Anthony Dozier was convicted of malice murder, aggravated
assault, and theft by taking in connection with the death of
Gail Spencer. 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. 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.
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. 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
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.
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.
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. 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.
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.
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
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.
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),  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.
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
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 ...