300 Ga. 574 FINAL COPY
S16A1545. HARRINGTON v. THE STATE.
NAHMIAS, Justice.
Appellant Brandon Harrington was convicted of the malice murder and
armed robbery of Mamie Wright and related crimes. On appeal, he contends
that the trial court erred in admitting his custodial interviews and that the
evidence presented at trial was insufficient to support his conviction for armed
robbery. We agree with the latter contention and reverse Appellant’s armed
robbery conviction. We also have identified a merger error made by the trial
court in sentencing Appellant, and we therefore vacate the judgment in part and
remand for Appellant to be sentenced for burglary. We otherwise affirm the
trial court’s judgment.1
1 The crimes occurred on January 5, 2011. On May 16, 2011, a Crisp County grand jury indicted Appellant for malice murder, felony murder based on burglary, felony murder based on aggravated assault, aggravated assault, armed robbery, burglary, possession of a firearm during the commission of a felony (burglary and aggravated assault), and two counts of possession of a firearm by a first offender probationer. The last two firearm charges were bifurcated for trial, and Appellant was tried on the seven other charges from March 5 to 9, 2012, and found guilty of all of them. On March 9, he was tried on and found guilty of the final two firearm possession charges. The trial court sentenced Appellant to serve life in prison without parole for malice murder, a concurrent life sentence for armed robbery, and consecutive terms of five years for each of the three firearm convictions. The court merged the remaining counts. As discussed in Division 2 (c) below, the trial court erred in merging the burglary count, and Appellant should be sentenced on that charge. 1. Viewed in the light most favorable to the verdicts, the evidence
presented at trial showed the following. On the morning of January 5, 2011, 72-
year-old Mamie Wright went grocery shopping. At 10:43 a.m., she called 911,
saying that she had found an intruder when she arrived home and that he had
shot her and then fled. When paramedics arrived, they found Wright seriously
wounded but alive and responsive, lying on her back on her bedroom floor. She
had been shot twice, once in her neck and once in her chest. Wright said she did
not know the intruder, whom she described as a black man wearing a red shirt
and blue jeans. She was taken to the hospital, where she died later that day from
internal bleeding caused by the bullet wounds. The bullet in her chest was
recovered during her autopsy.
The GBI crime scene investigator testified that Wright’s trailer home
appeared to have been burglarized. A window had been broken and raked out
to allow someone to crawl through it. Wright’s bedroom had been ransacked,
with drawers open, items overturned, two piggy banks opened and change
strewn on the bed, and a rolled-up birth certificate on the floor. In addition,
Appellant filed a timely motion for new trial, which the trial court denied on March 18, 2016. Appellant then filed a timely notice of appeal, and the case was docketed in this Court for the September 2016 term and submitted for decision on the briefs.
2 discarded Christmas wrapping paper was found on the living room floor. Three
bullets were found at the scene — one in a chest in the bedroom, one in the
doorway of the bedroom, and one under the trailer. The bullets were fired from
a revolver, and analysis of the placement of these bullets and other bullet marks
indicated that a total of five shots had been fired in the home. Analysis of
bloodstains, which included one big and deep stain in Wright’s bedroom and
several smaller transfer stains, indicated that one shot was fired almost straight
down at the victim on the floor — an “execution type shot.” Bags of groceries
were lying nearby, just inside the bedroom door.
Appellant lived in the housing complex across the street from Wright’s
trailer, and he was interviewed initially as part of a general canvas of the area.
He said that he had been home all day except for a trip to a convenience store
around 10:30 a.m. Further investigation revealed that Wright owned a cell
phone, which she had deactivated about six weeks earlier. The phone was
reactivated on the day of the murder, January 5, and after five unsuccessful
attempts, was assigned Appellant’s phone number and transferred to his Verizon
account. The first attempt was made at 11:19 a.m.; the final one at 12:58 p.m.
Based on this information, investigators went to Appellant’s residence shortly
3 after 11:00 p.m. on January 6. When they arrived, they found him near his
house inside a car with a woman. After he got out, the woman handed the
investigators a cell phone that he had left in the car. It was Wright’s cell phone.
Appellant was taken into custody.
Investigators then searched Appellant’s house and his mother’s dark blue
Buick SUV, which he drove sometimes. In Appellant’s house, they found a box
with several different types of handgun ammunition, including .38 caliber
cartridges, and a Wii video game console. Wright had kept in her home a Wii
console wrapped in paper that looked like the paper found on her living room
floor. In the SUV, investigators found a large shoebox containing a number of
items linked to Appellant, including his NRA membership application and a
digital scale with his thumbprint, and a number of items linked to Wright,
including pins commemorating her service with the American Legion Auxiliary
and her daughter’s work at the Atlanta Journal-Constitution, a decorative birth
certificate holder, and micro-cassettes with her voice on them. The birth
certificate found in Wright’s home fit in the decorative holder. The shoebox
also contained a .32 caliber revolver, a .38 caliber revolver, .38 caliber
4 ammunition, and cartridge cases from fired .38 caliber rounds.2 The .38 caliber
revolver had two bullets inside, which were the same type as the bullet found
under Wright’s trailer, and ballistics testing showed that this revolver was the
gun that shot the bullet extracted from Wright’s body and the three bullets found
at the crime scene.
Surveillance video from the housing complex where Appellant lived
showed a black male wearing a large white jacket and dark pants walking
through the complex from the direction of Wright’s home carrying two armloads
of items at 9:51 a.m. The man walked into Appellant’s house at 9:52 a.m. At
10:25 a.m., he left Appellant’s house in a dark-colored SUV, returning at 10:41
a.m., two minutes before Wright’s 911 call. Surveillance footage from a nearby
convenience store showed that Appellant, who is a black male, was there
between 11:39 a.m. and 11:44 a.m., wearing a large white jacket and dark pants
and driving an SUV matching the SUV from the housing complex video.
Appellant spoke to investigators in two video recorded custodial
interviews, both of which were played for the jury over his objection. In these
2 Appellant’s possession of these two guns was the basis for his two convictions for possession of a firearm by a first offender probationer.
5 statements, as in his initial, non-custodial statement, Appellant claimed that the
only time he left his house on the day of the murder was to go to the store
around 10:30 a.m. Although he denied any involvement in the crimes, in the
second interview he acknowledged his possession of Wright’s cell phone and
the items found in the SUV; he claimed that he bought the phone from a crack
addict and found the other items. The State also presented similar transaction
evidence that Appellant had committed two other burglaries near the housing
complex where he lived, stealing military service pins and cell phones from one
residence and jewelry from another.3 Appellant did not testify at trial.
2. (a) Appellant contends that the evidence presented at trial was
legally insufficient to support his conviction for armed robbery. We agree. The
indictment alleged that Appellant committed armed robbery in violation of
OCGA § 16-8-41 by “unlawfully tak[ing] a . . . cell phone . . . from the
immediate presence of Mamie Evelyn Wright, by the use of a handgun.” “The
State therefore was required to prove beyond a reasonable doubt that
[Appellant]’s use of the handgun occurred ‘prior to or contemporaneously with
3 Because this case was tried before January 1, 2013, it was governed by Georgia’s old Evidence Code. See Ga. L. 2011, p. 99, § 101.
6 the taking’” of the cell phone. Fox v. State, 289 Ga. 34, 36 (1) (b) (709 SE2d
202) (2011) (citation omitted). Moreover, “the ‘taking’ of property is not a
continuing transaction which ends only when the defendant leaves the presence
of the victim. Instead, the taking is complete once control of the property is
transferred involuntarily from the victim to the defendant, even if only briefly.”
Id. (citations omitted).
The evidence at trial showed that Wright found Appellant inside her
trailer when she came home from the grocery store. But there was no direct
evidence that Appellant took the cell phone from Wright after she arrived, and
it is at least equally possible to infer from the evidence that Appellant took
possession of the phone before Wright interrupted his burglary during his
second entry into her home. In particular, the evidence showed that Wright had
deactivated the cell phone several weeks earlier, making it unlikely that she was
carrying the phone around with her; that Appellant walked to his house from
Wright’s trailer carrying two armloads of items and then drove back to the
trailer several minutes before Wright discovered him; and that Appellant fled the
trailer immediately after shooting Wright, making it less likely that he paused
to steal more items after confronting her. Because it is at least equally likely
7 that Appellant took the cell phone before rather than after encountering the
victim, the evidence was insufficient to support a finding beyond a reasonable
doubt that Appellant used a handgun to take the cell phone from Wright.
Accordingly, Appellant’s armed robbery conviction must be reversed. See Fox,
289 Ga. at 37; former OCGA § 24-4-6 (“To 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 of the accused.”).
(b) Appellant does not dispute that the evidence was sufficient to support
the jury’s verdicts of guilty on the other counts of the indictment. Nevertheless,
as is this Court’s practice in murder cases, we have reviewed the record, and we
conclude that the evidence presented at trial and summarized above was legally
sufficient to authorize a rational trier of fact to find beyond a reasonable doubt
that Appellant was guilty of those crimes. See Jackson v. Virginia, 443 U. S.
307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga.
32, 33 (1) (673 SE2d 223) (2009) (“‘It was for the jury to determine the
credibility of the witnesses and to resolve any conflicts or inconsistencies in the
evidence.’” (citations omitted)).
8 (c) As the State correctly points out, however, the trial court erred in
merging Appellant’s guilty verdict for burglary into the verdict for felony
murder based on burglary. Because that felony murder count was actually
vacated by operation of law, the burglary count could not merge into it, and
burglary also does not merge into a malice murder conviction. See Lupoe v.
State, 300 Ga. 233 (794 SE2d 67) (2016); Favors v. State, 296 Ga. 842, 848
(770 SE2d 855) (2015). Accordingly, we vacate the judgment in part and
remand the case to the trial court with direction to enter a conviction and impose
a sentence on the burglary count.
3. Appellant contends that the trial court erred in denying his motion to
suppress his two recorded custodial interviews. GBI Agent Blair Sasnett and
Cordele Police Department Detective Ketorie Sales conducted the two
interviews with Appellant at the police station shortly after he was taken into
custody on the night of January 6, 2011. Before trial, Appellant filed a motion
to suppress on the ground that portions of the first interview and all of the
second interview were conducted after he invoked his right to remain silent.
9 The trial court denied Appellant’s motion after holding a Jackson-Denno4
hearing at which the video recordings of the interviews were played and Agent
Sasnett and Detective Sales testified. We see no reversible error in that ruling.
(a) As to the first interview, the video recording shows that it began at
12:59 a.m. and lasted about an hour. The officers first went over Appellant’s
rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)
(1966), including his right to remain silent and to have an attorney present, and
Appellant signed a waiver of those rights and agreed to talk about the shooting
at the victim’s home. Appellant also consented to a gunshot residue test of his
hands. After that test was completed, he was questioned about his activities on
January 5; Appellant repeatedly denied any involvement in the shooting or
burglary.
The officers then told Appellant that they knew he had the victim’s cell
phone, and asked how he got it. About 58 minutes into the interview, the
following exchange occurred:
AGENT SASNETT: You need to start talking. APPELLANT: Naw, I don’t need to start doing nothing.
4 See Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
10 AGENT SASNETT: Yeah you do! DETECTIVE SALES: Brandon! Think about this. Think about all this man. Take a deep breath and think about it. APPELLANT: Listen, man, I’m tired of talking. You feel me. I want to eat. I’m tired of talking. AGENT SASNETT: You tired of talking? APPELLANT: Whatever y’all say y’all got. Y’all say y’all got evidence on me cuz? Lock me up, you feel me! Know what I’m saying? If y’all ain’t, I’m ready to go home, cuz. Talkin’ and. DETECTIVE SALES: Well, let’s sit back and think about what we said for a while. I really want you to sit back and think. Sit back and think about some stuff. Uh, I want you to have some me time. And think about all this. AGENT SASNETT: Alright, let’s take him back, come on. Let’s go. APPELLANT: Man, y’all can take me to the county for this s**t, cuz. Man, listen man, naw listen. I ain’t mother f**kin shot nobody dog! I ain’t broke in nobody’s s**t, cuz. Y’all ain’t fixin to pin s**t on me my ni**a. F**k you then cuz. DETECTIVE SALES: How did you get the phone? APPELLANT: Man, man, listen, man.
The officers then continued to question Appellant about the victim’s cell
phone, and he continued to deny any involvement in the crimes. About two
minutes later, Appellant said, “Man, I ain’t got nothing else to say dog” and
“I’m ready to go cuz.” The officers then stopped their questioning and took
11 Appellant to a holding cell. Agent Sasnett returned to the interview room within
a minute and ended the interview tape at 2:00 a.m. by saying that Appellant
“advised he did not want to talk anymore. Interview was concluded.”
Appellant asserts that his statements “I’m tired of talking” and “I’m ready
to go home” were an invocation of his right to silence that was not honored. But
we need not decide if Appellant unequivocally invoked his right to remain silent
with these statements. See Mack v. State, 296 Ga. 239, 242 (1) (765 SE2d 896)
(2014) (“‘[A]n assertion of the right to remain silent during custodial
interrogation must be unambiguous and unequivocal before interrogators are
required to stop their questioning[.]’” (citation omitted)). Even assuming that
the two-minute portion of the first interview that followed this alleged
invocation should not have been admitted by the trial court, any error was
harmless beyond a reasonable doubt. Appellant’s subsequent statements were
simply continued denials of guilt consistent with his previous, unobjected-to
statements and with his defense at trial; likewise, the officers’ indication that
Appellant had the victim’s cell phone was cumulative of other evidence,
including their statements earlier in the interview and testimony from the
woman who gave the phone to the officers. See Cook v. State, 274 Ga. 891, 896
12 (4) (561 SE2d 407) (2002) (“[A]ny error in admitting the statements at issue
must be deemed harmless because the statements were echoed by other
independent evidence at trial.” (citation omitted)).
(b) As to the second interview, “[w]here a defendant’s right to remain
silent has not been scrupulously honored, a [later] statement by the defendant
will be deemed properly obtained only if the defendant himself initiates the
communications with law enforcement authorities.” Mack, 296 Ga. at 244 (2).
Detective Sales testified at the Jackson-Denno hearing that after the first
interview ended, Appellant was taken to a holding cell, given something to eat
and drink, and allowed to use the bathroom. The detective testified that at some
point later, Appellant said, “If you’ll let me smoke a cigarette I’ll talk some
more.” Appellant was then allowed to smoke a cigarette outside before he was
taken back to the interview room, where the recording of the second interview
began at 4:03 a.m. On cross-examination, Detective Sales testified that he could
not remember the precise circumstances leading to Appellant’s offering to talk
more, explaining: “I don’t know if I was going by the holding cell and I heard
him mumbling or he asked something or if it was during the time that we were
getting him the chips and drink.” At the beginning of the second interview, the
13 officers again went over Appellant’s Miranda rights, and he again signed a
waiver of those rights. He was then questioned for about an hour.
The trial court did not err in admitting this interview, because the record
supports the court’s conclusion that it was initiated by Appellant. See Mack,
296 Ga. at 248 (2) (b) (“On appeal, the reviewing court must accept the trial
court’s findings of disputed fact regarding ‘initiation’ unless clearly erroneous.
However, the court must review de novo the determination of whether the facts
so found constitute an effective ‘initiation’ in the legal sense.” (citations
omitted)). Although Detective Sales could not remember the precise sequence
of events leading to Appellant’s offer to speak further about the case, the
detective testified directly that Appellant was never questioned about the case
in the holding cell and that Appellant initiated the additional discussion about
the case. See Mack, 296 Ga. at 246 (2) (b) (“‘[I]nitiation’ requires not only that
the defendant speak up first but also that his words reflect a desire to discuss the
investigation at hand.” (citation omitted)). Whether Appellant did so when
Detective Sales was passing by his cell or was delivering food is immaterial.
Moreover, the trial court properly concluded that Appellant’s initiation of
further discussion about the case was not “the product of past police
14 interrogation conducted in violation of [his] previously invoked rights.” Mack,
296 Ga. at 248 (2) (b). Even if we again assume that the officers violated
Appellant’s right to remain silent 58 minutes into the first interview, the final
two minutes of that interview consisted mainly of Appellant’s denying his
involvement in the crimes while the officers asked about the victim’s cell phone.
When Appellant unequivocally said, “Man, I ain’t got nothing else to say,” the
officers ended the interview. Appellant then made an unsolicited offer to talk
more about the case during a two-hour break when he was left by himself in a
holding cell. See Cheley v. State, 299 Ga. 88, 92 (786 SE2d 642) (2016)
(holding that, after Cheley said he was “done talking” and was given a break to
smoke, he initiated further questioning by telling officers during the break that
he wanted to continue his statement). Compare Mack, 296 Ga. at 249 (2) (b)
(concluding that Mack did not initiate his third interview where “Mack’s request
to speak with [the investigator] was made just minutes after the cessation of
more than one-and-a-half hours of police questioning, conducted in violation of
Mack’s previously invoked right to remain silent, during which [the
investigator] repeatedly implored, badgered, and cajoled Mack to tell the truth,”
all of which “followed the interrogation of the previous day, in which [the
15 investigator] had also blatantly ignored Mack’s invocation of his Fifth
Amendment privilege”). Accordingly, the trial court did not err in admitting
Appellant’s second custodial interview.
Judgment affirmed in part, reversed in part, and vacated in part, and case
remanded for resentencing. All the Justices concur.
Decided February 27, 2017.
Murder. Crisp Superior Court. Before Judge Hughes.
David J. Walker, Katherine L. Dodd, for appellant.
Bradford L. Rigby, District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.