DAVIS v. THE STATE

Court of Appeals of Georgia1998-06-16No. A98A0633

232 Ga. App. 882502 S.E.2d 779

Summary · law.co

Holding. The convictions are affirmed. The evidence was sufficient to support the verdict as the jury properly resolved the factual disputes against the defendant, including whether coercion had been disproven, and the trial court did not abuse its discretion in denying the continuance motion based on pretrial publicity.

Stacey Lamar Davis was convicted of armed robbery, kidnapping, burglary, and firearm possession related to crimes committed during an unlawful building entry. On appeal, Davis argued the evidence was insufficient because he acted under coercion from his co-defendant, who he claimed threatened him with a gun and forced him to participate. The State presented witness testimony showing Davis and his co-defendant were seen together throughout the day of the crimes, acting in concert during the robbery, and apprehended together near the victims' residence. Davis's post-arrest statement made no mention of coercion. The jury was tasked with determining whether the State had disproven the coercion defense beyond a reasonable doubt, and it resolved this factual dispute against Davis.

Davis also contended the trial court should have instructed the jury to avoid newspaper articles about the case before trial began. One factual article appeared in a local newspaper on the eve of trial. During jury selection, the trial court conducted thorough questioning of potential jurors and found no indication that any juror had formed a fixed opinion about guilt or innocence based on pretrial publicity. The trial court therefore did not abuse its discretion in denying Davis's request for a continuance.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Sufficiency of evidence to support convictions when defendant claims coercion
Whether State disproved affirmative defense of coercion beyond reasonable doubt
Trial court's discretion to deny continuance motion based on pretrial publicity

Procedural posture

Davis appealed his convictions of armed robbery (two counts), kidnapping, burglary, and firearm possession, challenging the sufficiency of the evidence and the trial court's pretrial publicity rulings.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Judge Harold R. Banke.

Stacey Lamar Davis appeals his convictions of armed robbery (two counts), kidnapping, burglary, and possession of a firearm during the commission of the unlawful entry into a building. He contends the evidence was insufficient to support the verdict and that the trial court erred in failing to instruct the jury not to read any newspaper articles relating to the case prior to allowing the jury to disperse pending the beginning of trial. Held:

1. Davis contends the evidence was insufficient to support his convictions because he was coerced into committing these offenses. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict. Moreover, the appellant no longer enjoys the presumption of innocence, and the appellate court does not weigh the sufficiency of the evidence or judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463 (393 SE2d 737) (1990).

OCGA § 16-3-26 precludes a person from being guilty of any crime except murder “if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” Coercion is an affirmative defense, see OCGA § 16-3-28, and the burden rests upon the State to disprove coercion beyond a reasonable doubt. Aleman v. State, 227 Ga. App. 607, 608 (489 SE2d 867) (1997).

According to Davis, co-defendant Micah Ivey grabbed him from behind, handed him a BB gun, and told him he knew of a trailer he had been watching. Also, Davis testified repeatedly that he was very scared of Ivey and that Ivey threatened to kill him if he did not cooperate. Finally, Davis testified that Ivey displayed a silver, .25 caliber handgun when he was attempting to coerce Davis into helping with the crimes.

To disprove Davis’ coercion defense, the State offered the testimony of the victims’ neighbor, Alfrieda Savage. Savage testified that she saw Davis and another individual, who was later identified as Davis’ co-defendant, walking together earlier in the day and walking together again about two hours later. Savage also testified she saw Davis coming out of the victim’s living room window along with Ivey about 4:00 p.m. that same day. The victim, Alfred Clay, testified that Davis and Ivey acted in concert. They both tied him up, they both had guns, and they both carried him to the back of his trailer. Clay listened to them talk for approximately four hours while Davis and Ivey waited to ambush Mrs. Clay. Clay testified that he recognized Davis’ voice. Lastly, Detective Porter testified that he apprehended Davis and Ivey not far from the Clays’ residence while they seemed to be walking together. After his arrest, Davis gave a statement to Detective Porter, but never mentioned coercion. Although Davis’ and the State’s versions of the facts are in contravention, “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Jessup v. State, 224 Ga. App. 176, 177 (480 SE2d 232) (1996). Moreover, whether the State has met its burden of disproving coercion is a question for the jury. Harris v. State, 223 Ga. App. 661 (478 SE2d 458) (1996). The jury resolved this issue against Davis, and as its verdict meets the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), it will not be disturbed on appeal.

Decided June 16, 1998.

Lon P. Kemeness, for appellant.

C. Paul Bowden, District Attorney, Nancy G. R. Smith, Assistant District Attorney, for appellee.

2. Davis asserts the trial court erred in denying his motion for a continuance based on the trial court’s failure to instruct the jury not to read any newspaper articles relating to the case prior to allowing them to disperse prior to the trial. Whether to grant a request for continuance based upon alleged pretrial publicity is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse. Curtis v. State, 212 Ga. App. 237 (2) (441 SE2d 776) (1994). Here, a single factual newspaper article appeared on the eve of trial in the Tifton Gazette. The trial court conducted an extensive voir dire of the individual jurors which disclosed no suggestion that the jurors had formed any fixed opinion as to the guilt or innocence of Davis based on any pretrial publicity. See Page v. State, 159 Ga. App. 344 (283 SE2d 310) (1981). Based on the foregoing, we cannot conclude the trial court abused its discretion in denying Davis’ motion for continuance.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.