Hackney v. State, 29212

• Decision Date: 07 January 1975
• Docket Number: No. 29212,29212
• Parties: Clarene Lidell HACKNEY et al. v. The STATE.
• Court: Georgia Supreme Court

Page 714

211 S.E.2d 714

233 Ga. 416

Clarene Lidell HACKNEY et al. v. The STATE.

No. 29212.

Supreme Court of Georgia.

Jan. 7, 1975.

Watson, Brown & Foster, George T. Brown, Jr., Jonesboro, for appellants.

William H. Ison, Dist. Atty., Jim W. Bradley, Asst. Dist. Atty., Jonesboro, Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

Clarence Lidell Hackney and Frances Mildred Hackney were convicted of armed robbery. Clarence Hackney was given a sentence of fifteen years, and Frances Hackney was given a sentence of one year. They appeal from their convictions and sentences.

The appellants were jointly indicted with Vonrath Nordeen Bergholm, Jerry Lyons Frey, and John Grey Bolton for the armed robbery of the Hungry Bull restaurant in Forest Park. Patricia Ann Bergholm admitted participation in the robbery, and was given immunity from prosecution in return for a statement concerning the robbery. The co-indictees later entered guilty pleas.

1. The appellants contend that the trial court erred in denying their motion to suppress evidence obtained from their residence by an alleged illegal search and seizure without a search warrant.

At the hearing on this motion a police detective of DeKalb County who assisted in the search testified that Clarence Hackney had given him written consent to search his residence. This written consent was introduced in evidence.

A police detective of the City of Forest Park testified that he had received verbal consent from Clarence Hackney to search his residence, Hackney stating that he had no objections whatsoever to the search, after being advised of his right not to have a search made without a search warrant.

The appellants assert that there was a conflict in the evidence because the written consent was dated January 22, 1973, and the DeKalb detective testified that the search was conducted on that date, whereas the Forest Park detective testified that the search was conducted January 23, 1973, under verbal consent given on that date.

It is apparent that there was a mistake either as to the date of the search, or the date on the written consent, but the evidence showed without conflict, that one officer had obtained a written consent, and the other officer an oral consent, to search the residence of the appellants, and that these consents were obtained prior to the search.

The court did not err in denying the appellants' motion to suppress evidence obtained from a search of their residence, nor in admitting this evidence on the trial.

2. The appellants contend that the court erred in denying their motion for mistrial on the ground that two of their co-indictees were allowed to plead guilty in open court before all of the jurors.

These co-indictees admitted their guilt in their testimony at the trial of the appellants' case, and there was no prejudice to the appellants in allowing them to enter their guilty pleas in open court.

3. The appellants complain that the court denied their attorney's request to examine each juror out of the presence of the other jurors.

The record does not reveal whether this request referred to the voir dire questions, or to the individual examination of jurors thereafter. Whichever examination was referred to, there is nothing in the record to indicate that the trial judge abused his discretion in refusing to allow an isolated examination of each prospective juror. Compare: Smith v. State, 225 Ga. 328(5), 168 S.E.2d 587; Pass v. State, 227 Ga. 730(8), 182 S.E.2d 779; Whitlock v. State, 230 Ga. 700(5), 198 S.E.2d 865.

4. It is asserted that the assistant district attorney trying the case continuously attempted to interject evidence concerning a robbery of a Hungry Bull restaurant in DeKalb County which occurred after the armed robbery for which the appellants were on trial.

The appellants' co-indictees were apprehended after the DeKalb County robbery, and they implicated the appellants in the previous robbery in Forest Park.

We have examined the questions, statements, and testimony pointed out in connection with this enumerated error and find that the trial judge's instructions to the jury and reprimands to the state's attorney were sufficient to prevent any prejudice to the appellants from any mention of the DeKalb County robbery.

5. It is asserted that the court erred in allowing a witness to read the statement on the co-indictee Frey to the jury, and in allowing the same statement to be again read by the assistant district attorney in the presence of the jury.

The statement was objected to on the grounds that it was hearsay evidence as to the appellants on trial, and that it implicated them in crimes other than the one for which they were being tried. After instructions that the portions of the statement implicating the appellants in other crimes be marked out, the trial judge allowed the statement to be read in evidence, subject to the right of the appellants to cross examine Frey with reference to it.

Frey had previously testified. In his testimony, as in his statement, he implicated Clarence Hackney only. (He had formerly been married to Frances Hackney). When he was recalled as a witness, his statement was read to him, since he could not read. He admitted that it was the statement that he signed, and that it was a true account of the events related, except that it incorrectly stated that he had taken Clarence Hackney's share of the money to him about two days later.

Whether or not it was error to admit this statement as the statement of a co-conspirator made during the time that some of the conspirators were concealing the crime (see Bennett v. State, 231 Ga. 458 (202 S.E.2d 99)), any error was made harmless by the fact that Frey acknowledged at the trial that he had made the statement, counsel for the appellants cross...