Felder v. State

• Decision Date: 08 March 1999
• Docket Number: No. S99A0176., No. S99A0174
• Citation: Felder v. State, 270 Ga. 641, 514 S.E.2d 416 (Ga. 1999)
• Parties: FELDER v. The STATE. Coley v. The State.
• Court: Georgia Supreme Court

514 S.E.2d 416

270 Ga. 641

FELDER v.The STATE.

Coley v.The State.

Nos. S99A0174, S99A0176.

Supreme Court of Georgia.

March 8, 1999.

Noel G. Perry, Ashburn, for Lorenzo Carnell Felder.

David E. Morgan III, Abbeville, for Graylin Coley, Jr.

John C. Pridgen, Dist. Atty., Denise D. Fachini, Asst. Dist. Atty., Cordele, Thurbert E. Baker, Atty. Gen., Jeanne Kay Strickland, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.CARLEY, Justice.

The grand jury indicted Lorenzo Felder and Graylin Coley, along with four others, for the felony murder of a convenience store operator while in the commission of an armed robbery.Felder, Coley and Terry McKenzie were tried jointly before a jury.According to the evidence presented by the State, a young patron leaving the store observed a suspicious group of men lurking nearby.Some wore ski masks, and one had a gun.The police were called but, before their arrival only a short time later, the store operator was shot in the course of a robbery, which netted the thieves only four packs of cigarettes.A description of the suspects was broadcast.Police officers found Felder and Coley in the immediate vicinity and took them into custody.In a one-on-one show-up at the scene, the young man who had called the police identified them as two of the members of the suspicious group he had seen near the store shortly before the murder.Coley admitted that the gun belonged to him, and that he provided the weapon for use in the robbery.One of the others charged with the murder pled guilty and, in his testimony for the State, he implicated Felder and Coley in the crime.Although neither Felder nor Coley entered the store or fired the gun, they acted as lookouts.After the shooting and the theft of the cigarettes, they joined the others in fleeing the scene.Their shoes matched shoe prints found nearby.The jury found both Felder and Coley guilty.After entering judgments of conviction on the guilty verdicts, the trial court imposed sentences of life imprisonment.Felder and Coley filed separate notices of appeal, and their cases have been consolidated for appellate disposition.¹

Case Number S99A0174

1.The evidence is sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of Felder's guilt as a party to the felony murder of the victim while in the commission of an armed robbery.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979);Lattimore v. State,266 Ga. 737(1), 470 S.E.2d 673(1996);Tanksley v. State,226 Ga.App. 505, 487 S.E.2d 98(1997);Ellis v. State,211 Ga.App. 605, 607(1), 440 S.E.2d 235(1994).

2.The indictment alleged that the armed robbery was committed when the gun was used to take the cigarettes from the person of the victim.Felder moved for a directed verdict of acquittal, asserting that, because the evidence showed only that the cigarettes had been taken from the victim's immediate presence, rather than from the victim's actual person, the State failed to make a sufficient showing of guilt of the armed robbery as charged in the indictment.The denial of this motion is enumerated as error.

OCGA § 16-8-41(a) provides, in relevant part, that armed robbery is committed by the taking of "property of another from the person or the immediate presence of another...."Although the victim's "person" and his "immediate presence" are separated by the word "or," the former has always been deemed to include the latter for purposes of proving the elements of a robbery.

"`The meaning of this legal phrase is, not that the taking must necessarily be from the actual contact of the body, but if it is from under the personal protection that will suffice.Within this doctrine, the person may be deemed to protect all things belonging to the individual, within a distance, not easily defined, over which the influence of the personal presence extends.'"

Welch v. State,235 Ga. 243, 246(1), 219 S.E.2d 151(1975).In cases of this type, all of the victim's property

"is, in contemplation of law, upon the person of the owner, which is, at the time of taking, in the immediate presence of the owner, or is so near at hand, or stored in such position, that, at the time of taking, it is under the immediate personal protection of the owner.If the goods are in that condition, then they are, within the contemplation of the law, upon the person of the owner."

Clements v. State,84 Ga. 660, 662-663(1), 11 S.E. 505(1890).The word "or""is sometimes used to introduce a reiteration of the same idea, and to express it in a somewhat different way."Whitaker v. State,11 Ga. App. 208, 211(5), 75 S.E. 258(1912).As the Committee Notes regarding the crime of robbery indicate, "or" is employed in OCGA § 16-8-41 in just this sense, specifically incorporating into the statutory definition of robbery the principle that the victim's "person" includes the entire area within his "immediate presence."Because they are mutually inclusive, rather than exclusive, concepts, there is no fatal variance between an indictment which charges that property was taken from the victim's person, and proof which shows that the taking was from the victim's immediate presence.SeeWelch v. State,supra at 245(1), 219 S.E.2d 151.Here, the evidence is sufficient to show that the cigarettes were taken from the person of the victim as alleged in the indictment, because, at the time of their removal, they were within his immediate presence.Therefore, the trial court correctly denied Felder's motion for a directed verdict of acquittal.

3.Consistent with its ruling on the motion for a directed verdict, the trial court refused to allow Felder to argue that the jury should acquit him because of the State's purported failure to prove the allegation that the cigarettes had been taken from the person of the victim.Felder urges that this constituted an erroneous curtailment of the right to argue his case.

In this state, it is permissible to refer to the applicable law in closing argument.Minter v. State,266 Ga. 73, 74(2), 463 S.E.2d 119(1995).However, the argument that Felder wished to present was an erroneous principle of law, since, as discussed in Division 2, there was no fatal variance between the allegata and probata.Thus, the trial court did not err by precluding Felder from making such argument.Abrams v. State,229 Ga.App. 152, 153(2), 493 S.E.2d 561(1997).

Case Number S99A0176

4.The evidence is sufficient to authorize a rational trier to fact to find proof beyond a reasonable doubt of Coley's guilt as a party to the felony murder of the victim while in the commission of an armed robbery.Jackson v. Virginia,supra.

5.Because the State was not seeking the death penalty, Coley's motion to sever his case for a separate trial was a matter which lay within the trial court's discretion.Mapp v. State,258 Ga. 273, 274(3), 368 S.E.2d 511(1988).To show that the trial court abused its discretion in denying the severance motion, Felder must demonstrate that the joint trial was prejudicial and a denial of due process.Owen v. State,266 Ga. 312, 314(2), 467 S.E.2d 325(1996).The number of defendants at the joint trial was not so great as to create confusion, and Coley's defenses were not antagonistic to Felder's and McKenzie's.Cain v. State,235 Ga. 128, 129, 218 S.E.2d 856(1975).Moreover, McKenzie actually testified, so only Felder was unavailable as a witness for Coley.Coley did not show that, if the motion had been granted, Felder was more likely to become a witness and give testimony favorable to Coley at a separate trial.Accordingly, the trial court did not abuse its discretion by denying the severance motion.

6.Coley asserts that the trial court should have excluded various items of tangible evidence, including ski masks, articles of clothing and plaster casts of shoe prints, because of the State's failure to comply with the discovery mandate of OCGA § 17-16-4(a)(3).Although the State did make a timely pre-trial disclosure of the existence of these items, it also appears that defense counsel may have been misled by the State's failure to specify that it intended to introduce the items into evidence.CompareMcSears v. State,226 Ga.App. 90, 91(1), 485 S.E.2d 589(1997).However, the transcript reflects that the trial court gave counsel an opportunity to inspect the items before their introduction into evidence.This is a permissible response to the State's failure to comply with criminal discovery provisions.OCGA § 17-16-6.Moreover, the evidence would be inadmissible only if Coley could show both prejudice and bad faith.OCGA § 17-16-6;Tucker v. State,222 Ga.App. 517, 518(3), 474 S.E.2d 696(1996).Because he showed neither, the trial court properly admitted the evidence after allowing his attorney the opportunity to inspect it.SeeAleman v. State,224 Ga.App. 391, 393(2), 480 S.E.2d 393(1997);Bell v. State,224 Ga.App. 191, 192, 480 S.E.2d 241(1997);Sledge v. State,223 Ga.App. 488, 489(3), 477 S.E.2d 898(1996).

7.When the officer who observed and studied the shoe prints opined that they had been made by someone who was running, Coley moved to strike on the ground that this testimony lacked a foundation and was speculative.The trial court correctly overruled this objection, because the officer's opinion testimony was based upon his own personal observations and training.Munsford v. State,235 Ga. 38, 42, 218 S.E.2d 792(1975).

8.Over a hearsay objection, the trial court allowed a police officer to testify that Coley's mother had disposed of the murder weapon by throwing it into the Flint River.Although the officer never specifically indicated that his testimony was based upon hearsay, it is apparent that such was the case, since he was not present when Coley's mother allegedly threw the gun into the river.SeeBryant v. State,191 Ga. 686, 687(3), 13...