Wilson v. State

349 Ga.App. 386

825 S.E.2d 843

WILSON

v.The STATE.

A18A1826

Court of Appeals of Georgia.

March 12, 2019

Robert W. MacGregor, Katherine M. Mason, Lucy D. Roth, for appellant.

Natalie S. Paine, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

McMillian, Judge.

Scotty Wilson was convicted by a jury of armed robbery, burglary, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. The trial court denied his motions for new trial, and Wilson appeals from that order. For the reasons set forth below, we affirm in part, vacate in part, and remand to the trial court for further proceedings consistent with this opinion.

1. At the outset, we must address an all too common occurrence in criminal cases – extraordinary delay in post-conviction proceedings. Wilson's conviction was entered on May 12, 2004, and his timely motion for new trial was filed by his trial counsel on May 28, 2004. On December 5, 2005, a new attorney entered an appearance on behalf of Wilson. Several years passed before the trial court scheduled a hearing on the motion for new trial for September 16, 2008, and ordered that Wilson be produced by Augusta State Medical Prison for the hearing. However, the record does not reflect that a hearing took place at that time, and it appears that nothing else occurred in the case for nearly five more years until June 2013 when yet another attorney entered an appearance of counsel for Wilson. Hearings were then scheduled for May 2014, June 2014, October 2016, and November 2016, but the record does not reflect that these hearings were ever held either. The trial court finally held a hearing on January 31, 2017, over 12 years after the first motion for new trial was filed,¹ and it entered its order denying the motions nearly 14 years after the original motion was filed. This extreme delay is inexcusable, and once again we must admonish the bench and bar that

[t]his sort of extraordinary post-conviction, pre-appeal delay puts at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. It is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay. That duty unfortunately was not fulfilled in this case.

Robinson v. State , 334 Ga. App. 646, 647 (1), 780 S.E.2d 86 (2015).

2. Turning to the merits, viewed in the light most favorable to the verdict,² the evidence shows that on October 6, 2003, Barry Taber, Jr., Taber's girlfriend, Charles Joseph Johnson, and Wilson gathered at Katina White's residence. Wilson, Taber, and Johnson left White's home ostensibly to retrieve Johnson's clothes from his aunt's home. Taber drove the other men in his truck, following Johnson's and Wilson's instructions because he did not know where to go. Unknown to Taber, Johnson and Wilson had instead directed him to drive to the home of Johnson's acquaintance, Patrick Lay.

Lay was not home, and the men pried open Lay's back door and entered his home, and Wilson took a can of Coca-Cola. The men then left Lay's home and hid outside of his house waiting for him to return. When Lay arrived, the men, all wearing masks, approached him. Lay testified that one man, whom Taber later identified as Wilson, pointed a gun at him. Lay also testified that a different man, whose voice Lay recognized as Johnson's, yelled "[g]ive me all your money[,]" and Johnson took money from Lay's shirt pocket and billfold, totaling three hundred and sixty dollars. The men then fled to Taber's truck, and Taber drove them back to White's home. At White's home, Wilson split the money between the men, with Taber receiving one hundred dollars and Johnson receiving around one hundred and ten dollars. Taber's girlfriend testified that Taber told her about the robbery after she and Taber left White's home together, and White testified that Wilson, whom she was dating, told her about the robbery after Taber and his girlfriend left. Two days later, White reported the robbery to the Richmond County Sheriff's Office. Wilson was charged with and convicted of armed robbery, burglary, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. This appeal followed.

(a) Wilson argues that the trial court erred by admitting Taber's testimony about the crime without proving a conspiracy under former OCGA § 24-3-52, which stated that "the confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself." "However, [OCGA] § 24-3-52 [was] designed to protect a defendant from the hearsay confession of a co-conspirator who does not testify at trial." (Footnote omitted.) Brown v. State , 266 Ga. 633, 635 (2), 469 S.E.2d 186 (1996). This Court and the Supreme Court of Georgia "have repeatedly held that where the co-conspirator testifies at trial and is subject to cross-examination, the concerns of [OCGA] § 24-3-52 are satisfied and the Code section had no application." (Footnote omitted.) Id. Because Taber testified at trial, the Code section does not apply, and this enumeration is without merit.

(b) Wilson also argues that the trial court erred by admitting the hearsay testimony of Taber's girlfriend and White, even though they were not present at the crime. White's testimony that Wilson told her that he was involved in the robbery was admissible as an admission by a party-opponent against his penal interest. Stanford v. State , 272 Ga. 267, 270 (4), 528 S.E.2d 246 (2000). Additionally, for the reasons set forth in Division 2 (a), Wilson's argument that the trial court erred by allowing Taber's girlfriend's testimony that Taber told her about the crime without proving a conspiracy also fails because Taber testified at trial. Brown , 266 Ga. at 635 (2), 469 S.E.2d 186.

Nonetheless, if the girlfriend's testimony was inadmissible for reasons not argued by Wilson, it would nonetheless be cumulative of Taber's and White's testimony and its admission would have been harmless error. See Miller v. State , 325 Ga. App. 764, 772 (4) (c), 754 S.E.2d 804 (2014) ("The erroneous admission of hearsay is harmless where, as here, legally admissible evidence of the same fact is introduced. In such a case, the hearsay is cumulative and without material effect on the verdict.") (Citation and punctuation omitted.). Accordingly, this enumeration fails as well.

(c) Wilson further argues that Taber's testimony was insufficient to convict him of his crimes. We disagree.

When evaluating a challenge to the sufficiency of the evidence, we view all of the evidence admitted at trial in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.

McGruder v. State , 303 Ga. 588, 590 (II), 814 S.E.2d 293 (2018). This "limited review leaves to the jury the resolution of conflicts in the evidence, the weight of the evidence, the credibility of witnesses, and reasonable inferences to be made from basic facts to ultimate facts." (citation and punctuation omitted.) Id. See also Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Former OCGA § 24-4-8,³ applicable at the time of Wilson's trial, provided in part that in "felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient." (Citation omitted.) Lindsey v. State , 295 Ga. 343, 347 (3), 760 S.E.2d 170 (2014). "Thus, the State had to present the testimony of at least one other witness or evidence of such corroborating circumstances; however, the required additional evidence could be circumstantial, slight, and in and of itself, insufficient to warrant a conviction of the charged crime." Id.

Here, White's testimony that Wilson told her about his involvement in the robbery corroborated Taber's testimony and was admissible as an admission by a party-opponent against his penal interest. Stanford , 272 Ga. at 270 (4), 528 S.E.2d 246. Thus, the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Wilson was guilty of the crimes of which he was convicted. See Crawford v. State , 294 Ga. 898, 901 (1), 757 S.E.2d 102 (2014) (to corroborate an accomplice's testimony, the State must adduce "some independent evidence tending to show that the defendant himself was a participant in the crimes").

3. Wilson also asserts that the trial court erred by denying his motions for new trial as abandoned instead of ruling on the merits of his arguments that the verdict of the jury is contrary to evidence and the principles of justice and equity under OCGA § 5-5-20 and is contrary to the weight of evidence pursuant to OCGA § 5-5-21.⁴ We agree.

At the conclusion of Wilson's hearing on the motion for new trial,⁵ his attorney argued that because Taber's girlfriend's testimony and White's testimony was inadmissible hearsay, the only "true evidence" was Taber's testimony, which was insufficient to convict Wilson in the absence of the State showing a conspiracy between the parties. The trial court then directed Wilson to brief "these issues," within 15 days and directed the State to respond to Wilson's arguments. Wilson failed to brief the issues, and on March 2, 2018, the trial court entered an order denying the motion for new trial, finding in part that:

The Motion for New Trial was filed on May 28, 2004. The trial transcript was filed September 15, 2005. Twelve years later, counsel brought the defendant's motion for new trial on for hearing at which hearing counsel requested to argue the motion by written brief. The request was granted and counsel was directed to file the movant's brief within 10 days,

...