In the Supreme Court of Georgia
Decided: June 1, 2021
S21A0295. DAVENPORT v. STATE.
BETHEL, Justice.
A Tift County jury found Deanthony Davenport guilty of malice
murder and other crimes in connection with the shooting death of
Willie Bernard Thomas. On appeal, Davenport argues that the
evidence presented at trial was insufficient to sustain his
convictions; that his trial counsel rendered constitutionally
ineffective assistance by failing to request a curative instruction or
move for a mistrial based on hearsay evidence; and that the trial
court erred by refusing to charge the jury on voluntary
manslaughter. For the reasons set forth below, we affirm. 1
1The shooting occurred on August 22, 2014. On September 8, 2014, a Tift County grand jury indicted Davenport and co-defendant Austin McIntyre for malice murder, felony murder predicated on criminal attempt to commit armed robbery, and other crimes. After a joint jury trial held from March 7 to
1. (a) Viewed in the light most favorable to the verdict, the
evidence presented at trial showed the following. According to
McIntyre, on the evening of August 22, 2014, Davenport and Austin
McIntyre formed a plan to rob Thomas at his residence. Thomas
was one of Davenport’s childhood friends and lived with several
other family members at his grandparents’ home in Tift County. On
prior occasions, Davenport had purchased drugs from Thomas to
resell, spending as much as $2,000 in a single purchase. Based on
their previous interactions, Davenport knew that Thomas often
carried large amounts of cash on his person.
To set their plan in motion, Davenport and McIntyre borrowed
10, 2017, a jury found Davenport guilty on all counts. The jury found McIntyre guilty on all counts except for malice murder and a firearm offense. McIntyre’s case is not part of this appeal.
The trial court sentenced Davenport to life in prison for malice murder and concurrent and consecutive terms of years for the other crimes. The trial court purported to merge the felony murder count into the malice murder count, but the felony murder count was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993). On April 7, 2017, Davenport filed a motion for new trial, which was subsequently amended by new counsel. Following a hearing, the trial court denied the amended motion for new trial on August 17, 2020. Davenport filed a notice of appeal on September 2, 2020. This case was docketed in this Court to the term commencing in December 2020 and submitted for a decision on the briefs.
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a car from McIntyre’s girlfriend and drove to Thomas’s house so they
could look at the property and prepare for the robbery. Shortly after,
McIntyre went to visit Derrick Britt and asked to borrow a gun to
“hit a little lick.” 2 After obtaining a gun from Britt, McIntyre gave it
to Davenport.
That evening, Davenport and McIntyre returned to Thomas’s
home still planning to rob Thomas. As Davenport and McIntyre
approached the house, Davenport saw Thomas in the house and
began firing the gun at him through the glass front door. Davenport
fired a total of three shots, two of which struck Thomas, who was
holding a handgun. Thomas’s family heard the noise and discovered
Thomas had been shot. Before collapsing on the kitchen floor,
Thomas named Davenport as the shooter. After Thomas collapsed
on the floor, his mother took the handgun out of Thomas’s hands and
hid it before the police arrived. Thomas died at the scene before the
police arrived. Investigators recovered three shell casings and a
Britt testified that “hitting a little lick” meant to “come up with some
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money” by robbing someone.
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bullet from the scene.
After the shooting, Davenport and McIntyre returned the gun
to Britt, and Davenport told Britt that he had shot Thomas. After
returning the handgun, Davenport went to his aunt’s house to hide
from the police. The next morning, the police arrested Davenport.
While in custody together at the county jail, Davenport confided in
his cousin, Torrence Billings. Billings asked to speak with law
enforcement officers and informed them that Davenport admitted
going to Thomas’s house to rob him, firing a handgun at Thomas
three times, hitting Thomas twice, and returning the gun to Britt.
Police officers later executed a search warrant at Britt’s
residence and recovered a .40-caliber Glock pistol and three unfired
rounds. A firearm examiner for the GBI testified that the bullet and
shell casings recovered from the scene of the shooting were all fired
from the pistol recovered from Britt’s residence. A GBI medical
examiner conducted an autopsy on Thomas and determined that the
cause of death was gunshot wounds to the abdomen and neck and
that the manner of death was homicide. The medical examiner noted
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that two bullets found in Thomas’s body had passed through glass
before striking Thomas.
Davenport testified that he had been selling cocaine for over 11
years and had several felony convictions, including a prior
conviction for conspiracy to commit armed robbery. Davenport also
testified that on the day of the shooting, he borrowed a gun from
Britt to confront Thomas over a “bad” batch of drugs and “botched”
drug deal, but that he never intended to shoot him. Davenport
claimed that as soon as he arrived, Thomas “came out shooting” at
him, and it was only then that he fired back. However, according to
the GBI crime scene investigator there was “nothing at the scene to
corroborate that Thomas ever fired a weapon” and the stippling on
Thomas’s skin was a result of Thomas’s close proximity to the front
door glass shattering towards him. As such, the investigator
testified that the glass shatters found at the scene indicated that
Thomas never stepped outside the house before Davenport shot him.
(b) Davenport asserts that the evidence was insufficient to
support his convictions. When evaluating the sufficiency of the
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evidence to support a conviction, “the relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” (Emphasis
omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt
2781, 61 LE2d 560) (1979). On appeal, “this Court does not reweigh
the evidence or resolve conflicting testimony.” Mosby v. State, 300
Ga. 450, 452 (1) (796 SE2d 277) (2017).
Davenport testified that he knew Thomas carried large
amounts of cash or drugs on his person. Witnesses saw Davenport
driving around Thomas’s house prior to the shooting. Britt testified
that Davenport and McIntyre borrowed a gun from him “to hit a
little lick,” which meant they planned to rob someone. Further,
Davenport admitted to his cousin that he obtained the gun so he
could go to Thomas’s house to rob him and admitted that he shot
Thomas. Just before he died, Thomas identified Davenport as his
shooter. Finally, Davenport testified that he shot Thomas as a result
of a “botched” drug deal. This evidence, viewed in the light most
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favorable to the verdicts, established each of the elements of the
crimes of which Davenport was convicted.
Davenport nonetheless argues that the evidence was
insufficient in light of his assertion that he acted in self-defense.
“When a defendant effectively raises an affirmative defense such as
self-defense[,] the State bears the burden of disproving the asserted
defense beyond a reasonable doubt.” Mosby, 300 Ga. at 451 (1). A
person is “justified” in using deadly force “only if he or she
reasonably believes that such force is necessary to prevent death or
great bodily injury to himself or herself or a third person[.]” OCGA
§ 16-3-21 (a).
Davenport emphasizes in his appellate brief to this Court that
Thomas was actually armed at the scene and that Thomas’s mother
took the gun out of Thomas’s hands after he was shot. However, the
crime scene investigator found no spent shell casings other than the
three matched to Davenport’s gun and testified that there was
“nothing at the scene to corroborate that Thomas ever fired a
weapon.” Further, Davenport testified that Thomas exited his home
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and began firing at Davenport, but two GBI experts testified, based
on the stippling on Thomas’s skin and the shattered glass at the
scene, that Thomas had not stepped out of his house when
Davenport shot him.
Although Davenport testified that he acted in self-defense, his
arguments on appeal essentially ask this Court to reweigh the
evidence presented at trial. However, these were matters within the
province of the jury to consider and decide, and the jury, “as the sole
arbiter of witness credibility,” was free to disbelieve Davenport and
his theory of self-defense. Martin v. State, 306 Ga. 538, 541 (1) (832
SE2d 402) (2019); see also Ferguson v. State, 297 Ga. 342, 344 (1)
(773 SE2d 749) (2015) (jury was authorized to disbelieve defendant’s
self-defense theory). The evidence presented at trial was sufficient
to support Davenport’s convictions.
2. Davenport contends that he received ineffective assistance
of counsel when his trial counsel failed to request a curative
instruction or to move for a mistrial after the jury heard hearsay
testimony from Thomas’s mother. We disagree.
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To obtain relief based on ineffective assistance of counsel,
Davenport must show both that his counsel’s performance was
constitutionally deficient and that this deficient performance
prejudiced him. See Strickland v. Washington, 466 U. S. 668, 687
(III) (104 SCt 2052, 80 LE2d 674) (1984). “To prove deficient
performance, [Davenport] must show that his attorney performed at
trial in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.”
(Citation and punctuation omitted.) Anthony v. State, 303 Ga. 399,
410 (9) (811 SE2d 399) (2018). To show prejudice, Davenport must
prove that his lawyer’s error was “so serious as to deprive [him] of a
fair trial, a trial whose result is reliable.” Strickland, 466 U. S. at
687 (III). To that end, Davenport “must show a reasonable
probability sufficient to undermine confidence in the outcome that,
but for counsel’s alleged unprofessional errors, the result of the
proceeding would have been different.” (Citation and punctuation
omitted.) Anthony, 303 Ga. at 410 (9). An appellant must prove both
prongs of the Strickland test, and if he fails to prove one prong, it is
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not incumbent upon this Court to examine the other prong. Williams
v. State, 305 Ga. 776, 778 (2) (827 SE2d 849) (2019).
During the State’s direct examination of Thomas’s mother, the
following exchange occurred:
Q: Had you seen – you knew [Davenport], you knew who that
was?
A: Yes.
Q: Did you see him over at your house that day?
A: No, he don’t never – he never come into the house. I asked
Bernard, I said, “Bernard, why [Davenport] don’t come over
here and see you?” He said, “Mama, I don’t deal with
[Davenport] no more.” He said, “He ain’t right.” “He said,
“[Davenport] is out here robbing.”
Q: Well, what about –
[Davenport’s Trial Counsel]: Objection, Your Honor, to
hearsay.
The Court: I sustain the objection.
Following this exchange, the trial court struck the testimony
and instructed the jury to disregard the statements, so the
prosecutor moved on. At the hearing on Davenport’s motion for new
trial, trial counsel testified that he meant to move for mistrial, but
could not precisely recall why he did not, and that looking back, he
thought that would have been the proper course of action. He
testified that it was not part of his trial strategy to avoid moving for
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a mistrial or requesting a curative instruction.
Even assuming trial counsel was deficient for failing to request
a curative instruction or move for mistrial, Davenport was not
prejudiced because the hearsay testimony was cumulative of other
evidence. See Koonce v. State, 305 Ga. 671, 675 (2) (d) (827 SE2d
633) (2019) (defendant failed to show prejudice resulting from
failure to object or move for mistrial based on certain hearsay
testimony that was “largely cumulative of other, unobjected-to
evidence of the same facts”); see also Wilson v. State, 297 Ga. 86, 87-88 (2) (772 SE2d 689) (2015) (no prejudice where the challenged
testimony was cumulative of other evidence). Moreover, the trial
court struck the hearsay evidence and instructed the jurors to
disregard it, an instruction we presume they followed. See Holmes
v. State, 273 Ga. 644, 647 (5) (c) (543 SE2d 688) (2001)
Additionally, at trial, Davenport testified that he had a long
history of criminal behavior, which included a prior felony conviction
for conspiracy to commit armed robbery. Thus, even assuming
Davenport’s trial counsel performed deficiently by not moving for a
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mistrial or a curative instruction, there is no reasonable probability
that Thomas’s mother’s reference to Davenport’s “robbing” affected
the trial’s result, because that statement merely confirmed
Davenport’s own testimony regarding his involvement in a prior
robbery. See Koonce, 305 Ga. at 676 (2) (d) (no prejudice resulting
from failure to move for mistrial because hearsay statements were
cumulative of defendant’s own testimony). Davenport’s claim of
ineffective assistance fails.
3. Davenport also contends that the trial court erred by
refusing to instruct the jury on voluntary manslaughter as a lesser
offense of malice murder. We disagree.
Davenport made a written request for a jury charge on
voluntary manslaughter. At the charge conference, the trial court
explained to the parties that the evidence presented at trial did not
authorize the charge. The trial court stated “while the jury charges
on self-defense and voluntary manslaughter are not mutually
exclusive, the provocation necessary to support a charge of voluntary
manslaughter is different from that which could support a claim of
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self-defense.” After the trial court charged the jury, trial counsel
made no objection to the charge as given.
In the absence of an objection at the time of the charge, this
Court reviews this issue only for plain error pursuant to OCGA § 17-8-58 (b). 3 See White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012)
(quoting OCGA § 17-8-58 (b)). Where an alleged error regarding a
jury instruction is not affirmatively waived, reversal is authorized
under plain error review if the instruction was erroneous, the error
was obvious, the instruction likely affected the outcome of the
proceedings, and the error seriously affected the fairness, integrity
or public reputation of judicial proceedings. See Morris v. State, 303
3 OCGA § 17-8-58 provides:
(a) Any party who objects to any portion of the charge to the jury
or the failure to charge the jury shall inform the court of the
specific objection and the grounds for such objection before the jury
retires to deliberate. Such objections shall be done outside of the
jury’s hearing and presence.
(b) Failure to object in accordance with subsection (a) of this Code
section shall preclude appellate review of such portion of the jury
charge, unless such portion of the jury charge constitutes plain
error which affects substantial rights of the parties. Such plain
error may be considered on appeal even if it was not brought to the
court’s attention as provided in subsection (a) of this Code section.
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Ga. 192, 197 (V) (811 SE2d 321) (2018).
A charge on voluntary manslaughter is warranted where there
is slight evidence showing that the accused was so provoked that he
“reacted passionately rather than simply in an attempt to defend
himself” when he killed the victim. (Citation and punctuation
omitted.) Jackson v. State, 301 Ga. 878, 880 (2) (804 SE2d 357)
(2017). But, “neither fear that someone is going to pull a gun nor
fighting are the types of provocation which demand a voluntary
manslaughter charge.” Smith v. State, 296 Ga. 731, 737 (3) (770
SE2d 610) (2015). Whether the defendant presented any evidence of
provocation sufficient to excite the passions of a reasonable person
is a question of law. See Campbell v. State, 292 Ga. 766, 767 (2) (740
SE2d 115) (2013).
Davenport’s claim fails because there was no error, plain or
otherwise, in the trial court’s refusal to give a voluntary
manslaughter instruction. Davenport pursued a self-defense
strategy at trial, claiming that he went to Thomas’s home to resolve
an issue from a prior drug deal and that Thomas suddenly attacked
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him. Davenport testified multiple times that he did not shoot
Thomas due to any heightened emotion or anger. Further, in his
account to both Britt and Davenport’s cousin, the shooting was the
result of a botched armed robbery. Because there was no evidence to
support a jury charge on voluntary manslaughter, the trial court did
not err in refusing to give the charge. Accordingly, this enumeration
fails.
Judgment affirmed. All the Justices concur.
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