Mathis v. State

• Decision Date: 11 May 1999
• Docket Number: No. A99A0271.,A99A0271.
• Citation: 238 Ga. App. 218,517 S.E.2d 578
• Parties: MATHIS v. The STATE.
• Court: Georgia Court of Appeals

517 S.E.2d 578

238 Ga. App. 218

MATHIS v. The STATE.

No. A99A0271.

Court of Appeals of Georgia.

May 11, 1999.

Reconsideration Denied May 25, 1999.

Certiorari Denied October 15, 1999.

Berry & Shelnutt, Jose E. Guzman, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee. JOHNSON, Chief Judge.

Andre Mathis and Ronnie Kelly were convicted of armed robbery and possession of a firearm during the commission of a felony. Mathis appeals.

1. Mathis challenges the sufficiency of the evidence supporting the convictions. The challenge is without merit.

Viewed in the light most favorable to support the verdict, the evidence shows that two men wearing black gloves, dark clothes, and ski masks entered Stuckey's Mini-Mart to commit a robbery. Store owners Mitchell Stuckey and Inez Stuckey, along with cashier Debra Drains, were in the store when the robbers entered. Inez Stuckey stood behind the cash register, Drains stood near the cashier counter and Mitchell Stuckey stood near the back of the store, which is very small.

One of the robbers was armed with a handgun. He pointed the gun at Inez Stuckey and ordered her to open the register. The other man took money from the open register drawer. The robbers then demanded the money that was kept in the store office. Inez Stuckey retrieved that money, which had been banded with bank wrappers, and gave it to the robbers, who then ran from the store.

When the police arrived at the store, Drains immediately identified the two robbers as Ronnie Kelly and Andre Mathis. Drains has known both Kelly and Mathis for many years and had seen them in the store earlier that day. She was able to identify Kelly as one of the robbers by his voice and his distinctive walk. Drains recognized Mathis by the way he spoke during the robbery.

The arresting officer testified that approximately one hour after the robbery, he went to the home of Mathis' girlfriend, where he found Mathis and Kelly. The officer saw a large amount of money bulging out of Kelly's pants pocket. Mathis and Kelly were placed under arrest. The officer then obtained Mathis' girlfriend's consent to search the house. During the search, the officer found three ski masks, gloves, and money wrappers. A handgun was also found in Kelly's jacket.

Both Drains and Inez Stuckey testified that the handgun's barrel appeared similar to the barrel of the gun used during the robbery. The masks and gloves also looked like those worn by the robbers, and the money wrappers were similar to those used in the Mini-Mart.

Based on our review of the entire record before us, we find ample evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Mathis was guilty of the offenses of armed robbery and possession of a firearm during the commission of a felony. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Reid v. State, 232 Ga.App. 313, 315(2), 501 S.E.2d 842 (1998).

2. Mathis claims there is a fatal variance between the allegations in the indictment and the evidence in that the indictment alleges the money was taken from the immediate presence of Drains whereas the evidence shows the money was taken only from the immediate presence of Inez Stuckey. Contrary to Mathis' claim, the evidence does not show a taking only from the immediate presence of Inez Stuckey.

The meaning of "immediate presence" in this context stretches fairly far, and robbery convictions are usually upheld if what was taken was under the victim's control or responsibility and was not too distant from the victim. Wilson v. State, 207 Ga. App. 528, 529(1), 428 S.E.2d 433 (1993). For property to be taken from the presence of the victim, it need not have been in actual contact with the body so long as it was under the victim's personal protection. Id. See also Welch v. State, 235 Ga. 243, 245(1), 219 S.E.2d 151 (1975); Bryant v. State, 213 Ga. App. 301, 302, 444 S.E.2d 391 (1994).

In the instant case, there was testimony that Drains was on duty and responsible for the money in the cash register, that the store is very small and that Drains was standing near the cash register and the robbers when the armed robbery occurred. The jury was thus authorized to find that Drains was sufficiently close to the taking so that it occurred within her immediate presence or within the sphere of her protective influence. See generally Anderson v. State, 228 Ga.App. 617, 621(3), 492 S.E.2d 252 (1997). The mere fact that the money was taken directly from Inez Stuckey does not eliminate the fact that the robbery also occurred in the immediate presence of Drains.

The general rule that allegations and proof must correspond is based upon the requirements (1) that the accused is definitely informed of the charges against him so he can present his defense and not be surprised by the evidence at the trial, and (2) that he is protected against another prosecution for the same offense. Harrison v. State, 192 Ga. App. 690, 691(1), 385 S.E.2d 774 (1989). Here, Mathis was definitely informed as to the armed robbery charge against him and he is protected against another prosecution for the same offense committed against Drains. The trial court therefore did not err in finding no fatal variance between the allegation in the indictment and the evidence.

3. Mathis contends the admission of Kelly's pretrial statement violated Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The court allowed a police officer to testify that Kelly stated he and someone else had discussed robbing the store earlier that day, he and someone else in fact committed the robbery, he went into the store and had the gun, he did most of the talking during the robbery, they left the store and they eventually returned to the housing project where the arrest occurred. Neither Kelly nor Mathis testified.

[U]nless the statement is otherwise directly admissible against the defendant, the Confrontation Clause is violated by the admission of a nontestifying co-defendant's statement which inculpates the defendant by referring to the defendant's name or existence, regardless of the existence of limiting instructions and of whether the incriminated defendant has made an interlocking incriminating statement. A co-defendant's statement meets the Confrontation Clause's standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant.

Hanifa v. State, 269 Ga. 797, 803(2), 505 S.E.2d 731 (1998). Because Kelly's statement plainly refers to the existence of another defendant planning and participating in the crime, we find that admission of the statement violated Mathis' right of confrontation.

However, "(w)e will not reverse unless error is shown to be harmful. If overwhelming evidence against a defendant exists apart from the statement of the co-defendant, then any violation of Bruton can be said to be harmless beyond a reasonable doubt." (Citations and punctuation omitted.) Kesler v. State, 215 Ga.App. 553, 555(1), 451 S.E.2d 496 (1994). Given Drains' eyewitness identification of Mathis, along with the money, masks, gloves, money wrappers and gun found in the possession of Mathis and Kelly, we find overwhelming evidence of Mathis' guilt. Accordingly, the court's erroneous admission of Kelly's statement was harmless beyond a reasonable doubt. See Hanifa v. State, supra at 804(2), 505 S.E.2d 731; McDonald v. State, 210 Ga.App. 689, 691(2), 436 S.E.2d 811 (1993).

4. Mathis asserts that the trial court erred in denying his motion to sever his trial from that of Kelly. We find no merit to the assertion.

In deciding whether to grant a motion to sever, a trial court must consider whether a joint trial will create confusion regarding evidence or law; whether there is danger that evidence implicating one defendant will be considered against co-defendants, despite limiting instructions; and whether the co-defendants will press defenses that are...