Murder. Gwinnett Superior Court. Before Judge Turner.
Lynn M. Kleinrock, for appellant.
Daniel J. Porter, District Attorney, Christopher M. Quinn, Jon W. Setzer, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jason M. Rea, Assistant Attorney General, for appellee.
BLACKWELL, Justice. All the Justices concur.
Tremain Stuart Davis was tried by a Gwinnett County jury and convicted of murder and an aggravated assault. Davis appeals, contending that he is entitled to a new trial at which he can present evidence that his alleged accomplice -- who was tried separately and after Davis -- was acquitted of the murder. Davis also claims that he was denied the effective assistance of counsel when his lawyer failed to insist upon a more specific answer to a jury question. Upon our review of the record and briefs, we find no merit in these contentions, and we affirm.
1. Viewed in the light most favorable to the verdict, the evidence shows that Felipe Brito was involved in the distribution of cocaine, and he arranged to sell some cocaine on June 4, 2010. Because Brito spoke little English, he asked Miguel Bautista to assist him as a translator. On the afternoon of June 4, Davis, Armand Babbitt, and a man known as " Omar" arrived in a Dodge Charger at the apartment [296 Ga. 127] complex in which Brito lived. Omar was driving, Babbitt was seated in the front as a passenger, and Davis was seated in the back. When they arrived at the complex, Brito exited his apartment and joined the three men in the Charger, sitting in the back with Davis. Brito then called for Bautista to bring a package to the car. Bautista did so, and after he handed the package through the window of the car, Brito and Davis told Bautista to join them in the car. When Bautista entered the car, however, Davis pushed Bautista and took a handgun from him. At that point, Davis, Babbitt, and Omar all displayed handguns, and they began to threaten Bautista and Brito. Bautista panicked, pushed Brito from the car, and exited the car himself. Davis and one of the men in the front seat of the Charger then began to fire their guns. When Brito's brother emerged with his own gun from the apartment and returned fire at the Charger, Davis, Babbitt, and Omar drove away. In the course of the shooting, Brito sustained three gunshot wounds, at least one of which was fatal. Bautista sustained a single gunshot wound, but he survived. Davis was wounded as well.
At his trial, Davis testified and admitted his presence at the scene and his involvement in the drug deal. Davis claimed, however, that he left the Charger (to relieve himself behind the apartment) before the gunfire began, that he was shot as he ran back to the
Charger, and that he never had a gun on the day of the shootings. Davis also said that he did not know that Babbitt and Omar were armed.
Davis does not dispute that the evidence is sufficient to sustain his convictions, but consistent with our usual practice in murder cases, we have independently reviewed the record to assess the legal sufficiency of the evidence. As we have explained on many occasions, " we must view the evidence in the light most favorable to the verdict and leave questions of credibility and the resolution of conflicts in the evidence to the jury." Bradley v. State, 292 Ga. 607, 609 (1) (a) (740 S.E.2d 100) (2013). So viewed, we conclude that the evidence adduced at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Davis was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. Davis and Babbitt were indicted together for the murder of Brito, but they were tried separately. After Davis was convicted, Babbitt was tried by another Gwinnett County jury and acquitted of the murder. Citing White v. State, 257 Ga. 236 (356 S.E.2d 875) (1987), Davis contends that he is entitled to a new trial at which he can present evidence of Babbitt's acquittal. We disagree.
In White, this Court held that one charged distinctly as an accessory to a crime may be entitled under Georgia law to present [296 Ga. 128] evidence of the acquittal of another charged distinctly as the principal. 257 Ga. at 236. The Court reasoned ...