Hunter Mason Davis was tried before a jury and found guilty
of felony murder (two counts), armed robbery, aggravated
assault, and possession of a firearm during the commission of
a felony (two counts) in the shooting death of Angelo
Larocca. He now appeals, asserting multiple claims
of error. For the following reasons, we affirm in part and
vacate in part, and remand this case for resentencing.
Viewed in the light most favorable to the verdict, the
evidence showed that Davis and his friend Brandon Mosley were
often seen together at The Columns, an apartment complex in
Gwinnett County where Mosley lived. On June 26, 2011, the
victim, Larocca, and his girlfriend purchased Xanax pills
from Davis after being introduced to him by Sierra Hounchell,
a mutual acquaintance. Obtaining Davis' cell phone number
from Thomas Cope, another friend, the victim made
arrangements on June 28 to buy more Xanax from Davis. Davis
thereafter contacted both Hounchell and Cope to ask if they
knew whether the victim had anyone who might retaliate
against him if he robbed the victim. Cope did not inform the
victim of his conversations with Davis.
before 2:00 p.m. on June 28, 2011, the victim, his girlfriend
and another couple - David Varvari and Madison Leftwich -
drove to The Columns per directions the victim received via
cell phone. Text messages and cell phone records showed
numerous contacts between the victim and Davis between12:15
and 1:39 p.m. on that day. As instructed, the victim went to
an apartment behind building 1000 to purchase the drugs and,
exiting the car, walked around the back of the building.
Shortly thereafter, the victim called his girlfriend and,
sounding scared, told her to hold the money out the car
window. The girlfriend realized that something was wrong
because the victim had taken the money with him. She
testified that as she hung up the phone, a man appeared at
the driver's side window, demanding the money. After
informing him she did not have the money, the individual
walked away in the same direction the victim had taken.
Hearing two gunshots, she and the other occupants of the car
drove out of the complex, but returned shortly thereafter.
Varvari exited the vehicle and ran in the direction taken by
the victim, but was stopped by a security officer who had
found the victim's body lying in the building stairwell.
No money was found on the victim's body, but shell
casings from a 9-millimeter gun and a cigarette butt with
Davis' DNA were found next to it. According to the
medical examiner, the victim died from a gunshot wound to the
same afternoon, Davis' friend, Mosley, walked to a
carwash near the apartment complex and informed a friend
working there that he had just shot someone over some pills.
Borrowing a cell phone, Mosley called another friend to pick
him up from the carwash and, upon being picked up, informed
the driver that he had shot someone and directed the driver
to a nearby neighborhood to pick up Davis. According to the
driver, upon entering the vehicle, Davis asked Mosley why he
shot the victim. Later that night, Davis informed his
girlfriend that he killed someone and that he had been with
on the contacts between Davis and the victim on the day of
the shooting, investigators went to Davis' house where
they left word to have Davis contact them. Thereafter,
Davis' girlfriend drove him to a nearby convenience store
to meet with officers. When the officers arrived, Davis
immediately placed his hands behind his back saying, "go
ahead and take me to jail." After informing Davis that
he was not under arrest, the officers asked him to accompany
them to police headquarters for an interview and Davis
agreed. He rode unhandcuffed in the front seat of an unmarked
patrol car to the station. During his videotaped interview,
Davis admitted the victim contacted him about buying Xanax,
but made no mention of Mosley or Mosley's involvement
with the victim's murder. At the conclusion of the
interview, Davis was allowed to leave the police station and
was not arrested until almost two weeks later.
evidence presented at trial and summarized above was
sufficient to enable a jury to find Davis guilty beyond a
reasonable doubt of the crimes for which he was convicted,
either directly or as a party to the crime. Jackson v.
Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560)
Davis argues that the trial court erred in allowing evidence
of Mosley's gang affiliation. At the start of trial,
Davis' counsel argued that the State should not be able
to elicit testimony that Mosley had tattoos showing an
affiliation with a gang, and that Mosley identified himself
as being associated with that gang in a text message to
Davis. The trial court ruled that it would allow evidence
that one of Mosley's tattoos and a text message he sent
to Davis referenced the name of a gang. Evidence was
presented that Mosley had a tattoo on his chest and arm that
read "ABT Stunna." An investigator testified that
Mosley had been documented as a member of the ABT gang,
Davis' girlfriend testified that Mosley's street name
was "Stunna, " and a sergeant testified that Mosley
identified himself in a text to Davis as "ABT
Stunna" following the shooting.
new Evidence Code governs the admission of the evidence
here. Generally, "[a]ll relevant evidence
shall be admissible, " OCGA § 24-4-402, but it
"may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence." OCGA § 24-4-403. And the
trial court's rulings on the exclusion or admission of
evidence are reviewed for a clear abuse of discretion.
Parks v. State, 300 Ga. 303, 305-306 (2) (794 S.E.2d
623) (2016). Moreover, the exclusion of relevant evidence
under Rule 403 "is an extraordinary remedy that should
be used only sparingly." Davis v. State, 299
Ga. 180, 189 (2) (b) (787 S.E.2d 221) (2016); Olds v.
State, 299 Ga. 65, 70 (2) (786 S.E.2d 633) (2016).
State sought to show a connection between the robbery and
murder and the history of the gang, and the foreseeable
consequence of Davis' participation in the robbery with
Mosley. And as the trial court found, the evidence was also
relevant to identify Mosley as the person who communicated
with Davis by text shortly after the murder using someone
else's phone. Although Davis argues that evidence of
Mosley's gang affiliation was improper because neither he
nor Mosley was charged with gang activity, "[t]here is
no requirement that the State charge a defendant with
violating the prohibition of participation in criminal street
gang activity in OCGA § 16-15-4 in order to admit
otherwise relevant evidence of gang activity."
(Citations omitted.) Wolfe v. State, 273 Ga. 670,
674 (4) (c) (544 S.E.2d 148) (2001).
light of the purpose expressed by the State and evidence of
the communication between Davis and Mosley after the murder
with Mosley using the name "ABT Stunna, " we cannot
say that the trial court abused its discretion in allowing
the admission of evidence of Mosley's gang affiliation.
See Olds, supra, 299 Ga. at 69-70 (2); OCGA §
24-4-401 ("'relevant evidence' means evidence
having any tendency to make the existence of any fact that is
of consequence to the determination of the action more
probable or less probable than it would be without the
evidence."). And, in light of the strong evidence of
Davis' participation in the crimes, we conclude that it
is highly probable that the admission of this evidence did
not contribute to the jury's verdict. See Noel v.
State, 297 Ga. 698, 701-702 (3) (777 S.E.2d 449) (2015).
Davis argues that the trial court erred by admitting
"so-called similar transaction evidence" because
the State failed to meet its burden under Williams v.
State, 261 Ga. 640, 642 (2) (409 S.E.2d 649) (1991).
Specifically, the testimony was that approximately two years
prior to the shooting, Davis was in possession of "an
all black handgun, 9-millimeter" and was "show[ing]
it off, " and a month or two prior to the shooting,
either Davis or Mosley indicated that a 9-millimeter was
"our[s]." Davis also complains of testimony that
just prior to the murder, Cope sent the victim, who was
looking for Xanax, Davis' cell phone number. Davis
contends that the evidence was far removed in time, highly
prejudicial and irrelevant.
error in the trial court allowing evidence of the
9-millimeter handgun was harmless in light of the strong
evidence of Davis' guilt. See, e.g., Glover v.
State, 296 Ga. 13, 16 (3) (764 S.E.2d 826) (2014). And,
evidence that Cope sent Davis the victim's cell phone
number two days before the shooting was admissible to prove
the circumstances surrounding the victim's presence at
the scene of the shooting, even if it incidentally places
Davis' character at issue. See United States v.
Edouard, 485 F.3d 1324, 1344 (II) (C) (11th
Cir. 2007); United States v. Foster, 889 F.2d 1049,
1053 (III) (A) (1) (11th Cir. 1989).
Davis contends that the trial court erred in denying his
request for a continuance on the morning of trial to retain
new counsel. On the morning of trial, Davis' counsel
informed the trial court that his family wanted to hire
attorney Bruce Harvey to represent him in the case.
Davis' father then explained to the trial court that over
the three days before trial, he had spoken with Harvey who
had agreed to take Davis' case, and the reason he waited
so late to talk to Harvey was because he needed to make sure
he "had the funds, " and Harvey did not want a
retainer "unless the Judge would continue [the trial]
until he was available in December." Davis explained to
the trial court that he was not aware that he was going to
trial until two weeks prior and that he "would feel more
comfortable getting Mr. Harvey. I just feel like I . . . I
don't feel like I'm being represented like I
should." When the trial court asked Davis on what basis
he felt that he was not being properly represented, Davis
explained that his trial counsel did not file a motion he
wanted her to file because "she said that wasn't a
good idea, that it wouldn't be able to work." But he
admitted, "I feel like if I asked her, that she would
file it." Davis explained further that he felt he should
have been informed that he "was going to trial more,
" that counsel should have stopped him from meeting with
the prosecutor early on in the case, and that counsel should
have filed a motion for an investigator "on [his]
behalf." Trial counsel explained that although she had
funds for an investigator, she did not feel a need for one to
prepare for trial, and that she did suggest to Davis to
"offer some cooperation as part of the negotiation
process" with the State. The trial court ruled that it
would not continue the case.
Every person indicted for [a] crime has a most valuable and
important constitutional right, which entitles him to be
defended by counsel of his own selection whenever he is able
and willing to employ an attorney and uses reasonable
diligence to obtain his services. No person meeting
these requirements should be deprived of his right to be
represented by counsel chosen by himself, or forced to trial
with the assistance only of counsel appointed for him by the
court. Whether a particular defendant has exercised
"reasonable diligence" in procuring counsel is a
factual question, and the grant or denial of a request for
continuance on grounds of absence of retained counsel is a
decision within the sound discretion of the trial judge,
reversible only for an abuse of that discretion.
(Citations and punctuation omitted; emphasis in original.)
Flowers v. State, 275 Ga. 592, 594 (2) (571 S.E.2d
381) (2002). In denying the motion for a continuance made on
the morning of trial, the trial court considered, among other
things, Davis' frustration concerning pretrial issues,
but concluded that it did not appear that there would be any
plea negotiation between the parties, and that "both
sides are ready to go to trial. Both sides have their
witnesses." And the evidence showed that Harvey had
given Davis' family only a conditional agreement to take