Riley v. State

356 Ga.App. 606

848 S.E.2d 474

RILEY

v.The STATE.

A20A1446

Court of Appeals of Georgia.

September 9, 2020

Richard Merritt, for Appellant.

Paul L. Howard Jr., Atlanta, Burke Olivia Doherty, Appellee.

Markle, Judge.

Following a jury trial, Coleman Riley was convicted of rape ( OCGA § 16-6-1 ), and giving false information to a law enforcement officer ( OCGA § 16-10-25 ), and was sentenced as a recidivist to life imprisonment. He now appeals from the denial of his motion for new trial, arguing that (1) the trial court erred in (a) sua sponte granting a new trial at the conclusion of his original trial; (b) not seeking a competency hearing; and (c) allowing evidence of similar transactions; (2) the evidence was insufficient to convict him; and (3) he was improperly sentenced as a recidivist.

After a thorough review of the record, we affirm.¹

Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the record shows that, in May 2013, the victim spent the evening at a friend's house, where she had been drinking. At some point, she left the house and was walking home when she encountered Riley, and they started talking. Riley offered the victim a beer, and she accepted, following him to his rooming house.

Once in Riley's room, the two began smoking drugs as Riley paced around the room. He started pulling at the victim's top expecting sex, saying, "well you done drunk my beer and smoked my stuff." The victim told him no and the two started to "tussle." The victim scratched Riley along his back and arms, and they both ended up on the mattress on the floor. During the struggle, the victim threw some condoms at Riley, which made him angry, and he threw her onto the bed, pinned her down, and removed her pants. He penetrated her vagina with his penis as the victim told him to stop. Afterward, Riley said, "I guess you're going to go back and tell now."

The victim was able to leave, found someone to help her, and was transported to the hospital. At the hospital, the victim spoke with police and gave a description of her attacker, and she later picked his photograph out of a lineup. The doctor who examined the victim found abrasions between her vagina and anus, consistent with the use of force, and noted that the victim stated she had been choked.

Based on the victim's account, an Atlanta police detective went to the rooming house where the victim said the attack occurred. There, he encountered a man matching the victim's description. When the detective asked the defendant his name, the defendant responded, "Tony Riley." The detective ran the name through the database and found no match. The defendant also gave the detective the names Tony Davis and Riley Coleman, with different birth dates and social security numbers. None of these names matched the database. The detective brought the defendant to the station, where fingerprints identified the defendant as Riley Coleman.

In his interview with police, Riley initially denied knowing the victim, and he stated he got the scratches on his arm from poison ivy.² He later admitted that he knew the victim and that he gave her $10 to buy drugs; they smoked the drugs together; and then he paid her $5 for sex. He explained that the victim scratched him when he refused to give her more money. Riley also admitted giving police a false name when he first encountered the officer at the rooming house.

Based on this attack, Riley was charged with rape and giving false information to a law enforcement officer. Following a four-day trial, the jury convicted him of both counts. However, at the conclusion of his initial trial, the trial court realized it had committed error when it permitted an employee of the district attorney's office to sit on the jury. The trial court initially stated that it intended to declare a mistrial, but later clarified that it could not grant a mistrial after the jury had rendered its verdict and, instead, sua sponte granted a new trial under OCGA § 5-5-40. The trial court then stated that the new trial would begin the following Monday, to which trial counsel responded, "fine."

At the second trial, the victim again testified to the attack. The State then called several women whom Riley had attacked in the past, as well as the police officers who investigated those prior incidents.³ The State also introduced Riley's prior conviction for rape and aggravated sodomy, as well as a prior indictment for aggravated assault and sexual battery. The first victim testified that, in 2012, Riley grabbed her breasts while she was at his apartment playing cards, and that, when she tried to leave, Riley grabbed her and placed his hands around her neck. As a result of this incident, Riley pled guilty to misdemeanor sexual battery.

The second victim testified that, in 1999, Riley grabbed her as she was walking to the train, offered her money for sex, and, after she agreed, Riley placed both hands around her neck, pushed her to the ground, and forced her to have sex. The third victim stated that, in 2004, she met Riley and agreed to smoke crack cocaine with him, but, as she went with him, he grabbed her around the neck, choked her, pulled her pants down, and forced her to perform oral sex before penetrating her vaginally. Riley was still on top of her when police arrived. Riley ultimately pled guilty to aggravated assault with intent to rape in connection with this attack.

At the close of the second trial, the jury again convicted Riley, and the trial court sentenced him as a recidivist to life imprisonment for the rape, with a concurrent 12-month sentence for giving false information to a law enforcement officer.⁴

Riley filed a motion for new trial, arguing that the trial court erred in granting the mistrial after the verdict in the first trial and ordering a new trial before the transcript was prepared; it was error to admit the similar transaction evidence; and trial counsel was ineffective in failing to seek a competency hearing.

At the motion hearing, Riley testified that he had spent time in a mental health facility, and trial counsel testified that she had not seen anything that would have supported a mental health defense. The trial court denied the motion for new trial, and Riley now appeals.

1. In his first enumeration of error, Riley argues that the trial court committed plain error when it declared a de facto mistrial after the jury's verdict in the first trial, and that he has been prejudiced as a result, especially due to the unavailability of the transcripts prior to his second trial. He asserts that this Court is not bound by the trial court's nomenclature, and can look at the substance of the trial court's order to determine that the trial court granted a de facto mistrial. He further contends that it was error to schedule the second trial to begin the following Monday, as opposed to placing it on the docket under OCGA § 5-5-48, and that this quick rescheduling confirms that the trial court granted a mistrial instead of a new trial. He argues that allowing the trial court's ruling to stand would essentially nullify the rule against a post-verdict mistrial. We are not persuaded.

It is well-settled that a trial court cannot grant a mistrial after the jury renders its verdict. State v. Sumlin , 281 Ga. 183, 184 (1), 637 S.E.2d 36 (2006) ; State v. Chapman , 322 Ga. App. 82, 83, 744 S.E.2d 77 (2013). But, OCGA § 5-5-40 (h) authorizes the trial court to sua sponte grant a new trial within 30 days from entry of the judgment.

Here, although the trial court initially stated that it would grant a mistrial due to the error of seating an improper juror, it ultimately recognized that it could not grant a mistrial post-verdict.⁵ The trial court then sua sponte granted a new trial.

Contrary to Riley's argument, there is no confusion about the trial court's actions. The nomenclature and the substance of the trial court's order are the same; the trial court exercised its authority under OCGA § 5-5-40 (h) to sua sponte grant a new trial. Chapman , 322 Ga. App. at 83, 744 S.E.2d 77.

Moreover, when the trial court announced its ruling, and scheduled the second trial to begin the following week, trial counsel responded that it was "fine." Having acquiesced to the decision, Riley cannot complain of it on appeal. Hornbuckle v. State , 300 Ga. 750, 756 (5), 797 S.E.2d 113 (2017) ; Robinson v. State , 299 Ga. 648, 651 (3), 791 S.E.2d 13 (2016) ("This matter has not been preserved for purposes of appeal. Because Robinson acquiesced in the trial court's action by voicing satisfaction with it, Robinson cannot complain about the trial court's ruling."). Regardless, Riley has offered nothing to show how he was prejudiced by the trial court's ruling or the prompt re-trial. Cf. OCGA § 5-5-50 ("The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.").

To the extent that Riley argues it was error to order a new trial without the benefit of the transcripts from the first trial, and that he was entitled to free transcripts to prepare for the second trial, he cannot show any harm or prejudice. A trial court may rule on a motion for new trial without the benefit of the transcripts. See OCGA § 5-5-40 (c) ; Holmes v. State , 180 Ga. App. 787, 788 (4), 350 S.E.2d 497 (1986) ; see also Uniform Superior Court Rule 41.1 (trial court may hear motion for new trial prior to preparation of transcripts). Moreover, a review of the transcript from the second trial shows that counsel was able to question witnesses about prior testimony to bring out any inconsistencies even without the benefit of the transcript from the first trial.

Finally, as to Riley's contention that the trial court erred in placing the new trial on the docket the following...