Clemson v. State, s. 32242

• Citation: 239 Ga. 357,236 S.E.2d 663
• Decision Date: 28 June 1977
• Docket Number: 32243,Nos. 32242,s. 32242
• Court: Supreme Court of Georgia
• Parties: Malcom Taylor CLEMSON v. The STATE. Dana TAYLOR v. The STATE.

Page 663

236 S.E.2d 663

239 Ga. 357

Malcom Taylor CLEMSON v. The STATE.

Dana TAYLOR v. The STATE.

Nos. 32242, 32243.

Supreme Court of Georgia.

June 28, 1977.

Rehearing Denied July 14, 1977.

Leonard Cohen, Jonesboro, for appellants.

William H. Ison, Dist. Atty., John P. Quinlan, Asst. Dist. Atty., Jonesboro, Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Staff Asst. Atty. Gen., Atlanta, for appellee.

JORDAN, Justice.

Appellants Clemson and Taylor were tried jointly on indictments charging each of them with two counts of armed robbery, two counts of attempt to commit armed robbery, and one count of aggravated assault. Both were found guilty on all five counts and have brought separate appeals to this court. The six enumerations of error in each appeal are identical, and therefore we join the appeals for treatment in one opinion.

On July 25, 1976, at approximately 11:30 p. m. Tommy Lewis and Raymond Ward were walking along a road near Interstate Highway 75 in Clayton County, where an automobile containing five black males pulled up alongside of them. One of the occupants of the car produced a pistol and ordered Lewis and Ward to throw their money and wallets into the car. Before either victim complied with this order, a struggle erupted in the car, and at that point, Lewis ran. Approximately five shots were fired, one of them striking Lewis in the hip. The automobile sped away immediately, in the direction of I-75. Lewis described the automobile as "large" and "white." He did not know the model. Ward described the automobile as "blue" and as resembling a Cadillac. Lewis, nineteen, stated that the occupants were about his own age. Ward, 21, stated that some of the occupants were about his own age, and some were a little younger.

Only minutes after this incident occurred, Kevin Patton and Danny Gonzales were walking north along a southbound exit ramp of Interstate Highway 75, in Clayton, County, a short distance away from the Ward-Lewis incident. An automobile, again containing five black males, pulled up alongside of them. The occupants of the car produced two pistols this time and demanded that Patton and Gonzales give up their wallets. They also relieved Gonzales of a wristwatch before speeding away. Both Patton and Gonzales described the automobile as light-colored and similar in appearance to a Cadillac. Patton, 18, said that two or three of the occupants were adults, and that the others were 14 or 15 years old.

Appellants, along with three juveniles, were arrested shortly after the Patton-Gonzales robbery. The five of them were found riding in a 1970 Buick Electra belonging to appellant Clemson. A .22 calibre pistol was found under the front seat, and one of the juveniles was in possession of a wristwatch identical to the one taken from Danny Gonzales. Both Gonzales and Patton testified that the automobile in which the appellants were arrested appeared to be the same automobile used by the robbers.

1. Appellants first enumerate as error the denial of their pre-trial motion to sever the various counts of the indictment for separate trials. The five counts of the indictment charged the appellants with the attempted armed robbery of Tommy Lewis; the attempted armed robbery of Raymond Ward; the aggravated assault of Tommy Lewis; the armed robbery of Kevin Patton; and, the armed robbery of Danny Gonzales.

The motion for severance maintained that only the offenses of the attempted armed robbery and aggravated assault of Tommy Lewis should be tried together, and that each of the other counts should be tried separately.

The attempted armed robbery and aggravated assault of Tommy Lewis occurred simultaneously with the attempted armed robbery of Raymond Ward. Likewise, the armed robberies of Patton and Gonzales occurred simultaneously. The only question is whether the crimes against Lewis and Ward should have been severed from the crimes against Patton and Gonzales.

The question arises whether the crimes against Lewis and Ward and the crimes against Patton and Gonzales were joined merely because they were of the "same or similar character" or whether they were "based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." Dingler v. State, 233 Ga. 462, 463, 211 S.E.2d 752, 753 (1975). It is clear that where separate crimes are committed in order to accomplish a single criminal purpose, the crimes are said to constitute parts of a single scheme or plan, even if they are somewhat removed from one another in terms of time and place. See, e.g., Goughf v. State, 232 Ga. 178, 180, 181, 205 S.E.2d 844 (1974). The same is true of a continuing series of crimes committed against the same victim, Waites v. State, 238 Ga. 683, 235 S.E.2d 4 (1977); Jarrell v. State, 234 Ga. 410, 412(1), 216 S.E.2d 258 (1975). In Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975), we found no error where the defendant was tried in one trial for escape, armed robbery, rape, kidnapping and motor vehicle theft which constituted a continuous series of acts.

Here the crimes are not merely similar, but are nearly identical, and were separated by only a few minutes and a few miles and can be said to constitute a continuous series of acts. Clearly, there was more reason here for joining the offenses than simply that they were "of the same and similar character."

Under these circumstances, the decision to grant severance rests within the sound discretion of the trial judge, who may balance the interests of the state and the accused by considering such factors as whether the same evidence would be necessary and admissible in each case, and whether the joining of the counts in one trial might confuse the jury. Jarrell v. State, 234 Ga. 410(1), 216...