Harper v. State ( 2021 )

In the Supreme Court of Georgia
Decided: January 11, 2021
S20A1288. HARPER v. THE STATE.
BOGGS, Justice.
Appellant Larry Alfonza Harper, Jr., was convicted of the
malice murder of his 20-year-old girlfriend, Thandiwe “Tandy”
Hunt, as well as concealing her death and tampering with evidence.
He contends that the trial court erred in ruling that his pretrial
statements to the police in 2011 and 2012 were admissible. We
affirm. 1
1 Hunt was killed on or about February 2, 2011. In December 2012, a
Fulton County grand jury indicted Appellant for malice murder, felony murder
based on aggravated assault, aggravated assault, concealing the death of
another, and tampering with evidence. At a November 2013 hearing, the trial
court found that Appellant had made a knowing, intelligent, and voluntary
waiver of his right to counsel, granted Appellant’s request to represent himself
pro se, and directed Appellant’s appointed attorney to serve as standby
counsel. At a May 2015 trial, the jury found Appellant guilty of malice murder,
concealing the death of another, and tampering with evidence but was unable
to reach a verdict on the other two charges, which were moved to the dead
docket. The trial court sentenced Appellant as a recidivist to serve life in prison
1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed the following. In the fall of 2010, Hunt
moved from North Carolina to Atlanta to pursue a relationship with
Appellant. Appellant and Hunt were not doing well financially and
were living in what Jonell Awosika, Hunt’s best friend since middle
school, described as “cheap hotels.” Appellant and Hunt stayed at a
hotel in Decatur from November 25, 2010, through January 31,
2011, where the general manager, who lived on the property, saw
them together every day.
Hunt wanted to leave Appellant, but whenever she mentioned
leaving him, he threatened to hurt her, and she was scared for her
life. Hunt’s mother last saw Hunt alive the final week of January
without the possibility of parole for malice murder and a total of 11 consecutive
years for concealing the death of another and tampering with evidence.
Appellant filed a timely motion for new trial, which he later amended through
new appointed counsel in July 2017 and July 2019. The trial court held an
evidentiary hearing and, on March 12, 2020, entered an order denying the
motion. Appellant’s notice of appeal ordinarily would have been due 30 days
later. See OCGA § 5-6-38 (a). However, on March 14, 2020, in response to the
COVID-19 pandemic, Chief Justice Melton issued an Order Declaring
Statewide Judicial Emergency that tolled the “time within which to appeal.”
See OCGA § 38-3-62 (10). Appellant’s notice of appeal, which was filed on April
13, 2020, was therefore timely. The case was docketed to this Court’s August
2020 term and submitted for decision on the briefs.
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2011. On the afternoon of January 30, Awosika spoke to Hunt by
telephone. At one point, Hunt put down the phone, and Awosika
heard Appellant and Hunt “tussling” in the background. Hunt
briefly resumed talking to Awosika and then abruptly said that she
would have to call Awosika back and hung up. Awosika never heard
from Hunt again, and Hunt no longer posted any content on social
media, which was very unusual.
On February 2, 2011, a postal worker delivering mail in Fulton
County stopped briefly at a wooded lot, where he saw a suspicious
object about 60 feet from the road and called 911. When officers
arrived, they found something in the shape of a body completely
sealed in two large black trash bags wrapped several times around
with duct tape. An officer cut into one of the bags and saw a naked
woman inside. The body was transported to the medical examiner’s
office. There was no identification on or near the body, and for the
next three weeks, law enforcement officers were unable to determine
who it was. Finally, on February 28, 2011, Hunt’s mother identified
the body as that of Hunt.
3
On March 6, 2011, Appellant spoke to the lead detective on the
case and another detective at police headquarters. In the video-
recorded interview, which was later played for the jury, Appellant
admitted that he knew Hunt but insisted that the last time he saw
her was in late December 2010 or early January 2011. He denied
living with Hunt and claimed that he only met up with her
occasionally to have sex, which he said happened no more than ten
times from October to December 2010. About halfway through the
interview, Appellant consented to give a DNA sample. At the end of
the interview, Appellant left police headquarters.
Forensic testing showed that at the time of Hunt’s death, she
had only a small amount of cannabinoids in her system. The medical
examiner concluded in his report that Hunt did not die of a drug
overdose, that she had no natural diseases that would explain her
death, and that the manner of death was homicide. Hunt had marks
on both sides of her neck, and an internal exam revealed small
hemorrhages in the right side of her neck and in her larynx and
thyroid gland, all of which were consistent with strangulation. The
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medical examiner determined that Hunt died from strangulation or
some other asphyxia-related cause, such as smothering or
compression of the chest, and listed “homicidal violence” as the
cause of death. Tests run on swabs of Hunt’s chest later revealed the
presence of saliva containing Appellant’s DNA. On July 30, 2012, a
Fulton County magistrate judge issued a warrant for Appellant’s
arrest.
On September 28, 2012, Appellant was arrested and taken to
police headquarters, where he spoke to two homicide detectives. The
video-recorded interview was later played for the jury. At the outset,
Appellant again denied living with Hunt at the hotel in Decatur,
saying that he only visited her there and could not remember the
last time he saw her because he was involved with “so many women.”
When the detectives informed Appellant that his DNA was found on
Hunt’s body, he changed his story, claiming that he deeply loved
Hunt, that he found her dead in the hotel room after she committed
suicide, and that the reason his DNA was found on her body was
because he was crying. According to Appellant, Hunt left him a note,
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which he later burned, telling him to get rid of all her things and
how she wanted him to dispose of her body, which he followed “step
by step.” During a break in the interview, one of the detectives lent
his cell phone to Appellant to make a call. Appellant told the person
he called, “they got me . . . , but I ain’t tell them everything. . . . I
told them I found the body.” After the call, Appellant tore a clock off
the wall and attempted to disable a camera hidden inside.
The police obtained hair samples from Appellant to compare to
hairs found on Hunt’s body and on the duct tape wrapped around
the trash bags. An expert in forensic microanalysis concluded that
two pubic hairs on the duct tape originated from Appellant or from
someone whose pubic hair has the exact same microscopic
characteristics, which would be rare.
Appellant does not challenge the legal sufficiency of the
evidence supporting his convictions. Nevertheless, we have reviewed
the record and conclude that, when viewed in the light most
favorable to the verdicts, the evidence presented at trial and
summarized above was sufficient to authorize a rational jury to find
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Appellant guilty beyond a reasonable doubt of the crimes for which
he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt
2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33
(673 SE2d 223) (2009) (“‘It was for the jury to determine the
credibility of the witnesses and to resolve any conflicts or
inconsistencies in the evidence.’” (citation omitted)).2
2. Appellant contends that the trial court erred in failing to
suppress his March 6, 2011 interview, asserting that he was in
custody and spoke without a valid waiver of his rights under
Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
A person is considered to be in custody and Miranda
warnings are required when a person is (1) formally
arrested or (2) restrained to the degree associated with a
formal arrest. Unless a reasonable person in the suspect’s
situation would perceive that he was in custody, Miranda
warnings are not necessary. On appeal, the issue is
whether the trial court was clearly erroneous in its factual
findings regarding the admissibility of the statements.
2 We remind litigants that this Court will end its practice of considering
the sufficiency of the evidence sua sponte in non-death penalty cases with cases
docketed to the term of court that begins in December 2020. See Davenport v.
State, 309 Ga. 385, 399 (846 SE2d 83) (2020). The Court began assigning cases
to the December Term on August 3, 2020.
7
Sewell v. State, 283 Ga. 558, 560-561 (662 SE2d 537) (2008)
(citations and punctuation omitted).
Before trial, when Appellant was represented by counsel, the
trial court held a hearing pursuant to Jackson v. Denno, 378 U.S.
368 (84 SCt 1774, 12 LE2d 908) (1964), to determine the
admissibility of the video recordings of Appellant’s police interviews.
The lead detective testified that on Sunday, March 6, 2011, he called
Appellant’s uncle, who said that Appellant was at church with his
aunt. According to the detective, he went to the church and waited,
and when church was over, Appellant walked to a nearby
convenience store. The detective and a patrol officer approached
Appellant, identified themselves, and asked if Appellant would mind
coming to police headquarters to talk about a missing person case.
Appellant was “really nice,” said that he did not mind going to
headquarters to talk with them, and willingly got into the back of
the patrol car. Appellant was not told that he was under arrest or
handcuffed, and neither the lead detective nor the patrol officer
physically took hold of Appellant. The patrol officer drove Appellant
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to police headquarters and led him to an interview room, where
Appellant was interviewed by the lead detective and another
homicide detective. A video recording of the interview was admitted
at the hearing. The detectives did not threaten Appellant, and when
Appellant asked if he was free to leave, the lead detective replied,
“At any time.” When Appellant expressed concern that his aunt was
going to leave church without him, the lead detective offered to give
him a ride to his aunt’s house. At the end of the interview, which
lasted a little more than an hour, Appellant left police headquarters.
The trial court was entitled to credit the lead detective’s
testimony and to conclude, based on that testimony and the video
recording, that a reasonable person in Appellant’s situation would
not have perceived that he was in custody. Appellant voluntarily
went with the lead detective and the patrol officer to police
headquarters; was not handcuffed or threatened; was told that he
was free to leave at any time and offered a ride; and was allowed to
leave when the interview ended. Although the detectives told
Appellant that he could not smoke a cigarette in the building or on
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the grounds and would have to wait until the end of the interview,
the lead detective said at the outset that the interview should only
take about an hour, which it did. The trial court therefore correctly
concluded, based on the totality of the circumstances, that Appellant
was not in custody for purposes of Miranda. See California v.
Beheler, 463 U.S. 1121, 1121-1122 (103 SCt 3517, 77 LE2d 1275)
(1983) (holding that Miranda warnings were not required where
suspect was not placed under arrest, voluntarily accompanied police
to station house, and was allowed to leave unhindered after brief
interview). See also Howes v. Fields, 565 U.S. 499, 508-509 (132 SCt
1181, 182 LE2d 17) (2012) (“As used in our Miranda case law,
‘custody’ is a term of art that specifies circumstances that are
thought generally to present a serious danger of coercion. . . .
Determining whether an individual’s freedom of movement was
curtailed . . . is simply the first step in the analysis, not the last. Not
all restraints on freedom of movement amount to custody for
purposes of Miranda.”). Accordingly, this enumeration of error lacks
merit.
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3. Appellant also contends that the trial court erred in
failing to suppress his September 28, 2012 interview, which took
place after his arrest on what he asserts was an invalid arrest
warrant. Specifically, Appellant claims that the July 30, 2012
warrant for his arrest was issued eleven minutes before the police
applied for it, that the warrant did not include the victim’s name as
required by OCGA § 17-4-41 (a) (1), and that the warrant was issued
without any showing to the magistrate judge of probable cause for
Appellant’s arrest. However, the Fourth Amendment does not
require the suppression of statements made outside the home after
a warrantless arrest as long as the police had probable cause to
make the arrest. See New York v. Harris, 495 U.S. 14, 17 (110 SCt
1640, 109 LE2d 13) (1990) (holding that Fourth Amendment does
not “grant criminal suspects . . . protection for statements made
outside their premises where the police have probable cause to
arrest the suspect for committing a crime”); White v. State, 307 Ga.
601, 603 (837 SE2d 838) (2020) (holding that Fourth Amendment
did not require suppression of defendant’s interview at police station
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shortly after his warrantless arrest at home because police had
probable cause to arrest him). See also Roberts v. State, 252 Ga. 227,
228 (314 SE2d 83) (1984) (stating that where arrest was supported
by probable cause, “even if the arrest warrant was invalid, the arrest
was nonetheless legal”). Thus, the critical question is whether there
was probable cause to arrest Appellant on September 28, 2012.
At the time of Appellant’s arrest, the police knew that Hunt
had been killed; that her naked body had been found in the woods
wrapped in black trash bags and duct tape; that she had been living
with Appellant in the months leading up to her death and wanted to
leave him but was scared for her life because he had threatened her;
that Appellant had lied to the police about being in a relationship
with Hunt and the last time he saw her; and that saliva containing
Appellant’s DNA had been found on Hunt’s chest. These facts and
circumstances were sufficient to warrant a prudent person to believe
that Appellant had murdered Hunt and therefore to support a
finding of probable cause. See Beck v. Ohio, 379 U.S. 89, 91 (85 SCt
223, 13 LE2d 142) (1964) (describing probable cause to make arrest).
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Thus, regardless of any deficiency in the July 30, 2012 arrest
warrant, the Fourth Amendment did not require the suppression of
Appellant’s post-arrest interview on September 28, 2012.
Accordingly, this enumeration of error also lacks merit. 3
Judgment affirmed. Melton, C.J., Nahmias, P.J., and Peterson,
Warren, Bethel, Ellington, and McMillian, JJ., concur.
3 Appellant asserts that suppression was required by both the Fourth
Amendment and Article I, Section I, Paragraph XIII of the Georgia
Constitution. However, he makes no argument that Paragraph XIII provides
greater protection than the Fourth Amendment in this context. See White, 307
Ga. at 602 n.2.
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