Harris v. State
| Decision Date | 07 March 2016 |
| Docket Number | No. S15A1699.,S15A1699. |
| Citation | 783 S.E.2d 632,298 Ga. 588 |
| Parties | HARRIS v. The STATE. |
| Court | Georgia Supreme Court |
Leo Jimmy Kight, Jr., Sean Gamble, Brunswick Circuit Public Defender's Office, Woodbine, for appellant.
Rocky Lashawn Bridges, Asst. Dist. Atty., Jacquelyn Lee Johnson, Dist. Atty., Brunswick Judicial Circuit District Attorney's, Patricia B. Attaway Burton, Sr. Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Dist. Atty., Samuel S. Olens, Atty. Gen., Department of Law, Andrew J. Ekonomou, The Lambros Firm, LLC, Atlanta, for appellee.
, Presiding Justice.
Larry Harris appeals from his convictions and sentences for malice murder and possession of a firearm during the commission of a felony in connection with the deaths of Commie Spead and Jerry Lewis Williams. For the reasons that follow, we affirm.1
Construed to support the verdicts, the evidence showed that on June 16, 2008 at 7:00 p.m. Shavon Roberts ("Roberts") was riding a bicycle on Vacuna Road in Camden County. He saw a white Cadillac Escalade which looked like the one owned by Spead, his stepfather. Roberts approached the vehicle, opened the driver's door, and discovered Spead in the driver's seat and Williams in the front passenger seat, each dead from a single gunshot wound
to the head.
Earlier that evening, at 6:00 p.m., or shortly thereafter, Roy Horne, Jr., saw a black pickup truck with a large University of Georgia "G" emblem on the rear window on the side of Vacuna Road in Camden County, in front of the Escalade. Reba Wright ("Wright") also saw a black pickup truck on Vacuna Road at roughly 6:00 p.m., as it turned around near the Escalade; the truck had "mag wheels" in a "starburst" pattern but Wright did not see the driver. Harris drove a black pickup truck with wheel rims in a "starburst" pattern and a large "G" emblem on the rear window.
Inside the Escalade, the position of the bodies and blood spatters indicated that there was no struggle before death and the victims were shot by someone in the rear passenger-side seat. Two .40 caliber shell casings were inside the Escalade and a "cookie" of cocaine worth $1,000.00 was wrapped in a paper towel in the driver's-side visor; a crack pipe was inside Williams's left pocket. One of Harris's fingerprints was on the exterior of the Escalade's rear passenger-side door.
On June 17, 2008, investigators searched Harris's residence pursuant to a search warrant and seized an empty Glock plastic pistol box for a .40 caliber handgun and three boxes of .40 caliber Hornaday brand ammunition. On January 6, 2009, construction workers discovered a .40 caliber Glock handgun along the southbound lanes of Interstate 75 in Suwannee County, Florida; the pistol was loaded with Hornaday brand ammunition, a variety not as common as the three major brands of handgun ammunition. Harris stipulated that the pistol was his, and ballistic evidence showed that the shell casings recovered from Spead's Escalade came from that handgun. Blood stains were found on the shoes and shorts that Harris was wearing at the time of his arrest, and DNA extracted from them matched Spead's DNA profile.
1. Harris moved to suppress the Glock pistol box and three boxes of ammunition seized from his home while officers were executing the search warrant, and contends that the trial court erred in denying his motion. Scandrett v. State, 293 Ga. 602, 603(2), 748 S.E.2d 861 (2013)
.
During the hearing on the motion to suppress, evidence was presented that, the day after the crimes, at the direction of investigators, law enforcement personnel, including Lt. Sears of the Camden County Sheriff's Office, went to Harris's apartment to ascertain if they could contact him; they knew that investigators wished to question him about the murders of Spead and Williams. They saw Harris's pickup truck in the parking lot of the apartment complex and they knocked on the door of his apartment. Harris's roommate, Michael Holly, answered and invited the officers inside. There, for their safety, they conducted a sweep of the apartment to ensure that Harris was not hiding therein. While conducting that sweep, Lt. Sears noticed the residue of illegal drugs and paraphernalia associated with the use of such drugs on the dresser in one of the apartment's two bedrooms; after Lt. Sears saw the drug residue and paraphernalia, Holly said that it was Harris's bedroom in which the items were seen.
The officers did not find Harris during their sweep of the apartment, and Holly voluntarily went with them to a law enforcement facility. Lt. Sears obtained a warrant to search Harris's and Holly's apartment for controlled substances and contraband related to drug crimes. Returning to the apartment, Lt. Sears determined that it had been cleaned since he initially saw the drug residue and paraphernalia, and that the items he had noticed before had been removed. While he was searching for illegal drugs under Harris's bed, Lt. Sears found a black plastic box for a .40 caliber Glock pistol; inside the box was a magazine for the pistol, with ammunition in it. Also found were three boxes of .40 caliber Hornaday brand ammunition; Lt. Sears had been advised by the homicide investigators that, based on the markings on the shell casings found inside Spead's Escalade, Spead and Williams may have been killed with a .40 caliber pistol.
Harris contends that while Lt. Sears and the other law enforcement officers had Holly's permission to enter the apartment, Holly could not give them authority to enter Harris's bedroom as he did not have common authority over that space. See Tidwell v. State, 285 Ga. 103, 105–106(1), 674 S.E.2d 272 (2009)
. However, Holly's authority over what was later described as Harris's bedroom is not the issue. Rather, the officers were lawfully in the apartment, knew that Harris was suspected of involvement in a double homicide and that his pickup truck was parked outside the apartment, and under the facts of this case, were entitled to make a protective sweep of the apartment for their own safety. See Celestin v. State, 296 Ga.App. 727, 733
–734(3)(b), 675 S.E.2d 480 (2009) ; Nickerson v. State, 248 Ga.App. 829, 832(2)(b), 545 S.E.2d 587 (2001). Compare Causey v. State, 334 Ga.App. 170, 172 –175(2), 778 S.E.2d 800 (2015). Accordingly, there is no merit to Harris's argument that Lt. Sears was not lawfully in a position to notice the drug residue and paraphernalia, the illegal nature of which was readily apparent to Lt. Sears, as he had spent more than seven years working with a drug task force. See Cupe v. State, 327 Ga.App. 642, 646(1), 760 S.E.2d 647 (2014).
Nor is there merit to Harris's argument that the Glock pistol box and ammunition should have been suppressed because those items were beyond the scope of the search warrant's specification of illegal drugs and related contraband. See Smithson v. State, 275 Ga.App. 591, 597
–599(4), 621 S.E.2d 783 (2005). Lt. Sears was searching for drugs under the bed, which, based upon his experience with other drug searches, he knew to be a place where illegal drugs were often hidden, and the trial court's finding that the pistol box and ammunition were found inadvertently in plain view while in execution of a valid search warrant is not clearly erroneous. Scandrett, supra.
2. At trial, Harris made a chain of custody objection regarding the articles of his clothing upon which was found Spead's DNA, noting in particular that a photograph of Harris at the time of his booking into jail shows him wearing a white T-shirt, but that the evidence bags containing his clothing did not include such a shirt, but included a tank-top shirt. During trial, the State presented testimony that explained the discrepancy between the photograph and the items in the evidence bag, to wit: when Harris was arrested, he arrived wearing a white T-shirt over a tank-top shirt, as well as dark-shorts; at the time, the jail's booking practice permitted a prisoner who arrived with a white T-shirt to retain the shirt to wear under his jail-issued jumpsuit; when Harris changed his clothing, he put the white T-shirt back on and then put his jumpsuit over it; and Harris's other clothing was collected as part of the standard procedure, and later turned over to a detective.
The trial court did not err in admitting the evidence over Harris's objection.
When the State seeks to introduce into evidence an item that is subject to the chain of custody rule, it must establish with reasonable assurance that the item seized is the same as the item being offered into evidence. And, the State must show with reasonable certainty that there has been no...
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