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Murder. Lumpkin Superior Court. Before Judge Miller.
Judgment affirmed in part and vacated in part, and case remanded with direction.
Mitchell D. Durham, Stockton & Stockton, Lawrence A. Stockton, Jr., for appellant.
W. Jeff Langley, District Attorney, Dana E. Weinberger, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Sabrina D. Graham, Assistant Attorney General, for appellee.
BLACKWELL, Justice. All the Justices concur.
A jury convicted Steven Frederick Spears of murder and other crimes, all in connection with the killing of Sherri Holland. The jury found the existence of two statutory aggravating circumstances and recommended a death sentence for the murder. See OCGA § 17-10-30 (b). For the reasons set forth below, we affirm the convictions and [296 Ga. 599] sentences already imposed in this case, we vacate the erroneous merger of the two burglary counts, and we remand for the trial court to impose an appropriate sentence on the burglary count for which Spears has not yet been sentenced.
1. The evidence presented at trial, including Spears's audio-recorded confession at the sheriff's department, showed that Spears and Sherri Holland had previously dated each other but that their romantic relationship had ended. Spears admitted the following about the relationship: " I told her when we started dating a long time ago, if I caught her or found out she was screwin' somebody else, I'd choke her ass to death." He also admitted that he had told several other people the same thing about Ms. Holland.
Suspecting that Ms. Holland had been in a romantic relationship with someone else, Spears made preparations based on four separate plans for her murder. Regarding the first plan, Spears stated: " I was gonna shock her ass to death." He entered the crawlspace under her house and used screws to attach wires to the drain pipe and the cold water pipe of her shower, which he planned to attach to the home's circuit board while Ms. Holland showered during a lightning storm when no one's suspicions would be raised by her electrocution. He bragged about this plan as follows: " I came up with that on my own. Pretty creative, ain't it." His second plan for the murder involved his
carving a baseball bat from a tree branch, leaving it under a canoe at Ms. Holland's house, and beating her to death with it. His third plan involved his crawling into her house through an air conditioner vent from the crawlspace and loading her shotgun for future use during the murder. Regarding this plan, he stated: " Because if she brought somebody else in there I was just gonna shoot him." His fourth plan was to choke her, bind her with duct tape that he had hidden inside her house, and suffocate her with a plastic bag. For this plan, he hid duct tape under her canoe.
After making the arrangements described above during previous illegal entries, Spears entered Ms. Holland's house again on August 25, 2001, for the purpose of actually committing the murder. Ms. Holland's son was staying with her ex-husband that night, and Spears hid in the son's closet from 10:00 p.m. on August 24 until 2:30 or 3:00 a.m. on August 25, when he was certain that she had fallen asleep. He entered her bedroom and told her to roll over so that he could bind her hands and feet with duct tape. She struggled with him, and he struck her in the head with his fist as she was attempting to flee the bedroom. The struggle moved into the hallway just outside [296 Ga. 600] her bedroom, and it continued for five to ten minutes, according to Spears's estimate. Spears recounted her last words as follows: " Last thing she said was she loved me. Swear to God, that's the last thing she said. Last words came out of her mouth." When asked what his reply had been, he stated: " I love you, too. Then I choked her ass right out." Once he choked her to unconsciousness in the hallway by wrapping his arm around her neck, he dragged her the short distance back into the bedroom. He bound her hands and feet with duct tape, wrapped her face and mouth with duct tape, placed a plastic bag over her head, and secured the bag with duct tape. He then placed her head on a pillow " so her face wouldn't be smashed on the floor." He locked the padlock on the outside of her bedroom door that she used to keep her son from entering her room, took her purse, and left through her back door. He drove in her automobile back to where he had left his own automobile, but he then realized that he had failed to take her cigarette case, in which she typically kept her money. He returned to her house, reentered her house, took her cigarette case money, and drove to his own house.
At his house, he changed out of his pants that Ms. Holland had urinated on while he choked her, and he got his shotgun and ammunition. As he drove away at approximately 5:00 a.m., a man in a red pickup truck began following him. In turn, he began following the truck. He planned to shoot the driver of the truck if the driver turned into a church parking lot, but the truck stopped next to another vehicle coming out of the church parking lot, blocking his way. Regarding this planned additional murder, he stated as follows: " Look, one, two, three; what difference does it matter. You know what I'm saying. I've done went as far as I can go. What difference does it matter what I do now." He added: " If you're gonna go to Hell, one sin or ten sins, what difference does it make." This additional murder never occurred, however, because the person in the truck pulled up next to another vehicle and Spears did not want to kill " an innocent bystander." As shown by a receipt discovered by investigators in Ms. Holland's automobile, Spears drove to a store, where he bought fishing supplies, a fishing license, a hat, and paint that he planned to use to conceal the black stripes on Ms. Holland's red automobile. He abandoned her automobile when he began to fear that it had an anti-theft tracking device. He lived in the woods for ten days, sleeping in a deer stand. At one point, he was followed by men in camouflaged suits, and he said about them in his confession: " You know, if I'd had knew that they were just old bullshit people, I'd [have] shot 'em. I thought they were cops or something."
The investigation into Ms. Holland's murder began on the afternoon following the murder, after her ex-husband and son searched for [296 Ga. 601] her when she failed to pick up her son, could not locate her, and called the police. Officers detected a foul odor coming from the victim's bedroom, removed the hinges from her padlocked bedroom door with the assistance of her son, and discovered
her lifeless, decomposing body lying face down on a pillow with her hands and feet bound behind her with duct tape and a plastic bag over her head secured with duct tape. The thermostat in the home had been turned all the way up, and the home was very hot inside. A flashlight not belonging to Ms. Holland or her son was discovered in the foyer. A search of the crawlspace revealed a colored light bulb that Spears had used to provide inconspicuous lighting as he prepared for the murder, and the light bulb was connected to Spears through a receipt discovered in his automobile. A search of Spears's house revealed Ms. Holland's purse and a wrapper from a roll of duct tape. A search of his automobile revealed a roll of duct tape with cut marks and other characteristics matching those on the end of the piece of tape used to bind Ms. Holland's hands, along with a receipt for a colored light bulb and a flashlight. An autopsy showed that Ms. Holland was injured from a blunt force trauma to her head, suffered abrasions to her knee consistent with having fallen onto a ventilation grate, and died from asphyxia as a result of being choked, having tape wrapped around her mouth and face, and having a plastic bag placed over her head. A warrant was obtained for Spears's arrest. Ten days after the murder, an officer spotted Spears walking along a highway, asked him for his name, and arrested him. He claimed that he was walking back to Lumpkin County to call the police and turn himself in. He was taken to the sheriff's department, where he gave a detailed confession, which has been referenced at several points above. Near the end of his confession, Spears commented as follows on Ms. Holland's murder: " I loved her that much. I told her I wasn't letting her go, and I didn't." He added, " [I]f I had to do it again, I'd do it."
Upon our review of the record, we conclude that the evidence presented at trial and summarized above was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Spears was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also Unified Appeal Procedure IV B. 2. (providing that, in all death penalty cases, this Court will determine whether the verdicts are supported by the evidence).
2. As noted in footnote 1, the trial court " merge[d]" the two counts of burglary upon which Spears was found guilty by the jury, one predicated on the intent to commit a theft and one predicated on the intent to commit the felony of murder. Where one course of conduct violates one criminal statute in several ways described in the statute, [296 Ga. 602] a defendant is guilty of only one crime. See Stinski v. State, 286 Ga. 839, 841 (1) (691 S.E.2d 854) (2010) (directing the trial court to vacate one of two convictions for arson); State v. Marlowe, 277 Ga. 383, 383-384 (1) (589 S.E.2d 69) (2003). However, the evidence in Spears's case showed that he made one entry of Ms. Holland's house with the dual intent to commit a theft and to murder her but that he then left the victim's house, drove to a church, returned to the house after realizing that he had failed to steal the victim's cigarette case containing money, and reentered the house with the intent to commit the theft of the cigarette case and money. Under the facts of this case, Spears's two separate entries into the house constituted two separate violations of the burglary statute. Thus, the trial court erred by " merg[ing]" the burglary counts in its sentencing order, the erroneous merger must be vacated, and the trial court is directed to enter a sentence on the second of those burglary counts. See Hulett v. State, 296 Ga. 49, 54 (2) (766 S.E.2d 1) (2014) (holding that this Court should direct the trial court to correct the erroneous vacating or merging of a conviction where the error is apparent on appeal, regardless of whether the matter is raised by the State on appeal).
3. Spears argues that the trial court erred by refusing to quash his indictment based on the fact that a jury commissioner served on the grand jury that indicted him and as that grand jury's clerk. The grand juror in question was randomly selected from the large master list of potential jurors approved by the full jury commission. She ...