Hawkins v. State

• Decision Date: 09 July 1985
• Docket Number: No. 69933,69933
• Citation: 175 Ga.App. 606,333 S.E.2d 870
• Parties: HAWKINS v. The STATE.
• Court: Georgia Court of Appeals

Page 870

333 S.E.2d 870

175 Ga.App. 606

HAWKINS v. The STATE.

No. 69933.

Court of Appeals of Georgia.

July 9, 1985.

Rehearing Denied July 31, 1985.

Edward R. Zacker, Brunswick, for appellant.

Glenn Thomas, Jr., Dist. Atty., E. Jerrell Ramsey, Asst. Dist. Atty., for appellee.

POPE, Judge.

After a trial by jury, appellant was convicted of the armed robbery of the Bay Service Station in Brunswick, Georgia on November 12, 1982. On appeal two enumerations of error are assigned, both of which concern a State's witness, Charles A. Hawkins, appellant's brother and co-indictee. ¹ Aside from the testimony adduced from Charles Hawkins, the State presented evidence to show the following: On the evening of November 12, 1982, Steven Pechin was working as an attendant at the Bay Service Station in Brunswick, Georgia. A light blue 1974 Ford Torino driven by Charles Hawkins ("Charles") ran out of gas in the station driveway. Pechin and Charles, the sole occupant, pushed it to the pumps for gasoline. Accompanied by others, Charles returned later in the evening in the same car for more gasoline. After they left, two men approached the station on foot. One was wearing a ski mask and carrying a sawed-off shotgun. Pechin was threatened with the weapon and forced to empty the cash register. Pechin identified the man with the shotgun as appellant. He and appellant had attended school together for four years and appellant had visited with Pechin at the station for thirty minutes or so on the previous evening. Pechin testified that the scars on appellant's nose were visible through the ski mask and that he recognized him from his distinctive voice and walk.

The light blue Torino was seen parked on a street behind the station near an alleyway leading from it. Two people were seen crouched and running from the alleyway to enter the car. Based upon the description of the car parked by the alleyway, Charles was stopped while driving the light blue Torino approximately twenty-five minutes after the robbery. He was alone and red shotgun shells like those used in the robbery were found in the car. Later that evening and after waiving his Miranda rights, Charles gave a statement concerning the robbery to law enforcement officers.

Testimony of one of the occupants of the car that evening, Jacoby Jackson, showed that he accompanied Charles, appellant, and two others to two places where a gun was picked up at each. One was a handgun, the other a sawed-off shotgun. The group drove past the Bay Service Station and dropped off appellant and Carlos Mangrum who told them to pick them up around the corner. The two had the guns when they left the car. Charles drove the Torino back to the service station, bought more gasoline, and then drove to the street behind the station, parking the car by the alleyway leading from it. Shortly thereafter, Jackson opened the back door, appellant and Mangrum jumped into the car and Charles drove away. They proceeded to a neighborhood where at least two of the occupants resided. Charles left all four of the passengers there, then drove away.

1. Appellant challenges the trial court's decision to permit Charles Hawkins to be called as a State's witness when the State had prior notice that he would invoke the Fifth Amendment privilege against self-incrimination. At the commencement of the trial and outside the presence of the jury, appellant's counsel moved to exclude Charles Hawkins as a witness for the State based upon the belief that, if called, he would invoke the Fifth Amendment. The State argued in response that the privilege was unavailable to him since he had previously been convicted for his part in the subject armed robbery. However, since his appeal from that conviction was pending, the State requested an order from the trial court pursuant to OCGA § 24-9-28(a) granting Charles Hawkins immunity from the use of his testimony in any retrial which might result from his appeal. A ruling was deferred until Charles Hawkins was called by the State. At that time and again outside the presence of the jury, the trial court conferred on this question with the prosecuting attorney and appellant's counsel as well as Charles' attorney, Mr. Dismer. The trial court signed the order granting immunity to Charles and, upon the trial court's direction, Mr. Dismer instructed his client accordingly.

On direct examination in the jury's presence, Charles answered questions regarding his name and his relation to appellant. He stated that he did give a statement to police about the subject armed robbery at the Bay Service Station and that on the night of the crime he was driving the blue Torino automobile previously identified as the "getaway car." He testified that on that evening he was accompanied by Donald Dickens, another co-indictee. However, when asked if later in the evening there were additional people in the car, Charles responded that he was "going to take the Fifth Amendment." The trial court suggested that Mr. Dismer sit with his client. Out of the hearing of the jury, appellant's counsel moved for a mistrial because the Fifth Amendment was invoked before the jury with the State's prior notice. Mr. Dismer explained that he had instructed his client on the grant of immunity and his obligation to answer the State's questions. In open court, the trial judge instructed Charles that the privilege against self-incrimination was no longer available to him due to the order of immunity. His failure to answer, he was told, constitutes contempt of court punishable by incarceration. The State asked essentially the same question a few more times, with essentially the same refusal to answer. Each time, Charles was instructed on the unavailability of the Fifth Amendment privilege. However, when asked questions about remarks purportedly made by appellant and Mangrum when they jumped into the Torino at the alleyway, Charles replied that he did not hear any of that, and later replied, "No. That is not correct." He stated that he did not recall including that in his statement to police. When asked if he drove the back roads to Orange Park to drop off appellant and Mangrum, Charles testified that he drove to Orange Park and dropped off Donald Dickens. He further denied that he told police that he left appellant and Mangrum in Orange Park. Charles denied that Jackson was in the car. At the end of direct examination, appellant's counsel declined to cross-examine Charles, stating that he had no questions. The trial court removed the jury from the courtroom whereupon appellant's counsel renewed his motion for a mistrial, claiming that Charles' invocation of the privilege against self-incrimination had prejudiced appellant's right to a fair trial. The trial court denied appellant's motion and cited Charles with four counts of contempt of court.

Appellant relies upon the opinion in Casper v. State, 244 Ga. 689(3), 261 S.E.2d 629 (1979), which explains: "There is a split of authority on the question of whether it is error for a prosecutor to call as a witness an accomplice, co-conspirator, co-defendant, or one associated with the defendant in criminal activity, for the purpose of having the witness claim the privilege against self-incrimination to influence the jury against the defendant. Anno. 86 ALR2d 1443, §§ 1-4." Id. at 693, 261 S.E.2d 629. Contrary to appellant's argument, however, we do not find that the State called Charles Hawkins for the purpose of having him assert such privilege before the jury. Nor do we find the State to have had the advance notice necessary to show such purpose in the case before us. See San Fratello v. United States, 340 F.2d 560 (5th Cir.1965). First, there has been no showing that the State had any...