Davis v. State

In the Supreme Court of Georgia

                                    Decided: April 5, 2021

                   S21A0044. DAVIS v. THE STATE.

      WARREN, Justice.

      Zemartae Jebra Davis was convicted of felony murder and

possession of a knife during the commission of a crime in connection

with the stabbing death of Dontravious Hoskins. 1 On appeal, Davis

contends that the trial court erred when it admitted the prior

      1 The crimes occurred on September 17, 2013. A Richmond County grand
jury indicted Davis for one count of malice murder, one count of felony murder
predicated on aggravated assault, and one count of possession of a knife during
the commission of a crime. Davis was tried from September 9 to 11, 2015, and
a jury found him guilty of felony murder and possession of a knife during the
commission of a crime, but not guilty of malice murder. The trial court imposed
consecutive sentences of life in prison for felony murder and five years for the
possession of a knife during the commission of a crime. On October 8, 2015,
Davis filed a motion for new trial. Trial counsel later withdrew from
representing Davis, and on September 26, 2018, Davis filed an amended
motion for new trial through appellate counsel. After a hearing, the trial court
denied the motion for new trial, as amended, on October 15, 2018. Davis timely
filed a notice of appeal on November 13, 2018, and the case was docketed in
this Court for the term beginning in December 2020 and submitted for a
decision on the briefs.
testimony of an absent witness, and that his trial counsel was

constitutionally ineffective for failing to object to the admission of

that testimony. For the reasons that follow, we disagree and affirm

Davis’s convictions.

     1.    The evidence presented at Davis’s trial showed the

following. 2 In September 2013, Davis, a 15-year-old high school

freshman, and his friend, Makale Jones, decided to make some

money by selling a PlayStation 3 videogame console, which Makale

shared with his older brother, Trey Jones.           The pair sold the

PlayStation to Hoskins—an 18-year-old who lived in the area and

who was friends with both Davis and the Joneses. According to

Davis, who testified at trial, the boys agreed on a price of $125, and

Hoskins paid $50 upfront and took possession of the game system,

agreeing to pay the remaining $75 later. Davis and Makale agreed

to split the money, even though Davis did not own the PlayStation.

     2 This case was docketed for the term of court that began in December
2020, and Davis does not raise the sufficiency of the evidence on appeal.
Therefore, under Davenport v. State, 

309 Ga. 385

, 399 (846 SE2d 83) (2020),
we do not consider sufficiency of the evidence sua sponte.
     At trial, Makale testified that about a week after selling the

PlayStation to Hoskins, Davis called Makale to tell him that

Hoskins was refusing to pay the remaining money he owed. Makale

responded that he and Davis needed to get the game system back if

Hoskins would not pay because Makale was not supposed to sell the

game system and he “didn’t tell my folks that I sold [it].” The two

then met up and began walking toward Davis’s relative’s house,

where Davis was living at the time. That day, Hoskins was at the

house hanging out with Dominique Harris, Davis’s cousin who also

lived there. As Davis and Makale continued to the house, they

picked up Trey, who was upset that Makale sold the PlayStation and

wanted to get it back. At some point on the walk over, Makale

dropped out of the group, but Trey and Davis continued toward the

house to confront Hoskins.

     When the two arrived at Davis’s house, they entered a room

where Harris and Hoskins were sitting.      Davis was angry and

confronted   Hoskins   about    the   PlayStation,   but   Hoskins

emphatically refused to pay Davis any additional money or return

the game system. After the two argued for a bit, Harris told Davis

and Hoskins to take the argument outside.

     At trial, Davis testified that on his way outside, he grabbed two

knives from the kitchen “[b]ecause I was afraid and I know [Hoskins]

was going to hurt me pretty bad . . . [b]ecause [Hoskins] was way

bigger than me at the time.” Davis testified further that his goal

was to “[s]care him and he probably be like ‘I’m not going to fight

him.’” Davis’s counsel elicited testimony from multiple witnesses,

including Davis, about the size difference between Davis and

Hoskins: Davis was around 5’ 6” tall and weighed 117 pounds.

Hoskins was 6 feet tall and 178 pounds. Harris testified that during

the argument, Hoskins referred to Davis as “just a kid.”

     Several witnesses testified about hearing Hoskins threaten to

kill Davis by remarking that Davis would not want his family to

have to wear “black and white.” Davis testified that he understood

this statement as a threat to kill him, “[b]ecause that’s what you

wear to a funeral. You wear black and white.” But no witnesses

who testified in person at trial, other than Davis himself, said they

saw Hoskins act aggressively toward Davis.

     Hoskins and Davis continued arguing outside the house, and

at some point during the altercation, Davis stabbed Hoskins.

Although no witnesses at trial, other than Davis, claimed to have

seen the actual moment when Davis stabbed Hoskins, multiple

witnesses testified that immediately after the stabbing, they saw

Hoskins holding his side as he left the scene of the altercation.

Hoskins then stumbled down the street and eventually collapsed in

the road. Harris took Hoskins to a nearby fire station; emergency

service workers then took Hoskins to the hospital, where he died.

An autopsy revealed that Hoskins had a stab wound in his chest, so

deep that it reached all the way to his heart.

      Sandra Savage, a neighbor who was sitting in her house with

the front door open at the time of the altercation, testified that she

saw three “kids” in her front yard, including Hoskins, and two people

she described as “a guy with dreads” and a “younger guy.” Savage

testified that the “guy with dreads” told the “younger guy” that “‘you

have already stabbed him or cut him, let it go.’ And the younger guy

made a statement . . . ‘don’t nobody steal from me or take from me’

or something and they went back and forth.”

      Investigators found a trail of blood on the road that showed

Hoskins’s path away from the scene and recovered a bloody knife

from the area. Hoskins’s DNA was later found on the bloody knife,

and Hoskins’s black t-shirt, recovered from the hospital, appeared

to have been cut by a sharp object.

      Davis’s account of the incident included some additional

details. In support of the self-defense theory he offered at trial,3

Davis testified that he first pulled out a knife and warned Hoskins,

“don’t make me use it,” but that Hoskins “wasn’t scared.” According

to Davis, Hoskins then “came towards me and I didn’t try to stab

him or nothing. It was just in my hand. And I guess he came onto

the knife.”    Davis denied swinging the knife or actively cutting

Hoskins in any way. Afterwards, Davis fled on foot, was spotted by

      3 We note that the record on appeal does not contain transcripts of
opening statements or closing arguments from trial. But based on the trial
transcripts, which show that the jury was instructed on self-defense, as well as
trial counsel’s testimony at the hearing on Davis’s motion for new trial, it
appears that Davis raised a theory of self-defense at trial.
law enforcement officers at the football field of a nearby elementary

school, and was taken into custody after a brief pursuit.

     At trial, the State initially intended to call Trey Jones as a

witness. But on the first day of trial, the prosecutor informed the

trial court that Trey likely would not appear:

     Your Honor, I was just informed by Trey Jones’[s] father
     that he is not here despite being under subpoena. I
     actually served him with a subpoena for today on last
     Monday. That does present a problem, it appears that he
     was scheduled to be in court for his own case on Thursday
     of last week and didn’t show for that. There may be an
     active bench warrant for him for that.

The prosecutor argued that Trey’s sworn testimony at the

preliminary hearing in this case should be admitted under the prior

testimony hearsay exception in OCGA § 24-8-804 (b) (1) (“Rule 804

(b) (1)”) (providing an exception to the hearsay rule when the

declarant is both unavailable and gave previous testimony “as a

witness at another hearing of the same or a different proceeding . . .

if the party against whom the testimony is now offered . . . had an

opportunity and similar motive to develop the testimony by direct,

cross, or redirect examination”). Specifically, in light of his father’s

statement and Trey’s failure to respond to the subpoena or to show

up for his own hearing the week before, the prosecutor argued that

Trey was “unavailable” and that Davis had an opportunity and

similar motive to develop Trey’s testimony at the preliminary

hearing because Davis called Trey as a witness and Davis’s counsel

examined him under oath.

     In response, Davis’s trial counsel agreed with the prosecutor’s

Rule 804 analysis, remarking “[s]he’s right, Judge,” and asking “that

[Trey’s] entire testimony at the preliminary hearing be admitted.”

After a back-and-forth with the prosecutor, the trial judge ruled that

“it would be my inclination if he is not present at the time the State

seeks to call him . . . to allow the sworn testimony given at the

preliminary hearing.”

     The trial progressed, and Makale later testified that “[n]obody

knows” where Trey went and that Trey had not been staying at his

parent’s house “since [Trey] had a warrant.” Right after Makale left

the witness stand, the State announced that it intended to read a

transcript of Trey’s previous testimony into evidence, and the trial

court allowed the State to proceed. 4 The State did not formally call

Trey as a witness before it began reading his testimony into the

record. Davis’s trial counsel did not object, but did ask the court to

instruct the jury as to what was about to take place.

     Trey’s testimony from the preliminary hearing included some

new evidence and some that corroborated the testimony of other

witnesses. First, Trey testified that he saw Davis put his finger—or

possibly his hand—to Hoskins’s face and that Davis “probably

touched [Hoskins].” Second, Trey testified that at the moment of the

stabbing, “[Hoskins] did run up and try to grab [Davis].” Third, Trey

testified that after the stabbing occurred, Hoskins “turned around

and said, ‘you stab[bed] me,’ and then ran up the street.”5 At the

end of the three-day trial, a jury found Davis guilty of felony murder

and possession of a knife during the commission of a crime, and not

guilty of malice murder.

     4  On September 28, 2015, 17 days after the trial ended, the trial court
issued an order concluding that Trey was unavailable under Rule 804 (a) (5).

     5 Later in the trial, Harris testified on cross-examination that he also
heard Hoskins say “you stabbed me.”
     After he was convicted, Davis filed and later amended a motion

for new trial, in which he contended, among other things, that the

trial court erred in admitting Trey’s previous testimony and that

trial counsel was constitutionally ineffective for failing to object

when the State sought to introduce it. At the hearing on the motion,

Davis’s trial counsel testified on direct examination that he had no

strategic reason for failing to object when the State sought to

introduce Trey’s previous testimony into evidence; he “[j]ust didn’t

think to do it.” But on cross-examination, he conceded that “Trey

Jones was important to demonstrate that . . . the victim went toward

[Davis] in a quick fashion”; that Trey’s testimony was consistent,

“[i]n most aspects,” with Davis’s theory of the case, including that

“[Davis] had the right to defend himself”; and that Davis had “reason

to believe that he needed to defend himself.” Trial counsel added

that he “needed” Trey’s testimony insofar as it showed “[t]hat the

victim went after [Davis].”

     2. Davis contends that the trial court abused its discretion

when it admitted Trey Jones’s prior testimony into evidence under

Rule 804 because it failed to conduct a proper inquiry into Trey’s

availability under Rule 804 (a) (5). See OCGA § 24-8-804 (a) (5) (“As

used in this Code section, the term ‘unavailable as a witness’

includes situations in which the declarant . . . [i]s absent from the

hearing and the proponent of the statement has been unable to

procure the declarant’s attendance . . . by process or other reasonable

means.”). Specifically, Davis argues that the State failed to show

that Trey was “unavailable as a witness” when he was scheduled to

testify—as opposed to at the beginning of the trial when the State

represented that Trey was likely unavailable—and that the trial

court should have, at the very least, required the State to call Trey

as a witness and establish whether he was present before concluding

that he was not available.

       Because Davis’s trial counsel did not object to the admission of

Trey’s testimony, our review of its admission is for plain error only.

See OCGA § 24-1-103 (d). To establish plain error, an appellant


       point to an error that was not affirmatively waived, the

      error must have been clear and not open to reasonable
      dispute, the error must have affected his substantial
      rights, and the error must have seriously affected the
      fairness, integrity, or public reputation of judicial

Denson v. State, 

307 Ga. 545

, 547-548 (837 SE2d 261) (2019)

(citation and punctuation omitted). Importantly, “[t]he failure to

meet one element of this test dooms a plain error claim.”

Id. at 548.

      Davis’s claim fails precisely for that reason: he cannot satisfy

the first element of the plain-error test because he affirmatively

waived the alleged error he now enumerates.               To constitute an

affirmative waiver, an error must have been “intentionally

relinquished or abandoned.” State v. Kelly, 

290 Ga. 29

, 33 (718 SE2d

232) (2011) (citation and punctuation omitted).6 Here, Davis’s trial

counsel “intentionally relinquished” any objection to the trial court’s

Rule 804 ruling when he agreed with the State’s Rule 804 analysis

(“She’s right, Judge.”) and asked that all of Trey’s previous

      6 Although Kelly addressed the plain-error standard for jury charges,

Kelly, 290 Ga. at 32-33

, we held in Gates v. State, 

298 Ga. 324

, 327 (781 SE2d
772) (2016), that “the same plain-error standard that we adopted in Kelly with
respect to jury charges also applies to rulings on evidence.”
testimony—presumably as opposed to only excerpts—be admitted

(“We just ask that [Jones’s] entire testimony at the preliminary

hearing be admitted.”).    Far from merely failing to object, trial

counsel’s actions constituted an affirmative waiver. See Woodard v.


296 Ga. 803

, 809-810 (771 SE2d 362) (2015) (holding that trial

counsel affirmatively waived an argument of error on appeal where

counsel not only failed to object to the language in a proposed self-

defense jury instruction, but also “requested that the trial court give

the   pattern   charge    including    that   language”).    Compare

Cheddersingh v. State, 

290 Ga. 680

, 684-685 (724 SE2d 366) (2012)

(holding that trial counsel did not “intentionally relinquish” and

thus did not affirmatively waive an alleged error on appeal where

the trial court asked counsel, “Is the verdict form acceptable to the

defense?”, and counsel responded, “I believe so. Let me look at it one

more time” but never made an objection). Because Davis’s trial

counsel “intentionally relinquished” any objection to the trial court’s

Rule 804 ruling on Trey’s testimony, he affirmatively waived it, and

so his claim of plain error fails. See 

Denson, 307 Ga. at 548


     3. Davis also argues that his trial counsel was constitutionally

ineffective for failing to object to the admission of Trey Jones’s prior

testimony. We disagree.

     To prevail on a claim of ineffective assistance of counsel, a

defendant generally must show that counsel’s performance was

deficient and that the deficient performance resulted in prejudice to

the defendant. See Strickland v. Washington, 

466 U.S. 668

, 687-695

(104 SCt 2052, 80 LEd2d 674) (1984). To satisfy the deficiency

prong, a defendant must demonstrate that his attorney “performed

at trial in an objectively unreasonable way considering all the

circumstances and in the light of prevailing professional norms.”

Romer v. State, 

293 Ga. 339

, 344 (745 SE2d 637) (2013).            This

requires a defendant to overcome the “strong presumption” that trial

counsel’s performance was adequate. Marshall v. State, 

297 Ga.


, 448 (774 SE2d 675) (2015) (citation and punctuation omitted).

Indeed, trial counsel’s strategic or tactical decisions generally will

not form the basis of an ineffective assistance of counsel claim unless

they are “so patently unreasonable that no competent attorney

would have made it under the circumstances at the time.” Clark v.


300 Ga. 899

, 903 (799 SE2d 202) (2017) (citation and

punctuation omitted). And if an appellant fails to prove either the

deficiency or the prejudice prong of the Strickland test, we are not

required to examine the other to determine that the claim of

ineffective assistance fails. See Lawrence v. State, 

286 Ga. 533

, 533-

534 (690 SE2d 801) (2010) (“If an appellant fails to meet his or her

burden of proving either prong of the Strickland test, the reviewing

court does not have to examine the other prong.”).

     Here, Davis has failed to prove that trial counsel performed

deficiently, so we reject his claim of ineffective assistance. As an

initial matter, it is true that Davis’s trial counsel testified at the

hearing on Davis’s motion for new trial that there was no strategic

reason for failing to object when the State sought to read Trey’s

testimony into evidence. But the record undermines that claim. To

that end, Davis’s trial counsel admitted at the motion for new trial

hearing that Trey’s testimony was “important to demonstrate that. .

. the victim went toward [Davis] in a quick fashion.” In other words,

Trey’s testimony was strategically useful to support Davis’s theory

of self-defense.   Indeed, the record shows that Trey’s testimony

provided the jury with the primary evidence—other than Davis’s

own testimony—that Hoskins “did run up and try to grab” Davis

immediately before Hoskins was stabbed. And even to the extent

Trey’s testimony that Davis “probably touched” Hoskins on the face

before stabbing him was not favorable to the defense, that testimony

did little, if anything, to undermine Davis’s theory of self-defense or

to otherwise harm his overall defense. Because reasonable trial

counsel could have concluded that the favorable portions of Trey’s

testimony outweighed any harm from its admission, Davis has failed

to show that trial counsel performed deficiently, and his claim of

ineffective assistance of counsel therefore fails.

     Judgment affirmed. All the Justices concur.


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