Polke v. State

880 S.E.2d 153, 315 Ga. 33

• Court: Supreme Court of Georgia
• Decided: October 25, 2022
• Docket: S22A1220
• Status: Published

Opinion

315 Ga. 33 FINAL COPY

S22A1220. POLKE v. THE STATE.

ELLINGTON, Justice.

A Tattnall County jury found Barbra Ann Polke guilty of

malice murder and other crimes arising from the shooting death of

her former girlfriend, Ashley Sharpe.1 Polke contends that the

evidence was insufficient to support her convictions beyond a

1 A Tattnall County grand jury indicted Polke on February 24, 2015, for

felony murder (Count 1), aggravated assault (Count 2), malice murder (Count 3), possession of a firearm during the commission of a felony (Count 4), and two counts of possession of a firearm by a convicted felon (Counts 5-6), arising from the shooting death of Sharpe on July 11, 2014. After a bifurcated jury trial held on May 23 and 24, 2016, Polke was found guilty on all counts except Count 6. On June 14, 2016, Polke was sentenced as a recidivist to life in prison without parole for malice murder; five years concurrent imprisonment for possession of a firearm by a convicted felon; and five years consecutive imprisonment for possession of a firearm during the commission of a felony. The trial court purportedly merged the remaining counts for purposes of sentencing. Although the aggravated assault count was properly merged, the felony murder count actually stood vacated by operation of law. See Johnson v. State, 300 Ga. 665, 665 n.2 (797 SE2d 903) (2017). Polke filed a motion for a new trial on June 20, 2016, which she amended through new counsel on March 30, 2020. Following a hearing on April 19, 2022, the trial court denied Polke’s motion. Polke filed a notice of appeal on May 18, 2022. This appeal was docketed to the August 2022 term of this Court on July 7, 2022, and submitted for a decision on the briefs. reasonable doubt and that the trial court should have exercised its

discretion as the thirteenth juror to grant a new trial. Polke also

contends that the State failed to prove venue beyond a reasonable

doubt. Because the record supports the trial court’s order denying

Polke’s motion for a new trial, we affirm.

In assessing the constitutional sufficiency of the evidence, this

Court views the evidence in the “light most favorable to the verdict,

with deference to the jury’s assessment of the weight and credibility

of the evidence.” (Citation and punctuation omitted.) Hayes v. State,

292 Ga. 506, 506 (739 SE2d 313) (2013). See also Jackson v. Virginia,

443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). So

viewed, the evidence shows the following.

Polke and Sharpe were in a romantic relationship, and they

lived together and worked together in Vidalia. Sharpe worked for

Walmart; Polke worked at a McDonald’s franchise located inside the

Walmart. According to Polke, the first nine months of their

relationship were good, but when she became suspicious that Sharpe

was cheating on her, the relationship soured.

2 On June 29, 2014, Polke punched Sharpe in the face, sending

her to the emergency room. Sharpe filed a police report. Sharpe

immediately ended the relationship, and Polke moved out of their

home. Sharpe considered seeking a restraining order but decided

instead to request a transfer to the Walmart in Rincon. Catherine

Sharpe (“Catherine”), who has no apparent relation to the victim, let

Polke stay with her after the breakup. Text messages between Polke

and Sharpe showed that, in the 12 days between the assault and the

shooting, Sharpe remained resolute in her decision to end the

relationship. Nevertheless, Polke repeatedly asked her for

forgiveness. Sharpe responded that she was afraid of Polke and that

there was nothing Polke could say or do to repair the relationship.

On the morning of July 10, 2014, the day before the shooting,

Sharpe told Polke to stop calling her or she would get a restraining

order and quit her job. That same morning, Polke asked her friend

Catherine for help. Catherine took Polke to a pawn shop where they

pawned several items in exchange for a .380 Jiminez handgun.

Thereafter, Catherine and Polke searched for .380 bullets, finally

3 finding a store that carried them. One of the store’s employees, an

acquaintance of Polke, testified that she saw Polke grabbing boxes,

trying to find the right ammunition. When the employee asked why

they were looking for bullets, Polke responded with a “shushing”

sound, admonishing the employee to be quiet.

On July 11, 2014, Sharpe learned that her transfer request had

been approved. She clocked out of work at 1:56 p.m. for lunch.

Walmart video surveillance of the parking lot shows Sharpe getting

into Polke’s car shortly thereafter. About 45 minutes later, Polke

called 911 and said that Sharpe had been shot but was still alive.

Paramedics and police officers responded to Catherine’s home in

Reidsville, which is in Tattnall County. Though emergency

personnel arrived within minutes of the 911 call, they found Sharpe

deceased.

Sharpe was seated in the passenger seat of Polke’s car with an

apparent gunshot wound to the left side of her head. The paramedics

did not believe that Sharpe had died within the previous few

minutes, which was contrary to Polke’s statements in the 911 call.

4 Sharpe had been shot once, just above her left ear. According to the

medical examiner, the bullet passed through her head and exited

the right temple. Gunpowder stippling was found near the entry

wound. The medical examiner testified that the gun was fired less

than 18 inches away from the wound, and “probably much closer.”

The police tested Polke’s hands for gunpowder residue and

recovered enough residue to suggest that she had either fired a

weapon, was close to a gun when it was fired, or had handled

something that had primer particles on it. The police recovered a

.380 shell casing from the back seat of Polke’s car. Police officers and

forensics experts testified that the passenger window had what

appeared to be a bullet hole with shattered glass around the

periphery of the hole, but no glass was found inside the car,

suggesting that a gun had been fired from inside the car. No other

defect similar to the hole in the passenger-side window was found

on the interior or exterior of the car.

Initially, Polke told the police that she had picked Sharpe up

from work and had taken her to eat lunch at a Chinese restaurant

5 in Lyons. After lunch, they drove to Reidsville. Polke claimed that,

when they stopped at the intersection of Highway 280 and Gordon

Avenue in Toombs County, she saw a group of men, one of whom

fired a shot at her car, striking Sharpe. Polke said that she did not

immediately realize that Sharpe had been shot. Instead of driving

to a hospital in Vidalia, just five minutes away, Polke said she

panicked and drove to Catherine’s house in Reidsville. Based on this

initial account, the police went to the intersection in Toombs County

and immediately secured and searched the area. The police took

Polke to the intersection, and she indicated where she had seen the

group of men. The police found no ballistics evidence there and no

one in the area reported hearing gunshots or seeing suspicious

activity. In fact, no evidence of any kind was found at the location

provided by Polke.

Polke testified at trial and gave a different account of the

shooting. At trial, she said that her friend Catherine “was the one

who gave [her] that gun to kill [Sharpe],” and that she was sorry

because “[she] didn’t want to kill [Sharpe], but [Catherine] told [her]

6 to.” She said that Catherine took the gun from her after the shooting

and hid it. Polke was a convicted felon at the time of the shooting,

as shown by her 2008 Evans County conviction for carrying a

concealed weapon.

1. With respect to Polke’s first claim of error challenging the

sufficiency of the evidence as a matter of constitutional due process

under Jackson, the record shows that the evidence of Polke’s guilt

was overwhelming. Polke testified at trial and essentially admitted

that she shot Sharpe. The record shows that Sharpe ended her

relationship with Polke because of Polke’s violent behavior toward

her. Polke repeatedly tried to reestablish the relationship, even

though Sharpe had threatened to get a restraining order. Polke

purchased a .380 handgun and bullets the day prior to the shooting.

A .380 shell casing was found in Polke’s car after the shooting. The

police observed a bullet hole in the passenger-side window, but no

glass inside the car, which supported an inference that a gun had

been fired from inside the car. The medical examiner testified that

Sharpe’s death was caused by a wound from a bullet that entered

7 the left side of her head, exited through the right side, and which

was fired from a gun no further than 18 inches away. Polke had

gunpowder residue on her hands. Polke’s initial version of the

shooting, that it happened in Toombs County and that a gun was

fired by one of several men standing outside the car, was not

supported by any evidence. This evidence is sufficient to support the

jury’s verdicts beyond a reasonable doubt. See Jackson, 443 U. S. at

318-319 (III) (B).

2. Polke also contends that the trial court “should have

exercised its discretion as the thirteenth juror and granted [her] a

new trial.” OCGA §§ 5-5-20 and 5-5-21, respectively, allow the trial

court to grant a new trial “[i]n any case when a verdict of the jury is

found contrary to evidence and the principles of justice and equity,”

or when “the verdict may be decidedly and strongly against the

weight of the evidence even though there may appear to be some

slight evidence in favor of the finding.” The two statutes give “the

trial court broad discretion to sit as a thirteenth juror and weigh the

evidence on a motion for new trial alleging these general grounds.”

8 Holmes v. State, 306 Ga. 524, 527-528 (2) (832 SE2d 392) (2019)

(citation and punctuation omitted).

The record does not support Polke’s claim of error. Although

she sought a new trial on this basis, the argument in the brief

supporting her motion for a new trial was cursory at best. In a one-

paragraph argument, counsel asserted, based upon testimony

presented at sentencing, that Polke was easily manipulated because

she had a low IQ. Moreover, Polke’s counsel did not advance the

thirteenth-juror argument during the hearing on her motion,

conceding that Polke had admitted shooting Sharpe. Instead,

counsel focused solely on her second claim of error, a venue

argument, and informed the trial court that, with respect to the

insufficiency claim, she would rely on her written brief in support of

the motion.

In its order denying the amended motion for a new trial, the

trial court denied “each and every ground thereof” based upon its

review of the entire record and counsel’s argument at the hearing.

Under these circumstances, we cannot say that the trial court

9 abused its discretion as the “thirteenth juror” in denying Polke’s

motion. See Smith v. State, 300 Ga. 532, 534 (1) (796 SE2d 671)

(2017).

3. Polke contends that the evidence was insufficient to allow

the jury to find that venue was proper in Tattnall County. We

disagree.

With respect to venue generally, “all criminal cases shall be

tried in the county where the crime was committed.” Ga. Const. of

1983, Art. VI, Sec. II, Par. VI. See also OCGA § 17-2-2 (a) (“Criminal

actions shall be tried in the county where the crime was committed,

except as otherwise provided by law.”). Also, “[c]riminal homicide

shall be considered as having been committed in the county in which

the cause of death was inflicted.” OCGA § 17-2-2 (c). If, however, “it

cannot be determined in which county the cause of death was

inflicted, it shall be considered that it was inflicted in the county in

which the death occurred.” Id. If a “body is discovered in this state

and it cannot be readily determined in what county the cause of

death was inflicted, it shall be considered that the cause of death

10 was inflicted in the county in which the dead body was discovered.”

Id. See also Coleman v. State, 301 Ga. 753, 755 (804 SE2d 89) (2017);

Shelton v. Lee, 299 Ga. 350, 354-355 (2) (b) (788 SE2d 369) (2016).

And, OCGA § 17-2-2 (h) provides that, “[i]f in any case it cannot be

determined in what county a crime was committed, it shall be

considered to have been committed in any county in which the

evidence shows beyond a reasonable doubt that it might have been

committed.” With respect to proof of venue,

[v]enue is a jurisdictional fact that the State must prove beyond a reasonable doubt and can do so by direct or circumstantial evidence. Determining whether venue has been established is an issue soundly within the province of the jury. When examining whether the State has carried its burden, we view the evidence in the light most favorable to the verdict and must sustain the verdict if the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.

(Citations and punctuation omitted.) Hernandez v. State, 304 Ga.

895, 898 (2) (823 SE2d 272) (2019).

The trial court charged the jury that the State must prove

venue beyond a reasonable doubt and that where “it cannot be

11 determined in what county the crime was committed, then venue is

proper and may be proved in any county in which the evidence shows

beyond a reasonable doubt that it might have been committed.” See

OCGA § 17-2-2 (a) and (h).2 In this case, it was not readily

determinable whether Polke shot Sharpe in Toombs or Tattnall

County. Polke initially claimed that the shooting happened in

Toombs County; however, there was no evidence to corroborate her

account of events, and the jury was authorized to reject her self-

serving statement as a lie. It was also unclear where Sharpe died.

Polke claimed that Sharpe was still alive when they arrived at

Catherine’s home in Tattnall County, a statement from which the

jury could infer that Sharpe died in Tattnall County. However, there

was evidence that the paramedics believed Sharpe’s death had

occurred earlier than Polke claimed. It was undisputed, however,

that Sharpe’s body was found in Tattnall County. Thus, the jury was

authorized to find beyond a reasonable doubt that venue was

2 The trial court did not charge the jury that it could find venue pursuant to OCGA § 17-2-2 (c), concerning where the cause of death was inflicted. 12 established in Tattnall County under OCGA § 17-2-2 (h). See

Hernandez, 304 Ga. at 898 (2) (venue lay in county where victim’s

body was found “because it was not readily determinable where

Hernandez shot and killed [the victim]”). See also Bulloch v. State,

293 Ga. 179, 187 (4) (744 SE2d 763) (2013) (Evidence was sufficient

for the jury to find beyond a reasonable doubt that venue was

established pursuant to OCGA § 17-2-2 (a) and (h).).

Judgment affirmed. All the Justices concur.

Decided October 25, 2022.

Murder. Tattnall Superior Court. Before Judge Cheney.

Rouse & Copeland, Amy L. Copeland, for appellant.

Tom Durden, District Attorney, Joe G. Skeens, Assistant

District Attorney; Christopher M. Carr, Attorney General, Patricia B.

Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Elizabeth H. Brock, Assistant Attorney

General, for appellee.