Dawson v. State

FINAL COPY

                 S20A0217. DAWSON v. THE STATE.


      WARREN, Justice.

      A jury convicted Lavaris Dawson of felony murder and other

crimes in connection with the shooting death of Mamadou Camara.1

On appeal, Dawson contends that the evidence was insufficient to

support his convictions, that the trial court erred by admitting

Dawson’s statements to a detective during an interview because

those statements were impermissibly induced by a hope of benefit,


      1 The crimes occurred in the early morning hours of February 20, 2007.

A Fulton County grand jury indicted Dawson on September 21, 2007, charging
him with malice murder, felony murder, aggravated assault, and possession of
a firearm during the commission of a felony. At a trial held from February 1
to 8, 2010, the jury found Dawson not guilty of malice murder but guilty of all
remaining counts. The trial court sentenced Dawson to life in prison for the
felony murder count and a consecutive term of five years of probation for the
firearm count. It then merged the aggravated assault count for purposes of
sentencing. Dawson filed a timely motion for new trial on February 11, 2010,
which he amended multiple times, most recently through current counsel on
November 19, 2018. After a hearing, the trial court denied the motion, as
amended, on February 20, 2019. On March 22, 2019, Dawson filed a timely
notice of appeal, but the case was returned to the superior court to add certain
exhibits to the record. Once that issue was resolved, Dawson filed an amended
notice of appeal on August 30, 2019, and the case was docketed in this Court
to the term beginning in December 2019 and submitted for a decision on the
briefs.
and that Dawson was denied his due process right to a timely

appeal. We disagree and affirm Dawson’s convictions.

     1.   Viewed in the light most favorable to the jury’s verdicts,

the evidence presented at Dawson’s trial showed the following. On

the night of February 19, 2007, Camara attempted to purchase

stolen electronics from Kevin Pope, who lived at the Highland Brook

Apartment Complex. After arriving at the apartment complex and

giving money to Pope, who walked away to retrieve the electronics

while Camara remained in the car, Camara was shot and killed in

an attempted carjacking.     Because investigators initially were

unable to uncover enough information to make an arrest, Camara’s

murder went unsolved for several months.

     In June 2007, however, Detective Mark McGowan, the lead

detective on the case, was notified that an inmate, Richard Burkes,

wanted to share information about Camara’s murder. Burkes

informed Detective McGowan that Burkes witnessed the murder.

Burkes described the shooter as “a black male, not very tall, with a

dark complexion with gold in his mouth, and some dread locks” — a
description matching Dawson. Law enforcement was already aware

of Dawson from earlier investigation of the case, so Detective

McGowan presented a photographic lineup to Burkes that contained

Dawson’s picture. Burkes told Detective McGowan that Burkes was

not sure if the shooter was pictured and circled a man who was not

Dawson, saying that the man looked like the shooter. But Burkes

also told Detective McGowan that another person in the lineup —

who was, in fact, Dawson—could have been the shooter. Burkes

informed Detective McGowan that Pope was present at the scene of

the crime, and Burkes identified Pope in a photographic lineup.

     Police arrested Pope, who had previously denied knowing

anything about the murder, for making false statements. After Pope

was arrested, he independently mentioned Dawson to Detective

McGowan and identified Dawson from a photograph. According to

Detective McGowan’s trial testimony, Pope “identified Lavaris

Dawson as the shooter in the case” and told Detective McGowan that

Dawson told Pope that “[Camara] had taken something from

[Dawson] and that he did what he had to do.”
      Police arrested Dawson for Camara’s murder.          After being

advised of the Miranda warnings,2 Dawson consented to a custodial

interview with Detective McGowan, in which Dawson admitted that

he was at the scene with a handgun on the night Camara was killed.

According to Dawson, he and another person had guns and “were

just shooting.” Dawson told Detective McGowan:

      I was shooting in the air at first, but then I pointed at —
      but I was still shooting in the air — but I guess aiming
      towards [Camara’s] way . . . and then he was driving off
      and I heard the window break . . . I don’t know if I did it
      or not . . . I was shooting over the car — well, I thought I
      was, but if I wasn’t, then hit that window . . . then it spun
      out of control and he crashed.

That recorded interview was played for the jury at Dawson’s trial.

      Burkes also testified at Dawson’s trial. According to Burkes’s

trial testimony, he was sitting in his parked car in the parking lot of

the apartment complex about 30 feet away from where Camara was

parked. Burkes saw Pope approach Camara’s car, Camara give

some money to Pope, and then Pope walk around to the other side of



      2 Miranda v. Arizona, 

 (

, 16 LE2d 694)

(1966).
the apartment building. Burkes testified that while Pope was away,

a young man — whom Burkes did not know and who was about 5′5″

tall with “gold fronts [and] dreads” — approached Camara’s car with

a gun and attempted to carjack Camara, telling him, “I want the car,

get out the car.”      When Camara refused, the gunman shot at

Camara, and as Camara attempted to speed off, the gunman shot at

him again through the back, right window.3 Camara’s car then

crashed into a parked van. Burkes testified that the shooter “just

went up the steps [to an apartment], changed his clothes, [and] came

back down.” Burkes identified Dawson in court as a person he had

previously identified in the photographic lineup who he thought

could be the shooter.

     Pope also testified at trial and identified Dawson in court as

the only person he saw with a gun on the night of the murder. Pope

said he spoke with Dawson days after the murder, and Dawson told

Pope, “I shot” because “[Camara] wouldn’t give it up.” Another



     3   Burkes’s description of the shooter matched Dawson, and his
description of the shooting matched the physical evidence found at the scene.
witness who lived in the apartment complex testified at trial that

after she heard gunshots, she saw three men running, one of whom

she identified as Pope, and another of whom she described as “short

with dreads, kind of brown-skinned.” She also testified that Pope

and the man with dreads had changed into different clothes by the

time the police arrived.

     2.   Dawson argues that without certain hearsay testimony

and custodial statements that he says were inadmissible and

improperly admitted, the evidence was insufficient to prove that he

committed the crimes for which he was convicted. We disagree.

     Specifically, Dawson argues that Pope’s testimony that

Dawson told him, “I shot” because Camara “wouldn’t give it up”;

Burke’s testimony that he heard the shooter tell Camara, “I want

the car, get out the car”; and Detective McGowan’s testimony that

Pope told him that Dawson said he “did what he had to do” because

Camara took something from Dawson were inadmissible hearsay.

And because generally speaking, under Georgia’s old Evidence
Code,4 “erroneously-admitted hearsay” was deemed to have no

probative value and therefore could not be considered in

determining the sufficiency of the evidence, Livingston v. State, 

 (

) (1997); see also Cowart v. State, 

, 343 n.12 (

) (2013), Dawson argues that these

three statements cannot be considered in our sufficiency review and

that the remaining evidence was insufficient to support his

convictions. The applicability of this old Evidence Code exception to

our sufficiency review, however, does not change the outcome in

Dawson’s case, because the first two statements he complains of

were admissible at trial, and — even assuming that the third

statement was inadmissible — the evidence was still sufficient to

support his convictions.

      As for the first statement — Pope’s testimony that Dawson told

him, “I shot” because Camara “wouldn’t give it up” — Dawson’s

argument fails to recognize that under our old Evidence Code,



      4 Because Dawson was tried in 2010, the old Evidence Code applies to

his case.
“[a]dmissions of a party opponent are admissible as exceptions to the

hearsay rule.” Bostic v. State, 

 (

) (2014);

see also, e.g., Lewis v. State, 

 (

) (2013)

(witness’s testimony that defendant told him that defendant and co-

defendant discussed killing victim was admissible because “[a]ny

statement or conduct of a person, indicating a consciousness of guilt,

where such person is, at the time or thereafter, charged with or

suspected of crime, is admissible against him upon his trial for

committing it”) (citation and punctuation omitted); Russell v. State,

 (

) (1995), overruled on other grounds

by Terry v. State, 

 (

) (2012) (trial court did

not err by allowing State to present testimony that after victim’s

death, the defendant “threatened someone by saying she had killed

one person and would not mind killing another person” because the

statement was deemed an admission).5              Dawson’s statement, as

communicated through Pope’s testimony at trial, was not


      5 Our current Evidence Code defines “[a]dmissions by party-opponent”

and provides that “[a]dmissions shall not be excluded by the hearsay rule.” See
OCGA § 24-8-801 (d) (2).
inadmissible hearsay because the State elicited it as an admission

of a party opponent, which is admissible as an exception to the

hearsay rule.

     Likewise, the second statement — Burke’s testimony that he

heard the shooter tell Camara, “I want the car, get out the car” —

was also admissible. That is because under our old Evidence Code’s

res gestae exception, “[d]eclarations accompanying an act, or so

nearly connected therewith in time as to be free from all suspicion

of device or afterthought, shall be admissible in evidence as part of

the res gestae.” Former OCGA § 24-3-3. Because Burke’s testimony

about hearing the shooter demand that Camara get out of the car

immediately before shooting Camara was a “declaration[ ]

accompanying an act,” it was admissible as part of the res gestae.

See, e.g., Tesfaye v. State, 

 (

) (2002)

(witness’s testimony that he heard one perpetrator in a robbery and

murder say to another, “Oh, s—t, why did you do that, man?” was

admissible as res gestae because perpetrator’s statement was

“uttered contemporaneously with [the] pertinent acts, and serve[d]
to account for, qualify, or explain them, and [were] apparently

natural and spontaneous”) (citation and punctuation omitted);

Durham v. State, 

 (

) (1979) (witness’s

testimony that defendant told him something “to the effect [of] this

wasn’t the first time he had killed anybody” was admissible as res

gestae because defendant’s statement was made “before and during

the commission of the rape and murder”).

      Finally, even if the trial court erred by admitting the third

statement — Detective McGowan’s testimony that Pope told him

that Dawson said he “did what he had to do” because Camara took

something from Dawson6 — the other evidence presented at trial

was sufficient to sustain Dawson’s convictions. Indeed, we have

already concluded that Pope’s testimony about Dawson’s admission

that Dawson shot Camara was admissible.                  Moreover, despite




      6 Although Dawson’s declaration to Pope that Dawson “did what he had

to do” would be admissible as an admission of a party opponent, see Bostic, 

, that declaration came into evidence through Detective McGowan,
not Pope. See Myers v. State, 

 (

) (2002) (hearsay
testimony “is not admissible unless it meets an exception to the rule against
the admission of hearsay”).
Dawson’s contention that his custodial statements to Detective

McGowan — wherein Dawson admitted that he was at the scene

with a gun at the time of Camara’s murder and that he shot toward

Camara’s car — were improperly admitted at trial, under Jackson

v. Virginia, generally “all of the evidence is to be considered in the

light most favorable to the prosecution,” and the old Evidence Code

exception precluding consideration of inadmissible hearsay does not

apply to these statements. 

 (

, 61 LE2d

560) (1979) (emphasis in original); see also Cowart, 

(citing Jackson, 

). Here, in addition to Dawson’s

admissions mentioned above, the other evidence presented at trial

included Pope’s identification of Dawson as the shooter after

identifying Dawson from a photograph; Burke’s specific description

of the shooter, which matched Dawson; Burke’s identification of

Dawson as a potential shooter; and the apartment complex

resident’s description of a man matching Dawson’s description

running after she heard gunshots.        Viewed in the light most

favorable to the verdicts, this evidence was sufficient to authorize a
rational jury to find Dawson guilty beyond a reasonable doubt of the

crimes for which he was convicted. See Jackson, 

.

     3.    Dawson argues that his confession to Detective McGowan

was induced by the “slightest hope of benefit” of a shorter sentence

or lesser charges, see former OCGA § 24-3-50, and that the trial

court therefore erred in denying his motion to suppress that

confession. We disagree.

     “To make a confession admissible, it must have been made

voluntarily, without being induced by another by the slightest hope

of benefit or remotest fear of injury.” Former OCGA § 24-3-50.7

“[T]his Court has consistently interpreted the phrase ‘slightest hope

of benefit’ not in the colloquial sense, but as it is understood in the

context within the statute,” and therefore “[i]t has long been

understood that ‘slightest hope of benefit’ refers to promises related

to reduced criminal punishment — a shorter sentence, lesser

charges, or no charges at all.” Budhani v. State, 

, 325



     7 Former OCGA § 24-3-50 was carried forward nearly verbatim in the

current Evidence Code. See OCGA § 24-8-824.
(

) (2019) (citations and punctuation omitted); see also

Brown v. State, 

 (

) (2012)

(applying same statutory inquiry for claims of hope of benefit under

the old Evidence Code). But this Court has also explained that

certain other law enforcement tactics — “such as exhortations or

encouragement to tell the truth, conveying the seriousness of the

accused’s situation, or offering to inform the district attorney about

the accused’s cooperation” — do not constitute a hope of benefit, so

long as it is made “clear that only the district attorney can determine

charges and plea deals.” Budhani, 

 (collecting cases);

see also former OCGA § 24-3-51 (“The fact that a confession has been

made under a spiritual exhortation, a promise of secrecy, or a

promise of collateral benefit shall not exclude it.”).8

     When we review a trial court’s denial of a motion to suppress a

statement, “we owe no deference to the way in which the trial court

resolved questions of law, but we generally accept its findings about



     8 Former OCGA § 24-3-51 was carried forward verbatim in the current

Evidence Code. See OCGA § 24-8-825.
questions of fact and credibility unless clearly erroneous.” Edenfield

v. State, 

 (

) (2013), disapproved on

other grounds by Willis v. State, 

, 706 n.3 (

)

(2018). However, where, as here, a video recording of the custodial

interview is part of the appellate record, “the reviewing court may

also consider facts that definitely can be ascertained exclusively by

reference to evidence that is uncontradicted and presents no

questions of credibility, such as facts indisputably discernible from

audio- or video- recordings.” State v. Rumph, 

 (

) (2019) (citation and punctuation omitted).

     Dawson contends that several statements Detective McGowan

made to him during his custodial interview impermissibly

communicated that Dawson would receive lesser charges or a

shorter sentence — i.e., offered a hope of benefit — if Dawson

incriminated himself. Among other similar statements, Dawson

complains about the following statements Detective McGowan made

before Dawson ultimately admitted to Detective McGowan that

Dawson was at the scene of Camara’s murder with a handgun, and
that he shot toward Camara’s car:

    “The punishment for murder in this state is anywhere
     from life in prison to death.”

    “Maybe this wasn’t a murder. Maybe this was an
     accident. Maybe that can be explained to the district
     attorney’s office when it’s time for them to think about
     what charges to pursue in this case because so far we
     only have certain sides of the story; we don’t have the
     other side of the story, the man who pulled the
     trigger.”

    “If I turn in a report to the DA’s office that says, ‘I
     questioned Lavaris and he says he don’t know nothing
     about nothing,’ then they’re . . . probably gonna
     pursue the murder.”

    “I can’t make any kind of promise about what is gonna
     happen to you. All I can tell you is from my experience
     and what I’ve seen, is that when you man up and step
     forward and handle business, when it comes to being
     charged with something that you’ve done, they’re
     usually willing to work with you, even if it’s an
     accident.”

    “Maybe there’s a different explanation for this. Maybe
     the right charge isn’t murder. Maybe the right charge
     is one of those charges that goes with this being an
     accident, that people do a little jail time on, and get
     out. I don’t know. But until you straighten it out for
     me, you’re on the hook for murder.”

     At the outset, we note that Detective McGowan’s accurate
statement informing Dawson that the prison sentence for murder

could be life in prison or death is permissible. Mangrum v. State,

 (

) (2009) (“[A] statement by police

that makes the defendant aware of potential legal consequences is

in the nature of a mere truism that does not constitute a promise of

benefit within the meaning of this Code section.”) (citation and

punctuation omitted).    Moreover, we previously have considered

statements like those Detective McGowan made urging Dawson to

explain his side of the story — for example, suggesting that

Camara’s death may not have been intentional, and was instead a

mistake or an accident — and concluded that such statements are

permissible. See, e.g., Pittman v. State, 

 (

) (2004) (“The detective’s suggestion that [the accused] may not

have intended to kill the victim did not amount to a hope of

benefit.”); Tyler v. State, 

 (

) (1981)

(agent’s statement, “I told [the accused] that the best thing, if she

had anything to do with it, was to go ahead and get it off her chest;

that sometimes people did things for various reasons; sometimes it’s
self-defense — just various reasons,” was not an impermissible hope

of lighter punishment because “[f]or an officer to advise an accused

that it is always best to tell the truth will not, without more, render

a subsequent confession inadmissible under [former OCGA § 24-3-

50’s predecessor statute]”) (citation and punctuation omitted).

     Indeed, many of Detective McGowan’s statements are similar

to those a detective made in Johnson v. State, 

 (

) (2014), warning the accused not to lie because the detective knew

the accused was at the crime scene; that the detective wanted to

hear the accused’s side of the story and version of events; and that

he could “get up and walk out this door and send your a** to the

county jail and change this charge from aggravated assault to a

f***ing murder charge.”      

 (punctuation omitted).      In

Johnson, we held that those statements did not constitute an

implied promise of lighter charges or punishment because they

“merely suggested that [the accused] would be well served by

offering his version of events as a means of justifying or mitigating

his role in the assaults” and included a “true statement that
emphasized the gravity of the situation” and “exhortations to tell the

truth.” 

.

     Likewise, the record here shows that “[d]uring the course of the

interview,” Detective McGowan “implored” Dawson “to tell the truth

and to help himself, which was not improper.” Price v. State, 

 (

) (2019). And Detective McGowan never

“promised” Dawson “that he would not be charged with a crime or

that he would receive reduced charges, sentencing or punishment if

he made incriminating statements.” 

 (citation and punctuation

omitted); see also Shepard v. State, 

 (

)

(2016) (“The detectives never told [the accused] that he would not be

charged with murder, that he would be charged with a lesser crime,

or that he would, in fact, receive a shorter sentence if he gave a

statement.”).   Moreover, the record shows that throughout the

interview, as Detective McGowan exhorted Dawson to tell the truth,

he also made clear that he could not make “any kind of promise

about what [was] gonna happen to [Dawson],” and that it was not

Detective McGowan, but others like the district attorney and the
judge, who would ultimately decide matters concerning Dawson’s

charges and sentencing. See Pittman, 

 (the “detective

“plainly told [the accused] that he could not promise him anything

other than that he would relate [the accused’s] version of events”);

Tyler, 

 (agent’s statement that “whatever [the

accused] told me I’d be willing to present it to the court,” was not an

impermissible    inducement     or   hope   of   lighter   punishment)

(punctuation omitted). Indeed, it is permissible for a detective to tell

the accused that the detective will inform the district attorney or

trial court about the accused’s truthfulness and cooperation, so long

as the detective does not promise a hope of benefit. See, e.g., Price,

 (“[I]t is permissible ‘for the police to tell a suspect

that the trial judge may consider (his) truthful cooperation with the

police.’”) (citation omitted); Preston v. State, 

 (

) (2007) (investigator’s statement that the district attorney

based his or her charging decisions on the police’s recommendation

and the investigator’s request to let him help were permissible

admonitions to tell the truth, not implicit promises of hope of
benefit). Cf. Budhani, 

 (investigator’s statements

that if accused admitted to how long he had been selling drugs, “I’m

not going back and charging you. . . . You’re not going to get any

more     charges,”   and   similar   assurances,    constituted    an

impermissible hope of benefit) (punctuation omitted); Canty v. State,

 (

) (2010) (where a detective “told [the

accused] much more than simply that his cooperation would be made

known to the prosecution,” and also told him “that confessing to the

crime could result in a ‘shorter term,’” the detective’s statements

constituted an impermissible hope of benefit).

       Finally, any other statements Detective McGowan made to the

effect that Dawson might be able to help himself avoid murder

charges and the lengthier sentences associated with them did not

rise to the level of promises of lesser charges or a shorter sentence,

and therefore did not rise to the level of an impermissible hope of

benefit, because they were permissible exhortations to tell the truth.

See Johnson, 

; Pittman, 

.

       Dawson relies heavily on State v. Ray, 

 (

) (2000), to argue that Detective McGowan’s statements

constituted a deliberate and impermissible attempt to get Dawson

to confess by implying that a confession would result in a lighter

sentence. But in Ray, a detective interrogated a suspect who had

not been given the Miranda warnings; suggested that as an

accomplice who testified, the suspect would have the possibility of

avoiding the death penalty; suggested that the suspect could “save

himself from execution by telling the officers truthfully about the

crimes”; and in direct response to the suspect’s question, “what

would I get if I give the other guy up?” an officer replied, “Possibly

— here’s what I can tell you. Years of freedom.” 

(punctuation omitted). There, under the totality of circumstances,

we affirmed the trial court’s ruling that “the officers induced [the

suspect] into confessing by holding out a hope of benefit in the form

of a lesser punishment.” 

.9


     9 Dawson    also points to State v. Ritter, 

 (

)
(1997), but that case, which turned on misrepresentations made by the
interrogating officer, is also distinguishable. Moreover, this Court recently
expressed “serious doubts as to whether Ritter was rightly decided.” Mann v.
State, 

, 702 n.4 (

) (2020).
     Here, by contrast, when Dawson asked Detective McGowan,

“how long am I gonna go [to prison]?” Detective McGowan replied, “I

don’t know; I can’t decide for you where you go or how long you go

there for. All I can do for you is take this information, take your

version of the story to the folks I turn this file into . . . .” Given this

and other dissimilarities, Ray does not control here. Accordingly,

we conclude that the trial court did not err in denying Dawson’s

motion to suppress the statements he made to Detective McGowan.

     4.    Dawson contends that his due process right to a timely

appeal was violated, requiring reversal of his convictions.

Specifically, he contends that because his motion for new trial was

not decided until over nine years after he was convicted, and because

evidence at his motion for new trial hearing showed that he sent

multiple letters and motions to the trial court during that delay but

that his case “majorly fell through the cracks,” we must presume

that he was prejudiced by the delay.

     “In assessing a due process claim premised on a post-conviction

delay, we generally look at four factors: the length of the delay, the
reason for the delay, the defendant’s assertion of his right, and

prejudice to the defendant.” Norman v. State, 

 (

) (2018) (citations and punctuation omitted).10             In the

appellate delay context, “prejudice, unlike in the speedy trial

context, is not presumed but must be shown.” Veal v. State, 

 (

) (2017) (citation and punctuation omitted).

Importantly, “we have repeatedly found that the failure to make this

showing [of prejudice] in an appellate delay claim to be fatal to the

claim, even when the other three factors weigh in the appellant’s

favor.” 

 (citing cases).

     The prejudice necessary to establish a due process
     violation based on post-conviction direct appeal delay is
     prejudice to the ability of the defendant to assert his
     arguments on appeal and, should it be established that
     the appeal was prejudiced, whether the delay prejudiced
     the defendant’s defenses in the event of retrial or
     resentencing.

Loadholt v. State, 

 (

) (2010)

(punctuation omitted) (quoting Chatman v. Mancill, 

,


     10 These same four factors are commonly referenced as the “Barker-Wingo factors.” See Barker v. Wingo, 

 (

, 33 LE2d 101)
(1972).
260 (

) (2006)).

     Dawson’s claim here fails because he mistakenly relies on

inapposite speedy-trial cases to argue that prejudice is presumed in

the context of post-conviction appellate delay. In so doing, Dawson

fails to show the prejudice necessary to support his claim. Loadholt,

 (bare assertions of prejudice based on the passage of

time “fail[ ] to offer the specific evidence required to show that the

delay has prejudiced [a defendant’s] appeal”).        Therefore, even

assuming without deciding that the other three Barker-Wingo

factors each weigh in Dawson’s favor, his failure to make the

requisite showing of prejudice is fatal to his claim of appellate delay.

     Judgment affirmed. All the Justices concur.




                       DECIDED MAY 4, 2020.
     Murder. Fulton Superior Court. Before Judge Cox.
     Jessica A. Seares, for appellant.
     Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,
Marc A. Mallon, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, for
appellee.