Davis v. State

• Decision Date: 26 June 1981
• Docket Number: No. 62131,62131
• Citation: 159 Ga.App. 356,283 S.E.2d 286
• Parties: DAVIS v. The STATE.
• Court: Georgia Court of Appeals

Page 286

283 S.E.2d 286

159 Ga.App. 356

DAVIS v. The STATE.

No. 62131.

Court of Appeals of Georgia.

June 26, 1981.

Rehearing Denied July 21, 1981.

Certiorari Denied Sept. 8, 1981.

Roger J. Dodd, Valdosta, for appellant.

H. Lamar Cole, Dist. Atty., Richard W. Shelton, Asst. Dist. Atty., for appellee.

QUILLIAN, Chief Judge.

The defendant was charged with four counts of armed robbery and one count of recidivism. He was convicted of three counts of armed robbery and the recidivist count. He brings this appeal. Held :

1. Counsel for the defendant moved to sever the four counts of armed robbery for trial. The motion was denied. The trial judge--citing Pass v. State, 227 Ga. 730 at page 731, 182 S.E.2d 779 stated that "the Supreme Court has indicated that the test is whether the interest of justice would be served by ordering separate trials. It's entirely discretionary with the trial judge..." We do not agree.

In Pass, supra, the Supreme Court was construing Code Ann. § 26-506(b) and (c) (CCG § 26-506(b)(c); Ga.L.1968, pp. 1249, 1267) which deals only with "several crimes arising from the same conduct..." (Emphasis supplied.) In the instant case the only apparent reason for joinder of four counts of armed robbery committed at different times and places, with different victims, was similarity of offenses.

Under Code Ann. § 26-506, a prosecutor, to avoid multiplicity of prosecution is required to prosecute in a single prosecution "all known crimes arising from the same conduct within the jurisdiction of the same court, subject to the right to severance by the court in the interest of justice." Jarrell v. State, 234 Ga. 410(1), 216 S.E.2d 258 (Emphasis supplied). However, "[w]henever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses." Dingler v. State, 233 Ga. 462, 463, 211 S.E.2d 752, (Emphasis supplied.) Accordingly, at issue is whether the offenses alleged arose from "the same conduct" or were "joined for trial solely on the ground that they are of the same or similar character."

"[O]ur appellate courts have equated the term 'conduct' with the term 'transaction' in a plethora of cases. [Cits.]." Trimble v. State, 156 Ga.App. 9, 10, 274 S.E.2d 10. These four robberies spanned a period of four weeks, involved four different victims, three different places, four different hours, and dissimilar methods of accomplishment in three of the cases. They do not appear to have arisen from the "same transaction." However, Dingler and its progeny command only that the defendant "has a right to a severance 'where the offenses are joined solely on the ground that [the offenses] are of the same or similar character'..." Coats v. State, 234 Ga. 659, 662, 217 S.E.2d 260; (Emphasis supplied). Thus, if there is a valid reason for joinder other than similarity of offense, then severance of offenses becomes discretionary with the trial court. For example, Haisman v. State, 242 Ga. 896, 900, 252 S.E.2d 397 stated that "[o]ffenses may also be joined for trial when they are based (1) 'on the same conduct' or (2) 'on a series of acts connected together' or (3) on a series of acts 'constituting parts of a single scheme or plan.' "

Thus, in Phillips v. State, 238 Ga. 616, 618, 234 S.E.2d 527, involving robbery of the same convenience store cashier twice within one month, the Supreme Court held: "In view of the fact that the charges against the [defendant] involve both the same store and a common victim, it was not error to refuse to order that they be severed." Again, in Clemson v. State, 239 Ga. 357(1), 236 S.E.2d 663 where two counts of robbery and two counts of attempt to commit robbery were joined, the court found "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. [Cit.] The same is true of a continuing series of crimes committed against the same victim. [Cits.]... Here the crimes are not merely similar, but are nearly identical... Clearly, there was more reason here for joining the offenses than simply that they were 'of the same or similar character.' " Hence, where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined--subject to the right of the defendant to a severance in the interests of justice. See McClesky v. State, 245 Ga. 108, 114, 263 S.E.2d 146; Hance v. State, 245 Ga. 856, 865, 268 S.E.2d 339.

In the instant case, Joan Gaskins testified that she was robbed while in charge of the Bemiss Road Holiday Market on May 28, 1980. It was about 8:30 a. m. and she saw a man with a stocking over his head and with a "nightclub, a nightstick" in his hand who demanded she "put money in the bag, some bags."

Kathy Montgomery, while working at the West Hill Avenue Holiday Market at 11:00 p. m. on June 5, 1980 went into "the cooler" and saw a black man with a gun. He asked her to "give him all the money...and he told [her] if I called the police he'd be back to blow my brains out." The gun had "a long barrel on it...it didn't look like a regular pistol."

Michael Shepherd testified that he was working at the Zippy Mart on June 22, 1980 at 10:20 p. m. when he saw a man walk around the counter "cocks the gun and points it at me and tells me to give it to him...Give it to me now...and he had my immediate attention." Shepherd gave him the bills from the cash register and the robber left. His pistol was "just a small pistol... It appeared to be a semi-automatic type." The robber had him get down on the floor until he left.

Janet McAllister was working at the Bemiss Road Holiday Market on June 23, 1980 between 9:30 and 10:00 p. m. when "a black guy jumped out of the cooler... and threatened to blow my head off...He told me to go up to the cash register and get some paper bags and put the money in a bag ... He told me to lay down on the floor until he got out of the store." The gun he used looked "like a magnum... It had a long barrel on it, short handle and long barrel."

In summary, only the first and fourth robberies were committed at the same store. The first robbery was so dissimilar that the defendant was acquitted. The robber at the Zippy market used a "small pistol...semi-automatic." The second and fourth robbers used a gun with a long barrel, and both used the cooler to surprise the clerk. Both robbers threatened to "blow my head off" or "blow my brains out..."

An analysis of the facts of the four robberies reveal that number one is dissimilar to the other three. Number three is not similar to the other three. Only two and four share sufficient common characteristics to indicate a correlative modus operandi.

This court has held that a three count indictment for receiving stolen property which occurred at different times and involved different property stolen from different persons "it is mandatory that the trial judge, upon motion of defendant, order separate trials for each of the crimes charged." Dingler v. State, 134 Ga.App. 223, 224, 214 S.E.2d 6; Accord: Buckles v. State, 137 Ga.App. 802(1), 225 S.E.2d 61.

In Ealey v. State, 139 Ga.App. 604(1) (229 S.E.2d 86), the defendant was indicted for a burglary in January 1975 but before he was brought to trial he was tried "on three separate occasions for other alleged burglaries and assaults." We held: "The three interim trials for burglary and assault involved different dates and transactions, requiring different proof; they were separate incidents not arising from the 'same conduct' within the meaning of Code Ann. § 26-506(b)." Id. Accord: Booker v. State, 231 Ga. 598 (1), 203 S.E.2d 194.

In Wigley v. State, 140 Ga.App. 145(1), 230 S.E.2d 108, the defendant moved for severance of a three count accusation charging him with drunk driving on June 29, July 13 and November 16, 1975, which was denied. "This was error. Where the counts have been joined solely on the ground that the offenses are of the same or similar character, the trial court has no discretion but to grant the motion." Id. Accord, Stone v. State, 155 Ga.App. 357(1), 271 S.E.2d 22.

It was error for the trial judge to fail to sever the first and third counts from trial of the second and fourth counts. It clearly appears that the sole reason for joinder of the first and third counts to trial of the second and fourth counts was similarity of offenses. A new trial must be granted. Dingler v. State, 233 Ga. 462, 211 S.E.2d 752, supra; Dingler v. State, 134 Ga.App. 223, 214 S.E.2d 6, supra; Buckles v. State, 137 Ga.App. 802, 225 S.E.2d 61, supra; Ealey v. State, 139 Ga.App. 604, 229 S.E.2d 86, supra; Wigley v. State, 140 Ga.App. 145, 230 S.E.2d 108, supra; Stone v. State, 155 Ga.App. 357, 271 S.E.2d 22, supra.

2. It is alleged that the trial court erred in denying defendant's motion to suppress evidence seized in a search of defendant's mobile home and automobile. Defendant argues that the supporting affidavit for the search warrant "does not describe with enough particularity the alleged 'victims' and other 'witnesses' which provide much of the information which served in the affidavit."

The affidavit shows the affiant, a detective sergeant, was investigating 6 armed robberies within the past few months. Each robbery was committed by a black male, with a short, stocky build and a mustache. The affiant stated that this description was given him by "[e]ach victim and five witnesses..." The last robbery was witnessed by "Ruby and Ellis Brown" who saw a short, stocky black male with a mustache, leave the convenience store after the robbery, enter a silver Ford Thunderbird, and turn onto Cat Creek Road. The affiant searched all mobile home parks on Cat Creek Road...