George Bernard Davis Jr., 39,
was sentenced to death in Elbert County in February 1985. He was
convicted of robbing and shooting to death Richard L. Rice, 63.
garage owner was found dead in his tow truck Feb. 13, 1984. His wallet
had been stolen along with more than $800. Mr. Davis had argued with Mr.
Rice over payments for car repairs.
Davis, who had no major felony
convictions before the killing, has been awaiting a trial court decision
on the issue of mental retardation since April 1990.
(255 Ga. 588)
(340 SE2d 862)
Murder, etc. Elbert Superior Court. Before Judge Grant.
George Bernard Davis, Jr., was convicted by a
jury in Elbert County for the armed robbery and murder of Richard
Rice. He was sentenced to death for the murder. The case is here on
direct appeal, for review under the Unified Appeal Procedure, 252 Ga.
A-13 et seq., and for the automatic sentence review required by OCGA
The victim, Richard Rice, owned Rice's Garage in
Elbert County. Shortly before noon on February 13, 1984, a person
called Rice's grandson stating that a green Chevrolet was located at
the trash dumpsters on Bobby Brown Road and needed to be picked up.
He relayed this message to Rice, who got into his wrecker and drove
to the area.
At about one o'clock, Danny Burke stopped at the
intersection of Bobby Brown Road and Woodlawn Church Road to talk to
Reverend DeWitt Waters. Burke and Waters each observed the victim's
wrecker at the dumpsters. It was backed up to a green Chevrolet,
which the victim appeared to be preparing to tow.
The witnesses saw nothing unusual; the car was
hooked up, and Rice was walking around the car, checking to see that
it was hooked up properly. Neither witness saw any one besides Mr.
Rice in the area. After he finished checking the hookup, Rice got
into the wrecker and drove off, down Woodlawn Church Road towards
Shortly afterwards, William Irwin observed the
victim's wrecker, about 100 yards in front of him on Woodlawn Church
Road, traveling at 40-45 mph. Irwin testified that a black male
leaned out of the driver's side window of the automobile in tow, and
fired two or three times. The wrecker continued up the road for
another 200 yards and then pulled over to the side of the road.
Irwin drove on by.
He testified, "Well, it sort of seemed funny to
me at first, but when nothing happened -- I mean the wrecker didn't
swerve or anything and just went right on up the road and then
pulled over, and I thought maybe the guy worked for Mr. Rice." He
testified that he thought the gunshots had been a signal of some
Thomas Childs resides on Woodlawn Church Road
about a half to three-quarters of a mile from the dumpsters. Early
in the afternoon of February 13, Mr. Childs observed the victim's
wrecker stopped by the side of the road in front of Mr. Childs' home.
The wrecker's motor was running, its windshield wipers were on (it
was raining), and the driver's-side door was open. Childs went out
to the wrecker and found Richard Rice slumped over in the seat, his
hand grasping an automobile bumper jack. He appeared to be dead.
Childs shut the door and called the police.
The back window of the wrecker had what appeared
to be a bullet hole in its lower left corner. During the autopsy
examination, one bullet was found in Rice's clothing and another was
removed from the inside of his skull. He had one graze wound on the
top of his left shoulder where a bullet had come to rest without
penetrating the skin. Another bullet had entered the ear lobe,
passed through the face, and exited on the right side of the face. A
third bullet had entered the neck and lodged in the "inner table" of
the skull. The autopsist testified that both of the head wounds were
potentially fatal and had been inflicted by a gun fired from a very
close range -- two or three inches.
Acting on information from a variety of sources,
law enforcement officers located appellant Davis in Lincoln County.
He was transported to the sheriff's office in Elbert County, given
his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16
LE2d 694) (1966), and interrogated. After first denying any
involvement in the death of Richard Rice, Davis confessed.
According to his written confession, Davis drove
his green Chevrolet to Richard Rice's garage, arriving at ten
minutes before nine. He wanted Rice to fix another car that he owned.
Rice had put an engine and transmission in a third car belonging to
Davis the previous October and Davis had not yet paid Rice for the
work. According to Davis, Rice told him that he was going to remove
the engine and transmission and junk the car. Davis left.
Davis stated that he then called Rice's garage
and reported a car parked by some dumpsters. Next, he drove to the
area and waited for Rice. He claimed that when Rice arrived, he told
Rice he wanted to talk to him but Rice grabbed a bumper jack out of
his wrecker and threatened to kill him. Davis hid behind his car.
Rice hooked it to the wrecker. As Rice was getting into the wrecker,
Davis entered the car.
Rice drove away with Davis' car in tow. Davis
blew his horn but Rice would not stop. Davis got out his gun and
fired twice, the second shot breaking the rear window of the wrecker.
Rice pulled over and stepped out of the wrecker with a bumper jack
in his hand. Davis shot him. He took Rice's wallet containing over
$800, let his car down, and drove away.
Davis led the officers to the gun identified by
ballistics examination as the murder weapon, and to the victim's
The evidence is sufficient to support the
conviction for murder and armed robbery. Jackson v. Virginia, 443 U.
S. 307 (99 SC 2781, 61 LE2d 560) (1979).
1. In his first enumeration of error, Davis
contends the trial court erred by admitting in evidence statements
made by Davis during custodial interrogation.
(a) First, Davis contends that he was arrested
without probable cause and that his post-arrest statements should
have been excluded as a fruit of an unconstitutional arrest. See
Brown v. Illinois, 422 U. S. 590 (95 SC 2254, 45 LE2d 416) (1975);
Devier v. State, 253 Ga. 604 (7) (323 SE2d
Prior to trial, Davis' attorney informed the
court that he did not anticipate challenging the validity of the
arrest. See Rule II (A) (8) of the Unified Appeal Procedure, supra.
He did file a pre-trial motion to exclude defendant's confession,
but nothing in the motion mentioned the Fourth Amendment or
otherwise hinted at a claim of an illegal arrest.
At trial, the court conducted a Jackson-Denno
hearing outside the presence of the jury to determine the
voluntariness of Davis' statements to law enforcement officers.
During this hearing, defendant's attorney, for the first time, made
two obfuscatory references to the legality of the arrest.
2 It is clear, however, that
neither the state nor the trial judge was aware that Davis was
raising any kind of Fourth Amendment claim. Essentially, Davis is
attempting to raise such a claim for the first time on appeal. We
hold that he is too late. We decline to address alleged deficiencies
in the state's showing of probable cause to arrest when the state
could not reasonably have been aware that it was necessary to
establish probable cause, and when the state might well have decided
to make a more complete evidential presentation if it had been aware
that a Fourth Amendment issue was being raised.
(b) Davis further contends that he was arrested
in violation of Georgia law in that he was arrested in Lincoln
County, without a warrant, by the sheriff of Elbert County. He
contends that although a sheriff may make an arrest in any county
with a warrant, see OCGA 17-4-25, he
may make a warrantless arrest only in his home county.
This contention is answered by the preceding
subdivision of this opinion and by Durden v. State,
250 Ga. 325 (1) (297 SE2d 237) (1982).
(c) Finally, Davis contends that his initial
denial of any involvement in the death of Richard Rice was
equivalent to an invocation of his right to remain silent. We do not
agree, and find no error in the trial court's determination that
Davis' confession was voluntary and admissible.
2. The trial court did not err by admitting in
evidence certain photographs of the victim over the objection that
the photographs were cumulative to the testimony of the autopsist
and were inflammatory. Felker v. State, 252
Ga. 351 (10 b) (314 SE2d 621)
3. The jury found statutory aggravating
circumstances as follows: "1. The offense of murder was committed
while the offender was engaged in the commission of another capital
felony, to wit: armed robbery; 2. The offense of murder was
committed while the offender was engaged in the commission of
aggravated battery." See OCGA 17-10-30
(b) (2). In his third and fourth enumerations, Davis questions the
court's charge on the statutory aggravating circumstances, and the
sufficiency of the evidence to support the jury's findings.
(a) The court's charge at the sentencing phase
included the following instructions:
"Now, members of the jury, I charge you that the
State contends that the offense of murder was committed under the
following aggravating circumstances: First, the offense of murder
was committed while the defendant was engaged in commission of
another capital felony, to wit, armed robbery; or, Number Two, the
offense of murder was committed while the defendant was engaged in
the commission of aggravated battery, which is a felony.
"I charge you that a capital felony, as that term
is used in my previous charge, is a crime punishable by death or
life imprisonment and includes the crime armed robbery. I charge you
that a person commits armed robbery within the meaning of the
previous charge when with the intent to commit a theft he takes
property of another by use of an offensive weapon or any replica,
article, or device having the appearance of such weapon.
"A person commits aggravated battery within the
meaning of the previous charge when he maliciously causes bodily
harm to another person by depriving him of a member of his body, by
rendering a member of his body useless, or by seriously disfiguring
his body or a member thereof."
We find no merit to the contention that the
court's charge might have led the jury to believe that it was
authorized to sentence Davis to death for the armed robbery. Not
only do the above-quoted portions of the charge clearly inform the
jury that the death penalty was being sought for "the offense of
murder," but the court had previously instructed the jury that it
was the jury's responsibility to determine the sentence to be
imposed for the offense of murder and the court specifically stated:
"I will impose the penalty on the armed robbery. You will only be
concerned with Count I [the murder count]."
(b) Davis contends the evidence shows that he
shot and killed the victim first and only then decided to rob the
victim and that the jury therefore was not authorized to find that
he committed the offense of murder "while . . . engaged in the
commission of" the offense of armed robbery. OCGA
17-10-30 (b) (2). We disagree.
Davis was guilty of committing an armed robbery
if, by use of an offensive weapon and with the intent to commit a
theft, he took a billfold belonging to Richard Rice "regardless of
when the intent to take the victim's billfold arose, regardless of
whether the victim was incapacitated and even if the victim had been
killed instantly. [Cit.]" Young v. State, 251
Ga. 153, 160 (303 SE2d 431)
(1983) (Hill, C. J., concurring in part and dissenting in part).
Moreover, the offense of murder does not
terminate at the instant of death, and even if Davis decided to take
the victim's money only after having twice shot him in the head, the
jury was authorized to find that the offense of murder was committed
while Davis was engaged in the commission of the offense of armed
robbery. See Conklin v. State, 254 Ga. 558
(2b) (331 SE2d 532) (1985); Romine v.
State, 251 Ga. 208 (8) (305 SE2d 93) (1983);
Horton v. State, 249 Ga. 871 (11) (295 SE2d
Finally, in any event, the jury was not required
to believe Davis' statement that the robbery was an afterthought,
and the evidence was sufficient to support a finding to the contrary.
Compare Wilson v. State, 250 Ga. 630 (300
SE2d 640) (1983).
(c) Davis contends the court's charge failed to
make it clear that the aggravated battery had to precede the killing
and be a separate and distinct act from the act causing death in
order to constitute a statutory aggravating circumstance, and that
there was no such separate and distinct act of aggravated battery in
this case. We agree.
The offense of aggravated battery forms a part of
two distinct statutory aggravating circumstances: OCGA
17-10-30 (b) (2) ("The offense of
murder . . . was committed while the offender was engaged in the
commission of another capital felony or aggravated battery . . .");
and OCGA 17-10-30 (b) (7) ("The
offense of murder. . . was outrageously or wantonly vile, horrible
or inhuman in that it involved . . . an aggravated battery to the
By its terms, b (7) defines an aggravating
circumstance in which an aggravated battery has been committed upon
the murder victim. The b (2) circumstance, on the other hand,
authorizes a death sentence where the defendant murders one person
and commits an aggravated battery upon a second person. See Cook v.
State, 255 Ga. 565 (16) (340 SE2d 891) (1986).
In such a case, so long as the murder and the aggravated battery are
committed within "a relatively short period of time in what can be
fairly viewed as one continuous course of criminal conduct," Peek v.
State, 239 Ga. 422, 431 (238
SE2d 12) (1977), a jury would be authorized to find b (2)
whether or not the victim of the aggravated battery was injured
prior to the death of the murder victim.
However, b (2) may also apply where the
aggravated battery was committed upon the murder victim. In this
situation, it must be kept in mind that every murder involves the
commission of an aggravated battery upon the murder victim, inasmuch
as the act which deprives the victim of life necessarily "causes
bodily harm to [the victim] by depriving him of a member of his body
[and] by rendering a member of his body useless . . ." OCGA
The United States Supreme Court has warned that
"a system 'could have standards so vague that they would fail
adequately to channel the sentencing decision pattern of juries with
the result that a pattern of arbitrary and capricious sentencing
like that found unconstitutional in Furman [v. Georgia, 408 U. S.
238 (92 SC 2726, 33 LE2d 346) (1972)] could occur.' [Cit.] To avoid
this constitutional flaw, an aggravating circumstance must genuinely
narrow the class of persons eligible for the death penalty and must
reasonably justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder." Zant v.
Stephens, ---- U. S. ---- (103 SC 2733, 77 LE2d 235) (1983) (footnote
omitted) (emphasis supplied).
At a minimum, a statutory aggravating
circumstance "may not . . . be interpreted so broadly that it can be
applied to every murder; in that event, the requirement that the
sentence of death may not be imposed unless at least one statutory
aggravating circumstance is found could not serve its intended
purpose of helping to distinguish cases in which the death penalty
is imposed from the many cases in which it is not." Phillips v.
State, 250 Ga. 336 (6a) (297
SE2d 217) (1982).
Since in every case the evidence presented to
prove the commission of murder will inevitably prove also the
commission of an aggravated battery upon the murder victim, some
limitation must be imposed upon the use of an aggravated battery to
the murder victim as a statutory aggravating circumstance. We
conclude that when the aggravated battery is alleged to have been
committed upon the person who is also the murder victim, the same
limitations should apply to the b (2) circumstance as to the b (7)
circumstance. That is, "[i]nsofar as aggravated battery . . . [is]
concerned, only facts occurring prior to death may be considered . .
. i.e., only facts showing aggravated battery, . . . which are
separate from the act causing instantaneous death, will support a
finding of . . . aggravated battery." Hance v. State,
245 Ga. 856, 861-62 (268
SE2d 339) (1980).
In this case, the jury was not charged on these
limitations respecting the aggravated battery subpart of the b (2)
aggravating circumstance. Moreover, there is in this case no
evidence of an aggravated battery except for the two gunshot wounds
to the victim's head which killed him. Cf. Phillips v. State, supra
at pp. 341-42; Alderman v. State, 254 Ga. 206
(6c) (327 SE2d 168) (1985). Therefore,
the jury's finding that "the offense of murder was committed while
the defendant was engaged in the commission of aggravated battery"
does not suffice to authorize the imposition of a death sentence.
(d) Nonetheless, the jury's finding that "the
offense of murder was committed while the offender was engaged in
the commission of another capital felony, to wit: armed robbery" was
sufficient to allow the case to "pass the second plane into that
area in which the death penalty is authorized." Zant v. Stephens,
250 Ga. 97, 100 (297
SE2d 1) (1982). Once beyond this plane, the jury was
authorized to consider all the facts and circumstances of the case,
including evidence that the victim was shot in the head, execution
style, from very close range, after which the defendant robbed the
victim of over $800 and fled the scene.
We conclude, from our review of the record and
all of the circumstances of the offense, that the charge on the
aggravated battery sub-part of b (2), and the jury's finding thereof
as ostensibly authorized by the charge, did not lead to the
imposition of a death sentence under the impermissible influence of
passion, prejudice, or other arbitrary factor. OCGA
17-10-35 (c) (2).
4. The sentence of death imposed in this case is
neither excessive nor disproportionate to sentences imposed in
similar cases, considering both the crime and the defendant. OCGA
17-10-35 (c) (3). The cases listed in
the appendix support the imposition of the death penalty in this
460 (224 SE2d 8)
(1976); Dobbs v. State, 236 Ga. 427 (224 SE2d
3) (1976); Goodwin v. State, 236 Ga.
339 (223 SE2d 703) (1976); Moore v. State,
233 Ga. 861 (213 SE2d 829) (1975).
1 Davis was sentenced to death on
February 6, 1985. He filed a motion for new trial raising the general
grounds on March 7. The motion was denied May 29. A notice of appeal was
duly filed and the case was docketed in the court July 24, 1985. Oral
arguments were heard October 16, 1985.
2 The first
occurred in response to an objection by the state on relevancy
grounds, as follows:"MR. TISE [for the State]: Your Honor, in
the interest of time I didn't object, but I fail to see the
relevance of whether or not he went voluntarily."THE COURT: What
do you say about that, Mr. Keeble?"MR. KEEBLE [for the defendant]:
Well, Your Honor, I think that whether or not anyone is being
illegally detained would certainly affect the voluntariness of
their statement."THE COURT: Are you suggesting that the
defendant was illegally detained? The purpose of this is a
Jackson-Denno hearing to determine the voluntariness of the
statement here."MR. KEEBLE: I agree with the Court, but --"THE
COURT: I don't want to cut you off. I want to give you every
leeway, but I want you to stay within the guidelines."The second
reference occurred after the court asked if the defense had any
objections to the first written statement, which was not
inculpatory, as follows:"THE COURT: I assume you wouldn't have
any objection to that statement, would you, Mr. Keeble?"MR.
KEEBLE: Your Honor, I voice the same objection. It has not been
established that this man was ever under arrest or that he was
ever informed of what he was being charged with."THE COURT: All
right. I will find that it was freely and voluntarily given,
without any coercion or threats."
3 We do not say
that what is in the record does not establish probable cause. But
plainly the state could have shown with greater clarity, for example,
the "reliability," "veracity," and "basis of knowledge" of the
persons to whom investigators had talked, if it had been necessary
to do so. See Curry v. State, 255 Ga. 215 (1)
(336 SE2d 762) (1985). Moreover, it is not clear that Davis
was "seized" when the officers found him and transported him to the
Lincoln County sheriff's office. If Davis went voluntarily, no
Fourth Amendment violation occurred even if probable cause was
lacking.Since no Fourth Amendment issue was raised below, we not
only lack a clear record in this regard, we do not have the benefit
of any trial court findings on this issue.
Lindsey A. Tise, Jr., District Attorney,
Michael J. Bowers, Attorney General, Paula K. Smith, Assistant
Attorney General, for appellee.
Floyd W. Keeble, Jr., for appellant.
George Bernard Davis