SECOND DIVISION BARNES, P. J., MILLER, and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
January 14, 2014
In the Court of Appeals of Georgia A13A2476. COLEMAN v. THE STATE.
BARNES, Presiding Judge.
Jemal David Coleman and a co-defendant were jointly tried for the robbery of
a bank. The jury found Coleman guilty of the charged offense, and the trial court
denied his motion for new trial. On appeal, Coleman challenges the sufficiency of the
evidence. Coleman further contends that the trial court’s charge to the jury on
impeachment of a witness by a prior conviction amounted to an improper comment
on the evidence; that the trial court erred in allowing the State to introduce into
evidence the statement of his non-testifying co-defendant in violation of his Sixth
Amendment right of confrontation; and that the trial court abused its discretion in
denying his motion to sever his trial from that of his co-defendant. For the reasons
discussed below, we affirm.
Construed in favor of the verdict, the evidence showed that on the morning of
May 18, 2010, a man later identified by bank employees as Coleman entered the Bank of North Georgia in Paulding County. He was wearing a dark hat, sunglasses, and a
jacket that was “zipped all the way up to his neck.” Coleman approached one of the
tellers and placed a note on the counter in front of her that read, “Put money in the
bag. Don’t push any buttons.” He then folded up the note and threw a black bag onto
the counter. The teller placed over $5,000 in the bag, and Coleman left the bank with
the money.
Unbeknownst to Coleman, when placing the money in the bag, the teller also
included a “track pack.” The track pack was a set of bills that had a portion cut out
of them into which a Global Positioning System (“GPS”) tracking device had been
embedded. When the track pack was removed from the teller’s cash drawer, it
sounded an alarm to a 911 call center and began transmitting information about the
location of the device.
After the teller removed the track pack from her drawer, the 911 call center
began monitoring the movement of the device and relaying the information about the
location of the signal to a police dispatcher. The signal led the police down Interstate
20, Six Flags Drive, and ultimately to an apartment complex in Fulton County, where
they found an empty car with its headlights on and the engine still running. When a
2 police investigator with a handheld beacon for tracking the signal approached the car,
the device emitted the strongest signal near the trunk.
Co-defendant Vernon Keith McDougald was standing nearby watching the
police. When the investigator went over to the car with the handheld beacon,
McDougald approached him, said that the car belonged to his mother, and asked what
was going on. The investigator had another officer remove McDougald from the
immediate vicinity of the car. The investigator then looked in the trunk of the car and
saw the black bag containing the money and track pack. The serial numbers on the
money matched the serial numbers of the money stolen from the bank. The police also
performed a sweep of the apartment complex, where Coleman was discovered hiding
on the floor of an apartment unit where he did not live or know the tenants.
The police arrested McDougald and Coleman for the robbery of the bank. A
cell phone discovered on McDougald at the time of his arrest showed two phone calls
between McDougald and Coleman earlier that morning approximately one hour
before the robbery.
On the day of his arrest, McDougald consented to a police interview after being
advised of his rights. In the recorded interview, McDougald admitted to the detectives
that the car containing the stolen money belonged to his mother and that he had
3 driven the car on Interstate 20, on Six Flags Drive, and in the apartment complex on
the morning of the robbery. McDougald also told the detectives that he knew
Coleman because his girlfriend was Coleman’s niece.
A detective later prepared photographic lineups that included a picture of
Coleman for bank employees to review. The teller who had placed the money in the
bag identified Coleman as the man who had given her the note and taken the money.
Upon identifying Coleman as the bank robber, the teller told the detective that “she
was 100 percent sure.” A second teller who had observed the bank robbery also
identified Coleman as the robber in a photographic lineup.
McDougald and Coleman subsequently were tried together for the robbery after
the trial court denied Coleman’s motion for a severance. The teller who had been
approached by Coleman and who placed the money in the bag testified to the events
as set out above and positively identified Coleman as the robber. She further testified
that upon being approached by Coleman, her “breathing changed” and she was “very
scared” because she was not sure if he had a gun. According to the teller, she thought
she “would be hurt or one of [her] coworkers would be hurt” if she did not comply
with Coleman’s demands.
4 The second teller who had witnessed the bank robbery also testified and
positively identified Coleman as the robber. The 911 call center worker who
monitored the location of the track pack and the officers and detectives involved in
the case testified as well. Additionally, the bank robbery had been captured on the
bank’s video-surveillance cameras, and the State introduced surveillance footage and
still photographs taken from the footage.
Over objection from Coleman, the State also introduced into evidence and
played for the jury three video clips from the recording of McDougald’s police
interview in which McDougald made the statements about the car and about Coleman
that were previously discussed. The trial court later charged the jury that an out-of-
court statement by one defendant could only be considered as evidence against that
defendant.
McDougald elected not to testify. In contrast, Coleman took the stand and
testified that McDougald had dated his wife’s niece. Although he denied involvement
in the bank robbery, Coleman testified that McDougald had picked him up in the car
on the day of the robbery, that he ultimately had “jumped out of the car because there
[were] cops all over the place” and he “was on parole,” and that he had fled “inside
an apartment of people [he didn’t] know” before the police found him. Coleman
5 further testified that McDougald had called him on the morning of the robbery and
that he had called McDougald back that same morning, and that both calls occurred
approximately one hour before the robbery. Moreover, Coleman testified that he had
previously pled guilty to robbery in New York, where he had committed eight or nine
robberies over a span of about three months. According to Coleman, he had been
incarcerated for 12 years, and he had been out of prison for less than a year when the
bank robbery occurred in this case.
After hearing all of the evidence, the jury convicted Coleman of robbery and
McDougald of the lesser-included offense of theft by taking. Coleman filed a motion
for new trial, which the trial court denied. This appeal followed.
1. Coleman contends that there was insufficient evidence to convict him of the
robbery of the bank. His contention is without merit.
Following a criminal conviction, the defendant is no longer presumed innocent,
and we view the evidence in the light most favorable to the jury’s verdict. Sidner v.
State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). We do not weigh the evidence
or assess the credibility of the witnesses. Id. Instead, we apply the standard set forth
in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979) and “determine only whether, after viewing the evidence in the light most
6 favorable to the prosecution, a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” (Citation and punctuation
omitted.) Sidner, 304 Ga. App. at 374.
OCGA § 16-8-40 (a) (2) provides that
[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another[.]
The indictment alleged that Coleman committed robbery in that, with the intent to
commit theft, he took United States currency belonging to the Bank of North Georgia
from the person or immediate presence of the teller “by intimidation, and by placing
[the teller] in fear of immediate serious bodily injury to herself or another.”
The teller’s testimony, including her identification of Coleman as the robber
and her description of being very scared, was sufficient, standing alone, to establish
the essential elements of the offense of robbery beyond a reasonable doubt. See
Thomas v. State, 322 Ga. App. 734, 736 (2) (a) (746 SE2d 216) (2013). See Muckle
v. State, 307 Ga. App. 634, 637 (1) (a) (705 SE2d 721) (2011) (eyewitness testimony
was sufficient by itself to sustain conviction). And while Coleman testified that he did
7 not rob the bank,”it was the role of the jury, not this Court, to assess the credibility
of the witnesses and decide whose testimony to accept or reject.” Muckle, 307 Ga.
App. at 638 (1) (a). Accordingly, based upon the evidence set forth above, Coleman’s
robbery conviction was authorized under the standard of Jackson v. Virginia, 443 U.
S. at 319 (III) (B). See Thomas, 322 Ga. App. at 736 (2) (a).
2. Coleman also contends that the trial court’s charge to the jury on
impeachment of a witness by a prior conviction amounted to an improper comment
on the evidence. We disagree.
The trial court charged the jury on several aspects of impeachment, including
the following:
To impeach a witness is to prove that the witness is unworthy of belief. A witness may be impeached by, (A), disproving the facts to which the witness testified; (B), by proof that the Defendant Jemal Coleman has been convicted of the offense of Robbery in the First Degree in the State of New York; or (C), by proof of contradictory statements previously made by a witness about matters relevant to the witness’s testimony and to the case.
(Emphasis supplied.) Also as part of its charge on impeachment, the trial court
informed the jurors that “[i]t is for you to determine whether or not a witness has been
impeached and to determine the credibility of such witness and the weight the
8 witness’s testimony shall receive in consideration of the case.” Later in its charge, the
trial court further stated that “by no ruling or comment that the court has made during
the progress of this trial has the court intended to express any opinion whatsoever
upon the facts of this case, upon the credibility of the witnesses, upon the evidence,
or upon the guilt or innocence of the defendants.” Coleman did not object to the
charge on impeachment during the charge conference or after the trial court
completed its charge to the jury.
Coleman argues that by naming him and describing his prior conviction in its
charge on impeachment of a witness by a prior conviction, the trial court “told the
jury [that he] had, in fact, been convicted of the New York offense and it should be
used as a basis for disbelieving him and inferring his guilty in the present case.” As
such, Coleman argues that the trial court’s charge constituted an impermissible
expression of opinion regarding what had been proven in the case and thus was
reversible error under OCGA § 17-8-57.
“It is error for any judge in any criminal case, during its progress or in his
charge to the jury, to express or intimate his opinion as to what has or has not been
proved or as to the guilt of the accused.” OCGA § 17-8-57. “Even if defense counsel
fails to raise an objection, if the trial court violates this statutory provision, we are
9 required to order a new trial, and there can be no finding of harmless error.”
(Citations and punctuation omitted.) Booker v. State, 322 Ga. App. 257, 259 (1) (744
SE2d 429) (2013). See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010);
Sauerwein v. State, 280 Ga. 438, 439 (2) (629 SE2d 235) (2006).
In this case, the trial court’s charge on impeachment of a witness by a prior
conviction was not an impermissible expression of opinion because the fact that
Coleman had been convicted of Robbery in the First Degree in New York was
undisputed and never contradicted by any evidence.
It is true that OCGA § 17-8-57 is violated when the court’s comment assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. Courts of this State have always recognized, however, that a statement by a trial court concerning a fact that is uncontested or is not in dispute does not constitute a violation of this statute.
(Citations and punctuation omitted.) Rolland v. State, 321 Ga. App. 661, 665 (1) (a)
(742 SE2d 482) (2013). See Sauerwein, 280 Ga. at 439 (2). See also Thomas v. State,
27 Ga. App. 38, 40 (107 SE 418) (1921) (statute prohibiting expressions of opinion
by trial court “refers to the expression or intimation of an opinion touching some fact
at issue in the case, and not to something that is conceded by both parties”) (citations
10 and punctuation omitted). Therefore, “when the evidence to establish a fact is
undisputed, and the fact is admitted by the accused on his trial, it is not error for the
judge to assume such fact in formulating appropriate instructions to the jury.”
McCloud v. State, 166 Ga. 436, 444 (143 SE 558) (1908).
Coleman expressly admitted during his testimony at trial that he had previously
pled guilty to robbery in New York, where he had committed eight or nine robberies
over a span of about three months. Later, during the charge conference, Coleman’s
counsel expressly stated that the defense did not object to a charge on impeachment
by prior conviction and never disputed that “New York calls it Robbery in the First
Degree.” Under these circumstances, Coleman’s prior conviction for Robbery in the
First Degree in New York was undisputed, and thus the trial court’s charge on
impeachment was not an impermissible expression of opinion regarding what had
been proven by the evidence. See Branscomb v. State, 272 Ga. App. 700, 701 (1) (613
SE2d 222) (2005) (trial court’s questioning of defendant regarding his prior guilty
plea did not constitute impermissible expression of opinion because “the trial judge’s
questioning of [the defendant] concerned facts that were not disputed by [the
defendant].”) Compare Byrd v. State, 307 Ga. App. 589, 592 (705 SE2d 690) (2011)
(trial court’s comment that venue had been proven constituted improper expression
11 of opinion, when “at the time the court made its comment[], the record shows that
venue was still contested”).
We likewise reject Coleman’s argument that the trial court violated OCGA §
17-8-57 because the charge on impeachment of a witness by a prior conviction
“express[ed] an unfavorable opinion of [his] credibility” and “essentially told the jury
the only inference they could draw” was that he was guilty of the bank robbery in this
case. It is well established that “jury instructions must be read and considered as a
whole in determining whether the charge contained error.” (Citation and punctuation
omitted.) Hines v. State, 320 Ga. App. 854, 865 (5) (b) (740 SE2d 786) (2013). Taken
as a whole, the trial court’s charge on impeachment did not require the jury to
disbelieve Coleman’s testimony based on proof of his prior New York conviction.
Rather, the trial court charged jurors that Coleman “may be impeached” by his prior
New York conviction and that it was for them to determine whether any given witness
had been impeached, whether the witness was credible, and what weight to assign the
witness’s testimony. The trial court further charged jurors that none of its comments
had been intended to express an opinion regarding the credibility of the witnesses or
the guilty or innocence of the defendants. Thus, taking into account the jury charge
as a whole, we discern no violation of OCGA § 17-8-57.
12 3. As previously noted, the trial court admitted into evidence the portions of the
statement that co-defendant McDougald made to the police in which he stated that the
car in which the stolen money was found belonged to his mother, that he had been
driving the car on the day of the bank robbery, and that he knew Coleman because his
girlfriend was Coleman’s niece. The trial court thereafter charged the jurors that an
out-of-court statement by one defendant could only be considered as evidence against
that defendant. Because McDougald elected not to testify at trial, Coleman contends
that the introduction of McDougald’s out-of-court statement, which was redacted in
part but still included the reference to Coleman, violated his Sixth Amendment right
of confrontation under Bruton v. United States, 391 U.S. 123 (88 SCt 1620, 20 LE2d
476) (1968). Again, we disagree.
Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has the right to confront witnesses against him and to cross-examine them. Generally, when a jury is instructed that certain testimony or evidence may only be considered against a co-defendant, the jury is presumed to follow the court’s instruction and the testimony or evidence is not considered to be “against” the defendant. In Bruton, however, the Supreme Court [of the United States] recognized a narrow exception to this principle, by holding that when a facially, powerfully incriminating statement of a non-testifying co-defendant is presented to the jury, the risk is so great the jury will ignore the limiting instruction
13 and consider the co-defendant’s confession against the defendant that the general rule cannot be followed. The Court thus held that the introduction of such statements, even with a limiting instruction, violates the defendant’s right of confrontation.
In contrast to cases involving powerfully incriminating statements of a co-defendant, the Supreme Court [has] stated that when a co-defendant’s statement does not directly incriminate the defendant and the jury is required to draw inferences to connect the statement to the defendant, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.
In accordance with the latter principle, [the Supreme Court of Georgia has] held that Bruton only excludes statements by a non-testifying co-defendant that directly inculpate the defendant, and that Bruton is not violated if a co-defendant’s statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial.
(Punctuation and footnotes omitted.) Moss v. State, 275 Ga. 96, 98 (2) (561 SE2d
382) (2002). See Richardson v. Marsh, 481 U.S. 200, 206-208 (II) (107 SCt 1702, 95
LE2d 176) (1987); Dulcio v. State, 292 Ga. 645, 649 (2) (740 SE2d 574) (2013).
We conclude that the trial court did not err under Bruton by admitting portions
of McDougald’s statement to the police. The only reference in the police statement
14 to Coleman was when McDougald indicated that he knew Coleman because his
girlfriend was Coleman’s niece. But that reference, standing alone, did not directly
inculpate Coleman; rather, it became incriminating only when linked with other
evidence presented at trial. Because McDougald’s statement was not “facially,
powerfully incriminating” of Coleman, we presume that the jury followed the trial
court’s limiting instruction and only considered the statement as evidence against
McDougald. (Citation and punctuation omitted.) Moss, 275 Ga. at 98 (2). It follows
that McDougald’s out-of-court statement was not “against” Coleman and therefore
did not violate the Confrontation Clause. See id. See also Daniel v. State, 285 Ga.
406, 408 (3) (b) (677 SE2d 120) (2009); Thomas v. State, 268 Ga. 135, 137-138 (6)
(485 SE2d 783) (1997).
4. Lastly, Coleman contends that the trial court erred in denying his motion to
sever his trial from that of McDougald. We are unpersuaded.
Whether to grant a severance is a matter within the trial court’s discretion.
Heard v. State, 274 Ga. 196, 199 (5) (552 SE2d 818) (2001).
When exercising its discretion, the trial court should consider factors such as: 1. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be
15 considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other’s rights?
(Footnote omitted.) Ham v. State, 303 Ga. App. 232, 241 (5) (692 SE2d 828) (2010).
See Daniel v. State, 285 Ga. 406, 407-408 (3) (677 SE2d 120) (2009). “The burden
is on the moving party to make a clear showing of prejudice and a denial of due
process in the absence of severance.” Ward v. State, 288 Ga. 641, 644 (3) (706 SE2d
430) (2011).
Coleman has failed to carry his burden in this case. He essentially challenges
the trial court’s determination on the second factor, i.e., “danger that evidence
admissible against one defendant will be considered against another despite the
admonitory precaution of the court.” (Footnote omitted.) Ham, 303 Ga. App. at 241
(5). In this regard, Coleman argues that McDougald’s out-of-court statement to police
would not have been admissible if he had been tried separately, which would have
eliminated the risk of the jury improperly considering the statement as evidence
against him. However, as noted supra in Division 3, the introduction of McDougald’s
statement in the joint trial did not constitute a Bruton violation. Thus, we presume
that the jury followed the trial court’s limiting instruction and only considered the
16 statement as evidence against McDougald. Because McDougald’s statement could be
introduced in the joint trial without posing a Bruton problem, the trial court did not
abuse its discretion in denying Coleman’s motion to sever. See Ham, 303 Ga. App.
at 243 (5) (a).
Judgment affirmed. Miller and Ray, JJ., concur.