Eady v. State

• Decision Date: 20 March 1987
• Docket Number: Nos. 73582,73719,s. 73582
• Citation: 182 Ga.App. 293,355 S.E.2d 778
• Parties: EADY v. The STATE. JONES v. The STATE.
• Court: Georgia Court of Appeals

Page 778

355 S.E.2d 778

182 Ga.App. 293

EADY v. The STATE.

JONES v. The STATE.

Nos. 73582, 73719.

Court of Appeals of Georgia.

March 20, 1987.

William H. Hedrick, Albany, for appellant in No. 73582.

Carl A. Bryant, Albany, for appellant in No. 73719.

Hobart M. Hind, Dist. Atty., Melodie B. Swartzbaugh, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

Eady and Jones appeal their jury convictions and sentences on four counts of rape (OCGA § 16-6-1), four counts of armed robbery (OCGA § 16-8-41), five counts of burglary (OCGA § 16-7-1), and three counts of theft by taking a motor vehicle (OCGA § 16-8-2). Five incidents from June to September 1985 are involved.

1. Each appellant maintains he was entitled to directed verdicts on all counts but especially on the armed robbery counts, for lack of any evidence. Neither points out any element for which the evidence is deficient except with respect to armed robbery. Therefore, we need not relate the evidence as to the convictions for rape, burglary, and auto theft. It is sufficient to state that after a review of that evidence we find it ample to enable any rational trier of fact to find that each committed these offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Maddox v. State, 170 Ga.App. 498, 499(1), 317 S.E.2d 617 (1984).

a) Though defendants do not point to a defect in the evidence as to the armed robbery of victim McDowell, we have reviewed the evidence and find that it could have enabled a rational trier of fact to find that Jones and Eady had committed the armed robbery of McDowell beyond a reasonable doubt. Jackson v. Virginia, supra.

b) Defendants urge that while victims Bakhsh and Ballieu did have guns stolen, there was no allegation that either woman was threatened with a weapon. They cite Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982) for the proposition that a defendant "cannot be convicted of armed robbery where the offensive weapon used to perpetrate the armed robbery is also the only fruit of the armed robbery." Id. at 294, 298 S.E.2d 10.

Bakhsh testified that she was asleep on her couch when she was awakened by a feeling of being suffocated. A sheet from her son's bed had been placed over her face, her legs were being held, and someone was whispering in her ear to be quiet or they would kill her children. Two men led her into the bedroom and took turns raping her and then asked for money and any guns in the house. She told them where her purse was and that there were no guns. One man threatened that if she was lying, they would kill her, so she told them about a gun which they found. They informed her they were going to take her truck. One man put his hand under the cover, and Bakhsh could see a clear-gloved hand with a knife in it. He asked if she saw the knife and told her it would be at the foot of the bed and if she could find it, she could cut herself loose. The men took a shotgun, a television, change, and a gallon of orange juice. "[A]n armed robbery is committed if [a] weapon has been used as an instrument of constructive, as well as actual, force. [Cits.]" Maddox v. State, 174 Ga. App. 728, 729(1), 330 S.E.2d 911 (1985). See also, Doby v. State, 173 Ga.App. 348, 349(1), 326 S.E.2d 506 (1985). The evidence was sufficient for the convictions for the armed robbery of Bakhsh.

Ballieu, a deputy sheriff, was awakened in the early morning hours by her dog barking. She walked into the kitchen and saw a man standing in the back door. When she spoke, he ran towards her, grabbed her by the top of the head and forced her to lie face down on the kitchen floor. She was struck on the head with her assailant's fist and placed in fear of her life; was tied up with scarves and panty hose; was raped; and then was robbed. After the rapes, one of the men ordered her not to tell what happened because he said he knew where her children went to school and had pictures of them. The men left, taking Ballieu's handbag, gun, and car. The jury's guilty verdict is supported by evidence here.

c) Defendants also argue that there was no testimony of any weapon used in connection with victim Tarrer. Defendants were charged with taking money from her by use of a sharp-bladed file. They further argue that the defective conviction for the armed robbery of Tarrer should have been the basis for a directed verdict on all counts because it showed that the jury could not properly do its job due to "overwhelming counts, cumulative testimony, and inadmissible evidence which was permitted into the record."

The evidence reveals that Tarrer woke up when she heard a movement in the hallway like the shuffling of feet. She saw the shadows of two men in the hallway and screamed. They rushed into the room, clamped their hands over her mouth and told her not to scream. Tarrer's young daughter called out to her, and Tarrer told her she was having a bad dream and to go back to sleep. Tarrer told the men to shut and lock her bedroom door because she feared her daughter would come into the room and that the men would attack the daughter or make the daughter watch as they attacked her. She never had a chance to get off the bed and had no weapons to try to protect herself. The men then each raped Tarrer while keeping a pillow over her face, causing her difficulty in breathing. After the assault, and while still keeping the pillow on her face, the men bound her by rolling her up in a sheet and rummaged through the house. They took her purse and its contents and approximately $300 which Tarrer told them about in hopes they would leave.

"The term 'offensive weapon' includes not only weapons which are offensive per se, such as firearms loaded with live ammunition, [but] also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use ... [Cit.]" Hambrick v. State, 174 Ga.App. 444, 445(1), 330 S.E.2d 383 (1985). There was evidence that the pillow was used in such a manner as might have produced death or great bodily injury, i.e., by suffocation. While such things as a fist, a stick, a beer bottle, or a shoe are not per se deadly weapons, it is generally a jury question, under all the circumstances surrounding the way they are used. Hambrick v. State, 174 Ga.App. 444, 330 S.E.2d 383, supra; Meminger v. State, 160 Ga.App. 509, 287 S.E.2d 296 (1981) (overruled on a different point); Quarles v. State, 130 Ga.App. 756, 204 S.E.2d 467 (1974); Williams v. State, 127 Ga.App. 386, 193 S.E.2d 633 (1972). Here we cannot say as a matter of law that the way the pillow and sheets were used could not make them into deadly weapons. We affirm this conviction and sentence, also.

2. Eady contends that the committal judge erroneously bound him over without probable cause because three of the subpoenaed victims could not identify him.

Any questions as to the propriety of the finding of probable cause at the committal hearing are rendered moot by subsequent convictions for the offenses charged, for "[t]he purpose of a commitment hearing is simply to determine whether there is probable cause (sufficient reason to suspect) to believe the accused guilty of the offense charged, and if so, to bind the accused over for indictment by the grand jury. [Cits.]" Neal v. State, 160 Ga.App. 498, 499(1), 287 S.E.2d 399 (1981), and even when there is a complete failure to hold a commitment hearing, there is no judicial oversight or review of the decision to prosecute, once an indictment is obtained. State v. Middlebrooks, 236 Ga. 52, 55(2), 222 S.E.2d 343 (1976); First Nat. Bank & Trust Co. v. State, 137 Ga.App. 760, 224 S.E.2d 866 (1976), aff'd 237 Ga. 112, 227 S.E.2d 20 (1976).

3. Eady also claims that the trial court erroneously refused to quash the indictment upon his motion that he had been denied his rights to present evidence at the committal hearing. He does not state in what manner he was denied the presentation of evidence. During the proceeding he was represented by counsel.

Even if we assume that Eady was improperly prevented from presenting evidence, "an imperfect commitment hearing ... did not authorize the trial judge to quash the indictment...." Day v. State, 237 Ga. 538, 539(1), 228 S.E.2d 913 (1976).

4. Eady and Jones argue that the trial court erred in refusing to sever for trial the case as to offenses and as to defendants.

a) Joinder of separate offenses in a single indictment is permitted where they " ' "(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." ' [Cit.] ... ' "[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." ' [Cit.] In other circumstances, the trial court has the discretion to grant a severance where it is deemed necessary or appropriate to achieve a ' "fair determination of the defendant's guilt or innocence of each offense," ' taking into consideration ' "whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense." ' [Cit.]" Thompson v. State, 181 Ga.App. 163, 165, 351 S.E.2d 483 (1986).

The offenses in this case were not joined for trial solely on the basis that they were of similar character. They were properly joined because they constituted a series of criminal acts closely connected by geography, time, and manner so as to constitute a scheme or plan of criminal conduct. See Johnson v. State, 158 Ga. App. 398, 400(4), 280 S.E.2d 419 (1981). Moreover, the offenses charged were...