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Harvey v. State

Supreme Court of Georgia

February 27, 2017

HARVEY
v.
THE STATE.

          Hines, Chief Justice.

         Appellant Kajul Tawice Harvey was convicted of malice murder, burglary and other crimes in connection with the death of her mother, Alena Marie Marble.[1] She appeals, asserting, inter alia, the evidence of guilt was insufficient, and her trial counsel was ineffective. We find no harmful error and affirm appellant's convictions and sentences, except for the conviction and sentence for hindering the apprehension of a criminal, which must be vacated.

         1. Construed in a light to uphold the verdicts, the evidence shows the following: The victim lived in an apartment with her daughters, appellant and Nikea Harvey, as well as appellant's two children, four-year-old Zakiya and two-year-old Brian. Appellant, Zakiya, and Brian shared one of the three bedrooms in the apartment. Nikea, who is developmentally disabled, had her own bedroom. The victim, who paid the rent, used the master bedroom, which she kept locked with a padlock.

         In the year and a half before her death, the victim called police to her home on two occasions when appellant let her boyfriend, Latoris Grovner, [2] into the apartment against the victim's wishes. Just days before her death, the victim confided to a neighbor that she wanted to move because she was afraid that appellant and Grovner would harm her, and she was scared for her life. Then, after she argued with appellant as to who would control the proceeds from appellant's social security check, [3] the victim confided to another neighbor that appellant said she would kill her if she did not let appellant have the check so appellant and Grovner could move in with each other.

         On the night preceding the murder, appellant left the back door of the apartment unlocked so Grovner could enter even though she knew the victim would not have permitted her to do so.[4] The victim was lying on a sofa when Grovner attacked her with a metal pot, [5] a vodka bottle, and his fists. Zakiya woke up to the victim's screams and saw Grovner dragging the victim out of the apartment and putting her in the trunk of her car. Zakiya also observed that appellant, who was in bed, opened one eye, but did not go to the victim's aid. Appellant told Zakiya that she needed to leave the apartment.

         The next day, appellant's older sister, Shambra Pearsall, became concerned about the victim because she had not been able to reach her. Pearsall went to the victim's apartment. Appellant let her in through the back door, but she did not allow her to enter the living room. Appellant told Pearsall she did not know their mother's whereabouts, adding that she might have been with "LeRoy, " their mother's friend.

         Later, police officers went to the victim's apartment and knocked on the door. They continued knocking for forty minutes, until appellant opened the door. In the meantime, Grovner left the apartment undetected.

         Appellant gave the victim's purse, which appeared to have blood inside, to police, who searched the apartment, finding it in disarray. There were bloodstains throughout the house, including on the sofa and floor in the living room and the bed in appellant's bedroom. Several of the victim's teeth were on the floor of the living room, a bottle of bleach was in the dining room, and bloody gloves were in a trash can. Furthermore, the lock was pried off the victim's bedroom door and her room was ransacked.[6]

         Thereafter, police located the victim's automobile in a nearby parking lot. They opened the trunk and discovered the victim's body. The medical examiner determined that the victim died of blunt force injuries to the head, but that she may have been alive when she was placed in the trunk.

         An investigation into the use of the victim's debit card demonstrated that within several hours of the victim's murder, Grovner, accompanied by appellant, walked to a nearby bank branch and a convenience store with automatic teller machines. At each location, which was monitored by video, they attempted, but failed, to withdraw money from the victim's bank account.

         Awaiting trial, appellant told a cell mate "the murder was an accident and it wasn't supposed to happen like that." She also told a friend "it was a kidnaping plot."

         Appellant asserts that the evidence was insufficient for any rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which she was convicted. More specifically, appellant argues (a) the State failed to prove appellant was a party to the crimes and (b) the burglary conviction cannot stand because appellant lived in the victim's apartment and was authorized to permit Grovner to enter it. We disagree.

         (a) A person may be convicted of a crime he or she did not commit directly upon proof that he or she was a party to the crime. See OCGA § 16-2-20. "Although mere presence at the scene of a crime is not sufficient to prove that one was a party to the crime, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." Powell v. State, 291 Ga. 743, 744-745 (1) (733 S.E.2d 294) (2012) (citations and punctuation omitted). Here the evidence showed that Grovner and appellant shared a criminal intent to murder the victim and access her bank account to enable them to live together away from the victim's watchful eye. See Parks v. State, 272 Ga. 353, 354-355 (529 S.E.2d 127) (2000) (evidence sufficient to enable jury to infer that defendant participated in a plan to commit the crimes). To carry out their scheme, appellant allowed Grovner to enter the apartment, although they both knew the victim would not permit it; appellant did not so much as lift a finger while Grovner beat her mother to death; she accompanied Grovner as he tried to withdraw money from her mother's bank account; she lied to her sister, feigning ignorance about their mother's whereabouts; and she attempted to cover up evidence of the crimes. It was for the jury, not this Court, to assess the credibility and weight of this evidence and determine whether appellant was a party to the crimes. See Escutia v. State, 277 Ga. 400, 402 (2) (589 S.E.2d 66) (2003). The evidence was sufficient to enable a rational jury to find appellant guilty beyond a reasonable doubt of the crimes of malice murder, burglary, false imprisonment, robbery, tampering with evidence, and financial transaction card theft. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also Escutia, 277 Ga. at 402 (2).

         (b) Addressing appellant's conviction for burglary more specifically, we note that the version of OCGA § 16-7-1 (a) applicable to this case provides that a person commits burglary when he enters or remains in the dwelling house of another without authority with intent to commit a felony or theft therein.[7] Here, as noted above, the victim made it clear to both Grovner and appellant that Grovner did not have permission to enter the victim's apartment. Compare Bell v. State, 287 Ga. 670, 672-673 (1) (c) (697 S.E.2d 793) (2010) (defendant's entry to victim's home was authorized). After all, the victim summoned police to the apartment on more than one occasion simply because Grovner had been there.[8]Moreover, appellant did not contend she had authority to admit Grovner to the apartment; she acknowledged that Grovner was not permitted in the apartment, but she helped him sneak in on several occasions by leaving the back door unlocked. Appellant testified that the victim paid the rent and all the bills; although appellant's social security check was deposited to the victim's account, the victim provided appellant with money whenever asked. And, on the night in question, Grovner gained entry to the apartment through that same back door with appellant's help. Under these circumstances, neither appellant nor Grovner could have reasonably believed that appellant was authorized to allow him to enter the victim's apartment for the purpose of killing the victim. See Gonzales v. State, 931 S.W.2d 574 (Tex. Crim. App.) (1996) (defendant boyfriend could not reasonably believe his girlfriend was authorized to allow entry to her parents' home so he could kill them); State v. Upchurch, 421 S.E.2d 577 ( N.C. 1992) (defendant and victim's stepson, who was a resident in the victim's home, could not have reasonably believed stepson had authority to permit defendant to enter the victim's home to kill the victim). It follows that there was ample evidence to enable the jury to conclude that Grovner entered the victim's residence without authority. See Glisson v. State, 165 Ga.App. 342 (3) (301 S.E.2d 62) (1983) (whether entry was accomplished without authority is a question for the jury).

         (c) Although appellant does not challenge specifically her conviction for hindering the apprehension of a criminal, see OCGA § 16-10-50, she cannot be convicted for both malice murder and the hindering offense. See Hampton v. State,289 Ga. 621, 622 (2) (713 S.E.2d 851) (2011). It follows that appellant's conviction and sentence for hindering the apprehension of a criminal must be vacated. See Nazario v. ...


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