Tolbert v. State

• Decision Date: 28 February 2020
• Docket Number: S19A1579
• Citation: 308 Ga. 185,839 S.E.2d 592
• Court: Georgia Supreme Court
• Parties: TOLBERT v. The STATE.

308 Ga. 185

839 S.E.2d 592

TOLBERT

v.The STATE.

S19A1579

Supreme Court of Georgia.

Decided: February 28, 2020

Randall P. Sharp, for appellant.

Julia F. Slater, District Attorney, Benjamin E. Gephardt, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew M. Youn, Assistant Attorney General, for appellee.

Nahmias, Presiding Justice.

In 2005, Appellant Contresstis Tolbert and his co-defendant Jeremy Butts were found guilty of malice murder and other crimes in connection with the shooting death of Robert Funderburk. In this long-delayed appeal, Appellant contends that the trial court erred by denying his motion to suppress his post-arrest statements to the police and by admitting "similar transaction" evidence.¹ Those claims are meritless, so we affirm.²

1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant's trial showed the following. In late October 2001, Funderburk traveled from his home in Warm Springs to Columbus, hoping to find a job there. When Funderburk arrived at a motel on Veterans Parkway, he had at least $190 with him. Sometime between 11:00 p.m. on October 30 and 1:00 a.m. on October 31, Funderburk, who was white, met Darnell Henry, who is black, at a convenience store near the motel. They walked around and drank beer together, and Funderburk bought Henry some crack cocaine. At some point, they walked to the motel parking lot, where a short black man asked if they wanted to buy drugs. Funderburk replied that he did not have any money, and he and Henry later returned to Funderburk's motel room.

Kevin Burton, who was also staying at the motel that night, heard a knock on the door of his room around 2:30 or 3:00 a.m. He opened the door and saw two black men. One of the men, whom Burton identified at trial as Appellant, said that he recognized Burton because they had been incarcerated together in the county jail. Appellant also said that he and his associate were "looking for a white guy." Burton told them that there was a white man in the room next to his.

According to Henry, at some point after he and Funderburk returned to Funderburk's room, they heard a knock on the door. When Funderburk opened it, two black men barged in. One of the men was the short man who had approached them in the parking lot.³ He had a small gun in his hand, and he and his associate demanded money from Funderburk, who told them, "you can't mess with me" and "I ain't got nothing." The short man fired a shot, which Henry thought went into the ceiling. Henry then fled from the room.

Around 10:00 a.m., police officers responded to a 911 call reporting an unresponsive person in a room at the motel. They found Funderburk dead on the floor of his room. He was killed by a single shot to his chest; the medical examiner recovered a .22-caliber bullet from Funderburk's body.

Just after midnight on November 4, four nights after Funderburk was killed, Appellant and Butts were arrested as they fled after robbing a liquor store in Columbus. When Appellant was interviewed later that morning by Detective Tom Plock of the Columbus Police Department's robbery-assault unit, he said that he had information about a murder; he was then interviewed further by Detective Bill Griffis of the homicide unit, who was investigating Funderburk's murder.

During the interview with Detective Griffis, Appellant said that he was at the motel when Funderburk was shot; that a black man had asked Appellant if he had any drugs for sale but did not buy drugs from him; that Appellant went to "the wrong room," where he recognized a man that he knew; that Appellant, who was carrying a "gun," then went to Funderburk's room; that the black man was in the room but ran out after a shot was fired by "someone else"; and that money was taken from Funderburk, which "they" divided. Butts was also interviewed by Detective Griffis. Butts said that he was at the motel that night; that he went to the "wrong room"; that he was carrying a "pistol" and was in Funderburk's room when Funderburk was shot; and that "another individual" was also there, whom Butts grabbed and held down on the bed. Neither Appellant nor Butts admitted shooting Funderburk.⁴

That same day, another detective received a tip that the murder weapon was located in an apartment where Lorraine Washington, who had known Appellant and Butts for many years, lived with her son Jonathan. When the detective went to the apartment, Washington told him that the gun was in a box in the kitchen. In the box, the detective found a .22-caliber revolver with five bullets in its six-bullet chamber. Testing later showed that the bullet found in Funderburk's body had been fired from the revolver.

The detective interviewed Washington later that day. She said that three days after the murder, Butts had given her the revolver and told her "to put it up."⁵ Her son Jonathan testified at trial that he sold the .22-caliber revolver to Appellant; that Butts may have been there when Jonathan sold Appellant the gun; that Appellant later gave the gun back, saying that he had "done some dirt" with it; and that Jonathan then put the gun in a box.

The State also presented evidence of four other criminal incidents involving Appellant and Butts around the time of the murder: an armed robbery at a liquor store in Columbus on the night of October 5; an armed robbery at another local liquor store around 10:00 p.m. on October 31, late on the same day as the murder; an attempted armed robbery at a Columbus restaurant in the early morning hours of November 3; and the armed robbery at the liquor store just after midnight on November 4 that led to their arrest.

Appellant and Butts did not testify. Appellant's counsel argued that the case had not been thoroughly investigated; that Jonathan killed Funderburk; and that the murder stemmed from a drug deal, while the similar transaction evidence showed that Appellant robbed businesses. Butts's counsel argued that Appellant was solely responsible for killing Funderburk.

Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also OCGA § 16-2-20 (defining parties to a crime); Green v. State , 304 Ga. 385, 387-388, 818 S.E.2d 535 (2018) (" ‘It is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient.’ " (citation omitted)).

2. Appellant contends that the trial court erred by failing to suppress the statements he made to Detectives Plock and Griffis when they interviewed him after his arrest four nights after the murder. Appellant argues that his statements were induced by a "hope of benefit," in violation of former OCGA § 24-3-50, and that they were not voluntarily made, in violation of the United States and Georgia Constitutions. In reviewing a ruling on a motion to suppress, "we accept the trial court's findings on disputed facts and credibility of witnesses unless clearly erroneous ... and independently apply the legal principles to the facts." Philpot v. State , 300 Ga. 154, 158, 794 S.E.2d 140 (2016) (citation and punctuation omitted). Here, the record supports the trial court's conclusion that Appellant's statements were admissible.

(a) At a pretrial hearing, Detective Plock testified that when Appellant was arrested after he robbed the liquor store, he was taken to the police station, where the detective advised Appellant of his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and interviewed him.⁶ During the interview, Detective Plock received information that Appellant and Butts matched the descriptions of assailants who were involved in other recent armed robberies. When the detective began to question Appellant about those robberies, Appellant said that "he wanted to help himself." Detective Plock assumed that Appellant wanted to give him information about the location of a house where crack cocaine was sold and said, "well, telling me where a crack house is is not going to help you with all of these armed robberies."

Appellant then said that he wanted to talk about a murder. Detective Plock notified his supervisor and a homicide investigator. He also told Appellant that a homicide detective was going to interview him. Detective Plock then continued to interview Appellant about the robberies. The detective testified that when the interview began, he did not know that Appellant had any information about Funderburk's murder. Detective Plock also testified that he never told Appellant that the robbery charges would be dismissed, he never told Appellant that he would receive any leniency, he never made any threats or promises to Appellant, and he always tells suspects that he does not have the authority to make such promises.

At the hearing, Detective Griffis testified that he received a call notifying him that Appellant wanted to discuss a murder; that he arrived at the police station around 5:00 a.m.; that he advised Appellant of his Miranda rights, and Appellant signed a form waiving those rights, which was admitted into evidence; and that he then interviewed Appellant about Funderburk's murder. Detective Griffis testified that he did not threaten Appellant or offer Appellant any sort of reward or benefit.

By contrast, Appellant testified at the hearing that Detective Plock asked...