McCoy v. State ( 2023 )

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.
In the Supreme Court of Georgia
Decided: February 7, 2023
S22A0970. MCCOY v. THE STATE.
LAGRUA, Justice.
Appellant Thomas McCoy was convicted of felony murder and
other crimes in connection with the attempted burglary and
shooting death of Theodore Barber, as well as theft by receiving of
Tony Smith’s SUV. 1 On appeal, Appellant contends in his sole
1 The crimes occurred on December 2, 2003. On February 17, 2004,
Appellant and co-defendant Michael Favors were indicted by a Fulton County
grand jury for malice murder (count one), felony murder based on aggravated
assault (count two), felony murder based on burglary (count three), aggravated
assault with a deadly weapon (count four), burglary (count five), theft by
receiving stolen property (count six), and two counts of possession of a firearm
during the commission of a felony (counts seven and eight). Favors was also
indicted for aggravated assault on a peace officer. Appellant and Favors were
jointly tried in October 2005 and convicted on all counts. In October 2009,
Appellant and Favors moved for a new trial, which the trial court granted. The
new trial took place from April 23 through 27, 2012, and the jury found
Appellant and Favors guilty on all counts. Appellant and Favors filed timely
motions for new trial. After an evidentiary hearing, the trial court denied the
motions, and Appellant and Favors filed timely notices of appeal. In March
2015, this Court issued an opinion in Favors’s direct appeal, see Favors v.
State, 296 Ga. 842 (770 SE2d 855) (2015), affirming in part and vacating in
part the judgment below and remanding for resentencing due to merger errors.
enumeration of error that the evidence was legally insufficient to
support his convictions. For the reasons explained below, we see no
error and affirm.
Viewed in the light most favorable to the verdicts, the evidence
presented at trial showed that, on December 2, 2003, Barber called
911 at 11:43 a.m. to report that he believed someone was about to
break into his apartment. On the 911 recording, Barber stated that
two young men were “banging” on doors and trying to break into
apartments in his building. He also stated that the men arrived in a
Following the issuance of that opinion, on November 2, 2015, the trial court,
which had originally sentenced Appellant to serve life in prison, plus a
consecutive five years, re-sentenced Appellant to serve life in prison for malice
murder (count one), ten years for burglary (count five) to run concurrently with
count one, five years for theft by receiving stolen property (count six) to run
consecutively to count one, and five years on probation for each count of firearm
possession (counts seven and eight). Due to the trial court’s delay in completing
the record, Appellant’s appeal was not docketed in this Court until August 30,
2017. On October 3, 2017, noting that Appellant had failed to file a brief in this
case, the Court issued an order directing Appellant’s counsel to file a brief on
Appellant’s behalf by October 13, 2017. On December 11, 2017, having yet to
receive a filing from Appellant, this Court struck the case from the docket and
remanded it to the trial court to determine “whether Appellant’s failure to file
a timely appellate brief was the result of his counsel’s ineffective assistance
and, if so, whether new counsel should be appointed to represent Appellant.”
On May 8, 2018, Appellant’s new counsel entered an appearance. On March
30, 2022, the trial court ordered the Fulton County clerk to transmit the record
to this Court, and the appeal was re-docketed to this Court’s August 2022 term.
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“burgundy Ford Explorer.” Barber explained to the 911 operator
that he was armed and prepared to defend himself. The 911 operator
attempted to calm Barber down and informed him that she had
dispatched units to his location. Within moments, Barber told the
911 operator that the men were “kicking the door in,” and loud thuds
could be heard on the 911 recording before gunshots were fired. The
911 operator then called out to Barber, who did not respond.
In response to Barber’s 911 call, Officer Heather Davis of the
Fulton County Police Department was dispatched to Barber’s
location. Officer Davis parked her patrol vehicle, and as she began
to approach the apartment building on foot, she heard “tires
squealing” and saw a burgundy Ford Expedition SUV backing out of
a parking spot. The driver of the SUV drove toward the apartment
complex exit, near where Officer Davis was standing. She tried to
stop the SUV, but the driver swerved the car towards her, causing
her to jump out of the way. Officer Vernal Sutherland was also
dispatched to the scene and arrived just in time to see the SUV
“barrel[ling] out” of the complex. Officer Sutherland pursued the
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SUV until the driver “bailed out” of the moving vehicle and fled on
foot. Officer Sutherland gave chase, caught the driver, and placed
him under arrest. The driver of the SUV was later identified as
Appellant’s co-defendant, Michael Favors.
While Officer Sutherland chased Favors on foot, Officer Davis
returned to the apartment building and located the specific
apartment from which the 911 call originated. She noticed that the
door had been kicked in and the doorframe had been broken. Once
inside the apartment, she observed a man—later identified as
Barber—lying on the floor, bleeding and unresponsive. The medical
examiner determined that Barber died from a gunshot wound to the
chest. A bullet was extracted from Barber’s chest, which was
confirmed by the ballistics expert to be a .38-caliber bullet. A .40-
caliber bullet and shell casing were also found at the scene,
indicating that two separate guns were fired in Barber’s home.2 The
ballistics expert concluded that the .38-caliber bullet that caused
2 Neither the .38-caliber murder weapon nor the .40-caliber gun were
ever found. At the scene, detectives discovered a 16-gauge shotgun lying next
to Barber’s body that had not been fired.
4
Barber’s death was fired from a revolver, whereas the .40-caliber
shell casing and bullet were fired by a Glock handgun.
A detective impounded the burgundy SUV and, after running
an impound report, determined that the vehicle had been reported
stolen. Detectives obtained a search warrant for the vehicle and
dusted for fingerprints. Testimony from crime scene technicians at
trial revealed that latent fingerprints found on the passenger side of
the SUV matched Favors’s fingerprints, and a latent fingerprint
pulled from a candy bar wrapper found under the driver’s seat of the
SUV matched the known prints of Appellant.
Smith, the owner of the stolen SUV, testified that, on
November 30, 2003—two days before Barber was killed—two men
approached him with guns drawn while he was pumping gas and
stole his 1996 burgundy Ford Expedition and his cell phone. Smith
testified that, after his SUV and phone were taken from him, he
changed the greeting on his cell phone voicemail so that anyone who
tried to call him would know that the phone had been stolen.
5
At trial, 14-year-old Taja Glenn—who was dating Appellant––
and 16-year-old Lakeesha Reese testified that, a day or two before
the shooting on December 2, Appellant and Favors picked up the
girls from Glenn’s house in a burgundy SUV. Glenn testified that
Appellant told her that he and Favors had stolen the SUV, and
Reese testified that she found a cell phone in the back seat of the
SUV and listened to the outgoing voicemail greeting, which
“indicate[d] that the [SUV] had been stolen.” Both girls testified
that Appellant and Favors took them to a hotel room, where they
watched television and played video games. Reese remembered
seeing two guns “l[y]ing around” the hotel room, and Glenn testified
that she saw both Favors and Appellant with guns. Glenn
specifically remembered that Appellant’s gun was a silver “cowboy”
gun that “had a pullout where you put the bullets in” and that
Favors’s gun was black. Glenn also testified that she overheard a
conversation between Appellant and Favors that “they were going
to go hit a lick,” which she knew was slang for robbing someone, and
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that “the person was not supposed to be there.” Reese testified that
she did not hear anyone talk about “hit[ting] a lick.”
Appellant told Glenn that, if for some reason he and Favors
were not at the hotel the next morning, the girls should pack up the
PlayStation, and Appellant’s mother would come pick them up.
When the girls woke up the next morning, Favors and Appellant
were not in the hotel room, and Glenn believed they left the hotel in
the burgundy SUV. Appellant’s mother picked up the girls from the
hotel and took them to a MARTA train station. Glenn testified that,
at some point after Appellant’s mother picked them up, Appellant
called her and said that “the lick went bad,” “the man was home,”
“the man had a gun,” and “the man got shot.”
For reasons not established by the record, on the evening of
December 2, Glenn and Reese were taken by their mothers to the
DeKalb County Police Department. Detective Wade Yates––the lead
detective with the Fulton County Police Department investigating
Barber’s death––was notified by the DeKalb County Police
Department that the girls had information potentially related to his
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investigation. Detective Yates then requested that Detective
Orlando Concepción, with the DeKalb County Police Department,
record interviews with the two girls. 3 Detective Yates obtained a
warrant for Appellant’s arrest, and on or around December 4,
Appellant turned himself in to the Fulton County Police
Department.
1. Appellant contends that the evidence presented at trial was
insufficient to support his convictions. Specifically, Appellant argues
that (a) the testimony of Joseph Sager, a crime scene technician, was
based on hearsay and cannot support Appellant’s convictions and (b)
the evidence was insufficient to convict him as a party to the crime
under OCGA § 16-2-20.
When evaluating the sufficiency of evidence as a matter
of constitutional due process, the proper standard of
review is whether a rational trier of fact could have found
the defendant guilty beyond a reasonable doubt. This
Court views the evidence in the light most favorable to
the verdict, with deference to the jury’s assessment of the
weight and credibility of the evidence.
3 Portions of Reese’s and Glenn’s statements were admitted at trial for
impeachment purposes.
8
Sams v. State, 314 Ga. 306, 309 (2) (875 SE2d 757) (2022) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
(1979)).
(a) Appellant contends that the testimony of Sager, the crime
scene technician who identified Appellant’s fingerprint on the candy
wrapper in the SUV, was “non-probative hearsay” and cannot be
considered in determining the sufficiency of evidence. 4 This claim
has no merit.
At trial, Sager testified that he was a senior crime technician
for nine years and his duties included identifying latent prints,
lifting latent prints, and comparing latent prints to known prints.
The State moved to qualify Sager as “an expert in the area of latent
print identification.” Appellant’s trial counsel did not object, and
Sager was so qualified. Sager testified that he processed the candy
bar wrapper that had been found in the burgundy SUV and lifted a
4 Under Georgia’s old Evidence Code, which applies in this case because
Appellant was tried in 2012, “‘erroneously-admitted hearsay’ was deemed to
have no probative value and therefore could not be considered in determining
the sufficiency of the evidence.” Dawson v. State, 308 Ga. 613, 616 (842 SE2d
875) (2020) (citation and some punctuation omitted).
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latent fingerprint. After entering Appellant’s fingerprint card into
evidence without objection, the prosecutor asked, “Did you have the
opportunity to compare the known print of [Appellant] to . . . the
latent print of value that you located on the . . . candy bar wrapper?”
Sager responded, “Yes, I did.” The prosecutor then asked, “Can you
tell us what your results were?” Sager responded, “The results were
that—after comparison, that it was determined that the print
matched the right middle finger of the card.”
Appellant argues that Sager’s qualification as an expert in the
area of latent print identification, instead of latent print
identification and comparison, as well as his use of the “third
person” in stating “it was determined that the print matched”
compels this Court to conclude that Sager’s testimony was non-
probative hearsay. This argument is unavailing. A careful review of
Sager’s testimony reveals that his testimony was not based on
hearsay, but on his personal knowledge, as evidenced by Sager’s
responses to the questions inquiring into his personal involvement
with the case (e.g., “Can you tell us what your results were?”)
10
(Emphasis supplied.). Consequently, his testimony does not fall
within the definition of hearsay that was applicable at the time of
Appellant’s trial. See former OCGA § 24-3-1 (a) (“Hearsay evidence
is that which does not derive its value solely from the credit of the
witness but rests mainly on the veracity and competency of other
persons.”) (Emphasis supplied.) See also Bell v. State, 294 Ga. 443(754 SE2d 327) (2014) (holding that a witness’s testimony based on
a fact within his personal knowledge was not hearsay). Thus, Sager’s
testimony was not “non-probative hearsay” and can be considered in
determining the sufficiency of the evidence.
(b) Appellant also contends that the evidence was insufficient
to convict him as a party to the crime under OCGA § 16-2-20 for the
following reasons: (1) the evidence supporting the jury’s verdicts
primarily came from the conflicting testimony of Reese and Glenn—
e.g., Glenn testified that she overheard Appellant and Favors talking
to each other about “hit[ting] a lick,” but Reese testified that she
never heard any such conversation; (2) his convictions were based
wholly on circumstantial evidence, citing Clyde v. State, 276 Ga. 839,
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840 (584 SE2d 253) (2003) (since there was “no testimony” that the
defendant intended the alleged crimes, “[a]ll of the State’s evidence
against [defendant] was circumstantial, which requires that the
proved facts shall . . . exclude every other reasonable hypothesis save
that of the guilt of the accused”); and (3) the State did not rule out
the possibility that Favors acted alone or that Appellant attempted
to dissuade Favors from “hit[ting] a lick.” We see no merit in these
contentions.
A person is a party to a crime if, among other things, he
“directly commits the crime,” “intentionally aids or abets in [its]
commission,” or “intentionally advises, encourages, hires, counsels
or procures another” to commit it. OCGA § 16-2-20 (b). Although
“mere presence at the scene of a crime is not sufficient evidence to
convict one of being party to a crime,” a jury is entitled to infer
criminal intent from a defendant’s “presence, companionship, and
conduct before, during, and after the offense.” Jones v. State, 314 Ga.
214, 231 (3) (875 SE2d 737) (2022) (citation and punctuation
omitted).
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Here, there was sufficient evidence for a jury to conclude that
Appellant committed the crimes at issue. The evidence showed that
Appellant and Favors were driving around in a stolen SUV two days
before the murder and that they picked up Glenn and Reese in that
same SUV. Appellant’s fingerprints were also discovered in the
stolen SUV on a candy bar wrapper. Appellant and Favors
disappeared from the hotel room where they were staying with
Glenn and Reese after discussing their plans to “hit a lick.” Glenn
testified that she saw Appellant with a silver “cowboy” gun and
Favors with a black gun. Two guns were fired at the scene of
Barber’s death, including the gun that killed Barber. Appellant told
Glenn that he and Favors might not return to the hotel once they
had left, gave instructions for them to pack up their belongings, and
told Glenn and Reese that, if they did not return, his mother would
pick the girls up from the hotel the following day. Appellant then
left and did not return the following day, which was the day Barber
was killed.
Additionally, while Barber was on the phone with the 911
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operator moments before his death, he explained that two young men
were attempting to break into his home. Favors was apprehended by
law enforcement officers after fleeing the apartment complex where
the shooting occurred in an SUV that matched the description of the
SUV Barber gave to the 911 operator. And, mere hours after the
shooting, Appellant told Glenn that “the lick went bad,” “the man
was home,” “the man had a gun” and, “the man got shot.”
Accordingly, the evidence was sufficient as a matter of
constitutional due process to authorize the jury to conclude that
Appellant and Favors committed the crimes together and to convict
Appellant on the basis of his “presence, companionship, and
conduct” with Favors “before, during, and after the offense.” Jones,
314 Ga. at 232 (3) (citation and punctuation omitted).
Further, a conviction can rest on circumstantial evidence alone
if that evidence “exclude[s] every other reasonable hypothesis save
that of the guilt of the accused,” OCGA § 24-14-6, but “the evidence
need not exclude every conceivable inference or hypothesis—only
those that are reasonable.” Graves v. State, 306 Ga. 485, 487 (1) (831
14
SE2d 747) (2019). The question as to “whether any alternative
hypotheses are reasonable and whether the circumstantial evidence
excludes any such hypotheses” is for the jury to resolve. Id. (citation
and punctuation omitted).
Even assuming that all of the evidence presented at trial was
circumstantial, the evidence was sufficient as a matter of Georgia
statutory law for a jury to convict Appellant. And “where the jury is
authorized to find that the evidence, though circumstantial, was
sufficient to exclude every reasonable hypothesis save that of the
guilt of the accused,” as they did here, “we will not disturb that
finding unless it is insupportable as a matter of law.” Graves, 306
Ga. at 487 (1). Despite Appellant’s protests regarding the
inconsistency of Reese’s and Glenn’s testimony, “it is axiomatic that
resolving evidentiary conflicts and assessing witness credibility are
within the exclusive province of the jury.” Id. at 553 (1). See also
Carter v. State, 314 Ga. 317, 319-320 (b) (877 SE2d 170) (2022)
(holding that the evidence was sufficient to support defendant’s guilt
where the testimony of two witnesses conflicted about the
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defendant’s whereabouts on the day of the murder, noting that “to
the extent that [one witness’s] testimony conflicts with [another’s],
that inconsistency was for the jury to resolve, and the jury was
entitled to disbelieve” either witness’s version of the events).
Moreover, Glenn’s testimony relaying Appellant’s statements to her
about the crimes (e.g., how he and Favors stole the SUV and what
occurred when “the lick went bad”) was sufficient for the jury to find
Appellant guilty of the crimes charged. See OCGA § 24-14-8 (“The
testimony of a single witness is generally sufficient to establish a
fact.”). Accordingly, Appellant’s claim fails.
Judgment affirmed. All the Justices concur.
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