Thomas v. the State.

310 Ga.App. 404

714 S.E.2d 37

11 FCDR 2281

THOMAS

v.The STATE.

No. A11A0126.

Court of Appeals of Georgia.

July 1, 2011.

Peter D. Johnson, Augusta, for appellant.Richard Ashley Mallard, Dist. Atty., Brian Ashley Deal, Asst. Dist. Atty., for appellee.ADAMS, Judge.

Chris Thomas was convicted by a jury of kidnapping, armed robbery, four counts of aggravated assault and two counts of aggravated battery. He appeals following the denial of his motion for new trial, contending that the evidence was insufficient, that the trial court improperly charged the jury, that his custodial statement should not have been admitted, that certain of his convictions should have been merged for sentencing, and that he should not have been sentenced as a recidivist.

Construed to support the jury's verdict, the evidence adduced at trial showed that Pastor Ralph E. Davis operated a gospel music radio station in Effingham County. Davis testified that on December 4, 2006, he had just finished a live broadcast when someone came up from behind and put an arm around his neck, placing him in a “death” choke. Davis said at first he thought someone was playing a joke, and he said “I give up, you win.” Davis testified that as he remained in the choke hold, another person threw bleach into his eyes; however, because of the angle from which it was thrown, he was blinded only in his right eye.

At that point, he started to fight back. He planted his feet and shot straight back at the person who had him in the choke hold and a struggle ensued. As he continued to struggle on the floor, one of the assailants tried to get duct tape around his eyes. As the struggle continued, he and his assailants moved about seven to ten feet across the floor and just slightly outside of the studio room before he was subdued and taken back into the studio room. Davis was placed in a fetal position and duct tape wound multiple times around his eyes. Duct tape was also placed across his mouth and ankles. His wrists were bound with duct tape and a cord.

Davis's assailants then proceeded to “torture” him for the next several hours. At various points Davis had plastic bags placed over his head to suffocate him, he was beat in the head with a hammer until he was unconscious and a cord was wrapped around his head. Davis raised his arms for protection while he was being hit with the hammer, causing broken bones and severe injuries to his hands, severing the end of one finger and breaking others; one of his fingers was so mangled that at the time of trial Davis only had about 15 percent use of that finger. At some point Davis's right hand was sliced with a sharp object and then the blade of the object was pushed against his jugular vein, but the blade broke. Davis testified that at various points, his assailants also said they were going to kill him. Davis further testified that his assailants took his wallet, money and car keys. They also kept asking him where the transmitter for the station was located.

Davis testified that his attackers left after several hours and he eventually was able to partially free himself. He was able to locate a cell phone but had not yet called for help when he saw a man, later identified as Eugene Howard, ¹ walk by the window. Davis said Howard had been in the station several days earlier, asking him to pray for his mother. Davis noticed that Howard had his keys in his hand, which Davis recognized because of a device he had put on the key ring to attach it to his belt loop. Howard came back inside the studio, but made a hasty retreat when Davis, who was holding the cell phone in his hand, told Howard that he had dialed 911 and the police were on their way.

Howard had provided an address for his mother when he talked to Davis about praying for her, and after police learned that Howard also lived there they obtained a warrant to search the residence. Davis had told police that one of his attackers was wearing a pair of brown coveralls, and a pair of brown Carhartt coveralls, which appeared to have bleach and blood on them, were found during the search of Howard's room. Officers also found a notebook which gave details about taking over the radio station and changing the format to “urban.” The garbage outside the residence was also searched, and officers found a glove with a raised dot pattern that matched prints obtained from the scene; the glove was “saturated” in what DNA testing later identified as Davis's blood. Davis's wallet and keys, as well as shoes that matched an impression that was found on top of one of the desks in the radio station were also found in the garbage can.

Eric Riner, one of the investigators on the case, testified that the name “Chris” kept coming up during the investigation, and a few days into the investigation the sheriff's office received a “tip” from a man who said that Chris Thomas and Howard had asked him to take them to South Carolina because the “feds were after them.” Thomas and Howard were subsequently located at Thomas's address, and they were transported separately to the Bulloch County jail. Subsequently, Davis's driver's license, social security card, and a credit card were found under the seat and headrest of the patrol car used to transport Thomas to the jail.

Thomas gave several varying statements to police while he was at the Bulloch County jail; these statements were not recorded. The next day, both Howard and Thomas were transported to the Effingham County jail. While he was being photographed at the jail, Thomas indicated to Investigator Riner that he wanted to make a statement, and after being reminded of his Miranda rights that had been read to him the day before, he agreed that he was making the statement freely and voluntarily and that he in fact initiated making the statement. During his statement, which was recorded and played for the jury without objection, Thomas admitted to being at the radio station with Howard but said he left during the assault. However, Riner testified that Thomas's statement that he was not present during the beating was inconsistent with other evidence revealed during the investigation, including GPS coordinates obtained from the miniature tracking device Thomas had to wear as a condition of his parole. Moreover, Riner testified that given their relative sizes, it was “ludicrous” to think that Howard, who was “a very small individual” would have been able to overpower the larger Davis by himself.

Riner also testified that Thomas's girlfriend, who lived with him at the residence where he was arrested along with Howard, contacted police and turned over a plastic garbage bag containing weightlifting gloves that matched the description of gloves that Thomas told police that Howard had been wearing. Riner pointed out for the jury that if what Thomas said was true, then Thomas must have been wearing the gardening gloves with blood on them that were found in the garbage can at Howard's residence. The bag also contained a ski mask; and Davis had been able to see that the taller of the two assailants had on a burgundy ski mask, and Riner testified that Thomas was taller than Howard.

Based on this and other evidence presented at trial, the jury convicted Thomas of all the charges against him, and the trial court sentenced him on all counts. As more fully set forth below, we agree with Thomas that his conviction for kidnapping must be reversed, and that the trial court erred in imposing his sentence, but we otherwise affirm.

1. Thomas first argues that the evidence, excluding his arguably inculpatory and arguably contradictory custodial statements that he contends should not have been admitted at trial, was insufficient to show that he “was an active participant in the assault on [the victim].” We disagree. First, as more fully set forth in Division 4 below, Thomas's statements were properly considered by the jury. Moreover, even if this evidence had been excluded, the other evidence, viewed in the light most favorable to the jury's verdict, showed that Davis was attacked by not one but two people, and that Thomas was one of the perpetrators. Moreover, even if Howard alone committed some of the acts of physical violence against Davis, the evidence was nevertheless sufficient to authorize Thomas's conviction as a party to these crimes. This enumeration thus affords no basis for reversal of Thomas's conviction for aggravated assault.

2. Thomas next argues that the evidence presented at trial on the kidnapping charge was insufficient to satisfy the element of asportation under the test enunciated in Garza v. State, 284 Ga. 696, 701–702(1), 670 S.E.2d 73 (2008). With this contention we agree.

First we note that the crimes occurred on December 4, 2006, and Thomas's trial commenced on October 15, 2007; thus Garza applies here.²

Applying the test enunciated in Garza, adopted from Govt. of Virgin Islands v. Berry, 604 F.2d 221, 16 V.I. 614 (3d Cir.1979), we look at four factors to determine the sufficiency of the evidence of asportation in kidnapping cases. Those four 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.

Garza, 284 Ga. at 702, 670 S.E.2d 73.

“The test was designed to determine whether the movement was one ‘serving to substantially isolate the victim from protection or rescue—or merely a “criminologically insignificant circumstance” attendant to some other crime.’ Garza, 284 Ga. at 702(1), 670 S.E.2d 73.” Wright v. State, 300 Ga.App. 32, 34(1), 684 S.E.2d 102 (2009).

In this case, the movement occurred after the assault on Davis had begun when Davis attempted to fight back against his attackers, and his attackers were struggling to re-gain control over him and subdue...