Davis v. State

FINAL COPY

                  S19A0419. DAVIS v. THE STATE.


      BOGGS, Justice.

      Appellant Tyrone Lamark Davis (“Appellant”) challenges his

convictions for felony murder and a firearm offense in connection

with the shooting death of Keith Moses. He contends that the

evidence was legally insufficient to support his convictions; that the

trial court erred in denying his pretrial motion to suppress his

custodial statement to the police; that the trial court erred in

denying his motion to prevent a document reflecting a co-

defendant’s sentence from going out with the jury during

deliberations; and that he was denied the effective assistance of

counsel at trial. We affirm.1



      1The shooting occurred in the early evening of August 2, 2012. On
October 23, 2012, a Houston County grand jury indicted Appellant, Bobby
Jermel Releford, and Mart’e Vesean Polk for malice murder, felony murder,
aggravated assault with a deadly weapon, and possession of a firearm during
the commission of a crime. The cases were severed for trial. On August 14,
2014, Releford pled guilty to felony murder and was sentenced to serve life in
      1. Viewed in the light most favorable to the verdicts, the

evidence at trial showed the following. On August 2, 2012, Bobby

Releford met up with Mart’e Polk at the home of Polk’s ex-girlfriend

in Warner Robins. Releford and Polk decided to buy drugs from

Keith Moses, Releford’s drug dealer, and Polk drove them to Moses’

house in his white, four-door car. On the way, they picked up

Appellant and Hubert Hillery. Releford was armed with a .380

pistol, and Appellant was armed with a nine-millimeter pistol that

Releford sold him two months earlier.

      When Polk pulled into the driveway at Moses’ house, Releford

got out of the car and went inside. After a minute or two, Releford



prison with the possibility of parole, and on August 18, 2014, Polk pled guilty
to a reduced charge and was sentenced to serve twelve years in prison with the
first seven years in confinement and the rest on probation. Both Releford and
Polk agreed to testify against Appellant. At a trial from August 18 to 21, 2014,
the jury acquitted Appellant of malice murder but found him guilty of the other
charges. On August 25, 2014, the trial court sentenced Appellant as a recidivist
to serve life in prison without the possibility of parole for felony murder and a
consecutive term of five years for the firearm charge; the aggravated assault
verdict merged. On September 17, 2014, Appellant filed a motion for new trial,
which he amended with new counsel on May 12, 2017. After a hearing, the trial
court denied the motion on August 18, 2017. On September 24, 2018, the trial
court granted Appellant’s motion for out-of-time appeal, and he filed a timely
notice of appeal two days later. The case was docketed in this Court for the
term beginning in December 2018 and submitted for decision on the briefs.
came back and spoke with Appellant, who had gotten out of the car.

Polk overheard Releford say to Appellant, “We’ve got to get this

dude.” Releford then told Polk, “Hold on, I’ll be back out,” and

Appellant and Releford went inside the house.

     Inside, Appellant and Releford tried to negotiate a drug deal

with Moses, but Moses said that he did not have the quantity of

drugs that they wanted and told them to come back later. Appellant

and Releford got ready to leave, and as Releford was standing at the

front door, he heard Moses say, “Oh, sh*t.” Releford turned around

and saw Appellant, who was behind him, pointing his gun at Moses.

Appellant hit Moses in the head with the gun, and Moses fell back

onto a sofa by the front door. Appellant told Moses, “You know what

it is,” and took a wallet and a .380 pistol from Moses. Moses then

rushed Appellant, knocking him into Releford, and the three of them

fell through the front door outside. The fight continued, and

Appellant shot Moses once in the chest. Moses then jumped up and

ran to a neighbor’s house, where he banged on the door. When the

door opened, he collapsed in the entryway. Moses told the neighbor’s
brother, who was there, that he had been shot and needed help, and

the neighbor’s brother called 911. Moses also told the neighbor’s

brother that he knew who shot him and that the shooter lived in the

area.

        Meanwhile, Polk, who had gotten tired of waiting for Appellant

and Releford, pulled out of the driveway and drove to the stop sign

at the end of the street, but he turned around when Hillery reminded

him that Releford had not yet given Polk gas money as promised. As

Polk drove back toward Moses’ house, he heard a gunshot, saw

Moses running to the neighbor’s house with blood on the front of his

shirt, and watched as Releford pulled his gun and fired a single shot

at Moses but missed.

        Appellant and Releford ran to Polk’s car and jumped inside.

Releford started yelling at Appellant, asking why he shot Moses.

Appellant said that he shot Moses because Moses rushed him and

grabbed his collar. Appellant still had Moses’ gun but had dropped

Moses’ wallet in the front yard during the fight. Appellant and

Releford also had marijuana and cocaine that they took from Moses.
Moses was taken to the hospital but died the next morning from the

gunshot wound to his chest.

     The police recovered one nine-millimeter shell casing and one

.380 shell casing near the front door to Moses’ house and found

Moses’ wallet in the front yard. The police lifted a fingerprint from

the inside doorknob of Moses’ front door, which an expert in

fingerprint analysis matched to a known print from Appellant. The

police executed a search warrant at the home of Appellant’s mother

and found an empty box of nine-millimeter ammunition in a closet

where Appellant’s mother said Appellant used to keep his things.

     Appellant contends that the evidence presented at trial was

legally insufficient to support his convictions, because the evidence

was vague, ambiguous, and conflicting as to what specific

involvement he had in the shooting and how the shooting actually

occurred. However, “[i]t was for the jury to determine the credibility

of the witnesses and to resolve any conflicts or inconsistencies in the

evidence.” Brown v. State, 

 (

) (2017)

(citation and punctuation omitted). When viewed in the light most
favorable to the verdicts, the evidence presented at trial and

summarized above was sufficient to authorize a rational jury to find

Appellant guilty beyond a reasonable doubt of the crimes for which

he was convicted. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979). Accordingly, we reject Appellant’s

challenge to the sufficiency of the evidence. See Battle v. State, 

 (

) (2016) (rejecting claim that “vague,

ambiguous, and conflicting” evidence was legally insufficient to

support convictions for murder and other crimes).

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

pretrial motion to suppress his custodial statement to the police. But

the State did not introduce Appellant’s statement at trial, so this

claim is moot. See Rai v. State, 

, 476 n.2 (

)

(2015); Miller v. State, 

 (

) (2014).

     3. Appellant argues that the trial court erred in denying his

motion to prevent a copy of the indictment showing Releford’s

change of plea from “Not Guilty” to “Guilty” on the felony murder

charge and sentence of “parolable life” from going out with the jury
during deliberations. Regardless of whether the indictment should

have been redacted to remove this information before the trial court

sent it out with the jury, Appellant has failed to show harm, because

Releford testified to the same facts without objection on both direct

and cross-examination. See Wilkins v. State, 

 (

) (2012) (holding that it was highly probable that allowing

summary of cellular telephone records to go out with jury during

deliberations did not contribute to verdict where underlying records

were admitted into evidence by stipulation).

     4. Appellant claims that he received ineffective assistance of

trial counsel in several respects. To prevail on this claim, Appellant

must prove both that his attorney’s performance was professionally

deficient and that the deficiency resulted in prejudice to his case.

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. See 

. To
establish prejudice, Appellant must show “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” 

. A reviewing court

need not “address both components of the inquiry if the defendant

makes an insufficient showing on one.” 

. “This burden,

though not impossible to carry, is a heavy one.” Arnold v. State, 

 (

) (2013). Appellant has not carried his

burden in this case.

     Appellant points first to his trial counsel’s alleged failure to

object at a pretrial hearing held pursuant to Jackson v. Denno, 

 (

, 12 LE2d 908) (1964), to Detective Wright’s

“vague recollection” and “statements said” and to his trial counsel’s

allegedly giving the jury an incorrect standard of proof during

opening statements by telling the jury, “That’s what your job to

determine is, who did it and what complicity, if any, [Appellant]

had.” However, Appellant did not raise either of these instances at

the motion for new trial stage when he had new counsel, so they are

not preserved for appellate review. See Lewis v. State, 

 (

) (2012); Wilson v. State, 

(

) (2009).

     Appellant points next to his trial counsel’s alleged failure to

consult adequately with him or his family before trial. “However,

‘there exists no magic amount of time which counsel must spend in

actual conference with his client,’ and Appellant ‘does not

specifically describe how additional communications with his lawyer

would have enhanced his defense.’” Blackmon v. State, 

 (

) (2017) (citation omitted). Thus, Appellant has

not sufficiently alleged, much less met his burden to show, deficient

performance by his trial counsel in this regard. See 

 See also

Strickland, 

 (requiring defendants to “identify the

acts or omissions of counsel that are alleged not to have been the

result of reasonable professional judgment”).

     Finally, Appellant points to his trial counsel’s alleged failure to

subpoena “key witnesses that [he] wished to have present at trial.”

“[T]o demonstrate prejudice for the alleged failure to elicit

testimony, the defendant may not rely on hearsay or speculation but
must either call the witness or introduce a legally recognized

substitute for the uncalled witness’s testimony.” Bell v. State, 

 (

) (2010) (citation and punctuation

omitted). At the motion for new trial hearing, Appellant did not

present any evidence about whom he wanted subpoenaed or what

their testimony would have been. Thus, he failed to show the

required prejudice. See 

     Judgment affirmed. All the Justices concur.




                         Decided May 20, 2019.

     Murder. Houston Superior Court. Before Judge Lumsden.

     Jonathan P. Waters, for appellant.

     George H. Hartwig III, District Attorney, Daniel P. Bibler,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Vanessa T. Sassano,

Assistant Attorney General, for appellee.