Johnson v. State, A94A0136

• Decision Date: 15 April 1994
• Docket Number: No. A94A0136,A94A0136
• Citation: 213 Ga.App. 194,444 S.E.2d 334
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

Page 334

444 S.E.2d 334

213 Ga.App. 194

JOHNSON v. The STATE.

No. A94A0136.

Court of Appeals of Georgia.

April 15, 1994.

Reconsideration Denied May 11, 1994.

Abbi S. Taylor, Atlanta, for appellant.

Jeffery Johnson, pro se.

J. Tom Morgan, Dist. Atty., Gregory J. Giornelli, Gregory A. Adams, Robert E. Statham III, Asst. Dist. Attys., for appellee.

SMITH, Judge.

Jeffery Keith Johnson was charged with seven counts of armed robbery. At trial, one count, involving the robbery of a man on the street, was severed. Johnson was tried by a jury on the remaining counts, all involving the robbery of restaurants. He was convicted of three counts and acquitted of three. His motion for new trial was denied.

1. Johnson contends the trial court erred in denying his motion to sever. We do not agree. To avoid the "smear" effect possible when unrelated charges are tried together, severance is required if the offenses are joined solely because they are similar in nature. Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975). However, if the similarity reaches the level of a pattern, so that it evidences a scheme, plan, or bent of mind, joinder is not based solely on the similarity of the charges. See Cooper v. State, 253 Ga. 736, 737(3), 325 S.E.2d 137 (1985). Where the modus operandi of the perpetrator is strikingly similar, and the facts demonstrate that the defendant is the common perpetrator, joinder may be proper. Jordan v. State, 172 Ga.App. 496, 497(1), 323 S.E.2d 657 (1984). Under such circumstances, severance lies within the discretion of the trial judge. Wilson v. State, 188 Ga.App. 779, 780(1), 374 S.E.2d 325 (1988).

Here, six fast-food restaurants were robbed within a 30-day period. Each occurred during the evening shift. In each case, the perpetrator was described as being a black man in his late twenties to mid-thirties, approximately six feet tall with a medium build. In each case, the robber entered the restaurant and either asked the cashier for a small amount of change or ordered food, pulling a large silver-colored handgun when the cash drawer was opened and taking either the entire cash drawer or all the money from it. In each case, the gunman then left quietly and without further instructions or incident.

As pointed out in Parks v. State, 199 Ga.App. 736, 738(1), 406 S.E.2d 229 (1991), these similarities evidence a pattern that would justify the admission of the other robberies in each trial even if the charges were severed. Since they were not joined solely because they are of the same or similar character, the trial court did not abuse its discretion in refusing to sever the offenses. Miller v. State, 201 Ga.App. 124, 410 S.E.2d 355 (1991).

2. Johnson maintains the evidence was insufficient to support his conviction. He argues that after the victims had selected Johnson's photograph from the lineup, a detective indicated that Johnson had been implicated in other robberies. On this basis, he contends the victims' in-court identifications of him was tainted. We find no merit in this contention.

Johnson...