene Lebert-
Davis, and his son, Robert-Kellie Davis, as well as possession of a
firearm during the commission of a felony. He appeals, contending
that the trial court erred when it allowed the lead investigator to
testify about a brief delay in his custodial interview.1 Upon our
review of the record and briefs, we find no error, and we affirm.2
1 Appellant also contends that his conviction for family violence
aggravated assault upon his son is void, but as we explain in footnote 2 below,
the aggravated assault upon his son merged with the murder of the son.
Appellant was not, therefore, actually convicted of aggravated assault, and any
claim of error about the aggravated assault is moot. See Solomon v. State, 304
Ga. 846, 849 (3) (
823 SE2d 265) (2019).
2 Appellant’s wife and son were killed in September 2015. A grand jury
indicted Davis in December 2015, charging him with two counts each of murder
with malice aforethought, murder in the commission of a felony, family
1. Viewed in the light most favorable to the verdict, the
evidence presented at trial shows that Appellant called his boss on
the afternoon of September 17, 2015 and said that he had shot his
wife and son. Both Appellant and his boss then contacted law
enforcement. Officers responded to the Davis family home, where
they found the bodies of Appellant’s wife and son. His wife was
upstairs and had sustained a gunshot wound to her forehead. His
son was in the garage and had sustained a gunshot wound to his
back. The responding officers also found a handgun in the home.
Appellant told an investigator that he and his wife had gotten
into an argument and physical altercation because he had not paid
violence aggravated assault, and possession of a firearm during the
commission of a felony, as well as a single count of aggravated stalking.
Appellant was tried in August 2016, and the jury acquitted him of aggravated
stalking but found him guilty on all other counts. The trial court sentenced
Appellant to two concurrent terms of imprisonment for life without the
possibility of parole for the malice murder counts and consecutive terms of
imprisonment for five years for possession of a firearm during the commission
of a felony. The verdicts as to the felony murder counts were vacated as a
matter of law, and the aggravated assaults merged into the malice murders.
Appellant timely filed a motion for new trial, which he amended in December
2017. The trial court denied the motion for new trial in July 2018, and
Appellant timely filed a notice of appeal. The case was docketed in this Court
to the term beginning in December 2018 and submitted for a decision on the
briefs.
the water bill and because his wife was cheating on him. Appellant
said that his wife hit him with a perfume bottle, threatened to kill
him, and then called for their son to help subdue him. According to
Appellant, his son attacked him in an upstairs bedroom, but
Appellant eventually broke away, went downstairs, and grabbed a
handgun. Appellant said that he then climbed halfway up the
stairway, and the gun discharged as he was trying only to scare his
wife. At that point, he turned, he said, and shot his son as the son
ran through the kitchen toward the garage. The investigator
observed that Appellant had sustained a minor injury to his head
but had no other visible injuries.
Further investigation contradicted Appellant’s account.
Officers found no line of sight from the stairway to the kitchen, and
they found no evidence of an altercation in the upstairs bedroom.
The medical examiner concluded that the son had been shot through
his spinal cord, which would have caused immediate paralysis,
leaving him unable to run into the garage if he had, in fact, been
shot in the kitchen as Appellant claimed. Moreover, an examination
of the crime scene revealed the son’s blood in the garage, but none
in the kitchen.
Officers also learned that Appellant had purchased a handgun
about a month before the shooting. Text messages recovered from
his wife’s phone indicated that Appellant and his wife had been
arguing about infidelity and financial difficulties related to his use
of cocaine. And Appellant had a history of violence toward his wife
and son, including an incident in July 2015 that led to his arrest for
domestic violence against his wife.
Appellant does not dispute that the evidence is legally
sufficient to sustain his convictions. But consistent with our usual
practice in murder cases, we have reviewed the record to assess the
legal sufficiency of the evidence for ourselves. We conclude that the
evidence adduced at trial is sufficient to authorize a rational trier of
fact to find beyond a reasonable doubt that Appellant is guilty of the
crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (
99 SCt 2781, 61 LE2d 560) (1979).
2. Appellant claims the trial court erred when it allowed the
lead investigator to testify about a brief delay in his interview of
Appellant. At the outset, the investigator read the Miranda
warnings3 to Appellant, and Appellant agreed to submit to an
interview and executed a written waiver of his rights. But after
signing the waiver, Appellant asked the investigator if he needed a
lawyer and suggested that he needed someone to advise him. The
investigator explained that, if Appellant wanted a lawyer, the
interview would have to stop. Appellant then said that he wanted to
continue with the interview. The investigator nevertheless
discontinued the interview for approximately 22 minutes. During
that time, the investigator left the interview room and consulted
with the office of the district attorney about how to proceed. He then
returned to the interview room, read the Miranda warnings again,
and after Appellant confirmed that he wanted to go forward with the
interview, proceeded to question Appellant.
The investigator made a video recording of the interview, and
3 See Miranda v. Arizona, 384 U. S. 436 (
86 SCt 1602, 16 LE2d 694)
(1966).
the prosecution offered the recording as evidence at trial. In
connection with its presentation of the recording, the prosecution
asked the investigator to explain the 22-minute gap in the recording
that coincided with the investigator leaving the interview room to
consult with the office of the district attorney. The investigator
testified that, in light of Appellant’s statements about a lawyer, he
had stopped to consult with the office of the district attorney “to
make sure it was good to go back in and interview [Appellant] due
to him saying he wanted to talk.” Appellant made no
contemporaneous objection to this testimony.
Appellant claims on appeal that the testimony to explain the
22-minute gap was inadmissible hearsay and unduly prejudicial,
inasmuch as it implied that the district attorney thought that his
submission to an interview was voluntary. He concedes that this
claim can be reviewed only for plain error since he failed to make a
contemporaneous objection in the trial court. See Benton v. State,
301 Ga. 100, 103 (4) (
799 SE2d 743) (2017). To establish plain error,
Appellant must show (1) an error that was not affirmatively waived,
(2) that the error was “clear and obvious,” and (3) that the error
affected his “substantial rights, which in the ordinary case means
he must demonstrate that it affected the outcome of the trial court
proceedings.”
Id. (citation and punctuation omitted). If Appellant
made such a showing, we would have discretion to remedy the error,
but “only if the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.”
Id. (citation and
punctuation omitted). Appellant, however, has failed to make the
threshold showing.
To begin, the testimony about which Appellant complains is
not hearsay because it was admitted not for the truth of the matter
allegedly asserted — that the statement he gave in his interview
was voluntary (at least in the eyes of the district attorney) — but
rather for the purpose of explaining the gap in the recording. See
Carter v. State, 302 Ga. 200, 204 (2) (b) (
805 SE2d 839) (2017).
Moreover, Appellant has failed to show that the testimony was
unduly prejudicial. The testimony was relevant to explain the gap,
and the investigator did not reveal exactly what the office of the
district attorney said to him. At best, the testimony merely implied
that the district attorney had determined that the investigator could
proceed with the interview (although perhaps only after the
Miranda warning was repeated and Appellant again agreed to an
interview). We are unconvinced that the testimony tainted the jury’s
consideration of the voluntariness of the statement. Finally, even if
Appellant could show the testimony was inadmissible, he has failed
to demonstrate that its admission affected the outcome of the
proceedings. Even without the testimony about the investigator
consulting with the district attorney, ample evidence — including
the video recording of the interview — was presented to show that
the statement Appellant gave in his interview was voluntary. For
these reasons, Appellant has not shown plain error.4
4 Appellant also argues that he was denied the effective assistance of
counsel when his lawyer failed to make a contemporaneous objection to this
testimony. But as we have explained, we find no error in the admission of this
testimony, and the failure to raise a meritless objection cannot serve as
grounds for an ineffective assistance of counsel claim. See Young v. State, 305
Ga. 92, 97 (5) (
823 SE2d 774) (2019). See also Williams v. State,
304 Ga. 455,
460 n.4 (
818 SE2d 653) (2018) (holding that “the test for harm under plain
error review is equivalent to the test in ineffective assistance of counsel cases
for whether an attorney’s deficient performance has resulted in prejudice of
Judgment affirmed. All the Justices concur.
Decided April 15, 2019.
Murder. Newton Superior Court. Before Judge Ozburn.
Howard W. Anderson III, for appellant.
Layla H. Zon, District Attorney, Amber R. Bennett, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia
B. Attaway Burton, Deputy Attorney General, Paula K. Smith,
Senior Assistant Attorney General, Jason M. Rea, Assistant
Attorney General, for appellee.
constitutional proportions” (citation and punctuation omitted)).
