292 S.E.2d 389 (Ga. 1982), 38480, Harper v. State

Docket Nº:38480.
Citation:292 S.E.2d 389, 249 Ga. 519
Opinion Judge:GREGORY, Justice.
Party Name:HARPER v. The STATE.
Attorney:G. Terry Jackson, Savannah, for appellant., Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Janice G. Hildenbrand, State Asst. Atty. Gen., for appellee. [249 Ga. 535] G. Terry Jackson, Savannah, for appellant.
Case Date:June 02, 1982
Court:Supreme Court of Georgia
 
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Page 389

292 S.E.2d 389 (Ga. 1982)

249 Ga. 519

HARPER

v.

The STATE.

No. 38480.

Supreme Court of Georgia.

June 2, 1982

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 604 S.E.2d 796

Page 390

Rehearing Denied June 22, 1982.

Page 391

[249 Ga. 535] G. Terry Jackson, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Janice G. Hildenbrand, State Asst. Atty. Gen., for appellee.

GREGORY, Justice.

The defendant, Michael Earl Harper, was convicted by a Chatham County jury of the murder of George Mercer, IV, and sentenced to life imprisonment. Prior to trial the defendant pled guilty to charges of attempted theft by extortion of money from the victim's father and was sentenced to four years imprisonment for this offense. See Code Ann. § 26-1804.

At the time of his disappearance on January 29, 1980, the victim was residing with his parents, but was preparing to move into an apartment of his own on February 11, 1980. On January 29, between 1:30 and 2:00 p. m., the victim delivered a check for the February rent to his prospective landlord. This was the last occasion on which he was seen alive.

On January 30, 1980, the victim's father, concerned that the victim had not returned home the previous evening, filed a missing person report with the Savannah Police Department. Around 8:30 a. m. on January 31, 1980, the victim's sister found two notes taped to her father's car. The first note purported to be signed by the victim and stated: "I am being kidnapped. They say they will not hurt me if you get the money they want. $42,000." At trial the victim's father testified the signature on the note was not that of his son. The second note instructed the victim's father to drop the

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money at a spot near [249 Ga. 520] the Ogeechee River on February 2. On February 2, the victim's father received a phone call from the defendant, 1 informing him that the plans for the ransom drop had been altered and directing Mr. Mercer to a public phone booth where he would find further instructions. Pursuant to these instructions the victim's father left the money at the designated spot but it was never picked up by the defendant. 2 While the victim's father was making the drop, the defendant telephoned the victim's mother; the defendant assured Mrs. Mercer that the victim was fine, but refused to allow her to speak to him. Later that evening the defendant again telephoned the Mercer residence to say that the victim's father had "botched the job." When Mr. Mercer asked to speak to his son, the defendant answered that "he [was] not near the phone." The defendant did not telephone the Mercer residence again until February 4. At this time he directed the victim's father to a location in Savannah where Mr. Mercer found a note advising him if he refused to pay the ransom "We take [sic] your son far into the woods and slice and burn him to death. We tell him why. You get a tape of his screams." On February 5 the Mercers received another call from the defendant, who designated yet another location where the ransom money was to be taken. The victim's father followed the defendant's directions, but, again, the money was never picked up by the defendant. The FBI later returned the money to the Mercers.

On February 13, 1980, the victim's wallet and checkbook were found by a landscaper in a drainage ditch approximately 300 feet from the Spanish Villa Apartments in Savannah. On February 18, the victim's car was discovered in a parking lot at the Spanish Villa Apartments. 3 At trial a tenant of the Spanish Villa Apartments testified that he remembered first seeing the car parked there "around January 30," but, because he assumed it belonged to a new tenant, he had not been suspicious of its undisturbed presence. Finger and palm prints were lifted from the victim's car, but law enforcement officers were unable to identify them.

Numerous organized searches for the victim's body were conducted by Chatham County officials; the victim's badly decomposed body was discovered on April 26, 1980, on the outskirts of the campus of Armstrong State College. The victim was wearing a [249 Ga. 521] blue corduroy sports coat, blue tie and slacks, but had on no shoes or belt. The victim was also wearing a manually-winding wristwatch. Testimony at trial indicated that the watch was stopped at 9:30; the calendar portion of the watch showed the numeral "29." 4

At trial the medical examiner for Chatham County testified that the victim died from hemorrhage from a bullet wound to his right shoulder. The victim had also been shot once in the right back hip area. The medical examiner testified that, in his opinion, based on the fact that the victim's watch had stopped on the 29th day of a particular month and the state of decomposition of the victim's body and clothing, there existed "a high degree of probability" that the victim died on January 29, 1980, rather than February 29, 1980. On cross-examination the medical examiner conceded it was possible that death occurred on February 29, but "not quite as possible as January 29." He further testified that the deteriorated state of the victim's clothing was consistent with three months of decomposition, but was not consistent with two months of decomposition.

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In the early morning hours of February 11, 1980, the defendant hitchhiked a ride with a man and woman traveling from St. Augustine, Florida, to Atlanta. While traveling through Henry County, Georgia, their vehicle was detained by the Henry County police for speeding and driving without lights. Upon learning that the driver did not have a valid driver's license, the police officer inquired whether the female passenger or defendant had a license. The female passenger responded that she did not; the defendant answered that his name was "Glenn Mourchison," that he did have a valid driver's license, but did not have it with him. The officer ran a license check on the defendant, but found no Georgia license issued to a Glenn Mourchison. Since there was no one licensed to drive the van, the officers impounded and inventoried the vehicle. During the search of the van, officers located the defendant's driver's license and learned of his identity; the defendant was then arrested for giving a false name. Code Ann. § 26-2506. Police also found a .22 caliber pistol under the seat on which the defendant had been sitting. Twenty-two caliber shells were found in a pocket of the defendant's trousers. Subsequently the officers made a "pat-down" search of the defendant's person and found a plastic vial containing twelve capsules of Fiorinal # 3, a pain killer.

[249 Ga. 522] At trial a Savannah pharmacist testified that on January 17, 1980, he had filled a prescription of Fiorinal # 3 for the victim, to be used by the victim for the treatment of pain accompanying shingles. The state also offered the opinion of a ballistics expert employed by the State Crime Lab that the bullets recovered from the body of the victim had been fired from the .22 caliber pistol found in the defendant's possession.

Tamara Haymans, a Savannah resident, testified that on March 9, 1980, the defendant telephoned her from the Richmond County jail 5 and asked her to visit him. She took with her a Savannah newspaper which mentioned the defendant's friendship with the victim. She again visited the defendant on April 14 and at that time gave him an article from a Savannah paper reporting that a sheriff's posse planned to look for the victim's body along the Ogeechee River. Haymans testified that the defendant "thought [the article] was hilarious ... He said Mercer was nowhere near the Ogeechee River." Haymans testified that when she visited the defendant "a day or so later" and informed him a posse was going to look for the victim near Armstrong State College, "he became upset." During a subsequent visit, Haymans stated, the defendant "murmured ... I could be facing a murder charge." However, the defendant also maintained to Haymans that the victim was alive, that "hoodlums" had a contract on the victim and that these "hoodlums" were searching for the victim "in several states." The defendant also told Haymans "he could take a lie detector test and answer 'no' honestly that he didn't kill" the victim.

The defendant took the witness stand in his own behalf and testified that he did not kill the victim. He testified that in the fall of 1979, he and the victim discussed the prospect of going into business to make custom stereo speakers. They determined that selling a large quantity of marijuana would be the best way to obtain capital for the venture. The defendant testified that two men, whom he refused to name, became involved in the venture. Around mid-January, 1980, the four purchased "on credit" 100 pounds of marijuana for approximately $40,000. The marijuana was subsequently stolen and the four were unable to pay their creditors. Under considerable pressure to obtain the money, the four devised a plan to fake the kidnapping of the victim, and blackmail the victim's father for $40,000. The plan called for the victim to disappear on January 29. [249 Ga. 523] From January 29 until February 8, the defendant testified, the four men lived at the Spanish Villa Apartments. The defendant testified that

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while he made all of the phone calls to the victim's father in conjunction with the extortion plot, he did not participate in writing any of the notes to the Mercers. He also testified that he was not present when the note purported to be signed by the victim was written and, thus, could not say whether the victim had actually signed it. The defendant testified that when the extortion plan failed, the four men decided to go their...

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