Fluellen v. State

• Decision Date: 10 September 1982
• Docket Number: No. 63985,63985
• Citation: 294 S.E.2d 653,163 Ga.App. 425
• Parties: FLUELLEN v. The STATE.
• Court: Georgia Court of Appeals

Page 653

294 S.E.2d 653

163 Ga.App. 425

FLUELLEN v. The STATE.

No. 63985.

Court of Appeals of Georgia.

Sept. 10, 1982.

Certiorari Denied Oct. 19, 1982.

W. Dennis Mullis, Cochran, for appellant.

James L. Wiggins, Dist. Atty., James E. Turk, Asst. Dist. Atty., Eastman, for appellee.

SOGNIER, Judge.

Armed robbery and kidnapping.

1. Appellant enumerated as error the court's failure to grant his motion for a directed verdict of acquittal and the denial of his motion for a new trial based on the general grounds. However, he has presented no argument or citation of authority in support of these enumerations of error. Accordingly, we consider these enumerations abandoned pursuant to Rule 15(c)(2) of this court. (Code Ann. § 24-3615(c)(2)). Nevertheless, we have reviewed the transcript and find that the evidence meets the requirements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2. Appellant moved to sever the armed robbery charges from the kidnapping charge on the ground that the evidence would be confusing to the jury, causing a possible misapplication of the law to the evidence presented. Appellant contends the denial of this motion was error.

Our Supreme Court has held that "where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance 'lies within the sound discretion of the trial judge since the facts in each case are likely to be unique.' [Cit.] In determining whether severance is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense, the 'court should consider 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.]" Coats v. State, 234 Ga. 659, 662(4), 217 S.E.2d 260 (1975). The evidence in the instant case is not confusing, as the two armed robberies occurred at a Flash Food store, and the kidnapping occurred at a later time in a different location, after appellant and his companion had fled on foot from the food market. Hence, the trial court did not abuse its discretion by denying the motion to sever.

3. Appellant contends that the trial court erred in denying his motion to suppress any testimony or evidence of a pretrial identification of appellant by Nancy Burris and Police Officer Hicks at a photographic lineup. However, the state presented no evidence or testimony that Burris or Hicks picked appellant out of a photographic lineup. Thus, any alleged error regarding denial of appellant's motion to suppress is moot.

4. Appellant next contends the trial court erred by failing to require the jury to return to the jury room for further deliberation on the verdict after one of the jurors, when polled on the verdict, stated she was a little confused on charge three (kidnapping). This enumeration is without merit.

After the juror's statement, she stated that she had voted yes (to convict) on the third count, and that she still voted yes. Further, appellant raised no objection at the time of the juror's statement, did not ask that the jury be returned to the deliberation room for a new vote and took no exception to the trial court's procedure. It is well settled that matters not...