Alexander v. State

901 S.E.2d 584

ALEXANDER

v.The STATE.

Alexander

v.The State.

A24A0596

A24A0597

Court of Appeals of Georgia.

May 9, 2024

Leslie Spornberger Jones, for Appellant.

David Parks White, Lawrenceville, Branden Pollett, for Appellee.

Hodges, Judge.

In two related cases, the Superior Court of Hart County revoked Laterrell Marique Alexander’s probation. We granted his applications for discretionary review. For the reasons set forth below, we affirm the trial court’s finding that Alexander committed the new offenses of trafficking methamphetamine and possessing drug-related objects. Further, as outlined below, Alexander has not challenged the trial court’s finding that he committed the new offense of illegally using a communications facility. The trial court’s determination that Alexander also committed the new offenses of engaging in a conspiracy to possess a Schedule II controlled substance with intent to distribute and violating the Street Gang Terrorism and Prevention Act, however, are not supported by a preponderance of the evidence and must be reversed. Accordingly, we vacate the trial court’s order and remand this case with direction that the trial court consider, in its discretion, what penalty to impose based upon the new offenses that remain.

[1–4] Pursuant to OCGA § 42-8-34.1 (b), a court may revoke any part of any probated or suspended sentence if the defendant admits the violation as alleged or if the evidence produced at the revocation hearing establishes the violation by a preponderance of the evidence.

This Court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court. Thus, we will affirm a probation revocation judgment if the record includes some competent evidence to show that the defendant violated the terms of his probation in the specific manner charged. This Court reviews questions of law, however, de novo.

(Citation omitted.) Kellum v. State, 367 Ga. App. 742, 888 S.E.2d 315 (2023). "It is well settled law that the quality and quantum of evidence necessary for revocation of probation is not that demanded for conviction of a crime." (Citation and punctuation omitted.) Dugger v. State, 260 Ga. App. 843, 846 (2), 581 S.E.2d 655 (2003). The trial court is the factfinder and, as such, bears the duty of weighing the evidence, determining the credibility of witnesses, resolving conflicts in the evidence, and deciding whether to accept or reject evidence that is introduced. See Gaddis v. State, 310 Ga. App. 189, 190 (1), 712 S.E.2d 599 (2011).

In 2016, Alexander pled guilty in two cases to two counts of possession of cocaine with intent to distribute. He received consecutive sentences totaling 20 years, with the first five years to be served in confinement. As conditions Of probation, he was, inter alia, subject to a Fourth Amendment waiver, prohibited from using or possessing narcotics or dangerous drugs that were not lawfully prescribed, prohibited from associating .with anyone who uses or possesses illegal drugs, and prohibited from committing any new criminal offenses. In 2023, the State, through the Department of Community Services, petitioned to modify or revoke Alexander’s probation, alleging he had committed new criminal offenses: (1) trafficking methamphetamine and possessing drug-related objects; (2) violating the Street Gang Terrorism and Prevention Act; (3) engaging in a conspiracy to possess a Schedule II controlled substance with intent to distribute; and (4) illegally using a communication facility.

Following an evidentiary hearing, the trial court revoked the balance of Alexander’s probation, finding by a preponderance of the evidence that he violated the terms and conditions of his probation in both lower court cases by committing the new offenses outlined above. Alexander’s discretionary appeals are consolidated for our review.

1. Alexander argues that the trial court erred in admitting, over objection, State’s Exhibit 1, which consisted of line sheets of text messages and telephone calls between him and Jaquavious Waller, the self-proclaimed Hart County leader of the Sex, Money, Murder gang. As will be discussed more fully below, Alexander raised a best evidence objection at the hearing, arguing that the best evidence was "the recordings themselves." We turn first to this enumeration, because it Influences our analysis of the trial court's ruling on several of the new crimes at issue in Alexander’s probation revocation.¹

[5–6] We review the trial court’s admission of evidence for an abuse of discretion. Gude v. State, 306 Ga. 423, 426 (2), 831 S.E.2d 807 (2019). "An abuse of discretion occurs where a ruling is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law." (Citation and punctuation omitted.) Glasper v. State, 364 Ga. App. 608, 610, 876 S.E.2d 11 (2022).

The record shows that the texts and calls were intercepted pursuant to two Georgia Bureau of Investigation ("GBI") T-3 wiretaps, the longest of which was active for 47 days. Through these wiretaps, law enforcement was investigating various crimes believed to be gang-related, including a murder, a stabbing, and a shooting involving the Sex, Money, Murder gang and other gangs. At the hearing, GBI Special Agent Katie Walker testified that she participated in the wiretap every day and had firsthand knowledge of every phone call and text message between Waller and Alexander. She testified that the pertinent text messages and phone calls were reduced to written form in 104 line sheets.

The State tendered the line sheets into evidence at trial over various objections.² After Walker testified that the GBI had original recordings of the phone calls, Alexander raised a best evidence objection. The trial court admitted the line sheets over these objections.

Walker testified that the phone call narratives recorded in line sheets typically were created by the agent — in this case, herself — listening to the call and typing in pertinent information in real time, either as a non-verbatim summary or as a verbatim transcription. Walker testified, by contrast, that the text messages were recorded verbatim in the line sheets via an app and could not be edited or summarized, appearing "exactly" as typed by the original senders.

OCGA § 24-10-1002 provides that "[t]o prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required." OCGA § 24-10-1003 provides, however, that "[a] duplicate shall be admissible to the same extent as the original unless: (1) A genuine question is raised as to the authenticity of the original; or (2) A circumstance exists where it would be unfair to admit the duplicate in lieu of the original."

[7] (a) The text messages. The texts relate to a transfer of Percocet pills between Alexander and Waller. As Walker testified, an app copied the text messages verbatim, "exactly" as they were typed by the original senders.

The text messages between Waller and Alexander, in pertinent part, say: "Perks in[;]"³ "6 house I need 2 of dem things[;]" "Still got sum perks?" "Hell yeah[;]" "I’m finna come scoop[;]" "Bet[;]" "Finna pull up[;]" "Give me a few twin⁴ this Lil bitch bout to pull up[;]" and "Aight[.]" Walker testified, based on her training and experience, that this exchange indicated Alexander had Percocet pills which Waller wanted and that Waller was on his way to pick up the pills. She also testified that these messages indicated "that Mr. Alexander sold Mr. Waller Percocet pills for personal use."

[8, 9] As an initial matter, the best evidence objection Alexander raised in the trial court referred to the "recordings themselves," a clear reference, both in nomenclature and within the context of the objection itself, to the phone calls rather than the text messages. Further, although Alexander’s appellate brief nominally enumerates as error the admission of the text messages and provides record citations to three of them, he presents no real legal argument specific to the text messages and their admissibility or lack thereof. Conclusory statements are not the type of argument contemplated by our appellate rules; a sufficient argument is, at minimum, a discussion of the appropriate law as applied to the specific, relevant facts. See Bowman v. State, 358 Ga. App. 612, 615 (2), 856 S.E.2d 11 (2021). Further, Alexander fails to address, and cites to nothing in the record indicating, whether the original text messages were available below and whether he challenged the authenticity or fairness of the admission of the text messages. See OCGA § 24-10-1004; see generally Gude, 306 Ga. at 426-427 (2), 831 S.E.2d 807 (finding that a copy of a copy of a voicemail message was properly admitted under OCGA § 24-10-1003 where defendant "has not called into question the authenticity of the voicemail message, nor does he argue that the use of the duplicate was unfair"). It is well settled that this Court will not cull the record on behalf of any party in search of instances of error. Luong v. Tran, 280 Ga. App. 15, 16 (1), 633 S.E.2d 797 (2006). As a result, we find that this portion of Alexander’s enumeration of error has been abandoned.

[10] (b) The phone calls. Alexander’s appellate brief provides citations to seven records of phone calls between him and Waller. Three of the calls were "summarized" in the line sheets, one was "transcribed," and the rest were identified as having been "reviewed."

OCGA § 24-10-1004 provides, inter alia, that an original recording is not required and other evidence of the recording’s contents are admissible if all originals have been lost or destroyed, so long as the proponent did not lose or destroy them in bad faith; if no original is available by judicial process or procedure; or if the recording is "not closely related to a controlling issue." The phone calls primarily address the purchase and sale of a small number of Percocet pills between...