Harper v. State

• Decision Date: 03 June 1994
• Docket Number: A94A0911,Nos. A940828,s. A940828
• Citation: 213 Ga.App. 444,445 S.E.2d 303
• Parties: HARPER v. The STATE. (Two Cases)
• Court: Georgia Court of Appeals

Page 303

445 S.E.2d 303

213 Ga.App. 444

HARPER v. The STATE.

(Two Cases)

Nos. A940828, A94A0911.

Court of Appeals of Georgia.

June 3, 1994.

Richard O. Ward, Augusta, for Jerald Harper.

Sam B. Sibley, Jr., Augusta, for Jerome Harper.

Daniel J. Craig, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee.

BEASLEY, Presiding Judge.

Jerome Harper, appellant in Case No. A94A0911, was indicted for the armed robbery of Jimmy Chow by use of a knife on May 17, 1990 (Count 1). OCGA § 16-8-41. He was also indicted for the armed robbery of a Golden Pantry Food Store on July 21 (Count 2), and possession of a knife during the commission of that crime (Count 3). OCGA § 16-11-106.

He and his brother Jerald Harper, appellant in Case No. A94A0828, were jointly indicted for robbery by intimidation of Eat-A-Plenty Express (Count 4), OCGA § 16-8-40, and armed robbery of Wendy's Old Fashioned Hamburgers (Count 5), on July 24. Jerome and Jerald were each indicted for possession of a knife during the Wendy's robbery (Counts 6 and 7) and giving a false name to a law enforcement officer at the time of their arrest (Counts 8 and 9). OCGA § 16-10-25.

Jerome was convicted of all counts in which he was named, except Count 1 (armed robbery of Chow). Jerald was convicted of all counts charging him. In their appeals from the denial of their motions for new trial, Jerome has filed nine enumerations of error, and Jerald has filed two. Jerald's first enumeration is the same as Jerome's second.

The co-defendants are brothers who look alike. In the two years between the offenses and trial, their appearances were altered by weight gain and hair length change.

Brenda Barnes, an employee of the Golden Pantry on duty at the time of the robbery, testified that it was committed by two black males. She testified that one remained in the car and the other came into the store with a knife and forced her to give him the cash from the register. She identified the robber from a photographic line-up based on the appearance of a facial scar. On the first day of trial, she testified that she thought the robber was Jerald Harper but was not sure.

A surveillance camera at the Golden Pantry recorded the robbery on videotape. Barnes did not view the videotape until the second day of trial. She positively identified in it herself and her co-employee, Vera Bailey, who was also on duty at the time of the robbery. She testified with certainty that the robber was one of the co-defendants but could not be sure which one.

Bailey testified that she had viewed the videotape and the photographic line-up but was undecided as to which co-defendant was the robber because they both look similar. She testified that she believed Jerald was the robber, because the one who robbed her had the slimmer face.

The investigating officer took various photographs of Jerome Harper to depict his features, including a scar on his left cheek. The officer testified that after looking at the photographs and viewing the videotape, he concluded that Jerome was the robber. He testified that Barnes positively identified Jerome as the robber after being shown the photographic line-up and that Bailey said it could have been either of them.

An employee testified that the co-defendants entered the Eat-A-Plenty Express on July 24 at approximately 5:00 p.m. and robbed her with what felt in her back like a knife. She identified the co-defendants from photographs shown her by the police. She testified that Jerome held her arms while Jerald took the money.

The police officer investigating this robbery testified that he showed the employee two photographic line-ups, each containing the picture of only one brother. She picked out each brother's photo. The officer testified that he believed she identified Jerald as the one holding her arms.

An employee identified the co-defendants as the two perpetrators of the robbery of Wendy's at approximately 11:00 p.m. on July 24. He testified that Jerald entered the store first, followed by Jerome. A visitor who was present positively identified the co-defendants as the perpetrators but could not tell them apart. These two witnesses also positively identified the co-defendants from photographs shown them by police.

Shortly after the Wendy's robbery, the co-defendants were traced to a motel located on the same road. Jerome identified himself to police as Derrick Solomon, and Jerald identified himself as John Jessie Solomon. Jerome stated he had not robbed the Wendy's but had switched clothes with the "dude" who had.

1. Jerome contends that the court erred in denying his motion for new trial because the State failed to prove beyond a reasonable doubt his guilt in the Golden Pantry robbery with a knife (Counts 2 and 3).

In Johnson v. State, 176 Ga.App. 378, 380(4), 336 S.E.2d 257 (1985), we declined to adopt the minority view that a witness' pre-trial identification is inadmissible if the witness fails to positively identify the defendant at trial. Here, as in Johnson, the witness' original identification was made within days of the crime, when her memory was fresher than at trial; the defendant's appearance was substantially changed at trial; and the line-up photograph depicted defendant at the time the crime occurred. As held in Johnson, the inability of the witness to make a positive identification at trial affects the weight of the evidence and the credibility of the witness, which are jury questions. The same is true of contradictions in the witness' identification of defendant shortly after the robbery and at trial. See Gravitt v. State, 220 Ga. 781, 787(8), 141 S.E.2d 893 (1965); Dimick v. State, 178 Ga.App. 60, 62(1), 341 S.E.2d 914 (1986); Miller v. State, 174 Ga.App. 703, 704(2), 331 S.E.2d 616 (1985).

2. Both appellants contend that the court erred in denying their identical motions for "severance of offenses."

They moved before trial for severance of Counts 1 through 3, charging only Jerome, for the remaining counts. They also sought separate trials. The reasons given were that the evidence admissible on Counts 1 through 3 (Chow and Golden Pantry robberies) was not admissible on any other count and the effect of this evidence would be to prejudice Jerald unfairly.

When two or more defendants are charged with identical crimes, they may be jointly tried in the discretion of the trial court. Johnson v. State, 208 Ga.App. 747, 749(2), 431 S.E.2d 737 (1993); Ledbetter v. State, 202 Ga.App. 524, 525(2), 414 S.E.2d 737 (1992). Severance is not required simply because one co-defendant is charged with additional offenses not charged against the other. Hightower v. State, 263 Ga. 375, 376(2), 434 S.E.2d 491 (1993). We find no abuse of discretion in the trial court's denial of the motion based on the showing made in its support. See generally Ledbetter, supra; Hill v. State, 193 Ga.App. 401, 403(5a), 387 S.E.2d 910 (1989).

Jerome also moved to sever: (1) Count 1 (Chow) from Counts 2 and 3 (Golden Pantry), in that they were joined in the indictment solely because they were of the same or similar character; and (2) Count 4 (Eat-A-Plenty) from Count 5 (Wendy's), in that they were not so similar as to show a common scheme or plan or an identical modus operandi.

" 'Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. (Cit.) However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court.' [Cit.] When offenses are based on the same conduct, on a series of acts connected together, or on a series of acts constituting parts of a single scheme or plan, severance becomes discretionary, not mandatory, [cit.], and the trial court may order severance if necessary to achieve a fair determination of the defendant's guilt or innocence on each count. [Cit.]" Villarreal v. State, 198 Ga.App. 501, 502, 402 S.E.2d 104 (1991).

In robbing Eat-A-Plenty Express and Wendy's within six hours of each other on the same day, the co-defendants were engaged in a continuing course of criminal conduct and a series of acts constituting a common scheme or plan; the modus operandi was similar but not identical. A determination with respect to Counts 1 through 3 is moot because a directed verdict of acquittal was entered in favor of Jerome on Count 1 due to the State's failure to present evidence on it. It was not an abuse of discretion to deny his motion.

Both co-defendants argue on appeal that a joint trial hindered a fair determination of their respective guilt because of the similarity of their appearance and resultant confusion of identification evidence. They did not move for a severance on this ground either before or during trial. Compare Terry v. State, 190 Ga.App. 570(1), 379 S.E.2d 604 (1989).

3. Jerome contends that the court erred in giving a cautionary instruction to the jury, after Barnes and Bailey testified, that Jerome was charged with the crimes alleged in Counts 2 and 3, that the State contended that he rather than the co-defendant committed these offenses, and that the jury should not infer anything hurtful to Jerald because of what had transpired thus far in the trial.

Both co-defendants objected to this instruction on the ground that it constituted an expression of opinion. The court then emphasized to the jury that it was not expressing an opinion but merely making a statement that the State's position was that Jerald alone committed these offenses. "A mere statement by the trial court as to what the adverse parties contend is not a statement of opinion by the court." Owens v. State, 81 Ga.App. 182(2), 58 S.E.2d 550 (1950); compare Crawford v. State, 139 Ga.App. 347(2), 228 S.E.2d 371 (1976).

On appeal, Jerome argues that the initial instruction in effect told the jury that the eyewitnesses had been mistaken in their...