HARVEY v. THE STATE.
S16A1667
Supreme Court of Georgia
February 27, 2017
300 Ga. 598
HINES, Chief Justice.
FINAL COPY
1. Construed in a light to uphold the verdicts, the evidence shows the following: The victim lived in an apartment with her daughters, appellant and Nikea Harvey, as well as appellant‘s two children, four-year-old Zakiya and two-year-old Brian. Appellant, Zakiya, and Brian shared one of the three bedrooms in the apartment. Nikea, who is developmentally disabled, had her own bedroom. The victim, who paid the rent, used the master bedroom, which she kept locked with a padlock.
In the year and a half before her death, the victim called police to her home on two occasions when appellant let her boyfriend, Latoris Grovner,2 into the apartment against the victim‘s wishes. Just days before her death, the victim confided to a neighbor that she wanted to move because she was afraid that appellant and Grovner would harm her, and she was scared for her life. Then, after she argued with appellant as to who would control the proceeds from
On the night preceding the murder, appellant left the back door of the apartment unlocked so Grovner could enter even though she knew the victim would not have permitted her to do so.4 The victim was lying on a sofa when Grovner attacked her with a metal pot,5 a vodka bottle, and his fists. Zakiya woke up to the victim‘s screams and saw Grovner dragging the victim out of the apartment and putting her in the trunk of her car. Zakiya also observed that appellant, who was in bed, opened one eye, but did not go to the victim‘s aid. Appellant told Zakiya that she needed to leave the apartment.
The next day, appellant‘s older sister, Shambra Pearsall, became concerned about the victim because she had not been able to reach her. Pearsall went to the victim‘s apartment. Appellant let her in through the back door, but
Later, police officers went to the victim‘s apartment and knocked on the door. They continued knocking for forty minutes, until appellant opened the door. In the meantime, Grovner left the apartment undetected.
Appellant gave the victim‘s purse, which appeared to have blood inside, to police, who searched the apartment, finding it in disarray. There were bloodstains throughout the house, including on the sofa and floor in the living room and the bed in appellant‘s bedroom. Several of the victim‘s teeth were on the floor of the living room, a bottle of bleach was in the dining room, and bloody gloves were in a trash can. Furthermore, the lock was pried off the victim‘s bedroom door and her room was ransacked.6
Thereafter, police located the victim‘s automobile in a nearby parking lot. They opened the trunk and discovered the victim‘s body. The medical examiner determined that the victim died of blunt force injuries to the head, but that she
An investigation into the use of the victim‘s debit card demonstrated that within several hours of the victim‘s murder, Grovner, accompanied by appellant, walked to a nearby bank branch and a convenience store with automatic teller machines. At each location, which was monitored by video, they attempted, but failed, to withdraw money from the victim‘s bank account.
Awaiting trial, appellant told a cell mate “the murder was an accident and it wasn‘t supposed to happen like that.” She also told a friend “it was a kidnapping plot.”
Appellant asserts that the evidence was insufficient for any rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which she was convicted. More specifically, appellant argues (a) the State failed to prove appellant was a party to the crimes and (b) the burglary conviction cannot stand because appellant lived in the victim‘s apartment and was authorized to permit Grovner to enter it. We disagree.
(a) A person may be convicted of a crime he or she did not commit directly upon proof that he or she was a party to the crime. See
(b) Addressing appellant‘s conviction for burglary more specifically, we note that the version of
(c) Although appellant does not challenge specifically her conviction for hindering the apprehension of a criminal, see
2. In her second enumeration of error, appellant asserts the trial court erred in denying her demurrer to the indictment, which charged appellant and Grovner jointly for the victim‘s murder and the other crimes, even though Grovner had already been tried separately and convicted of the voluntary manslaughter of the victim. In this regard, appellant argues that Grovner could not be prosecuted more than once for the same crimes, see
3. Armentress Hill, who shared a cell with appellant while she awaited trial, testified that appellant told her Grovner admonished appellant not to say anything about the incident. Appellant argues the trial court erred in admitting Grovner‘s statement because, although hearsay statements made by a co-conspirator to further a conspiracy are admissible against fellow conspirators, such statements are inadmissible if they are made after the end of the conspiracy. See
4. Next, appellant asserts the trial court erred in admitting hearsay statements made by her daughter, Zakiya, and sister, Shambra Pearsall, to Detective Southerland and Officer Fried.
(a) Detective Southerland testified Pearsall contacted her and told her that Zakiya said she heard the victim scream and saw appellant open one eye, but appellant did not do anything. The detective testified further that she then spoke with Zakiya who confirmed what Pearsall said — appellant did not get up when the victim was attacked; she was lying down with one eye open. The State introduced this evidence to counter the testimony of both Pearsall9 and Zakiya.10 Because appellant did not object to this evidence, she cannot assert the trial court erred in admitting it. See Johnson v. State, 292 Ga. 785, 787-788 (3) (741 SE2d 627) (2013). Accordingly, we examine this assertion for plain error. See Lupoe v. State, 300 Ga. 233, 243 (4) (794 SE2d 67) (2016).
To show plain error, [appellant] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”
Mosley v. State, 298 Ga. 849, 851 (2) (a) (785 SE2d 297) (2016) (citations omitted). Appellant cannot meet this test because the detective‘s testimony concerning Pearsall‘s and Zakiya‘s prior inconsistent statements was not hearsay. On the contrary, the detective‘s testimony was admissible to impeach the witnesses, or as substantive evidence. See
(b) Officer Fried testified that he went to the victim‘s apartment before police discovered her body and spoke briefly with Zakiya, who asked him if he had nightmares; that he replied that he did and asked Zakiya why she asked that question; and that Zakiya told him she had nightmares about “killers.” Appellant‘s objection to the officer‘s testimony, on the ground it did not comport with the requirements of the Child Hearsay Statute,
5. Appellant posits that the trial court should have exercised its discretion as the thirteenth juror and awarded appellant a new trial because she was not permitted to present evidence of diminished mental capacity, coercion or battered person syndrome. Appellant does not assert the trial court erred by ruling out that evidence. She argues, however, that in light of the fact that Grovner was convicted of the lesser offense of voluntary manslaughter, her inability to present the aforementioned evidence was unjust, and that it was incumbent upon the trial court to rectify the injustice by granting appellant a new trial. We find no abuse in the exercise of the trial court‘s discretion as the thirteenth juror and in the denial of appellant‘s motion for new trial. See Smith v. State, 300 Ga. 532, 534 (796 SE2d 671) (2017).
6. Appellant next asserts that an unexplained delay in the entry of the trial court‘s order denying her plea in bar raises questions about the trial court‘s impartiality because it impeded her ability to appeal quickly. This assertion is
7. Relying upon Hall v. State, 241 Ga. 252, 258 (8) (244 SE2d 833) (1978), overruled on other grounds, Hamm v. State, 294 Ga. 791, 796 (756 SE2d 507) (2014), appellant claims her sentence of life without parole was disproportionate because Grovner was sentenced to a term of years. In Hall, defendant was given a death sentence for armed robbery and felony murder, while his co-defendant, who was the triggerman, and was tried separately, received a life sentence. This Court conducted the mandatory statutory review
Grovner was convicted of voluntary manslaughter; appellant, who was 21 years old at the time of the murder, was found guilty of malice murder. Voluntary manslaughter is punishable by imprisonment for not less than one year nor more than twenty years.
8. Pointing out that the verdict form used in Grovner‘s case listed voluntary manslaughter as a lesser included offense of murder, appellant contends the preprinted verdict form given to the jury in this case was erroneous because it failed to set forth a voluntary manslaughter option. However, appellant did not object to the verdict form at trial. Accordingly, this contention can be reviewed only for plain error. See generally Cheddersingh v. State, 290 Ga. 680, 681 (2) (724 SE2d 366) (2012); State v. Kelly, 290 Ga. 29, 31 (1) (718 SE2d 232) (2011).
9. Finally, appellant asserts that trial counsel rendered ineffective assistance by failing to (a) object to the testimony of Detective Southerland (in which she recounted statements made to her by Pearsall, Zakiya, and Armentress Hill, all of whom testified at trial and were subjected to cross-examination by appellant) on the ground it constituted hearsay, (b) seek the recusal of the trial judge, (c) oppose the State‘s motion to exclude evidence of Grovner‘s conviction for voluntary manslaughter, and (d) pursue voluntary manslaughter as a lesser included offense.
To prevail on a claim of ineffective assistance of counsel, a
Rector v. State, 285 Ga. 714, 716-717 (6) (681 SE2d 157) (2009). Moreover, “[j]udicial scrutiny of counsel‘s performance must be highly deferential.” Strickland, supra at 689 (III) (A). The test “has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted.” Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993).
Anderson v. State, 285 Ga. 496, 499 (3) (678 SE2d 84) (2009). With these guidelines in mind, we conclude, as set forth below, that appellant has failed to prove her ineffective assistance of counsel claims.
(a) Even if it can be said that trial counsel should have interposed a hearsay or confrontation clause objection to the testimony of Detective
(b) Trial counsel testified at the hearing upon appellant‘s motion for new trial that he saw no basis upon which to seek the recusal of the trial judge, and appellant is unable to point to any ruling on the part of the trial judge, either before or during trial, which demonstrates he was biased against appellant. It follows that appellant has failed to prove deficient performance or prejudice. See Battle v. State, 298 Ga. 661, 670 (784 SE2d 381) (2016) (appellant failed to demonstrate both deficient performance and a reasonable probability the outcome of the proceedings would have been more favorable to him if trial counsel had filed a timely motion to recuse the trial judge).
(d) Trial counsel testified at the hearing on the motion for new trial that instead of inviting the jury to find appellant guilty of voluntary manslaughter, he pursued an all or nothing strategy. This decision was within the broad range of professional conduct and did not constitute ineffective assistance. See Wells v. State, 295 Ga. 161, 166 (2) (758 SE2d 598) (2014).
Judgments affirmed in part and vacated in part. All the Justices concur, except Blackwell, J., who concurs in judgment only as to Division 1 (b).
Decided February 27, 2017.
Murder. Clayton Superior Court. Before Judge Simmons.
Viveca R. Famber Powell, for appellant.
Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Kathryn L. Powers, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mary C. Greaber, Assistant Attorney General, for appellee.