Holloway v. State
| Decision Date | 09 September 2004 |
| Docket Number | No. A04A1027.,A04A1027. |
| Citation | 269 Ga. App. 500,604 S.E.2d 844 |
| Parties | HOLLOWAY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Zell & Zell, Rodney S. Zell, Atlanta, for appellant.
Jeffrey H. Brickman, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee. JOHNSON, Presiding Judge.
A jury found Nekio Holloway guilty of armed robbery, criminal attempt to commit armed robbery, aggravated battery, and three counts of aggravated assault. He appeals from the judgment entered on the verdict, urging that the testimony of his co-defendant was not corroborated, the evidence was not sufficient to support the conviction on the aggravated battery charge, and several of the offenses should have merged for sentencing purposes. We agree that one of the aggravated assault charges should have merged with the aggravated battery charge, and that the armed robbery charge should have merged with the criminal attempt to commit armed robbery charge. Accordingly, the judgments of conviction and sentences for two of the charges must be vacated. None of the remaining enumerations has merit, so we affirm Holloway's other convictions.
Viewed favorably to the verdict,1 the evidence shows James Avery drove his Cadillac to the home of Rayphal Morrison to buy marijuana. Avery's girlfriend, Erica Kiser, waited in the car. Morrison opened the door for Avery, and Avery went inside the house for a few minutes. Avery left the house and walked toward his car. Four or five armed men came from behind the house and ordered Avery to get on the ground. One of the men hit Avery in the head with a baseball bat three or four times. The men stole Avery's money and marijuana.
The men also took Avery's car keys and attempted to steal Avery's car. They were unable to steal the car because the car had a "kill" switch on it that prevented the car from starting. A small man wearing braids and brandishing a handgun approached Kiser and told her to get on the ground. She screamed and he told her to be quiet or he was going to "use it." The men told Kiser to get back into the car and asked her how to start the car, but she did not know how to start it. The men dragged Avery to the car and tried to get him to start the car, but he was not conscious and was unable to comply with their demands. In order to get Avery to start the car, the men tied some straps around his arm and wrist and sat him on their laps. Avery, still unconscious, was not able to start the car. One of the assailants panicked and fled. The other men dragged Avery back out to the yard. According to Kiser, they appeared to be mad because Avery would not start the car. The small man with the braids said to Avery, "Don't make me shoot you, don't make me shoot you with this AK-47, you can start the car." He then tried unsuccessfully to wake Avery up. Then, while Avery was lying on his stomach, "out of it," the man shot him in the buttocks.
When police arrived on the scene, they found Avery on the ground. His feet were tied with red "zip ties," the type police officers use as handcuffs. A search of Morrison's bedroom closet revealed a baseball bat with red stains on it, and a bag of marijuana with red stains on it. A search of Holloway's house next door revealed more of the red ties under a couch cushion in his living room and in his garage. Holloway, Morrison, and Quantavius Mathis were charged in the crimes.
Kiser testified that the gunman was small, thin and wore braids. She picked Holloway out of a lineup as the man who shot Avery, noting "the shape of [Holloway's] head and his nose and his braids, the way they stick out, and his neck, the way it's kind of small, it goes down, but mainly like the shape of his head." Kiser identified Morrison as the man who struck Avery with the baseball bat.
Mathis testified against Holloway at trial. He testified that when Avery came out of the house, he and Holloway came from the side of the house. They were armed and ordered Avery to lie down on the ground. They asked Avery for the marijuana, which Avery put on the grass. Mathis picked it up, as Holloway had told him to do when they were planning the robbery. Mathis testified that Morrison then hit Avery on the head three or four times with a baseball bat. Mathis also testified that Holloway wore braids at the time of the incident.
Morrison pled guilty to aggravated assault and aggravated battery, but testified that he did not see Holloway on the day the crimes occurred. Before trial, however, Morrison gave police a written statement in which he confessed that he, Holloway, and Mathis discussed robbing a man Morrison's sister knew who had a Cadillac. The plan was that Morrison would get the victim to come to his house, and the men would wait outside with guns. Avery arrived and went inside. When he came out, Morrison, Holloway and Mathis confronted him with guns and ordered him to give them the drugs and get on the ground. Holloway directed Morrison to hit Avery on the head with a baseball bat; Morrison struck Avery three or four times. Holloway gave Morrison some red zip ties, which Morrison tied around Avery's ankles. Holloway tried to start Avery's car, but could not. Holloway pointed the gun at Avery, asking how to start the car. Avery did not respond. Kiser was screaming. Mathis and Morrison ran. Morrison heard a gunshot, turned around, and saw Holloway standing over Avery. Holloway walked next door to his house.
1. Holloway contends that his convictions were based on the uncorroborated testimony of co-defendant Mathis. Because other evidence connected Holloway to the crimes, this enumeration is without merit.
In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice.2 The corroboration must be independent of the accomplice's testimony and it must connect the defendant to the crime or lead to the inference that he is guilty.3 However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged.4 Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.5 The corroborating evidence may be circumstantial.6
Here, Mathis' testimony was corroborated by Kiser's testimony that she saw several armed men come from behind the house and that she watched as Morrison beat Avery in the head with a baseball bat; by Kiser's identification of Holloway in a photo lineup as the man who shot Avery; by police officer testimony that Avery's feet were bound with red zip ties, that officers found similar red ties in Holloway's living room and garage, and that they found a baseball bat and bag of marijuana with red stains on them in Morrison's bedroom closet; by Morrison's pre-trial statement that Holloway shot Avery; by Morrison's pre-trial statement that he hit Avery in the head with the baseball bat; and by Morrison's statement that he placed red zip ties on Avery's ankles. At the very least, this evidence raised the inference that Holloway participated in the charged offenses. The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.7
Accordingly, based upon a review of the evidence, we find that a rational trier of fact could have found Holloway guilty beyond a reasonable doubt of committing the crimes of armed robbery, criminal attempt to commit armed robbery, three counts of aggravated assault(three counts) and aggravated battery.8
2. Holloway contends the evidence was not sufficient to support his conviction of aggravated battery, inasmuch as the state failed to prove that Avery's head injuries were seriously disfiguring as alleged in the indictment and as contemplated by OCGA § 16-5-24. This contention is without merit.
OCGA § 16-5-24(a) provides, in relevant part, that a person commits the offense of aggravated battery when he maliciously causes bodily harm to another by seriously disfiguring his body. In this case, Avery testified that his skull was fractured and it took more than thirty staples to close his head wounds. He showed the jury his scars and added that he occasionally suffers from severe headaches and memory loss as a result of the attack. Whether the injuries were seriously disfiguring was a jury question.9 Expert testimony was not required.10 A jury was authorized to find from the evidence that the beating with the baseball bat resulted in serious disfigurement.
3. Holloway contends the trial court erred in sentencing him for both armed robbery and criminal attempt to commit armed robbery, when both charges involved the same victim and were part of a single transaction. We agree and remand the case for the trial court to vacate the sentence for criminal attempt to commit armed robbery.
At issue are Counts 1 and 2. Count 1 accused Holloway of using a handgun to take Avery's money and marijuana. Count 2 accused Holloway of using a handgun to attempt to take Avery's car.
Under Georgia law, one crime is included in another as a matter of fact if it is established by proof of the same or less than all of the facts used to prove the other.11 If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact.12 While a defendant may be tried for both offenses under such circumstances, he may not be convicted and sentenced for both.13
In the robbery context, however, the analysis is different. A defendant who takes multiple items from a victim in one transaction cannot be convicted of multiple robberies, even though the prosecution arguably uses different evidence to prove each taking.14 The question is whether the thefts involve a single transaction or sequential crimes.15 When...
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