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Dozier v. State

Supreme Court of Georgia

June 3, 2019

DOZIER
v.
THE STATE.

          WARREN, JUSTICE.

         Keith Anthony Dozier was convicted of malice murder, aggravated assault, and theft by taking in connection with the death of Gail Spencer.[1] On appeal, Dozier contends that the trial court erred in sentencing him for felony theft by taking, failed to exercise its discretion when it sentenced Dozier to life without parole for the murder, erred when it recharged the jury on party to a crime, and erred in denying a motion to suppress his statement to police.[2] For the reasons that follow, we affirm all of Dozier's convictions except for his conviction of felony theft by taking, which we reverse and remand to the trial court with direction to enter a conviction and sentence for misdemeanor theft by taking under OCGA § 16-8-2.

         1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Gail Spencer was an office manager for Calder Pinkston & Associates, a real-estate law firm, for about ten years.[3] Among other things, she oversaw real-estate closings and handled wire transfers. Dozier's co-indictee, Tracy Jones, worked for the firm as a secretary. Unlike Spencer, Jones did not have authority to handle wire transfers without permission, but she had been trained to complete wire transfers and had done so on specific occasions when authorized.

         Some of Dozier's co-indictees devised a plan to hold Spencer hostage so that Jones could go in to work to wire money to the co-indictees-Tracy Jones, Michael Brett Kelly ("Brett"), and Courtney Kelly ("Courtney")-without Spencer's oversight. The group would then split the proceeds.[4]

         On the morning of October 5, 2012, Jones, Brett, and Dozier drove to Spencer's home. Jones used a ruse to gain entry into Spencer's home, then sent a text message to Brett to come inside with Dozier; they entered wearing ski masks and gloves and ensured no one else was home. Jones left the house and texted Pinkston from Spencer's phone to say that Spencer was sick and would not be at work that day. Jones then went to work and transferred about $885, 000-separate transfers of $205, 250, $429, 550, and $249, 750-from the firm's escrow account to three bank accounts held by Courtney.

         Meanwhile, Brett-who brandished a pistol-and Dozier confronted Spencer and taped her to a chair. At some point, Brett sodomized Spencer and then suffocated her with a plastic bag while Dozier remained in the house as a lookout.[5] Around 4:00 p.m., Dozier and Brett left the house. Spencer had agreed earlier that morning to let her neighbors' dog into their house, and hours after Dozier and Brett left Spencer's house, those neighbors returned home to find the dog still outside. The neighbors became worried and checked on Spencer; after she did not answer her door, the neighbors called the police. The police forced entry into the home and found Spencer dead in her bed.

         Once the money was transferred into Courtney's accounts, she fled without sharing the proceeds and left the rest of the group unpaid. As a result, Jones executed two more wire transfers on October 9, 2012-one for $245, 000 and the other for $163, 000-from the firm's escrow account, bringing the total amount stolen to just under $1.3 million. Between October 5 (the date of the first transfers) and October 9 (the date of the second transfers), Dozier, Jones, and Brett met several times at Jones's apartment and visited multiple banks to open accounts they could use to receive the transfers. Meanwhile, investigators received a tip that led them to Brett, who led them to Jones and Dozier. On October 10, 2012, investigators read Dozier his Miranda rights, which he waived, and investigators interviewed him for approximately three hours. Though he initially denied involvement, he ultimately confessed to all charges except for sodomy and murder. Dozier claimed in the interview, and later testified at trial, that murdering Spencer was not part of the plan, that he tried to talk Brett out of it, and that he was coerced to stay in the house during Spencer's sodomy and murder.

         Other than as to his conviction for felony theft by taking, Dozier does not challenge the sufficiency of the evidence against him. Consistent with this Court's practice, however, we have independently reviewed the record and conclude that the evidence was sufficient to authorize a rational jury to find beyond a reasonable doubt that Dozier was guilty of the crimes of which he was convicted, other than the felony theft by taking. See Jackson v. Virginia, 443 U.S. 307, 318-319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). As to the theft by taking, the State concedes that Dozier should have been convicted only of misdemeanor theft by taking, and considering the indictment, the evidence presented at trial, the jury instructions, and the verdict, we agree. Accordingly, we reverse the conviction for felony theft by taking and remand for the trial court to enter a judgment of conviction and impose a sentence for misdemeanor theft by taking as a lesser included offense under Count 8 of the indictment.

         2. Dozier argues that the trial court failed to exercise its discretion when it sentenced him to life without parole for the murder conviction, thus requiring reversal of Dozier's sentence. We disagree.

         After Dozier was convicted on all counts at trial, the trial court stated at sentencing:

I believe the law mandates a life without parole sentence. The law says if you have been convicted of a felony and you are subsequently convicted of another felony you have to be sentenced to the max. That's the max. But even if it's not mandated . . . the Court has the discretion to sentence you to life with parole or life without parole. I will exercise my discretion and sentence you to life without parole on count number one, malice murder.

(Emphasis supplied). Even if the trial court mistakenly believed that it might be required to sentence Dozier to life without parole for murder as a recidivist under OCGA § 17-10-7 (a), [6] any error caused by its mistaken belief was harmless. That is because the record shows that the trial court did exercise its discretion in sentencing Dozier to life without parole. See Hampton v. State, 302 Ga. 166, 172 (805 S.E.2d 902) (2017) (holding that any alleged error was harmless where "the trial court said that it thought that life without parole was the statutorily mandated sentence, but that it would have exercised its discretion to impose that sentence in any event"). Indeed, the trial court specifically stated at sentencing that it had the discretion to impose life without parole and was choosing to exercise that discretion-a point it reiterated twice in its order denying a motion for new trial. Accordingly, this enumeration of error fails.

         3. Dozier contends that the trial court abused its discretion by recharging the jury on the theory of party to a crime without an accompanying instruction on mere presence, mere association, and knowledge, thereby overemphasizing the possibility of a conviction as a party to a crime. We disagree.

         After approximately three hours of deliberations, the jury sent the court a note stating that it "would like to also clarify if in the indictments where it states he or she, is it only speaking of the physical person who did the crime." The court called the jury into the courtroom to clarify its request, consulted with counsel for both parties, and concluded that the jury was confused about Count 8 of the indictment, which referenced "her fiduciary obligations" and about the concept of party to a crime. Over Dozier's objection, the court recharged the jury on party to a crime, providing the same pattern charge it initially had ...


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