Chandler v. State, A92A0573

• Decision Date: 16 June 1992
• Docket Number: No. A92A0573,A92A0573
• Citation: 204 Ga.App. 816,421 S.E.2d 288
• Parties: CHANDLER v. The STATE.
• Court: Georgia Court of Appeals

Page 288

421 S.E.2d 288

204 Ga.App. 816

CHANDLER v. The STATE.

No. A92A0573.

Court of Appeals of Georgia.

June 16, 1992.

Reconsideration Denied July 7, 1992.

Certiorari Denied Sept. 11, 1992.

Michael Mears & Associates, B. Michael Mears, for appellant.

Robert E. Wilson, Dist. Atty., J. Michael McDaniel, Barbara B. Conroy, Asst. Dist. Attys., for appellee.

ANDREWS, Judge.

Antonio Chandler was convicted by a jury of aggravated assault and aggravated battery upon a police officer engaged in the performance of her official duties; possession of a firearm while committing these offenses, and possession of a firearm by a convicted felon.

Viewed in favor of the verdict, the evidence shows that Chandler and three co-defendants, armed with handguns, drove together in a car to the Thicket Apartments in DeKalb County at about 11:15 p.m. on September 26, 1990, for the purpose of robbing a certain Thicket resident who they believed carried large sums of money. Upon arrival, they drove through the complex looking for a blue-colored car owned by the resident. By chance, DeKalb County Police Officer, Tina Dillard, who lived at Thicket Apartments, arrived home in uniform driving her blue Honda, which was similar to a blue Honda owned by the targeted resident. Upon parking her car, Officer Dillard watched as the defendants pulled their Camaro in behind her car. Although she could not identify any individual defendant, Officer Dillard observed that the Camaro was occupied by four young black males--a description consistent with the four codefendants. At least two of the defendants exited the car. Officer Dillard saw one of the men walk to the passenger side of her car, and another positioned himself on her driver's side behind a car she had parked next to. She looked out the passenger side, and saw a man wearing a ski mask and pointing a gun at her. As she reached for her service weapon, the defendant on the passenger side opened fire, and another defendant immediately began firing at her from the opposite side. As she moved to exit the car, Officer Dillard was struck first by a bullet in her face, and then by another bullet in her side. Despite her wounds, she took cover between her car and the adjacent car, and returned fire until the gunmen fled on foot, and the driver sped off in the Camaro.

Officer Dillard was hospitalized for bullet wounds to her face and side. In addition to the resulting scars, at the time of trial, she was expecting to undergo additional surgery for removal of the bullet which remained lodged in her face. At the scene, police found two handguns, a .38 revolver and a .357 revolver, bullet fragments, numerous spent bullet casings, and Officer Dillard's bullet-riddled car. The Camaro, with bullet holes and shattered glass, was found abandoned the next day.

One of the co-defendants, Andre Lewis, was apprehended the night of the shooting about a half-mile from the scene. After first giving the police false names for the co-defendants, Lewis identified Anthony Gates, Olin Dismuke, and Antonio Chandler as the others involved in the shooting. Arrest warrants were issued, and several days after the shooting Dismuke turned himself in to police. Dismuke testified as follows: He, Chandler, Gates, and Lewis drove to Thicket Apartments on the night of the 26th in the Camaro to take some money from a known gambler called Joe For Show, who lived there. Dismuke drove the car, and Chandler, Lewis, and Gates had handguns. As they were driving around the apartment complex looking for Joe For Show's blue car, Chandler spotted Officer Dillard's blue Honda, and said, "That's the car right there. Let's get out and let's get him." Chandler, Gates, and Lewis got out, and put on ski masks. Chandler went to the passenger side of the Honda with his gun pulled, and when he saw Officer Dillard reach for her weapon, he fired first. Gates immediately started shooting from the opposite side. Officer Dillard fired back, and the others ran off. Dismuke ducked as Officer Dillard's shots hit the Camaro. He was grazed in the head by one shot, then drove off and later abandoned the car. Chandler called Dismuke the next day, and told him that when he looked in the car and saw that Dillard was a police officer, he shot her in the face. Chandler also told Dismuke he knew Lewis had been caught.

The State presented evidence of statements made by Chandler. About a week after the shooting, police received information that Chandler could be found in an apartment in Fulton County. During a search of the apartment, Chandler was found hiding under a pile of clothes in a closet. As he was pulled up from the floor, Chandler blurted out, "I was there. I didn't shoot anybody." In later statements, he told police he could take them to Gates, the only co-defendant who had not been apprehended at that point. When questioned about his relationship to the co-defendants, Chandler told police he knew Lewis and Dismuke because they worked for him selling cocaine. He also said that a man called T-Rocks, who lived at Thicket Apartments, worked for him, and had been robbed of money which belonged to Chandler. Chandler later gave another statement denying that he was present or involved in the shooting. Chandler did not testify at the trial.

Gates was apprehended and testified at trial that Chandler was not present at the shooting. However, Gates admitted that prior to the trial he had told police and the district attorney that he was present at the shooting along with Chandler, Lewis, and Gates, and that he saw Chandler fire his gun. Evidence also showed that Gates told police Chandler was the gunman on the passenger side of Officer Dillard's Honda, and that Chandler was the leader of the operation whose idea it was to go to Thicket Apartments.

After a verdict was returned on all the other counts against Chandler, the State presented evidence of Chandler's previous armed robbery conviction in support of the remaining count of possession of a firearm by a convicted felon.

1. Chandler claims the trial court erroneously put his character into issue by admitting, over a continuing objection, evidence that Lewis, Dismuke, and a person called T-Rocks sold cocaine for Chandler. During arguments on Chandler's motion in limine to exclude this evidence, the State contended it was relevant to show that Chandler and the three co-defendants went to Thicket Apartments to commit an intended robbery or "hit" for the purpose of stealing cocaine money. On this representation, the trial court denied the motion in limine, and allowed Chandler a continuing objection. At the close of the evidence, Chandler moved for a mistrial claiming the state failed to produce any evidence demonstrating the relevancy of Chandler's cocaine dealings.

The State presented no evidence to show that the co-defendants went to Thicket apartments for a cocaine-related purpose. The evidence showed only that Joe For Show, the intended victim who lived at the complex, was a gambler known to carry large sums of money. There was no evidence tying Joe For Show to the robbery of cocaine money from T-Rocks, who worked for Chandler and lived at the same complex. At best, this evidence showed a relationship, unrelated to the present events, between Chandler and two co-defendants in which Chandler was the leader. The State clearly established the co-defendants' presence and Chandler's role without the cocaine connection.

Generally, no evidence of the defendant's bad character is admissible unless the defendant first puts his character into issue. Stanley v. State, 250 Ga. 3, 295 S.E.2d 315 (1982); Causey v. State, 154 Ga.App. 76, 79, 267 S.E.2d 475 (1980). However, if evidence is relevant and material to an issue in the case it is not excluded because it also incidentally places the defendant's character into evidence. Norman v. State, 197 Ga.App. 333, 336, 398 S.E.2d 395 (1990). We conclude that evidence of Chandler's cocaine dealings was not relevant for any permitted purpose, and erroneously placed the defendant's character into issue. OCGA §§ 24-2-2; 24-9-20(b); Jones v. State, 257 Ga. 753, 754-760, 363 S.E.2d 529 (1988).

Nevertheless, because the defendant must demonstrate harm as well as error to warrant a reversal, we decline to hold this is reversible error. Given the eyewitness testimony of Dismuke, along with the defendant's own statements and those of Gates, the error was harmless because it is highly probable it did not contribute to the jury's verdict. ¹ Johnson v. State, 238 Ga. 59, 60-61, 230 S.E.2d 869 (1976); Worley v. State, 201 Ga.App. 704, 707, 411 S.E.2d 760 (1991); Baptiste v. State, 190 Ga.App. 451, 452-453, 379 S.E.2d 165 (1989); Dye v. State, 177 Ga.App. 824, 825, 341 S.E.2d 314 (1986). Since no mistrial was mandated to ensure a fair trial, the trial judge did not abuse his discretion by denying Chandler's motion. Stanley, supra, 250 Ga. at 4, 295 S.E.2d 315; Dye, supra, 177 Ga.App. at 825, 341 S.E.2d 314. Moreover, "[a] motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it." (Citations and punctuation omitted.) Worley, supra, 201 Ga.App. at 705, 411 S.E.2d 760; compare Baptiste, supra, 190 Ga.App. at 452, 379 S.E.2d 165 (continuing objection coupled with continuing motion for mistrial at the time testimony was admitted).

2. Chandler contends that testimony presented by the State from Annette Handley was exculpatory, and was not provided to Chandler prior to trial in violation of his written request for such material made under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Contrary to his pre-trial statements, Gates testified Chandler was not present at the shooting, and that he told police someone named Shorty or Black did the shooting. He denied that he knew Chandler as Shorty. The State called Handley, Gates' girlfriend, who testified that sh...