Green v. State
| Decision Date | 16 June 2005 |
| Docket Number | No. S05A0369.,S05A0369. |
| Citation | 279 Ga. 455,614 S.E.2d 751 |
| Parties | GREEN v. The STATE. |
| Court | Georgia Supreme Court |
Martin Gregory Hilliard, Savannah, for Appellant.
Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., Savannah; Thurbert E. Baker, Atty. Gen., Vonnetta Leatrice Benjamin, Asst. Atty. Gen., Dept. of Law, Atlanta, for Appellee.
In his 2003 trial, appellant was convicted of a series of crimes, including malice murder, that took place on September 12, 1999, and another series of crimes that took place on August 10, 1999. He appeals the judgment of conviction entered on the jury's guilty verdicts.1
1. The State presented evidence that a couple walking in downtown Savannah on August 10, 1999, was accosted and robbed by a man armed with a pistol who demanded and took their wallet and purse and physically assaulted the male victim. On September 12, 1999, a man armed with a sawed-off shotgun demanded the wallets of another couple walking in downtown Savannah and fired a shot when the female victim screamed. Gail Vasilkioti was struck by the shotgun blast and died six weeks later from complications arising from her injuries. At the time of the incidents, appellant worked at a restaurant within blocks of both scenes. Both victims of the August robbery identified appellant as the armed man, and a cellular phone last seen in the purse of the female victim of the August robbery was found in appellant's home. The surviving victim of the September incident identified appellant as the man who had approached him and shot his companion. Several of appellant's acquaintances and co-workers testified he told them he had shot a woman tourist. One acquaintance approached police with information after a reward was offered, and police outfitted him with a hidden device that recorded appellant recounting the details of the September 12 shooting. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant contends the trial court erred when it denied his motion to sever the charges stemming from the August 10 incident from the charges arising out of the September 12 incident. In its order, the trial court recognized there is an absolute right to severance where offenses have been joined solely on the ground that they are of the same or similar character (see Dingler v. State, 233 Ga. 462, 464, 211 S.E.2d 752 (1975)), but severance is within the trial court's discretion when the offenses are so similar as to show a common scheme or plan. The trial court also noted that when the crimes alleged were a series of similar transactions conducted over a short period of time, denial of severance was appropriate "[a]fter balancing the interests of the State and those of the accused." The trial court denied the motion after determining the events were so similar that evidence of one would be admissible as evidence of a similar transaction in the trial of the other. Appellant contends the trial court did not apply the correct standard, found in Stewart v. State, 277 Ga. 138, 587 S.E.2d 602 (2003), to evaluate the motion to sever.
Stewart was decided in September 2003, more than two years after the trial court in the case at bar had denied the motion to sever and seven months after appellant was convicted. Under the "pipeline" rule adopted in Taylor v. State, 262 Ga. 584(3), 422 S.E.2d 430 (1992), we apply to the case at bar Stewart's statement of the trial court's responsibility when presented with a motion to sever charges. In Stewart v. State, we reiterated the principle that a defendant has an absolute right to severance of charges that are joined solely because they are of the same or similar character. Id., at 139, 587 S.E.2d 602. We also endorsed the view that severance is not mandatory when offenses have been joined because evidence of one offense could be admitted upon the trial of another offense to show a common motive, plan, scheme, or bent of mind. Id., at 140, 587 S.E.2d 602. In the latter circumstance the decision whether to sever falls within the discretion of the trial court, which should grant a pre-trial severance if it is "`appropriate to promote a fair determination of the defendant's guilt or innocence of each offense ... consider[ing] 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.'" Id., at 139, 587 S.E.2d 602 (). After being apprised of Stewart in connection with appellant's motion for new trial, the trial court re-examined its denial of the motion to sever and determined that the two incidents, while similar enough to qualify as similar transactions, were not so alike as to cause confusion in the minds of the jurors and make them unable to fairly and intelligently judge the offenses independently. While Stewart calls for the trial court's post-trial analysis to take place pre-trial, we agree with the post-trial analysis and, accordingly, find no reversible error in the denial of the motion to sever.
3. Appellant next contends the trial court abused its discretion when, according to appellant, the trial court admitted evidence of similar transactions. Appellant maintains the admission of evidence concerning the August 10 crimes was improperly admitted to prove the commission of the September 12 crimes. However, the trial court did not admit evidence of the August 10 incident as a similar transaction — it admitted evidence of crimes for which appellant was being tried. There is no merit to appellant's suggestion of error.
4. Appellant also takes issue with the denial of his motion to suppress the testimony of the survivor of the September 12 incident identifying appellant as the perpetrator.2 Because the victim identified appellant at trial as the perpetrator, we read appellant's enumeration of error to take issue with the admission of the victim's in-court identification of appellant on the ground that pre-trial identifications of appellant by the victim were impermissibly suggestive.
At the time of the incident, the victim described the assailant as a black male with "chiseled features" who was 6'-2" tall. At trial, the victim testified he and the other victim were in the road and the assailant was in bushes on a curb. The victim stated he had been presented with a photo array after the incident and had been unable to identify anyone as the shooter. The victim saw a televised news account of appellant's arrest 12 days after the incident and testified his initial reaction was "the hairline is good, the eyes are good, but he's too young, he's too short, he's too baby-faced." The victim stated he also saw a photo of appellant in the newspaper. The victim/witness then went to the scene of the incident with the other victim's adult son who was the same height as appellant and discovered the lighting in the area produced "chiseled features" and the combination of the crowned road3 and the curbing resulted in the victim believing the son was taller than he actually was. The victim testified he identified appellant as the perpetrator at a preliminary hearing on November 29, ten weeks after the incident, acknowledging appellant was the only black man in jail attire in the courtroom. At trial, the victim identified appellant as the attacker and said his identification was based on a combination of his observations the night of the crimes and the televised news report of the arrest.
Appellant contends the witness's viewing of appellant in the televised news report was impermissibly suggestive and tainted the witness's identification of appellant. An allegedly suggestive pretrial encounter must be the result of either police or prosecution action to have an effect on the admissibility of a subsequent in-court identification. Semple v. State, 271...
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