Baugher v. State
| Decision Date | 10 February 1994 |
| Docket Number | Nos. A93A1927,A93A1928,s. A93A1927 |
| Citation | 440 S.E.2d 768,212 Ga.App. 7 |
| Parties | BAUGHER v. The STATE (Two Cases). |
| Court | Georgia Court of Appeals |
David L. Cannon, Canton, for Anthony Baugher.
William A. Jordan, Woodstock, for Montgomery Baugher.
Garry T. Moss, Dist. Atty. and Cecelia V. Moutoux, Asst. Dist. Atty., for appellee.
Anthony and Montgomery Baugher, who are brothers, were each charged with one count of armed robbery, six counts of aggravated assault, and one count of false imprisonment. They were tried jointly and convicted. In Case No. A93A1927, Anthony Baugher appeals and in Case No. A93A1928, Montgomery Baugher appeals.
Evidence at trial was that on the night of February 3, 1991, the Battle Food Store in Cherokee County was robbed by two armed men. After both men entered the store, one man took employees Becky Pratt, Linda Connell, and Mark Shephard to the bread section of the store and forced them to lie down. Prior to obeying, Linda Connell activated a hidden silent alarm. The second man forced store manager Ronald Chapman to open the safe and remove money from it.
The men had a portable police scanner, which they listened to as they robbed the store. The robbers unsuccessfully attempted to lock the store doors. As customers Johnny Frazier, Jr., Paul Cummings, and Linda Bostar entered the store, they were apprehended and also forced at gunpoint to lie down. The gunmen fled when they heard that the police were coming.
Detective Richard Escher testified at trial that he responded to the robbery report on February 3, 1991. He discussed the incident with several witnesses and obtained descriptions from them of the robbers. With the witnesses' help, Escher prepared composite drawings.
The next night, Detective Escher received an anonymous tip concerning the identity of the armed robbers. The tipster identified the Baughers and identified the car they had used in the robbery as belonging to Paula Kellums. The tipster was later identified as Chad LeCroy. Subsequent to the relay of this information, on February 10, 1991, the Baughers and Sheila West were arrested at a hotel room the three were staying in.
Escher testified that following their arrest, several items of personal property were seized from their hotel room, which items were later identified by the victims. A Realistic brand police scanner, a green head cap, a green army jacket, and a brown and blue flannel jacket were seized. The clothes were identified as those which the men wore during the robbery.
Detective Escher testified that a photographic line-up was held on February 5, 1991, in which neither Baugher brother was identified. A second photo line-up was held on June 12, 1991, and Montgomery Baugher was identified by four of the witnesses. During the second line-up, no one was able to make a positive identification of Anthony Baugher, though one of the witnesses testified that she thought she recognized Anthony from the robbery.
Officer Richard Zimmerman of the Cherokee County Sheriff's Department testified. He stated that he had participated in the arrest. He testified that among the items seized that day was a police call book of radio frequencies which had been sold to Paula Kellums in December 1990. Zimmerman also identified a handwritten list of radio frequencies.
Officer Lawrence West of the Bartow County Sheriff's Department testified that the arrest took place after the vehicle matching the description of that used in the robbery, was reported to be in front of a hotel.
Several witnesses to the robbery testified regarding the events set forth above. Anthony Baugher was identified in court by three witnesses and Montgomery was identified in court by three witnesses.
William LeCroy testified that he knew Paula Kellums because she fenced items that he stole. He stated that it was Kellums' car which had been involved in the robbery. He recalled that the Baughers had also gotten the police scanner from Kellums.
LeCroy stated that on February 3, 1991, he went to a hotel room where Kellums was staying and that Anthony and Montgomery Baugher were in the room. Both men talked about the robbery of the Battle Food Store which they had just executed. LeCroy stated that Montgomery dyed Anthony's hair black and that Anthony wore Kellums' eyeglasses as part of the disguise.
Chad LeCroy, Williams' brother, also testified. He stated that he knew Kellums and that through her he met the Baughers. He stated that they told him about their robbery of Battle. The Baughers described the actions each man had taken in the robbery. LeCroy identified a hunting jacket which was found in the Baughers' hotel room as one he saw in their hotel room the night of the robbery.
The defense did not call any witnesses.
1. In his first enumeration of error, Anthony Baugher contends that the trial court erred by not granting his motion to sever parties. In particular, he claims: a) that the severance should have been granted because the introduction of Montgomery's statement violated the rule from Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); b) that the severance should have been granted because the evidence admitted against Montgomery created a spillover effect as to Anthony; and c) that the court erred by failing to exercise its discretion in the consideration of the motion in accordance with Uniform Superior Court Rules 3.1, 3.2 and 3.3.
(a) Anthony Baugher filed a motion to sever prior to trial. He argues that the trial court should have granted the motion because although he had not made any statements to the police, Montgomery gave a statement which also incriminated him. Citing Hicks v. State, 262 Ga. 756(1), 425 S.E.2d 877 (1993), Anthony claims that severance was mandated because of the prejudice which would arise from Montgomery's statement.
Detective Escher testified regarding the statement. He stated that after Montgomery was arrested and read his rights, he talked to him about the armed robbery. Montgomery stated that he had never hurt anybody and that "[b]esides the guns weren't loaded." Detective Escher stated: " After this statement, Montgomery invoked his rights and made no further statement.
Under these circumstances, the admission of Montgomery's statement did not violate the Bruton rule. "For the admission of a co-defendant's statements to constitute a Bruton violation ... the statements standing alone must clearly inculpate the defendant." (Citations and punctuation omitted.) Owens v. State, 193 Ga.App. 661, 662(3), 388 S.E.2d 712 (1989). Because the record shows that Montgomery's statement was not inculpatory of Anthony, the trial court did not err in admitting the statement into evidence.
(b) Anthony Baugher's second argument is that the severance should have been granted because of the "spillover" effect of a joint trial. He claims that the identification procedures and the testimony of the LeCroy brothers were confusing. He claims that the evidence against him was minimal and that he was convicted because of the evidence against his brother.
The trial court did not abuse its discretion in denying the motion for severance since "the appellants did not present antagonistic defenses, and virtually all of the evidence tended to show their joint guilt." See generally Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975). Saleem v. State, 169 Ga.App. 952, 954(2), 315 S.E.2d 487 (1984).
On the other hand, in this case, the evidence against Anthony Baugher was strong. In addition to other evidence, there were several in-court identifications of him; both sets of clothes that the robbers had worn and the police scanner radio were found with him and his brother; and both LeCroy brothers' testimony implicated Anthony in the robbery.
(c) Finally, Anthony claims that the judge who originally heard the motion to sever should have decided it and that his failure to do so violated Uniform Superior Court Rules 3.1, 3.2 and 3.3. Pretermitting the issue of whether this argument was properly preserved, it is without merit. The judge who presided over the motions hearing inquired as to the evidence against Anthony and was told that certain testimony implicated him. Because the expected evidence was not "concrete" enough, the presiding judge reserved ruling until trial.
At the beginning of the trial, the trial court stated that it would deny the motion to sever to the extent that it was based on the Bruton rule, but that it would reserve a ruling regarding the spillover effect "until such time that it might appear that it would be impossible for this Defendant to get a fair trial as the evidence develops." We find no error in the trial court's handling of the matter.
2. In his second enumeration of error, Anthony Baugher claims that the court erred by not granting his motion for mistrial for commenting on his silence. The alleged...
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