Mathews v. State

314 Ga. 360

877 S.E.2d 188

MATHEWS

v.The STATE.

S22A0670

Supreme Court of Georgia.

Decided: August 9, 2022

Larry David Wolfe, L. David Wolfe, P.C., 101 Marietta Street, N.W., Suite 3410, Atlanta, Georgia 30303-2009, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Parisia Faith Sarfarazi, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30303, Kevin Christopher Armstrong, Senior A.D.A., Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30306, Karen S. Bemis, A.D.A., Fulton County District Attorney, 136 Pryor Street SW, Atlanta, Georgia 30303, for Appellee.

Peterson, Presiding Justice.

Following a joint trial with co-defendant Shelton Jackson, Jarvis Mathews was convicted of felony murder, aggravated assault, and possession of a firearm during the commission of a felony for the fatal shooting of Grant Reynolds and the non-fatal shootings of Larentae and Roger Mumphery.¹ On appeal, Mathews argues that (1) the evidence was insufficient to support his convictions; (2) the trial court impermissibly allowed the State to establish his guilt under a party-to-a-crime theory even though this theory was not alleged in the indictment; (3) the State improperly commented on his pre-arrest silence; and (4) he received ineffective assistance of counsel.

We conclude that the evidence is sufficient to support Mathews's convictions — two eyewitnesses testified that he participated in the crimes. His claim that he was improperly convicted as a party to a crime is meritless, because the evidence supported a finding that he directly committed the crimes; moreover, the indictment charged him and Jackson jointly for committing the crimes, so he was on notice that he could be convicted as a party to a crime. Mathews waived his challenge to the State's comment on his pre-arrest silence, and cannot assert a claim based on the State's comment on his co-defendant's pre-arrest silence. Trial counsel was not deficient in failing to argue that the evidence was insufficient to convict Mathews as a party to a crime or failing to object to the trial court's jury instruction on party to a crime. Finally, trial counsel was not deficient in failing to object to the State's comments on Jackson's pre-arrest silence, and even if counsel was deficient in failing to object to comments on Mathews's pre-arrest silence, this deficiency did not prejudice Mathews because the comments were brief and the evidence of guilt was strong. We therefore affirm.

As described in co-defendant Jackson's appeal, the trial evidence showed the following.

[O]n May 17, 2001, Larentae Mumphery, Grant Reynolds, and Roger Mumphery (Larentae's cousin) went to an apartment complex in Atlanta to meet with Jackson and Jarvis Mathews so that Reynolds could inspect and possibly purchase a set of tire rims. Larentae Mumphery and Mathews had known each other in middle school and high school, and about a week before May 17, 2001, Larentae saw Mathews at a gas station and asked Mathews about some rims that were on his car. Mathews told Larentae that he had some more rims at his house, and Larentae later called Mathews and arranged to meet him at the foregoing apartment complex in order for Grant Reynolds to look at the rims. Larentae testified that Reynolds was not going to purchase the rims that day and did not have any money with him. According to Larentae, the trio met Mathews at the apartment about 4:00 p.m. on May 17, and Mathews called someone on his cell phone and told the person to bring the rims to the apartment.

Larentae testified that, a few minutes later, Jackson arrived at the apartment. Larentae stated that Jackson stood in the door of the apartment and never came inside; that Jackson and Reynolds spoke in the doorway; that he (Larentae) could see them the whole time; that Jackson screamed "where's the money"; and that Jackson then started shooting at the Mumpherys and Reynolds. According to Larentae, after Jackson started shooting, Reynolds "tussled" with Jackson and Reynolds then jumped back into the apartment. Larentae added that Reynolds and Jackson did not "tussle" before the shooting started. Larentae testified that, once Jackson shot at Reynolds, he pointed the gun at him and fired the gun. According to Larentae, once the shooting started, "everybody just started running" and tried to get out a back door or window that had burglar bars on it. Larentae added that, while the victims were running around, Jackson continued to shoot at them, and that, because he (Larentae) could not find a way out of the apartment other than through the front door, he [lay] down and played dead. Larentae also testified that he could not tell if Mathews had a gun, and that he did not know the exact number of shots that were fired, but that it seemed like it was about ten shots.

Roger Mumphery gave testimony that was consistent with the testimony given by Larentae, except that Roger testified that Mathews also fired some shots. According to Roger, when Jackson and Reynolds were standing in the door, Jackson asked Reynolds "where the money at" and then started shooting at Reynolds. Reynolds then jumped into the apartment, and Jackson started shooting at the Mumpherys and Reynolds. Roger testified that all three victims were running around the apartment screaming that they did not have any money, and that Jackson was shouting "where the money at" and shooting at them. Roger added that Reynolds was not armed when he went to the apartment.

Jackson v. State , 282 Ga. 494, 495-496 (1), 651 S.E.2d 702 (2007). Roger repeatedly testified that Mathews and Jackson were both shooting at the victims from the doorway and asking for money. Roger said that Mathews had a chrome revolver, while Jackson had a black gun.

During the shooting, Larentae Mumphery was shot once in the thigh, and Grant Reynolds was shot twice and died from his wounds. Reynolds was found in a hallway off the main living room of the apartment. Police found eight shell casings at the crime scene, including some in the hallway and around the living room, and forensic evidence established that they were all fired from one gun. Moreover, the medical examiner testified that there was no soot, searing, or stippling on Reynolds, indicating that he was shot from a distance of greater than three feet. Jackson and Mathews fled the crime scene immediately after the shooting.

Id. at 496 (1), 651 S.E.2d 702. Although the shell casings found at the apartment were all fired from the same semi-automatic weapon, a firearms examiner testified that a revolver does not automatically eject its spent cartridge casings; they have to be manually extracted.

1. Mathews argues that the evidence was insufficient to support his convictions for the felony murder and aggravated assault of Reynolds and the aggravated assault of Larentae. Mathews's challenge to his conviction for the aggravated assault of Reynolds is moot because that count merged with the felony murder conviction. See Anderson v. State , 299 Ga. 193, 196 (1) n.4, 787 S.E.2d 202 (2016). We conclude that the evidence was sufficient to support Mathews's convictions for the felony murder of Reynolds and aggravated assault of Larentae.²

When evaluating the sufficiency of evidence as a matter of federal due process, we must determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In making that determination, "we view the evidence in the light most favorable to the verdict, and we put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the [jury]." Wilkerson v. State , 307 Ga. 574, 574, 837 S.E.2d 300 (2019) (citation and punctuation omitted).

The evidence recounted above authorized the jury to find Mathews guilty of the felony murder of Reynolds and the aggravated assault of Larentae. Mathews acknowledges that Roger testified that Mathews fired a handgun, and appears to argue that this testimony establishes his guilt only as to the aggravated assault against Roger, because Mathews maintains that there is no evidence that he was the person who directly committed the crimes of felony murder of Reynolds or aggravated assault of Larentae. Mathews contends that the jury came to the same assessment of the evidence by finding him not guilty of malice murder. But we do not know the reasoning behind the verdicts the jury issued; the jury may have acquitted Mathews of malice murder not because the evidence failed to show that he fired a handgun, but because they thought he did not act with the requisite malice in doing so. See Collins v. State , 312 Ga. 727, 735 (3), 864 S.E.2d 85 (2021) ("[A] jury is clearly authorized to find a defendant guilty of felony murder even where it finds that a defendant did not possess the requisite ‘malice’ to sustain a malice murder conviction[.]"); see also Dugger v. State , 297 Ga. 120, 122-123 (4), 772 S.E.2d 695 (2015) (verdicts of guilty on felony murder and not guilty on malice murder are not necessarily inconsistent because a jury may find a defendant guilty of felony murder but find that he did not have the requisite malice to support a malice murder conviction).

Moreover, contrary to Mathews's claims, Roger's testimony was not that Mathews shot just at Roger. Instead, Roger said that Mathews fired in the direction of the victims. This was sufficient to support a conviction of aggravated assault as to Larentae. And even though the evidence is not clear as to whether it was...