319 Ga. 165 FINAL COPY
S24A0521. TARVER v. THE STATE.
MCMILLIAN, Justice.
Ricquavious Tarver was convicted of murder and other crimes
in connection with the shooting death of Roosevelt Demmons.1
Tarver argues on appeal that (1) the trial court erred in excluding
evidence of Tarver’s knowledge of Demmons’s previous acts of
violence to support his claim of self-defense and (2) the trial court
erred in excluding, on the grounds of hearsay, the video-recorded
1 Demmons was killed on August 27, 2016, and Tarver was charged by
special presentment in McDuffie County in June 2017 for malice murder (Count 1), felony murder predicated upon aggravated assault (Count 2), aggravated assault with a deadly weapon (Count 3), and possession of a firearm during the commission of a felony (Count 4). He was tried before a jury in September 2018 and found guilty on all counts. The trial court sentenced Tarver to serve life in prison with the possibility of parole on Count 1, and five years in prison to be served consecutively on Count 4. Count 2 was vacated by operation of law and Count 3 was merged into Count 1. Tarver filed a timely motion for new trial on October 2, 2018, which was amended by new counsel on July 31, 2019, and amended a second time by current counsel on March 24, 2021. Following a hearing on June 28, 2021, the trial court denied the motion as amended on November 27, 2023. Tarver filed a timely notice of appeal, and the case was docketed to the April 2024 term of this Court. The Court heard oral argument on the case on April 18, 2024. interview of Tarver by police because the interview was not being
admitted for the truth of the matter asserted and should have been
admitted to show how cooperative Tarver was after the shooting. For
the reasons set forth below, we affirm.
1. The evidence presented at trial showed2 that Alton Tucker
owned a car wash business in Thomson in a former garage, and on
August 27, 2016, Tarver went there to wash his car. Tucker had
known Tarver and Tarver’s father, a police officer, for a long time
and considered them to be like family. Tucker’s 13-year-old son,
Shamar, was also at the car wash that day. Shamar and Tarver left
the car wash together to go to a store and then to Tarver’s parents’
house. After they left, Demmons came to the car wash to collect
money from Tucker for a set of tire rims Demmons was selling.
Tucker asked Demmons to wait because he was in the process of
washing a car for a customer, Cedric Williams. Williams knew
2 Because this case involves an analysis of whether errors in excluding
evidence were harmless, “we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done instead of viewing it in the light most favorable to the jury’s verdict.” Jivens v. State, 317 Ga. 859, 863 (2) (896 SE2d 516) (2023). 2 Demmons and asked if he wanted to walk to a nearby gas station to
get something to drink while they were waiting, and Demmons
agreed.
At some point, Tarver drove back by the car wash and saw
Demmons’s truck parked there. He then called Tucker and told him
that Demmons was the man he “got into it with a few months back”
and asked if he could come to the car wash to talk to Demmons to
“get this over with.” At trial, Tarver, who testified in his own
defense, explained that a few months earlier, in May or early June
2016, Tarver and Demmons had a confrontation at an apartment
complex as they both sat in their vehicles with their windows open.
Demmons yelled, so that everyone around could hear, that Tarver
was “a police[, a n****r] and you just like your daddy.” Demmons
accused Tarver of calling the police and getting Demmons “locked
up” in connection with a prior incident. When Tarver told Demmons
that he had no idea what Demmons was talking about, Demmons
replied, “I tell you what, just don’t speak my name no more, just
don’t talk my name no more, the next time you speak my name I’m
3 coming to see about you.” Tarver testified that he had never had
trouble with Demmons before, and he had no further contact with
Demmons between that incident and August 27. However, based on
Demmons’s statement, Tarver thought that Demmons wanted “to
try to beat [him] up,” “to hurt [him],” or to “cause [him] harm.”
Tarver further testified that he applied for a permit to carry a
weapon on July 7, 2016, which he received on July 25, and that he
purchased a “.45 1911A Rock Island firearm” at some point between
his receipt of the permit and August 27. However, Tarver said that
there was nothing about the words Demmons used in the prior
incident that made him feel threatened enough to get his gun
permit; rather, he obtained the gun for his own protection and not
because of Demmons.
When Tarver arrived back at the car wash with Shamar on
August 27, Demmons and Williams had not yet returned from the
gas station. Tucker asked Tarver if everything was going to be all
right with Demmons, and Tarver responded, “yeah, I’m good.”
Tucker asked this question because Tarver had shown Tucker his
4 gun permit earlier in the day, and Tucker sought assurance from
Tarver that he was not carrying a weapon and was just intending to
talk to Demmons. Tarver testified at trial that he only wanted “to
make peace” with Demmons. However, he admitted that every time
he went anywhere, he “always tote[d]” his gun on his side, and, even
though Tarver usually carried his gun and ammunition separately,
that day, he put the ammunition clip in his gun when he got to the
car wash because he “knew [Demmons] was already there.”
Williams testified that as soon as he and Demmons got back to
the car wash from the gas station, Tarver came up to Demmons, and
when Tarver got close enough, “they went to arguing.” Tucker
testified that he was washing Williams’s car when Williams and
Demmons returned, and he did not pay much attention to what
Tarver and Demmons were saying. Both men were standing in one
of the two open garage bay doors within ten feet from where Tucker
was working, and Tucker overheard Demmons tell Tarver “to find
somebody to play with or I’ll give you something you don’t want.”
Tucker told police at the time of the incident that he also heard
5 Demmons tell Tarver, “Oh, I think I’m going to lay you out” and
something to the effect of “get out of my face.” Williams testified that
he was sitting in the other garage bay, about 15 feet away from
Tarver and Demmons. He heard Demmons say, “I know what you
did” and “don’t make me whoop your a** out here with these shower
shoes on,” after which Demmons turned and walked away.
Both Williams and Tucker testified that Demmons was
walking toward the back of the garage, and away from Tarver, when
they heard the first gunshot. They then observed Tarver walk
toward Demmons, who fell to the ground. After Demmons fell,
Tarver, as he later admitted, pointed the gun down at him and kept
shooting until he had emptied his clip of eight .45 caliber bullets.
Demmons was unarmed, and the only gun Williams or Tucker saw
that day was Tarver’s. No evidence was presented that any physical
interaction occurred between Tarver and Demmons before the
shooting began, and Tarver admitted that Demmons never punched,
pushed, or even touched him.
After the shooting, Tucker and Tarver walked out of the
6 garage, and Tarver put his arm around Tucker, saying that it was
not Tucker’s fault, that it was “something [Tarver] wanted to do.”
Tucker testified that he called the police and that Tarver called his
mother and told her, “Mama, I just killed me a MF.” Tarver stayed
at the scene and put his gun in the glove box of his car.
When police and EMS arrived, Demmons, who was lying face
down on the garage floor, was not breathing and had no pulse.
Tarver had his hands in the air and kept them there until officers
ordered him to the ground and handcuffed him. Tarver was
cooperative with police, following their instructions and telling them
that the gun he used to shoot Demmons could be found in his car.
Police patted Tarver down and the officer who escorted Tarver to a
waiting police car testified that Tarver repeatedly volunteered that
he knew he was wrong for what he had done, and he should have
walked away.3 The officer said that Tarver also voluntarily spoke to
3 Tarver testified that he told the officer, “I know I was wrong, but I have
the right to defend myself. And I said: it wasn’t supposed to happen like that, I was just trying to talk to him.” He also testified that, at the jail, he just kept repeating, “I wish it would’ve never happened like that, I wish it would’ve never happened like that.” 7 police at the police station, saying that Demmons had tried to fight
him before and that Demmons was again trying to fight him that
day, so Tarver “did what he had to do,” but he knew it was a mistake.
During the autopsy, the medical examiner identified ten
gunshot wounds on Demmons’s body, some of which were caused by
the same bullet. Only one of the wounds was found on the front of
Demmons’s body. The medical examiner described this wound as a
“complex wound,” which she testified consisted of “an entrance, an
exit, a reentrance, and a re-exit,” meaning that “the bullet went in,
out, in, out.” The cause of death was attributed to multiple gunshot
wounds.
A GBI crime scene specialist testified that he found flattened
bullets at the scene and in Demmons’s clothing, suggesting that they
had passed through Demmons’s body and struck the concrete floor,
which supported that Demmons had been lying down when those
shots were fired. He also found two bullets in the parking lot and the
rest inside the garage.
In addition, Tarver testified that although Demmons never
8 physically touched him, Demmons “got very aggressive” when they
talked that day at the car wash. Demmons called Tarver “a rat” and
asked why Tarver was there after he had “already snitched on
[Demmons] one time.” When Tarver denied these accusations,
Demmons asked Tarver, “what you coming up here for, to try me or
something, you know I’m chain gang bound.” Tarver said he took
that statement to mean that Demmons had intentions of hurting
Tarver and that because Demmons had already been to prison, he
did not care what the consequences would be if he were to hurt
Tarver. Demmons also told Tarver that he did not need a pistol to
fight him; Demmons said he “could beat [Tarver] with these slippers
on.” Tarver testified that he believed that Demmons knew Tarver
was at “a disadvantage” because Tarver was disabled from a work
accident, which had severely injured his left knee so that he could
not bend it and reduced the strength in both of his legs.
According to Tarver, after making these statements,
Demmons balled up his fists and turned sideways into a “fight
stance,” asking Tarver if he was “ready.” Tarver said that Demmons
9 was walking toward him, so Tarver pulled out his gun to stop
Demmons. Tarver testified that when he did that, Demmons said,
“you got to use it,” which Tarver interpreted to mean that if he did
not use the gun, Demmons would get the gun from Tarver and use
it on him. Demmons outweighed Tarver by almost 100 pounds
although they were about the same height, and Tarver testified that
when Demmons turned sideways and “came at [him],” Tarver felt
threatened and was “fighting for [his] life.” He then took two steps
back and shot Demmons. Tarver said he shot Demmons eight times
because he was taught in a firearm defense course not to quit
shooting until he knew the person he was shooting was down. Tarver
further testified that after the shooting, he called his mother to tell
her he had shot someone and also called 911.4
However, Tarver admitted on cross-examination that after he
confronted Demmons at the car wash, Demmons said he did not
want to talk about the prior incident, and it was Tarver who insisted
4 One of Tarver’s friends testified that Tarver called him right after the
shooting, and the friend then called 911 to report the shooting. Seven character witnesses also testified on Tarver’s behalf, including his mother. 10 on carrying the conversation further. And when Tarver persisted,
Demmons told Tarver to “get out of [his] face.”
2. Tarver first asserts that because self-defense was an issue in
the case and the jury was instructed on self-defense, the trial court
erred in excluding evidence that Tarver knew Demmons had shot a
man over a woman, had shot at a motel, and was known to carry a
gun. Tarver sought to introduce this evidence to show Tarver’s state
of mind at the time of the shooting and why he was in fear for his
life.
“A trial court’s decision whether to admit or exclude evidence
is reviewed on appeal for an abuse of discretion.” State v. Brinkley,
316 Ga. 689, 690 (889 SE2d 787) (2023) (citation and punctuation
omitted). But if the trial court abuses its discretion in excluding
evidence, we will reverse a conviction for a trial court’s evidentiary
error only if it was harmful. See Morrell v. State, 313 Ga. 247, 261
(2) (c) (869 SE2d 447) (2022) (“It is fundamental that harm as well
as error must be shown for reversal.”); OCGA § 24-1-103 (a) (“Error
shall not be predicated upon a ruling which admits or excludes
11 evidence unless a substantial right of the party is affected.”). It is
well settled that the test “for determining nonconstitutional
harmless error is whether it is highly probable that the error did not
contribute to the verdict.” Jivens v. State, 317 Ga. 859, 863 (2) (896
SE2d 516) (2023) (citation and punctuation omitted). See also Truett
v. State, 311 Ga. 313, 318 (2) (857 SE2d 690) (2021).
Before trial, the State filed a motion to prohibit the defense
from referring to Demmons’s “reputation . . . for violence and/or
specific acts of violence by [him],” and the trial court held a hearing
on the motion on the first day of trial. At the hearing, the State
argued that any character evidence regarding Demmons in the form
of specific bad acts equated to propensity evidence under OCGA §§
24-4-404 and 24-4-4055 and that to admit the evidence Tarver would
5 OCGA § 24-4-404 (b) provides:
Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. OCGA § 24-4-405 provides in relevant part: (a) In all proceedings in which evidence of character or a trait
12 be required to make a prima facie showing that he acted in self-
defense by shooting Demmons, citing Oliver v. State, 329 Ga. App.
377, 381 (765 SE2d 706) (2014) (holding as “well established under
Georgia law,” and still in effect under the current Evidence Code,
that before evidence of a victim’s general reputation for violence or
his specific acts of violence can be admitted, “the defendant must,
among other procedural and substantive burdens, make a prima
facie showing that the victim was the aggressor, that the victim
assaulted the defendant, and that the defendant responded with
force only to defend himself or herself”) (citation and punctuation
omitted).6 In response, Tarver’s counsel indicated that he did not
intend to present any evidence of specific offenses. Rather, he
of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion. (b) In proceedings in which character or a trait of character of a person is an essential element of a charge, claim, or defense or when an accused testifies to his or her own character, proof may also be made of specific instances of that person’s conduct . . . . 6 Some members of the Court are doubtful that this prima facie
requirement was carried over to the current Evidence Code. However, we need not address this issue given that we assume error on this ground and conclude that any error was harmless. 13 planned to present evidence as “to what my client knew, what my
client knew of this person, and prior difficulties they had had
together.” After some further discussion, the trial court noted the
parties’ agreement to the admission of prior difficulties between
Tarver and Demmons and granted the State’s motion in limine as to
evidence of Demmons’s prior acts of violence involving third parties.
However, during trial, Tarver’s counsel argued that the State had
opened the door to testimony about Demmons’s bad acts by eliciting
from Tarver on cross-examination that Demmons had called Tarver
a “snitch,” which counsel argued should permit Tarver to testify
about the conduct about which Demmons thought Tarver had
snitched.7 After reviewing the record, the trial court found that the
State had not “opened the door” to more specific evidence and denied
the objection.
In his motion for new trial, Tarver contested the trial court’s
decision to exclude evidence of his knowledge of Demmons’s prior
7 The record is unclear as to the particular acts as to which Tarver contended the State opened the door. 14 violent acts toward third parties. At the motion for new trial
hearing, Tarver testified that on the day of the shooting, he was
aware that Demmons “had just shot a motel up” and he “just shot a
guy over a lady,” without further detail. Tarver said that those were
recent events at the time of the shooting, and his awareness of these
events influenced his actions. Tarver said it made him “feel like, you
know, that he would have shot me, too, because he was known for
toting a gun.” The trial court denied Tarver’s motion on this ground,
finding that the minimal probative value of the evidence was
outweighed by the danger of unfair prejudice, confusion of the
issues, and misleading the jury under OCGA § 24-4-403.
Even assuming, without deciding, that the trial court erred in
excluding this evidence at trial and that Tarver preserved this error
for ordinary appellate review, any such error was harmless. Tarver’s
counsel was allowed to elicit extensive evidence as to why Tarver
felt threatened by Demmons on the day of the shooting. Tarver
testified that in the incident several months prior to the shooting,
Demmons accused Tarver of telling the police something that got
15 Demmons “locked up” for a “prior situation.” Tarver said that from
the language Demmons used in making those accusations, he
believed that Demmons wanted to hurt him. Tarver further testified
that on the day of the shooting, Demmons asked Tarver why he
wanted to challenge him when Tarver knew that Demmons was
“chain gang bound.” Tarver testified that he believed this statement
meant that Demmons wanted to hurt him and that Demmons did
not care about the consequences because he had already been to
prison. Additionally, Demmons had a 100-pound weight advantage
over Tarver, and Tarver said he believed that Demmons knew that
Tarver’s injuries put him at a disadvantage after Demmons said
that he did not need a gun to beat Tarver. Also, Tucker and Williams
each testified to hearing Demmons threatening Tarver just before
the shooting. Therefore, evidence that Tarver was aware that
Demmons had shot another man over a woman, “shot a motel up,”
and was known to carry a gun added little to Tarver’s testimony
about his prior difficulties with Demmons and evidence of
Demmons’s threats on the day of the shooting. See Cook v. State, 312
16 Ga. 299, 302 (2) (862 SE2d 510) (2021) (any error in exclusion of
three instances of violence by victim against third parties to show
that defendant had reason to fear victim was harmless in light of
other evidence at trial, including evidence showing victim’s prior
threats and violence toward defendant); Byers v. State, 311 Ga. 259,
263 (1) (857 SE2d 447) (2021) (concluding that exclusion of
testimony was harmless where it was essentially cumulative of
other evidence); Nix v. State, 280 Ga. 141, 144-45 (5) (625 SE2d 746)
(2006) (the trial court’s error, if any, in excluding hearsay testimony
of defendant’s mother, was harmless where the excluded testimony
was largely cumulative of other evidence introduced at trial).
Moreover, Tarver’s claim of self-defense was weak since it
depended solely on Tarver’s self-serving testimony that Demmons
came at him. In contrast, there was strong evidence undercutting
his defense. After Tarver and Demmons had their initial verbal
altercation earlier in the summer, Demmons did not further
confront Tarver or take any threatening action against him. In fact,
the two had no further contact until Tarver confronted Demmons on
17 August 27, armed with a loaded weapon. Tarver testified that he
loaded his gun at the car wash, though he usually kept his gun
unloaded, because he knew Demmons was there. Moreover, Tarver
acknowledged that when he confronted Demmons about the earlier
incident, Demmons did not want to discuss the matter, but Tarver
persisted, leading Demmons to tell him to “get out of [his] face.”
Tarver also admitted that Demmons never punched, pushed, or even
touched him that day. And two eyewitnesses testified that Demmons
was walking away from Tarver at the time Tarver shot him. This
testimony was supported by evidence that Demmons was found face
down after the shooting with ten gunshot wounds and had only one
wound to the front of his body, which expert testimony explained
was a “complex wound” where the bullet could have gone in and out
of the body. Additionally, Tarver continued shooting after Demmons
was on the ground and no longer posed a threat.
Because the excluded evidence was largely cumulative and the
evidence supporting a claim of self-defense was weak, we conclude
that it is highly probable that the exclusion of the proffered evidence
18 did not contribute to the verdict, and any error was harmless. See
Henderson v. State, 310 Ga. 708, 714 (3) (854 SE2d 523) (2021) (trial
court’s exclusion of defendant’s testimony about a victim's threat
was harmless, in part because that testimony “added little if
anything” to defendant’s other testimony about “more explicit
threats” from the victim and because “evidence of [defendant’s] guilt
was very strong”); Beck v. State, 310 Ga. 491, 497-99 (3) (852 SE2d
535) (2020) (concluding that it was highly probable that any error
by the trial court in ruling that the defense could not introduce
victim’s prior acts of violence (except any involving the defendant)
did not contribute to the verdict and was therefore harmless in light
of other evidence at trial); Rowland v. State, 306 Ga. 59, 67 (4) (829
SE2d 81) (2019) (given strong evidence of defendant’s guilt and the
marginal and cumulative value of the excluded evidence, it was
highly probable that any error in its exclusion did not contribute to
the verdict).
3. Tarver also asserts that the trial court abused its discretion
in not allowing him to play his video-recorded interview with police
19 because it was not hearsay as it was not being admitted for the truth
of the matter asserted.8 Tarver asserts that he sought to admit the
video “to show the jury his tone of voice, the degree of emotion
shown, his forthrightness rather than deflections and evasions when
talking about the shooting.” As with the prior enumeration, we
review the trial court’s denial of Tarver’s request to play the video
of his interview with police for an abuse of discretion, see Brinkley,
316 Ga. at 690, and if we conclude that there is error, we then
consider whether any error was harmful under the standard for non-
constitutional errors. See Morrell, 313 Ga. at 261 (2) (c).
When Tarver announced his intention to testify, defense
counsel indicated that he planned to play Tarver’s recorded
interview with police. The State moved in limine to exclude the
recording on the grounds that it contained hearsay since it was being
8 To the extent that Tarver’s reply brief addresses the trial court’s ruling
that the video-recorded interview was not admissible as a prior consistent statement, we do not consider such an argument because it was raised for the first time on appeal in a reply brief. See Supreme Court Rule 19 (3) (“Reply briefs may not be used to expand the enumeration of errors.”).
20 offered for the truth of the matters asserted, was not being offered
by a party opponent, and would constitute improper bolstering. In
response, Tarver’s counsel argued that it was not improper hearsay
because he wanted the jury to see that Tarver was being cooperative
in the wake of the shooting and had nothing to hide then or at trial.
After the trial court took a recess to give the defense an opportunity
to research the issue, Tarver’s counsel also asked that the recording
be admitted as a past recorded recollection, which is not excluded by
the hearsay rule even when the declarant is available as a witness.
The trial court denied Tarver’s request to admit the recording,
finding it clear “that it would be self-serving and hearsay even under
the new rules.” In its order denying the motion for new trial on this
ground, the trial court reaffirmed its conclusion that the statements
were self-serving hearsay.
Even assuming, without deciding, that the trial court abused
its discretion in excluding the video-recorded interview for the
purpose for which it was offered, any such error was harmless in
light of the other evidence presented at trial that showed that
21 Tarver was cooperative with police after the shooting. One police
officer described Tarver as “cooperative as can be” and said that he
told the officers where to locate his gun; another officer described
Tarver as “very cooperative”; and a third police officer testified that
Tarver told police where to find the gun, spoke with police willingly,
volunteered to give up his clothes for a search without a warrant,
and was “cooperative.” Tucker also testified that Tarver did not try
to run, but instead directed Tucker to call 911, called 911 himself,
put the gun in his car, and waited for police. And Tarver also
testified to the actions he took to cooperate with police. We conclude
that evidence of Tarver’s cooperation from the video-recorded police
interview would be largely cumulative of the other evidence
presented at trial describing Tarver’s interactions and cooperation
with police, and therefore it is highly probable that the exclusion of
the video did not contribute to the verdict. Accordingly, any error by
the trial court was harmless.9 See Byers, 311 Ga. at 263 (1); Nix, 280
9 Tarver also enumerates as error that, to the extent that either of his
first two enumerations of error was not properly preserved for appeal, he
22 Ga. at 144-45 (5).
Judgment affirmed. All the Justices concur.
received ineffective assistance of counsel in failing to properly preserve the claim. Defense counsel acknowledged at oral argument that this was a “backup” claim in the event either of the other two issues were not preserved and that it appeared from the briefing that the parties agreed the issues were preserved. Because we have assumed that the first claim was preserved for ordinary appellate review and because the second claim was clearly preserved, we conclude that no claim for ineffective assistance of counsel on this ground can stand. Therefore, we need not address Tarver’s third enumeration. In addition, Tarver does not argue that the errors we have assumed and determined to be individually harmless nevertheless cumulatively resulted in harm. However, from our review of the record we discern no cumulative prejudice warranting reversal. See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[E]ven in the evidentiary context, a defendant who wishes to take advantage of the [cumulative error rule] should explain to the reviewing court just how he was prejudiced by the cumulative effect of multiple errors.”). 23 Decided May 29, 2024.
Murder. McDuffie Superior Court. Before Judge Hinesley.
Truluck Thomason, Howard W. Anderson III, for appellant.
William P. Doupé, District Attorney, Debra R. Neumann,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.
Malcolm, Senior Assistant Attorneys General, Elizabeth H. Brock,
Assistant Attorney General, for appellee.