Cain v. State
| Decision Date | 10 March 1994 |
| Docket Number | Nos. A93A2470,A93A2472,s. A93A2470 |
| Citation | 212 Ga.App. 531,442 S.E.2d 279 |
| Parties | CAIN v. The STATE. COCHRAN v. The STATE. |
| Court | Georgia Court of Appeals |
William M. Warner, for Jermaine Cain.
J. Phillip Hancock, for Keith Cochran.
J. Tom Morgan, Dist. Atty., Robert M. Coker, Fran W. Shoenthal, Asst. Dist. Attys., for appellee.
Cain and Cochran appeal the judgments entered on their convictions of armed robbery, aggravated assault, and possession of a firearm during commission of a felony. Cain also appeals his conviction of kidnapping. The appeals are considered together.
Viewed in favor of the verdict, the evidence was that co-defendant Thomas 1 and Cochran had been dismissed from the Candler Road Winn Dixie Store in the summer of 1991, before the arrival of Manager Smith. Smith was familiar with the two men, however, and had specifically told Cochran to stay away from the store. On Friday evening, August 16, Smith noticed Cochran and Thomas enter the store around 9:30 or 10:00 p.m. He mentioned this to bookkeeper Howard, who was in the office in front of the store getting ready to tally the day's proceeds. She noticed both men, whom she knew, enter the store followed by two other men whom she did not recognize. The four walked single file across the lobby and went through a register line instead of going around, as intended.
Smith went after Thomas and Cochran and found them off the sales floor area near the motor room and storage room. Cochran was standing beyond the rest room and said he was waiting on Thomas. Because he had a "funny feeling," Smith thoroughly checked the motor room, but found no one. Although Smith was unaware of it because of his recent transfer to this store, there was an area referred to as "the hole" located near the motor room. This area was used by supervisors to monitor the entire stock floor from a cut out above the meat department. It measured about two-and-one-half by four feet and could accommodate two people. After Thomas exited the rest room, Smith asked Thomas and Cochran to leave the store and Howard saw them both in the exit area. The store closed at 11:00 p.m. After all other employees had left the store and the doors had been locked, Howard counted all the cash register tills and balanced the receipts. Because there was a mistake with some checks, the final tally took longer than usual. Smith and Coffey, the assistant manager, regularly stayed with Howard until she was finished.
As she was completing her tally around 12:30 a.m. (now August 17), she, Smith, and Coffey heard someone running down the aisle and shouting. They saw two males, one taller than the other and wearing a red Winn Dixie meat cutter's apron over his clothes and a hat. He was brandishing a .45 automatic pistol. The shorter man had a hooded sweatshirt on. One of them was wearing a "Ninja" mask.
The two men were shouting obscenities and ordered all three employees to lie on the floor of the small office, which they did. Howard surreptitiously took off her wedding rings and slipped them under a cabinet because she and her husband had promised to be buried in them. The man with the .45 pistol continued to threaten the three while the other man rifled the safe, removing a minimum of $1,500. Both Smith and Coffey had the pistol pressed to their heads while lying on the floor, and, while it was pressed against Coffey's, the slide was operated and a bullet placed in the chamber. During the entire episode, both robbers kept saying "one of you white m----- f------ is going to die," and asking who wanted to go first.
After emptying the safe and pilfering the wallets of Smith and Coffey, the three employees were forced at gunpoint to crawl down an aisle of the store toward the back. One of the robbers demanded something to tie them with and Coffey directed him to the extension cords. The three employees were then hogtied. At this point, Howard heard a comment about a "fine white a--," and one of the robbers demanded that she remove her slacks. She was fondled while other obscene comments were made until the other man said they did not have time "for this" and the two men left the store. The employees got loose and called police. All three employees were familiar with Thomas' and Cochran's voices and did not believe that they were the two robbers.
Detective Bumgardner received information from an unidentified informant which led him to Thomas on the evening of August 17. At that time, he and other officers went to Thomas' apartment in a complex located within walking distance of Winn Dixie. Before knocking on the door, Bumgardner heard whispering behind the door. Upon knocking, the door was opened by Thomas' wife, who was told the officers wanted to talk about her husband. She asked them into the apartment and told them her husband was at the mall and there was no one else in the apartment. The officers heard something hit the wall in a bedroom. Asked again if anyone else was in the apartment, she said Cochran was there. She consented to a search of the apartment and the officers found Cochran in the child's bedroom and Thomas in the closet in the master bedroom. Thomas gave a false name initially. When Thomas was removed from the closet, the officers recovered $201 in cash from underneath him, including a marked five from the Winn Dixie. Underneath the mattress they found another $311, which Thomas contended was rent money and not part of the robbery proceeds.
Prior to arresting Thomas and Cochran, Detective Bumgardner had interviewed co-defendant Cook. 2 Cook and Cochran gave statements to the detectives acknowledging that they and Thomas and Cain had discussed robbing the Winn Dixie for about three weeks beforehand. Cook and Cochran acknowledged participating in the robbery, but only as lookouts.
Thomas testified at trial and said that he, Cochran, Cook, and Cain went into the store together the evening of the robbery and he and Cochran were in the back area when found by Smith. While he did not see Cook and Cain enter the "hole," as they were leaving the store, Cochran told him they were "up in that store."
Thomas said he and Cochran were the lookouts and saw Cain and Cook exit the store and run into the woods where they were waiting. They counted the money in Thomas' apartment and it was more than $2,000. Thomas said he and Cochran each got $75 and that part of the money he was sitting on when caught was Cochran's.
Cain, who is 6' 5"' tall, testified in his own behalf and said that, on the evening of August 16, Thomas came to his apartment, located in the same complex, about 10:00 p.m. and asked if Cain was ready to rob the Winn Dixie, which they, along with Cook and Thomas, had been discussing for some time. While walking through the apartments, Cain said they ran into Jones, a friend of his, and told Jones they were going to hit the Winn Dixie. Cain testified that, at that point, because Jones advised him not to do it, he withdrew from the plan. Instead of robbing the store, he and Jones visited two girls elsewhere. Jones and Freeman, one of the girls, testified as alibi witnesses.
On August 12, 1991, the M & T Store, a convenience store, was robbed. The store is located in the same area as the Winn Dixie. According to Omeni, the clerk, around 5:30 p.m., two men walked into the store, one tall and bearing a gun. The shorter man stood by the door. The tall man pointed the gun at the clerk's face and said "M----- f-----, open that G-- d--- register." Although the man had a "wave cap," a stocking-like cap, pulled over his face, he removed it when the two ran out into the parking lot, and the clerk saw his face. The clerk was shown two photo spreads and identified Cain as the tall man with the gun and Cook as the one who blocked the door.
This crime and a similar act introduced against Cochran were originally included in the indictment but were severed from the Winn Dixie case on motions by Cain and Cochran. After pretrial notice and hearing pursuant to USCR 31.3, the court concluded that the incidents could properly be introduced as "similar transactions." Williams v. State, 261 Ga. 640, 641(2), 409 S.E.2d 649 (1991); see Parks v. State, 199 Ga.App. 736, 737(1), 406 S.E.2d 229 (1991).
Cain did file a motion in limine relating to the like act, but it alleged only that the State was attempting to circumvent the trial court's severance of the counts of the indictment alleging these crimes and that introduction of it would be "prejudicial." This latter objection is too vague and general to present any question for determination by the trial court or this one. Sultenfuss v. State, 185 Ga.App. 47, 49(4), 363 S.E.2d 337 (1987). As the court explained on the former issue, the severance was primarily granted to prevent unfairness to other co-defendants, who were not involved in these similar acts, and this would not impact the admissibility of the "similar transactions" evidence. During argument, Cain did raise the lack of similarity of the crimes under Williams, and we consider this.
Here, both the M & T and Winn Dixie robberies were committed by two males, one brandishing a pistol and using similar obscene language in his demands for money; both stores were located within a short distance of each other and close to the apartment complex where Cain and Cook resided; both were conducted without the use of any observed transportation, indicating the perpetrators arrived and left on foot. The evidence was properly admitted. Hickey v. State, 202 Ga.App. 636, 415 S.E.2d 60 (1992); Parks, supra; Lord v. State, 199 Ga.App. 814, 816(1a), 406 S.E.2d 137 (1991).
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