Heade v. StateHeade v. State
A Gwinnett County jury found Appellant Demetrius Heade guilty of malice murder and other crimes in connection with the shooting death of Michael Harvey.1 On appeal, Appellant contends that (1) the trial court erred in ruling that evidence of Appellant‘s prior acts was admissible; (2) trial counsel provided ineffective
1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed that on November 10, 2016, at around 7:30 p.m., Appellant and Tilisha Tate, Appellant‘s girlfriend and co-defendant at trial, visited a Citgo gas station located in Gwinnett County. The two were traveling in a stolen, gold 1996 Honda Odyssey minivan and were meeting with a man who had agreed to purchase food for them because they had run out of money. After accompanying this man into the gas station to buy food, Appellant and Tate left the gas station in the gold minivan; Appellant was driving, and Tate was lying down in the back seat. As they were traveling on Button Gwinnett Drive, the victim, Michael Harvey, attempted to pass the minivan in his truck and
Officers discovered that the minivan at the scene had been stolen from Mobile, Alabama on November 2, 2016. Officers testified that they called the police in Mobile, who advised that they were investigating the November 2 theft of the minivan and the murder
Officers obtained a search warrant for the minivan, and inside they found male and female clothing, a box of ammunition, and multiple .30-.30 rounds. Appellant‘s fingerprints were found on the windows, as well as on items inside the minivan. Officers found receipts from Subway and Little Caesar‘s restaurants. Appellant was seen in surveillance video from the Little Caesar‘s, and both Appellant and Tate were seen in surveillance video from the Subway. Plastic bags and food products from a Citgo gas station were also found in the minivan. Officers went to the Citgo gas station near the accident site, and surveillance video from that gas station showed that Appellant and Tate made multiple visits to the gas station before and after the murder. In one video, the two were depicted leaving the gas station, entering a gold minivan, and departing toward the Las Palmas apartment complex.
Tate was extradited back to Mobile in December 2016. On December 5, 2016, Gwinnett County officers investigating the murder of Harvey traveled to Mobile and interviewed Tate again. At that time, Tate confessed to being present when Appellant shot Brennan in Mobile on November 2, 2016, when Brennan‘s minivan was stolen, as well as on November 10 when Appellant shot Harvey in Gwinnett County. However, Tate denied knowing that Appellant was planning to shoot Harvey. Tate indicated that she lied in her previous interview because she was scared of Appellant.
(a) The Tate Assault
According to Tate, in the summer of 2016, Appellant and Tate started a romantic relationship in Mobile. During this time period, Tate struggled with drug and alcohol addiction, and she regularly
(b) The Brennan Murder
According to Tate, on November 2, 2016, Tate and Appellant
According to Tate, Appellant and Tate drove to Appellant‘s cousin‘s house, where Appellant picked up a .30-30 “shotgun.” While they were at the cousin‘s house, Appellant cut the red cast off Tate‘s leg with a knife. Tate testified that she needed the cast and could not put any pressure on her foot, but Appellant demanded they remove it, stating, “[T]hey was going to be looking for somebody with a red cast.” Appellant and Tate then drove around the Mobile area in the minivan and made purchases, including shoes, televisions, cell phones, and beauty products, at several stores using Brennan‘s credit card, which had been left in the minivan.4 When they tried to purchase another television at Walmart, the card was declined. At that point, Appellant and Tate had very little money left, and they left the area and drove to Gwinnett County in Brennan‘s minivan. Around this time, Tate used a cell phone she had purchased to find news articles about what happened to Brennan in Mobile, but could
(c) The Crane Robbery
According to Tate, Appellant robbed Heather Crane before noon on November 10, the day of Harvey‘s murder. Appellant threatened Crane, a guest of the Peachtree Inn and Suites, by pointing the rifle at her and taking her purse. After removing the little money found inside Crane‘s purse, Appellant abandoned the purse at a Subway.
Dominique Upshaw, Crane‘s boyfriend at the time, testified that after the robbery,5 Crane entered their shared hotel room and
3. Turning to Appellant‘s specific contentions with respect to the trial court‘s admission of these prior acts, Appellant contends that the trial court erred (a) by ruling in its order denying Appellant‘s motion for new trial that these acts were intrinsic evidence, and (b) by admitting these acts at trial as extrinsic evidence. We conclude that the evidence was properly admitted as intrinsic evidence, so we need not address its potential admission as
Evidence is admissible as intrinsic evidence when it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense . . . . [E]vidence pertaining to the chain of events explaining the context, motive, and set-up of the crime is properly admitted if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury . . . . [E]vidence of other acts is inextricably intertwined with the evidence regarding the charged offense if it forms an integral and natural part of the witness‘s accounts of the circumstances surrounding the offenses for which the defendant was indicted. And this sort of intrinsic evidence remains admissible even if it incidentally places the defendant‘s character at issue.
Williams v. State, 302 Ga. 474, 485-486 (IV) (d) (807 SE2d 350) (2017) (citations and punctuation omitted). “[T]here is no bright-line rule regarding how close in time evidence must be to the charged offenses, or requiring evidence to pertain directly to the
Here, all three acts were part of the chain of events leading to the charged crimes. The Tate assault illustrated Tate‘s tumultuous relationship with Appellant and explained why she was afraid of Appellant. It demonstrated why she stayed with Appellant until and after Harvey‘s murder, even initially denying their involvement because she feared Appellant. See McCammon v. State, 306 Ga. 516, 522 (2) (832 SE2d 396) (2019) (co-defendant‘s testimony that he and appellant smoked marijuana together six months before the murder, “[w]hile . . . further afield from the charged crimes, . . . was a natural part of [the co-defendant‘s] account of his relationship with [a]ppellant“); see also Williams, 302 Ga. at 486 (prior act helped explain to jury, among other things, why a victim refused the defendant‘s advances and the motive for the victim to end her
Similarly, the Brennan murder explained why Appellant and Tate were driving Brennan‘s gold minivan and why they had fled from Mobile, Alabama to Gwinnett County. Through the minivan, Appellant was tied not only to Brennan‘s murder, but also to the credit card transactions in Mobile, the Crane robbery, and ultimately to Harvey‘s murder. Perhaps most importantly, the Brennan murder explained Appellant‘s motive to evade authorities. Appellant went so far as to remove the red cast from Tate‘s leg immediately after the Brennan murder because he believed “they
The Crane robbery was the next link in Appellant and Tate‘s crime spree. After stealing Brennan‘s minivan and exhausting the credit cards they found in the minivan, Appellant and Tate were in need of money. The armed robbery, in which Appellant used the stolen minivan and the rifle, was how he obtained money. Surveillance video indicated that the perpetrator of the robbery was in a gold minivan identical to the one Appellant had stolen from Brennan. Appellant later abandoned the purse he stole from Crane
“Relevant [intrinsic] evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative
As explained above, the three prior acts here were probative to explaining the context of the charged crimes, the relationship between Appellant and Tate, why Appellant and Tate were in a
Appellant further argues that these three acts were inadmissible as extrinsic evidence under Rule 404 (b).6 However, the trial court provided a limiting instruction to the jury, which narrowed the scope for which the jury could consider the evidence and thus minimized any potential harm. Because the evidence was properly admitted as intrinsic evidence, however, we need not address its admission as extrinsic evidence under Rule 404 (b). See
4. Appellant next raises two related enumerations of error regarding the admission of the Tate assault evidence: that (a) the trial court erred in ruling that the Tate assault was admissible as a “prior difficulty” and (b) trial counsel provided constitutionally deficient performance by conceding that the Tate assault was admissible as a prior difficulty.
(a) At the pretrial motions hearing, the State proffered the Tate
Because Appellant did not object to the admission of the Tate assault, we review this claim only for plain error. See Brewner v. State, 302 Ga. 6, 12 (III) (804 SE2d 94) (2017) (plain error review where appellant did not assert any objection when other acts evidence was first introduced at trial). To prove plain error, among other things, “there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant.” Id. Appellant conceded that the Tate assault evidence was admissible. Thus, Appellant affirmatively waived this error and cannot show plain error. Accordingly, this enumeration of error fails.
(b) Appellant contends that his trial counsel was
To succeed on a claim of ineffective assistance of counsel, Appellant “must prove both that his lawyer‘s performance was professionally deficient and that he was prejudiced as a result.” Styles v. State, 309 Ga. 463, 471 (5) (847 SE2d 325) (2020) (citation and punctuation omitted); see also Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “[I]f [Appellant] fails to establish one prong, we need not examine the other.” Armstrong v. State, 310 Ga. 598, 607 (5) (852 SE2d 824) (2020) (citation and punctuation omitted).
We have explained that “[t]here is no deficient performance when an attorney fails to object to admissible evidence.” Perera v. State, 295 Ga. 880, 884-885 (3) (b) (763 SE2d 687) (2014). As discussed above, the Tate assault was admissible as intrinsic evidence, and therefore trial counsel did not perform deficiently. Appellant‘s ineffective assistance claim accordingly fails.
5. In his final enumeration of error, Appellant contends that
6. Although Appellant does not raise any sentencing issues on appeal, we have identified two errors in his sentencing. See Dixon v. State, 302 Ga. 691, 696-97 (4) (808 SE2d 696) (2017) (“We have the discretion to correct merger errors sua sponte . . . because a merger error results in an illegal and void judgment of conviction and sentence.“). Appellant was charged with and found guilty of malice murder, felony murder predicated on aggravated assault, aggravated assault, and possession of a firearm during the commission of a felony. The trial court sentenced Appellant to serve
The trial court‘s sentencing with regard to the felony murder was error, as the felony murder count should have been vacated by operation of law. “[W]hen a valid guilty verdict is returned on both malice murder and felony murder of the same victim, the defendant should be sentenced for the malice murder, and the alternative felony murder count stands vacated by operation of law as simply surplusage.” Hulett v. State, 296 Ga. 49, 53 (2) (766 SE2d 1) (2014) (citation and punctuation omitted; emphasis in original). Here, there was only one victim in relation to both the malice murder and felony murder counts. “It follows that the trial court erred in failing to sentence [Appellant] only on the malice murder count and that the separate sentence[] on the [alternative] felony murder [count] must be vacated,” because the felony murder conviction was “simply surplusage.” Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993). Accordingly, we vacate Appellant‘s conviction and sentence for felony murder.
The trial court‘s sentencing with regard to the aggravated assault count was also error. “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if . . . [o]ne crime is included in the other.”
Judgment affirmed in part and vacated in part. All the Justices concur, except McMillian, J., who concurs in judgment only in Division 3.