New Execution Date Set For Troy Anthony Davis Who Was Convicted Of 1989 Murder Of Savannah Police Officer Mark McPhail

Georgia Attorney General Thurbert E. Baker offers the following information in the case against Troy Anthony Davis, who is currently scheduled to be executed during the execution window starting at noon on October 27, 2008 and ending at noon on November 3, 2008.

Scheduled Execution

On October 15, 2008, the Superior CourtofChathamCounty filed an order setting the seven-day window in which the execution of Troy Anthony Davis may occur to begin at noon, October 27, 2008, and ending seven days later at noon on November 3, 2008.  The Commissioner of the Department of Corrections set the specific date and time for the execution for 7:00 pm on October 27, 2008.  Davis has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.

Davis’ Crimes

At approximately 1:00 a.m. on Saturday, August 19, 1989, Officer David Owens, of the Savannah Police Department, responded to a call of “an officer down” at the Greyhound bus station on Oglethorpe Avenue (T. 759)[1].   Officer Owens found the victim, Mark McPhail, 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 McPhail’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, which was frequented by transients and homeless individuals, 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 and two unidentified men were 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).  The two men seated on the wall fled, and 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, blindsighted him, striking him on the side of the face with a snub-nosed pistol, inflicting a severe head injury which formed the basis of Count III of the indictment.  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 McPhail, 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 McPhail 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 McPhail 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.

Thirty minutes after the killing, Red Coles appeared at his sister’s house a few blocks from the bus station.   Mr. Coles asked his sister for another shirt.  (T. 915).  Shortly thereafter, Davis appeared and asked Mr. Coles for the yellow t-shirt Coles had been wearing.  After he changed his shirt, Davis left.  (T. 915).  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 prior to 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 McPhail 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.

An autopsy revealed that Officer McPhail was shot twice.   One bullet entered the corner of his cheekbone on the left side and exited the back of his neck; the bullet blew away bits of his teeth, and his lip was impaled on his teeth.  (T. 782-784).  The second bullet passed through the armhole of McPhail’s bullet-proof vest, and entered his chest on the left side.  (T. 784).  This bullet pierced the lung and the aorta, and lodged in the opposite side between the third and fourth vertebrae, at the back of the chest cavity near the spinal column.  (T. 784-787).  The cause of the victim’s death was a loss of blood from a gunshot wound to the left side of his chest.  (T. 789).  The pathologist further noted that there were scrapes and lacerations on the victim’s arms and legs, and an apparent injury to his right thigh, which could have been grazed by a bullet.  (T. 788-789).

A ballistics expert testified that the bullet that wounded Michael Cooper could have been fired from a .38 special revolver or a .357 magnum.   (T. 1291).  The bullet from McPhail’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 McPhail’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 prior to the victim’s murder; Davis had argued with some boys 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 McPhail appeared, and Davis shot him in the face.  As Officer McPhail attempted to get up, Davis shot him again, because he was afraid McPhail 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 McPhail’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 indicted in the Superior Court of Chatham County, Georgia on November 15, 1989, for the murder of Officer Mark Allen McPhail.  On August 28, 1991, a jury 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 Direct Appeal (1992-1993)

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).  Davis’ motion for reconsideration was denied on March 23, 1993.  Davis filed a petition for writ of certiorari in the United States Supreme Court, which was denied on November 1, 1993.  Davis v. Georgia, 510 U.S. 950, 114 S.Ct. 396 (1993).  Davis’ petition for rehearing was denied on January 10, 1994.  Davis v. Georgia, 510 U.S. 1066, 114 S.Ct. 745 (1994).

 

State Habeas Corpus Petition (1994-1997)

Davis, represented by the Georgia ResourceCenter, 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. The state habeas corpus court noted “from a review of the record that many pieces of evidence supporting a finding that Coles was the shooter or highlighting inconsistencies in the testimony of the witnesses who identified Davis as the shooter were indeed presented to the jury during Davis’ trial.  (cite omitted).  The jury, in its rightful role as finder of fact during the trial, was responsible for evaluating the credibility of the witnesses and determining whether the state proved beyond a reasonable doubt that Davis shot and killed Officer McPhail.  This court, although acting now as the finder of fact in this habeas proceeding, cannot supplant the role of the jury and find based on its own review of the record that the jury should have concluded that the state did not carry its burden at Davis’ trial.  The core purpose of the writ of habeas corpus would not be served by such a presumptuous usurpation of the jury’s deliberative process.  This court is limited to evaluating whether Davis’ rights were properly protected in the context of his jury trial.” (State habeas corpus order of September 5, 1997, denying relief, page 41).

Davis’ application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was granted on February 24, 2000.   Specifically, the Court asked the parties to address the following issues: (1) whether execution by electrocution constituted cruel and unusual punishment under our Federal and State Constitutions; (2) whether imposition of the death penalty in this case was disproportionate to the penalty imposed in other similar cases in Georgia; (3) whether Petitioner’s appellate counsel operated under a conflict of interest; and (4) whether Petitioner’s absence during critical stages of his trial violated his rights under our Federal and State Constitutions.  Following briefing and oral argument, 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’ motion for reconsideration was denied on December 15, 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.)

The federal habeas corpus court denied a motion to alter and amend judgment on June 3, 2004.  The federal habeas corpus court denied Davis a certificate of appealability on July 20, 2004.

 

11th Circuit Court of Appeals (2004-2006)

The Eleventh Circuit granted Davis’ application for certificate of appealability on September 15, 2004.   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 panel rehearing on October 17, 2006, which was denied on December 13, 2006.

 

United States Supreme Court (2007)

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. 

 

New Execution Date Set (July 17, 2007)

On June 29, 2007, Chief Judge Perry Brannen, Jr. of the SuperiorCourtofChathamCounty filed an order, setting the seven-day window in which the execution of Troy Anthony Davis may occur to begin at noon, July 17, 2007, and ending seven days later at noon on July 24, 2007.

 

Extraordinary Motion for New Trial (2007)

On July 9, 2007, Davis filed a motion for stay of execution and an extraordinary motion for new trial.  The State of Georgia filed a motion to dismiss extraordinary motion for new trial on July 10, 2007, and a supplement to the motion to dismiss on July 12, 2007.  On July 13, 2007, an order was entered in the SuperiorCourtofChathamCounty denying Davis’s extraordinary motion for new trial.

 

Latest Proceedings before the Georgia Supreme Court and United States Supreme Court (2007-2008)

On July 16, 2007, Davis filed an application to appeal and motion for stay of execution in the Georgia Supreme Court.  The State of Georgia filed a response in opposition on July 16, 2007.  On August 3, 2007, the Georgia Supreme Court granted Davis’s application for discretionary appeal.  On August 6, 2007, the Board of Pardons and Paroles suspended consideration of Davis’s clemency petition until the Georgia Supreme Court considered his appeal.  Following briefing and oral argument, on March 17, 2008, the Georgia Supreme Court affirmed the trial court’s denial of Davis’s extraordinary motion for new trial.  Davis’s motion for reconsideration was denied April 14, 2008.  Davis filed a petition for writ of certiorari in the United States Supreme Court on July 14, 2008.  The State of Georgia filed a response in opposition on August 14, 2008.  A stay was entered by the United States Supreme Court on September 23, 2008 pending the Court's disposition of Davis's petition for writ of certiorari.  That petition was denied by the United States Supreme Court on October 14, 2008, and the stay by the United States Supreme Court was dissolved.