Dennis v. State
| Decision Date | 21 June 1993 |
| Docket Number | No. S93A0293,S93A0293 |
| Citation | 263 Ga. 257,430 S.E.2d 742 |
| Parties | DENNIS v. STATE. |
| Court | Georgia Supreme Court |
Ralph O. Scoccimaro, Brown and Scoccimaro, P.C., Albany, for Dennis.
Britt R. Priddy, Dist. Atty., Albany, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., Dept. of Law and Mary Beth Westmoreland, Asst. Atty. Gen., State Law Dept., Atlanta, for the State.
Lionel Bernard Dennis was convicted in Dougherty County Superior Court of felony murder, two counts of armed robbery, possession of a firearm by a convicted felon, possession of firearm during the commission of a felony, and possession of cocaine. 1 He was sentenced to twenty years for each armed robbery, five years for possession of a firearm by a convicted felon, life for felony murder, five years for possession of a firearm during the commission of a felony, all to run consecutively, and fifteen years for possession of cocaine. We affirm in part and reverse in part.
The evidence revealed the following facts. On March 23, 1991 the Pac-A-Sac convenience store in Albany, Georgia was robbed by a man with a gun. Later the same day, the owner of the Bottle Shop liquor store in Albany was shot to death by a man who also stole the cash register. The cashier at the Pac-A-Sac, Jackie Blackmon, recognized Dennis and identified him as the robber of that store after reviewing a ten-year-old high-school yearbook. A customer at the Bottle Shop, Tim Powers, who was in his truck in the parking lot when the robbery and murder at that store occurred, saw a man shoot the clerk and flee with the cash register. Powers identified Dennis as the perpetrator at trial. Dennis was arrested on March 28, 1991 based on Blackmon's identification, fingerprints found at the scene of the murder, and information from confidential informants. When asked where he was the night of the murder, Dennis gave several different stories. After Dennis's arrest, a urinalysis was administered at the Daugherty County Police station which resulted positive for cocaine.
1. When considered in the light most favorable to the verdict, we find that the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that Dennis is guilty of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Dennis argues that the second armed robbery conviction should be vacated because he cannot be convicted of both felony murder and the underlying felony. Stitt v. State, 256 Ga. 155, 157, 345 S.E.2d 578 (1986). We find that the conviction which must be vacated is the one for possession of a firearm by a convicted felon, as that crime was specified as underlying the felony murder charge in the indictment and in the court's instructions to the jury. While the verdict form does not specify which conviction the jury intended as the underlying felony, "in the absence of clear evidence to the contrary, qualified jurors, under oath, are presumed to follow the instructions ... of the trial court." Harris v. State, 202 Ga.App. 618, 620, 414 S.E.2d 919 (1992), see also Tatum v. State, 249 Ga. 422, 291 S.E.2d 701 (1982). Therefore, the conviction and sentence for possession of a firearm during the commission of a felony must be vacated. 2
3. Dennis argues that because the jury found him not guilty of the charge of possession of a firearm during the commission of a felony which followed the first armed robbery charge, and guilty of the armed robbery charge, the verdicts are inconsistent and, therefore, erroneous. Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). Accord, Milam v. State, 255 Ga. 560, 562, 341 S.E.2d 216 (1986), Smashum v. State, 261 Ga. 248, 249, 403 S.E.2d 797 (1991). This enumeration of error has no merit.
4. Dennis contends that the State failed to prove venue on the possession of cocaine charge, see OCGA § 17-2-2(a). The evidence is uncontroverted that Dennis was arrested in Dougherty County by the Dougherty County Police and that the positive test for cocaine was administered shortly after the arrest at the Dougherty County Police Department. We find the above evidence sufficient to show "beyond a reasonable doubt that [the crime] might have been committed" in Dougherty County, OCGA § 17-2-2(h). See also Green v. State, 260 Ga. 625, 626, 398 S.E.2d 360, cert. denied, 500 U.S. 935, 111 S.Ct. 2059, 114 L.Ed.2d 464 (1991).
5. Dennis claims that certain evidence was admitted at trial in violation of OCGA § 17-7-211 and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). Dennis has the burden of showing that evidence was withheld, and "that the evidence withheld from him so impaired his defense that h...
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