Execution Set for Troy Anthony Davis, Convicted of 1989 Murder of Savannah Police Officer
Georgia Attorney General Sam Olens offers the following information in the case against Troy Anthony Davis, who is currently scheduled to be executed on September 21, 2011 at 7:00 p.m.
On September 6, 2011, the Superior Court of Chatham County filed an order, setting the seven-day window in which the execution of Troy Anthony Davis may occur to begin at noon on September 21, 2011, and ending seven days later at noon on September 28, 2011. The Commissioner of the Department of Corrections then set the specific date and time for the execution as 7:00 pm on September 21, 2011. Davis has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.
At approximately 1:00 a.m. on Saturday, August 19, 1989, officers of the Savannah Police Department responded to a call of “an officer down” at the Greyhound bus station. (T. 759). Officers found Mark MacPhail, a 27 year-old Savannah police officer, lying face down in the parking lot of the Burger King restaurant next to the bus station. (T. 759). Officer MacPhail’s mouth was filled with blood and bits of his teeth were on the sidewalk. As he began administering CPR to the victim, Officer Owens noticed that the victim’s firearm was still snapped into his holster. (T. 761).
Larry Young, who was present at the scene, told police that between midnight and 1:00 a.m. he had walked from the Burger King parking lot to the convenience store down the block to purchase beer. (T. 797-798). Sylvester “Red” Coles saw Young leave the pool hall next door and began following Young demanding a beer. (T. 798). Coles continued to harass Mr. Young all the way back to the Burger King. (T. 799). When Young arrived at the parking lot, Harriet Murray was sitting on a low wall by the restaurant. Davis and Daryl Collins, who had taken a shortcut to the parking lot, came out from behind the bank and surrounded Mr. Young. (T. 799). Mr. Coles, who was facing Mr. Young, told him not to walk away “cause you don’t know me, I’ll shoot you,” and began digging in his pants. (T. 845). Ms. Murray ran to the back door of the Burger King, which was locked. (T. 799). Davis, who was behind Young and to his right, blind-sided him, striking him on the side of the face with a snub-nosed pistol, inflicting a severe head injury. Mr. Young began to bleed profusely, and he stumbled to a van parked in front of the Burger King drive-in window, asking the occupants for help. (T. 803). When the driver did not respond, he went to the drive-in window, but the manager shut it in his face. (T. 803, 915).
In response to the disturbance in the parking lot, Officer MacPhail, who was working as a security guard at the restaurant, walked rapidly from behind the bus station, with his nightstick in his hand and ordered the three men to halt. (T. 849). Mr. Collins and Davis fled, and Officer MacPhail ran past Sylvester Coles in pursuit of Davis. (T. 851). Davis looked over his shoulder, and when the officer was five to six feet away, shot him. Officer MacPhail fell to the ground, and Davis walked towards him and shot him again while he was on the ground. (T. 850). One eyewitness testified that Davis was smiling at the time. (T. 851). The victim died of gunshot wounds before help arrived.
Davis fled to Atlanta the following day and surrendered to authorities on August 23, 1989.
Pursuant to an investigation, police learned that on the night of the killing, Davis had attended a party on Cloverdale Drive in a subdivision near Savannah. (T. 1115-1116). During the party, Davis, annoyed that some girls ignored him, told several of his friends something about “burning them.” (T. 146). Davis then walked around saying, “I feel like doing something, anything.” (T. 1464). When Michael Cooper and his friends were leaving the party, Davis was standing out front. (T. 1120). Michael Cooper was in the front passenger seat, and as the car pulled away, several of the men in the car leaned out the window shouting and throwing things. (T. 1120, 1186). Davis shot at the car from a couple of hundred feet away and the bullet shattered the back windshield and lodged in Michael Cooper’s right jaw. (T. 1186). Cooper was treated at the hospital and released and Cooper’s injury formed the basis for Count IV of Davis’ indictment. The shooting incident took place approximately one hour before Officer MacPhail was shot.
Shortly after Michael Cooper was shot, Eric Ellison and D.D. Collins picked up Davis in Cloverdale and took him to Brown’s Pool Hall in Savannah. Red Coles, wearing a yellow t-shirt, was already at the pool hall.
A ballistics expert testified that the bullet recovered from MacPhail’s body was of the same type and was possibly fired from the same weapon as used in the Cooper shooting. (T. 1292). Four .38 special casings recovered at Cloverdale, where Michael Cooper was wounded, were fired from the same gun as casings found at the scene of Officer MacPhail’s murder. (T. 1292).
At trial, Kevin McQueen, who was at the Chatham City Jail with Davis, testified that Davis told him there had been a party in Cloverdale on the night of the victim’s murder; Davis had argued with some men and there was an exchange of gunfire. (T. 1230-1231). Davis told McQueen he did some of the shooting. (T. 1231). After the party, Davis went to a girlfriend’s house and intended to eat breakfast at Burger King. Davis stated that he was with a friend and they ran into a guy who “owed money to buy dope.” (T. 1231). There was a fight, Officer MacPhail appeared, and Davis shot him in the face. As Officer MacPhail attempted to get up, Davis shot him again, because he was afraid MacPhail had seen him that night at Cloverdale. (T. 1232). Davis also told McQueen that he was on his way out of town to Atlanta. (T. 1232).
Jeffrey Lapp testified that Davis told him he did the shooting at Burger King, but that it was self-defense. (T. 1249-1252). Mr. Lapp noted that Davis’ street name was RAH, standing for “Rough As Hell.” (T. 1257).
Red Coles identified Davis as the perpetrator of Officer MacPhail’s murder, as did numerous other eyewitnesses, including Harriet Murray, Dorothy Ferrell, Daryl Collins, Antoine Williams, Steven Sanders and Larry Young.
Davis testified at trial. Davis admitted that he was present at the scene of the shooting on the night in question, but denied that he was involved in the shooting of Cooper or the victim or the assault on Larry Young.
The Trial (1989-1991)
Davis was found Davis guilty of one count of malice murder, one count of obstruction of a law enforcement officer, two counts of aggravated assault and one count of possession of firearm during the commission of a felony. The jury’s recommendation of a death sentence was returned on August 30, 1991. The Georgia Supreme Court unanimously affirmed Davis’ convictions and death sentence on February 26, 1993. Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (1993). The Georgia Supreme Court specifically found that the evidence presented at Davis’ trial was sufficient to support the jury’s verdict, by stating that, “The evidence supports the conviction on all counts.” Davis v. State, 263 Ga. 5, 7 (1993).
State Habeas Corpus Petition (1994-2001)
Davis, represented by the Georgia Resource Center, filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on March 15, 1994. An evidentiary hearing was held on December 16, 1996.
On September 9, 1997, the state habeas corpus court denied Davis state habeas corpus relief, including his claim that he was not the shooter. (State habeas corpus order of September 5, 1997, denying relief, page 41). The Georgia Supreme Court affirmed the denial of state habeas corpus relief on November 13, 2000. Davis v. Turpin, 273 Ga. 244, 539 S.E.2d 129 (2000).
Davis then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on October 1, 2001. Davis v. Turpin, 534 U.S. 842, 122 S.Ct. 100 (2001).
Federal Habeas Corpus Petition (2001-2004)
Davis, represented by Thomas Dunn, filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia, Savannah Division, on December 14, 2001. On May 13, 2004, the district court denied Davis federal habeas corpus relief. In its order denying relief, the federal habeas corpus court denied Davis a federal evidentiary hearing stating that, “this Court finds that because the submitted affidavits are insufficient to raise doubts as to the constitutionality of the result at trial, there is no danger of a miscarriage of justice in declining to consider the claim.” (Federal habeas corpus order of 5/13/04, p. 25.).
11th Circuit Court of Appeals (2004-2006)
The case was orally argued before the Eleventh Circuit on September 7, 2005. On September 26, 2006, the Eleventh Circuit issued an opinion which affirmed the denial of federal habeas corpus relief to Davis. Davis v. Terry, 465 F.3d 1249 (11th Cir. 2006). In the Eleventh Circuit’s opinion, the Court noted, “In this case, Davis does not make a substantive claim of actual innocence. Rather, he argues that his constitutional claims of an unfair trial must be considered, even though they are otherwise procedurally defaulted, because he has made the requisite showing of actual innocence under Schlup.” Davis v. Terry, 465 F.3d 1249, 1251 (11th Cir. 2006). Reviewing each of Davis’s claims, the Eleventh Circuit affirmed the denial of federal habeas corpus relief by stating the following, “Having very carefully considered this record, we cannot say that the district court erred in concluding that Davis has not borne his burden to establish a viable claim that his trial was constitutionally unfair.” Davis v. Terry, 465 F.3d 1249, 1256 (11th Cir. 2006). Davis filed a petition for writ of certiorari in the United States Supreme Court on April 11, 2007, which was denied on June 25, 2007.
Original Execution Date Set (July 17, 2007)
On June 29, 2007, Chief Judge Perry Brannen, Jr. of the Superior Court of Chatham County filed an order setting the execution of Troy Anthony Davis for July 17, 2007. Davis filed a motion for stay of execution and an extraordinary motion for new trial. The trial court granted a stay, and then “exhaustively reviewed” each submitted affidavit “and considered in great detail the relevant trial testimony, if any, corresponding to each.” In denying the extraordinary motion for new trial, the trial court concluded that, “Defendant has failed to carry the burden on each and every submitted affidavit.”
On appeal, the Georgia Supreme Court extensively reviewed each category of “affidavit testimony” on which Petitioner’s extraordinary motion relied, including: “recantations by trial witnesses,” “statements recounting alleged admissions of guilt by Coles,” “statements that Coles disposed of a handgun following the murder” and “alleged eyewitness accounts.” Davis v. State, 283 Ga. 438, 441-447, 660 S.E.2d 354 (2008). The Georgia Supreme Court held that, “Upon our careful review of Davis’s extraordinary motion for new trial and the trial record, we find that Davis failed to present such facts in his motion and, therefore, that the trial court did not abuse its discretion in denying that motion without a hearing.” Davis v. State, 283 Ga. at 448.
New Execution Date Set (September 23, 2008)
A new execution date was set for Troy Anthony Davis for September 23, 2008. On September 12, 2008, the Board of Pardons and Paroles denied commutation of death sentence and issued the following statement:
The Parole Board does not generally comment on death penalty cases it has considered for clemency. However, the Troy Davis case has received such extensive publicity that the Board has decided to make an exception.
Davis’ attorneys have argued that the Board should grant him clemency because a number of witnesses against Davis changed their earlier statements to the police and their testimony at the trial. Moreover, the attorneys have brought forward other people who now claim to have information that raises doubt as to the guilt of Davis.
Because of these claims, the Parole Board stopped Davis’ execution last year. The Board has now spent more than a year studying and considering this case.
As a part of its proceedings, the Board gave Davis’ attorneys an opportunity to present every witness they desired to support their allegation that there is doubt as to Davis’ guilt. The Board heard each of these witnesses and questioned them closely.
In addition, the Board has studied the voluminous trial transcript, the police investigation report and the initial statements of the witnesses. The Board has also had certain physical evidence retested and Davis interviewed.
After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board has determined that clemency is not warranted.
On September 23, 2008, the United States Supreme Court entered an order staying the execution pending disposition of Davis’s petition for writ of certiorari that had been previously filed on July 14, 2008. On October 14, 2008, the United States Supreme Court denied Davis’s petition for writ of certiorari, thus terminating the stay of execution. Davis v. Georgia, ___ U.S. ___, 129 S.Ct. 397 (2008).
New Execution Date Set (October 27, 2008)
An new execution date was set for October 27, 2008.
On October 22, 2008, Davis filed an application for leave to file a second or successive habeas corpus petition. Respondent filed a response in opposition on October 23, 2008. On October 24, 2008, the Eleventh Circuit granted a conditional stay of execution and directed both parties to submit briefs addressing specific issues. Both parties submitted briefs, and an oral argument before the Eleventh Circuit was held on December 9, 2008. On April 16, 2009, the Eleventh Circuit denied Davis’s application for leave to file a second or successive habeas corpus petition. In re: Davis, 565 F.3d 810 (11th Cir. 2009). The Eleventh Circuit held:
In short, we are constrained by the statutory requirements found in § 2244(b)(2)(B) to conclude that Davis has not even come close to making a prima facie showing that his Herrera claim relies on (i) facts that could not have been discovered previously through the exercise of due diligence, and that (ii), if proven, would “establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B) (2006). He, therefore, cannot file a successive petition.
In re Davis, 565 F.3d at 824.
Davis subsequently filed an original writ in the United States Supreme Court on May 19, 2009. On August 17, 2009, the United States Supreme Court transferred the case to the district court for that court to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of the trial establishes petitioner’s innocence.” In re Davis, ___ U.S. ___, 130 S.Ct. 1 (2009).
Following briefing and discovery, a federal evidentiary hearing was conducted in the United States District Court for the Southern District of Georgia, Savannah Division, on June 23-24, 2010. On August 24, 2010, the United States District Court entered an order denying Davis’s petition for a writ of habeas corpus. In denying relief, the district court held:
Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value. After careful consideration, the Court finds that Mr. Davis has failed to make a showing of actual innocence that would entitle him to habeas relief in federal court.
In re: Davis, Case No. CV409-130.
Thereafter, Davis filed a petition for writ of certiorari in the United States Supreme Court on January 21, 2011, which was denied on March 28, 2011.
References to the transcript of Davis’ trial will be referred to as “T”, followed by the appropriate page number of the trial transcript.