Duffy v. State, s. 60648
| Decision Date | 19 December 1980 |
| Docket Number | Nos. 60648,60649,s. 60648 |
| Citation | 156 Ga.App. 847,275 S.E.2d 658 |
| Parties | DUFFY et al. v. The STATE. BATES v. The STATE. |
| Court | Georgia Court of Appeals |
R. Michael Key, LaGrange, for appellants. (In No. 60648).
Franklin H. Thornton, LaGrange, for appellant (in No. 60649).
William F. Lee, Jr., Dist. Atty., for appellee.
Kenneth Duffy, Roy Perkins and Philip Bates appeal following their convictions for armed robbery and aggravated assault.
1. Appellants contend that the trial court erred in failing to grant their motions to sever. Under Code § 27-2101 "... for a felony less than capital, or for a misdemeanor, defendants may be tried jointly or separately in the discretion of the trial court." The trial court's ruling will not be overturned except for an abuse of discretion. Mathis v. State, 231 Ga. 401, 202 S.E.2d 73 (1973). At the hearing on his motion, the defendant bears the burden of making a clear showing of prejudice and a resulting denial of due process, and the trial court in exercising its discretion should consider: Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856 (1975).
We do not find that the number of defendants created confusion. All were charged with the same offenses and we do not believe that the jury could be confused as to the evidence and the law applicable to each. Appellants contend that they were deprived of a fair trial, however, because the state introduced statements made by all three defendants which mentioned the co-defendants. The trial court determined that the statements were voluntarily made and admissible and charged the jury that the statement was not to be considered as evidence against a co-defendant and that the statement could not even be considered against the defendant who made it until it was first determined that the statement was freely and voluntarily given. We find that the court's instructions to the jury were very clear and that confusion did not arise. There were no antagonistic defenses. None of the defendants testified or presented evidence on his own behalf. Clearly, all three were relying on the presumption of innocence.
2. The trial court did not err in overruling appellants' motions to suppress evidence seized following their arrest because the arrest was not illegal. " '(T)he constitutional validity of the arrest without a warrant depends "upon whether, at the moment the arrest was made, the officers had probable cause to make it whether at that moment the facts and circumstances within their knowledge and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing that the (defendant) had committed or was committing an offense. " Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142). " In dealing with probable cause, ... as the very name implies, we deal with probabilities. They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. " Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. There is also a great "difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search. " Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 331, 332, 3 L.Ed.2d 327. As Judge Learned Hand said in United States v. Heitner, 149 F.2d 105, 106 (C.A.2d Cir.): "It is well settled that an arrest may be made upon hearsay evidence; and indeed, the 'reasonable cause' necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties. " ' Peters v. State, 114 Ga.App. 595, 596, 152 S.E.2d 647." Lynn v. State, 130 Ga.App. 646, 204 S.E.2d 346 (1974).
In the present case, the robbery and assault occurred around midnight and the arresting officer was notified about 1:30 a. m. and was informed by the victim that he had been robbed and assaulted. The owner of the place where the robbery occurred and another person who was present on the premises but did not witness the incident gave the officer the names of the appellants as the persons who were believed to have committed the crime and described the vehicle in which the suspects were traveling. The officer searched for the men and found them about 2:00 a. m. in the described automobile. He stopped them and when one of the men got out of the vehicle the officer observed blood on his pants. "An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant." Code Ann. § 27-207(a)....
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...Evans v. State, 162 Ga.App. 78, 290 S.E.2d 176 (1982); Starr v. State, 159 Ga.App. 386, 283 S.E.2d 630 (1981); Duffy v. State, 156 Ga.App. 847(2), 275 S.E.2d 658 (1980); Butts v. State, 149 Ga.App. 492(2), 254 S.E.2d 719 "The Fourth Amendment does not require a policeman who lacks the preci......
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Smith v. State, S06A1451.
...165 Ga.App. 333, 334(1), 299 S.E.2d 891 (1983); Starr v. State, 159 Ga.App. 386, 387, 283 S.E2d 630 (1981); Duffy v. State, 156 Ga.App. 847, 848(2), 275 S.E.2d 658 (1980). "An investigative detention usually must `last no longer than is necessary to effectuate the purpose of the stop,' and ......
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