Downer v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: September 20, 2022
S22A0632. DOWNER v. THE STATE.
MCMILLIAN, Justice.
Following a bench trial in 2016, William Douglas Downer was
found guilty of felony murder, armed robbery, and other crimes in
connection with the death of Michael Larry Hill. 1 On appeal, Downer
1 The crimes occurred on or about August 30, 2012. In October 2012, a
Habersham County grand jury indicted Downer and Albert Buford Brown for
malice murder (Count 1), felony murder predicated on burglary (Count 2),
armed robbery (Count 3), burglary (Count 4), and aggravated assault (Count
5). In August 2013, the trial court granted Downer’s motion to sever his trial
from that of Brown. In January 2014, Brown pleaded guilty to murder and first
degree burglary and agreed to testify for the State in exchange for a reduced
sentence of life imprisonment with the possibility of parole. In March 2015,
Downer agreed to a bench trial in consideration for the State’s withdrawal of
its notice of intent to seek the death penalty. At a bench trial held from January
11 to 15, 2016, Downer was acquitted of malice murder but found guilty of the
remaining counts. The trial court sentenced Downer to serve life in prison for
felony murder (Count 2) and 20 years in prison for armed robbery (Count 3), to
run consecutively; the remaining counts were merged for sentencing purposes.
Downer timely filed a motion for new trial, which he amended through new
counsel on September 5, 2019, and February 18, 2021. Following a hearing, the
trial court denied the motion for new trial on May 12, 2021. Downer timely
appealed, but on September 23, 2021, this Court granted Downer’s motion to
asserts that (1) the evidence was insufficient to sustain his
convictions; (2) his custodial statements should have been
suppressed; (3) the trial court erred in admitting hearsay
statements through two witnesses; (4) the State withheld
exculpatory evidence; and (5) the trial court erred in denying his
post-trial motion for DNA testing. For the reasons that follow, we
affirm.
Viewed in the light most favorable to the verdict, the evidence
presented at trial showed that for several months in 2012, Downer
lived in a camper on Brown’s property in Habersham County, where
Brown lived with his girlfriend, Joyce Higgins, and her adult son,
Jamie Higgins. As part of his plea deal, Brown testified extensively
about his and Downer’s roles in the crimes. Brown explained that he
occasionally saw Hill, who lived across the street from Brown’s
parents, when he would visit his parents’ home, also in Habersham
remand the case to the trial court to complete the record. On November 18,
2021, the trial court entered an order to incorporate the missing portions of the
record. The case was then docketed to the term of this Court beginning in
December 2021, and oral argument was heard on May 18, 2022.
2
County. A few days prior to Hill’s death, Brown, who was not
working at the time and needed money, overheard Hill saying that
he had “some guns and some money.”
On August 30, 2012, when Brown thought that Hill would be
out of town, Brown told Downer what Hill had said. The two men,
who were “doped up” on methamphetamine, dressed themselves in
dark-colored hoodies and gloves to “black[]” themselves out, and
Brown drove them to Hill’s home in Joyce’s white Chevrolet
Cavalier. Brown brought a knife and a baseball bat that he kept in
a shed on his property. They arrived around 2:00 a.m. after parking
down the street and walking through Hill’s backyard.
Brown picked the lock to Hill’s back door with his driver’s
license. Downer tripped as he entered the home, and Hill – who was
not out of town – immediately came out of his bedroom. Hill moved
toward Brown to grab him, and Brown shoved Hill back toward the
bedroom. After Downer hit Hill twice with the bat, Hill lay moaning
for a couple of minutes. Meanwhile, Brown rummaged through the
home and took Hill’s wallet, a weed eater, a couple of rings, and a
3
jar of change and brought the items to the car. When he returned,
he saw Hill lying face down on the floor, apparently deceased, with
Downer standing over him. At Downer’s direction, Brown pulled the
car to the side of the road in front of Hill’s house, opened the vehicle’s
trunk, and entered the back door where Downer had already
positioned Hill’s body. The two men carried Hill’s body to the trunk
of the car.
They drove back to Brown’s home because they “didn’t know
where else to take [Hill]” and backed the car up to a “burn pit”
located about 40 yards behind the house, next to a shed that Brown
used as a “shop.” Around 4:00 a.m., they put Hill’s body inside the
pit, “threw some tires on him and some gas and set them on fire.”
They also burned the clothes they were wearing. The fire burned
until approximately 8:00 a.m. when Brown and Downer put water,
wood chip shavings, and dirt on the fire to extinguish it. Brown took
Hill’s rings to a store but was unsuccessful in selling them, so he
gave one to Downer in exchange for marijuana and the other one,
along with the weed eater, to an acquaintance in exchange for
4
methamphetamine. 2 Brown then returned to his home, consumed
more drugs, and covered Hill’s body with more wood shavings.
Brown did not see Downer again until around midnight the next
day, August 31, when they smoked more methamphetamine
together. In the days following Hill’s death, Brown lit several fires
in the burn pit in an attempt to get rid of the body and the smell,
using gasoline, kerosene, and “anything he could think [of].” Brown
also took the carpet out of the car they used to transport Hill’s body
and vacuumed and cleaned the car using bleach. Brown admitted at
trial that he gave several conflicting stories to officers.
Jamie testified that on August 29, the day before Hill’s death,
he towed Downer’s camper to someone else’s nearby property after
an altercation with Downer over money. Jamie explained that,
earlier that day, Downer, Brown, and Joyce were riding in a car that
ran out of gas. Downer refused to use his own money to buy gas, so
2The acquaintance testified at trial that he paid $20 in cash for the weed
eater and denied receiving a ring from Brown or giving Brown any drugs. The
parties later stipulated that officers seized two rings from Downer when he
was arrested.
5
Jamie was forced to bring the group his last seven dollars to
purchase gas so that they could get back home. The following day,
just after Hill’s death, Brown gave Jamie cash to pay him back for
the gas he had purchased. Jamie also saw Brown give five dollars to
Joyce. Jamie thought it was suspicious that Brown “had a wad of
cash,” which Brown told him he found in an abandoned house.
In the following week, Jamie’s suspicions grew when he noticed
the “[m]ost horrible smell you’ll ever smell in your life” on the
property. Jamie questioned Brown about the smell, and Brown told
him it was a dead animal. However, when Jamie asked Brown to
help him find and move the dead animal, Brown refused to show him
where the animal was located. Jamie also found it suspicious that
Downer and Brown built up the burn pit “all the sudden” beside the
shed, putting concrete blocks around the pit, and mounted a light on
the shed that pointed directly at the burn pit. He also observed both
Downer and Brown burning “stuff” in the pit, which was smoldering
each day he returned home from work that week. He specifically saw
Brown “messing” with the burn pit and occasionally saw Downer on
6
the property during this time. At some point, Joyce told him that
Brown was “emotionally upset” and had told her “that he was going
to go to hell because him and [Downer] had buried a man outside
the shed.”3 Jamie shared this information with his brother, and they
decided to confront Brown while Downer was not there. Brown
initially denied the allegation, but when Jamie and his brother
started digging in the fire pit, Brown confessed that Hill’s body was
located in the pit. Jamie immediately called the police, and Brown
was arrested the same day, September 5, 2012.
Sergeant Matthew Wurtz, who was assigned to respond to the
missing persons report that had been filed for Hill, 4 was the first
officer to arrive at Brown’s home. Based on what Jamie told him,
3 Brown later testified that a few days before his arrest he “broke down
to [his] wife and . . . told her about [him] and [Downer] breaking in to the house
and [Hill] being killed.” (Although Joyce and Brown were not formally married
at the time of the crimes, Jamie testified that they were married at the time of
Downer’s trial.)
4 After Hill’s friends and pastor were unable to contact him for a few
days, Hill’s pastor filed a missing persons report on September 4. In response,
an officer asked Hill’s landlord to let him into Hill’s home, but, after a brief
search, the officer did not see anything out of place.
7
Sergeant Wurtz read Brown his rights under Miranda 5 before
speaking with him and examining the burn pit, where he discovered
“a pile of stuff that was surrounded by concrete block[s] kind of in a
circular shape where stuff had been burning.” The burn pit smelled
distinctly of burnt flesh and was still smoldering. Officers discovered
a charred and muddy skull with brain matter, loose bones with flesh
and muscle tissue attached, and a metal VFW card with Hill’s name
on it. In the nearby shed, officers found a black and gold Louisville
Slugger baseball bat with dark stains that were later confirmed to
be Hill’s blood. Officers impounded the white Chevrolet, which had
dark stains in the trunk, and which smelled strongly of a household
cleaner.
An examination of Hill’s home revealed an area where blood
had pooled at the bedroom door, bloodstains consistent with
dragging someone through the home to the back door, a blood stain
on Hill’s bed that seeped through the sheets and into the mattress,
5 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
8
and wipe marks of blood on the bedroom wall. An autopsy of Hill’s
remains, confirmed via DNA testing, indicated that the cause of
death was blunt force trauma to the head that occurred around the
time of his death, before his body was burned by fire. An additional
examination by an expert in forensic anthropology and traumatic
analysis of human remains also showed that injuries to Hill’s skull
and jaw were consistent with blunt force trauma due to the
depressed nature of the fractures.
Downer was located and arrested on September 6, 2012, and
during his initial custodial interview, Downer stated that the Army
ring he was wearing was given to him by Brown, which he tried to
sell at a pawn shop. Downer denied killing Hill or participating in
the crimes, but he admitted that he put mulch on the burn pit with
Brown and moved the cinderblocks around the perimeter of the burn
pit. During a second interview on September 11, 2012, Downer again
denied any involvement with Hill’s death. 6 However, he also made
statements that he and Brown used drugs together; that he was at
6 Video recordings of both interviews were played at trial.
9
Brown’s mother’s house two or three weeks before the murder; that
he helped Brown unload two car loads of mulch the past Tuesday or
Sunday using Brown’s white car; that Brown then burned the
mulch; that Brown “probably” put the body in the burn pit on
Tuesday night; that he saw smoke coming out of the burn pit on
Monday; and that he burned his clothes in the burn pit.
A search of Downer’s cell phone showed that someone texted
Downer on the evening of September 5: “don’t come here the law is
everywhere GBI too,” and cell phone records showed that Downer
then called Brown several times that night, beginning at 9:56 p.m.,
and several times again on September 6. Joyce testified that one
evening around the time that he moved off their property, 7 Downer
called Brown. Brown then told her that he was going to meet Downer
at the store. Sometime later that evening after midnight, she saw
three men, including Downer, in her car backing up to the burn pit.
1. Downer argues that the evidence was insufficient to sustain
his convictions as a matter of Georgia statutory law because Brown’s
7 Joyce could not recall the exact date.
10
testimony was not corroborated by “credible evidence.” We disagree.
Although “[t]he testimony of a single witness is generally
sufficient to establish a fact,” in “felony cases where the only witness
is an accomplice,” corroborating evidence is required to support a
guilty verdict. OCGA § 24-14-8. See also Edwards v. State, 299 Ga.
20, 22 (1) (785 SE2d 869) (2016). “Whether accomplice testimony has
been sufficiently corroborated is a question for the [fact-finder], and
even slight corroborating evidence of a defendant’s participation in
a crime is sufficient.” Williams v. State, 313 Ga. 325, 329 (1) (869
SE2d 389) (2022).
Downer argues that his convictions stem entirely from the self-
serving and changing testimony of his co-indictee and that the
State’s attempt to corroborate Brown’s testimony failed to provide
independent corroboration of Downer’s participation in the crimes.
However, this argument ignores the evidence from multiple
independent sources showing Downer’s involvement in the crimes.
Joyce testified that Downer called Brown one evening around the
time that Downer moved off their property and that she then saw
11
Downer in the car with Brown, backing up to the burn pit in the
middle of the night. Jamie testified that shortly after he moved
Downer’s camper, Brown and Downer built up a burn pit and burned
things in the pit all week, with a “horrible smell” that became worse
over time. When Downer received a text message that police officers
were “here,” he made multiple calls to Brown. And at the time
Downer was arrested, he was wearing Hill’s Army ring. In addition,
Downer’s own statements included admissions that he helped build
the pit, put mulch on the pit, and burned his clothes in the pit
following Hill’s death. 8 We conclude that this evidence provided
corroboration of Brown’s testimony and supported Downer’s
participation in the crimes for which he was convicted. See
Montanez v. State, 311 Ga. 843, 849 (1) (b) (860 SE2d 551) (2021)
(“The necessary corroboration may consist entirely of circumstantial
evidence, and evidence of the defendant’s conduct before and after
8 Although we conclude in Division 2 below that Downer’s statements
were properly admitted at trial, in determining the sufficiency of the evidence,
we consider all of the evidence that was admitted at trial, even if it is argued
that certain evidence should have been excluded. Cf. Grier v. State, 313 Ga.
236, 240 (2) (869 SE2d 423) (2022).
12
the crime was committed may give rise to an inference that he
participated in the crime.” (citation omitted)); McCammon v. State,
306 Ga. 516, 519-20 (1) (b) (832 SE2d 396) (2019) (“The evidence
need not be sufficient in and of itself to warrant a conviction, so long
as it is independent of the accomplice’s testimony and directly
connects the defendant to the crime or leads to the inference of
guilt.” (cleaned up)).
Although Downer points to several apparent inconsistencies in
the State’s evidence, on appeal “[w]e leave to the [fact-finder] the
resolution of conflicts or inconsistencies in the evidence, credibility
of witnesses, and reasonable inferences to be derived from the facts.”
Smith v. State, 308 Ga. 81, 84 (1) (839 SE2d 630) (2020). Also,
Downer points to the lack of evidence tying him directly to the
murder weapon, but the evidence as described above was more than
sufficient to corroborate that Downer participated in and aided
Brown in the crimes and thus was at least a party to the crimes for
which he was convicted. See Daniels v. State, 306 Ga. 559, 561-62
(1) (832 SE2d 372) (2019) (although appellant’s accomplice was the
13
person who shot the victim, the evidence was sufficient to show
appellant participated in the crimes and shared criminal intent);
OCGA § 16-2-20 (a) (“Every person concerned in the commission of
a crime is a party thereto and may be . . . convicted of commission of
the crime.”). Accordingly, this enumeration fails.
2. Downer asserts that the trial court erred in failing to
suppress his custodial statements. We are not persuaded.
“In deciding the admissibility of a statement during a Jackson-
Denno[ 9] hearing, the trial court must consider the totality of the
circumstances and must determine the admissibility of the
statement under the preponderance of the evidence standard.”
Munn v. State, 313 Ga. 716, 726-27 (7) (873 SE2d 166) (2022)
(citation and punctuation omitted). To the extent that the
“controlling facts are not in dispute, such as those facts discernable
from a videotape, our review is de novo.” Ellis v. State, 312 Ga. 243,
247 (1) (862 SE2d 279) (2021) (citation and punctuation omitted).
“On the other hand, to the extent that legally significant facts were
9 See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
14
proved by evidence other than the video recording, the trial court as
fact-finder was entitled to determine the credibility and weight of
that other evidence.” State v. Abbott, 303 Ga. 297, 299 (1) (812 SE2d
225) (2018).
After Downer was arrested on the afternoon of September 6,
Special Agent Laura Goza of the GBI began interviewing Downer
around 1:10 p.m. The interview, which was video- and audio-
recorded, was played at the Jackson-Denno hearing. It is undisputed
that the recording showed that when Agent Goza attempted to
explain why she was interviewing him, Downer immediately began
talking. Agent Goza repeatedly asked him to stop talking and listen
to her explanation of the waiver of rights form. Agent Goza was
eventually able to explain the form and advise Downer of his rights
under Miranda, including the right to an attorney and the right to
remain silent. Throughout this exchange, Downer continued to
make statements regarding the allegations against him. At one
point, he asked if he needed a lawyer to go over the form. Agent Goza
read to him from the form that he had the right to an attorney and
15
that he would be agreeing to speak with her without an attorney and
that he was not required to sign the form. Downer replied, “I don’t
mind talking to you ma’am. I don’t mind talking, I have no problems
with that. I understand.” After approximately an hour, Downer
suddenly asked, “Hey, can I get Henry Simmons in here?” When
Agent Goza found out that Simmons was a lawyer, she asked
Downer whether he wanted to have an attorney during questioning.
Downer replied, “I don’t need one. I haven’t done nothing. I don’t
need one.” The interview then concluded a little more than an hour
later.
On September 10, 2012, while in custody following the first
interview and after he had been appointed counsel, Downer was
seen by the jail nurse. He asked the nurse to write down several
statements protesting his innocence. He also told her that he wanted
to speak with investigators and that she should write down his
request. The nurse provided her handwritten notes of this
conversation to the Sheriff’s Department, which relayed the request
to the GBI. On September 11, Agent Goza returned to interview
16
Downer. This interview was also video- and audio-recorded and
played at the Jackson-Denno hearing. 10 During that interview,
Downer initially denied telling the nurse that he wanted to speak
with investigators, but then told Agent Goza that he was glad she
was there because he had information that could prove where he was
around the time of Hill’s death. Downer acknowledged that his
attorney told him not to talk with the agents, but he immediately
began discussing his various alibis. Then, after reviewing his rights
under Miranda and agreeing to speak with her again, Downer
answered questions from Agent Goza and another GBI special
agent.
Dr. Marlyne Israelian, who conducted several tests to assess
Downer’s intellectual and cognitive function, testified at the
Jackson-Denno hearing that Downer had a brain injury due to a
2009 bike accident “that selectively impacts the areas of his brain
that govern and rule language, reasoning, thought, sequencing,
10 The final portion of this interview was only audio-recorded and was
played for the trial court. The trial court also heard testimony from Agent Goza
and the jail nurse.
17
planning, [and] organization” and that he suffered from these
deficits at the time he was interacting with officers in this case. Dr.
Israelian opined that the Miranda waiver of rights form Downer
signed “involved piecing together multiple concepts and then
making this decision based on judgment and reasoning and
perspective in an accurate assessment of one’s ability or disability,
and the potential risk or benefit of proceeding. So it’s a quite complex
problem.” She concluded that, because of his cognitive deficits, he
would have had a very difficult time asserting or reasserting his
rights unequivocally. Following the hearing, the trial court issued
an order suppressing only that portion of Downer’s first statement
given after Downer asked for a certain attorney by name.
(a) Downer argues that the trial court should have suppressed
the entire first interview because (1) he unambiguously invoked his
rights under Miranda at the beginning of the interview, before
Agent Goza even read him those rights, and (2) his mental
disabilities prevented him from voluntarily, knowingly, and
intelligently waiving his rights under Miranda.
18
However, the record shows that the trial court did not err when
it determined otherwise. The video recording shows that as Agent
Goza started to explain why she was there, Downer immediately
began talking, despite her attempts to stop him and explain the
Miranda form. The following exchange then occurred:
GOZA: Okay. But I want to fill this out first. Go over
this with you.
DOWNER: In the end, I won’t even convict him first, for
accusing me of something. I mean I don’t care if he did. I
mean, I do care. But if he didn’t do it and he’s still putting
me in there with him, because that’s the way he is.
GOZA: What do you mean if he didn’t do it?
DOWNER: Look I mean I’m avoiding him, and avoiding
him, and I’m avoiding him. I avoided him every day ‘cause
the only thing that he’s been using me for is, you know I
had a little bit of money. And I spent it trying to help him
and his wife and Jamie. Now if you don’t believe me, go to
Jamie. [Brown] is so full of crap you . . . [unintelligible].
GOZA: I talked to Jamie.
DOWNER: Right. That’s all I’ve got to say [crosstalk]
GOZA: Okay. So listen, can you read and write?
DOWNER: Yes ma’am. Yes ma’am.
At that point, Agent Goza continued explaining Downer’s rights
under Miranda, and Downer replied that he did not “mind talking
to [Agent Goza].” And when Agent Goza cautioned, “Okay. I don’t
want you to sign anything you don’t want to sign,” Downer replied,
19
“Well no, because I don’t care. I’m good.”
It is well settled that “[p]olice must scrupulously honor a
suspect’s right to remain silent if the person clearly and
unambiguously states that he wants to end a custodial
interrogation.” Causey v. State, 307 Ga. 147, 148 (2) (834 SE2d 857)
(2019) (citations and punctuation omitted). However, “if a defendant
equivocates in asserting the right, a police officer is under no
obligation to clarify or to stop questioning.” Id. at 149 (2) (citations
and punctuation omitted).
Here, although Downer points to his statement, “That’s all I’ve
got to say” as an unambiguous request to end the interview, the trial
court specifically found that, based on its review of the video,
Downer’s body language, tone, and cadence of his speech, and the
context in which the statement was made, would cause a reasonable
officer to interpret that statement to mean, “That’s all I’ve got to say,
about that.” (Emphasis in original.) 11 In particular, the trial court
In context, it is clear that “about that” refers to Downer’s belief that
11
Brown was using Downer because of his money. We also note that elsewhere
20
concluded that Downer was “attempting to explain his distrust of
Brown” and that nothing in Downer’s speech or manner at that time
indicated that he intended to convey a wish to terminate the
interview. Because the video recording supports the trial court’s
findings, we cannot say that the trial court erred in making that
determination. See Causey, 307 Ga. at 150 (2) (appellant did not
clearly and unambiguously invoke right to remain silent where, in
spite of making statements that he wanted to leave, appellant
“never stopped engaging officers in conversation, even after being
told repeatedly that he did not have to talk to authorities”).
Downer also argues that he only capitulated in waiving his
rights under Miranda and continued speaking with Agent Goza
because he suffers from significant brain damage and that,
therefore, his statements were not given voluntarily, knowingly, and
intelligently. However, as the trial court noted in its order, “a
in its order granting in part and denying in part Downer’s motion to suppress,
the trial judge explained that he had listened to this portion of the interview
multiple times and that, although the audio quality is poor, particularly where
Agent Goza and Downer are speaking over each other, he understood Downer
to say “That’s all I’ve got to say right there.”
21
defendant’s alleged cognitive impairment is not dispositive on the
question of voluntariness but is one factor for the trial court to
consider in the context of the totality of the circumstances
surrounding a statement and a waiver of Miranda rights.” Barrett
v. State, 289 Ga. 197, 199 (1) (709 SE2d 816) (2011). “And whether
a defendant lacks the capacity to understand and waive such rights
due to a mental deficiency . . . is a question of fact for the trial court
to determine.” Id. In addition to Dr. Israelian’s testimony, the trial
court also considered that Downer had expressed a clear
understanding of his rights under Miranda and concluded that
Downer had sufficient mental capacity under Georgia law to waive
his rights under Miranda and did, in light of the totality of the
circumstances, voluntarily, knowingly, and intelligently waive those
rights. And the record shows that Downer appeared to understand
the questions posed to him and responded accordingly, even though,
as found by the trial court, Downer “was hard to understand at
times.”
Viewed in this context, we cannot say that the trial court’s
22
determination was clearly erroneous. See Abbott, 303 Ga. at 299 (1);
Height v. State, 281 Ga. 727, 729 (2) (642 SE2d 812) (2007)
(affirming denial of motion to suppress under a clearly erroneous
standard where trial court considered conflicting evidence of
defendant’s mental capacity and concluded that defendant
understood his rights and the consequences of waiving them).
(b) With respect to the second interview, Downer argues that
the trial court’s conclusion that Downer reinitiated contact with the
GBI agents prior to his second statement was incorrect as a matter
of both fact and law. Specifically, Downer argues that when he was
brought back to speak with Agent Goza, he clearly denied initiating
contact. Relying on Maryland v. Shatzer, 559 U.S. 98 (130 SCt 1213,
175 LE2d 1045) (2010), Downer argues that the investigators should
have immediately cut off questioning at that point since Downer had
invoked his right to counsel on September 6, was appointed a lawyer
at his first appearance, 12 and told the investigators directly that he
12 Sometime between September 6 and September 10, Downer secured
counsel through the Mountain Judicial Circuit’s Office of the Public Defender.
23
did not ask to speak to them.
However, the trial court was authorized to credit the written
statement and testimony of the nurse over that of Downer and to
determine that, despite his initial denial, Downer had requested to
speak with officers and immediately thereafter expressed a desire to
speak with them. See Love v. State, 309 Ga. 833, 838 (2) (848 SE2d
882) (2020) (affirming denial of motion to suppress where trial court
credited the testimony of officers over defendant’s). In addition, the
trial court determined that the officers again reviewed Downer’s
rights under Miranda and that Downer expressed his
understanding of those rights before waiving them and agreeing to
speak with the officers without his attorney present. See Whitehead
v. State, 308 Ga. 825, 829 (2) (842 SE2d 816) (2020) (trial court did
not err in admitting defendant’s custodial statement where, after
initially invoking right to remain silent, defendant immediately
changed his mind and expressed a desire to talk about a shooting).
And because the trial court did not err by concluding that Downer
initiated further conversation with officers after invoking his right
24
to counsel, Shatzer does not apply. See Bell v. State, 305 Ga. 707,
710-11 (3) n.6 (827 SE2d 665) (2019) (explaining Shatzer involved
police-initiated interrogations that occurred after the defendant had
invoked his right to counsel and after a break in custody).
Downer also argues, in the alternative, that the trial court
erred in not suppressing that portion of the second interview
following Downer’s repeated references to his lawyer. However, the
trial court concluded, and the video recording supports, that Downer
actually stated several times that, although his attorney would not
want him to speak to the investigators alone, he wanted to speak
with them against that advice, which Downer demonstrated by
continuing to speak. Thus, we conclude that the trial court did not
err in determining that these statements were not a clear and
unambiguous request for counsel. See Dozier v. State, 306 Ga. 29, 35
(4) (b) (829 SE2d 131) (2019) (“[T]he mere mention of the word
‘attorney’ or ‘lawyer’ without more, does not automatically invoke
the right to counsel.” (citation and punctuation omitted)).
3. Downer asserts that the trial court erred in permitting two
25
of the State’s witnesses to testify as to hearsay statements.
When reviewing such evidentiary claims, “we accept a trial
court’s factual findings unless clearly erroneous and review a trial
court’s ultimate decision on the issue for an abuse of discretion.”
Morrell v. State, 313 Ga. 247, 251 (1) (869 SE2d 447) (2022).
(a) Downer first points to the following portion of Jamie’s
testimony on direct examination as double hearsay:
Q: And you talk about your suspicions raised and we’ve
talked about the activity and the blocks and the odor. Did
anything else happen that raised your suspicions even
more and led you to make this phone call?
A: Yes. My mother had come to me and, uh, she had said
– . . . that [Brown] had said to her, after he got emotionally
upset, that he was going to go to hell because him and
[Downer] had buried a man outside the shed.
Q: Now, as a result of being told that did you have some
conversation with other family members?
A: Yes, I went and talked to my brother about it. . . . We
decided that the best thing for us to do was to go confront
[Brown] about it because [Downer] was not around at that
time. So we confronted [Brown] about it, and at first he
denied [it]. So me and my brother was going to ease our
conscious [sic] and dig the fire pit up ourself.
When defense counsel objected to the portion emphasized above, the
trial court initially ruled that the prosecutor’s stated purpose of
26
“explain[ing] his conduct” was insufficient. After the prosecutor
argued, “I’m going into why he made the call to police and why his
suspicions rose to the point that he made the call to the police,” the
trial court overruled the objection.
Pretermitting whether each layer of alleged hearsay meets a
statutory exception to the hearsay rule, 13 the trial court accepted the
State’s proffer that the statement was being offered to explain why
Jamie called the police and not to prove the truth of the matter
asserted. Thus, the trial court concluded that the statement was not
hearsay. See OCGA § 24-8-801 (c) (defining hearsay as “a statement,
other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted”). And there is nothing in the record to indicate that the
trial court considered this testimony for a purpose that would have
implicated the hearsay rule. See Thomas v. State, 284 Ga. 540, 545
(2) (668 SE2d 711) (2008) (“At a bench trial such as this, the trial
13 See OCGA § 24-8-805 (“Hearsay included within hearsay shall not be
excluded under the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay rule.”).
27
court is presumed to have separated admissible evidence from
inadmissible evidence and considered only the former in reaching its
judgment.” (citation and punctuation omitted)). Accordingly, we
discern no abuse of discretion in the trial court’s admission of this
testimony. See Gomillion v. State, 298 Ga. 505, 506 (1) (783 SE2d
103) (2016) (no abuse of discretion in admitting witness’s testimony
explaining that he left after the shooting because someone told him
that the defendant had been looking for him where the trial court
instructed the jury that the statement was admitted not because it
may be true but to explain the witness’s conduct).
(b) Downer also argues that Joyce improperly testified to
statements that Brown made. During the State’s direct examination
of Joyce, the following exchange took place:
Q: . . . But let’s talk about this day that you’ve already
said you remember talking about [Downer] coming back
to the house.
A: Yes, he came and talked with us, sorry.
Q: Okay. That’s all right. And did [Downer] leave the
house by himself or did [Downer] and [Brown] leave the
house together that night?
A: At first I was thinking he was going to go home back to
the camper because I didn’t realize that [Jamie] had
28
moved the camper. Uh, [Downer] called my husband at
some point after that.
Q: Okay. And tell the Judge, if you would, how you know
[Downer] called your husband?
A: My husband picked up the phone and he told me who
that was. My husband told me.
...
Q: All right. After the phone call do you know how long it
was?
A: Yes.
Q: How long [Brown] was still at the house?
A: I don’t know, probably 15 minutes until he left and he
told me that he was going to the store, that he was going
to go see [Downer] at the store.
Q: When did you see [Brown] again?
A: Late.
When defense counsel objected, the State responded that
“[s]tatements made by the co-conspirator as to the subject of the
conspiracy are admissible. It doesn’t have to be in furtherance of the
conspiracy.” The trial court determined that Brown’s statements –
that Downer was on the phone and that he was leaving to meet
Downer – were admissible under three exceptions to the hearsay
rule: a statement by a co-conspirator (OCGA § 24-8-801 (d) (2) (E)),
an out-of-court statement by a testifying witness (OCGA § 24-8-801
(d) (1) (A)), and a present sense impression (OCGA § 24-8-803 (1)).
29
The trial court did not abuse its discretion in concluding that
Brown’s initial statement that he was on the phone with Downer as
he was speaking with him falls within the present sense impression
exception to the hearsay rule. “To be admitted under this exception,
the statement must describe or explain an event or condition that is
personally witnessed by the declarant and is essentially
contemporaneous to the statement.” Varner v. State, 306 Ga. 726,
731 (2) (a) (ii) (832 SE2d 792) (2019) (citation and punctuation
omitted). See also OCGA § 24-8-803 (1) (including as an exception to
the hearsay rule “[a] statement describing or explaining an event or
condition made while the declarant was perceiving the event or
condition or immediately thereafter”). Brown’s statement
identifying the person he was presently speaking to on the phone
satisfies these criteria.
With respect to the statement that Brown was leaving to meet
Downer at the store, Downer argues that the State failed to
establish a conspiracy and, thus, that this statement could not have
been made in the course of a conspiracy. OCGA § 24-8-801 (d) (2) (E)
30
provides in pertinent part:
Admissions shall not be excluded by the hearsay rule. An
admission is a statement offered against a party which is
. . . [a] statement by a coconspirator of a party during the
course and in furtherance of the conspiracy, including a
statement made during the concealment phase of a
conspiracy. A conspiracy need not be charged in order to
make a statement admissible.
Here, the trial court correctly noted these requirements and
specifically found that there was sufficient evidence to show that
Downer and Brown conspired to kill Hill. And in ruling that the
statement was admissible, the trial court also implicitly found that
the statement was in furtherance of that conspiracy. See Kemp v.
State, 303 Ga. 385, 393 (2) (b) (810 SE2d 515) (2018) (explaining
that, although “the trial court did not make any express factual
findings, . . . we can infer from its denial of the motions that it
implicitly found that the statements were made in the course of and
in furtherance of a conspiracy”).
When reviewing a trial court’s ruling regarding the
admissibility of such evidence, “we accept the trial court’s factual
findings, such as whether a statement was made in furtherance of a
31
conspiracy, unless they are clearly erroneous.” Golden v. State, 310
Ga. 538, 545 (3) (852 SE2d 524) (2020) (citation omitted). In
addition, “[w]e apply a liberal standard in determining whether a
statement is made in furtherance of a conspiracy, and statements
that further the interests of the conspiracy in some way meet this
standard.” Kemp, 303 Ga. at 393 (2) (b).
Based on our review of the record, we cannot say that the trial
court’s findings were clearly erroneous. At the time Joyce testified,
the State had already established the sequence of events and
provided direct testimony from Brown that Downer was involved in
a conspiracy to rob and murder Hill, and as explained in Division 1,
Brown’s testimony was sufficiently corroborated as a matter of
Georgia law. And in applying the appropriate standard in
determining whether this statement was made in furtherance of the
conspiracy, we conclude that Brown’s statement – concerning the
reason he was leaving the house on the trip that ultimately
culminated in Hill’s murder – could be construed to show that Brown
and Downer spoke on the phone in order to make a plan to meet and
32
carry out the crimes at issue and that Brown told Joyce he was
meeting Downer at the store in order to conceal his true intent for
leaving the house that night. Accordingly, the trial court did not
clearly err in admitting this portion of Joyce’s testimony. See Mosley
v. State, 307 Ga. 711, 717 (3) (a) (838 SE2d 289) (2020) (“given the
liberal standard applied to this inquiry, it was not clearly erroneous
for the trial court to conclude that [the coconspirator’s] statement
that [the defendant] shot [the victim] was made in furtherance of
the conspiracy”).
4. Downer argues that the State withheld evidence that could
have been used to impeach “its two most critical witnesses” in
violation of his due process rights under Brady v. Maryland, 373
U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963). Specifically, Downer
asserts that the State arranged for a wedding for Brown and Joyce
in December 2013, in a building adjacent to the Habersham County
jail, in exchange for Brown’s guilty plea and agreement to testify
against Downer at trial. Downer learned of the wedding post-trial
and included this claim in his motion for new trial. At the second
33
motion for new trial hearing, an email from Brown’s attorney to the
district attorney’s office was admitted that stated:
[Brown], it seems, is hoping for a couple of things to
happen before he entered a plea. One, he would like to re-
marry his ex-wife. To this end I spoke with Sheriff Terrell
today and he said while this isn’t something he’d normally
allow, that if it would help resolve the case he could allow
a low-key wedding at the jail.
The State responded, stating that “he can at any time take the death
penalty off the table by accepting responsibility and pleading” and
“we don’t have any problem with reasonable accommodations that
the Sheriff can live with that would make it possible for Brown to do
the right thing.” One of Brown’s attorneys testified at the hearing
that he was present at the wedding, which Brown’s relatives also
attended. The Sheriff testified that he spoke with the State about
arranging the wedding, explaining that “after a short conversation
about [how] he was trying to work out something so he would move
his case on through and get him out of our jail[,] . . . I finally g[a]ve
in and said we would allow it to happen, a short ceremony with just
a couple of folks to be present.” The trial court agreed that the State
34
failed to disclose material impeaching evidence but determined that
disclosure would not have changed the result of the trial.
To prevail on a Brady violation claim, a defendant must show:
(1) the State possessed evidence favorable to his defense;
(2) he did not possess the favorable evidence and could not
obtain it himself with any reasonable diligence; (3) the
State suppressed the favorable evidence; and (4) had the
evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the trial would have
been different.
Harris v. State, 313 Ga. 653, 664 (5) (872 SE2d 732) (2022) (citation
and punctuation omitted). “To establish the fourth prong, often
referred to as materiality, a defendant does not need to show that he
necessarily would have been acquitted, but only that the State’s
evidentiary suppression undermines confidence in the outcome of
the trial.” Anglin v. State, 312 Ga. 503, 510 (2) (b) (863 SE2d 148)
(2021). On appeal, we review a trial court’s factual findings
regarding a Brady claim for clear error but review de novo the
court’s application of the law to the facts. See Harris, 313 Ga. at 664
(5).
Here, Downer argues that, in determining that no reasonable
35
probability exists that the outcome of the trial would have been
different, the trial court improperly limited its reasoning to the
impeachment value of the evidence as to Brown and failed to
consider its value as to impeaching Joyce as well and that Downer
was entitled to cross-examine Joyce on the fact that she had recently
married Brown and whether and to what extent she would be willing
to lie for Brown. We agree with the trial court that Downer has
satisfied the first three prongs of a Brady violation. 14 See Giglio v.
United States, 405 U.S. 150, 154-55 (92 SCt 763, 31 LE2d 104) (1972)
(the suppression of impeachment evidence that may be used to
challenge the credibility of a witness may constitute a Brady
violation). However, in order to address the fourth prong, “we must
evaluate [the withheld] evidence in the context of the entire record.”
Chavez v. State, 307 Ga. 804, 813 (3) (837 SE2d 766) (2020) (citation
and punctuation omitted).
The record shows that when Brown and Joyce testified at trial,
14 The trial court specifically noted that, based on the evidence and
testimony presented, Downer could not have known that a marriage ceremony
was a part of the plea negotiations.
36
they consistently referred to each other as husband and wife. Joyce
also testified that at the time Downer was living on her property,
she and Brown were not “ceremonially married” but were “living
together, which is kind of the same.” And Jamie testified that Brown
was “now married to [his] mother.” During his initial interview with
Agent Goza, Downer himself referred to Joyce as Brown’s wife.
Thus, Downer’s counsel had the opportunity to cross-examine Joyce
about the nature of her relationship with Brown but chose not to. 15
See Morris v. State, 284 Ga. 1, 3 (2) (662 SE2d 110) (2008) (no Brady
violation where undisclosed evidence was consistent with other
evidence the State had already presented to the jury and was
therefore not outcome determinative). Moreover, the most damaging
portion of Joyce’s testimony for Downer was the statement that she
saw three men, including Downer, back a car up to the burn pit,
though she could not recall the date. But Downer’s participation in
the crimes was corroborated by witnesses other than Joyce, as well
as his own statements and conduct after the crimes.
15 Downer’s counsel elected not to cross-examine Joyce at all.
37
On the other hand, the State’s primary witness against Downer
– Brown – was thoroughly cross-examined and impeached, such that
the trial court “did not give substantial weight to Brown’s testimony,
as [the trial court] did not find him to be a very credible witness.”
And, as noted by the trial court, “Brown received a far more valuable
benefit in exchange for his testimony, which was disclosed and used
by the Defendant during the course of the trial to illustrate Brown’s
motivation for testifying.” Recognizing that Brown had been
thoroughly impeached, the trial court specifically stated in its order
that the disclosure of the wedding ceremony and the use of it to
further impeach Brown would not have changed the court’s
determination of Downer’s guilt. Thus, Downer cannot meet his
burden of showing the fourth prong – that the outcome of the trial
would have been different had the State properly disclosed evidence
of the wedding ceremony. See Hood v. State, 311 Ga. 855, 864 (1)
(860 SE2d 432) (2021) (although full scope of witness’s “possible
incentives to cooperate with the State was not made known to the
jury, the jury was nonetheless aware there was reason to regard his
38
testimony with skepticism” and defendant was therefore unable to
establish the fourth Brady prong); United States v. Tellechea, 478 F.
App’x 605, 608 (IV) (11th Cir. 2012) (“The mere possibility that an
item of undisclosed information might have helped the defense or
might have affected the outcome of the trial does not establish
‘materiality’ in the constitutional sense.” (citation and punctuation
omitted)); United State v. Bowe, 426 F. App’x 793, 799 (III) (B) (1)
(11th Cir. 2011) (no Brady violation where the alleged content of the
undisclosed evidence would have offered some probative value for
impeachment purposes, but did not rise to the level of materiality
under Brady); United States v. Noriega, 117 F.3d 1206, 1220 (IV) (A)
(11th Cir. 1997) (“Because there is independent corroborating
evidence of the guilt of the defendants, there is no reasonable
probability that the result of the trial would have been different had
the undisclosed impeachment material been disclosed prior to trial.”
(citation and punctuation omitted; emphasis in original)).
Accordingly, this enumeration of error fails.
5. Downer maintains that the trial court erred in denying his
39
post-trial motion for DNA testing. We disagree.
OCGA § 5-5-41 (c) (3) provides that a defendant is entitled to
post-conviction DNA testing if he meets, in addition to other
procedural conditions not at issue here, each of the following
requirements:
(A) Evidence that potentially contains [DNA] was
obtained in relation to the crime and subsequent
indictment, which resulted in his or her conviction;
(B) The evidence was not subjected to the requested DNA
testing because the existence of the evidence was
unknown to the petitioner or to the petitioner’s trial
attorney prior to trial or because the technology for the
testing was not available at the time of trial;
(C) The identity of the perpetrator was, or should have
been, a significant issue in the case; [and]
(D) The requested DNA testing would raise a reasonable
probability that the petitioner would have been acquitted
if the results of the DNA testing had been available at the
time of conviction, in light of all the evidence in the case.
See also De La Cruz v. State, 303 Ga. 24, 32-33 (7) (810 SE2d 84)
(2018) (defendant may be entitled to post-conviction DNA testing if
he meets all of the statutory requirements listed in OCGA § 5-5-41
(c) (3), (4), and (7)).
The record shows that four days before trial began, the State
40
disclosed a GBI lab report with the results of DNA testing on the
baseball bat recovered from the shed on Brown’s property. The
report, dated March 21, 2013, indicated that the sample taken from
the bat contained the DNA profile of two individuals, the victim and
an unknown person. Downer filed a post-trial motion for DNA
testing pursuant to OCGA § 5-5-41. At a hearing on the motion, Jami
Harman testified as an expert in DNA testing. She explained that
the GBI took four swabs from the wide end of the bat, that the
remaining swabs could still be tested, and that the GBI never
conducted any DNA testing on the handle end of the bat because the
test kits available at that time could not cut through the chemicals
used during their latent fingerprint testing. However, newer test
kits would enable an analyst to test the handle end of the bat for
DNA despite the presence of chemicals from the previously-
conducted fingerprint testing. Harman testified that newer testing
may also yield a more “discriminating result” regarding the identity
of the second DNA contributor on the wide end of the bat. Harmon
acknowledged that testing would not be able to determine when or
41
how any particular DNA was deposited on the bat. The trial court
denied the motion, finding that Downer had failed to show a
reasonable probability that the DNA evidence would call into
question the court’s confidence in the verdict.
Because Downer could have been convicted of armed robbery
and felony murder predicated on burglary as a party to those crimes,
whether Downer actually used the bat to strike the fatal blows was
not required to prove those crimes. At most, the lack of Downer’s
DNA on the bat could have been used to impeach Brown’s testimony
that Downer had beaten Hill with the bat. And the trial court was
already aware that there was no physical evidence linking Downer
to the bat, but nonetheless concluded that the weight of evidence
was sufficient to find Downer guilty as a party to the crimes for
which he was convicted. Thus, even if post-trial DNA testing would
have proven that Downer’s DNA was not on the bat, there is not a
reasonable probability that the results would have led to Downer’s
acquittal. Accordingly, the trial court did not abuse its discretion in
denying Downer’s motion. See De La Cruz, 303 Ga. at 33 (7) (trial
42
court properly denied motion for post-trial DNA testing where the
trier of fact had already been informed at trial that there was no
physical evidence linking the defendant to the crime scene and
defendant was therefore unable to show a reasonable probability
that he would have been acquitted had the DNA results been
available at the time of trial); Crawford v. State, 278 Ga. 95, 99 (2)
(b) (597 SE2d 403) (2004) (affirming trial court’s denial of post-trial
DNA testing where hypothetical DNA testing results, even if
assumed valid, would not in reasonable probability have resulted in
the defendant’s acquittal).
Judgment affirmed. All the Justices concur.
43