Georgia case law updates and legal news
Edited By George Washington

The Atlanta Gleaner.

February 22, 2023.

Mahogany v. State, No. A22A1556, 2023 WL 1956907 (Ga. Ct. App. Feb. 13, 2023)
#criminal trials #hearsay #sequestration #gang violence #nobody move
Robert Jordan Mahogany was convicted of eleven counts of violation of the Georgia Street Gang Terrorism and Prevention Act (“the Gang Act”), four counts of armed robbery, three counts of aggravated assault, first degree home invasion and two counts of possession of a firearm during the commission of a felony. He appeals the denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred by admitting certain evidence. AFFIRMED.

The record shows in the evening of August 16, 2018, Terry Williams was at home playing cards with Reggie Scott, Perez Raiford, and Antonio Brooks when two males entered an exterior door that led into the room where the men were playing. One man was shorter and wore a mask over his face. The other man, later identified as Mahogany, was not wearing a mask, was young and tall with twists in his hair, had his head shaved on the sides and was brandishing a black handgun. 

Mahogany pointed the gun at the four men and told them to “give it up,” stating “y'all know what it is.” The victims emptied their pockets and put their money on the card table, and Mahogany collected it and fled with the other intruder.

Through their collective knowledge, the victims pinpointed Mahogany as the unmasked assailant, and Williams gave Mahogany's name to a detective. Less than two weeks after the home invasion, Williams, Scott, and Brooks identified Mahogany as one of the intruders from a photographic lineup.

Mahogany was arrested in October 2018. In a call from jail, Mahogany advised his girlfriend that Brooks told Mahogany's mother that Brooks was not going to appear in court. Mahogany's first trial ended in a mistrial after a prosecution witness inadvertently placed Mahogany's character in issue. In a pretrial hearing before the March 2020 trial, Investigator T. D. testified that he had been unable to locate Brooks, whose mother would not disclose his whereabouts.

At trial, Corporal L. O. of the Houston County Sheriff's Office was qualified as an expert witness in gang activity over Mahogany's objection. L. O. testified that the Bloods are a criminal street gang, and the G-Shine Bloods, a subset of the United Blood Nation, were active and present in Houston County. According to L. O., the Bloods use the letter “B,” and wear red. During L. O.’s testimony, the State introduced photos from Mahogany's Facebook page showing him, among other things, wearing red clothing, wearing a red bandana while holding a handgun, and flashing what L. O. testified were Bloods's hand signals. Mahogany's page had posts referencing “the Blood Gang,” “It's a Blood World B100, “GShine is that movement,” as well as photographs showing persons wearing red clothing and displaying Bloods's gang signs and captioned “Just Boolin,” Big B's Only 100,” B's BaBy. Videos from Mahogany's Facebook page showed him flashing “B” hand signals, wearing a red bandana, declaring “I'm G-Shine for real, I'm Shine for real,” pointing a black gun at the camera, and stating “You know I'm banging too, Blood.” L. O. testified that after reviewing the evidence, he surmised that Mahogany was a member or associate of the G-Shine Bloods gang and that Mahogany committed the invasion at Williams’ house to instill fear in the community, to maintain and increase his rank and reputation in the gang, and to further the gang's interests.

At the conclusion of the trial, Mahogany was found guilty of eleven counts of violation of the Gang Act, four counts of armed robbery, three counts of aggravated assault, first degree home invasion, and two counts of possession of a firearm during the commission of a felony. The trial court sentenced Mahogany to serve 30 years with the first 20 in prison. Mahogany moved for a new trial. The trial court denied the motion following a hearing. This appeal followed.

1. Sufficiency of the evidence. Mahogany contends that the evidence was insufficient to support his convictions. Court of Appeals disagrees and AFFIRMS.

Regarding the Gang Act convictions, the State had to prove

  1. that Montgomery was associated with G-Shine;

  2. that G-Shine was a “criminal street gang,” which is defined in OCGA § 16-15-3 (3) as “any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity”;

  3. that he committed aggravated assault and armed robbery, which are predicate acts identified in OCGA § 16-15-3 (1) (J)15; and

  4. that the commission of those offenses was intended to further the interests of G-Shine.

Here Corporal L. O.’s testimony and the photographs and video from Mahogany's Facebook page satisfied each of the aforementioned requirements.

Expert witness. Mahogany contends the trial court erred by allowing Corporal L. O. to testify as an expert witness in gang activity and to remain in the courtroom during trial. This enumeration is without merit.

(a) Qualifications. “A trial court has broad discretion in accepting or rejecting the qualifications of an expert. We will not disturb such rulings unless there is a showing that the trial court abused its discretion. A witness need not be formally educated in the field at issue to be qualified as an expert.”

Corporal L. O. testified that at the time of trial, he had been a criminal street gang intelligence officer for six years. He had taken several extensive gang investigation training courses throughout the country, had been a member of the Georgia Gang Investigator's Association for several years, taught several classes on gangs, instructed new hires at jails on gang trends and symbols, was a leader of the Houston County Gang Task Force, which shares intelligence on Georgia gangs, and had been consulted by local law enforcement agencies to assist with ongoing gang investigations.

The trial court did not abuse its discretion by qualifying him as a gang expert. “Any perceived weaknesses in his qualifications ... were matters of weight and credibility for the jury in evaluating his testimony.”

(b) Presence in courtroom during trial. Mahogany contends that the trial court committed reversible error when he permitted L. O. to remain in the courtroom during the trial over his objection. Nevertheless, a trial court is authorized to permit a witness, including law enforcement officers and experts, to remain in the courtroom during the trial.

Further, a violation of the sequestration rule affects only the weight and credibility of the witness’ testimony, not its admissibility. Although Mahogany could have sought to impeach the witness’ testimony based on his presence in the courtroom throughout trial, he did not do so. He cannot now claim that he is entitled to a new trial.

3. Hearsay.

(a) Mahogany argues the trial court erred by admitting Williams's hearsay testimony regarding Mahogany's Facebook posts. The record belies this assertion. Williams did not testify about Mahogany's Facebook posts in the presence of the jury. No error.

(b) Mahogany argues that the trial court erred by permitting a police officer to testify as to victim Brooks's unavailability and photographic lineup identification, which testimony Mahogany contends constitutes inadmissible hearsay. This enumeration presents no basis for reversal.

Prior to trial, Mahogany moved in limine to preclude police from testifying about Brooks's identification of Mahogany from a photo line-up. The State sought to introduce the identification through police officers based on the forfeiture-by-wrongdoing exception to the hearsay rule, relying on the testimony of Officer T. D., who detailed his unsuccessful efforts to locate Brooks, and Mahogony's trial testimony that Brooks told Mahogany's mother that Brooks would not be appearing in court. The trial court overruled Mahogany's objection and permitted the officers to testify regarding Brooks's identification of Mahogany.

Pretermitting whether the trial court erred by admitting the hearsay testimony regarding Brooks's identification of Mahogany, “it is highly probable that the admission of [such evidence] did not contribute to the verdict in light of the overwhelming evidence of [Mahogany's] guilt,” including Williams's and Scott's identification of Mahogany at trial and in a photographic lineup. Accordingly, the trial court did not err by denying Mahogany's motion for new trial on this basis.

4. Resentencing. In its response brief, the State contends that “the sentence may need to be vacated and the case remanded to correct a merger issue,” alleging that the trial court improperly merged four counts. “[B]ecause the State did not raise the issue by cross-appeal, and because correcting this sentencing error would be to [Mahogany's] detriment, we exercise our discretion not to address it.”

Judgment affirmed.

LONNIE LOVE, Plaintiff-Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant-Appellee., No. 22-13514, 2023 WL 2028230 (11th Cir. Feb. 16, 2023)
#insurance defense #policyholder non-compliance #coverage dispute #insurance adjusters are ruthless
Lonnie Love claims that robbers stole $137,000 of jewelry from his car, which they took during a gunfight in a strip-club parking lot. Love filed a claim with his insurance carrier, State Farm. 

In a series of follow-up letters, State Farm asked for numerous documents and an examination under oath to help it assess the claim. Love, thinking many of the requests burdensome and irrelevant, sat for the examination but only supplied some of the documents and never completed the follow-up paperwork. When State Farm—which never received the requested documents—failed to promptly pay the claim, Love sued for breach of contract.

State Farm sought summary judgment, arguing that Love's premature suit was itself a breach of the policy. It points to several provisions in the insurance contract to which Love agreed:

8. Examination Under Oath. You agree:

a. to be examined under oath and subscribe to the same as often as we reasonably require; ...

d. to produce such records as we may need to verify the claim and its amount, and to permit copies of such records to be made if needed.

9. Suit Against Us. No action will be brought unless: a. there has been compliance with the policy provisions

In State Farm's view, Love's failure to provide all the requested documents violated Condition 8 and his filing of the suit while violating Condition 8 was itself a violation of Condition 9. The district court agreed and granted summary judgment to State Farm.

On appeal, Love presents two arguments. First, Love argues that summary judgment is inappropriate because there is a genuine dispute about whether he violated Condition 8. Second, Love disputes the remedy. He claims that even if he sued too soon—before he complied with Condition 8—the remedy should be dismissal of his suit to allow him to satisfy the conditions rather than granting judgment on the merits of his contract claim.

Eleventh Circuit agrees with the district court and affirms summary judgment for State Farm.

Love claims that there is a genuine dispute about whether he breached the contract. In the alternative, he argues that State Farm's own bad faith precludes summary judgment even if he breached.

Love provided a police report, appraisals and photos related to some of the jewelry, and a sworn statement, and he sat for an examination under oath. But, as the district court explained, Love “does not appear to deny that he has failed to produce the majority of the documents” that State Farm requested: numerous financial records related to the purchase of the jewelry, the police inventory of the stolen car, information about a recent flight, and a signed errata sheet for his examination under oath. 

On appeal, Love argues that whether the records he failed to provide were “need[ed] to verify the claim and its amount”—as that phrase is used in Condition 8—is a jury question. He disputes the applicable Georgia law standard for measuring compliance.

Echoing the district court's reasoning, State Farm contends that Halcome v. Cincinnati Insurance Co., 334 S.E.2d 155 (Ga. 1985), does two important things: It (1) makes the focus whether any material information wasn't provided and (2) holds that this issue can be decided as a matter of law. Eleventh Circuit agrees.

The withheld documents here are, if anything, more material than the records in Halcome, which merely bore on the potential motive for the fraud. Here, for example, the financial documentation regarding Love's purchase of a “Band Ring” was necessary to establish that he ever owned an item that he claimed was stolen. This is important because State Farm had a reasonable basis to question whether he did. Love could not recall when or from whom he had purchased it. And the appraisal he provided didn't include his name. And as the district court held, other material requests went to determining the value of the jewelry and whether Love possessed it on the night it was stolen.

Love's failure to provide these records would not be fatal to his claim if he had a reasonable excuse. In Hines, we held that an insured's inability to provide documents because they had been destroyed by a fire was reasonable and that there was a jury question about whether the documents had been destroyed. But here, Love does not claim that the documents are unavailable. And he offers no excuse other than that he doesn't think that they are material.

Instead, Love points to Diamonds & Denims, Inc. v. First of Georgia Insurance Co., 417 S.E.2d 440 (Ga. App. 1992), whose language, he says, suggests that partial failures to provide information always give rise to a jury question regarding compliance. But Diamonds—a lower court case—explicitly distinguished Halcome—the controlling Georgia Supreme Court decision—on two bases, saying that Halcome didn't apply (1) when there was no suspicion of fraud and (2) when the records had been destroyed.

Unfortunately for Love, this case is like Halcome—not Diamonds—on both scores. There is no genuine dispute about whether Love failed to provide material requests to State Farm.

Love also relies on a second statement in Diamonds that “the insurer's failure to act with diligence and good faith in securing the necessary information also will preclude the grant of summary judgment to the insurer on the issue of the insured's compliance with policy prerequisites.” 

But the insurer's dilatory conduct must relate to the specific “necessary information” that constituted the breach. Love's claim is different. He isn't saying that State Farm somehow contributed to his failure to provide the requested information. Instead, Love objects that State Farm didn't continue processing his claim while it waited for his responses. But he points to no legal authority which would require that or otherwise suggest how it would excuse his breach.

The district court properly determined that there is no genuine dispute about (1) whether Love failed to provide material information and (2) whether Love's failure was unexcused. The district court, therefore, properly granted summary judgment to State Farm.

Love also argues that a dismissal without prejudice would be the appropriate remedy because even if he breached the contract, it isn't void. But he cites no authority explaining why a party who satisfies Rule 56's requirements for obtaining summary judgment isn't entitled to a judgment.

AFFIRMED.