Evans v. State, s. 73911

• Decision Date: 15 June 1987
• Docket Number: Nos. 73911,73912,s. 73911
• Citation: 359 S.E.2d 174,183 Ga.App. 436
• Parties: EVANS v. The STATE. JOINER v. The STATE.
• Court: Georgia Court of Appeals

Page 174

359 S.E.2d 174

183 Ga.App. 436

EVANS v. The STATE.

JOINER v. The STATE.

Nos. 73911, 73912.

Court of Appeals of Georgia.

June 15, 1987.

Rehearing Denied June 25, 1987.

Susan E. Teaster, for appellant in case no. 73911.

Drew Dubrin, for appellant in case no. 73912.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Margaret Earls, Asst. Dist. Attys., for appellee.

POPE, Judge.

Bobby James Evans and Willie Terry Joiner bring these appeals from their convictions and sentences of burglary. Held:

CASE NO. 73911.

1. Defendant Evans first enumerates as error the trial court's denial of his motion to sever the trial of his case from that of his co-defendant Joiner. The basis of Evans' claim for severance is that his defense was antagonistic to that of his co-defendant. See generally Murphy v. State, 246 Ga. 626(2), 273 S.E.2d 2 (1980). This claim is based on the fact that each defendant denied knowledge of the garbage bag full of stolen cartons of cigarettes found in the car in which they were riding. Joiner (the driver) claimed he picked up hitchhiker Evans (the passenger) near the burglarized premises with the subject bag of loot, and Evans claimed that the bag of cigarettes found under his legs was already there when he got in the car.

"The grant or denial of a motion to sever is within the sound discretion of the trial court and the ruling thereon will not be disturbed unless there is an abuse of discretion. [Cits.] ... The defendant seeking severance must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process." Murphy, supra at 629, 273 S.E.2d 2. "The fact of antagonistic defenses does not of itself require severance, [cits.], and [Evans] has not demonstrated any clear prejudice and denial of due process which might have been avoided by severing the trials." Kennedy v. State, 253 Ga. 132, 135, 317 S.E.2d 822 (1984); Everett v. State, 238 Ga. 80, 81, 230 S.E.2d 882 (1976); Kirby v. State, 174 Ga.App. 58(2), 329 S.E.2d 228 (1985). Accordingly, we find no abuse of discretion in the trial court's denial of Evans' motion to sever.

2. Evans next cites as error the trial court's denial of his motion to suppress evidence obtained as the result of the stop of the car in which he was a passenger. He contends that the police officer had no reason to stop the car.

The evidence showed that at approximately 12:45 a.m. on January 27, 1986 Officer Christian, while on patrol in northwest Atlanta, received notice that a tack alarm ¹ had been set off at a nearby convenience store. Due to past break-ins at this and other convenience stores in the area, the officer had checked the subject premises approximately 10 minutes earlier and had found everything in order. He then had proceeded to a gasoline station just up the street from the convenience store. Upon receipt of the alarm, the officer pulled out of the gasoline station, looked in all directions, and observed two occupants in a yellow 1969 Plymouth Satellite coming up the hill toward him, approximately 1,000 yards past the subject convenience store. There was no other person or car in sight. The officer proceeded to the convenience store and observed the glass in the front of the premises had been knocked out and cartons of cigarettes were laying in the parking lot. The officer immediately left the premises and began following the yellow Plymouth. When he obtained appropriate back-up assistance, he stopped the car. As he walked up to the driver's side of the car, he observed in plain view passenger Evans with his legs over the top of a garbage bag; one cigarette carton was observed partially coming out from under Evans' leg. Defendants were arrested and the bag of cigarettes seized.

Officer Christian offers the following reasons for stopping defendants' car. Most burglaries of the type committed in this area happen extremely quickly, and the officer thought that his only chance to apprehend the perpetrators would be if they were in the immediate vicinity. At the time the officer received the alarm, he had a clear view of the area ("I could see a great distance") and observed no persons or vehicles in the area except for defendants in the older model yellow Plymouth driving away from the burglarized premises. It was after midnight on a snowy evening and no businesses were open in the area. The yellow Plymouth was nearly identical to one described in a "lookout" the officer had received earlier from another officer regarding a possible suspect of other break-ins in which cigarettes were stolen.

"Although an officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only 'unparticularized suspicion or "hunch," ' 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909." United States v. Smith, 799 F.2d 704, 707 (11th Cir.1986). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. [Cits.]" United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

"Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like 'articulable reasons' and 'founded suspicion' are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances--the whole picture--must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

"The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions--inferences and deductions that might well elude an untrained person.

"The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

"The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio, supra, said that '(t)his demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence.' Id. [392 U.S.] at 21, n.18 ...." (Citations and emphasis omitted.) Cortez, supra, 449 U.S. at 418, 101 S.Ct. at 695.

The application of the above-stated legal principles to the facts of the case at bar clearly demonstrates that Officer Christian had sufficient "articulable suspicions" to authorize a brief investigative stop of defendants. See State v. Carter, 240 Ga. 518, 242 S.E.2d 28 (1978); Coley v. State, 177 Ga.App. 669(1), 341 S.E.2d 9 (1986); State v. Turntime, 170 Ga.App. 740(1), 318 S.E.2d 157 (1984); see also Chumbley v. State, 180 Ga.App. 603, 349 S.E.2d 823 (1986). Accordingly, we find no error in the trial court's denial of Evans' motion to suppress.

3. Evans' third enumeration cites as error the trial court's ruling that there had been no systematic exclusion of blacks by the State during jury selection. The basis for this enumeration is the recent United States Supreme Court opinion in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), holding that "[a]lthough a prosecutor ordinarily is entitled to exercise permitted peremptory challenges 'for any reason at all, as long as that reason is related to his view concerning the outcome' of the case to be tried, [cit.], the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." 476 U.S. at ----, 106 S.Ct. at 1719, 90 L.Ed.2d at 82-83. The record discloses...