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Davis v. State

Alabama Court of Criminal Appeals

September 8, 2017

Emmett Leroy Davis
v.
State of Alabama

         Appeal from Cullman Circuit Court (CC-13-224)

          BURKE, JUDGE.

         Emmett Leroy Davis was convicted of one count of intentional murder, see § 13A-6-2(a)(1), Ala. Code 1975, and one count of felony murder (robbery), see § 13A-6-2(a)(3), Ala. Code 1975, resulting from the killing of Helen Mayo. Davis was sentenced to 99 years' imprisonment on each conviction; the sentences were ordered to run consecutively.

         Because Davis does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. On December 3, 2012, emergency personnel found 87-year-old Mayo with severe blunt-force trauma to the face inside her home in Cullman County. Mayo stated that she had been "pistol whipped" by a man that "had done work for [Mayo's neighbor] in the past." (R. 485.) Mayo also stated that the man wanted money for a "shot" for "his eye." (R. 486.) Mayo later died as a result of complications resulting from those injuries.

         Testimony established that, the day before the attack, Davis, who was known as a local handyman, visited several homes in the area seeking either employment or money. On that day, Davis's vehicle was seen parked in the driveway of Mayo's home. Based on Mayo's statements and on interviews from Mayo's neighbors, Davis was developed as a person of interest. After he was located, Davis attempted to flee from law enforcement. At the police station, Davis admitted to having an artificial eye that caused him pain.

         Physical evidence, including certain DNA evidence that matched the DNA profile of Davis, was recovered from the scene. Also, law enforcement recovered from Davis's home a pistol containing DNA evidence that matched the DNA profile of Mayo.

         I.

         Davis argues that the circuit court erred by denying his motion to suppress the DNA evidence obtained from his person. Specifically, Davis argues that the taking of his saliva was a "critical stage" of the proceedings and that, pursuant to Rule 16.2, Ala. R. Crim. P., he was entitled to the presence of counsel when the evidence was collected. (Davis's brief, pp. 43-44.)

         Before trial, the State filed a request for the production of Davis's saliva for the purpose of obtaining his DNA profile. Both the State's request for production and the circuit court's order permitting the seizure of a saliva sample from Davis were served on Davis and his trial counsel. There is nothing in the record showing that Davis filed an objection to the taking of the DNA swab.

         Rule 16.2(b), Ala. R. Crim. P., provides, in pertinent part:

"Upon motion of the state/municipality and solely in connection with the particular offense with which the defendant is charged, the court shall order the defendant to:
"....
"(6) Permit the taking of samples of defendant's hair, blood, saliva, urine, or other specified materials which involve no unreasonable intrusions into the body;
"....
"The defendant shall be entitled to the presence of counsel at the taking of such evidence."

         Initially, we note that Rule 16.2 does not require the presence of counsel, but merely permits an accused, upon request, to have counsel present at the taking of a saliva sample.

         Furthermore, Davis was not entitled to have counsel present at the execution of a search warrant permitting the collection of Davis's saliva as evidence. Here, the record shows that the taking of Davis's saliva in order to obtain his DNA profile occurred before the initiation of formal adversarial proceedings and, thus, was not a "critical stage" of his proceedings. Therefore, the circuit court did not err when it denied Davis's motion to suppress.

         Finally, error, if any, was harmless. Davis admits that the State also obtained a search warrant to collect his DNA profile via fingernail clippings and scrapings. See Rule 45, Ala. R. App. P. Accordingly, Davis is not entitled to relief on this issue.

         II.

         Davis argues that the circuit court erred by allowing the admission of State's Exhibits 68, 69, 70, 71, 72, and 122, all of which were photographic evidence. Specifically, Davis argues that there was a "missing link" in the chain of custody for the identified photographic evidence. (Davis's brief, p. 52.)

         At trial, an exchange occurred as follows:

"[Prosecutor]: I'm also going to show you some more pictures here. Me and [defense counsel] have already stipulated to State's Exhibits Number 67, 68, 69, 70, 71 and 72. I'll ask if you recognize these?
"(State's Exhibits Number 67 through 72 were marked for identification and admitted into evidence.)
"[Officer Martin]: Yes, I do.
"[Prosecutor]: What are those pictures of?
"[Officer Martin]: These are photos from what we're calling the foyer. Some of it is stains believed to ...

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