Heade v. State

312 Ga. 19

860 S.E.2d 509

HEADE

v.The STATE.

S21A0409

Supreme Court of Georgia.

Decided: June 21, 2021

Kelsey Lynne Geary, The Geary Law Firm, P.C., 271 A Culver Street, Lawrenceville, Georgia 30046, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Sabrina Nizamuddin, Assistant District Attorney, Patsy A. Austin-Gatson, District Attorney, Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30045, for Appellee.

LaGrua, Justice.

A Gwinnett County jury found Appellant Demetrius Heade guilty of malice murder and other crimes in connection with the shooting death of Michael Harvey.¹ On appeal, Appellant contends that (1) the trial court erred in ruling that evidence of Appellant's prior acts was admissible; (2) trial counsel provided ineffective assistance by conceding the admissibility of one of the acts; and (3) these multiple errors cumulatively prejudiced Appellant. We discern no reversible error on these grounds, but we have found two sentencing errors with regard to his convictions for felony murder and aggravated assault. For the reasons stated below, we affirm his convictions in part and vacate in part.

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed that on November 10, 2016, at around 7:30 p.m., Appellant and Tilisha Tate, Appellant's girlfriend and co-defendant at trial, visited a Citgo gas station located in Gwinnett County. The two were traveling in a stolen, gold 1996 Honda Odyssey minivan and were meeting with a man who had agreed to purchase food for them because they had run out of money. After accompanying this man into the gas station to buy food, Appellant and Tate left the gas station in the gold minivan; Appellant was driving, and Tate was lying down in the back seat. As they were traveling on Button Gwinnett Drive, the victim, Michael Harvey, attempted to pass the minivan in his truck and accidentally struck the front driver side area of the minivan. The impact startled and awoke Tate, and when she sat up, she saw Harvey's truck enter a ditch and hit a pole, after which Harvey exited his truck and started running toward the minivan. According to Tate, Appellant then picked up a rifle he had in the minivan and shot Harvey from the driver's seat, and Harvey "hit ... the ground." Appellant tried to drive away from the scene but was unable to do so because one of the minivan's tires was flat. Appellant and Tate abandoned the minivan and fled toward some woods beside the road. Tate had difficulty keeping up, having recently been shot in the leg by Appellant.² Appellant threw the rifle in a ditch, and the two walked to the Las Palmas Apartments, a nearby apartment complex. About an hour later, Appellant and Tate got a ride from another man to the same Citgo gas station where the man replaced the food Appellant and Tate had left in the minivan. Appellant and Tate then stayed overnight with some friends at the apartment complex.

Officers responded to the shooting around 8:30 p.m. They found Harvey lying in the roadway, apparently lifeless, with a bullet wound to his chest. Officers also observed a black truck wrecked on the opposite side of the road and an older model minivan about 80 yards away from the scene with a detached bumper and a single bullet hole through the driver's side window. A few yards away from the minivan, officers recovered a loaded Winchester .30-30 lever-action rifle from a drainage ditch. When officers cycled the lever, the rifle ejected an empty shell casing.³ Harvey's cause of death was determined to be a gunshot wound to the torso, and a GBI ballistics test concluded that bullet fragments recovered from Harvey's body were fired from the same rifle found at the scene.

Officers discovered that the minivan at the scene had been stolen from Mobile, Alabama on November 2, 2016. Officers testified that they called the police in Mobile, who advised that they were investigating the November 2 theft of the minivan and the murder of the minivan's owner, Lavester Brennan. Gwinnett County officers learned that Appellant and Tate were suspects in the Brennan murder and had used Brennan's credit card in and around the Mobile area after Brennan's murder.

Officers obtained a search warrant for the minivan, and inside they found male and female clothing, a box of ammunition, and multiple .30-30 rounds. Appellant's fingerprints were found on the windows, as well as on items inside the minivan. Officers found receipts from Subway and Little Caesar's restaurants. Appellant was seen in surveillance video from the Little Caesar's, and both Appellant and Tate were seen in surveillance video from the Subway. Plastic bags and food products from a Citgo gas station were also found in the minivan. Officers went to the Citgo gas station near the accident site, and surveillance video from that gas station showed that Appellant and Tate made multiple visits to the gas station before and after the murder. In one video, the two were depicted leaving the gas station, entering a gold minivan, and departing toward the Las Palmas Apartments.

On November 11, the day after the shooting, officers returned to the Citgo gas station. At about 5:30 p.m., Appellant and Tate visited the gas station, and officers apprehended them and took them into custody. Officers then interviewed Appellant and Tate and learned that neither had prior connections to Harvey. Tate told police that neither she nor Appellant were at the scene of the shooting, and that she did not know what was going on. She denied being involved in Harvey's death and denied that she was in the van at the time of the shooting.

Tate was extradited back to Mobile in December 2016. On December 5, 2016, Gwinnett County officers investigating the murder of Harvey traveled to Mobile and interviewed Tate again. At that time, Tate confessed to being present when Appellant shot Brennan in Mobile on November 2, 2016, when Brennan's minivan was stolen, as well as on November 10 when Appellant shot Harvey in Gwinnett County. However, Tate denied knowing that Appellant was planning to shoot Harvey. Tate indicated that she lied in her previous interview because she was scared of Appellant.

2. At a pretrial motions hearing, the trial court ruled that the State could present evidence at trial, over Appellant's objection, concerning the following three prior acts of Appellant: (1) an alleged assault on Tate in Mobile ("the Tate assault"); (2) the alleged murder of Brennan in Mobile ("the Brennan murder"); and (3) an alleged armed robbery of Heather Crane in Gwinnett County ("the Crane robbery"). The trial court concluded that the probative value of this evidence outweighed any prejudicial effect and that the evidence was admissible to show motive, opportunity, intent, knowledge, and identity, as well as prior difficulties between Tate and Appellant. See OCGA §§ 24-4-403 ("Rule 403") and 24-4-404 (b) ("Rule 404 (b)"). At trial, the jury heard testimony relating to the Tate assault, the Brennan murder, and the Crane robbery, which showed the following:

(a) The Tate Assault.

According to Tate, in the summer of 2016, Appellant and Tate started a romantic relationship in Mobile. During this time period, Tate struggled with drug and alcohol addiction, and she regularly engaged in prostitution in exchange for money and drugs. According to Tate, Appellant became possessive of Tate and angry about Tate's prostitution, but he allowed her to perform one "trick" a day so they would have enough money to buy food and other necessities. After Appellant became violent with Tate, Tate ended the relationship and went to stay with friends. Appellant was upset and angry that Tate left him. On October 19, 2016, Appellant confronted Tate at one of her friend's houses saying, "[W]e can do this the easy way or the hard way." Tate said she did not care "which way you want to do it," and Appellant pulled out a handgun and shot Tate in the leg. Tate was transported by emergency personnel to a hospital for treatment, where her leg was placed in a splint and, later, a red cast. While Tate was in the hospital, she reported the shooting to law enforcement officers. After Tate's release from the hospital, she stayed briefly with a friend, but she soon resumed her relationship with Appellant.

(b) The Brennan Murder.

According to Tate, on November 2, 2016, Tate and Appellant were at a house in Mobile when Lavester Brennan drove by in his gold minivan. According to Tate, she regularly had sex with Brennan in exchange for money and drugs, and she stopped him and asked him to take her to get something to eat. Brennan then drove Tate to get some food. When Tate returned, Appellant was angry because he did not know why Tate left with Brennan. Tate met with Brennan again later the same day to use drugs at Brennan's house. After Brennan and Tate got into an argument, Brennan began to give Tate a ride back to where she was staying. While they were stopped at a corner by Brennan's house, Appellant pulled up beside Brennan's minivan in a truck. Appellant got out of the truck and entered the minivan behind Tate, who was seated in the front passenger seat. Tate got out of the minivan and heard a gunshot. Appellant grabbed Tate's collar and forced her back into the front passenger seat of the minivan. Appellant then dragged Brennan out of the driver's seat and onto the street and drove away in the minivan. Tate testified that she did not run or scream for help out of fear of Appellant. Brennan died several days later from a gunshot wound to the chest.

According to Tate, Appellant and Tate drove to Appellant's cousin's house, where Appellant picked up a .30-30 "shotgun." While they were at the cousin's house, A...