Heard v. The State

• Decision Date: 12 July 2010
• Docket Number: No. S10A0866.,S10A0866.
• Citation: 287 Ga. 554,697 S.E.2d 811
• Parties: HEARDv.The STATE.
• Court: Georgia Supreme Court

287 Ga. 554

697 S.E.2d 811

HEARDv.The STATE.

No. S10A0866.

Supreme Court of Georgia.

July 12, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

H. Maddox Kilgore, Marietta, for appellant.

Patrick H. Head, District Attorney, Jesse D. Evans, John R. Edwards, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Assistant Attorney General, Paula K. Smith, Senior Assistant Attorney General, David A. Zisook, Assistant Attorney General, for appellee.

CARLEY, Presiding Justice.

A jury found Ricky Heard guilty of two counts of felony murder, two counts of armed robbery, three counts of aggravated assault, two counts of theft by receiving stolen property, criminal use of an article with an altered identification mark, possession of a firearm during the commission of a crime, and hijacking a motor vehicle. Treating one of the felony murder counts as surplusage, the trial court sentenced Heard to life imprisonment for the other felony murder count and for one of the armed robbery counts, a consecutive 20-year term for hijacking, ten-year terms each for two of the aggravated assault counts and for the two counts of theft by receiving, and five-year terms for the weapons offense and criminal use of an article. The remaining counts were merged by the trial court. Heard appeals after the denial of a motion for new trial.^*

1. Construed most strongly in support of the verdicts, the evidence shows that, on May 22, 2005, Heard and three other young men entered a tennis center where Stephanie Bishop was working. The young men left the building at Ms. Bishop's request, but then Heard and another member of the group returned. They threw Ms. Bishop to the ground, punched her, and threatened to shoot her. The assailants took money, Ms. Bishop's car keys, and other items, and then fled from the scene in her car. Approximately three weeks later, on June 13, 2005, Heard obtained a stolen handgun and was using a stolen vehicle. He and some of the same accomplices approached Alberto Ramirez and Juan Navarro at an apartment complex. Heard brandished a gun and demanded money. He and his accomplices took Ramirez's wallet, but it was empty, and they started to leave. Ramirez got a bat from his apartment and ran after Heard, who then shot and killed Ramirez. The stolen gun, with the serial number partially scratched off, was found in the stolen vehicle.

Heard specifically contends that the trial court erred in failing to direct a verdict of acquittal as to the count of hijacking Ms. Bishop's motor vehicle. The offense of hijacking a motor vehicle is committed when a “person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.” OCGA § 16-5-44.1(b). Heard argues that the State presented no evidence that the vehicle was taken from the person or presence of Ms. Bishop, as she testified that, after her car keys were taken, she locked herself in a closet some 200 yards away from her car's location in a parking lot. However, “[t]he statute does not require that the person be in the motor vehicle.” Stephens v. State, 245 Ga.App. 823, 825(2), 538 S.E.2d 882 (2000). Even the more restrictive language in the armed robbery statute, “ ‘immediate presence[,]’ has been held to extend “ fairly far,” and robbery convictions are upheld even out of the physical presence of the victim.' [Cit.]” Johnson v. State, 246 Ga.App. 109, 112(3), 539 S.E.2d 605 (2000). “ ‘Further, the concept of immediate presence is broadly construed if the object taken was under the victim's control or responsibility and the victim is not too distant.’ [Cit.]” Kollie v. State, 301 Ga.App. 534, 541(4), 687 S.E.2d 869 (2009). Although Ms. Bishop's vehicle was not immediately outside the building and therefore perhaps not in her “immediate” presence, it was at the tennis center in a parking lot. “[T]he jury could have concluded that [Heard] took the keys to the vehicle which were under [Ms. Bishop's] control....” Kollie v. State, supra. The evidence shows that her

car keys, which are integral to the car's operation, were taken directly from [her] person upon threat of injury. Given these circumstances, the jury was authorized to find that [Heard] took the [vehicle] from [Ms. Bishop's] “person or presence” for purposes of the offense of hijacking a motor vehicle.

Johnson v. State, supra (where victim was in store and his car was parked just outside). See also Kollie v. State, supra (where victim was in his home and the vehicle was in the attached garage).

Heard further argues that the evidence is not sufficient to show that he possessed a firearm or weapon. “[T]he weapon requirement of the hijacking statute is similar to that of the armed robbery statute.” Haugland v. State, 253 Ga.App. 423, 427(2), 560 S.E.2d 50 (2002). See also OCGA §§ 16-5-44.1(a)(3), 16-8-41(a). In either case, the presence of a weapon

“may be established by circumstantial evidence, and a conviction ... may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however or some evidence from which the presence of a weapon may be inferred.” [Cit.] (Emphasis in original.)

Prins v. State, 246 Ga.App. 585, 586(1), 539 S.E.2d 236 (2000), disapproved on other grounds Miller v. State, 285 Ga. 285, 287, fn. 1, 676 S.E.2d 173 (2009). Here, the presence of a weapon could be inferred from evidence that Heard asked for a bag so that he could shoot the victim, that his accomplice handed him the bag, and that the victim then stopped resisting the attack. This evidence showed that Heard “acted as if he were holding an offensive object” and authorized “the jury [to] infer the presence of a gun.” Prins v. State, supra at 587(1), 539 S.E.2d 236 (distinguishing Bradford v. State, 223 Ga.App. 424, 477 S.E.2d 859 (1996)). See also 20 Ga. Jur. Criminal Law § 7:17 (the holding in Bradford “may well have been different if the defendant had told the victim he had a weapon or had not been stopped shortly thereafter and ... found not to have a weapon. [Cit.]”).

“We have reviewed the evidence and find that a rational trier of fact could find [Heard] guilty beyond a reasonable doubt of hijacking a motor vehicle.” Johnson v. State, supra. Furthermore, viewed in a light most favorable to the verdicts, the evidence was sufficient to authorize a rational trier of fact to find Heard guilty beyond a reasonable doubt of all of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Edwards v. State, 282 Ga. 259, 260(1), 646 S.E.2d 663 (2007).

2. Heard contends that the trial court erroneously admitted his custodial statements, because the State failed to prove a knowing and voluntary waiver of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Even where, as here, a juvenile is involved, the question of whether there was a knowing and intelligent waiver of constitutional rights depends on the totality of the circumstances surrounding a police interrogation. [Cits.] “Among the factors to be considered are the accused's age and education; his knowledge of the charge and his constitutional rights; his ability to consult with family, friends, or an attorney; the length, method, and time of the interrogation; and whether he previously had refused to give a statement

or repudiated the statement later. [Cits.] On appeal, we accept the trial court's findings on disputed facts and credibility of witnesses unless clearly erroneous, but independently apply the law to the facts. [Cits.]”

Norris v. State, 282 Ga. 430, 431(2), 651 S.E.2d 40 (2007).

Construed in support of the trial court's ruling, the evidence shows that, at the time of his statements, Heard was 15 years old and between the eighth and ninth grades. He received average grades and was literate. His mother gave police detectives permission to interview Heard outside of her presence as part of their investigation into the shooting of Ramirez. “The fact that [Heard's] mother was not present was a factor for the trial court to consider, but it was not determinative on the issue of voluntariness. [Cit.]” Allen v. State, 283 Ga. 304, 306(2)(a), 658 S.E.2d 580 (2008). Neither Heard nor his mother ever asked that she be present.

Before Heard was asked about the shooting, a detective read the juvenile advisement of rights to him, and he expressed his understanding and executed a waiver thereof. Heard was informed that he did not have to talk to the police without a parent present. The detectives did not have probable cause to charge Heard at the time but, after he admitted some involvement in the shooting and his mother was informed, she requested an attorney and Heard was not questioned further. The interrogation lasted about an hour and a half and was followed by a brief admission by Heard that he was the one who shot the gun. Heard had not previously refused to give a statement, and he did not subsequently repudiate his statements.

At one point during the interview, one of the detectives confirmed Heard's belief in God and knowledge of the Ten Commandments, called murder a mortal sin to be answered for, and implied the need to confess while he has the chance. Heard argues that these statements constituted coercive interrogation tactics which induced his confession by “the slightest hope of benefit or remotest fear of injury” in violation of OCGA § 24-3-50. However, “[t]he fact that a confession has been made under a spiritual exhortation ... or a promise of collateral benefit shall not exclude it.” OCGA § 24-3-51. See also State v. Woods, 280 Ga. 758, 632 S.E.2d 654 (2006); Stafford v. State, 55 Ga. 591, 592(3) (1876). In other jurisdictions as well, “religious remarks [are] viewed as only one part of the totality of the circumstances...