Harris v. State

886 S.E.2d 790, 316 Ga. 141

• Court: Supreme Court of Georgia
• Decided: April 18, 2023
• Docket: S23A0141
• Status: Published

Opinion

316 Ga. 141 FINAL COPY

S23A0141. HARRIS v. THE STATE.

MCMILLIAN, Justice.

In October 2019, a jury found Evins Vontravis Harris guilty of

felony murder and other crimes in connection with the shooting

death of Darius Roberts.1 On appeal, Harris asserts that the trial

court erred in denying him immunity from prosecution and abused

1 Darius was killed on or about May 7, 2018. On June 7, 2018, a Camden

County grand jury indicted Harris for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault (Count 3), voluntary manslaughter (Count 4), tampering with evidence (Count 5), and two counts of possession of a firearm during the commission of a felony (Counts 6 and 7). At a trial in October 2019, a jury acquitted Harris of malice murder and voluntary manslaughter but found him guilty of the remaining counts. On November 26, 2019, the trial court sentenced Harris to serve life in prison with the possibility of parole on Count 2, five years consecutive on Count 6, and twelve months on Count 5 to be served concurrently with Count 6. The remaining counts were merged for sentencing purposes. Harris timely filed a motion for new trial, which was amended through new counsel on May 7, 2021. Following a hearing, the trial court denied the motion on June 16, 2022. On August 15, 2022, Harris filed a motion to set aside the order denying his motion for new trial because his counsel had not received the order until after the time for filing a notice of appeal had passed. The trial court granted the motion to set aside and reissued the order denying Harris’s motion for new trial on August 24, 2022. Harris then timely appealed, and the case was docketed to the term of this Court beginning in December 2022. its discretion by admitting an in-life photograph of Darius at trial.

For the reasons that follow, we discern no reversible error and

affirm.

The evidence presented at trial showed that Harris lived with

his girlfriend, Daysha Roberts, and their infant son in a two-

bedroom home in Camden County. Daysha’s brother, Darius, also

lived with them, although he did not pay rent. On May 6, 2018,

Harris and Daysha were in the process of moving out because they

were both unemployed and could no longer afford the rent.2 Late

that evening, Harris said he wanted to go to his mother’s house and

was going to call a cab. He then threw his phone on the bed and left.

At that time, Darius was lying on the couch by the front door,

listening to music on Daysha’s phone with over-the-ear

headphones.3

2 Daysha testified that Harris had actually begun staying most nights

with his mother after he and Daysha had an argument in April. 3 In the week before his death, Darius often slept on the couch because

someone had recently burglarized the apartment and he wanted to be able to protect himself and Daysha in case of another intruder. Harris later admitted to Daysha that he was the one who had broken into their apartment and taken the items — which included televisions, clothing, and Darius’s gun — but he did not give her a reason why. 2 Harris returned home approximately 30 minutes later and

entered the bedroom he shared with Daysha and their child. He told

her the cab never came and asked for his cell phone. Daysha pointed

to the phone, and Harris grabbed it and left the room. About ten

seconds after Harris left the room, Daysha heard three gunshots.

She placed her child in the closet, approached the bedroom doorway,

and heard two more shots. When Daysha opened the bedroom door,

she heard the front door forcefully open, followed by the sound of

someone running outside. Daysha then saw Darius lying on the floor

and ran outside to knock on her neighbor’s door to ask for help. The

neighbor called 911 and, at the direction of the 911 dispatcher, told

Daysha to go back inside and see if Darius was still breathing.

Daysha found her brother face-down and unresponsive. As she rolled

him over, she took her cell phone from his hand and threw it on the

couch.

Officer Samantha Swartz of the Kingsland Police Department

was dispatched to the scene. When she arrived, she saw the victim

lying on the floor in front of the couch, face down, with his head

3 positioned toward the front door. After determining that he was not

breathing, she began chest compressions but was unable to revive

him. She did not see a weapon near Darius’s body. A recording from

Officer Swartz’s body camera was played for the jury.

The GBI was called to assist in the investigation, and Special

Agent Jamie Karnes located seven spent shell casings from a .380-

caliber firearm throughout the living room. Based on bullet defects

found on the couch, cushions, and carpet, Agent Karnes determined

that the shots appeared to have been fired from a downward angle.

While searching the couch for additional shell casings, Agent Karnes

found a 9mm Smith & Wesson handgun hidden underneath a sofa

cushion containing 13 unfired 9mm cartridge casings. No rounds

were found in the chamber of the Smith & Wesson, meaning that

the gun was not in a position where a pull of the trigger would

discharge the weapon. No 9mm spent shell casings were found at

the scene.

When Harris arrived at the hospital where first responders

brought Darius’s body, he ran over and said, “Daysha, I’m sorry.”

4 Law enforcement officers then took Harris into custody. After being

advised of his rights under Miranda,4 Harris agreed to be

interviewed and eventually told detectives that he shot Darius in

self-defense. At various points in the interview, Harris claimed that

Darius had been raping him, his one-year-old child, his younger

brother and sister, and Daysha.5 Harris also claimed that Darius

had pulled a gun on him several times in the past. A recording of the

interview was played for the jury at trial.

Daysha testified that shortly before the shooting, Harris had

become paranoid and accused her multiple times of cheating on him.

After one argument, she went inside their home and locked the door,

but Harris kicked the door in, damaging the doorframe. She told

Harris’s mother about his concerning behavior, and his mother tried

4 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)

(1966). 5 Based on these allegations, officers arranged for an examination of

Harris with a sexual assault nurse who found no evidence of acute or traumatic injury. Harris explained to the nurse that he would wake up and suspect that he had been sexually assaulted but that he was usually under the influence of drugs when this happened and could not remember the details. He also reported that Darius may have been “spiking his weed.” Daysha denied that her brother had been raping her or her son. 5 to get him help, but he refused. Daysha had never seen Darius pull

a gun on Harris.

The medical examiner testified that Darius sustained seven

gunshot wounds, including one on the top of his head and two in his

back. A GBI firearms examiner testified that each of the bullets

recovered from Darius’s body during the autopsy was fired from the

same .380-caliber semi-automatic pistol. Although the firearm used

in the shooting was never recovered,6 Daysha testified that she had

seen Harris with a gun that his friend had sold to him prior to the

shooting.

1. Harris first contends that the trial court erred in denying his

pre-trial motion for immunity from prosecution under OCGA § 16-

3-24.27 on the basis that he was reasonably defending himself

6 Harris led officers to several different areas where he claimed that he

threw the gun, but they were unable to locate it. 7 OCGA § 16-3-24.2 provides:

A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 of Article 4 of Chapter 11 of this title.

6 against Darius and was justified in his use of force. We disagree.

To avoid trial on this ground, a defendant bears the burden of

proof to show that he is entitled to immunity by a preponderance of

the evidence. See Hughes v. State, 312 Ga. 149, 156 (4) (861 SE2d

94) (2021). In reviewing a trial court’s ruling on a motion for

immunity from prosecution, “the evidence is viewed in the light most

favorable to the trial court’s ruling, and the trial court’s findings of

fact and credibility determinations are accepted if there is any

evidence to support them.” Id.

Here, Harris testified at the immunity hearing that he had

asked Darius for rent money because he and Daysha were having

money problems, but Darius refused. Harris also testified that

Relevant to Harris’s motion here, OCGA § 16-3-21 (a) provides: A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm 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. 7 Darius “started putting a firearm on [him] . . . in [his] own home”

three or four times prior to the shooting. This prompted Harris to

buy a gun, which he loaded on the night of the shooting “just in case

anything happened before [he] got ready to leave the house.” Then,

as he exited his bedroom, Harris testified, he heard what he believed

to be the sound of a round being chambered and turned to see Darius

pointing a gun at him while Darius was still lying on the couch.

Believing that Darius was going to shoot him, Harris shot at Darius

as he ran from the home.

Daysha testified at the immunity hearing that Harris had

never told her about any such alleged incidents with Darius and that

Harris had been acting strangely prior to the shooting. The

interviewing detectives testified that Harris gave conflicting

statements regarding the shooting and brought officers to various

locations where he supposedly disposed of the gun, but they were

never able to recover the weapon. A recording of Harris’s interview

was played at the hearing. Special Agent Karnes also testified as to

the forensic evidence found at the scene.

8 In denying the motion for immunity, the trial court determined

that the physical evidence and other testimony showed that the

encounter did not occur in the manner Harris described and that

Harris may have been motivated by anger or aggression rather than

self-defense. And when considering the issue again after it was

raised in Harris’s motion for new trial, the trial court further

explained that the evidence at the immunity hearing showed that

there had been tension between Harris and Darius immediately

preceding the shooting. Harris had recently lost his job and asked

Darius to help with rent, but Darius did not have any money. Harris

also claimed that Darius was drugging and sexually assaulting him,

his child, and Daysha, yet Harris never asked Darius to move out of

the home and never notified law enforcement. The evidence also

showed that there was no gun in the vicinity of Darius’s body, but

rather a gun was hidden underneath a cushion with no bullet in the

chamber, and that Harris fled the scene and lied to officers about

where he disposed of his gun.

On appeal, Harris claims that because he was the only witness

9 who was present when the events transpired, the trial court erred

when it did not credit his testimony and did not grant him

immunity. However, other than Harris’s self-serving testimony,

there is no evidence that Harris acted in self-defense. Rather, as the

trial court concluded, the evidence showed that Harris was upset

with Darius for failing to help with rent. The forensic evidence

showed that Darius was not holding a weapon at the time that

Harris shot him multiple times, including in the top of the head and

in the back, indicating that Darius was not confronting Harris when

Harris fired several of the shots. Harris also fled the scene, disposed

of the weapon, and later misled the police about the location of the

gun, prompting officers to look in several locations without success.

Thus, the trial court’s factual findings and credibility

determinations were supported by evidence presented at the

immunity hearing, and the trial court was authorized to reject

Harris’s self-serving testimony and deny his motion for immunity

from prosecution. See Ellison v. State, 313 Ga. 107, 111 (868 SE2d

189) (2022) (given the evidence presented, the trial court was

10 authorized to reject the defendant’s self-serving testimony and

conclude he had not met his burden to prove justification);

Hornbuckle v. State, 300 Ga. 750, 753 (2) (797 SE2d 113) (2017) (trial

court was authorized to conclude defendant’s actions were motivated

by aggression or anger and to deny immunity from prosecution

where the physical evidence and defendant’s statements provided

some evidence that the encounter did not occur in the manner she

alleged). Accordingly, this enumeration of error fails.

2. Harris also asserts that the trial court plainly erred in

admitting an in-life photograph of Darius. We are not persuaded.

At trial, the State called Tasheka Roberts, Darius’s mother, to

present a single in-life photograph of Darius. After Darius’s mother

confirmed that the photograph, which depicted Darius alone against

a neutral background, clearly and accurately reflected how Darius

looked in the weeks before his death, the State asked to enter the

photograph as an exhibit. Harris’s counsel then stated, “No

objection, Your Honor.” In ruling on this issue in Harris’s motion for

new trial, the trial court determined that Harris’s trial counsel

11 affirmatively waived any objection to the admission of the

photograph.

On appeal, Harris asserts that, despite his trial counsel’s

failure to object, the trial court committed plain error in admitting

the photograph because it likely stoked the jury’s emotions through

the victim’s mother. To prevail on this claim, Harris must satisfy all

four prongs of the plain-error test:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Williams v. State, 315 Ga. 490, 495 (2) (883 SE2d 733) (2023)

(citation and punctuation omitted; emphasis in original).

Here, assuming without deciding that Harris did not

12 affirmatively waive the claim of error through his counsel’s

statement that she had no objection to the admission of the in-life

photograph, we conclude that any error did not affect Harris’s

substantial rights. Darius’s mother’s testimony was very brief, and

the photograph was fairly benign, depicting Darius alone on a

neutral background. Moreover, there is no indication that Darius’s

mother became emotional during her testimony, and the evidence

against Harris was strong. Thus, Harris cannot show that the

admission of Darius’s in-life photograph probably affected the

outcome below. See Williams, 315 Ga. at 496 (2) (we need not

analyze all four prongs where an appellant fails to establish one of

them); Bozzie v. State, 302 Ga. 704, 708 (2) (a) (808 SE2d 671) (2017)

(no plain error because, given the strength of the evidence against

the defendant, he could not establish that the admission of a single

in-life photograph of the victim with his wife and grandchildren

probably affected the outcome below). Accordingly, Harris cannot

show plain error, and this enumeration of error fails.

Judgment affirmed. All the Justices concur.

13 Decided April 18, 2023.

Murder. Camden Superior Court. Before Judge Kelley.

Robert L. Persse, for appellant.

Keith Higgins, District Attorney, Benjamin E. Gephardt,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Beth A. Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Eric C. Peters, Assistant Attorney

General, for appellee.