Price v. State ( 2023 )


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  •   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: May 31, 2023
    S23A0063. PRICE v. THE STATE.
    BETHEL, Justice.
    A Dougherty County jury found Appellant Trevis Lavell Price
    guilty of malice murder and other offenses in connection with the
    deaths of L. C. Tumblin Jr. and Dexter Covin. 1 On appeal, Appellant
    1The crimes occurred on October 13, 2016. On May 1, 2019, a Dougherty
    County grand jury re-indicted Appellant for two counts of malice murder
    (Counts 1 and 2), two counts of felony murder (Counts 3 and 4), two counts of
    aggravated assault (Counts 5 and 6), four counts of possession of a firearm
    during the commission of a felony (Counts 7 through 10), possession of cocaine
    with intent to distribute (Count 11), and possession of a firearm by a convicted
    felon (Count 12). At a jury trial held from May 20 to May 31, 2019, Appellant
    was found guilty of all counts. The trial court sentenced Appellant to serve life
    in prison on Counts 1 and 2; five years each on Counts 7, 8, and 9, to run
    concurrently with each other and consecutively to Counts 1 and 2; a split
    sentence of 20 years in prison and 20 years on probation on Count 11, to run
    concurrently with Counts 7, 8, and 9 and consecutively to Counts 1 and 2; and
    five years on Count 12, to run concurrently with Counts 7, 8, and 9. Counts 5,
    6, and 10 were merged for sentencing. The trial court purported to merge
    Counts 3 and 4 for sentencing, but those counts were vacated by operation of
    law. See Malcolm v. State, 
    263 Ga. 369
    , 371-372 (4) (
    434 SE2d 579
    ) (1993).
    On July 1, 2019, Appellant filed a motion for new trial, which he
    amended through new counsel on July 2, 2020. The trial court denied the
    challenges the sufficiency of the evidence supporting his convictions
    for malice murder and the trial court’s denial of his motion to sever
    the charge for possession of cocaine with intent to distribute. We
    affirm.
    1. Viewed in the light most favorable to the jury’s verdicts, the
    evidence presented at trial showed as follows. Around 1:30 a.m. on
    the night of October 13, 2016, officers with the Albany Police
    Department were dispatched to a residential address on a report of
    a possible shooting. When officers arrived, they observed one man
    lying in the front yard of the residence and another man lying on the
    front porch, both of whom had been shot. The man in the front yard,
    later identified as Covin, was non-responsive and not breathing. The
    man on the front porch, later identified as Tumblin, was moving and
    making noises; when asked by a responding officer who shot him,
    Tumblin responded, “Travis Price.” The officers testified that
    Tumblin “was very scared, his voice was shaky, and it was a little
    motion, as amended, on July 26, 2022. On August 4, 2022, Appellant filed a
    timely notice of appeal. The case was docketed to this Court’s term commencing
    in December 2022 and submitted for a decision on the briefs.
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    hard to understand him.” The officers further noted that Tumblin
    “was kind of hysterical,” “seemed to be very faint,” “was talking in a
    very light voice,” and “seemed to be in excruciating pain.”
    Nevertheless, when the officers again asked Tumblin to identify the
    shooter, Tumblin repeated, “Travis Price.” Officers later learned
    that Tumblin and Appellant were cousins. Tumblin was transported
    to the hospital, where, four days later, he succumbed to an infection
    caused by his wounds. Covin suffered a gunshot to the head, as well
    as to his arm and torso; he died as a result of his injuries.
    After the shootings, eyewitness Fred Armstrong identified
    himself to the police. According to Armstrong, Covin owed him
    money for repairs Armstrong had made to Covin’s vehicle, and on
    the night of the crimes, Covin asked Armstrong to meet him at the
    address where the shootings occurred to pick up the money Covin
    owed. When Armstrong arrived, he saw Covin’s car with Covin and
    Covin’s wife inside; he also saw a black Toyota Camry parked behind
    the residence facing the street with its headlights on. Armstrong
    observed Covin exit his car and approach the Camry. At that point,
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    two men exited the residence, and one called out, “Who is this behind
    my house this time of night?” Appellant, 2 who had stepped out of the
    Camry, responded, “It’s your cousin.” Appellant and Covin then got
    into the Camry together. Covin exited the Camry within two
    minutes and began walking back to his own car; before Covin could
    reach his car, however, Appellant exited the Camry, walked up
    behind Covin, and shot him. Appellant turned around and shot at
    the men on the front porch, then at Covin’s wife, and then toward
    Armstrong’s vehicle. Covin’s wife sped off, followed by Armstrong.
    Based on Tumblin’s identification and the interview with
    Armstrong, police identified Appellant as a suspect in the shootings
    and, after learning that he had recently moved in with his parents,
    obtained a search warrant for Appellant’s room at the residence.
    Crack cocaine, marijuana, a scale, and razor blades were recovered
    during the search. One officer testified that the cocaine, which had
    been divided into individual bags, was packaged for distribution and
    2  Armstrong was unable to identify Appellant as the shooter either when
    police showed him a photo lineup or at trial.
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    that the weight of the cocaine—approximately nine grams—was
    “not a normal user amount” and was “consistent with somebody
    possessing it with the intent to distribute it.” The officer also
    testified that the brief interaction between Appellant and Covin in
    the Camry before the shooting was “consistent with performing a
    narcotics . . . transaction in the vehicle.”
    Appellant thereafter turned himself in to police and asked to
    speak with investigators. During the interview, 3 a video recording of
    which was played for the jury at trial, Appellant admitted ownership
    of the drugs found at his parents’ house but denied any involvement
    in the shootings. Appellant further acknowledged that he used
    several names, including Trevis Price and Travis Price. Appellant
    also identified two cell phone numbers he used; police later
    subpoenaed records associated with those phone numbers.
    At trial, the State introduced phone records showing that, from
    October 10 to October 13, several calls were placed between
    3  After receiving the warnings required by Miranda v. Arizona, 
    384 U. S. 436
     (86 SCt 1602, 16 LE2d 694) (1966), Appellant executed a written waiver of
    rights.
    5
    Appellant’s phone and a phone associated with Covin, including a
    call from Covin’s phone to Appellant’s phone approximately 15
    minutes before the shootings. The records also reflected a series of
    text messages between Covin’s phone and Appellant’s phone in the
    days leading up to the shootings, the last of which was sent less than
    three hours before the crimes. In text messages exchanged the day
    before the shooting, Covin and Appellant negotiated and arranged
    for Appellant to purchase some “clean” from Covin at a price of
    $1,100; a police officer testified that “clean” is a “drug term” for
    “some really good cocaine.”
    On appeal, Appellant asserts that the evidence was insufficient
    to support his convictions for malice murder 4 because, he says,
    “undisputed inconsistencies and open questions” undermined the
    evidence against him. Specifically, Appellant complains about the
    absence of police body camera footage showing Tumblin identifying
    him as the shooter and faults the police for failing to interview
    4 Appellant does not challenge the sufficiency of the evidence to support
    his other convictions.
    6
    Tumblin at the hospital before his death. Appellant further
    highlights Armstrong’s inability to identify Appellant as the shooter.
    Finally, Appellant suggests that law enforcement’s investigation of
    the crimes was flawed because investigators failed to recover
    Appellant’s phone and because they initially believed Appellant and
    Covin’s drug transaction involved methamphetamine, rather than
    cocaine. These arguments are unavailing.
    When evaluating the sufficiency of evidence, we view the
    evidence presented at trial in the light most favorable to the jury’s
    verdicts and ask whether any rational trier of fact could have found
    the defendant guilty beyond a reasonable doubt. See Jackson v.
    Virginia, 
    443 U. S. 307
    , 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
    (1979). “Our review leaves to the jury the resolution of conflicts or
    inconsistencies in the evidence, credibility of witnesses, and
    reasonable inferences to be made from the evidence,” Yarn v. State,
    
    305 Ga. 421
    , 423 (2) (
    826 SE2d 1
    ) (2019), and “[w]e do not reweigh
    the evidence,” Dobbins v. State, 
    309 Ga. 163
    , 165 (2) (
    844 SE2d 814
    )
    (2020). “As long as there is some competent evidence, even though
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    contradicted, to support each fact necessary to make out the State’s
    case, the jury’s verdict will be upheld.” (Citation and punctuation
    omitted.) Roberts v. State, 
    305 Ga. 257
    , 259 (2) (
    824 SE2d 326
    ) (2019).
    Appellant’s contention that purported inconsistencies in the
    evidence compromised the sufficiency of the evidence is meritless.
    Indeed, Appellant’s argument goes to the weight and credibility of
    the evidence, and it is axiomatic that “[t]his Court does not reweigh
    evidence   or   resolve   conflicts       in   testimony.”   (Citation   and
    punctuation omitted.) Williams v. State, 
    287 Ga. 199
    , 200 (
    695 SE2d 246
    ) (2010). Those determinations are reserved to the jury. See
    Yarn, 
    305 Ga. at 423
     (2). Likewise, it is of no consequence that the
    State did not introduce a video recording of Tumblin’s statement or
    the testimony of additional witnesses identifying Appellant as the
    shooter. See OCGA § 24-14-8 (“The testimony of a single witness is
    generally sufficient to establish a fact.”); Plez v. State, 
    300 Ga. 505
    ,
    506 (1) (
    796 SE2d 704
    ) (2017) (“Although the State is required to
    prove its case with competent evidence, there is no requirement that
    it prove its case with any particular sort of evidence.”). The evidence
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    recounted above was more than sufficient to authorize a rational
    jury to find Appellant guilty beyond a reasonable doubt of malice
    murder of both Covin and Tumblin. See Jackson, 
    443 U. S. at 319
    (III) (B).
    2. In his second and final enumeration of error, Appellant
    asserts that the trial court erred by refusing to sever Count 11—
    possession of cocaine with intent to distribute—from the remaining
    charges. We are not persuaded.
    When offenses are joined in a single indictment,
    a defendant has a right to severance where
    the offenses are joined solely on the ground that they are
    of the same or similar character because of the great risk
    of prejudice from a joint disposition of unrelated charges.
    However, where the joinder is based upon the same
    conduct or on a series of acts connected together or
    constituting parts of a single scheme or plan, severance
    lies within the sound discretion of the trial judge since the
    facts in each case are likely to be unique.
    (Citation and punctuation omitted.) Lowe v. State, 
    314 Ga. 788
    , 791-
    792 (2) (a) (
    879 SE2d 492
    ) (2022). “If severance is not mandatory, it
    is nevertheless incumbent upon the trial court to determine whether
    severance is necessary to achieve a fair determination of [the
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    defendant’s] guilt or innocence as to each offense.” (Citation and
    punctuation omitted.) Carson v. State, 
    308 Ga. 761
    , 765 (2) (a) (
    843 SE2d 421
    ) (2020). This inquiry requires the trial court to consider
    “whether, in view of the number of offenses charged and the
    complexity of the evidence to be offered, the trier of fact will be able
    to distinguish the evidence and apply the law intelligently as to each
    offense.” (Citation and punctuation omitted.) Rodriguez v. State, 
    309 Ga. 542
    , 547 (2) (
    847 SE2d 303
    ) (2020).
    Here, the trial court found that severance was not mandatory
    and, after determining that the facts of the case were “relatively
    straightforward” and that the charges against Appellant all
    stemmed from his involvement in drug dealing, denied Appellant’s
    motion to sever. 5 On appeal, Appellant argues that severance was
    5 Appellant begins this section of his brief by asserting that the trial court
    erred by denying “several defense evidentiary motions,” but this section
    includes factual and legal argument regarding only the denial of his motion to
    sever. Appellant goes on to vaguely complain that the trial court denied “two
    related defense motions concerning drug charges” against Appellant and “a
    defense motion to admit evidence from two witnesses who interviewed victim
    Tumblin in the hospital.” And he criticizes the trial court for “permitt[ing] the
    [S]tate to introduce . . . evidence that . . . Tumblin identified Appellant as the
    shooter as a ‘dying declaration.’” Beyond these generalized complaints,
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    warranted because, he says, the admission of evidence relevant to
    Count 11, in conjunction with other unfavorable evidentiary rulings,
    was “highly prejudicial” and “devastating” to his defense and
    precluded “unbiased consideration by the jury on the more serious
    offenses[.]” But Appellant points to “no evidence . . . that the
    combined trial of the charges confused or misled the jury[.]”
    (Citation and punctuation omitted.) Rodriguez, 309 Ga. at 547 (2).
    And in light of evidence showing that the offenses arose from
    Appellant’s drug-dealing activities, as well as the State’s theory that
    the shootings resulted from a drug deal gone awry, we cannot say
    that the trial court abused its discretion by denying Appellant’s
    motion to sever. See Jackson v. State, 
    314 Ga. 82
    , 88 (2) (
    874 SE2d 95
    ) (2022) (no abuse of discretion in denying motion to sever where
    however, Appellant offers no cogent argument, citation of authority, or
    citations to the record to support his bare assertion that these rulings were
    erroneous. Thus, to the extent Appellant seeks to challenge these additional
    rulings, he is not entitled to review of those claims. See Henderson v. State, 
    304 Ga. 733
    , 739 (4) (
    822 SE2d 228
    ) (2018) (“It is not this Court’s job to cull the
    record on behalf of Appellant to find alleged errors, as appellate judges are not
    like pigs, hunting for truffles buried in briefs.” (citation and punctuation
    omitted)); Roberson v. State, 
    300 Ga. 632
    , 636 (III) (
    797 SE2d 104
    ) (2017) (“It
    is well established that the burden is on the party alleging error to show it by
    the record[.]” (citation and punctuation omitted)).
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    evidence showed that crimes, which occurred over course of several
    days, arose from appellant’s “continuing course of criminal violence
    relating to his involvement in the drug trade”); Rodriguez, 309 Ga.
    at 547-548 (2) (severance not warranted where “charged crimes all
    related to [appellant’s] ongoing involvement in gang activity and
    drug trafficking”); Carson, 308 Ga. at 765 (2) (a) (“Severance is
    generally not warranted where the crimes charged occurred over the
    same period of time and stem from a course of continuing conduct.”
    (citation and punctuation omitted)).
    Judgment affirmed. All the Justices concur.
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