Tucker v. Tucker
| Decision Date | 04 February 2022 |
| Docket Number | A21A1760, A22A0023 |
| Citation | 362 Ga.App. 489,869 S.E.2d 142 |
| Parties | TUCKER v. The STATE. Tucker v. The State. |
| Court | Georgia Court of Appeals |
Lynn M. Kleinrock, Tucker, for Appellant in Case No. A21A1760.
Patsy A. Austin-Gatson, Christopher Mark DeNeve, for Appellee.
Brian Steel, for Appellant in Case No. A22A0023.
Phipps, Senior Appellate Judge.
A jury found brothers Jarvis and Jason Tucker guilty of multiple counts of armed robbery, aggravated assault, conspiracy, and numerous related offenses. In Case No. A21A1760, Jarvis appeals from the denial of his motion for new trial, arguing that: (i) the trial court plainly erred when it admitted several witnesses’ out-of-court statements; (ii) his trial counsel rendered ineffective assistance by failing to object to those statements and by failing to move to sever some of the charges against him; (iii) the trial court erroneously admitted improper opinion testimony; and (iv) several of his convictions should merge. In Case No. A22A0023, Jason likewise appeals from the denial of his motion for new trial, arguing that: (i) the trial court committed plain error by failing to instruct the jury that one cannot conspire with a government agent; (ii) the trial court erred by denying his motion for a directed verdict on a charge of possession of a firearm during the commission of a felony; (iii) his trial and post-conviction counsel rendered ineffective assistance in connection with statute-of-limitation issues; and (iv) several of his convictions also should merge. For the reasons that follow, we agree that the trial court should have merged each appellant's two conspiracy convictions and also should have merged one of each appellant's aggravated assault convictions into one of the armed robbery convictions. We further conclude that the sentences imposed for two of each appellant's convictions are void. We therefore vacate the affected convictions and sentences and remand for the trial court to resentence both defendants. We discern no other reversible errors and otherwise affirm the trial court's judgments.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Krauss v. State , 263 Ga. App. 488, 488 (1), 588 S.E.2d 239 (2003). So viewed, the evidence shows that one of the victims, N. A., owned several fine jewelry stores in Atlanta, including one at Greenbriar Mall. Early one morning in September 2011, he parked in his home driveway and was exiting his car when a masked man carrying a walkie-talkie put a shotgun to his head. Almost immediately, two other masked, armed men joined them. The men took N. A. inside his home, held him at gunpoint against a wall, removed his wallet and jewelry, including a "fake AP watch," and demanded more money and the location of a safe, although N. A.’s home did not have one. At some point, one of the men fired a gun so close to N. A.’s head that he felt the bullet pass through his hair.
When N. A.’s wife K. A. emerged from her upstairs bedroom, a masked man pointed a gun at her and ordered her downstairs. As she made her way down, the man pulled a necklace from her neck and demanded money, jewelry, and the location of a safe. K. A. retrieved a jewelry box from under a sink and gave it to the intruder, who then ordered her to kneel in the laundry room. In the interim, another intruder awoke the couple's then-teenage son, ordered him at gunpoint into the laundry room, and then retrieved the couple's then-three-year-old daughter from K. A.’s bedroom and brought her to the laundry room, as well.
The masked men ransacked the victims’ home, searching for money and more jewelry. At some point, one of the intruders told another that "the ride is here," after which they bound the hands of N. A., K. A., and their son with duct tape and fled. Shortly thereafter, K. A. freed herself and summoned law enforcement. N. A., K. A., and their son all gave first-hand accounts of the home invasion during the Tuckers’ trial.
Two of the participants in the robbery — Lamon Jackson and Darden Walker — testified at trial that Jarvis was the driver for the robbery and that Jason also participated in the robbery. According to Jackson, Jarvis primarily stayed in the getaway car while the three others entered the victims’ home, although Jarvis also entered the home at some point. Once inside the home, Jackson — who was armed with a revolver — held N. A. at gunpoint while Jason and Walker — who was armed with a shotgun — went upstairs. Jackson testified that he fired the gunshot that nearly grazed N. A.’s head. After binding N. A., K. A., and their son with duct tape, the men left with money and jewelry, which they later divided among themselves. Walker testified that Jarvis also gave him the proceeds from the sale of some of the stolen jewelry at some point after the robbery.
Steven Thompson testified that he recruited Jarvis, Jason, Jackson, and Walker to rob N. A.’s home, although Thompson did not directly participate in the robbery itself. Before the robbery, Thompson, Jarvis, and Jason attached a GPS tracking device to N. A.’s car to obtain his home address. Thompson and Jason then monitored the car's movements remotely. Thompson, the Tucker brothers, and Walker thereafter conducted surveillance on N. A.’s home to determine the best way to gain entry. Thompson and Jarvis retrieved the GPS tracker at some point before the robbery.
Norris Owens testified that he helped Thompson plan the September 2011 home invasion by obtaining the GPS tracking device that was used to obtain N. A.’s home address. On the day the tracker was placed on N. A.’s car, Owens met the Tucker brothers and Thompson across the street from Greenbriar Mall, where one of N. A.’s jewelry stores was located.
Shortly after the robbery, Owens learned that Jarvis and Thompson had an "AP" watch for sale; Owens offered to sell it to a club owner in South Carolina by the name of Edwin Francisco. When Owens drove to South Carolina to meet Francisco, the Tucker brothers followed him. And while Owens discussed the watch with Francisco, either Jarvis or Jason placed the same GPS tracking device that was used in the robbery of N. A.’s home on Francisco's car and later monitored Francisco's movements remotely.
When Francisco drove home the following day, he noticed a truck that appeared to be following him. As he exited his car, a man ran toward him from some bushes. Francisco immediately got back in his car, and, as he backed up, he saw three armed men, who got into the truck and fled. Francisco and Walker both testified that the Tucker brothers were part of the armed crew that attempted to rob Francisco.1 Law enforcement later obtained the GPS tracker used in both episodes, and data obtained from the device corroborated the testimony of Jackson, Walker, Thompson, and Owens.
After Owens was implicated in the 2011 home invasion, he agreed to cooperate with law enforcement and began recording phone calls with Jarvis and Jason; audio recordings of several such calls were admitted and played at trial. During the calls, Owens sought to recruit a crew to commit a fictitious robbery of another jeweler's family and planned that robbery with the Tucker brothers. Owens also recorded in-person conversations with Jarvis and Jason in which Jarvis played an active role in planning the fictitious robbery. During one of the recorded phone calls, Owens, an undercover law enforcement agent, and Jarvis discussed accosting one of the victims outside the home, and Jarvis agreed that the jeweler needed to be home to show the robbers where to find money and jewelry. Jarvis thereafter recruited Walker to take part in the robbery.
On the night of January 28, 2016, Owens and the undercover agent met the Tucker brothers and Walker at a café; they planned to leave from there to travel to the fictitious robbery location, with Owens and the undercover agent in the agent's SUV, and the other three men in a separate sedan. The Tucker brothers and Walker — all of whom were wearing black — were arrested en route, shortly after their car broke off from following the SUV and after a brief motor vehicle chase. Two loaded guns were found in their car.
The jury found both Tucker brothers guilty of four counts each of false imprisonment and kidnapping, three counts of aggravated assault, two counts of armed robbery, and one count each of conspiracy to commit armed robbery, conspiracy to commit burglary, burglary, first-degree cruelty to children, and possession of a firearm or knife during the commission of a felony.2 Both men filed motions for a new trial, which the trial court denied, and these appeals followed.
1. At trial, FBI Special Agent Jamie Hipkiss testified that he interviewed Thompson in August 2015. Hipkiss relayed several
statements made by Thompson during that interview concerning the planning and execution of the September 2011 home invasion. As Hipkiss began to recount Thompson's statements about the robbery itself, Jason's counsel objected to the line of questioning on hearsay grounds. The State responded that the testimony was proper as co-conspirators’ statements in furtherance of a conspiracy and as prior consistent statements, as the defendants had tried to impeach Thompson with the benefits he expected to receive in exchange for his cooperation. The trial court overruled Jason's objection, and Hipkiss relayed Thompson's statements about how the robbery of N. A.’s family and the attempted robbery of Francisco unfolded, which were consistent with the evidence discussed above. Hipkiss also provided testimony regarding statements made to him by Owens about the planning of the 2011 home invasion and attempted robbery of Francisco, and by Francisco about the attempt to rob him. Jarvis's counsel did not raise any hearsay objections to this testimony.
Jarvis contends on appeal that the trial court committed plain error...
To continue reading
Request your trial