Mathis v. State

• Decision Date: 09 November 1973
• Docket Number: No. 28286,28286
• Citation: 231 Ga. 401,202 S.E.2d 73
• Court: Georgia Supreme Court
• Parties: Jimmy MATHIS v. The STATE.

Page 73

202 S.E.2d 73

231 Ga. 401

Jimmy MATHIS v. The STATE.

No. 28286.

Supreme Court of Georgia.

Nov. 9, 1973.

Grogan, Jones & Layfield, Richard A. Childs, Columbus, for appellant.

E. Mullins Whisnant, Dist. Atty., Columbus, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Daniel I. MacIntyre, IV, Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

Jimmy Mathis and Byron Keith Brown were jointly indicted for the offense of armed robbery. They were also jointly indicted for the offense of aggravated assault. They were jointly tried on both indictments.

The evidence shows that on October 9, 1972 at 1:15 p.m., Mathis and his codefendant entered a laundry in Muscogee County; Mathis held a gun on the attendant and robbed her of $86 while his companion stood watch at the door. The victim carefully observed the robbers, immediately called the police when they departed, and gave them a detailed description of the robbers. Approximately five minutes later Officer Riggs was patrolling in the area when he received the radio message of the robbery and a description of the perpetrators. About 200 yards from the scene of the robbery, he saw two men in an automobile who fitted the descriptions he had just received. Officer Riggs was in uniform and was driving a marked police car. He followed the suspects into the parking lot of an apartment complex; called for radio assistance, gave his location; and parked his vehicle perpendicular to the rear of the suspects' parked car so that their exist was blocked. Mathis then jumped from his automobile, approached the police car and shot the officer in the face. Mathis then ran toward Cusseta Road and the junior high school. The codefendant ran from the car when the defendant approached the officer's car. Another officer had received the assistance call from Officer Riggs and en route to the scene observed Mathis on the same side of the apartments. Mathis saw the officer, turned and ran; the officer pursued and apprehended him. Mathis was dressed as described by the victim and was in possession of a four-shot Derringer pistol which was identified by both the victim and Officer Riggs. The codefendant was subsequently apprehended.

Both of the defendants were found guilty of armed robbery and Mathis was found guilty of aggravated assault. Mathis was sentenced to fifteen years for the offense of armed robbery and ten years for the offense of aggravated assault which was to be computed from termination of the sentence imposed for armed robbery. Mathis appeals to this court. Held:

1. The appellant contends that the trial court erred in requiring him to be trial jointly on the indictment charging him with the offense of armed robbery and on the indictment charging him with the offense of aggravated assault.

The Criminal Code of Georgia (Ga.L.1968, pp. 1249, 1267) provides: '(b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c). (c) When two or more crimes are charged as required by subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately.' Code Ann. § 26-506(b, c).

In Henderson v. State, 227 Ga. 68, 75, 179 S.E.2d 76, 83, this court construed Code Ann. § 26-506(b, c) of the 1968 Criminal Code. There it was said: '. . . it is significant to note that the legislature used language in subsection (b) making the prosecution together of multiple charges mandatory where rules relating to venue permit and the crimes are known to the proper prosecuting officer, and used language in subsection (c) making it merely permissive for the court to order separate trials in the interests of justice. Formerly the judge had a discretion to order separate trials, but his discretion was abused if the separate counts involved different species of felonies or crimes of a different nature requiring different kinds of evidence to prove guilt. This test no longer need be applied. The only test under the new Criminal Code is whether the interests of justice will be served by ordering separate trials. The judge may order the charges tried separately but he is not required to do so if in his opinion the interests of justice will not be served thereby. We think the trial court in this case was justified under the facts of the case in concluding that the interest of justice would not be served by ordering separate trials.' This case was followed in Pass v. State, 227 Ga. 730(3) 182 S.E.2d 779 and Slocum v. State, 230 Ga. 762, 199 S.E.2d 202.

The trial court was authorized to find that the interest of justice would be best served in this case by trying both of the charges involved together.

2. Prior to arraignment appellant filed a motion for severance on the grounds that the prosecution intended to introduce a statement implicating him which statement was made by the codefendant, who could not be cross examined, and that his constitutional right to confront witnesses used against him would be violated. The trial court denied the notice and admitted the statement into evidence.

The evidence in this case shows that prior to the introduction of the codefendant's statement, the appellant was positively identified by the victim who had seen him on prior occuasions in the laundry, that appellant was recognized and pursued by a police officer some 200 yards from the robbery site within five minutes of the robbery, that the police officer positively identified appellant, that the appellant was apprehended by a second police officer within five minutes after the first officer was shot, that the arrest was made in the vicinity of the shooting, and that the arrest took place approximately fifteen minutes after the robbery with the police in constant pursuit. Under this overwhelming evidence, the admission in evidence of the statement of the codefendant, if error, was harmless beyond a reasonable doubt. Morgan v. State, 231 Ga. 280, (201 S.E.2d 468); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340.

3. The appellant contends that the trial court erred in overruling his motion for severance because the prosecution intended to introduce a statement incriminating him which had been made by the codefendant who was not subject to cross examination.

Georgia Laws, 1971, p. 891, provides that it is discretionary with the trial court whether a defendant indicted for a capital offense may be tried jointly or separately. Code Ann. § 27-2101. The trial court did not abuse its discretion in ordering a joint trial in this case.

4. The appellant contends that the trial court erred in sentencing him, a minor under the laws of Georgia, to serve a term of ten years in the state penitentiary for the offense of aggravated assault (a noncapital felony) beginning at the conclusion of a fifteen-year armed robbery sentence (a capital felony).

Georgia Laws of 1972, pp. 1251, 1252, provides that minors convicted of a capital felony shall only be sentenced into the custody of the State Department of Corrections. Code Ann. § 99-209(a)(5). The trial court properly sentenced the appellant to serve his fifteen-year armed robbery sentence in the state penitentiary. However, this court in Wade v. State, 231 Ga. 131, 200 S.E.2d 271 held that Code Ann. §§ 27-2502, 27-2534 and 27-2510 when construed together allow the jury in felony cases to fix the punishment of the convicted person and that unless the jury specifies that the sentences imposed are to run consecutively, then the law is that they shall run concurrently. Therefore, we hold that the trial judge was not authorized to provide that the ten-year aggravated...