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Davis v. State

Court of Appeals of Mississippi

October 3, 2017


          DATE OF JUDGMENT: 08/18/2015





          WILSON, J.

         ¶1. A Hancock County jury convicted Glen Joseph Davis of murder, and the circuit court sentenced him as a habitual offender to life in prison without eligibility for parole or early release. Davis's appointed appellate counsel filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss. 2005), certifying that he had examined the record thoroughly and could identify no arguable issues for appeal. Davis subsequently filed a pro se brief in which he argues, among other things, that his trial counsel provided ineffective assistance by failing to disclose a witness, which resulted in the exclusion of the witness's testimony. We address this issue and Davis's other claims below. Based on our independent review of the record, we conclude that there are no issues that warrant reversal. Therefore, we affirm. We also conclude that Davis's ineffective assistance claim cannot be decided on the record on appeal. Therefore, we dismiss that claim without prejudice. He may raise such a claim in a properly filed motion for post-conviction relief.


         ¶2. On March 8, 2012, eighty-three-year-old Maurice Colly was found dead in the trunk of his car in the garage of his Bay St. Louis home. Colly's wrists and ankles were bound, his head was wrapped in a pillow case, plastic bag, and painter's cloth, and he had sustained blunt-force injuries to his face, scalp, and shoulders.

         ¶3. Davis was identified as a suspect in the homicide. He was arrested in Michigan after the case was featured on the television show America's Most Wanted. He was indicted for the murder, and his case proceeded to a seven-day jury trial in the Hancock County Circuit Court. Twenty-nine witnesses testified at trial, and over one hundred exhibits were admitted into evidence.

         ¶4. We begin by summarizing the State's case against Davis. We then discuss Davis's defense. Through his own testimony and other evidence, Davis attempted to offer an innocent explanation for the circumstantial evidence against him[1] and to shift suspicion to two other one-time suspects in the murder, Otis Stewart and Carol Babb.

         The State's Case

         ¶5. In March 2012, Colly owned and lived in a two-story building on Second Street in downtown Bay St. Louis. Colly's residence, where he lived alone, occupied the entire second floor of the building. The ground floor of the building consisted of three two-bedroom apartments, which Colly rented to tenants, and a garage, which was connected by interior stairs to Colly's residence. The garage could not be accessed from any of the first-floor apartments. Colly was eighty-three years old and a bachelor. His closest living relative was his nephew, Wally, who lived in Atlanta.

         ¶6. On Wednesday, March 7, 2012, around 11 a.m., a friend of Colly's, Charlotte Taylor, called the landline telephone at Colly's apartment. Someone with a nasally voice answered, said that he did not feel like talking, and hung up. Taylor testified that the person did not sound like Colly, but at that point she had no reason to doubt that it was Colly, and she thought that he might just be sick and not feeling well. Taylor called Colly's phone several more times that day with no answer.

         ¶7. Colly still did not answer when Taylor called again the next morning (March 8), so she drove to his home to check on him. No one answered when she knocked on the door around 10:30 a.m., so she talked to one of Colly's neighbors and then called Colly's nephew, Wally. Wally suggested that she call Colly's cell phone, which, according to Taylor, Colly rarely used. Taylor was surprised when "a strange voice answered" Colly's phone. The person said, "we're going after the plants, " and then hung up. Taylor thought that "the plants" might have been a reference to some landscaping that Colly had planned for his yard. However, by this point, she and the neighbor were very concerned and soon called the police.

         ¶8. Officers from the Bay St. Louis Police Department arrived and conducted a welfare check of Colly's home. Officer Scott Armentrout recognized Colly's green Toyota Camry because it was the same car that he had seen parked at a nearby library at 6:30 p.m. the night before. A caller had reported the car as "suspicious, " so Armentrout had gone to the library to investigate. He found the car backed into a parking spot next to a garbage dumpster with its windows down and a dark-colored mountain bike on the backseat. Armentrout did not do anything else about the car that evening, but he noticed that it was still parked in the same place when he drove by the library around 3 a.m. When officers found the car parked in Colly's garage, its windows were up and the bicycle was gone.

         ¶9. Officers also noticed that a display case in Colly's living room was empty. Taylor told them that Colly kept a collection of plates depicting the Ten Commandments in the case. She later testified that Colly was very proud of the plates and never would have given them away.

         ¶10. The police eventually discovered Colly's body in the trunk of his car. Colly's wrists and ankles were bound, his head was wrapped in a pillow case, plastic bag, and painter's cloth, and he had sustained blunt-force injuries to his face, scalp, and shoulders. An autopsy determined that the causes of death were those injuries and asphyxiation. The state medical examiner testified that autopsy findings suggested that Colly died about forty-eight hours before his body was found-i.e., on or about March 6, 2012-although the medical examiner stated that this estimate was "not exact."

         ¶11. During their investigation, police determined that Colly had spoken to an employee at a doctor's office on the morning of Monday, March 5. The employee called Colly to confirm his appointment for the next day. She knew Colly and was familiar with his voice, and she was certain that she spoke with him that morning. In addition, records from Hancock Bank show that a deposit was made in Colly's bank account that morning.

         ¶12. Colly did not show up at his doctor's appointment at 10:00 a.m. on Tuesday, March 6. An employee of Hancock Bank testified that the bank received two phone calls requesting increases on the limits on Colly's ATM card. These calls were made on March 5 and March 6, although the record does not establish what times on those dates the calls were made.

         ¶13. Police obtained Colly's bank records and reviewed transactions around the time of his death and after his death. On March 6, at 10:12 a.m., 10:13 a.m., and 10:14 a.m., someone used the drive-thru ATM at Hancock Bank in Bay St. Louis to make successive withdrawals of $500, $500, and $400 from Colly's account. Video and still photos from a camera at the bank show that the person was driving a car like Colly's light green Toyota Camry. The driver appeared to be wearing a blue shirt with a white floral design and possibly a Panama Jack-style hat, but the car's sun visor was positioned so as to obscure the driver's face. At 10:21 a.m. and 10:22 a.m., someone attempted to use Colly's Keesler Federal Credit Union ATM card to make a withdrawal at Hancock Bank. And at 10:29 a.m., someone attempted to use Colly's Keesler card at an ATM at the People's Bank in Bay St. Louis. The attempts to use the Keesler card were all unsuccessful. Photos taken at the People's Bank appear to show the same car, but the sun visor was again positioned so as to obscure the driver's face. As discussed in more detail below, Colly's Hancock Bank card was used once more on March 9, 2012, at 2:37 a.m., to withdraw $400 from a drive-thru ATM in Gulfport. Video showed a different car, a silver Honda Accord. The car's sun visor was again positioned to obscure the driver's face.

         ¶14. After Colly's body was discovered, the police and the Mississippi Bureau of Investigation collected various evidence from the garage and residence, which we will discuss below. The police then turned the home over to Wally and his wife, Carol. Wally later noticed that a rectangular hole had been cut in the bottom of the exterior door to a storage room that was connected to Colly's garage. The cut-out piece had been taped back into the door from the inside. Wally showed the hole to Detective Gary Hudgens of the Bay St. Louis Police Department, and they found a cigarette butt in the storage room about three feet from the hole. Hudgens suspected that the hole was the murderer's point of entry into Colly's home.

         ¶15. In late April, in the course of cleaning Colly's home, Carol found a plastic Kmart bag behind the living room sofa. The bag contained medical tape, ace bandages, one blue glove, and gauze. The bag also contained a receipt showing a purchase of medical tape and bandages at 6:25 p.m. on March 7, 2012, at the Kmart on Highway 90 in Waveland. Carol knew that Colly was dead by March 7, so she and Wally turned the bag over to Detective Hudgens. Detective Hudgens collected the bag and its contents as evidence, along with some cleaning rags, Lysol, and mineral spirits that were found near the bag. Wally and Carol also found an empty package for a salt-and-pepper wig in the living room, which they also turned over to police.

         ¶16. Kmart provided video footage of the transaction reflected in the receipt, and on April 27, 2012, the police released the video to the media, describing the customer as a person of interest in Colly's murder. The same day, multiple callers to Crime Stoppers identified Davis as the customer in the video. The cashier then identified Davis in a photo lineup. At trial, she testified that Davis seemed "nervous" while making the purchase.

         ¶17. At trial, four women-Jo, Jodi, Rene, and Lori-who met Davis on a dating website ("Plenty of Fish") testified about his whereabouts and actions in March and April 2012, beginning around the time of the murder. Jo testified that Davis called her around 9 p.m. on Monday, March 5, 2012, and asked her to pick him up at an Exxon station on Nicholson Avenue in Waveland. Jo picked up Davis, and they went back to her house in Waveland and then to a casino. According to Jo, they left the casino and returned to her house around midnight. She testified that around 2 a.m., Davis borrowed her car to go buy beer. She said that when Davis returned to her house around 3 a.m., she asked him why he had been gone so long, and he said that he had been talking to a friend. Jo then went to bed alone.

         ¶18. Jo testified that she next saw Davis for "a brief period of time" around 8 or 9 a.m. on March 6.[2] Jo did not see Davis again until she returned home from work at 11 p.m. that night. She testified that Davis left her house at some point that morning, but she did not know when he left, where he went during the day, or when he returned to her house. As discussed above, someone used Colly's ATM cards at banks in Bay St. Louis beginning at 10:12 a.m. that morning. Davis's cell phone records, which were admitted into evidence without objection, show that his cell phone utilized the Perniciaro Lane cell tower, which is near downtown Bay St. Louis, at 1:41 p.m. that afternoon.

         ¶19. Davis spent the night at Jo's house again on March 6, but at trial Jo could not recall what time of day he left on March 7 or anything else that occurred on March 7. The State presented no direct evidence of Davis's whereabouts during the day on March 7 until he made the above-discussed purchase at the Kmart in Waveland at 6:25 p.m. Also, as noted above, Officer Armentrout testified that Colly's car was parked with its windows down and a bicycle in the backseat at the library in Bay St. Louis from sometime before 6:30 p.m. on March 7 until at least 3 a.m. on March 8.

         ¶20. Around noon on March 8, Davis made a series of phone calls to taxi services. His cell phone utilized the Marti Street tower in downtown Bay St. Louis for those calls. Around 4 p.m., his cell phone utilized a cell tower in Biloxi, and around 6 p.m., his cell phone utilized cell towers in Saucier and Gulfport. Jodi testified that on March 8 Davis texted her throughout the day asking her to meet him for a drink that evening. He continued to text her after she got home from work, so she finally agreed to meet him between 7 and 8 p.m. at Michael's, a bar on Highway 49 in Gulfport.

         ¶21. Jodi testified that when she met Davis at Michael's, "[h]e was dressed a little different from his norm." He was wearing what she considered to be "an older gentleman's shirt and an older gentleman's hat that he wouldn't typically wear." She "picked on him about" his clothes, and "he got a little bit offended." After they had one drink at Michael's, Davis asked her to take him to Walmart to buy new clothes, and he bought a t-shirt and a baseball cap. Next, they went to the Days Inn on Highway 49 in Gulfport. Davis asked Jodi to go to the front desk to get the room, but he gave her cash to pay for it. Davis changed into his new clothes, and around 9:30 or 10 p.m., they went to the Island View casino in Gulfport. Davis bought drinks for Jodi, and she testified that Davis "had more money than he'd ever had [when they had] gone out." Davis and Jodi were at the Island View for about two hours.

         ¶22. From the Island View, Davis and Jodi went to Nate's Sports Bar on Highway 49 in Gulfport. At trial, Davis admitted that while he and Jodi were at Nate's, he left briefly in her car and drove to a nearby bank. At 2:37 a.m., he used Colly's ATM card to withdraw $400. The withdrawal was recorded on the bank's video camera. Jodi did not know that Davis left the bar and did not give him permission to use her car. Jodi explained that they met several of her friends at Nate's, and she did not keep track of Davis the entire time they were there. She testified that she and Davis left Nate's together around 3 a.m. on March 9 and returned to the Days Inn.

         ¶23. The State did not present any further testimony about where Davis went or what he did on March 9, 2012. Davis's cell phone records suggest that he was in Gulfport, as there were a number of calls placed from his phone between noon and 6:20 p.m. that utilized Gulfport cell towers.

         ¶24. On the afternoon of March 10, 2012, Davis and Rene drove to New Orleans in Rene's car. Rene testified that Davis did not have a car of his own at the time, so he relied on his bicycle, which was a dark color, or others for transportation. Davis and Rene stayed in New Orleans only a brief time and returned to her house in Ocean Springs the same day.

         ¶25. At some point in March 2012, Davis brought a number of silver-plated dishes, an ornamental knife, a pewter submarine, and other items to Rene's house.[3] Rene helped polish some of the items. Davis told her that he had inherited the items from his grandfather, and he left them at her house. However, Wally testified that the items belonged to Colly.

         ¶26. Around March 26 or 27, 2012, Davis called Lori and told her that he was at her apartment in Ocean Springs and that he had some things that he wanted to leave there. Lori agreed, and Davis left a plastic storage bin and two cardboard boxes outside her apartment. When she later moved the bin and boxes, Lori noticed that they contained ornamental plates and a crystal vase, among other items. At trial, Lori identified the plates as Colly's prized Ten Commandments plates, and she identified the vase as one that Wally testified belonged to Colly.

         ¶27. As discussed above, on April 27, 2012, police released the Kmart video to the media, and Davis was identified as the customer. The same day, Davis asked Jo if he could borrow her car to check on his father, who he said was injured. Jo agreed but asked Davis not to keep the car long. Davis never returned Jo's car or spoke to her again. Davis also called Lori and asked if he could retrieve his storage bin and boxes from her apartment. Lori testified that Davis "was in a hurry" when he came to her apartment and left quickly.

         ¶28. Detective Hudgens learned that Davis had been staying at his father's house in Kiln. Davis's father, Larry, consented to a search of Davis's room, and Detective Hudgens collected a pair of Asics tennis shoes as evidence.[4] Jimmy Perdue, a forensic scientist at the Mississippi Crime Lab, determined that the shoes matched three footprints (one right and two left) on a large plastic sheet that was under Colly's body in the trunk of his car. Perdue testified that the ...

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