Anderson v. State

• Citation: 153 Ga.App. 401,265 S.E.2d 299
• Decision Date: 13 May 1980
• Docket Number: 58719,Nos. 58718,s. 58718
• Parties: ANDERSON v. The STATE. BONNER v. The STATE.
• Court: Georgia Court of Appeals

Page 299

265 S.E.2d 299

153 Ga.App. 401

ANDERSON v. The STATE.

BONNER v. The STATE.

Nos. 58718, 58719.

Court of Appeals of Georgia.

Argued Oct. 3, 1979.

Decided Jan. 23, 1980.

Rehearing Denied Feb. 12, 1980.

Certiorari Denied April 23, 1980.

Certiorari Denied in No. 58719 May 13, 1980.

James A. Elkins, Jr., Columbus, for appellant.

William J. Smith, Dist. Atty., for appellee.

CARLEY, Judge.

Appellants were indicted and tried jointly on a charge of robbery by force. They were found guilty and received ten-year sentences. Because the issues raised by both appellants are identical, their appeals are consolidated into this single opinion.

The state presented evidence that on October 28, 1978, the appellants approached a man in the parking lot of a motel, solicited him sexually, and that, when he declined their proposition, they attacked and disabled him by spraying a chemical irritant in his eyes and then removed money and a knife from his possession. Anderson then disappeared and Bonner was pursued to the motel office by the victim. The motel manager called the police but before they arrived Anderson drove up to the motel office, Bonner fled into the car and they drove away. They were apprehended a short time later.

Appellants' version of the incident was significantly different. Bonner testified she was a registered guest at the motel and that as she was leaving her room a man accosted her, she resisted and tried to escape. The man began to throw rocks at her. She sprayed the chemical in the face of the man and ran to the motel office for help. Anderson testified that on the night in question she was driving to a restaurant in the vicinity of the motel and saw her friend, Bonner, being attacked by the man. Anderson blew her car horn and saw Bonner run into the motel office. Anderson then drove up in front of the office and Bonner ran out to the car. Appellants testified that they were on the way to police headquarters to report the attack on Bonner when they were stopped and arrested.

1. Over appellants' objection, the motel operator was permitted to testify that on the night of the incident an unidentified person entered the office and told the witness "Hey, there's some trouble out there, a guy got mace sprayed in his face." It is urged that this testimony was hearsay and should have been excluded.

This testimony was admissible as part of the res gestae. Hill v. State, 17 Ga.App. 294(1), 86 S.E. 657 (1915); Haralson v. State, 234 Ga. 406, 407(3), 216 S.E.2d 304 (1975); Whitley v. State, 137 Ga.App. 68, 69(2), 223 S.E.2d 17 (1975). There was no error.

2. Appellants urge that error occurred when a witness for the state, a police officer, was permitted to testify, without a Jackson-Denno hearing, as to statements made to him by appellants. This enumeration is without merit. Defense counsel did not request a Jackson-Denno hearing. Hurt v. State, 239 Ga. 665, 670(4), 238 S.E.2d 542 (1977). Moreover, the trial court did determine what statements had been made to the witness by appellants and found that the statements were not confessions or admissions but merely voluntary statements to the witness, directing him "to get (his) goddamn hands off of (appellants), that they didn't do nothing." Thus, even assuming appellants had properly requested a Jackson-Denno hearing, no error is shown in the admission of their statements. Cf. Watson v. State, 227 Ga. 698, 182 S.E.2d 446 (1971).

3. Appellants enumerate as error the charging of the jury on conspiracy. It is urged that appellants were not indicted for conspiracy. that the state's evidence showed that both appellants had acted in concert, had committed and completed the act of robbery, and that on this evidence a charge on conspiracy was not warranted and constitutes reversible error. The arguments of appellants in this regard have been previously considered and rejected. "(W) here the evidence in a criminal case shows that two or more persons were concerned in the commission of an alleged crime, it is not harmful error for the trial court . . . to charge the jury on the law of conspiracy." Battle v. State, 231 Ga. 501, 202 S.E.2d 449 (1973). See also Thomas v. State, 242 Ga. 712, 717, 251 S.E.2d 294 (1978); Liggins v. State, 239 Ga. 452, 454(3), 238 S.E.2d 34 (1977). Also, "even if conspiracy is not alleged in an indictment, a charge upon the subject is not error if the evidence tends to show a conspiracy." Alexander v. State, 150 Ga.App. 41, 42, 256 S.E.2d 649, 651 (1979).

4. The trial court charged the jury that they were to determine if there was flight, that a defendant's flight was subject to explanation, that the jury was to consider whether or not they would draw an inference of guilt from flight, and that if the flight was due to some reason other than guilt no inference hurtful or harmful should be drawn. The evidence for the state showed appellants had fled from the scene of a crime; appellants had explained their flight by testifying they were fleeing from the scene of an attack on Bonner and on the way to police headquarters to report that attack when apprehended. The charge on flight was authorized by the evidence and proper. Montgomery v. State, 241 Ga. 396, 245 S.E.2d 652 (1978); Nair v. State, 236 Ga. 892, 226 S.E.2d 61 (1976). Appellants, relying on State v. Moore, 237 Ga. 269, 227 S.E.2d 241 (1976), further urge, however, that the charge was burden-shifting, requiring them to "explain" their flight or suffer the inference of guilt. We do not agree. A charge on flight and the inference of guilt which can arise therefrom absent an explanation is no more burden-shifting than a charge on the inference which arises from the recent possession of stolen goods absent an explanation. "Although it places some duty on defendant to go forward with the evidence, it does not shift from the State the ultimate burden of persuading the jury of his guilt beyond a reasonable doubt." Parrish v. Hopper, 238 Ga. 468, 469, 233 S.E.2d 161, 162-163 (1977). See also, Walters v. State, 128 Ga.App. 232, 236(5), 196 S.E.2d 326 (1973).

5. Bonner enumerates as error the trial court's permitting certain questions to be propounded to her by the state and compelling her to answer. Anderson urges that these questions addressed to her co-defendant were so prejudicial that she (Anderson) was also denied a fair trial.

Appellants first contend that error occurred when the state was permitted, over objection, to compel Bonner to answer the following question concerning an element of her version of the night's events: "Did you tell (defense counsel) about your roommate?" It is argued on appeal that requiring her to answer this question was violative of the attorney-client privilege. We note that communications between client and attorney are excluded from evidence for reasons of public policy. McKie v. State, 165 Ga. 210(3), 140 S.E. 625 (1927). Under Code Ann. § 38-419 these privileged communications "shall never be heard by the court" and when a possible violation of this confidentiality occurs this court will never view the circumstances lightly. However, in the instant case, while in no manner condoning the asking of this question by the state nor the trial court's compelling an answer, we find that no reversible error has been shown. When the question was put to appellant, defense counsel merely "objected" without further elaboration. The trial court overruled the objection, noting "she's on cross-examination." It is thus obvious that the trial court interpreted the bare objection as being addressed to the leading nature of the question. When the state again propounded the question to appellant, no further objection based upon the attorney-client privilege was raised. Indeed, the first mention of the possibility that the question sought privileged information apparently occurs in appellants' briefs on this appeal. On these facts, we hold that, in the absence of a proper objection grounded on the attorney-client privilege, no error is shown. Compare Braxley v. State, 17 Ga.App. 196(14), 86 S.E. 425 (1915); Miles v. State, 100 Ga.App. 614(2), 112 S.E.2d 237 (1959).

Appellants next urge that error occurred when the state was permitted to impeach, over objection, Bonner's testimony concerning the physical attack on her through cross examination about her failure to relate the exculpatory story before the recorder's court. If supported by the transcript, appellants' enumeration would be well taken. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The alleged error in this regard in the instant case occurred in the following manner: The state was cross examining Bonner concerning her failure to relate her story that the victim had assaulted her to the investigating officers prior to appellants' arrest. Bonner contended that she had tried to relate her story but the officers would not allow her the opportunity to say anything. Then, rather abruptly and inexplicably, the state asked Bonner: "You had counsel at your Recorder's Court hearing at the police station, is that correct?" Defense counsel then objected on relevancy grounds. This objection was overruled....