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Levin v. Morales

Supreme Court of Georgia

October 6, 2014


Habeas corpus. Johnson Superior Court. Before Judge Flanders.

Sarah L. Gerwig-Moore, for appellant.

Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Vicki S. Bass, Assistant Attorney General, Daniel M. King, Jr., for appellee.

BENHAM, Justice. All the Justices concur. BLACKWELL, Justice, concurring.


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Benham, Justice.

In 1993, appellant Gregory A. Levin broke into the home of his ex-wife and held her hostage for 12 hours. In 1994, in regard to that incident, appellant was convicted of kidnapping with bodily injury, aggravated assault, burglary, two counts of simple assault (lesser included of cruelty to children and aggravated assault), aggravated battery, possession of a firearm during the commission of a crime, and making harassing phone calls. He was sentenced to life in prison for kidnapping and a consecutive term of 48 years for his other crimes, except for the aggravated battery conviction which was merged into the kidnapping conviction. His convictions were affirmed in part and reversed and remanded in part by the Court of Appeals in Levin v. State, 222 Ga.App. 123 (473 S.E.2d 582) (1996).[1] In 2012, appellant petitioned for habeas relief alleging that the State failed to prove asportation as per this Court's decision in Garza v. State, 284 Ga. 696 (670 S.E.2d 73) (2008). The habeas court concluded the asportation requirement was met under Garza. We granted review of the habeas court's denial of relief, posing the following question: " Did the habeas Court err when it held that the evidence of asportation was sufficient to support the appellant's conviction for kidnapping with bodily injury? See Garza v. State, 284 Ga. 696 (670 S.E.2d 73) (2008)." Because we answer the question in the affirmative, the judgment of the habeas court is reversed and the case is remanded with direction.

The record shows that the victim was asleep in her bedroom when her 12-year-old daughter heard appellant banging on the back door of their small duplex apartment. The daughter ran into the bedroom, woke her mother, and closed and locked the bedroom door. Determining that they could not leave the bedroom because the windows were painted shut, the victim called police. While the victim was on the phone with authorities, appellant entered the house and proceeded to punch through the bedroom door so he could unlock it. The daughter testified that when appellant entered the bedroom he had a hammer and a gun in his hands. The victim was able to tell police about the gun before appellant snatched the phone away from her and hung it up. When the phone rang immediately after having been placed on its cradle, appellant destroyed it. Appellant told the daughter to leave the house, and she did so. As she ran out of the [295 Ga. 782] house police were arriving on the scene. After the daughter left and while still in the victim's bedroom, appellant held the gun to the victim's head, made threats, and slapped her. He also hit the victim on the back with an unattached bureau mirror, pistol whipped her, and kicked her in the stomach. Then he started destroying the bedroom furniture. At some point, the police used a public address system, instructing appellant to call them so they could negotiate the victim's release. Having destroyed the phone in the bedroom, appellant dragged the victim by the neck and at gunpoint to the living room in order to retrieve a working telephone. Upon retrieving the telephone, he took the victim back to the bedroom. At that point, he also barricaded the front and back doors of the apartment.

Appellant held the victim hostage for approximately 12 hours. During that time, appellant and the victim mostly stayed

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in the victim's bedroom, but did move to various other places in the small apartment, including moving to the back door to retrieve cigarettes and a hostage telephone from the police,[2] moving to the kitchen where the victim fixed a meal for appellant, and moving to the bathroom. The victim testified she was with appellant throughout the entire ordeal and that any movement was at gunpoint. Appellant would not talk to the authorities, but forced the victim to speak with police and instructed her on what to say. The incident ended when a SWAT team forced their way into the apartment and apprehended appellant.

To determine whether the asportation requirement has been met, Garza requires the following four factors to be considered: (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.

(Citation omitted.) Upton v. Hardeman, 291 Ga. 720 (732 S.E.2d 425) (2012). Generally, all factors of the Garza test need not be met to establish asportation. Wilkerson v. Hart, 294 Ga. 605 (3) (755 S.E.2d 192) (2014). The purpose of the Garza test is to determine whether the movement in question is in the nature of the evil which the kidnapping statute was originally intended to address -- namely, whether [295 Ga. 783] the movement served to substantially isolate the victim from protection or rescue. 284 Ga. at 702. In this case, the habeas court concluded the asportation requirement was met under Garza inasmuch as the movement of the victim from areas inside her home to the master bedroom was unnecessary to complete any of the crimes charged and served only to isolate and leverage control over the victim so that she could not escape:

The aggravated assault was completed when [appellant] pointed the gun at the victim, the burglary was completed when [appellant] entered the house, and the aggravated battery was completed when [appellant] struck the victim with the mirror and the gun and kicked her. The movement of the victim into the master bedroom served to conceal the victim, ...

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