Price v. State ( 2022 )

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
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official text of the opinion.
In the Supreme Court of Georgia
Decided: April 19, 2022
S22A0079. PRICE v. THE STATE.
PETERSON, Justice.
Robert Lewis Price III was convicted of malice murder and
other offenses in connection with the shooting death of Ronnie
Cantrell, Sr. (“Cantrell”), and the non-fatal shooting of Ronnie
Cantrell, Jr. (“Cantrell Junior”). 1 On appeal, Price raises one claim
1 The crimes occurred on September 11, 2012. On March 26, 2015, a
Henry County grand jury indicted Price and three other co-defendants ⸺ Trey
Michael Cota, Terrance Leslie Floyd III, and Brandon Alexander Terry-Hall ⸺
for malice murder and felony murder of Cantrell (Counts 1-6), burglary (Count
7), armed robbery of the Cantrells (Counts 8 and 9), aggravated assault of
Cantrell (Count 10), aggravated assault of Cantrell Junior (Count 11),
aggravated battery of Cantrell Junior (Count 12), false imprisonment of the
Cantrells (Counts 13 and 14), and possession of a firearm during the
commission of a felony (Count 15). The State gave notice of its intent to seek
the death penalty but withdrew its notice when Price waived his right to a jury
trial. Floyd and Cota pleaded guilty to Counts 7 and 9, and both men testified
at Price’s bench trial. Terry-Hall pleaded guilty to felony murder and other
offenses, and we affirmed the denial of his motion for an out-of-time appeal.
See Terry-Hall v. State, 312 Ga. 250 (862 SE2d 110) (2021).
At Price’s June 2016 bench trial, he was found guilty on all counts, and
the trial court sentenced him to life in prison plus 75 years. Price filed a timely
of error: the trial court erred by failing to merge his convictions for
aggravated assault and aggravated battery committed against
Cantrell Junior because the underlying acts occurred in quick
succession and arose out of the same transaction. Although there is
some evidence to support Price’s argument, there is also evidence to
support the trial court’s factual finding that the acts were separated
by sufficient time to constitute a deliberate interval. The existence
of a deliberate interval dooms Price’s argument. We affirm.
The trial evidence shows that Cantrell and his adult son,
Cantrell Junior, were together for most of the day on September 11,
2012, and returned to Cantrell’s residence after dinner. Upon
entering the house, Cantrell Junior became alarmed by the smell of
cigarette smoke and the sight of cigarette butts on the floor, because
motion for new trial, which he later amended. On October 22, 2019, the trial
court denied Price’s motion, except to the extent that the court corrected
certain alleged sentencing errors. The revised disposition shows that Price was
sentenced to serve life in prison for Counts 1, 8, and 9; a 20-year term for Count
7; a 20-year term for Count 11 consecutive to Count 1; a 20-year term
consecutive to Count 11 for Count 12; a 10-year term consecutive to Count 12
for Count 13; a 10-year term for Count 14; and a five-year term consecutive to
Count 13 for Count 15. The remaining counts were vacated or merged. Price
filed a timely notice of appeal and his case was docketed to this Court’s term
beginning in December 2021.
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neither he nor his father smoked. Cantrell Junior also saw items
strewn about the house and told his father that he believed someone
had been in the house. They exited the house briefly but went back
inside after Cantrell Junior retrieved his gun from his truck. The
Cantrells walked through the house and stopped at Cantrell’s
master bedroom. The men were looking inside the bedroom when
Brandon Alexander Terry-Hall, wearing a mask, jumped out and
began shooting. Cantrell Junior returned fire and struck Terry-Hall,
who crawled into the master bathroom and closed the door.
The Cantrells remained in the hallway for a moment before
Price, also wearing a mask, exited a bathroom at the end of the
hallway. Price pointed a shotgun at the Cantrells and fired. The
shotgun pellets struck Cantrell Junior in the hand, blowing off a
finger, and hit Cantrell in the side, causing him to fall. After the
initial shot, Cantrell Junior turned around, picked up his father,
propped him up against the wall, and told him that they were
getting out of the house. When Cantrell Junior turned around to
walk down the hall, Price ran down the hallway and shot Cantrell
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Junior in the chest, causing extensive bleeding, before returning to
the bathroom from which he had appeared. Cantrell Junior
continued to try to carry his father out of the house and was at the
kitchen door when Price ran from behind, grabbed Cantrell,
demanded access to a safe Price had discovered, and threatened to
shoot Cantrell in the head if Price was not given access. Cantrell
Junior agreed to open the safe and led Price to it with the shotgun
pointed to his head. After opening the safe, Cantrell Junior asked
Price to let him and his father go outside to die in peace. Price let
the Cantrells leave the house, whereupon they called 911 and
walked across the street. The Cantrells were transported to a
hospital, where Cantrell died from multi-system organ failure
caused by the shotgun wound to his torso.
Price testified in his own defense and admitted participating in
the burglary of Cantrell’s house and shooting both Cantrells. Price
claimed that he shot in the direction of the Cantrells because he
wanted to stop them from shooting Terry-Hall; he claimed he
stopped shooting when he noticed that the Cantrells were not
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returning fire. Price testified that when he did so and after Cantrell
Junior asked to take Cantrell outside, Price stepped aside and went
into the bathroom. Price went to look for Terry-Hall, could not find
him, and became angry when Price saw a trail of blood leading out
of the window and realized Terry-Hall had been shot. Price then
pursued the Cantrells, pointed a gun at them, and demanded access
to the safe. Price claimed that he found no money in the safe and did
not take anything from it. He fled into the woods when he heard
sirens and reunited with the other co-defendants later.
Among other offenses, Price was convicted of the malice
murder of Cantrell and aggravated assault and aggravated battery
against Cantrell Junior. His sentence included separate 20-year
terms for aggravated assault and aggravated battery. The
aggravated assault conviction was based on shooting Cantrell
Junior with a gun, and the aggravated battery conviction was based
on depriving Cantrell Junior of his finger when he was shot. In his
motion for new trial, Price argued to the trial court that the two
offenses should have merged for sentencing purposes because they
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were “inflicted in quick succession” and “arose out of the same
criminal transaction.” In its order denying the motion for new trial,
the trial court found that the two offenses did not merge because
they “derive[d] from two gunshots that did not occur almost
immediately one after the other,” but were separated by a period of
time and resulted in distinct injuries.
In his sole claim of error, Price argues that the trial court erred
in failing to merge his convictions for aggravated battery and
aggravated assault. He contends that the shot that deprived
Cantrell Junior of his finger occurred “mere minutes” before the
second shot to Cantrell Junior’s chest and was part of the same
shootout. We conclude that the trial court did not err in failing to
merge these counts.
In order for the aggravated assault and aggravated battery
counts to be treated as distinct criminal acts, there must be a
“deliberate interval” between the completion of one offense and the
start of the other. See Regent v. State, 299 Ga. 172, 174 (787 SE2d
217) (2016). If there was no deliberate interval, then the two offenses
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were part of a continuous act and merge for sentencing purposes.
See Russell v. State, 309 Ga. 772, 784 (4) (a) (848 SE2d 404) (2020);
Ingram v. State, 279 Ga. 132, 133-134 (2) (610 SE2d 21) (2005).
We have said that “whether offenses merge is a legal question”
that we review de novo. Regent, 299 Ga. at 174. That is particularly
true when considering whether counts merge as a matter of law, but
counts also may merge as a matter of fact. See Grissom v. State, 296
Ga. 406, 409 (1) (768 SE2d 494) (2015). Whether there is a
“deliberate interval” between two offenses requires a review of the
trial evidence, and we have not determined squarely the manner in
which we are to view that evidence or resolve conflicts in the
evidence. In a few cases, without explaining why, we appear to have
construed the evidence in the light most favorable to support the
jury’s verdicts. See, e.g., Ortiz v. State, 291 Ga. 3, 6 (3) (727 SE2d
103) (2012) (in considering merger question, concluding that the
evidence, “[c]onstrued to support the verdicts,” “dictate[d] the
finding of two distinct assaults” were separated by a “deliberate
interval”); Parker v. State, 281 Ga. 490, 492 (2) (640 SE2d 44) (2007)
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(“The jury could have reasonably concluded that the first two
injuries resulted from a separate offense than the third.”). But it is
not for the jury to resolve merger questions, as the jury’s role is to
determine whether a defendant is guilty (or not) of each charged
offense and the trial court’s role to convict and sentence a defendant
after a finding of guilt only for those counts that are not merged or
vacated. See Dukes v. State, 311 Ga. 561, 571 (4) (858 SE2d 510)
(2021) (“Merger refers generally to situations in which a defendant
is prosecuted for and determined by trial or plea to be guilty of
multiple criminal charges but then, as a matter of substantive
double jeopardy law, can be punished ⸺ convicted and sentenced for
only one of those crimes.” (citation and punctuation omitted)); State
v. Riggs, 301 Ga. 63, 68-69 (2) (a) (799 SE2d 770) (2017) (discussing
trial court’s discretion to sentence a defendant within the statutory
range for each count of conviction). And absent a special verdict form
that asked the jury to determine whether a deliberate interval
existed, nothing in the jury’s verdict implicitly or explicitly
answered that question.
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Here, the trial court ⸺ after a bench trial ⸺ found that a
deliberate interval separated the two crimes at issue. We have not
identified a case in which we have considered the proper scope of
review as to a trial court’s factual determinations regarding merger.
But typically, a trial court’s factual findings are reviewed for clear
error, meaning we accept the court’s factual findings if there is any
evidence to support them. See, e.g., Maxwell v. State, 311 Ga. 673,
676 (2) (859 SE2d 58) (2021) (in reviewing grant or denial of double
jeopardy plea in bar, the trial court’s findings regarding disputed
facts are reviewed for clear error); Cox v. State, 306 Ga. 736, 745 (3)
(b) (832 SE2d 354) (2019) (when reviewing ruling on a motion to
suppress a defendant’s statement, we defer to the trial court’s
findings on disputed facts and will not upset them unless they are
clearly erroneous); Green v. State, 302 Ga. 816, 818 (2) (809 SE2d
738) (2018) (providing same for review of ineffective assistance of
counsel claims); Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112)
(2012) (defining clear error). We need not resolve whether, in
considering a factual merger question like the one at issue here, we
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are to defer to the trial court’s factual findings on the issue or view
the evidence in the light favorable to the guilty verdicts, because the
trial court sat as the fact-finder at Price’s bench trial and when
evaluating Price’s merger claim, and applying either of the
applicable standards of review would net the same result. 2
The aggravated battery and aggravated assault counts,
although involving Price’s use of a deadly weapon, did not clearly
charge the same conduct, and Cantrell Junior’s testimony provides
evidence that there was a deliberate interval between the critical
shots. According to Cantrell Junior, Price fired a shot that blew off
his finger and then struck Cantrell, causing Cantrell to fall. It was
only after Cantrell Junior began attending to his father that Price
shot Cantrell Junior in the chest, resulting in additional injury.
2 We have said that when a trial court sits as the trier of facts, its
“findings based on conflicting evidence are analogous to the verdict of a jury
and should not be disturbed by a reviewing court if there is any evidence to
support them.” State v. Rosenbaum, 305 Ga. 442, 449 (2) (826 SE2d 18) (2019);
see also Clark v. State, 309 Ga. 473, 477 (847 SE2d 364) (2020) (on sufficiency
review, the verdict will be upheld “[a]s long as there is some competent
evidence, even though contradicted, to support each fact necessary to make out
the State’s case”).
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Cantrell Junior did not describe the amount of time that lapsed
between the first and second shot, but his testimony reveals that he
bent down to pick up his father, propped him against the wall, and
turned around to begin walking when Price ran down the hall and
fired the second shot.
Because the evidence shows a pause sufficient to constitute a
deliberate interval, the trial court was thus permitted to conclude
that the aggravated battery was completed before the aggravated
assault took place. See Hightower v. State, 304 Ga. 755, 760 (3) (822
SE2d 273) (2018) (aggravated assault and aggravated battery
counts involving same victim did not merge because they “did not
clearly charge the same conduct” and the evidence showed that there
were two rounds of shots separated by a deliberate interval and
resulted in different injuries); Oliphant v. State, 295 Ga. 597, 602 (4)
(b) (759 SE2d 821) (2014) (aggravated assault counts did not merge
into other convictions, including armed robbery of aggravated
assault victim, where after the initial shooting, one assailant
returned and shot the victim in the leg); Lowe v. State, 267 Ga. 410,
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412 (1) (b) (478 SE2d 762) (1996) (aggravated assault count did not
merge into malice murder count because the aggravated assault was
completed and defendant walked around the car and deliberately
aimed at the wounded and pleading victim before firing the fatal
shot). Compare Wofford v. State, 305 Ga. 694, 696 (1) (b) (827 SE2d
652) (2019) (trial court erred in failing to merge aggravated assault
and aggravated battery counts because they were based on a single
gunshot that struck the victim in the head); Douglas v. State, 303
Ga. 178, 183 (4) (811 SE2d 337) (2018) (aggravated battery and
aggravated assault counts should have merged because the “injuries
were sustained by one victim during a single, uninterrupted criminal
act” (emphasis added)). The evidence was sufficient to support the
trial court’s factual finding of a deliberate interval, and thus we
affirm the court’s legal determination that merger was
inappropriate.
Judgment affirmed. All the Justices concur.
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