Harris v. State

• Decision Date: 22 October 2001
• Docket Number: No. S01A1236.,S01A1236.
• Citation: 554 S.E.2d 458,274 Ga. 422
• Parties: HARRIS v. The STATE.
• Court: Georgia Supreme Court

554 S.E.2d 458

274 Ga. 422

HARRIS v. The STATE.

No. S01A1236.

Supreme Court of Georgia.

October 22, 2001.

Rich & Smith, Randolph G. Rich, Lawrenceville, for appellant.

Daniel J. Porter, Dist. Atty., Phil Wiley, Niria D. Baggett, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Tammie J. Philbrick, Asst. Atty. Gen., for appellee. CARLEY, Justice.

A jury convicted Preston Lewis Harris of malice murder and two alternative counts of felony murder, armed robbery, theft by taking and possession of a knife during the commission of a felony. Concluding that the evidence sufficiently supported the verdict as to malice murder, the trial court imposed a life sentence for that offense, a concurrent life sentence for armed robbery, a consecutive ten-year term for theft by taking, and a concurrent five-year term for the weapons offense. See Malcolm v. State, 263 Ga. 369, 371(4), 434 S.E.2d 479 (1993). Following the denial of a motion for new trial, Harris brings this appeal.¹

1. Harris admits that he killed Tyrone Gay, but urges that, as a matter of law, he is not guilty of malice murder. He contends that the homicide was justified because he was forced to defend himself against a sexual assault by the victim.

Harris met Gay in Atlanta and accepted an invitation to spend the night at the victim's Gwinnett County apartment. Despite some sexual innuendoes, the night passed without incident and, a few days later, Harris contacted the victim and asked for lodging. The victim agreed and drove into Atlanta to pick him up. He arrived to find both appellant and an acquaintance known only as "Rodney," and the two accompanied him back to his apartment. After Rodney left, appellant voluntarily engaged in a homosexual act with Gay. Thereafter, the victim went to purchase cocaine for Harris' consumption. After the victim returned with the drugs, they began another sexual encounter, but appellant became upset. He returned to the living room where he smoked the rest of the cocaine and drank more beer. When Gay continued to make suggestive remarks, Harris retreated toward the kitchen. The victim followed and became increasingly insistent. Harris picked up a knife and stabbed Gay multiple times. The victim ultimately died from massive bleeding caused by a knife wound to his heart and lung. Harris fled to Tennessee in Gay's automobile, taking several items of the victim's property from the apartment. The vehicle was found in Chattanooga a short time later. The driver informed the officers that he obtained the car from Harris. The Tennessee authorities brought Harris in for questioning, and he gave them a statement. When the Gwinnett County officers arrived shortly thereafter, he also made a statement to them.

A person is justified in using deadly force "only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony." OCGA § 16-3-21(a). Thus, a homicide is not justified if the degree of force used by the defendant exceeds that which a reasonable person would believe necessary to defend against the victim's unlawful actions. See Clark v. State, 271 Ga. 27, 29(2), 518 S.E.2d 117 (1999); Hickman v. State, 186 Ga.App. 118(1), 366 S.E.2d 426 (1988). After hearing the evidence and the trial court's instructions on self-defense, the jury found that Harris' use of a knife to stab Gay multiple times was excessive and not reasonably necessary to defend against the type of assault which he attributed to the victim. Clark v. State, supra at 28(1), 518 S.E.2d 117. Construing the evidence most strongly in favor of the verdict, it was sufficient to authorize a reasonable trier of fact to find him guilty of malice murder and of the other offenses for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Harris filed a post-trial motion to compel the State to identify a latent fingerprint found in the victim's car. The purpose of identifying the print was to determine whether it might have been left by Rodney, whose last name was unknown. According to appellant, Rodney was potentially an important defense witness who could corroborate that the victim was a homosexual and, thus, bolster the claim of justifiable homicide. Harris enumerates the denial of the motion as error.

Unlike DNA testing, the identification procedure requested by Harris would not prove his innocence. He admitted stabbing the victim, and the only question was whether he acted in self-defense. According to appellant, Rodney was not even present at the time of the homicide, because he left Gay's apartment some time previously. Therefore, Rodney could not give eyewitness testimony about the immediate circumstances leading to the stabbing. In fact, Harris admitted that Rodney left before Gay broached the topic of sex. Thus, he could not even corroborate the victim's sexual orientation.

The jury heard considerable evidence showing that the victim was a homosexual, including graphic testimony about photos of nude men that he apparently took. Even if the testing had shown that the print was Rodney's and if he could be located and was prepared to testify as Harris contends, a new trial still would not be authorized, as he could only provide cumulative testimony which would be unlikely to produce a different result. OCGA § 5-5-23; Spann v. State, 263 Ga. 336, 337(3), 434 S.E.2d 54 (1993). See also Davis v. State, 244 Ga.App. 345, 348(6), 535 S.E.2d 528 (2000). The trial court correctly denied Harris' post-trial motion for identification of the fingerprint.

3. Appellant enumerates as error the admission of both of his in-custody statements. The evidence produced at the Jackson-Denno hearing, authorized the trial court to find that Harris made his first statement only after the Tennessee authorities advised him of the Miranda rights and obtained a written waiver. The failure at the outset to identify the specific subject of the interrogation as the murder of Gay does not render the ensuing statement inadmissible. Christenson v. State, 261 Ga. 80, 85(3), 402 S.E.2d 41 (1991). Harris spoke to the officers readily and did not ask for legal representation. "Once Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effect waived his rights." Aldridge v. State, 258 Ga. 75, 76(3), 365 S.E.2d 111 (1988). "[U]se of trickery and deceit to obtain a confession does not render it inadmissible, so long as the means employed are not calculated to procure an untrue statement. [Cit.]" State v. Ritter, 268 Ga. 108, 110(1), 485 S.E.2d 492 (1997). Thus, a mere overstatement by the investigators as to how much inculpatory evidence they presently possessed does not affect the admissibility of Harris' statement. Moreover, his admission was not induced by any hope of benefit or threat of punishment, since "admonitions to tell the truth will not invalidate a confession. [Cits.]" State v. Roberts, 273 Ga. 514, 516(3), 543 S.E.2d 725 (2001). "The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it." OCGA § 24-3-51. Harris himself raised the issue of the severity of the sentence he might receive for his acts, and the officers did not jeopardize the admission of his statement by pursuing that topic with him. "[T]his simply made the defendant aware of potential legal consequences associated therewith. [Cit.]" Davis v. State, 245 Ga.App. 508, 509, 538 S.E.2d 159 (2000). Compare State v. Ray, 272 Ga. 450, 452(2), 531 S.E.2d 705 (2000). The trial court did not err in admitting the Tennessee statement for the jury's consideration.

Because the initial statement was not "tainted," Harris' subsequent admission to the Gwinnett County authorities is not subject to the "fruit of the poisonous tree" doctrine. See Moore v. State, 263 Ga. 11(1), 427 S.E.2d 766 (1993). Although he contends that those officers should have obtained an additional Miranda waiver from him, that was unnecessary considering the continuing nature of the interrogation and the short interval between the original waiver and his statement to the Georgia investigators. McKenzie v. State, 187 Ga.App. 840, 844(4), 371 S.E.2d 869 (1988). Encouragement by the Tennessee police to tell the truth to the Gwinnett officers does not compromise the admissibility of the statement which he gave to them. State v. Roberts, supra. That subsequent admission was not induced by any hope of benefit or fear of injury, and the trial court properly admitted it into evidence.

4. Although Harris enumerates as error the trial court's failure to charge on voluntary manslaughter as a lesser included offense, he did not request such an instruction. While a trial court may charge on a lesser included offense on its own motion, the "failure to do so, without a written request..., is not error." State v. Stonaker, 236 Ga. 1, 2(2), 222 S.E.2d 354 (1976). Moreover, appellant expressly declined the trial court's offer to give an instruction on voluntary manslaughter. Having elected an all-or-nothing strategy pursuant to which the jury could only find him either guilty of murder or not guilty by reason of justification, he cannot complain of the consequences of that decision. Jackson v. State, 234 Ga. 549, 216 S.E.2d 834 (1975).

5. Relying on the "necessity" exception, Harris sought to introduce the pre-trial statements of two of Gay's friends who identified him as a homosexual. The trial court determined that the evidence was inadmissible because of a lack of diligence by the defense in locating the potential witnesses. Appellant enumerates this ruling as error.

One of the determinative factors in the admissibility of evidence under the necessity exception is whether the...