Mercer v. Johnson, Warden

304 Ga. 219

• Court: Supreme Court of Georgia
• Decided: August 14, 2018
• Docket: S18A0748
• Status: Published

Opinion

304 Ga. 219 FINAL COPY

S18A0748. MERCER v. JOHNSON.

HINES, Chief Justice.

In 2004, appellant Jessie Mercer was convicted of the kidnapping of

Richard Love and his wife, Parchando Love, as well as armed robbery and two

counts of aggravated assault. On appeal, appellant challenged the sufficiency

of the evidence to support his conviction for kidnapping Mr. Love, but not for

kidnapping Mrs. Love. Specifically, he contended that the State failed to prove

the element of asportation, but the Court of Appeals rejected that contention.

See Mercer v. State, 289 Ga. App. 606 (658 SE2d 173) (2008). In 2011,

appellant filed a habeas corpus petition alleging that the evidence was

insufficient to support either of his kidnapping convictions under the new

standard for determining asportation set forth in Garza v. State, 284 Ga. 696

(670 SE2d 73) (2008).1 On June 29, 2016, the habeas court denied the petition.

1 Although Garza was decided about nine months after the Court of Appeals affirmed Mercer’s convictions, it effected a substantive change in the law for determining asportation and thus applies retroactively to appellant’s We subsequently granted appellant’s application for a certificate of probable

cause to appeal and now reverse the habeas court’s judgment.

1. Under Garza, a court considers four factors in determining whether the

movement of the victim constitutes asportation sufficient to sustain a kidnapping

conviction. Those factors are:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Gonzalez v. Hart, 297 Ga. 670, 672 (777 SE2d 456) (2015). “These factors are

considered as a whole; it is not necessary that all four factors weigh in favor of

asportation.” Peoples v. State, 295 Ga. 44, 49 (2) (757 SE2d 646) (2014).

“What must be kept in mind is the purpose of the Garza test, which is to

determine whether the movement in question served to substantially isolate the

victim from protection or rescue, the evil which the kidnapping statute was

originally intended to address.” Gonzalez, 297 Ga. at 672.

habeas case. See Sellars v. Evans, 293 Ga. 346, 346, n. 1 (745 SE2d 643) (2013). Garza, however, has been superseded by statute for kidnapping offenses committed on or after July 1, 2009. See OCGA § 16-5-40; Hammond v. State, 289 Ga. 142, 143, n. 2 (710 SE2d 124) (2011). 2 2. With these principles in mind, we turn now to the evidence of the

movement of the Loves and whether it is sufficient to establish asportation for

the two kidnapping convictions. The evidence shows that three armed intruders,

including appellant and Rasaul Rayshad,2 broke into the Loves’ home on the

night of January 26, 2004, and then went upstairs and entered their bedroom.

See Mercer, 289 Ga. App. at 606. They pointed handguns at the Loves, placed

both of them on the floor, and taped up their arms and legs. See id. at 606-607.

Mrs. Love had turned on an alarm before the intruders entered the bedroom, and

the intruders pulled her up and pushed her against an aquarium in order to have

her turn off the alarm.

The driver of the intruders’ get-away car said that the intruders went to the

Loves’ house to collect money that the Loves owed Rayshad. The Loves sold

cars for a living and, either the day of the intrusion or shortly before it, they sold

a Cadillac for $5,000 and hid the money under a mattress in their bedroom.

2 Rayshad was tried separately from appellant and was convicted, among other crimes, of two counts of kidnapping the Loves. The Court of Appeals decided Rayshad’s appeal about a month after our Garza decision. Applying Garza, the court reversed both of the kidnapping convictions. See Rayshad v. State, 295 Ga. App. 29, 33-34 (1) (b) (670 SE2d 849) (2008). 3 According to Mrs. Love, it was not unusual for the couple to have that type of

money in the house. At some point during the home invasion, the intruders

asked the Loves “where’s the money at,” and they demanded to know if the

couple had a safe in the house. After Mr. Love told them that there was a safe

in the house, one of the intruders left the bedroom and attempted to find it.

When he could not, an intruder threatened to kill Mrs. Love. She then told them

that the safe was in a closet on the other side of the bathroom that adjoined the

couple’s bedroom, and she volunteered to show it to them. She also told them

that the safe only had documents in it. Appellant then dragged Mrs. Love 25

to 30 feet to the safe. Finding no money in the safe, appellant dragged Mrs.

Love back to the bedroom where Mr. Love and the other intruders were located.

At some point, either Mr. or Mrs. Love told the intruders about the money under

the mattress, which they took. The record is silent on exactly when the money

was taken.3 Mr. Love, however, testified that the intruders only left after

dragging Mrs. Love back to the bedroom from the safe.

3 In Rayshad’s appeal, the Court of Appeals said that the evidence at his separate trial showed that, after Mrs. Love was dragged to the safe and back to the bedroom, she told the intruders about the money under the mattress, which they then took and left the house. See Rayshad, 295 Ga. at 30. 4 (a) We turn first to whether the movement of Mr. Love, which consisted

only of moving him from a standing position to the floor, was sufficient to

constitute asportation. Mr. Love’s movement, which took place soon after the

intruders entered the couple’s bedroom, was of an extremely short duration and

occurred during the ongoing armed robbery. Moreover, this movement did not

present “a significant danger to the victim independent of the danger posed” by

the armed robbery, during which the intruders were constantly pointing their

handguns at the Loves, and did not serve “to substantially isolate the victim

from protection or rescue.” Gonzalez, 297 Ga. at 672. Accordingly, this

movement did not constitute the asportation necessary to support appellant’s

conviction for kidnapping Mr. Love. See id. at 673-674 (holding that the act of

pulling victim by the hair as she was trying to exit the door of an apartment and

throwing her against a wall was insufficient to establish asportation; the

movement was of minimal duration, occurred during the commission of and as

an inherent part of the crimes of aggravated assault and family violence battery,

and did not present a significant danger to the victim that was independent of

family violence battery); Garza, 284 Ga. at 703-704 (2) (concluding that the

movement of one victim from a standing position to the floor and then to a chair

5 was insufficient to establish asportation); id. at 701 (citing to the decision of the

Court of Appeals in Mercer and noting with approval that many other

jurisdictions would view the facts supporting Mercer’s conviction for

kidnapping Mr. Love as “not sufficient to sustain a kidnapping conviction”).

(b) With regard to Mrs. Love, the record shows that there were several

movements of her that are insufficient to establish asportation, largely for the

same reasons that the evidence was insufficient to establish asportation

regarding Mr. Love. Those movements include the intruders placing Mrs. Love

on the floor and then pulling her up and pushing her against an aquarium in

order to have her turn off the house alarm. Her movement to the safe and back

to the bedroom is stronger evidence of asportation, but nevertheless insufficient.

First, that movement was of short duration. See Levin v. Morales, 295 Ga. 781,

783 (764 SE2d 145) (2014) (describing movements from a bedroom in a “small

duplex apartment” to various places, including to the living room, the back door,

the kitchen, and the bathroom, each time going back to the bedroom, as “of a

short duration”); Peoples, 295 Ga. at 46 (1) (b), 49-50 (2) (concluding that the

movement of a victim from the front door to a bathroom that was down a

hallway was of short duration); Henderson v. State, 285 Ga. 240, 244-245 (5)

6 (675 SE2d 28) (2009) (saying that “the movement of the victims from one room

to another within the duplex was of minimal duration”); Garza, 284 Ga. at 704

(3) (describing both the movement of a victim from one room in a house to an

adjoining bedroom and then another movement of that victim from that bedroom

down a hallway and back to the bedroom as of “short duration”).

Moreover, the second element of the Garza test — whether the movement

occurred while other crimes were in progress — does not support a finding of

asportation. We have held that this element supports asportation when the

offenses occur either before or after the movement of the victim. See Upton v.

Hardeman, 291 Ga. 720, 721, n. 4 (732 SE2d 425) (2012) (explaining that the

second prong of the test supported asportation because the crimes occurred

before and after the movement of the victim, but not during her movement);

Williams v. State, 291 Ga. 501, 503-504 (1) (b) (732 SE2d 47) (2012) (“The

evidence, however, shows a demarcation between the aggravated battery

offense . . . and the movement of the victim. The victim was beaten before and

after he was moved by his attackers, first inside his trailer and later at the brick

wall behind the doctor’s office, but there is no indication of an aggravated

battery occurring while he was being moved between the two locations.”

7 (emphasis supplied)). On the other hand, when the movement occurs during the

commission of another crime, we have concluded that this asportation factor is

not satisfied. See Gonzalez, 297 Ga. at 674 (holding that the second factor did

not support a finding of asportation because the movement of the victim by

grabbing her hair and throwing her against a wall or door as she tried to leave

her apartment was part of “one violent event” and occurred during the

commission of an aggravated assault and family violence battery); Sellars v.

Evans, 293 Ga. 346, 347-348 (745 SE2d 643) (2013) (holding that, because the

victim was being beaten during her movement from the inside to the outside of

a house, the movement occurred during the commission of the aggravated

assault and did not support a finding of asportation); Brown v. State, 288 Ga.

902, 905 (3) (708 SE2d 294) (2011) (holding that the movement of the victim

by car and on foot to a place where he was robbed and shot occurred during the

course of those crimes and did not support asportation).

Here, there is no evidence that the armed robbery was completed before

Mrs. Love was moved to the safe and back to the bedroom. In fact, nothing of

value was in the safe, and Mr. Love testified that the intruders did not leave until

some point after Mrs. Love was back in the bedroom, making it likely that the

8 intruders took the $5,000 after moving Mrs. Love. Moreover, the record does

not show whether, on the one hand, there was a demarcation between that

movement and a subsequent taking of the money or whether, on the other hand,

the taking of the money occurred immediately after the movement, such that the

intruders’ threats to kill the Loves, their demands for money, and their

movement of Mrs. Love in an attempt to discover money were all part of one

violent event that led to the taking of the money. In any event, because the

record does not show that the movement occurred before or after the robbery,

we cannot weigh this factor in favor of asportation.

Finally, although the movement may not have been an inherent part of

either the aggravated assaults or armed robbery, the fourth Garza factor does not

support asportation. In this regard, when appellant dragged Mrs. Love from the

bedroom to the safe and then back to the bedroom, it cannot reasonably be said

that the movement placed her in more danger than if she had stayed in the

bedroom. There, she faced three armed intruders who were demanding money

and saying things like, if “you don’t tell me where the motherf---ing safe at, I’m

gonna blow her brains out; you better tell me where the motherf---ing safe is;

I’m gonna kill this b----; I’m gonna kill this b----.” See Levin, 295 Ga. at 783

9 (holding that “[a]ppellant encountered the victim in her bedroom, and moving

her back and forth to that room would not have put her in any more danger than

she had been from the very beginning of the incident”). Similarly, the

movement to the safe and back was not in the nature of the evil the kidnapping

statute was designed to defend against, as it did not “serve[ ] to substantially

isolate the victim from protection or rescue.” See id.

For the foregoing reasons, there was insufficient evidence of asportation

to support appellant’s convictions for kidnapping Mr. and Mrs. Love.

Judgment reversed. Melton, P. J., Benham, Hunstein, Nahmias,

Blackwell, Boggs, and Peterson, JJ., concur.

10 Decided August 14, 2018.

Habeas corpus. Hancock Superior Court. Before Judge Wingfield,

Senior Judge.

Sarah L. Gerwig-Moore; Peters, Rubin & Sheffield, Foss G.

Hodges; Miller & Key, J. Scott Key, for appellant.

Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,

Scott O. Teague, Assistant Attorney General, for appellee.