306 Ga. 29 FINAL COPY
S19A0095. DOZIER v. THE STATE.
WARREN, Justice.
Keith Anthony Dozier was convicted of malice murder,
aggravated assault, and theft by taking in connection with the death
of Gail Spencer.1 On appeal, Dozier contends that the trial court
1 The murder was committed on October 5, 2012. On July 9, 2013, a Bibb
County grand jury indicted Dozier, Tracy Jones, Michael Brett Kelly, and Courtney Kelly for malice murder (Count 1); three counts of felony murder predicated on aggravated assault (Count 2), burglary in the first degree (Count 3), false imprisonment (Count 4); aggravated assault (with a handgun) (Count 5); burglary in the first degree (Count 6); false imprisonment (Count 7); and theft by taking (Count 8). Michael Brett Kelly was also indicted for aggravated sodomy (Count 9). At a separate trial held from May 26 to 28, 2015, a jury returned guilty verdicts against Dozier on all counts. The trial court sentenced Dozier to serve life without parole for malice murder, 20 years consecutive for aggravated assault, and 20 years concurrent for theft by taking. The three felony-murder counts were vacated by operation of law, and the trial court merged the remaining verdicts into the malice-murder conviction. It appears that the trial court should not have merged the burglary and false imprisonment verdicts, Johnson v. State, 300 Ga. 665, 667 (797 SE2d 903) (2017) (false imprisonment); Favors v. State, 296 Ga. 842, 848 (770 SE2d 855) (2015) (burglary), but those rulings have not been challenged on appeal. See Dixon v. State, 302 Ga. 691, 696-698 (808 SE2d 696) (2017). Dozier filed a timely motion for a new trial on June 2, 2015, and an amended motion through new counsel on April 19, 2018. The trial court held a hearing on May 31, 2018, and denied the motion as amended on June 12, 2018. Dozier filed a timely notice of appeal on June 12, 2018, and the case was docketed in this Court for the term beginning in December 2018 and orally argued on December 10, 2018. erred in sentencing him for felony theft by taking, failed to exercise
its discretion when it sentenced Dozier to life without parole for the
murder, erred when it recharged the jury on party to a crime, and
erred in denying a motion to suppress his statement to police.2 For
the reasons that follow, we affirm all of Dozier’s convictions except
for his conviction of felony theft by taking, which we reverse and
remand to the trial court with direction to enter a conviction and
sentence for misdemeanor theft by taking under OCGA § 16-8-2.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. Gail Spencer was
an office manager for Calder Pinkston & Associates, a real-estate
law firm, for about ten years.3 Among other things, she oversaw
real-estate closings and handled wire transfers. Dozier’s co-indictee,
2 On appeal, Dozier argued as “an initial matter,” but not as an enumeration of error, that the trial court failed to rule on the general grounds in denying his motion for new trial and asked this Court to remand the case accordingly. Dozier later filed a supplemental brief withdrawing that argument.
3 Spencer worked directly for Pinkston, for whom the law firm was also
named. Tracy Jones, worked for the firm as a secretary. Unlike Spencer,
Jones did not have authority to handle wire transfers without
permission, but she had been trained to complete wire transfers and
had done so on specific occasions when authorized.
Some of Dozier’s co-indictees devised a plan to hold Spencer
hostage so that Jones could go in to work to wire money to the co-
indictees — Tracy Jones, Michael Brett Kelly (“Brett”), and
Courtney Kelly (“Courtney”) — without Spencer’s oversight. The
group would then split the proceeds.4
On the morning of October 5, 2012, Jones, Brett, and Dozier
drove to Spencer’s home. Jones used a ruse to gain entry into
Spencer’s home, then sent a text message to Brett to come inside
with Dozier; they entered wearing ski masks and gloves and ensured
no one else was home. Jones left the house and texted Pinkston from
Spencer’s phone to say that Spencer was sick and would not be at
work that day. Jones then went to work and transferred about
$885,000 — separate transfers of $205,250, $429,550, and $249,750
4The record suggests that everyone but Dozier intended to flee to Canada after the money was transferred. — from the firm’s escrow account to three bank accounts held by
Courtney.
Meanwhile, Brett — who brandished a pistol — and Dozier
confronted Spencer and taped her to a chair. At some point, Brett
sodomized Spencer and then suffocated her with a plastic bag while
Dozier remained in the house as a lookout.5 Around 4:00 p.m.,
Dozier and Brett left the house. Spencer had agreed earlier that
morning to let her neighbors’ dog into their house, and hours after
Dozier and Brett left Spencer’s house, those neighbors returned
home to find the dog still outside. The neighbors became worried
and checked on Spencer; after she did not answer her door, the
neighbors called the police. The police forced entry into the home
and found Spencer dead in her bed.
Once the money was transferred into Courtney’s accounts, she
fled without sharing the proceeds and left the rest of the group
5 The evidence presented at trial showed that Brett’s first attempt at
suffocating Spencer with a pillow failed, at which point he left Spencer in the bedroom and talked with Dozier before going back in and killing Spencer with a plastic bag. The medical examiner testified that the cause of death was asphyxia. unpaid. As a result, Jones executed two more wire transfers on
October 9, 2012 — one for $245,000 and the other for $163,000 —
from the firm’s escrow account, bringing the total amount stolen to
just under $1.3 million. Between October 5 (the date of the first
transfers) and October 9 (the date of the second transfers), Dozier,
Jones, and Brett met several times at Jones’s apartment and visited
multiple banks to open accounts they could use to receive the
transfers. Meanwhile, investigators received a tip that led them to
Brett, who led them to Jones and Dozier. On October 10, 2012,
investigators read Dozier his Miranda rights, which he waived, and
investigators interviewed him for approximately three hours.
Though he initially denied involvement, he ultimately confessed to
all charges except for sodomy and murder. Dozier claimed in the
interview, and later testified at trial, that murdering Spencer was
not part of the plan, that he tried to talk Brett out of it, and that he
was coerced to stay in the house during Spencer’s sodomy and
murder.
Other than as to his conviction for felony theft by taking, Dozier does not challenge the sufficiency of the evidence against
him. Consistent with this Court’s practice, however, we have
independently reviewed the record and conclude that the evidence
was sufficient to authorize a rational jury to find beyond a
reasonable doubt that Dozier was guilty of the crimes of which he
was convicted, other than the felony theft by taking. See Jackson v.
Virginia, 443 U.S. 307, 318-319 (99 SCt 2781, 61 LE2d 560) (1979).
As to the theft by taking, the State concedes that Dozier should have
been convicted only of misdemeanor theft by taking, and considering
the indictment, the evidence presented at trial, the jury instructions,
and the verdict, we agree. Accordingly, we reverse the conviction for
felony theft by taking and remand for the trial court to enter a
judgment of conviction and impose a sentence for misdemeanor theft
by taking as a lesser included offense under Count 8 of the
indictment.
2. Dozier argues that the trial court failed to exercise its
discretion when it sentenced him to life without parole for the
murder conviction, thus requiring reversal of Dozier’s sentence. We disagree.
After Dozier was convicted on all counts at trial, the trial court
stated at sentencing:
I believe the law mandates a life without parole sentence. The law says if you have been convicted of a felony and you are subsequently convicted of another felony you have to be sentenced to the max. That’s the max. But even if it’s not mandated . . . the Court has the discretion to sentence you to life with parole or life without parole. I will exercise my discretion and sentence you to life without parole on count number one, malice murder.
(Emphasis supplied.) Even if the trial court mistakenly believed that
it might be required to sentence Dozier to life without parole for
murder as a recidivist under OCGA § 17-10-7 (a),6 any error caused
by its mistaken belief was harmless. That is because the record
shows that the trial court did exercise its discretion in sentencing
Dozier to life without parole. See Hampton v. State, 302 Ga. 166,
6 See Blackwell v. State, 302 Ga. 820, 828-831 (809 SE2d 727) (2018)
(rejecting argument that OCGA § 17-10-7 (a) requires a trial court to sentence a convicted felon to life imprisonment without the possibility of parole upon a subsequent murder conviction, and holding that OCGA § 17-10-7 (a) requires “the longest period of time prescribed for the subsequent offense”) (emphasis in original). 172 (805 SE2d 902) (2017) (holding that any alleged error was
harmless where “the trial court said that it thought that life without
parole was the statutorily mandated sentence, but that it would
have exercised its discretion to impose that sentence in any event”).
Indeed, the trial court specifically stated at sentencing that it had
the discretion to impose life without parole and was choosing to
exercise that discretion — a point it reiterated twice in its order
denying a motion for new trial. Accordingly, this enumeration of
error fails.
3. Dozier contends that the trial court abused its discretion by
recharging the jury on the theory of party to a crime without an
accompanying instruction on mere presence, mere association, and
knowledge, thereby overemphasizing the possibility of a conviction
as a party to a crime. We disagree.
After approximately three hours of deliberations, the jury sent
the court a note stating that it “would like to also clarify if in the
indictments where it states he or she, is it only speaking of the
physical person who did the crime.” The court called the jury into the courtroom to clarify its request, consulted with counsel for both
parties, and concluded that the jury was confused about Count 8 of
the indictment, which referenced “her fiduciary obligations” and
about the concept of party to a crime. Over Dozier’s objection, the
court recharged the jury on party to a crime, providing the same
pattern charge it initially had given the jury. It asked the jury
whether the recharge had helped, and the foreman responded, “Yes.
I believe that clarifies some of our concern.”
“‘A trial court has a duty to recharge the jury on issues for
which the jury requests a recharge.’” Barnes v. State, 305 Ga. 18, 23
(823 SE2d 302) (2019) (citation omitted). When “the jury requests
further instructions upon a particular phase of the case,” however,
“the court in (its) discretion may recharge them in full, or only upon
the points requested.” Salahuddin v. State, 277 Ga. 561, 564-565
(592 SE2d 410) (2004) (citation, punctuation and emphasis omitted).
Moreover, “[o]ur case law contains no general mandate requiring
trial courts, when responding to a jury’s request for a recharge on a
particular issue, to also recharge on all principles asserted in connection with that issue.” Id. at 564 (citation and punctuation
omitted).
Here, the trial court discerned that the jury was confused about
the legal theory of party to a crime. After acknowledging the jury’s
request for clarification and consulting with counsel for both parties,
the trial court recharged the jury on party to the crime and even
followed up by asking the jury if the recharge had helped. There is
no indication that in recharging the jury, the trial court put undue
emphasis on the party to the crime theory, and “nothing indicates
that the jury was confused after the recharge or that the recharge
left the jury with an erroneous impression of the law.” Barnes, 305
Ga. at 23. The trial court did not abuse its discretion, and this
enumeration of error fails.
4. Dozier claims that the trial court erred in denying his
motion to suppress the statement he made to police while he was
under arrest. Specifically, Dozier argues that (a) he invoked his
right to remain silent; (b) he invoked his right to counsel at least
twice; and (c) the totality of the circumstances show that his statement to police was involuntary. We disagree.
Generally, when reviewing a trial court’s ruling on a motion to
suppress, this Court must accept the trial court’s factual findings
unless they are clearly erroneous. See Drake v. State, 296 Ga. 286,
288 (766 SE2d 447) (2014). However, when, as here, “[t]here is no
dispute about what took place during the police interview in
question, since it was recorded with both video and audio” and when
“[t]he recording is part of the record on appeal, and the parties point
to no evidence beyond the recorded interview to support their
arguments regarding the admissibility of [a] confession,” we “review
de novo the trial court’s determinations of both fact and law.” Brown
v. State, 290 Ga. 865, 868 (725 SE2d 320) (2012); see also Johnson
v. State, 295 Ga. 421, 424 (761 SE2d 13) (2014).
(a) Dozier contends that the trial court erred when it
determined that he did not invoke his right to remain silent during
his interrogation when a detective asked Dozier, “Are we done?” and
Dozier replied, “Yes, sir.”
“[A]n accused may end a custodial interrogation at any time by invoking his constitutional right to remain silent. To do so, a
defendant must unambiguously and unequivocally express his
desire to invoke that right” before officers are required to stop their
questioning. Barnes v. State, 287 Ga. 423, 425 (696 SE2d 629)
(2010); see also Perez v. State, 283 Ga. 196, 197-200 (657 SE2d 846)
(2008); and Berghuis v. Thompkins, 560 U.S. 370, 381-382 (130 SCt
2250, 176 LE2d 1098) (2010). That determination depends on
whether a defendant articulates a “desire to cut off questioning with
sufficient clarity that a reasonable police officer in the
circumstances would understand the statement to be an assertion of
the right to remain silent.” Perez, 283 Ga. at 200 (citation and
punctuation omitted).
Here, the record shows that after waiving his Miranda rights,
Dozier was interrogated by police. He initially denied any
involvement in the crimes and asked to speak to his wife multiple
times “to let her know where I’m at” and “what’s going on.” The
detectives initially refused his requests. However, about 55 minutes
into the interview, the detectives allowed Dozier to call his wife and instructed him to use the speakerphone because the handset was
broken; they then left the room.7 When detectives re-entered the
room and continued the interrogation, Dozier continued to deny his
involvement in the crimes. Approximately one hour and fourteen
minutes into the interview, Detective Shurley, who was apparently
frustrated with Dozier’s refusal to provide detectives with any new
information that police had not already shared with Dozier, stated
something that sounded like: “I’m done,” and continued, “At this
point you’re being charged with murder. You’re gonna be
transported to the Bibb County LEC.” Detectives left the room, and
Dozier called his wife again, this time saying that he was being
charged with murder and taken to jail. He stated, “I guess we’re
going to have to try to get a lawyer, baby”; asked her to look into a
“paid attorney” or a court-appointed attorney; and remarked, “that’s
all I can do. I have to get a lawyer.”
A different detective, Chapman, entered to take over the
interrogation and told Dozier that he wanted to give Dozier one last
7 It is apparent from the record that detectives could hear Dozier’s phone
call. chance to tell his side of the story. Dozier continued to deny his
involvement in the crimes. Chapman told Dozier several times that
he would leave if Dozier was not going to be honest. After additional
questioning, Chapman — who was also apparently frustrated —
said, “It’s over buddy, have a good one ok. If you decide you know,
whatever, I don’t, I’m done alright. You good with that. I just gotta
feel like I’ve done everything. You good, are we done here?” Dozier
replied, “Yes, sir.” Chapman left the room, and Dozier called his
wife again. Detectives Shurley and Chapman re-entered the room
while Dozier was on the phone, and — after they told Dozier that
they would arrest his wife if she lied to them — Dozier admitted to
being involved in the theft and to holding Spencer hostage, detailing
what transpired inside the house during Spencer’s murder.
Viewed in context, Dozier’s response to Chapman’s question
was not an invocation of his right to remain silent, let alone an
“unequivocal and unambiguous” one. See Barnes, 287 Ga. at 425.
From the beginning, Detective Chapman used a strategy of giving
Dozier an opportunity to explain his side of the story, and then threatening to walk away when Dozier refused. Thus, when
Chapman asked, “Are we done here?” and Dozier replied, “Yes, sir,”
it was reasonable for detectives to interpret that exchange as
confirming that Chapman’s further efforts would be pointless — not
as Dozier invoking his right to remain silent. See Barnes, 287 Ga.
at 425 (a “defendant’s statement, ‘if you’re not going to talk real talk,
then we shouldn’t talk’ was not an unequivocal and
unambiguous invocation of his right to remain silent” and “lacked
sufficient clarity to lead a reasonable police officer to understand
that defendant was exercising his right to remain silent”); see also
Weaver v. State, 288 Ga. 540, 544 (705 SE2d 627) (2011) (officer had
no obligation to cease interrogation because defendant’s statement
“was part of the give and take of interrogation” and could be
“reasonably understood to express” something other than an
assertion of the right to remain silent) (citation and punctuation
omitted). Because Dozier’s response to Chapman’s question was
“plainly not an attempt to cut off questioning,” id. (citation and
punctuation omitted), the trial court did not err in denying Dozier’s motion to suppress on this ground.
(b) Dozier contends that the trial court erred when it found
that Dozier did not invoke his right to counsel. Notably, Dozier does
not argue that he invoked this right by making any kind of direct
statement or request to the police who interrogated him. Instead,
he contends that he asked his wife “to contact a lawyer at least twice
during follow-up conversations with her,” and that Dozier’s
statements to his wife amounted to an invocation of counsel because
police could hear those phone conversations.
It is well established that “[a] suspect who asks for a lawyer at
any time during a custodial interrogation may not be subjected to
further questioning by law enforcement until an attorney has been
made available or until the suspect reinitiates the conversation.”
Kirby v. State, 304 Ga. 472, 475 (819 SE2d 468) (2018) (citation and
punctuation omitted). To invoke this right, however, a suspect must
“‘articulate his desire to have counsel present sufficiently clearly
that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.’” Id. (citation omitted). However, “the mere mention of the word
‘attorney’ or ‘lawyer’ without more, does not automatically invoke
the right to counsel.” Reaves v. State, 292 Ga. 582, 586 (740 SE2d
141) (2013) (citation and punctuation omitted). Moreover, “[e]ven a
comment that a suspect would like counsel to be present in the
future is not a clear and unambiguous request for counsel.” Id. at
587. We have also held, however, that a suspect’s statement that he
wants to contact his wife so she may call his lawyer can constitute
an invocation of the right to counsel. See McDougal v. State, 277
Ga. 493, 499 (591 SE2d 788) (2004) (holding that a defendant
invoked his right to counsel when he stated that he “’would like to
[call] my wife so she can call my lawyer’” before signing a Miranda
waiver).
Here, the record confirms that Dozier mentioned a lawyer to
his wife multiple times during the phone calls he made to her while
he was in police custody. But these statements, unlike those in
McDougal, were not an invocation of the right to counsel. 277 Ga.
at 499. Indeed Dozier, unlike the defendant in McDougal, asked to speak to his wife so that he could let her know “where I’m at, what
was going on” — not so that she could contact an attorney. And at
most, Dozier’s statements to his wife were made to help secure “‘the
future assistance of an attorney, not immediate assistance.’”
Reaves, 292 Ga. at 587 (citation omitted); see also Dubose v. State,
294 Ga. 579, 581-582 (755 SE2d 174) (2014). Because a reasonable
officer would not have interpreted these statements as an invocation
of Dozier’s right to counsel, the trial court did not err when it denied
Dozier’s motion to suppress on this basis.
(c) Dozier contends that, under the totality of the
circumstances, his statement to police was involuntary and that it
therefore should have been suppressed. Specifically, he argues that
the detectives’ claim that they would arrest Dozier’s wife if she lied
to police amounted to coercion.
For a confession to be admissible, the State bears the burden
of showing that it was made voluntarily. See Welbon v. State, 301
Ga. 106, 109 (799 SE2d 793) (2017); see also Lego v. Twomey, 404
U.S. 477, 489 (92 SCt 619, 30 LE2d 618) (1972). “In determining whether a defendant’s statement was voluntary as a matter of
constitutional due process” we “must consider the totality of the
circumstances.” Olevik v. State, 302 Ga. 228, 248 (806 SE2d 505)
(2017) (citation and punctuation omitted). Coercive police activity—
such as “excessively lengthy interrogation, physical deprivation,
[and] brutality,” Price v. State, 305 Ga. 608, 612 (825 SE2d 178)
(2019) (citation and punctuation omitted) — “is a necessary
predicate to the finding that a confession is not ‘voluntary’ within
the meaning of the Due Process Clause of the Fourteenth
Amendment.” State v. Troutman, 300 Ga. 616, 618 (797 SE2d 72)
(2017) (citation and punctuation omitted).
Here, the record lacks any evidence of the physical or mental
hallmarks of coercive activity, despite Dozier’s complaints about
statements detectives made about arresting his wife. With respect
to those statements, the record shows that Detectives Shurley and
Chapman re-entered the room during one of Dozier’s phone calls to
his wife and told her over the speakerphone that they would send an
investigator to pick her up, stating to her: “You say this man was with you. I’m willing to give you an opportunity to give that
statement. . . . And if you wanna provide a statement saying that
your husband was with you I’ll document it for you on his behalf,
ok.”8 Chapman ended the call and told Dozier that he would arrest
Dozier’s wife if she lied about Dozier’s whereabouts that morning —
and that Chapman would know she was lying because police had
video surveillance of Dozier arriving at Jones’s apartment and
leaving in Jones’s car on the day of Spencer’s murder. Dozier asked
for “ten minutes” to call his wife again and “another cigarette.” The
detectives left the room and Dozier called his wife. Among other
things, he told her: “don’t worry about” giving a statement; “I have
to be a man and stand up for what I did”; and “I have to tell them
the truth.” When detectives re-entered the room, Dozier admitted
to being involved in the theft and to holding Spencer hostage,
detailing what transpired inside the house during Spencer’s murder.
Viewed in context and as part of all of the circumstances
8 This statement appeared to be a strategic technique, because the record
indicates that earlier in the day Dozier’s wife had also already told detectives that she did not see Dozier the morning of the murder. surrounding Dozier’s interrogation, the detective’s statement that
he would arrest Dozier’s wife if she lied about Dozier’s whereabouts
was a “‘mere truism’ and not the type of statement that would
necessarily render a confession involuntary.” See State v. Davison,
280 Ga. 84, 86 (623 SE2d 500) (2005) (“[I]t is not a coercive tactic for
a police officer to threaten to arrest a person for committing a crime
in his presence, as he is constitutionally authorized to do.”). These
tactics did “not rise to techniques and methods offensive to due
process or create circumstances in which the suspect clearly had no
opportunity to exercise a free and unconstrained will.” Troutman,
300 Ga. at 619 (citation and punctuation omitted). Accordingly, the
trial court did not err in denying Dozier’s motion to suppress on the
theory that Dozier’s statement was involuntary, and his
enumeration on this basis fails.
Judgment affirmed in part and reversed in part, and case
remanded with direction. All the Justices concur. Decided June 3, 2019.
Murder. Bibb Superior Court. Before Judge Simms.
Cara Clark, for appellant.
K. David Cooke, Jr., District Attorney, Shelley T. Milton, John
A. Regan, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, Jason
M. Rea, Assistant Attorney General, for appellee.