Coe v. State

• Decision Date: 17 June 2013
• Docket Number: No. S13A0478.,S13A0478.
• Citation: 748 S.E.2d 824,293 Ga. 233
• Parties: COE v. The STATE.
• Court: Georgia Supreme Court

293 Ga. 233

748 S.E.2d 824

COE

v.The STATE.

No. S13A0478.

Supreme Court of Georgia.

June 17, 2013.

Charles Anthony Jones, Jr., Jones Appellate Law Practice, Athens, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Lee Iannuzzi, Asst. Atty. Gen., Department of Law, Charles R. Sheppard, Augusta Judicial Circuit District Attorney's Office, Evans, Rebecca Ashley Wright, Dist. Atty., Titus Thomas Nichols, Augusta, Office of the District Attorney, for appellee.

HINES, Justice.

Willie Bernard Coe appeals his convictions and sentences for malice murder, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon, all in connection with the death of Johnny Walter Davis. For the reasons that follow, we affirm.¹

Construed to support the verdicts, the evidence showed that approximately a year before Davis was killed, Coe stole $2,400 worth of marijuana from Donte Simmons, an associate of Dennis Mingledolph. The day of Davis's death, Mingledolph told Simmons he had just seen Coe in their vicinity; April Girtman drove Mingledolph, Simmons, and a man known as “Block” through the area and located Coe. Before Mingledolph, Simmons, and Block exited the vehicle, Mingledolph handed Simmons a 9mm pistol; the three men then accosted Coe and searched him, taking his cell phone and a pocketknife, and Mingledolph encouraged Simmons to shoot Coe. However, Coe was permitted to leave and ran away; the four others then drove to Luckey Street and Mingledolph exited the vehicle after Simmons returned his pistol; Girtman, Simmons, and Block then drove away.

Meanwhile, Coe encountered his friend Lewis Harmon driving his vehicle in the company of LaToya Jones; Coe got in Harmon's vehicle and said that he had been robbed and threatened. Harmon drove Coe and Jones to Luckey Street where Harmon intended to purchase marijuana. When Coe, Harmon, and Jones arrived at Luckey Street, Mingledolph exited the other vehicle, carrying the 9mm pistol Simmons had just returned to him. Harmon exited his vehicle and spoke with Mingledolph; he then went inside a house to purchase marijuana while Coe and Jones remained in the car. After some minutes, Coe exited the car to find out what was taking Harmon so long, after having taken Harmon's 10mm pistol from the console of the vehicle; he and Mingledolph exchanged gunfire, and Mingledolph retreated, with Coe pursuing him. Mingledolph escaped, and Coe returned to Harmon's vehicle, picking up a 9mm clip from Mingledolph'spistol; Coe later hid Harmon's pistol and the clip he had picked up at the scene of the crime in the home of a relative of Harmon's.

During the exchange of gunfire, Davis was seated in his pickup truck, parked between the combatants. Law enforcement officers who responded to the shooting found him dead of a single gunshot wound through the head; his truck had been struck by numerous bullets from both Mingledolph's 9mm pistol and the 10mm pistol Coe fired.

1. Coe notes that the ballistics and medical evidence was that it was not possible to determine whether the fatal shot to Davis's head was fired from Coe's pistol or Mingledolph's, and contends that the evidence was thus insufficient to convict him of malice murder because it was not shown that he caused Davis's death. However, there is no merit to his argument. As the State notes, under the doctrine of transferred intent, it is irrelevant whether Coe attempted to shoot Davis or only Mingledolph. See Hendricks v. State, 290 Ga. 238, 240(1), 719 S.E.2d 466 (2011); Love v. State, 268 Ga. 484, 485(1), 490 S.E.2d 88 (1997). And, the fact that there was no definitive evidence as to whether Coe or Mingledolph fired the fatal shot does not absolve Coe of malice murder. The jury was properly instructed on the law of parties to a crime, under which, even if the fatal bullet was in fact fired by Mingledolph,

OCGA § 16–2–20(a) provides that “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” [O]f course ... mere presence or approval of a criminal act is not sufficient to render one a party to the crime, and a conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the principal perpetrator of the crime. But criminal intent is a question for the jury, and it may be inferred from that person's conduct before, during, and after the commission of the crime. [Cits.] From the circumstances proven in this case, a rational jury could have inferred that [Coe] shared a common criminal intent with [Mingledolph] to engage in a gunfight in the presence of ... innocent bystanders.... [Cits.] And even though [Davis] evidently was not an intended victim of the gunfight, the evidence was sufficient for a rational trier of fact to find that [Coe] was a party to the crime of [malice murder] under the doctrine of transferred intent. [Cits.] Accordingly, the evidence adduced at trial is legally sufficient to sustain the [malice murder] conviction.

Jones v. State, 292 Ga. 656(1)(a), 740 S.E.2d 590 (2013) (Footnote omitted). The evidence presented at trial authorized the jury to find Coe guilty beyond a reasonable doubt of all the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. When Davis's widow appeared as a witness at trial, a juror realized that she was acquainted with her, and called the court's attention to that fact. Upon further voir dire of the juror, she testified that she had known the widow during their youth, but had not known her by her married name and thus had not recognized it during prior voir dire. The juror could not recall any contact with the widow since 1979 or 1980, and when asked if she would have sympathy for her, testified that the sympathy she would have for Davis's widow was the same as she would have for any witness who had similarly lost a loved one. The juror testified that she could be fair and impartial despite the prior acquaintance and, over Coe's objection, the court ruled that the juror would remain on the jury.

“A juror's knowledge of, or relationship with, a witness, attorney, or party is a basis for disqualification only if it has created in the juror a fixed opinion of guilt or innocence or a bias for or against the accused. [Cit.]” Poole v. State, 291 Ga. 848, 852(3), 734 S.E.2d 1 (2012). There was no evidence of such bias or fixed opinion. “Whether to strike a juror for cause lies within the sound discretion of the trial judge [Cit.], and the trial court's exercise of that discretion will not be set aside absent a manifest abuse of discretion. [Cit.]” Id. at 851, 734 S.E.2d 1. Under the evidence here, the trial court did not abuse its discretion in failing to excuse the juror for cause.

3. Coe complains of the trial court's failure to sever his trial from that of Mingledolph.

There is no written motion to sever in the record, but [Mingledolph's] trial counsel argued the issue of severance of [Mingledolph's] trial from [Coe's] at the beginning of the trial. The record does not reflect any adoption of [Mingledolph's] motion by Coe or any request by Coe to be tried separately. That being so, he may not raise the issue on appeal.

Pye v. State, 274 Ga. 839, 842(6), 561 S.E.2d 109 (2002).

Further, even if Coe had moved to sever his trial from Mingledolph's,

[i]n a murder case where the death penalty is not sought, the...