¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: April 18, 2023
¶4 S23A0141. HARRIS v. THE STATE.
¶5 MCMILLIAN, Justice.
¶6 In October 2019, a jury found Evins Vontravis Harris guilty of
¶7felony murder and other crimes in connection with the shooting
¶8death of Darius Roberts.1 On appeal, Harris asserts that the trial
¶9 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
¶10its discretion by admitting an in-life photograph of Darius at trial.
¶11For the reasons that follow, we discern no reversible error and
¶12affirm.
¶13 The evidence presented at trial showed that Harris lived with
¶14his girlfriend, Daysha Roberts, and their infant son in a two-
¶15bedroom home in Camden County. Daysha’s brother, Darius, also
¶16lived with them, although he did not pay rent. On May 6, 2018,
¶17Harris and Daysha were in the process of moving out because they
¶18were both unemployed and could no longer afford the rent.2 Late
¶19that evening, Harris said he wanted to go to his mother’s house and
¶20was going to call a cab. He then threw his phone on the bed and left.
¶21At that time, Darius was lying on the couch by the front door,
¶22listening to music on Daysha’s phone with over-the-ear
¶23headphones. 3
¶24 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
¶25someone had recently burglarized the apartment and he wanted to be able to
¶26 2 Harris returned home approximately 30 minutes later and
¶27entered the bedroom he shared with Daysha and their child. He told
¶28her the cab never came and asked for his cell phone. Daysha pointed
¶29to the phone, and Harris grabbed it and left the room. About ten
¶30seconds after Harris left the room, Daysha heard three gunshots.
¶31She placed her child in the closet, approached the bedroom doorway,
¶32and heard two more shots. When Daysha opened the bedroom door,
¶33she heard the front door forcefully open, followed by the sound of
¶34someone running outside. Daysha then saw Darius lying on the floor
¶35and ran outside to knock on the neighbor’s door to ask for help. The
¶36neighbor called 911 and, at the direction of the 911 dispatcher, told
¶37Daysha to go back inside and see if Darius was still breathing.
¶38Daysha found her brother face-down and unresponsive. As she rolled
¶39him over, she took her cell phone from his hand and threw it on the
¶40couch.
¶41protect 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
¶42was dispatched to the scene. When she arrived, she saw the victim
¶43lying on the floor in front of the couch, face down, with his head
¶44positioned toward the front door. After determining that he was not
¶45breathing, she began chest compressions but was unable to revive
¶46him. She did not see a weapon near Darius’s body. A recording from
¶47Officer Swartz’s body camera was played for the jury.
¶48 The GBI was called to assist in the investigation, and Special
¶49Agent Jamie Karnes located seven spent shell casings from a .380-
¶50caliber firearm throughout the living room. Based on bullet defects
¶51found on the couch, cushions, and carpet, Agent Karnes determined
¶52that the shots appeared to have been fired from a downward angle.
¶53While searching the couch for additional shell casings, Agent Karnes
¶54found a 9mm Smith & Wesson handgun hidden underneath a sofa
¶55cushion containing 13 unfired 9mm cartridge casings. No rounds
¶56were found in the chamber of the Smith & Wesson, meaning that
¶57the gun was not in a position where a pull of the trigger would
¶58discharge the weapon. No 9mm spent shell casings were found at
¶59 4 the scene.
¶60 When Harris arrived at the hospital where first responders
¶61brought Darius’s body, he ran over and said, “Daysha, I’m sorry.”
¶62Law enforcement officers then took Harris into custody. After being
¶63advised of his rights under Miranda, 4 Harris agreed to be
¶64interviewed and eventually told detectives that he shot Darius in
¶65self-defense. At various points in the interview, Harris claimed that
¶66Darius had been raping him, his one-year-old child, his younger
¶67brother and sister, and Daysha.5 Harris also claimed that Darius
¶68had pulled a gun on him several times in the past. A recording of the
¶69interview was played for the jury at trial.
¶70 Daysha testified that shortly before the shooting, Harris had
¶71become paranoid and accused her multiple times of cheating on him.
¶72 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,
¶73but Harris kicked the door in, damaging the doorframe. She told
¶74Harris’s mother about his concerning behavior, and his mother tried
¶75to get him help, but he refused. Daysha had never seen Darius pull
¶76a gun on Harris.
¶77 The medical examiner testified that Darius sustained seven
¶78gunshot wounds, including one on the top of his head and two in his
¶79back. A GBI firearms examiner testified that each of the bullets
¶80recovered from Darius’s body during the autopsy were fired from the
¶81same .380-caliber semi-automatic pistol. Although the firearm used
¶82in the shooting was never recovered, 6 Daysha testified that she had
¶83seen Harris with a gun that his friend had sold to him prior to the
¶84shooting.
¶85 1. Harris first contends that the trial court erred in denying his
¶86pre-trial motion for immunity from prosecution under OCGA § 16-
¶87 6 Harris led officers to several different areas where he claimed that he threw the gun, but they were unable to locate it.
¶88 6 3-24.2 7 on the basis that he was reasonably defending himself
¶89against Darius and was justified in his use of force. We disagree.
¶90 To avoid trial on this ground, a defendant bears the burden of
¶91proof to show that he is entitled to immunity by a preponderance of
¶92the evidence. See Hughes v. State, 312 Ga. 149, 156 (4) (861 SE2d
¶9394) (2021). In reviewing a trial court’s ruling on a motion for
¶94immunity from prosecution, “the evidence is viewed in the light most
¶95favorable to the trial court’s ruling, and the trial court’s findings of
¶96 7 OCGA § 16-3-24.2 provides:
¶97 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.
¶98Relevant to Harris’s motion here, OCGA § 16-3-21 (a) provides:
¶99 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. 7 fact and credibility determinations are accepted if there is any
¶100evidence to support them.” Id.
¶101 Here, Harris testified at the immunity hearing that he had
¶102asked Darius for rent money because he and Daysha were having
¶103money problems, but Darius refused. Harris also testified that
¶104Darius “started putting a firearm on [him] . . . in [his] own home”
¶105three or four times prior to the shooting. This prompted Harris to
¶106buy a gun, which he loaded on the night of the shooting “just in case
¶107anything happened before [he] got ready to leave the house.” Then,
¶108as he exited his bedroom, Harris testified, he heard what he believed
¶109to be the sound of a round being chambered and turned to see Darius
¶110pointing a gun at him while Darius was still lying on the couch.
¶111Believing that Darius was going to shoot him, Harris shot at Darius
¶112as he ran from the home.
¶113 Daysha testified at the immunity hearing that Harris had
¶114never told her about any such alleged incidents with Darius and that
¶115Harris had been acting strangely prior to the shooting. The
¶116interviewing detectives testified that Harris gave conflicting
¶117 8 statements regarding the shooting and brought officers to various
¶118locations where he supposedly disposed of the gun, but they were
¶119never able to recover the weapon. A recording of Harris’s interview
¶120was played at the hearing. Special Agent Karnes also testified as to
¶121the forensic evidence found at the scene.
¶122 In denying the motion for immunity, the trial court determined
¶123that the physical evidence and other testimony showed that the
¶124encounter did not occur in the manner Harris described and that
¶125Harris may have been motivated by anger or aggression rather than
¶126self-defense. And when considering the issue again after it was
¶127raised in Harris’s motion for new trial, the trial court further
¶128explained that the evidence at the immunity hearing showed that
¶129there had been tension between Harris and Darius immediately
¶130preceding the shooting. Harris had recently lost his job and asked
¶131Darius to help with rent, but Darius did not have any money. Harris
¶132also claimed that Darius was drugging and sexually assaulting him,
¶133his child, and Daysha, yet Harris never asked Darius to move out of
¶134the home and never notified law enforcement. The evidence also
¶135 9 showed that there was no gun in the vicinity of Darius’s body, but
¶136rather a gun was hidden underneath a cushion with no bullet in the
¶137chamber, and that Harris fled the scene and lied to officers about
¶138where he disposed of his gun.
¶139 On appeal, Harris claims that because he was the only witness
¶140who was present when the events transpired, the trial court erred
¶141when it did not credit his testimony and did not grant him
¶142immunity. However, other than Harris’s self-serving testimony,
¶143there is no evidence that Harris acted in self-defense. Rather, as the
¶144trial court concluded, the evidence showed that Harris was upset
¶145with Darius for failing to help with rent. The forensic evidence
¶146showed that Darius was not holding a weapon at the time that
¶147Harris shot him multiple times, including in the top of the head and
¶148in the back, indicating that Darius was not confronting Harris when
¶149Harris fired several of the shots. Harris also fled the scene, disposed
¶150of the weapon, and later misled the police about the location of the
¶151gun, prompting officers to look in several locations without success.
¶152 Thus, the trial court’s factual findings and credibility
¶153 10 determinations were supported by evidence presented at the
¶154immunity hearing, and the trial court was authorized to reject
¶155Harris’s self-serving testimony and deny his motion for immunity
¶156from prosecution. See Ellison v. State, 313 Ga. 107, 111 (868 SE2d
¶157189) (2022) (given the evidence presented, the trial court was
¶158authorized to reject the defendant’s self-serving testimony and
¶159conclude he had not met his burden to prove justification);
¶160Hornbuckle v. State, 300 Ga. 750, 753 (2) (797 SE2d 113) (2017) (trial
¶161court was authorized to conclude defendant’s actions were motivated
¶162by aggression or anger and to deny immunity from prosecution
¶163where the physical evidence and defendant’s statements provided
¶164some evidence that the encounter did not occur in the manner she
¶165alleged). Accordingly, this enumeration of error fails.
¶166 2. Harris also asserts that the trial court plainly erred in
¶167admitting an in-life photograph of Darius. We are not persuaded.
¶168 At trial, the State called Tasheka Roberts, Darius’s mother, to
¶169present a single in-life photograph of Darius. After Darius’s mother
¶170confirmed that the photograph, which depicted Darius alone against
¶171 11 a neutral background, clearly and accurately reflected how Darius
¶172looked in the weeks before his death, the State asked to enter the
¶173photograph as an exhibit. Harris’s counsel then stated, “No
¶174objection, Your Honor.” In ruling on this issue in Harris’s motion for
¶175new trial, the trial court determined that Harris’s trial counsel
¶176affirmatively waived any objection to the admission of the
¶177photograph.
¶178 On appeal, Harris asserts that, despite his trial counsel’s
¶179failure to object, the trial court committed plain error in admitting
¶180the photograph because it likely stoked the jury’s emotions through
¶181the victim’s mother. To prevail on this claim, Harris must satisfy all
¶182four prongs of the plain-error test:
¶183 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
¶184 12 ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
¶185Williams v. State, 315 Ga. 490, 495 (2) (883 SE2d 733) (2023)
¶186(citation omitted; emphasis in original).
¶187 Here, assuming without deciding that Harris did not
¶188affirmatively waive the claim of error through his counsel’s
¶189statement that she had no objection to the admission of the in-life
¶190photograph, we conclude that any error did not affect Harris’s
¶191substantial rights. Darius’s mother’s testimony was very brief, and
¶192the photograph was fairly benign, depicting Darius alone on a
¶193neutral background. Moreover, there is no indication that Darius’s
¶194mother became emotional during her testimony, and the evidence
¶195against Harris was strong. Thus, Harris cannot show that the
¶196admission of Darius’s in-life photograph probably affected the
¶197outcome below. See Williams, 315 Ga. at 496 (2) (we need not
¶198analyze all four prongs where an appellant fails to establish one of
¶199them); Bozzie v. State, 302 Ga. 704, 708 (2) (a) (808 SE2d 671) (2017)
¶200(no plain error because, given the strength of the evidence against
¶201 13 the defendant, he could not establish that the admission of a single
¶202in-life photograph of the victim with his wife and grandchildren
¶203probably affected the outcome below). Accordingly, Harris cannot
¶204show plain error, and this enumeration of error fails.
¶205 Judgment affirmed. All the Justices concur.
¶206 14