307 Ga. 746
FINAL COPY
S19A1432. DAVIS v. THE STATE.
BOGGS, Justice.
In 2012, Sylvester Davis, Jr., was convicted of malice murder
in connection with the shooting death of Marquis Wadley. Davis
appeals, arguing that the trial court abused its discretion in
admitting certain testimony by a Georgia Bureau of Investigation
(“GBI”) agent and in denying his motion for a mistrial, and that, to
the extent that this Court concludes that he waived certain
evidentiary objections by failing to raise them at trial, his trial
counsel rendered ineffective assistance. We affirm.1
1 Wadley was killed on July 12, 2011. On August 20, 2012, a Treutlen
County grand jury indicted Davis for malice murder, two counts of felony
murder, attempted armed robbery, and aggravated assault. Law enforcement
officers also arrested Jonathan Wright — Davis’ older brother — for the
shooting, and he agreed to testify against Davis in exchange for a plea deal. At
a trial from December 10 to 12, 2012, the jury acquitted Davis of attempted
armed robbery and the associated felony murder charge, but found him guilty
of malice murder, felony murder predicated on aggravated assault, and
aggravated assault. The trial court sentenced Davis to serve life in prison
without parole for malice murder. The trial court also entered sentences on the
other two guilty verdicts but later recognized that the felony murder guilty
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed as follows. Davis lived with his
older brother Jonathan Wright at their grandmother’s house in
Soperton. On the afternoon of July 11, 2011, Davis texted Wadley
seeking to buy some cocaine and marijuana and asked Wadley to
contact him. Wadley did not respond.
The next morning, Davis texted Wadley again about buying
drugs, and this time Wadley responded. Davis asked Wadley to
bring the drugs to Davis’ grandmother’s house and described the
location. Wadley replied that he was at work, and Davis said that he
would wait for Wadley to come over. That afternoon, Davis twice
texted Wadley to make sure that he was coming over, and both times
Wadley said that he was. Davis told S. B., his then-girlfriend, who
was a minor at the time, that someone was supposed to come over to
verdict was vacated by operation of law and merged the guilty verdict for
aggravated assault into the malice murder conviction. On December 26, 2012,
Davis filed a motion for new trial, which he amended with new counsel on
March 17, 2017, and again on April 20, 2018. After two evidentiary hearings,
the trial court denied the motion on May 8, 2019. Davis then filed a timely
notice of appeal. The case was docketed in this Court for the August 2019 term
and orally argued on November 7, 2019.
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his house that day, and that “[i]f he comes, it’s going to be through
for him.”
At 5:59 p.m., Davis texted Wadley to say that he was still
waiting. At 6:01 p.m., Wadley replied, “K, on the way.” A few
minutes later, one of Wadley’s cousins saw Wadley pull into the
driveway at Davis’ grandmother’s house. Another cousin, Sandra
Baker, also was in the area on her way to a convenience store and
saw Wadley pull into the driveway. At 6:07 p.m., Wadley texted
Davis and said, “I’m here with the slabs.”2 Davis told Wright that
Wadley was there and went outside to talk to Wadley. Davis had an
old Smith & Wesson .32 caliber revolver — which S. B.’s brother had
previously seen him with — that he took with him to greet Wadley.
On her way back from the convenience store, Baker, who knew
Davis, saw him standing outside the front passenger-side door of
Wadley’s car talking to Wadley. Minutes later, Davis pulled out his
revolver and shot Wadley — who was unarmed — twice in the head.
2 An experienced law enforcement officer testified that “slabs” is slang
for illicit drugs.
3
According to Wright, Davis ran into the house and told Wright,
“I f**ked up. I burned a man,” which Wright understood to mean
that he shot someone. Wright went outside to see what had
happened and saw Wadley slumped over in his car, dying. Wright
went back inside and got a bedsheet, which he brought out and put
over Wadley before lifting Wadley out of the driver’s seat and
putting him into the trunk of the car. Wright then drove Wadley’s
car, with Davis riding in the front passenger seat, to Vidalia, where
Davis and Wright abandoned the car on the side of a road. Davis and
Wright then walked to downtown Vidalia and caught a taxi back to
Soperton. The taxi driver, who identified Davis at trial, dropped
them off “out by the railroad tracks” in Soperton, and they then
walked back to their grandmother’s house.
Around 7:00 the next morning, Wadley’s father went to Davis’
grandmother’s house looking for Wadley and spoke to Davis and
Wright. Davis admitted that Wadley had been there the day before
and said that Wadley had sold him “some dust.” Once Wadley’s
father left, Davis and Wright left Soperton. Wadley’s body was
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discovered in the trunk of his abandoned car in Vidalia later that
morning.
On the afternoon of July 13, Davis texted S. B., “We need to
talk about something and this is between me and you.” S. B. texted
back, asking what it was about and suggesting that it must not be
that important, and Davis replied, “It’s about my f**king life, [S. B.].
Do you want to be with me?” S. B. apologized and again asked what
it was about, and Davis texted, “It’s about me, but you have to
promise me on everything this will be our secret and erase all these
texts.” S. B. sent Davis several texts trying to learn more, and Davis
replied, “I’m going to call you and tell you, babe, tonight. I promise
I’m going to tell you. Just keep your mouth closed if you love me.”
On the night of July 13, Davis spoke with S. B. by telephone.
According to S. B., Davis asked if she knew Wadley, and she said no.
Davis told S. B. that Wadley had been killed and that people were
saying that Davis and Wright had killed him. At first, Davis said
that he did not do it, but then he said, “we didn’t mean to . . . do it
that way. . . . It wasn’t supposed to happen like that.” Davis claimed
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that Wadley had tried to hurt him and said that he was not going to
let Wadley do anything to him. Davis also asked S. B. to run away
with him.
The medical examiner who performed Wadley’s autopsy found
no defensive wounds, and the only injuries to the body were the two
gunshot wounds. The medical examiner extracted two .32 caliber
bullet fragments from Wadley’s head. Five days after the shooting,
Davis and Wright turned themselves in to authorities in Dublin,
Georgia. Davis elected not to testify at trial. The defense theory was
that Wright rather than Davis was the shooter.
Although Davis does not challenge the sufficiency of the
evidence to support his conviction, consistent with our usual
practice, we have reviewed the evidence presented at trial and
summarized above and conclude that it was sufficient to permit a
reasonable jury to find — as this one did — that Davis was guilty
beyond a reasonable doubt of malice murder. See Jackson v.
Virginia, 443 U. S. 307, 319 (III) (B) (
99 SCt 2781, 61 LE2d 560)
(1979).
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2. Davis argues that the trial court erred in allowing the
State to elicit certain testimony from GBI Special Agent Kendra
Lynn, the lead investigator on the case. We address those arguments
in turn below.
(a) First, Davis contends that the trial court erred in allowing
Lynn to testify that she interviewed more than 30 people and that
her focus narrowed on Davis as a potential suspect “[f]rom
information we learned from witnesses.” The State responded, and
the trial court ruled, that Lynn’s testimony was admissible to
explain her course of conduct during the investigation.
Davis’ trial took place in December 2012, when the old
Evidence Code was still in effect. With respect to the admissibility
of evidence regarding an investigating officer’s conduct, we
explained:
It will be seen that only in rare instances will the
“conduct” of an investigating officer need to be
“explained,” as in practically every case, the motive,
intent, or state of mind of such an officer will not be
“matters concerning which the truth must be found.” At
heart, a criminal prosecution is designed to find the truth
of what a defendant did, and, on occasion, of why he did
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it. It is most unusual that a prosecution will properly
concern itself with why an investigating officer did
something.
Teague v. State, 252 Ga. 534, 536 (
314 SE2d 910) (1984). Applying
that rule in Teague, we held that it was error for the trial court to
permit the State to elicit testimony from the investigating officer as
to a conversation that officer had with a third party “for the limited
purpose of explaining the officer’s conduct in the continuing
investigation” of a robbery, because such information was not
relevant to determining the defendant’s guilt or innocence. (Citation
and punctuation omitted.)
Id. at 536-537. However, we ultimately
affirmed the defendant’s conviction, holding that the error was
harmless because other witnesses testified in accord with the
officer’s testimony. As such, we concluded that the officer’s
testimony was “merely cumulative,” and thus it was highly probable
that its admission did not contribute to the verdict.
Id. at 537.
Based on the foregoing, the trial court in this case erred in
admitting the challenged testimony on the theory that it was
necessary to explain Lynn’s course of conduct during the
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investigation, as that information simply was not relevant to
determining Davis’ guilt or innocence. As in Teague, Lynn’s
investigatory actions did not need to be explained, given that Davis
did not attack or otherwise question the nature or adequacy of
Lynn’s investigation before Lynn gave the challenged testimony on
direct examination.3 See id. Compare Adkins v. State,
301 Ga. 153,
160 (
800 SE2d 341) (2017) (no abuse of discretion in allowing officer
to explain why he conducted investigation the way he did after
defense raised questions about his investigation).
To reverse Davis’ conviction, however, the error must have
been harmful. See Cowart v. State, 294 Ga. 333, 341 (
751 SE2d 399)
(2013). As Davis conceded in his opening statement, there was
ample evidence that Wadley was murdered at the house where
Davis was staying; that Wadley died from two gunshot wounds to
3 Davis also contends that this testimony violated his right to confront
his accusers. This argument fails for the simple reason that Lynn did not
testify to the substance of what any of the more than 30 witnesses told her. See
Allen v. State, 296 Ga. 785, 788 (
770 SE2d 824) (2015) (holding that right to
confront accusers was not violated where “no substance of any supposed
statements was placed before the jury by the detectives’ reference”).
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the head from a .32 caliber revolver; that his body was stuffed in the
trunk of his car, which was abandoned in Vidalia; that on the night
of the murder, Davis and Wright took a taxi from Vidalia back to
Soperton, and had their driver drop them off not at their home, but
near some railroad tracks; and that after the murder, Davis and
Wright left town. Moreover, even though Davis denied that he
participated in the shooting, pointing the finger at Wright, text
messages properly admitted into evidence at trial showed that Davis
was the one who asked Wadley to come over, not Wright; one of
Wadley’s cousins testified that she saw Davis outside talking to
Wadley shortly before Wadley was shot; and a man whose sister once
dated Davis testified that he saw Davis with an old small-caliber
revolver, which was consistent with physical evidence that .32
caliber bullets killed the victim and testimony that the fatal bullets
were likely fired from a revolver. Moreover, the jury was charged on
parties to a crime under OCGA § 16-2-20. And the challenged
testimony by Lynn was merely that her interviews focused her on
Davis as a potential suspect, which was an obvious point given that
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she ultimately arrested him. In light of the strong evidence
supportive of Davis’ malice murder conviction, we conclude that the
error in admitting the challenged testimony by Lynn did not
contribute to the verdict. Therefore, the error was harmless. See
Cowart, 294 Ga. at 342.
(b) Next, Davis argues that the trial court erred in permitting
Lynn to testify to prior consistent statements that both Wright and
S. B. made to her, as that testimony inappropriately bolstered the
credibility of those witnesses. We agree that the trial court abused
its discretion in admitting this testimony, but we again conclude
that the errors were harmless.
Lynn testified near the beginning of trial, before the State had
called Wright or S. B. The State elicited testimony from Lynn
regarding a number of prior statements Wright and S. B. had made
to her. Most of those statements were consistent with Wright’s and
S. B.’s eventual trial testimony and incriminated Davis. Trial
counsel objected to those particular portions of Lynn’s testimony on
the grounds that they were hearsay and would improperly bolster
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both Wright’s and S. B.’s credibility. The trial court overruled
counsel’s objections and stated that it would allow Lynn’s testimony
not for the truth of the matter asserted therein, but only to explain
her conduct during her investigation. For the reasons stated above,
the trial court incorrectly admitted Lynn’s testimony to explain her
conduct. And as we explain below, Wright’s and S. B.’s prior
statements were not admissible as prior consistent statements.
Under the old Evidence Code, a witness’ prior consistent
statements were admissible at trial only where (1) the veracity of a
witness’ trial testimony had been placed in issue at trial; (2) the
witness was present at trial; and (3) the witness was available for
cross-examination. See Baugh v. State, 276 Ga. 736, 738 (
585 SE2d
616) (2003). But in Baugh we also explained that
“a witness’s veracity is placed in issue so as to permit the
introduction of a prior consistent statement only if
affirmative charges of recent fabrication, improper
influence, or improper motive are raised during cross-examination.” When there are no allegations of recent
fabrication, or improper influence or motive on cross-examination, “[t]he prior consistent statement is hearsay
evidence improperly admitted to bolster the witness’s
credibility in the eyes of the jury.”
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Id. (citations omitted).
As previously stated, Lynn testified near the beginning of trial,
before Wright or S. B. took the stand. The defense had not made any
claims of recent fabrication, improper influence, or improper motive
that the pretrial statements of Wright and S. B. could have served
to rebut. Thus, Wright’s and S. B.’s pretrial statements to Lynn
“were pure hearsay and [were] inadmissible to corroborate the
witness or bolster their credibility” in the eyes of the jury. Baugh,
276 Ga. at 739. Accordingly, the trial court abused its discretion in
admitting Lynn’s testimony recounting Wright’s and S. B.’s pretrial
statements.
Our focus again shifts to whether the trial court’s evidentiary
errors were harmful. See Baugh, 276 Ga. at 739. In making this
determination, we cannot look to the improperly bolstered testimony
to show that the bolstering error was harmless. See Cowart,
294 Ga.
at 341-342. However, as noted above, the State presented strong
independent evidence of Davis’ guilt, at least as a party to the
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murder, and the jury was charged on parties to a crime. Under those
circumstances, the jury did not need to know whether Davis or
Wright was the shooter — a fact that S. B.’s and Wright’s statements
shed the most light on — in order to find Davis guilty of being a
party to Wadley’s murder. See OCGA § 16-2-20. Moreover, we also
note that Wright’s prior statements — which incriminated Davis to
a greater extent than did S. B.’s statements4 — likely would have
been admissible if the State had elicited them from Lynn in the
proper sequence (i.e., after Davis attacked Wright on cross-
examination on the ground that he had an improper motive to testify
that Davis killed Wadley). Finally, the trial court mitigated the
potential harm to Davis by ruling (incorrectly) that while Lynn could
testify to Wright’s and S. B.’s prior statements, those statements
were not admissible to prove the truth of the matter asserted
4 As stated above, Lynn testified that Wright told her that on the night
of the murder, Davis had a revolver; that Davis admitted to killing Wadley;
that he (Wright) then wrapped Wadley in a bedsheet and threw him in the
trunk of his (Wadley’s) car; that he and Davis drove Wadley’s car to Vidalia,
where they left it on the side of the road; and that they both took a taxi back
to Soperton.
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therein. Thus, we conclude that it is highly probable that errors in
admitting Lynn’s testimony recounting Wright’s and S. B.’s pretrial
statements did not contribute to the verdict. See Character v. State,
285 Ga. 112, 120 (
674 SE2d 280) (2009).
3. Davis argues that the trial court erred in denying his
motion for a mistrial. We see no abuse of discretion and affirm the
trial court’s denial.
At trial, Davis’ counsel questioned Lynn on cross-examination
about why she believed Wright’s claims that Davis was the shooter
and that the revolver belonged to Davis, despite Wright’s admission
that he put a man who might not have been dead yet into a trunk
and abandoned the car on the side of the road. Trial counsel also
asked why Lynn did not investigate whether S. B. had a motive to
lie when S. B. told Lynn that Davis confessed. Davis’ trial counsel
then asked, “so you’re saying that these thirty people you talked to,
none of whom were at the scene, somehow corroborated more with
[Wright] . . . than with [Davis]?” Lynn replied, “Yes.” Davis’ trial
counsel followed up by asking, “[T]hese thirty witnesses that you
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talked to that somehow led you to this conclusion, they’re not all
here, are they?” Lynn responded that she did not know who was
subpoenaed but that she had not seen them all at the courthouse.
Davis’ counsel then asked Lynn a series of questions about whether
“these witnesses” were going to testify about fingerprints, come
forward with physical evidence, or were eyewitnesses, and each time
Lynn said no.
On re-direct examination, Lynn testified that her investigation
was more consistent with what Wright told her than with what
Davis told her had happened. Lynn further testified that Wright’s
demeanor in talking to her and his hesitance to implicate Davis were
some of the reasons why she believed Wright and not Davis. On re-
cross-examination, Davis’ counsel continued to question Lynn about
why she believed Wright’s statements to her. In response, Lynn said
she believed Wright’s account because of what other people had told
her during her investigation about Wright and Davis. On further re-
direct examination, the State asked Lynn, “Now, as to the evidence
specifically that you gathered that narrowed it down to [Davis] being
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more likely the person that did it, what is that evidence? What
statements did you use that made you think that?” Lynn replied,
“[Davis’] family and relatives told me that he was the one that would
be more likely to do that than anyone else.”
Davis’ counsel immediately objected on the ground of bad
character evidence and, outside the presence of the jury, moved for
a mistrial. After hearing arguments from the parties, the trial court
sustained the objection and said:
Okay. This is what I’m going to do: I’m not going to
grant the mistrial, but I am going to instruct you to
abandon that line of questioning. And I am going to
instruct the jury that they’re to disregard that question,
as well as the response of the witness. And I’m going to
poll the jury and make sure that they can disregard that
in the consideration of the evidence in the trial of this
case. If any of them indicate that they cannot disregard
it, then I am going to grant the mistrial. If they can
disregard it, then in that circumstance I will allow the
trial to continue on. That is the resolution that I am going
to do.
...
I will not grant it. I will instruct you, though, that
both parties are to refrain from any further reference to
this testimony that we have just heard. You will not be
allowed to include it in your argument, in your closing
17
arguments. You will not be allowed to use it in any further
examination of any other witnesses. That will be the order
of the [c]ourt.
After the jury returned to the courtroom, the trial court
instructed the jurors as follows:
Ladies and gentlemen of the jury, when I asked y’all
to step out of the courtroom, just before that, the State
had asked [Lynn] a question. [Lynn] was beginning a
response to that question and the [d]efense objected.
While y’all were out, I had ruled that that objection is
sustained. And, therefore, you should neither consider the
question that was asked, nor this witness’s response to
that question that was responded to at that last question
and answer, right before y’all went out of the courtroom,
okay?
Because I have sustained that objection, it is most
important that you not consider the question, nor the
answer, in your deliberations during the trial of this case.
Now, is there any of the jurors who cannot set aside
and totally disregard that question and the response to
that question as part of your deliberations? If you cannot
set that aside and completely disregard it in your — in
your deliberations, I want you to please stand up right
now. Any of you?
Okay. None have stood. That being the case, the trial
will proceed.
We review the trial court’s denial of a motion for a mistrial for
an abuse of discretion. See Elkins v. State, 306 Ga. 351, 360 (
830
SE2d 217) (2019). We will not disturb a trial court’s ruling on a
18
motion for a mistrial unless it is essential to the preservation of the
right to a fair trial. See Brinson v. State, 289 Ga. 551, 552 (
713 SE2d
862) (2011).
Here, the trial court ensured that Davis retained his right to a
fair trial by giving an emphatic curative instruction and polling the
jurors as to whether they were able to disregard Agent Lynn’s
improper testimony. None of the jurors indicated that they were
unable to disregard the State’s question and Lynn’s answer.
Accordingly, the trial court did not abuse its discretion in this
respect. See Childs v. State, 287 Ga. 488, 492-493 (
696 SE2d 670)
(2010) (no abuse of discretion in denial of mistrial where trial court
instructed jury to disregard improper witness testimony). See also
Favors v. State,
305 Ga. 366, 370 (
825 SE2d 164) (2019) (“Qualified
jurors under oath are presumed to follow the instructions of the trial
court.” (citation and punctuation omitted)).
4. Finally, Davis argues that, to the extent this Court
concludes that he waived certain objections to Lynn’s testimony by
failing to raise them at trial, he received ineffective assistance of
19
counsel. But we have not relied upon waiver as a basis for rejecting
any of Davis’ enumerations of error challenging the admission of
evidence. Thus, this final enumeration of error presents nothing for
our review. Accordingly, we affirm Davis’ conviction for malice
murder.
Judgment affirmed. All the Justices concur, except Ellington,
J., not participating.
DECIDED JANUARY 27, 2020.
Murder. Treutlen Superior Court. Before Judge Gillis.
Betsey L. Tate, for appellant.
L. Craig Fraser, District Attorney, Robert B. Faircloth,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Katherine D. Emerson,
Assistant Attorney General, for appellee.
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