Appellant Brandon Harrington was convicted of the malice murder and armed robbery of Mamie Wright and related crimes. On appeal, he contends that the trial court erred in admitting his custodial interviews and that the evidence presented at trial was insufficient to support his conviction for armed robbery We agree with the latter contention and reverse Appellant’s armed robbery conviction. We also have identified a merger error made by the trial court in sentencing Appellant, and we therefore vacate the judgment in part and remand for Appellant to be sentenced for burglary. We otherwise affirm the trial court’s judgment.
1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On the morning of January 5, 2011, 72-year-old Mamie Wright went grocery shopping. At 10:43 a.m., she called 911, saying that she had found an intruder when she arrived home and that he had shot her and then fled. When paramedics arrived, they found Wright seriously wounded but alive and responsive, lying on her back on her bedroom floor. She had been shot twice, once in her neck and once in her chest. Wright said she did not know the intruder, whom she described as a black man wearing a red shirt and blue jeans. She was taken to the hospital, where she died later that day from internal bleeding caused by the bullet wounds. The bullet in her chest was recovered during her autopsy.
The GBI crime scene investigator testified that Wright’s trailer home appeared to have been burglarized. A window had been broken and raked out to allow someone to crawl through it. Wright’s bedroom had been ransacked, with drawers open, items overturned, two piggy banks opened and change strewn on the bed, and a rolled-up birth certificate on the floor. In addition, discarded Christmas wrapping paper was found on the living room floor. Three bullets were found at the scene — one in a chest in the bedroom, one in the doorway of the bedroom, and one under the trailer. The bullets were fired from a revolver, and analysis of the placement of these bullets and other bullet marks indicated that a total of five shots had been fired in the home. Analysis of bloodstains, which included one big and deep stain in Wright’s bedroom and several smaller transfer stains, indicated that one shot was fired almost straight down at the victim on the floor — an “execution type shot.” Bags of groceries were lying nearby, just inside the bedroom door.
Appellant lived in the housing complex across the street from Wright’s trailer, and he was interviewed initially as part of a general canvas of the area. He said that he had been home all day except for a trip to a convenience store around 10:30 a.m. Further investigation revealed that Wright owned a cell phone, which she had deactivated about six weeks earlier. The phone was reactivated on the day of the murder, January 5, and after five unsuccessful attempts, was assigned Appellant’s phone number and transferred
Investigators then searched Appellant’s house and his mother’s dark blue Buick SUV, which he drove sometimes. In Appellant’s house, they found a box with several different types of handgun ammunition, including .38 caliber cartridges, and a Wii video game console. Wright had kept in her home a Wii console wrapped in paper that looked like the paper found on her living room floor. In the SUV, investigators found a large shoebox containing a number of items linked to Appellant, including his NRA membership application and a digital scale with his thumbprint, and a number of items linked to Wright, including pins commemorating her service with the American Legion Auxiliary and her daughter’s work at the Atlanta Journal-Constitution, a decorative birth certificate holder, and micro-cassettes with her voice on them. The birth certificate found in Wright’s home fit in the decorative holder. The shoebox also contained a .32 caliber revolver, a .38 caliber revolver, .38 caliber ammunition, and cartridge cases from fired .38 caliber rounds.
Surveillance video from the housing complex where Appellant lived showed a black male wearing a large white jacket and dark pants walking through the complex from the direction of Wright’s home carrying two armloads of items at 9:51 a.m. The man walked into Appellant’s house at 9:52 a.m. At 10:25 a.m., he left Appellant’s house in a dark-colored SUV, returning at 10:41 a.m., two minutes before Wright’s 911 call. Surveillance footage from a nearby convenience store showed that Appellant, who is a black male, was there between 11:39 a.m. and 11:44 a.m., wearing a large white jacket and dark pants and driving an SUV matching the SUV from the housing complex video.
Appellant spoke to investigators in two video recorded custodial interviews, both of which were played for the jury over his objection. In these statements, as in his initial, non-custodial statement, Appellant claimed that the only time he left his house on the day of the murder was to go to the store around 10:30 a.m. Although he denied any involvement in the crimes, in the second interview he acknowledged his possession of Wright’s cell phone and the items found in the SUV; he claimed that he bought the phone from a crack addict and found the other items. The State also presented similar transaction evidence that Appellant had committed two other burglaries near the housing complex where he lived, stealing military service pins and cell phones from one residence and jewelry from another.
2. (a) Appellant contends that the evidence presented at trial was legally insufficient to support his conviction for armed robbery We agree. The indictment alleged that Appellant committed armed robbery in violation of OCGA § 16-8-41 by “unlawfully tak[ing] a . . . cell phone... from the immediate presence of Mamie Evelyn Wright, by the use of a handgun.” “The State therefore was required to prove beyond a reasonable doubt that [Appellant]’s use of the handgun occurred ‘prior to or contemporaneously with the taking’ ” of the cell phone. Fox v. State,
The evidence at trial showed that Wright found Appellant inside her trailer when she came home from the grocery store. But there was no direct evidence that Appellant took the cell phone from Wright after she arrived, and it is at least equally possible to infer from the evidence that Appellant took possession of the phone before Wright interrupted his burglary during his second entry into her home. In particular, the evidence showed that Wright had deactivated the cell phone several weeks earlier, making it unlikely that she was carrying the phone around with her; that Appellant walked to his house from Wright’s trailer carrying two armloads of items and then drove back to the trailer several minutes before Wright discovered him; and that Appellant fled the trailer immediately after shooting Wright, making it less likely that he paused to steal more items after confronting her. Because it is at least equally likely that Appellant took the cell phone before rather than after encountering the victim, the evidence was insufficient to support a finding beyond a reasonable doubt that Appellant used a handgun to take the cell phone from Wright. Accordingly, Appellant’s armed robbery conviction must be reversed. See Fox,
(b) Appellant does not dispute that the evidence was sufficient to support the jury’s verdicts of guilty on the other counts of the indictment. Nevertheless, as is this Court’s practice in murder cases, we have reviewed the record, and we conclude that the evidence presented at trial and summarized above was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Appellant was guilty of those crimes. See Jackson v. Virginia,
(c) As the State correctly points out, however, the trial court erred in merging Appellant’s guilty verdict for burglary into the verdict for felony murder based on burglary. Because that felony murder count was actually vacated by operation of law, the burglary count could not merge into it, and burglary also does not merge into a malice murder conviction. See Lupoe v. State,
3. Appellant contends that the trial court erred in denying his motion to suppress his two recorded custodial interviews. GBI Agent Blair Sasnett and Cordele Police Department Detective Ketorie Sales conducted the two interviews with Appellant at the police station shortly after he was taken into custody on the night of January 6, 2011. Before trial, Appellant filed a motion to suppress on the ground that portions of the first interview and all of the second interview were conducted after he invoked his right to remain silent. The trial court denied Appellant’s motion after holding a Jackson-Denno
(a) As to the first interview, the video recording shows that it began at 12:59 a.m. and lasted about an hour. The officers first went over Appellant’s rights under Miranda v. Arizona,
The officers then told Appellant that they knew he had the victim’s cell phone, and asked how he got it. About 58 minutes into the interview, the following exchange occurred:
AGENT SASNETT: You need to start talking.
APPELLANT: Naw, I don’t need to start doing nothing.
AGENT SASNETT: Yeah you do!
DETECTIVE SALES: Brandon! Think about this. Think about all this man. Take a deep breath and think about it.
APPELLANT: Listen, man, I’m tired of talking. You feel me. I want to eat. I’m tired of talking.
AGENT SASNETT: You tired of talking?
APPELLANT: Whatever y’all say y’all got. Y’all say y’all got evidence on me cuz? Lock me up, you feel me! Know what I’m saying? If y’all ain’t, I’m ready to go home, cuz. Talkin’ and.
DETECTIVE SALES: Well, let’s sit back and think about what we said for a while. I really want you to sit back and think. Sit back and think about some stuff. Uh, I want you to have some me time. And think about all this.
AGENT SASNETT: Alright, let’s take him back, come on. Let’s go.
APPELLANT: Man, y’all can take me to the county for this s**t, cuz. Man, listen man, naw listen. I ain’t mother f**kin shot nobody dog! I ain’t broke in nobody’s s**t, cuz. Y’all ain’t fixin to pin s**t on me my ni**a. F**k you then cuz.
DETECTIVE SALES: How did you get the phone?
APPELLANT: Man, man, listen, man.
The officers then continued to question Appellant about the victim’s cell phone, and he continued to deny any involvement in the crimes. About two minutes later, Appellant said, “Man, I ain’t got nothing else to say dog” and “I’m ready to go cuz.” The officers then stopped their questioning and took Appellant to a holding cell. Agent Sasnett returned to the interview room within a minute and ended the interview tape at 2:00 a.m. by saying that Appellant “advised he did not want to talk anymore. Interview was concluded.”
Appellant asserts that his statements “I’m tired of talking” and “I’m ready to go home” were an invocation of his right to silence that was not honored. But we need not decide if Appellant unequivocally invoked his right to remain silent with these statements. See Mack v. State,
(b) As to the second interview, “[w]here a defendant’s right to remain silent has not been scrupulously honored, a [later] statement by the defendant will be deemed properly obtained only if the defendant himself initiates the communications with law enforcement authorities.” Mack,
The trial court did not err in admitting this interview, because the record supports the court’s conclusion that it was initiated by Appellant. See Mack,
Moreover, the trial court properly concluded that Appellant’s initiation of further discussion about the case was not “the product of past police interrogation conducted in violation of [his] previously invoked rights.” Mack,
Judgment affirmed in part, reversed in part, and vacated in part, and case remanded for resentencing.
Notes
The crimes occurred on January 5, 2011. On May 16, 2011, a Crisp County grand jury indicted Appellant for malice murder, felony murder based on burglary, felony murder based on aggravated assault, aggravated assault, armed robbery, burglary, possession of a firearm during the commission of a felony (burglary and aggravated assault), and two counts of possession of a firearm by a first offender probationer. The last two firearm charges were bifurcated for trial, and Appellant was tried on the seven other charges from March 5 to 9, 2012, and found guilty of all of them. On March 9, he was tried on and found guilty of the final two firearm possession charges. The trial court sentenced Appellant to serve life in prison without parole for malice murder, a concurrent life sentence for armed robbery, and consecutive terms of five years for each of the three firearm convictions. The court merged the remaining counts. As discussed in Division 2 (c) below, the trial court erred in merging the burglary count, and Appellant should be sentenced on that charge. Appellant filed a timely motion for new trial, which the trial court denied on March 18, 2016. Appellant then filed a timely notice of appeal, and the case was docketed in this Court for the September 2016 term and submittedfor decision on the briefs.
Appellant’s possession of these two guns was the basis for his two convictions for possession of a firearm by a first offender probationer.
Because this case was tried before January 1, 2013, it was governed by Georgia’s old Evidence Code. See Ga. L. 2011, p. 99, § 101.
See Jackson v. Denno,