MCCOY v. THE STATE
S22A0970
In the Supreme Court of Georgia
Decided: February 7, 2023
LAGRUA, Justice.
NOTICE: This оpinion 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 vоlume of the Georgia Reports will contain the final and official text of the opinion.
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
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 аnd trying to break into apartments in his building. He also stated that the men arrived in a2
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 thе 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
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
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 оf 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.
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 cоme 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 Departmеnt that the girls had information potentially related to his
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
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 crеdibility of the evidence.
(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
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 concludе 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?“)
(b) Appellant also contends that the evidence was insufficient to convict him as a party to the crime under
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.
Additionally, while Barber was on the phone with the 911
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 оn circumstantial evidence alone if that evidence “exclude[s] every other reasonable hypothesis save that of the guilt of the accused,”
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
Judgment affirmed. All the Justices concur.