Frederick v. State
| Decision Date | 22 May 1997 |
| Docket Number | No. A97A1219,A97A1219 |
| Citation | 487 S.E.2d 107,226 Ga.App. 540 |
| Parties | , 97 FCDR 2099 FREDERICK v. The STATE. |
| Court | Georgia Court of Appeals |
William A. Maddox, Gainesville, for appellant.
Lydia J. Sartain, District Attorney, Jessica K. Moss, Asst. Dist. Atty., for appellee.
Appellant Timothy Frederick appeals from a Dawson County jury's verdict finding him guilty of armed robbery, aggravated assault, and burglary. Without challenging the sufficiency of the evidence against him, appellant makes two legal arguments in support of reversal on the armed robbery and aggravated assault offenses: (1) the trial court erred in denying his motion to suppress based on an illegal search of the cabin in which appellant was staying; and (2) appellant claims as error the trial court's refusal to allow appellant to apprise the jury of the ten-year minimum mandatory sentence for armed robbery either through his own testimony or through the testimony of his co-defendant. We disagree with both contentions and affirm appellant's conviction.
For approximately a week and a half, appellant had been staying in a cabin with his two co-defendants, Jeremy Gunn and Dominique Lyda. The cabin belonged to the parents of co-defendant Gunn; they lived in another cabin a few yards away. The record demonstrates that prior to the search at issue, two Dawson County deputy sheriffs awoke Mr. and Mrs. Gunn and informed them that their son Jeremy, Lyda, and appellant had been implicated in an armed robbery that occurred two hours earlier; the Gunns cooperated with the officers and accompanied them to the cabin in which the men were staying; the Gunns did not protest the entry and search of the cabin, insisting that "[i]f he [Gunn] did it he needs to go to jail" and "if the boys had done anything like that, go on in and get them, they don't need to be here." Further, at the motion to suppress, the Gunns were not called to contest the consent they had given on the night of the search. Smith v. State, 264 Ga. 87(2), 88, 441 S.E.2d 241 (1994). As the consent came from the owners of the property that was searched, the warrantless search was proper.
Further, one of the touchstones of Fourth Amendment analysis is whether a person has "a possessory interest in the items seized; and whether he took normal precautions to maintain the privacy and security of the items seized." Sims v. State, 251 Ga. 877, 882(6), 311 S.E.2d 161 (1984).
However, in the case sub judice, no items were actually seized. At one point, co-defendant Lyda voluntarily gave an officer his jacket which contained money from the armed robbery and less than an ounce of marijuana; however, the record shows that these items were not seized pursuant to a search of the cabin by the police, and appellant would not have standing to challenge the search of his co-defendant's coat, in any event. Sims, supra; Neely v. State, 159 Ga.App. 737, 285 S.E.2d 190 (1981).
In fact, a review of the record demonstrates to this Court that the search of the cabin apparently uncovered absolutely nothing at all pertaining to the offenses for which appellant was convicted. What is more, appellant appears to be equally in the dark as, other than his bare assertion that he desires the suppression of "any object, article, thing, statement, or other evidence gained [as] a result of the warrantless search" of the cabin, appellant has not apprised this Court of what these unidentified items might be. At trial, the State introduced no evidence obtained pursuant to a search of the cabin, and certainly, no nexus has been established between the search of the cabin and any subsequent statement made by appellant to the police so as to apply a "fruit of the poisonous tree" rule. 1 Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Accordingly, with no identified items seized pursuant to a search of the cabin, and thus, no required possessory interest therein, the trial court correctly denied appellant's ...
To continue reading
Request your trial
-
State v. Aguirre, A97A1570
...of law, so this Court cannot affirm the grant of the motion under the "right for any reason" doctrine. Compare Frederick v. State, 226 Ga.App. 540, 542(1), 487 S.E.2d 107 (1997); Hunt v. State, 212 Ga.App. 217, 219, 441 S.E.2d 514 (1994). To the contrary, there is ample evidence to support ......
-
Parker v. State, A00A0254.
...out that the mere fact that evidence will harm the case of the opposing side does not show undue prejudice); Frederick v. State, 226 Ga.App. 540, 542, 487 S.E.2d 107 (1997). Moreover, Parker waived any claim that the potential prejudice exceeded the probative value of the evidence because n......
-
Lewis v. State
...Id., 439 U.S. at 148,99 S.Ct. 421. See also Mecale v. State, 186 Ga.App. 276, 277-278, 367 S.E.2d 52 (1988); Frederick v. State, 226 Ga.App. 540, 541(1), 487 S.E.2d 107 (1997). In this instance, there is no evidence that Lewis asserted a possessory or proprietary interest in the premises fr......
-
Owens v. State, A98A2106.
...to the officer or others"). 12. State v. David, supra. 13. 217 Ga.App. 889, 459 S.E.2d 605 (1995). 14. Frederick v. State, 226 Ga.App. 540, 541(1), 487 S.E.2d 107 (1997). ...