Mathis v. State
| Decision Date | 31 July 2009 |
| Docket Number | No. A09A0215.,No. A09A0358.,No. A09A0308.,A09A0215.,A09A0308.,A09A0358. |
| Citation | 684 S.E.2d 6,299 Ga. App. 831 |
| Parties | MATHIS v. The STATE. Fortie v. The State. Waller v. The State. |
| Court | Georgia Court of Appeals |
Gilbert J. Murrah, Bainbridge, for appellant (case no. A09A0215).
Little, Crumly & Chambliss, Samuel F. Little, Jr., Atlanta, for appellant (case no. A09A0308).
Sheueli C. Wang, James C. Bonner, Jr., Athens, for appellant (case no. A09A0358).
Joseph K. Mulholland, Dist. Atty., for appellee.
Following a joint jury trial, Jeremiah Waller and Jean Fortie were each convicted of two counts of armed robbery,1 and Doney P. Mathis was convicted of two counts of armed robbery,2 possession of a firearm during the commission of a crime,3 and obstruction of a law enforcement officer.4 All three have appealed, and we have consolidated the appeals for review.5 Mathis alleges that the trial court erred in denying his motion for new trial because: the evidence was insufficient; the trial court failed to sever the trials; the court failed to grant a mistrial after the State injected improper character evidence; the presence of uniformed and plainclothes law enforcement officers during the trial violated his due process rights; and the trial court failed to continue the trial until his court-ordered mental evaluation was completed. Fortie contends that the trial court erred in admitting certain evidence that improperly injected his character into the trial and in denying his motion to sever; Fortie also alleges that he received ineffective assistance of counsel. Waller argues that the trial court erred in denying his request to give a jury charge on coercion and duress and in admitting certain evidence. We affirm the convictions of Mathis and Fortie, and we reverse Waller's conviction, for reasons that follow.
On appeal from a criminal conviction, we review the evidence in a light favorable to the verdict, and the defendant no longer enjoys a presumption of innocence.6 We neither resolve issues of witness credibility nor weigh the evidence, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.7 So viewed, the evidence shows that on August 4, 2005, Sheree Dean and Susan Hand were working as bank tellers at the Family Bank in Decatur County. At 8:50 a.m., Dean and Hand, who were inside the bank preparing for the 9:00 a.m. opening, observed a man—later identified as Jean Fortie—walk up to the entrance and look through the door into the bank. At approximately 9:10 a.m., Mathis and Waller entered the bank, running. Waller had a stocking on his face, and Mathis was in the process of pulling a stocking over his head. Mathis, who was brandishing a gun, yelled, Both men were standing at the counter, and Mathis hit the counter and repeatedly instructed Dean to "hurry up." Dean retrieved as much money as she could, running back and forth from her teller station at the drive-through to the counter where the men were standing; she placed the money on the counter, and Waller shoved the money into a bag. According to Hand, the men took approximately $7,400 in cash from the bank. Waller and Mathis also took $50 from a bank customer. The two men then ran out of the bank and down a dirt road behind the bank.
Tom Wheeler, who was driving by the scene, saw two men run out of the bank. Because he believed that the men were "doing something wrong," Wheeler attempted to follow them in his vehicle by cutting through an adjacent driveway. As he did so, he encountered a blue Buick containing four individuals. The Buick stopped inches away from his vehicle, and Wheeler backed up and let the car go past him after the driver repeatedly pumped the brake, causing the car to rock back and forth in a threatening manner. Wheeler then called 911 and followed the Buick for approximately a mile-and-a half, but stopped after he saw a gun pointed out of the driver's side rear window of the Buick.
All Decatur County Sheriff's deputies on duty at that time were instructed to search for the suspects and were given a description of the Buick, including the license plate number, as well as a description of Waller and Mathis and their clothing. Lieutenant Rick Ashley observed the Buick and pursued it at a high rate of speed for six miles until another patrol car joined him, and he initiated a traffic stop. Mathis leaped out of a rear door and fled into the woods. Waller, Fortie, and a woman, Tonya Jackson, remained in the car and were arrested on the scene. The authorities searched the Buick and found multiple money wrappers bearing the Family Bank stamp. Police apprehended Mathis in the same general area the following day; Mathis was in possession of $7,144 in cash.
The State tried Waller, Fortie, and Mathis together in a joint trial. Jackson—who was charged with two counts of armed robbery, entered a plea to robbery and was sentenced to twenty years—testified. Jackson testified that on August 3, 2005, she, Fortie (her boyfriend), Waller, and Mathis discussed robbing a bank. The following morning, the four of them went to Wal-Mart, where Waller stole stockings and Fortie stole a "fake" "gun that shoots animals, like a pellet [gun]." They then went to the Family Bank, and she and Fortie waited in the car while Mathis and Waller went inside; Mathis and Waller ran out of the bank, down a dirt road, and jumped into the vehicle, which Fortie was driving.
Waller also testified, denying that he discussed robbing a bank with the other three individuals. According to Waller, he was asleep in the car when Fortie awakened him outside a bank, instructing him to "go with ... Mathis." Waller testified that he initially refused, but complied after Fortie pointed a gun at him. Waller and Mathis approached the bank, and Mathis instructed him to don a stocking cap. Waller testified that he refused, but Mathis "pulled out a gun and told me, do what I told you to do or you won't see your family no more." The two men then entered the bank, and Mathis demanded and collected money; Waller denied taking money or putting it in a bag. The jury found Waller, Mathis, and Fortie guilty on all counts, and all three have appealed.
1. Mathis, in a single enumeration of error, alleges that the trial court erred in denying his motion for new trial. He divides his argument into several sub-parts, which we address in turn.
(a) Mathis contends that the verdicts as to armed robbery and possession of a firearm during the commission of a crime were contrary to law and unsupported by the evidence because the indictment charged him with committing armed robbery with the use of a handgun (as opposed to a replica), while the testimony at trial established that a toy gun was used in the robbery.
Mathis provides no statutory or legal authority for this contention, in violation of our rules.8 Notwithstanding his failure to do so, however, this argument is without merit. We have previously held that there was no fatal variance between an indictment that alleged that the defendant committed armed robbery by the use of a handgun and evidence that showed that the defendant used a BB gun; or between an indictment that alleged that armed robbery was committed by the use of a pistol and the evidence that showed that the weapon was a pellet gun.9 Similarly, there is no fatal variance here between the indictment that alleged that Mathis committed armed robbery through the use of a handgun, and evidence that showed that the weapon used was a pellet gun. 10 Thus, Mathis's arguments that the verdicts were contrary to law or unsupported by the evidence are without merit.
(b) Mathis further argues that the trial court erred by failing to sever his trial from that of his co-defendants.11 We find no basis for reversal.
Mathis made a pre-trial verbal motion to sever his trial from that of his co-defendants on the sole ground that their defenses were antagonistic. At the hearing, Mathis's counsel stated that he believed, based on his conversations with counsel for the co-defendants, that the co-defendants intended to introduce testimony that Mathis somehow compelled them to commit the charged crimes. Upon hearing that the witnesses the co-defendants intended to call for that purpose had either expressed an unwillingness to testify or had not yet been subpoenaed, the trial court denied the motion to sever.
Mathis had 12 "Antagonism between co-defendants is not enough in itself to require severance, rather [Mathis] must also demonstrate that he was harmed by the failure to sever."13 Mathis does not specifically allege that he was harmed by the trial court's denial of his motion to sever. And in light of the evidence presented at trial from sources other than his co-defendants— including (1) Jackson's testimony that Mathis discussed the robbery, stole the stockings used in the robbery, and actually went into the bank and emerged shortly thereafter with money; (2) Dean and Hand's identification of Mathis as the man who brandished the gun during the robbery; and (3) Mathis's possession of approximately $7,100 in cash on his person when he was apprehended in the area the day following the robbery—we conclude that Mathis "has not shown the clear prejudicial harm necessary to overturn the trial court's denial of the motion to sever."14
Mathis further argues, for the first...
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