Hamilton v. State

• Decision Date: 12 May 1977
• Docket Number: No. 32192,32192
• Citation: 239 Ga. 72,235 S.E.2d 515
• Parties: Henry Albert HAMILTON v. The STATE.
• Court: Georgia Supreme Court

Page 515

235 S.E.2d 515

239 Ga. 72

Henry Albert HAMILTON v. The STATE.

No. 32192.

Supreme Court of Georgia.

May 12, 1977.

Rehearing Denied May 26, 1977.

J. Douglas Willix, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Richard E. Hicks, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Isaac Byrd, Staff Asst. Atty. Gen., Atlanta, for appellee.

PER CURIAM.

Appellant, Henry Albert Hamilton, and his co-defendant, Leanders Glass, were convicted on four counts of armed robbery in the Fulton Superior Court. Appellant received two 20-year sentences to serve and two 20-year sentences on probation. We consider only the appeal of appellant Hamilton in this case.

The two defendants were charged with having committed the offense of armed robbery upon Bruce H. Morris, Leslie Morris, Michael Mandel, and Glenn Howard in the early morning hours of July 12, 1975. Three of the four victims testified that on the night in question they were seated on the porch of the Morris' home located at 887 Argonne Avenue in the residential subdivision of Atlanta, known as Midtown. Two black males carrying guns approached the porch and ordered the four of them to lie down. They relieved Mr. Morris of his keys and wallet and then ordered the group upstairs where they again ordered them to lie down and then tied their hands and feet. The two armed intruders threatened, physically intimidated, and assaulted the victims, demanded an instant banker money card which was not forthcoming, and then absconded with various small items of personal property (including Mr. Morris' Gulf credit card) and money taken from the victims and found in the house.

At trial, Mr. Morris testified as to the foregoing facts but he could not positively identify either defendant as the perpetrator of the crime. Mrs. Morris testified at trial and identified defendant Glass as one of the robbers but she could not identify the appellant as being the other robber. Mr. Howard's testimony corroborated the testimony given by Mr. and Mrs. Morris as to the events of the robbery itself. He, too, identified the defendant Glass as one of the robbers. However, he could not identify the appellant as being the other robber.

At trial, Mr. Morris identified State's exhibits 3-9 as being receipts from his Gulf credit card which had been used to pay for oil and gasoline shortly after the credit card had been stolen. The license tag number appearing on six of those seven credit card receipts was RAN-490, with the digit "9" appearing to have been marked over. The license tag number appearing on the seventh credit card receipt was RAN-410.

Mr. Roosevelt Willingham, a service station dealer, testified that on July 23, 1975, he sold gas to a person driving a 1969 or 1970 Cadillac with a tag number RAN-410. The buyer presented a credit card issued to Bruce Morris. As the buyer signed the credit card receipt he changed the tag number from RAN-410 to RAN-490. The witness was unable to identify appellant as the driver.

Officer Tommy Jackson, Jr., of the Atlanta Police Department, testified that he arrested appellant driving a Cadillac with the tag number RAN-410. A search of this car uncovered several coins introduced into evidence by the State as State's exhibits 20-23.

Over defense objection, Mrs. Ann Zimmermacker testified that on the evening of July 6, 1975, she and her husband were robbed in their Northside Atlanta apartment by two armed black males who forced them to lie on the floor and tied them up. They specifically wanted to know if the Zimmermackers had any instant money charge cards. Mrs. Zimmermacker positively identified defendant Glass and the appellant as the perpetrators of that robbery.

Over defense objection, Glenda Bridges testified that on the evening of July 2, 1975, she was robbed in her Atlanta apartment by two people. She identified one of them as defendant Glass who she testified was carrying a gun. He forced her onto the floor and tied her up. He also wanted to know if she had any twenty-four hour bank cards. She could not identify the second person involved in the robbery.

Over defense objection, Shirley Harding testified that on the evening of July 21, 1975, she and her family were robbed in their Northside Atlanta apartment in the Buckhead area by two armed black males who forced Mrs. Harding and her husband into one of the bedrooms, ordered them to lie on the floor and tied them up. They demanded an instant money bank card. Mrs. Harding identified defendant Glass as one of the perpetrators of the robbery. Mrs. Harding's son, Price Harding, testified that his coin collection was stolen in the robbery. He identified the coins in State's exhibits 21 and 22 as being his coins and the coins in State's exhibit 23 as being just like his coins. Price Harding also identified Glass as one of the robbers.

The appellant testified in his own behalf and denied any involvement in the armed robberies as did the co-defendant Glass. On cross-examination the appellant admitted that he owned a Cadillac with a license tag number RAN-410.

In the first enumeration of error we consider, appellant contends that the trial court erred in admitting over timely objection of defense counsel evidence of separate crimes allegedly committed by appellant.

Moore v. State, 221 Ga. 636, 637, 146 S.E.2d 895, 898 (1966) states the general rule that, " 'On a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly distinct, independent, and separate from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other.' Bacon v. State, 209 Ga. 261, 71 S.E.2d 615 (1952)." Thus, before evidence of independent crimes is admissible two conditions must be satisfied. "First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter." French v. State, 237 Ga. 620, 621, 229 S.E.2d 410, 411 (1976). Once the identity of the accused as the perpetrator of the offense separate and distinct from the one for which he is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. See, e. g., Foster v. State, 230 Ga. 666, 198 S.E.2d 847 (1973); Hicks v. State, 232 Ga. 393, 207 S.E.2d 30 (1974); McNeal v. State, 228 Ga. 633, 187 S.E.2d 271 (1972); Biegun v. State, 206 Ga. 618, 58 S.E.2d 149 (1950); Allen v. State, 201 Ga. 391, 40 S.E.2d 144 (1946).

In the present case, witnesses Ann Zimmermacker, Glenda Bridges, Shirley Harding, and Price Harding testified, over timely objection of appellant's defense counsel, as to armed robberies allegedly committed by the appellant for which he was not on trial. Appellant's counsel argued that such evidence improperly placed appellant's character in issue.

In her testimony, Mrs. Ann Zimmermacker identified appellant as...