Evans v. State

FINAL COPY

                  S20A0007. EVANS v. THE STATE.


      MCMILLIAN, Justice.

      Appellant Jimmy Dale Evans appeals his convictions for

murder and other crimes related to the deaths of Tavoris Antoine

Calhoun and Dezmon Devonshae Thomas.1 Evans argues that


      1 Calhoun and Thomas were killed on the night of October 18-19, 2006.

On August 7, 2007, an Evans County grand jury indicted Evans on the
following 16 counts: (1) malice murder (Calhoun); (2) malice murder (Thomas);
(3) felony murder (Calhoun); (4) felony murder (Thomas); (5) aggravated
assault (Calhoun); (6) aggravated assault (Thomas); (7) armed robbery
(Calhoun); (8) entering an automobile; (9) theft by taking (firearm); (10) theft
by taking (motor vehicle); (11) possession of a firearm during the commission
of a felony; (12) concealing the death of another (Calhoun); (13) concealing the
death of another (Thomas); (14) possession of cocaine; (15) possession and use
of drug-related objects; and (16) possession of marijuana. After a trial from
June 24 to 27, 2008, the jury found Evans guilty on all charges. The trial court
sentenced Evans to life in prison for each count of malice murder, with the
sentence under Count 2 to run concurrently with Count 1. The trial court
further imposed a sentence of life in prison for armed robbery; five years for
entering an automobile; ten years for each count of theft by taking; ten years
for each count of concealing the death of another; fifteen years for possession
of cocaine; twelve months for possession and use of drug-related objects; and
twelve months for possession of marijuana, all to run concurrently with Count
1. The trial court also sentenced Evans to five years for possession of a firearm
during the commission of a felony to run consecutively to Count 1. The felony
murder counts were vacated as a matter of law, and the aggravated assault
counts merged with the counts of malice murder. Evans moved for a new trial
on July 1, 2008, and twice amended the motion, on May 15, 2012, and on
because he was visibly intoxicated at the time he made statements

to law enforcement and consented to a search of his home and

person, the statements and consent were involuntarily given and the

trial court should have granted his motion for new trial on this

ground. Relatedly, Evans argues that his trial counsel was

ineffective for failing to file a motion to suppress at trial on the same

basis.   Because Evans has failed to show error or ineffective

assistance of counsel, we affirm.

     Viewed in the light most favorable to the verdicts, the evidence

at trial showed that late on the night of October 18, 2006, a husband

and wife, who lived next door to Evans, heard gunshots, and then

saw someone dragging what appeared to be a body and placing it

inside a car. The wife called 911, and the car drove away.

Approximately 30 minutes later, while on the phone with 911 a

second time, the wife saw Evans walk down the road and enter his




November 19, 2018. Following a hearing on February 5, 2019, the trial court
denied the motion for new trial as amended on May 3, 2019. Evans filed his
notice of appeal on June 3, 2019. The case was docketed in this Court to the
term beginning December 2019 and is submitted for decision on the briefs.
home. Although the police responded to the couple’s 911 calls, they

did not begin investigating in earnest until the next morning after

the husband spoke with the local chief of police, who then contacted

the Georgia Bureau of Investigation (“GBI”). Upon examining the

road near the couple’s house and Evans’ home, investigating officers

located a large pool of blood, another smaller pool of blood, and long

drag marks between the two. The blood in the road was later tested

and determined to match Thomas’ DNA.

     During the investigation, Evans’ girlfriend came out of the

home she shared with Evans and was asked if she heard anything

the night before, but she denied hearing anything and went back

inside. Evans then came out of the home, and the officers asked him

if he had heard anything the previous night. Evans responded that

his girlfriend and he both heard what they thought was a drive-by

shooting, the sound of which caused his girlfriend to jump up and

run to another room. Evans said that he looked out of the window

and saw a car drive down the road, turn around, and come back. He

then showed the officers the path the car took. He also told police
that he believed the weapon fired could have been a rifle but that it

sounded more like “a .44 Magnum Super Blackhawk pistol.” Evans

also said that the shooting might have been “a drug deal gone bad.”

     The GBI agent then conducted interviews in the neighborhood

and, based on information that he obtained, went back to talk to

Evans about his drug use, at which time Evans admitted that he had

purchased cocaine the previous night from Calhoun. After observing

“spots” of blood on Evans’ hand, pants, and ear, the agent asked him

to come to the City of Hagan Police Department for an interview,

and Evans agreed.

     At the police department, Evans signed a consent for the police

to swab the blood on his body, while giving benign explanations for

why the blood was present. Later testing revealed that some of the

swabbed blood from Evans’ ear contained Calhoun’s DNA.

     Evans was then returned to his house where he signed another

consent form for the officers to search the home. In that search,

police recovered two .44 Magnum shell casings, drug paraphernalia,

a spoon containing white residue that later tested positive for
cocaine, blood in the area of the bathroom sink, a blood-spattered

bar of soap, and a blood-spattered towel. Based on the suspected

cocaine residue found in the residence, Evans and his girlfriend were

arrested for possession of cocaine that evening and transported to

the Evans County Sheriff’s Office.

     Earlier that day, Calhoun had been reported missing and a

description was given of his car, a 1999 Mitsubishi Galant. The

bodies of Calhoun and Thomas were subsequently found in the car,

which had been driven into the woods and crashed into a tree.

Calhoun’s body was in the front passenger seat while Thomas’ body

was in the back seat. Blood spatter and bullet fragments, including

a metal jacket from a bullet, were found inside the car. Thomas had

at least one gunshot wound to the head; Calhoun was shot once in

the back of the head. A latent palm print lifted from the rear driver-

side quarter panel of the car matched Evans’ right palm. Officers

also found a debit card belonging to Evans’ girlfriend in the rear

passenger seat.
     Law enforcement then obtained two separate search warrants

for Evans’ home, which were executed the next day, on October 20,

2006. During those searches, police recovered a wallet containing

Calhoun’s driver’s license, a .44 Magnum Super Blackhawk

handgun hidden in a closet ceiling, and a small quantity of

marijuana. Ballistics testing confirmed that the metal jacket

recovered from the Mitsubishi was fired from the .44 Magnum found

at Evans’ home.

     Also that day, Evans was read his Miranda rights2 and was

interviewed while in custody. Evans told police he called Calhoun on

October 18 to ask for a delivery of crack cocaine, although Evans did

not have enough money to pay for it. Thomas drove Calhoun to

Evans’ house. Evans said he took the Blackhawk gun from his boss’s

truck3 and had it in his waistband when he met with Calhoun and

Thomas inside the car. Evans admitted that he first shot Thomas


     2 Miranda v. Arizona, 

 (

, 16 LE2d 694) (1966).
     3 Evans’ boss testified at trial that he discovered around dinner time on

October 19, 2006, that his Blackhawk .44 Magnum handgun was missing from
his truck, and he identified the gun taken from Evans’ house as belonging to
him.
because Thomas pointed a gun at him and demanded money. Evans

then shot Calhoun when Calhoun argued with him. Evans explained

that he pulled Thomas’ body out of the driver’s seat of the car and

put Thomas’ body down in the roadway when the car began to roll

away. Evans chased after the car, put it into park, and then dragged

Thomas’ body to the car and put it in the back seat. He said he drove

the car into the woods and threw Thomas’ gun there; however, police

did not locate any firearm during a subsequent grid search of the

area. Evans took crack cocaine from the vehicle and went home to

use it. Evans had crack cocaine on his person when he was arrested.

     Evans testified to a similar story at trial, admitting that he

shot Calhoun and Thomas; however, Evans testified at trial that

Calhoun had a gun and he shot Calhoun first. Evans said he then

shot Thomas when Thomas began reaching for Evans’ gun. He

admitted to driving Calhoun’s and Thomas’ bodies in the car and

crashing it into a tree and that he was in possession of crack cocaine

when he was arrested.
     1. Evans does not dispute the legal sufficiency of the evidence

supporting his convictions. Nevertheless, as is this Court’s general

practice in murder cases, we have reviewed the record and conclude

that, when viewed in the light most favorable to the verdicts, the

evidence presented at trial was sufficient to authorize a rational jury

to find Evans guilty beyond a reasonable doubt of the crimes of

which he was convicted. See Jackson v. Virginia, 

(

, 61 LE2d 560) (1979).

     2. Evans asserts that the trial court erred in denying his

motion for new trial on the ground that his consent to search his

person and home and the statements he made to law enforcement

on October 19, 2006, were not voluntary because he was clearly and

visibly under the influence of drugs at the time, and, therefore, the

evidence should have been suppressed. Although Evans filed a

motion to suppress evidence seized from the two search warrants

executed on his home on October 20, he did not move to suppress the

evidence seized the day before, which was based on Evans’ consent
to search his person and home. As this Court has previously

explained,

     [a] motion to suppress must be in writing and state facts
     showing that the search and seizure were unlawful. In the
     absence of such a motion, the State has no burden to prove
     the lawfulness of the manner in which evidence was
     obtained, and the accused fails to preserve any error with
     respect to the suppression of the evidence.

Hernandez v. State, 

 (

) (2014) (citation

and punctuation omitted). See also Rodriguez v. State, 

 (2) (a) (

) (2014); OCGA § 17-5-30 (b). Accordingly,

Evans has not preserved this issue for appeal.4

     Likewise, this Court has also held that the failure to assert

before the trial court that a statement to police is inadmissible fails

to preserve the issue for appeal. See Lee v. State, 

, 512-

13 (2) (

) (2007) (defendant waived review of claim that

his statement to police was involuntarily obtained when he failed to

raise the issue below); Nixon v. State, 

 (2) (a) (

) (1986) (no error in admission of a statement made to police



     4 The old Evidence Code applied to Evans’ trial in 2008.
after defendant made an explicit request for an attorney where

defendant failed to raise the argument at trial, even after the district

attorney suggested the possibility of a Jackson-Denno hearing).

Here, before trial, Evans neither moved to suppress nor raised any

issue regarding the non-custodial statements he made on October

19.

      Moreover, on the first day of trial, the State mentioned the

potential need for a hearing under Jackson v. Denno, 

(

, 12 LE2d 908) (1964), and Evans’ counsel indicated

that Evans wanted the hearing. Although counsel cross-examined

the State’s witness about the events of October 19 and 20, 2006, she

raised no argument before or after the hearing asserting that Evans’

non-custodial    statements    were    involuntary,    and    therefore

inadmissible. The trial court ruled only that the custodial

statements given after Evans received the Miranda warning on

October 20 were admissible. Counsel also did not object to trial

testimony regarding Evans’ October 19 statements to police.
     Therefore, Evans has forfeited any contention that his

statements and consent given on October 19, 2006, were involuntary

because he was under the influence of crack cocaine.

     3. Evans also argues that trial counsel was ineffective for

failing to file a motion to suppress his statements and the evidence

obtained on October 19, 2006, without a warrant but with his

consent to search.

     To prevail on his claim of ineffective assistance of counsel,

Evans must show both that his counsel’s performance was deficient

and that he was prejudiced as a result of that performance.

See Strickland v. Washington, 

 (

, 80

LE2d 674) (1984). “To establish deficient performance, Appellant

must show that his counsel’s acts or omissions were objectively

unreasonable, considering all the circumstances at the time and in

the light of prevailing professional norms.” Morrall v. State, 

 (2) (

) (2019) (citing Strickland, 

-

90). To show the requisite prejudice, Evans must demonstrate “a

reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 

 (III) (B). Where, as here, an

appellant claims that trial counsel was deficient for failing to file a

motion to suppress, “the defendant must make a strong showing

that the damaging evidence would have been suppressed had

counsel made the motion.” Mosley v. State, 

 (4)

(a) (

) (2020) (citation and punctuation omitted). See

also Stanley v. State, 

 (2) (a) (

) (2008).

Evans has not made such a showing.

      (a)   Voluntariness of Statements.

      To determine whether a statement was made involuntarily due

to intoxication or the influence of drugs, courts look to the totality of

the   circumstances    and    consider   factors   including    lucidity,

coherency, manner of speech, and awareness of circumstances. See

Carter v. State, 

 (5) (

) (2009); Henson v.

State, 

 (1) (

) (1988). Moreover,

evidence of intoxication, alone, is not enough to render a statement
involuntary. See Davis v. State, 

 (6) (a) (

) (2017).

     To support his claim that his October 19 statements were

involuntary, Evans points to the trial testimony of his boss and his

boss’ son, who said that they sent Evans home from work early at

around 9:00 or 9:30 a.m. on October 19 because he was not acting

like himself and had trouble keeping his balance.5 The boss’ son

stated that he suspected Evans had smoked too much marijuana.

     However, the GBI agent who led the murder investigation

testified at the Jackson-Denno hearing held on the first day of trial

that when he first encountered Evans at around 10:00 a.m. on

October 19 and asked him if he had heard anything the night before,

Evans did not appear to be under the influence of anything. Rather,

he was coherent and aware of his surroundings. The agent spoke

with him again later in the day, after Evans had borrowed a lawn

mower from a neighbor and cut his own grass. At that point, the


     5 At the motion for new trial hearing, the State argued in rebuttal that

Evans’ conduct could also be explained by having just committed “a heinous
crime” by killing two people.
officers asked Evans to return to the police department to speak

with them, and Evans complied. During the following hour-long non-

custodial interview, the officers asked Evans about the specks of

blood on his ear, hand, and knee, and Evans provided a different,

coherent explanation for each blood stain.

     Considering the totality of the circumstances surrounding

Evans’ October 19 statements, including the GBI agent’s testimony

regarding Evans’ demeanor, conduct, and responses to officers

during the interview, we conclude that the evidence supports the

trial court’s implicit finding in denying the motion for new trial that

Evans was not visibly under the influence of drugs and that his

statements were freely and voluntarily given.

     Because we conclude that any motion to suppress such

evidence would not have been successful, the trial court properly

denied his motion for new trial on the ground of ineffective

assistance of counsel. See Mosley, 

 (4) (a). See also

White v. State, 

 (3) (c) (

) (2020) (failure
to make a meritless motion does not support a finding of ineffective

assistance of counsel); Davis, 

 (6) (a).

     (b)   Consent to Search.

     Turning to Evans’ contention that his consent to search his

person and home was also involuntarily obtained because he was

visibly intoxicated, we begin our analysis with first principles: “[t]he

Fourth Amendment guarantees the right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” State v. Turner, 

 (1) (

) (2018) (citation and punctuation omitted). See U.S.

Const. Amend. IV. “Ordinarily, a search [by law enforcement] is

deemed to be reasonable when conducted pursuant to a judicial

warrant, which the Fourth Amendment requires to be supported by

probable cause.” Caffee v. State, 

 (2) (

)

(2018) (citing Mincey v. Arizona, 

 (

, 57

LE2d 290) (1978)). “Searches conducted without a warrant are

unreasonable under the Fourth Amendment unless they fall within

a well-established exception to the warrant requirement,” including
“searches conducted pursuant to consent, the existence of exigent

circumstances, and searches incident to a lawful arrest.” 

 “[A]

valid consent to a search eliminates the need for either probable

cause or a search warrant.” Turner, 

 (1) (citation and

punctuation omitted). See also Brooks v. State, 

 (

) (2009) (citing Schneckloth v. Bustamonte, 

 (

, 36 LE2d 854) (1973)).

      “[T]o justify a warrantless search on the grounds of consent,

the State has the burden of proving that the consent was freely and

voluntarily given under the totality of the circumstances.”

Raulerson v. State, 

 (2) (a) (

) (1997)

(citing Schneckloth, 

). “It is only by analyzing all the

circumstances of an individual consent that it can be ascertained

whether in fact it was voluntary or coerced.” Brooks, 

-

26 (citation and punctuation omitted). See Raulerson, 

(2) (a) (listing factors to be considered for voluntary consent).

Arrington v. State, 

 (15) (

) (2009) (“no

single factor is controlling”) (citation and punctuation omitted).
      Here, Evans points to no evidence other than the testimony of

his boss and boss’ son about his conduct on the morning of October

19 to support his claim that the consent to search his person and

home was involuntarily obtained because he was intoxicated. Nearly

five hours after Evans was sent home from work, the GBI agent

asked for permission to take swabs from the blood stains on his body

and clothes after an hour-long, non-custodial interview at the police

department, and Evans agreed, executing a written consent to

search his person at around 2:20 p.m. Evans later consented to the

search of his home, signing a written consent form at 3:00 p.m.6

      Considering the totality of the circumstances, including the

lack of evidence that Evans appeared intoxicated at the time he

executed the consent forms, we again conclude that the record

supports the trial court’s implicit finding that Evans freely and

voluntarily gave consent to search his person and home. Because a

motion to suppress the evidence would have been meritless, the trial


      6  Although the police officer who arrested Evans several hours later and
drove him to the jail described Evans as not himself and “strung out,” the
officer did not attribute his demeanor to drug use.
court properly denied his motion for new trial on this ground. See

White, 

 (3) (c); Mosley, 

 (4) (a).

     Judgment affirmed. All the Justices concur.



                        DECIDED MAY 4, 2020.
     Murder. Evans Superior Court. Before Judge Cheney.
     Rouse & Copeland, Amy L. Copeland, for appellant.
     Tom Durden, District Attorney, Sandra Dutton, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Matthew B. Crowder, Assistant Attorney
General, for appellee.