Georgia Supreme Court: Asportation Required to Support Kidnapping Conviction
by David Reutter
The Supreme Court of Georgia granted a habeas corpus petition and held there was insufficient evidence of asportation to support the kidnapping charges of appellant Jessie Mercer.
Mercer was convicted in 2004 of kidnapping Richard and Parchando Love. He also was convicted of armed robbery and two counts of aggravated assault. The charges stemmed from a January 26, 2004, nighttime break-in of the Loves’ home.
Mercer and two other intruders entered the couple’s bedroom, taped up their arms and legs, and demanded money. The intruders asked if a safe was in the house.
Mr. Love was taken by an intruder to find the safe. When it could not be located, an intruder threatened to kill Mrs. Love. She told them where the safe was and volunteered to show them where it was, but she said it only had documents in it.
She was dragged 25 to 30 feet to the safe and returned to the bedroom when no money was found in it.
At some point, one of the Loves told the intruders that there was $5,000 under the mattress. The intruders took the money and left. After Mercer was convicted, he appealed and challenged the kidnapping conviction related to Mr. Love.
Specifically, Mercer contended the State failed to prove element of asportation. The Court of Appeals rejected that contention.
A 2011 habeas corpus petition filed by Mercer alleged that the evidence was insufficient to support either of his kidnapping convictions in light of the new standard for asportation announced by the Georgia Supreme Court in Garza v. State, 670 S.E.2d 73 (Ga. 2008).
The habeas court denied the petition, and the Supreme Court granted Mercer’s application for certificate of probable cause to appeal.
The Court began its analysis by explaining that there are four factors under Garza to determine whether the movement of the victim constitutes asportation sufficient to sustain a kidnapping conviction. These factors are: (1) the duration of the movement, (2) whether the movement occurred during the commission of a separate offense, (3) whether such movement was an inherent part of that separate offense, and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.
The factors must be considered as a whole, and “it is not necessary that all four factors weigh in favor of asportation.” Peoples v. State, 757 S.E.2d 646 (Ga. 2014). The purpose of the test “is to determine whether the movement in question served to substantially isolate the victim from protection or rescue, the evil which the kidnapping statute was originally intended to address.” Gonzalez v. Hart, 777 S.E.2d 456 (Ga. 2015).
The Court noted that the movement of Mr. Love consisted “only of moving him from a standing position to the floor.” With respect to Mrs. Love, the movements consisted of (1) placing her on the floor, pulling her up, and pushing her against the aquarium, and (2) moving her the 25 to 30 feet to the safe and back to the bedroom.
In examining Mr. Love’s movement, the Court found it “took place soon after the intruders entered the couple’s bedroom, was of extremely short duration, and occurred during the ongoing armed robbery.” This, the Court ruled, did not constitute asportation to support a conviction of kidnapping with respect to Mr. Love. Turning to Mrs. Love, the Court concluded that the several movements of her were “insufficient to establish asportation largely for the same reasons that the evidence was insufficient to establish asporation regarding Mr. Love.”
In addressing moving her from the bedroom to the safe and back, the Court explained that those movements were “not in the nature of the evil the kidnapping statute was designed to defend against, as it did not ‘serve[ ] to substantially isolate the victim from protection or rescue.’”
Accordingly, the Court ruled that there was insufficient evidence of asporation needed to support the convictions and thus reversed the kidnapping convictions. See: Mercer v. Johnson, 304 Ga. 219 (2018).
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Related legal case
Mercer v. Johnson
|Cite||304 Ga. 219 (2018)|
|Level||State Supreme Court|