Harris v. State

• Decision Date: 15 February 2022
• Docket Number: S21A1242
• Citation: 313 Ga. 225,869 S.E.2d 461
• Parties: HARRIS v. The STATE.
• Court: Georgia Supreme Court

313 Ga. 225

869 S.E.2d 461

HARRIS

v.The STATE.

S21A1242

Supreme Court of Georgia.

Decided: February 15, 2022

Angela Dillon, P.O. Box 5587, Columbus, Georgia 31906, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Eric C. Peters, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Frederick Lewis, A.D.A., Chattahoochee Judicial Circuit District Attorney's Office, 100 10th Street, Columbus, Georgia 31901, Mark Preston Jones, District Attorney, P.O. Box 427, Columbus, Georgia 31901, for Appellee.

Warren, Justice.

After a jury trial that was held in July and August 2019, Demartre Harris was convicted of felony murder and other crimes for his involvement in two drive-by shootings that injured Laundon Alexander and Patrick Boyd and resulted in the death of Marcus Bowden.¹ Harris raises four claims of error on appeal: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by admitting evidence pertaining to the weapons and ammunition that law enforcement officials found at the time of Harris's arrest; (3) that the trial court erred by admitting evidence pertaining to Harris's Facebook posts; and (4) that Harris received constitutionally ineffective assistance of counsel because his trial lawyer failed to call Dashauna Wilborn as a witness. For the reasons explained below, we affirm.

1. Viewed in the light most favorable to the verdicts, the evidence presented at Harris's trial showed the following. On November 21, 2015, Harris picked up his girlfriend, Jackie Pearson, from a Piggly Wiggly grocery store and the two of them then went to the M&N Package Store in Columbus. As Pearson walked inside the package store, three men, whom she did not know, walked out. When Pearson exited the store, she observed the same men "jumping on" and "beating" Harris. The group of men who attacked Harris included Boyd, Robert Oestricher, and Oestricher's brother. According to Oestricher, multiple other people ran from "Ms. Mary's house"—a nearby house where he and his friends would "hang out"—to the package store when the fight broke out, and Oestricher, Boyd, and Oestricher's brother all ran back to Ms. Mary's house when the fight was over.

Harris was a member of the "Bounty Hunter Bloods" gang. About 15 minutes after he was attacked, he sent a Facebook message to a fellow gang member, Spencer Marshall, saying "Come get me blood, I just got jumped." As part of his exchange with Marshall, Harris messaged, "Everybody dies." Marshall later testified that the men who attacked Harris were members of rival gangs.

At approximately 6:00 p.m. on November 23—two days after Harris was attacked—Alexander and Boyd were standing in the yard at Ms. Mary's house. Alexander was there to visit Bowden and other friends. While Alexander and Boyd were standing in the yard, Alexander heard a gunshot, and when he turned around he saw more gunshots coming from a "white Explorer" with "at least two" people in it. Alexander was shot in the thigh, and Boyd was shot in the leg. Boyd testified that his "leg broke after being shot," and he spent about two weeks in the hospital recovering.

The police arrived after the shooting and collected a total of five shell casings that were on a street adjacent to Ms. Mary's house. The shell casings included three Smith & Wesson .40-caliber shell casings, one PMC .25-caliber shell casing, and one .22-caliber shell casing.

The next day, Harris borrowed Pearson's white Ford Explorer at 11:00 a.m., when Pearson returned home from work. Antoine Gardner left with Harris in the Explorer. At 11:30 a.m., Bowden and Harold Prude visited Ms. Mary's house; Bowden went inside but Prude stayed outside. Prude testified that he was standing in the yard near the fence when he heard gunshots coming from an "SUV" that "looked like white, but I ain't had time to stand there and look." Edward Wilson, who observed the shooting, believed the shots had been fired from a white Explorer. Prude testified that "five or six" gunshots were fired from the "back driver side" of the SUV. He could not tell how many people were inside the SUV, but testified that "it had to be two because somebody was driving." When the shots began, Prude ran toward the front of Ms. Mary's house. When the shooting stopped, Prude walked back "to see where everybody escaped" and found Bowden lying wounded by the back door. Bowden died of his injuries; an autopsy later revealed that he had been shot once in the right buttock and once in the abdomen. At approximately 11:45 a.m., Harris returned Pearson's white Explorer.

Officers arrived at the scene at about 11:55 a.m. and recovered six .40-caliber bullets, two .40-caliber shell casings, and a 9 millimeter cartridge. Law enforcement officials identified Harris as a suspect in Bowden's murder, and in the course of looking for Harris the next day, executed a search warrant on Gardner's house. They did not find Harris, but did find Gardner—who had left with Harris in Pearson's Explorer on the day of Bowden's murder—and took him into custody. Officers also seized a pink Walther .22-caliber semi-automatic pistol that they found in the attic of Gardner's house.

They also searched Pearson's white Explorer and found a .22-caliber shell casing under the rear passenger seat.

Approximately three months later, after further investigation revealed Harris's possible location, Lieutenant Lance Deaton and a team of officers secured and executed a search warrant on a residence that belonged to two of Harris's friends. Once the officers entered the home, they learned that Harris was barricaded inside one of the bedrooms. Officers breached the door and took Harris into custody. Under the cushion of the sofa located in the room in which Harris barricaded himself, Lieutenant Deaton located a loaded Taurus .45-caliber handgun with an extended magazine, along with .223-caliber and .357-caliber ammunition. The handgun was not the same caliber as the weapons believed to be used in the November 23 and 24 shootings.

At trial, a Georgia Bureau of Investigation ("GBI") firearm examiner testified that the .40-caliber cartridge cases found at the scene of the November 24 shooting shared "individual characteristics"—"scratches that were imparted to the bullet or to the cartridge case when they were fired in that firearm"—with the .40-caliber cartridge cases found at the November 23 shooting scene, indicating they were fired from the same firearm. Specifically, the individual characteristics on the cartridge cases indicated that the firearm that imparted markings on both cartridge cases was a Springfield, an FN Browning, or a Taurus .40-caliber semi-automatic pistol. Moreover, the .40-caliber bullet recovered during Bowden's autopsy matched the .40-caliber casings recovered from the November 23 and 24 shooting scenes. The State also introduced evidence that on November 15, 2015—nearly a week before Harris was attacked at the M&N Package store—Harris told Marshall on Facebook that he recently obtained an "XD Springfield .40."

With respect to the .22-caliber shell casing officers retrieved from Pearson's white Explorer, the GBI firearm examiner testified that the casing's individual characteristics indicated it was fired from the pink .22-caliber pistol found in the attic of Gardner's house when Gardner was arrested.

Finally, the State tendered an expert whom the trial court qualified to testify about gang culture in the Columbus area. He testified that a low-ranking member of a gang, like Harris, would be required to retaliate against members of a different gang who disrespected him in order to retain his position in the gang. As part of the final jury instructions, the trial court charged on Georgia's "party to a crime statute," OCGA § 16-2-20 (a), instructing the jury that "[e]very party to a crime may be charged with and convicted of commission of the crime."

2. Harris contends that the evidence was legally insufficient to support his convictions because the case against him was entirely circumstantial and there was no direct evidence that he took part in either the November 23 or 24 drive-by shootings. Specifically, Harris asserts that there was no physical evidence and no witness that placed him at the scene of either shooting; that no murder weapon was ever found with respect to the November 24 shooting; and that there was significant evidence that Gardner, who is now deceased, was the person who shot and killed Bowden. Harris argues that the State failed to exclude the reasonable hypothesis that someone else—such as Gardner or another gang member—committed the crimes of which he was convicted, which included the murder of Bowden and the non-fatal shootings of Alexander and Boyd. We disagree.

When evaluating a challenge to the sufficiency of the evidence [as a matter of constitutional due process], we view all of the evidence presented at trial in the light most favorable to the verdict[s] and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.

Jones v. State , 304 Ga. 594, 598, 820 S.E.2d 696 (2018) (citing Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). "We leave to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts," Smith v. State , 308 Ga. 81, 84, 839 S.E.2d 630 (2020), and we do not "reweigh the evidence." Ivey v. State , 305 Ga. 156, 159, 824 S.E.2d 242 (2019) (citation and punctuation omitted).

As a matter of Georgia statutory law, "[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt...