306 Ga. 764
FINAL COPY
S19A0681. DAVIS v. THE STATE.
ELLINGTON, Justice.
A jury found Michael Earl Davis guilty of felony murder and
other crimes arising out of a home invasion and the shooting death
of Nicolas Jackson II.1 On appeal, Davis contends that the trial court
1 The victim was killed on February 2, 2012. On March 20, 2014, Davis
was indicted for malice murder, four counts of felony murder (predicated on
armed robbery, aggravated assault, burglary, and possession of a firearm by a
first offender probationer), armed robbery, aggravated assault, burglary,
possession of a firearm by a first offender probationer, and criminal gang
activity. The count of criminal gang activity was later dismissed. The
indictment charged Reco West with similar offenses, and Davis and West were
tried together in May 2014, but during the course of those proceedings the trial
court granted Davis’s motion to sever his trial from that of West. See West v.
State, 305 Ga. 467, 467 n.1 (
826 SE2d 64) (2019). Davis was then tried
individually on January 5 to 14, 2015. The jury found Davis not guilty of malice
murder but guilty of the remaining counts. Davis was sentenced on February
4, 2015, to serve life in prison without parole on the count of felony murder
predicated on aggravated assault and a consecutive 20-year term of
confinement on the burglary count. In addition, Davis was sentenced to life in
prison on the armed robbery count to be served concurrently with the felony
murder sentence and to a five-year prison term on the count of possession of a
firearm by a first offender probationer to be served concurrently with the
burglary sentence. The three remaining felony murder counts were vacated by
operation of law, and the aggravated assault merged with felony murder for
purposes of sentencing. Davis filed a motion for new trial on February 5, 2015,
and an amended motion for new trial on November 25, 2015. Following an
April 22, 2016 hearing, the trial court denied the motion for a new trial on April
erred in striking a prospective juror over his objection. We affirm for
the reasons set forth below.
Viewed in a light most favorable to the verdicts, the evidence
shows the following. In August 2011, Kevell Ross asked his step-
brother, Timothy Johnson, to “get some guys together” for the
purpose of burglarizing the Jackson residence in Gwinnett County.
Ross believed that there was valuable jewelry and at least $1 million
in cash in the house.
Johnson contacted Darrez Chandler in September 2011, and
they began to plan the crime. After an aborted attempt in December
2011, they assembled another crew and returned to the Jackson
residence on February 2, 2012. On the way, they picked up “two
younger guys,” Reco West and Davis. According to Johnson, Davis
got into the van with a gun, which he immediately began “clicking
[and] getting . . . ready.” When questioned by crew member Eddie
4, 2018. Davis’s timely appeal was docketed in this Court to the April 2019
term and submitted for decision on the briefs.
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Green, Davis and West acknowledged that they had been apprised
of “what [was] up.”
Johnson drove to the scene in a silver van carrying Jason
Dozier, Anthony Lumpkin, Green, West, and Davis. Chandler
remained in a nearby parking lot in his Pontiac with instructions to
stay on the phone and let the others know if the police came. When
the van arrived at the Jackson residence, Dozier, Lumpkin, West,
and Davis, each carrying a handgun, exited and walked to the
basement door. Johnson and Green remained in the van.
By this time, 15-year-old Nicolas Jackson and his older sister,
Nikia Jackson, had returned home from school. When Lumpkin
kicked the basement door open, the four men entered the house and
Nicolas ran to his bedroom in the basement. Lumpkin and Dozier
fired their weapons through the bedroom door. Nicolas suffered a
fatal gunshot wound to his chest. The four intruders fled the Jackson
home and returned to the van driven by Johnson. Dozier was
carrying a laptop computer bag. Shortly after Johnson drove away,
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Lumpkin announced to the others that the victim was “bucking” and
that he “had to shoot” him.
When the intruders entered her home through the basement,
Nikia was watching television in her room on the third floor. She
heard what she thought was the sound of her brother bouncing a
basketball and left her room to investigate. After walking
downstairs into the living room, she looked outside and saw a silver
van driving away. She called 911, and subsequently found Nicolas
collapsed behind his bedroom door.
A City of Norcross police officer stopped the van shortly after
the shooting. Lumpkin and West ran away on foot, but they were
taken into custody a few minutes later, as were the four men who
remained in the van. Police recovered four handguns from inside or
near the vehicle. A laptop computer missing from the Jackson
residence was in the van. Testing showed gunshot residue on the
hands of Davis, Dozier, Lumpkin, and West. Gunshot residue was
not found on either Johnson or Green.
4
At trial, Davis testified in his own defense. According to Davis,
he got into the van because Green asked him to ride with him in
order “to handle something.” Davis maintained that he and Green
rode together as matter of routine when Green, a drug dealer, went
to collect money. Once they arrived at their destination, Davis said,
he stayed in the van with Green and did not enter the house. Davis
explained that he got gunshot residue on his hands when Dozier
later tried to pass him a gun.
1. Davis does not challenge the sufficiency of the evidence.
However, as is our custom in murder cases, we have reviewed the
record to determine if the evidence was legally sufficient. We
conclude that the evidence presented at trial, as summarized above,
was sufficient to authorize the jury to find Davis guilty beyond a
reasonable doubt 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). See also OCGA § 16-2-20 (defining party to a crime);
Navarrete v. State,
283 Ga. 156, 158 (1) (
656 SE2d 814) (2008) (a jury
may infer common criminal intent from the defendant’s presence,
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companionship, and conduct with other perpetrators before, during,
and after the offenses).
2. Davis contends that the trial court erred when it granted
the State’s motion to strike a prospective juror over his objection.
Specifically, he contends the trial court improperly questioned the
juror regarding a topic not covered in OCGA § 15-12-164 (a). He also
contends that the trial court improperly excused the juror for cause
based on the State’s argument that she could not be fair and
impartial.
The record shows that during questioning of the venire by the
trial court, Juror 36 raised her card in an affirmative response when
the trial court asked whether anyone had “something going on in
your personal life that would prevent you from giving your full
attention to this case if selected[.]” When Davis’s attorney asked the
venire if anyone had an economic or familial hardship, Juror 36
again gave an affirmative response.
During individual questioning, the prosecutor asked Juror 36
a series of questions about her family members who had been
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arrested and charged with a crime. The prosecutor did not ask Juror
36 about her hardship and Davis’s counsel declined to question the
juror. The trial court, however, asked Juror 36 to describe the nature
of her hardship. Juror 36 explained that, the day before, her brother
had died in Mississippi from throat cancer. She said that she
believed that the funeral would occur that weekend, although she
had not “talked to anyone today because [she had] been here.”
The State subsequently moved to strike Juror 36 on “two
bases.” First, the prosecutor pointed to the “late-described hardship”
and the funeral arrangements for her brother that would take Juror
36 out of the state. Secondly, the prosecutor asked that Juror 36 be
struck for cause in that she could not be a fair and impartial juror.
The prosecutor argued that the juror had described her family
members as having been “unfairly handled by the system,” that she
had maintained that she had not been treated appropriately by law
enforcement, and that her body language and responses indicated a
hostility to law enforcement.
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In its ruling, the trial court announced that it would “grant this
challenge primarily as a hardship based on the very recent death,
within the last 24 hours, of one of [Juror 36’s] relatives that will
require her to go to Mississippi.” The trial court said that it was
granting “the first part of the State’s request,” and then
characterized the grant “as a hardship excusal by the Court itself.”
In its order denying Davis’s motion for new trial, the trial court
explained that “the Court excused [Juror 36] based on her hardship
situation, taking the juror at her word on her problems
concentrating on the case.”
Davis complains that the trial court’s questioning of Juror 36
did not pertain to the topics covered in OCGA § 15-12-164 (a),2 but
2 OCGA § 15-12-164 (a) provides:
On voir dire examination in a felony trial, the jurors shall be
asked the following questions:
(1) “Have you, for any reason, formed and expressed any
opinion in regard to the guilt or innocence of the accused?” If
the juror answers in the negative, the question in paragraph
(2) of this subsection shall be propounded to him;
(2) “Have you any prejudice or bias resting on your mind
either for or against the accused?” If the juror answers in the
negative, the question in paragraph (3) of this subsection
shall be propounded to him;
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to the juror’s claim that she had a death in the family. Davis’s
reliance on OCGA § 15-12-164 is inapposite. That statute
enumerates questions that must be asked of prospective jurors; it
does not limit the trial court’s inquiry to those issues. See Morrow v.
State, 272 Ga. 691, 698 (6) (
532 SE2d 78) (2000) (the scope of voir
dire is left to the trial court’s discretion); Croft v. State,
73 Ga. App.
318, 319 (1) (
36 SE2d 200) (1945) (predecessor to OCGA § 15-12-164
did not “exclude by its language all other questions not mentioned
therein which may be asked the juror when put on the voir dire”).
Davis argues that “it is evident” that the State’s motion to
strike Juror 36 was based not on hardship but on her bias against
law enforcement. Davis contends that, in fact, Juror 36 was not
(3) “Is your mind perfectly impartial between the state and
the accused?” If the juror answers this question in the
affirmative, he shall be adjudged and held to be a competent
juror in all cases where the authorized penalty for the
offense does not involve the life of the accused; but when it
does involve the life of the accused, the question in
paragraph (4) of this subsection shall also be put to him;
(4) “Are you conscientiously opposed to capital punishment?”
If the juror answers this question in the negative, he shall
be held to be a competent juror.
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biased in that she had testified during her individual questioning
that she could be fair and impartial to both Davis and the State.
However, the State’s motion to remove the juror was based in part
on the juror’s hardship and in part on the juror’s alleged inability to
be fair and impartial. The trial court then excused Juror 36 on the
basis of hardship. “It is well-settled that a trial court may excuse a
potential juror for ‘good cause’ if jury service would impose an undue
hardship. OCGA § 15-12-1 (a).” Stewart v. State, 277 Ga. 768, 769-
770 (3) (
596 SE2d 143) (2004) (citation and punctuation omitted)
(trial court properly exercised its discretion in excusing a juror who
represented that she was too distressed about her mother’s recent
death to serve on a murder case). See also Walker v. Hagins,
290
Ga. 512, 514 (
722 SE2d 725) (2012) (“whether to excuse a juror for
hardship lies within the trial court’s discretion”) (citation and
punctuation omitted). Accordingly, there was no error.
Judgment affirmed. All the Justices concur.
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DECIDED SEPTEMBER 9, 2019.
Murder. Gwinnett Superior Court. Before Judge T. Davis.
Juwayn Haddad, for appellant.
Daniel J. Porter, District Attorney, Jon W. Setzer, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Matthew D. O’Brien, Assistant Attorney
General, for appellee.
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