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.
2
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
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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
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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
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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.
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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
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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
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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.”
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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
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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
must
point to an error that was not affirmatively waived, the
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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
proceedings.
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.”
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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.
State, 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.
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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.
445, 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
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would have made it under the circumstances at the time.” Clark v.
State, 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,
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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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