Johnson v. State, Nos. 62255
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | BIRDSONG; SHULMAN, P. J., and SOGNIER |
| Citation | 159 Ga.App. 819,285 S.E.2d 252 |
| Decision Date | 06 October 1981 |
| Docket Number | Nos. 62255,62517 |
| Parties | JOHNSON v. The STATE. SCHOLLKOPF v. The STATE. |
Page 252
v.
The STATE.
SCHOLLKOPF
v.
The STATE.
Page 253
[159 Ga.App. 825] H. J. Thomas, Jr., LaGrange, for appellant in No. 62255.
Louis J. Kirby, LaGrange, for appellant in No. 62517.
Arthur E. Mallory III, Dist. Atty., Marc E. Acree, Asst. Dist. Atty., for appellee.
[159 Ga.App. 819] BIRDSONG, Judge.
Thomas S. Johnson and Robert Harry Schollkopf were convicted of three counts in violation of the Controlled Substances Act and 15 counts of second degree forgery. They were each sentenced to serve 26 years.
The transcript establishes that on March 26, 1980, two police officers from the State of Alabama came to LaGrange with a warrant for the arrest of Schollkopf alleging the commission of a criminal offense. With the aid of a deputy from Troup County, Schollkopf was located and arrested. He was taken to the police station. During interrogation, it was established that Schollkopf lived in a home jointly owned by himself and Johnson. Schollkopf granted permission for the officers to search the home for evidence of contraband (controlled substances and related items). Schollkopf accompanied the three officers to his home. Schollkopf and Johnson kept five large dogs in the home. The dogs were locked in Johnson's room while the officers conducted the search of the entire house, with the exception of the room containing the five dogs. The search revealed pill bottles in great number scattered throughout the living area. Some of these bottles had liquid contents, some had powdery residue, and most were empty. An undisclosed number
Page 254
of boxes of syringes and literally hundreds to thousands of used syringes were found scattered all through the house. Some of these syringes also contained residue. The bedroom normally occupied by Schollkopf was searched and an undisclosed number of prescription pads and individual prescription slips were found upon and in the drawers of a dresser in Schollkopf's bedroom. Schollkopf admitted that he had been feeding his drug habit for some time from drugs obtained in central Georgia and Alabama either by making fictitious complaints to doctors and thus obtaining legitimately made prescriptions or while in a doctor's office surreptitiously taking prescription pads and thereafter forging prescriptions, including the signature of the doctor whose name appeared on the prescription pad. Schollkopf admitted that the 15 prescriptions which form the basis of the 15 counts of second degree forgery had been executed by him but had not yet been "cashed."[159 Ga.App. 820] After all the rooms in the house (except where the dogs were located) had been searched and several bags of evidence had been collected and marked, the officers left the house with Schollkopf to return to the police station. As they were driving away, the appellant Johnson was observed driving toward the house. The officers apprehended Johnson. Thereafter, Johnson was returned to the house and a search was made of the room in which Johnson customarily slept. In that room were found many additional syringes as well as a small amount of marijuana in the form of a cigarette and partial cigarettes. The several bags of evidence were stipulated by the parties to have been delivered to the crime lab. Upon testing the liquid, the powdery residue and the green material, the lab results established the presence of Pethidine, Pentazocine, and marijuana, accounting for the three counts alleging violations of the Controlled Substances Act. The 15 forged prescriptions formed the basis of the second degree forgery counts. The appellants were separately defended at a joint trial and following conviction each filed a separate appeal. The two appeals have been consolidated for ease of disposition. Johnson enumerated five alleged errors and Schollkopf, six. Four of each of their respective enumerations are common; Johnson has filed one enumeration unrelated to any filed by Schollkopf and Schollkopf has filed two independent enumerations. Held:
1. Each appellant has complained that the trial court erred in refusing to grant a severance. Neither appellant took the stand to offer evidence. A statement made by Schollkopf was offered against him only. In that statement, Schollkopf made incriminating admissions concerning his drug habit, and the forgery of the prescription slips. He did not implicate Johnson, however. Schollkopf maintained he had solely executed the prescriptions and that he was "strung out" but made no reference to Johnson. As opposed to the statement of Schollkopf (limited by instruction to Schollkopf only) all other incriminating evidence arose out of the contraband found throughout the jointly owned house. Johnson argues that he expected Schollkopf to testify in exoneration provided Johnson was tried separately from and after a trial of Schollkopf. The joint trial resulted in neither party giving testimony. Johnson complains this denied him the opportunity of utilizing the testimony of Schollkopf. Lastly Schollkopf argues that the trial court first accepted a guilty plea entered by Schollkopf and then when Schollkopf protested the severity of the sentence, refused the plea. Both appellants complain that the trial court forced the withdrawal of the guilty plea and a joint trial. For all these reasons, appellants complain that the trial court erred in denying the severance.
[159 Ga.App. 821] We find none of the enunciated complaints of prejudice in the denial of the motion for severance to be meritorious. The facts developed by the state, whether offered at a joint or a separate trial, necessarily would have been substantially the same. The search was conducted following the express permission of an owner of the premises. Most of the incriminating matter was found in common areas of the house. Neither the state nor appellants offered evidence that any part of the house was for
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the exclusive use of one of the owners as opposed to joint access by the other joint owner. The jury was never aware that Schollkopf had attempted to enter a guilty plea and we do not agree that the transcript shows that the trial court sought affirmatively to dissuade Schollkopf from entering the plea by imposing an unduly harsh sentence (46 years).The grant or denial of a motion for severance lies within the sound discretion of the trial court and the ruling of the court will be overturned only in the event of an abuse of that discretion. Cain v. State, 235 Ga. 128, 218 S.E.2d 856; Duffy v. State, 156 Ga.App. 847, 275 S.E.2d 658. To warrant a severance, appellants...
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Taylor v. State, A12A1877.
...and is thus presumed to have possessed all its contents, including the methamphetamine ingredients found there. See Johnson v. State, 159 Ga.App. 819, 822(2), 285 S.E.2d 252 (1981). It was for the jury, and not this Court, to determine whether Taylor was credible when she testified that she......
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Williams v. State, s. 67626
...have with him at some later date. We find no abuse of discretion in the denial of defendant Williams' motion to sever. Johnson v. State, 159 Ga.App. 819, 821, 285 S.E.2d 252; Stevens v. State, 165 Ga.App. 814, 815-818(3), 302 S.E.2d 724, 8. Defendant Williams' second enumeration of error co......
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Stevens v. State, 65043
...of acquittal. To obtain a new trial at the appellate level they must show actual prejudice and denial of due process. Johnson v. State, 159 Ga.App. 819, 821, 285 S.E.2d 252. The critical issue in this case is possession of the cocaine discarded by Walls. This joint trial had no adverse effe......
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Ledford v. State, s. 69215
...out of the presence of the jury to show the trial court a necessity for severance. See Minton v. State, supra; Johnson v. State, 159 Ga.App. 819(1), 285 S.E.2d 252 The burden is on the defendant requesting a severance of trials to make a clear showing of prejudice and denial of due process.......
-
Taylor v. State, A12A1877.
...and is thus presumed to have possessed all its contents, including the methamphetamine ingredients found there. See Johnson v. State, 159 Ga.App. 819, 822(2), 285 S.E.2d 252 (1981). It was for the jury, and not this Court, to determine whether Taylor was credible when she testified that she......
-
Williams v. State, s. 67626
...have with him at some later date. We find no abuse of discretion in the denial of defendant Williams' motion to sever. Johnson v. State, 159 Ga.App. 819, 821, 285 S.E.2d 252; Stevens v. State, 165 Ga.App. 814, 815-818(3), 302 S.E.2d 724, 8. Defendant Williams' second enumeration of error co......
-
Stevens v. State, 65043
...of acquittal. To obtain a new trial at the appellate level they must show actual prejudice and denial of due process. Johnson v. State, 159 Ga.App. 819, 821, 285 S.E.2d 252. The critical issue in this case is possession of the cocaine discarded by Walls. This joint trial had no adverse effe......
-
Ledford v. State, s. 69215
...out of the presence of the jury to show the trial court a necessity for severance. See Minton v. State, supra; Johnson v. State, 159 Ga.App. 819(1), 285 S.E.2d 252 The burden is on the defendant requesting a severance of trials to make a clear showing of prejudice and denial of due process.......