Head v. State

• Decision Date: 19 June 2002
• Docket Number: No. A02A0332.,A02A0332.
• Citation: 569 S.E.2d 548,256 Ga. App. 624
• Parties: HEAD v. The STATE.
• Court: Georgia Court of Appeals

569 S.E.2d 548

256 Ga. App. 624

HEAD v. The STATE.

No. A02A0332.

Court of Appeals of Georgia.

June 19, 2002.

Reconsideration Denied July 22, 2002.

Gary W. Washington, Lithonia, for appellant.

Paul L. Howard, Jr., Dist. Atty., Anne E. Green, Elizabeth A. Baker, Asst. Dist. Attys., for appellee.

MIKELL, Judge.

Ervin Head appeals his conviction of armed robbery and hijacking a motor vehicle.¹ Finding no error, we affirm.

Head was indicted and tried jointly with Charles Baskin. Evidence presented at trial shows that two armed, masked men ran toward the victim, Johane Eugene Blalock, as he was standing outside his parked vehicle. One man carried a 9 millimeter handgun, and the other had an AK 47 assault rifle. The assailant armed with the handgun ordered the victim to lie on the ground and demanded his keys. The assailants then took the victim's money ($80), ripped his gold chain from his neck, and drove off in his car, a gray Buick LeSabre. The victim called the police, who apprehended Baskin and Head shortly before midnight in the parking lot of a nearby school. The defendants were in the process of stripping the rims from the wheels of the victim's car. Two ski masks and a 9 millimeter handgun were found on the ground within arm's reach of both men. Eighty dollars and a gold chain were found in Baskin's pocket. The victim identified Baskin as the assailant with the handgun but was unable to identify the second attacker.

Head denied any involvement in the armed robbery and carjacking. Head testified that he wanted to purchase a certain type of rims for his car and implied that Baskin offered to procure them. Head claimed that on the night the crimes occurred, he was at home playing cards with two friends, Demetrius Barnes² and Robert Brown. According to Head, he received a page from Baskin, who said he had the type of rims Head wanted. Head agreed to meet Baskin at Price Middle School. Head testified that Brown left, and Head and Barnes drove to the school. Barnes testified that he parked around the corner while Head met with Baskin. Head admitted that he began taking the rims off the victim's car. According to Head, Baskin stated that he stole the vehicle and that the handgun belonged to him. However, the trial court sustained the state's hearsay objection to Head's testimony concerning the gun.

Both of Head's alibi witnesses, Brown and Barnes, testified that they were with Head that evening in Head's apartment until he received the page from Baskin.

Baskin's former girlfriend, 13 year old Sherika Hudson, who lived in the same apartment complex as Baskin, testified that she was standing on her balcony around midnight and saw Head in the victim's car in front of Baskin's apartment. Hudson testified that she also saw Baskin enter the vehicle, after having gone upstairs to tell his mother goodbye. During the hearing on the motion for new trial, however, Hudson testified that she had fabricated her trial testimony.

Baskin's mother, Victoria Baskin, testified that on the night in question, Baskin came home around midnight and told her that he was going out with Head. Mrs. Baskin walked out onto her balcony, looked down, and saw Head standing beside a gray car. She also saw Barnes sitting in the car, and she watched her son enter the vehicle.

1. In his first enumeration of error, Head asserts that the trial court abused its discretion in denying his motion for trial severance. We disagree.

The trial court must consider three factors in determining whether to grant a motion to sever:

(1) whether the number of defendants will create confusion as to the evidence and the law applicable to each, (2) whether there is a danger that evidence admissible against one defendant will be considered against the other despite the court's instructions, or whether the strength of the evidence against one defendant will engulf the other with a "spillover" effect, and (3) whether the defendants' defenses are antagonistic to each other or to each other's rights. The burden is on the defendant requesting a severance of trials to make a clear showing of prejudice and [a consequent] denial of due process. ³

In the case at bar, Head contends that the second and third factors mandated severance.

(a) Head contends that the denial of his motion to sever prejudiced him because he and Baskin presented mutually exclusive, antagonistic defenses, and that because Baskin did not testify, Head was unable to cross-examine him. "In order to have his motion for severance granted, however, the defendant must show not only that his co-defendant will probably not testify at trial where he could cross examine him or elicit the testimony desired, but also that the testimony of the co-defendant would tend to exculpate the defendant."⁴ There is nothing in the record to show that, if Head had been granted a separate trial, Baskin would have waived his Fifth Amendment rights and been willing to testify or that his testimony would have been exculpatory.⁵ Absent this offer of proof, the trial court did not abuse its discretion in denying Head's motion to sever.⁶

(b) Head argues that he should have been granted a severance because Baskin called two surprise witnesses, Hudson and Mrs. Baskin, who gave the only direct evidence that Head drove or rode in the stolen vehicle shortly after the crimes were committed. Head does not contend that the state or Baskin's counsel violated a duty to disclose these witnesses prior to trial pursuant to OCGA § 17-16-3. Rather, Head maintains that he was denied a benefit to which he was entitled when he opted into the reciprocal discovery statute, and the only method of assuring Head received that benefit was severance. Head, however, failed to raise this argument at trial and may not do so for the first time on appeal.⁷

(c) Head next argues that he was prejudiced by his inability to comment upon Baskin's failure to testify at trial. In this regard, Head complains that he was unable to refute comments made by Baskin's counsel during closing argument. Baskin's attorney argued that Baskin did not testify because "he's a juvenile, and I'm not going to let him be sucked up anymore." Baskin's defense theory was that Head and Barnes committed the crimes, that Barnes had possessed the AK-47 assault rifle, and that Baskin only helped strip the rims from the wheels.

In support of his argument that the trial court should have granted a severance due to his inability to comment upon Baskin's silence, Head relies on the following dicta found in De Luna v. United States⁸: "If an attorney's duty to his client should require him to draw the jury's attention to the possible inference of guilt from a co-defendant's silence, the trial judge's duty is to order that the defendants be tried separately."⁹ However, not only is De Luna nonbinding federal authority, its rationale has been rejected by virtually every other circuit that has considered it.¹⁰ In rejecting De Luna, the Tenth Circuit noted:

Should a defendant seek to lay blame upon a nontestifying codefendant, he can always take the stand and testify against him. Such testimony would be entitled to great probative value; a jury's decision resting upon this evidence would, in our view, rise to a fairer level than one influenced by self-serving implications drawn by an attorney regarding a codefendant's silence.¹¹

We find this reasoning persuasive. Consequently, we decline to follow De Luna.

(d) Head further argues that he was likely convicted as a result of the "spillover" of the greater volume of evidence against Baskin. In this regard, Head relies primarily on Price v. State,¹² in which "the evidence against one co-defendant was deemed to be so overwhelming and the evidence against the other so slight that the `spillover' effect of the evidence against the former was viewed as an important factor in the latter's conviction."¹³ Head claims that the evidence against him was slight, entirely circumstantial, and far less than the substantial evidence adduced against Baskin. He asserts that the evidence shows merely that he was removing the rims from the stolen vehicle almost two hours after the carjacking. That is incorrect. Baskin's mother positively identified Head as an occupant of the stolen vehicle shortly after the time the crimes were committed.

It is true that the quantum of evidence against Baskin was greater, in that the victim identified him and stolen items were found in his pocket. However, the fact that the evidence as to one of two co-defendants is stronger does not demand a finding that the denial of a severance motion is an abuse of discretion, where there is evidence showing that the defendants acted in concert.¹⁴ The testimony of Mrs. Baskin provided such evidence. We conclude that the trial court did not abuse its discretion in refusing to sever the trials.

2. Head also argues that he is entitled to a new trial because Hudson's trial testimony was pure fabrication. At the hearing on Head's motion for new trial, Hudson testified that she had not been standing on her balcony and did not witness Head or Baskin in the stolen vehicle on the night the crimes occurred. Hudson testified that she "was only told what had happened." Hudson refused to identify the person who supplied her the information.

That a material witness for the State, who at the trial gave direct evidence tending strongly to show the defendant's guilt, has since the trial made statements even under oath that [her] former testimony was false, is not cause for a new trial. Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial. This difference in value must be recognized, so long as there has been no conviction of perjury. Provision is made for setting aside verdicts resting on perjury, but there must first be a conviction. The only exception to the rule against setting aside a verdict without proof of a

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