Harris v. State

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official text of the opinion.
In the Supreme Court of Georgia
Decided: April 18, 2023
S23A0141. HARRIS v. THE STATE.
MCMILLIAN, Justice.
In October 2019, a jury found Evins Vontravis Harris guilty of
felony murder and other crimes in connection with the shooting
death of Darius Roberts.1 On appeal, Harris asserts that the trial
1 Darius was killed on or about May 7, 2018. On June 7, 2018, a Camden
County grand jury indicted Harris for malice murder (Count 1), felony murder
predicated on aggravated assault (Count 2), aggravated assault (Count 3),
voluntary manslaughter (Count 4), tampering with evidence (Count 5), and
two counts of possession of a firearm during the commission of a felony (Counts
6 and 7). At a trial in October 2019, a jury acquitted Harris of malice murder
and voluntary manslaughter but found him guilty of the remaining counts. On
November 26, 2019, the trial court sentenced Harris to serve life in prison with
the possibility of parole on Count 2, five years consecutive on Count 6, and
twelve months on Count 5 to be served concurrently with Count 6. The
remaining counts were merged for sentencing purposes. Harris timely filed a
motion for new trial, which was amended through new counsel on May 7, 2021.
Following a hearing, the trial court denied the motion on June 16, 2022. On
August 15, 2022, Harris filed a motion to set aside the order denying his motion
for new trial because his counsel had not received the order until after the time
for filing a notice of appeal had passed. The trial court granted the motion to
set aside and reissued the order denying Harris’s motion for new trial on
August 24, 2022. Harris then timely appealed, and the case was docketed to
the term of this Court beginning in December 2022.
court erred in denying him immunity from prosecution and abused
its discretion by admitting an in-life photograph of Darius at trial.
For the reasons that follow, we discern no reversible error and
affirm.
The evidence presented at trial showed that Harris lived with
his girlfriend, Daysha Roberts, and their infant son in a two-
bedroom home in Camden County. Daysha’s brother, Darius, also
lived with them, although he did not pay rent. On May 6, 2018,
Harris and Daysha were in the process of moving out because they
were both unemployed and could no longer afford the rent.2 Late
that evening, Harris said he wanted to go to his mother’s house and
was going to call a cab. He then threw his phone on the bed and left.
At that time, Darius was lying on the couch by the front door,
listening to music on Daysha’s phone with over-the-ear
headphones. 3
2 Daysha testified that Harris had actually begun staying most nights
with his mother after he and Daysha had an argument in April.
3 In the week before his death, Darius often slept on the couch because
someone had recently burglarized the apartment and he wanted to be able to
2
Harris returned home approximately 30 minutes later and
entered the bedroom he shared with Daysha and their child. He told
her the cab never came and asked for his cell phone. Daysha pointed
to the phone, and Harris grabbed it and left the room. About ten
seconds after Harris left the room, Daysha heard three gunshots.
She placed her child in the closet, approached the bedroom doorway,
and heard two more shots. When Daysha opened the bedroom door,
she heard the front door forcefully open, followed by the sound of
someone running outside. Daysha then saw Darius lying on the floor
and ran outside to knock on the neighbor’s door to ask for help. The
neighbor called 911 and, at the direction of the 911 dispatcher, told
Daysha to go back inside and see if Darius was still breathing.
Daysha found her brother face-down and unresponsive. As she rolled
him over, she took her cell phone from his hand and threw it on the
couch.
protect himself and Daysha in case of another intruder. Harris later admitted
to Daysha that he was the one who had broken into their apartment and taken
the items – which included televisions, clothing, and Darius’s gun – but he did
not give her a reason why.
3
Officer Samantha Swartz of the Kingsland Police Department
was dispatched to the scene. When she arrived, she saw the victim
lying on the floor in front of the couch, face down, with his head
positioned toward the front door. After determining that he was not
breathing, she began chest compressions but was unable to revive
him. She did not see a weapon near Darius’s body. A recording from
Officer Swartz’s body camera was played for the jury.
The GBI was called to assist in the investigation, and Special
Agent Jamie Karnes located seven spent shell casings from a .380-
caliber firearm throughout the living room. Based on bullet defects
found on the couch, cushions, and carpet, Agent Karnes determined
that the shots appeared to have been fired from a downward angle.
While searching the couch for additional shell casings, Agent Karnes
found a 9mm Smith & Wesson handgun hidden underneath a sofa
cushion containing 13 unfired 9mm cartridge casings. No rounds
were found in the chamber of the Smith & Wesson, meaning that
the gun was not in a position where a pull of the trigger would
discharge the weapon. No 9mm spent shell casings were found at
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the scene.
When Harris arrived at the hospital where first responders
brought Darius’s body, he ran over and said, “Daysha, I’m sorry.”
Law enforcement officers then took Harris into custody. After being
advised of his rights under Miranda, 4 Harris agreed to be
interviewed and eventually told detectives that he shot Darius in
self-defense. At various points in the interview, Harris claimed that
Darius had been raping him, his one-year-old child, his younger
brother and sister, and Daysha.5 Harris also claimed that Darius
had pulled a gun on him several times in the past. A recording of the
interview was played for the jury at trial.
Daysha testified that shortly before the shooting, Harris had
become paranoid and accused her multiple times of cheating on him.
4 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
5 Based on these allegations, officers arranged for an examination of
Harris with a sexual assault nurse who found no evidence of acute or traumatic
injury. Harris explained to the nurse that he would wake up and suspect that
he had been sexually assaulted but that he was usually under the influence of
drugs when this happened and could not remember the details. He also
reported that Darius may have been “spiking his weed.” Daysha denied that
her brother had been raping her or her son.
5
After one argument, she went inside their home and locked the door,
but Harris kicked the door in, damaging the doorframe. She told
Harris’s mother about his concerning behavior, and his mother tried
to get him help, but he refused. Daysha had never seen Darius pull
a gun on Harris.
The medical examiner testified that Darius sustained seven
gunshot wounds, including one on the top of his head and two in his
back. A GBI firearms examiner testified that each of the bullets
recovered from Darius’s body during the autopsy were fired from the
same .380-caliber semi-automatic pistol. Although the firearm used
in the shooting was never recovered, 6 Daysha testified that she had
seen Harris with a gun that his friend had sold to him prior to the
shooting.
1. Harris first contends that the trial court erred in denying his
pre-trial motion for immunity from prosecution under OCGA § 16-
6 Harris led officers to several different areas where he claimed that he
threw the gun, but they were unable to locate it.
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3-24.2 7 on the basis that he was reasonably defending himself
against Darius and was justified in his use of force. We disagree.
To avoid trial on this ground, a defendant bears the burden of
proof to show that he is entitled to immunity by a preponderance of
the evidence. See Hughes v. State, 312 Ga. 149, 156 (4) (861 SE2d
94) (2021). In reviewing a trial court’s ruling on a motion for
immunity from prosecution, “the evidence is viewed in the light most
favorable to the trial court’s ruling, and the trial court’s findings of
7 OCGA § 16-3-24.2 provides:
A person who uses threats or force in accordance with Code Section
16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from
criminal prosecution therefor unless in the use of deadly force,
such person utilizes a weapon the carrying or possession of which
is unlawful by such person under Part 2 or Article 4 of Chapter 11
of this title.
Relevant to Harris’s motion here, OCGA § 16-3-21 (a) provides:
A person is justified in threatening or using force against another
when and to the extent that he or she reasonably believes that such
threat or force is necessary to defend himself or herself or a third
person against such other’s imminent use of unlawful force;
however, except as provided in Code Section 16-3-23, a person is
justified in using force which is intended or likely to cause death
or great bodily harm only if he or she reasonably believes that such
force is necessary to prevent death or great bodily injury to himself
or herself or a third person or to prevent the commission of a
forcible felony.
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fact and credibility determinations are accepted if there is any
evidence to support them.” Id.
Here, Harris testified at the immunity hearing that he had
asked Darius for rent money because he and Daysha were having
money problems, but Darius refused. Harris also testified that
Darius “started putting a firearm on [him] . . . in [his] own home”
three or four times prior to the shooting. This prompted Harris to
buy a gun, which he loaded on the night of the shooting “just in case
anything happened before [he] got ready to leave the house.” Then,
as he exited his bedroom, Harris testified, he heard what he believed
to be the sound of a round being chambered and turned to see Darius
pointing a gun at him while Darius was still lying on the couch.
Believing that Darius was going to shoot him, Harris shot at Darius
as he ran from the home.
Daysha testified at the immunity hearing that Harris had
never told her about any such alleged incidents with Darius and that
Harris had been acting strangely prior to the shooting. The
interviewing detectives testified that Harris gave conflicting
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statements regarding the shooting and brought officers to various
locations where he supposedly disposed of the gun, but they were
never able to recover the weapon. A recording of Harris’s interview
was played at the hearing. Special Agent Karnes also testified as to
the forensic evidence found at the scene.
In denying the motion for immunity, the trial court determined
that the physical evidence and other testimony showed that the
encounter did not occur in the manner Harris described and that
Harris may have been motivated by anger or aggression rather than
self-defense. And when considering the issue again after it was
raised in Harris’s motion for new trial, the trial court further
explained that the evidence at the immunity hearing showed that
there had been tension between Harris and Darius immediately
preceding the shooting. Harris had recently lost his job and asked
Darius to help with rent, but Darius did not have any money. Harris
also claimed that Darius was drugging and sexually assaulting him,
his child, and Daysha, yet Harris never asked Darius to move out of
the home and never notified law enforcement. The evidence also
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showed that there was no gun in the vicinity of Darius’s body, but
rather a gun was hidden underneath a cushion with no bullet in the
chamber, and that Harris fled the scene and lied to officers about
where he disposed of his gun.
On appeal, Harris claims that because he was the only witness
who was present when the events transpired, the trial court erred
when it did not credit his testimony and did not grant him
immunity. However, other than Harris’s self-serving testimony,
there is no evidence that Harris acted in self-defense. Rather, as the
trial court concluded, the evidence showed that Harris was upset
with Darius for failing to help with rent. The forensic evidence
showed that Darius was not holding a weapon at the time that
Harris shot him multiple times, including in the top of the head and
in the back, indicating that Darius was not confronting Harris when
Harris fired several of the shots. Harris also fled the scene, disposed
of the weapon, and later misled the police about the location of the
gun, prompting officers to look in several locations without success.
Thus, the trial court’s factual findings and credibility
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determinations were supported by evidence presented at the
immunity hearing, and the trial court was authorized to reject
Harris’s self-serving testimony and deny his motion for immunity
from prosecution. See Ellison v. State, 313 Ga. 107, 111 (868 SE2d
189) (2022) (given the evidence presented, the trial court was
authorized to reject the defendant’s self-serving testimony and
conclude he had not met his burden to prove justification);
Hornbuckle v. State, 300 Ga. 750, 753 (2) (797 SE2d 113) (2017) (trial
court was authorized to conclude defendant’s actions were motivated
by aggression or anger and to deny immunity from prosecution
where the physical evidence and defendant’s statements provided
some evidence that the encounter did not occur in the manner she
alleged). Accordingly, this enumeration of error fails.
2. Harris also asserts that the trial court plainly erred in
admitting an in-life photograph of Darius. We are not persuaded.
At trial, the State called Tasheka Roberts, Darius’s mother, to
present a single in-life photograph of Darius. After Darius’s mother
confirmed that the photograph, which depicted Darius alone against
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a neutral background, clearly and accurately reflected how Darius
looked in the weeks before his death, the State asked to enter the
photograph as an exhibit. Harris’s counsel then stated, “No
objection, Your Honor.” In ruling on this issue in Harris’s motion for
new trial, the trial court determined that Harris’s trial counsel
affirmatively waived any objection to the admission of the
photograph.
On appeal, Harris asserts that, despite his trial counsel’s
failure to object, the trial court committed plain error in admitting
the photograph because it likely stoked the jury’s emotions through
the victim’s mother. To prevail on this claim, Harris must satisfy all
four prongs of the plain-error test:
First, there must be an error or defect — some sort of
deviation from a legal rule — that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and finally,
if the above three prongs are satisfied, the appellate court
has the discretion to remedy the error — discretion which
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ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.
Williams v. State, 315 Ga. 490, 495 (2) (883 SE2d 733) (2023)
(citation omitted; emphasis in original).
Here, assuming without deciding that Harris did not
affirmatively waive the claim of error through his counsel’s
statement that she had no objection to the admission of the in-life
photograph, we conclude that any error did not affect Harris’s
substantial rights. Darius’s mother’s testimony was very brief, and
the photograph was fairly benign, depicting Darius alone on a
neutral background. Moreover, there is no indication that Darius’s
mother became emotional during her testimony, and the evidence
against Harris was strong. Thus, Harris cannot show that the
admission of Darius’s in-life photograph probably affected the
outcome below. See Williams, 315 Ga. at 496 (2) (we need not
analyze all four prongs where an appellant fails to establish one of
them); Bozzie v. State, 302 Ga. 704, 708 (2) (a) (808 SE2d 671) (2017)
(no plain error because, given the strength of the evidence against
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the defendant, he could not establish that the admission of a single
in-life photograph of the victim with his wife and grandchildren
probably affected the outcome below). Accordingly, Harris cannot
show plain error, and this enumeration of error fails.
Judgment affirmed. All the Justices concur.
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