Mack v. State, 64870

• Citation: 296 S.E.2d 115,163 Ga.App. 778
• Decision Date: 07 October 1982
• Docket Number: No. 64870,64870
• Parties: MACK v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 115

296 S.E.2d 115

163 Ga.App. 778

MACK v. The STATE.

No. 64870.

Court of Appeals of Georgia.

Oct. 7, 1982.

James W. Howard, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Margaret V. Lines, Tom Hayes, Asst. Dist. Attys., Atlanta, for appellee.

QUILLIAN, Chief Judge.

Defendant appeals his conviction for rape (two counts), aggravated assault and armed robbery. Held:

1. Defendant's indictment alleged the rape of a woman and aggravated assault on her male companion on August 1, 1980 (counts 1 and 2), and the rape of another woman and the armed robbery of her male companion on September 7, 1981 (counts 3 and 4). At trial, after the jury had been struck and sworn defendant's oral motion to sever counts 1 and 2 from counts 3 and 4 was made and denied, which defendant enumerates as error.

Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. Dingler v. State, 233 Ga. 462, 211 S.E.2d 752. However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court. "[I]f there is a valid reason for joinder other than similarity of offense, then severance of offenses becomes discretionary with the trial court." Davis v. State, 159 Ga.App. 356(1), 283 S.E.2d 286. "[W]here the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined--subject to the right of the defendant to a severance in the interests of justice. [Cit.]." Id. at 357, 283 S.E.2d 286.

In the instant case the victims of counts 1 and 2 were a young man and woman walking together in a wooded area. Defendant confronted them with a pistol, demanded money, forced the couple to remove their clothing, threatened to kill the man if he ran, and took the woman off into the woods and raped her. The victims of counts 3 and 4 also were a young man and woman walking together in a wooded area in the same vicinity that the victims of the first two counts had been accosted. The defendant confronted them with a pistol, demanded and got money from the man, forced them to remove their clothing, threatened to kill the woman if the man moved, and took the woman off into the woods and raped her.

Pretermitting whether the motion for severance was properly or timely made, we find that the court did not abuse its discretion in denying severance as "the crimes charged were so similar as to evidence a common plan or scheme and revealed an identical modus operandi." Davis v. State, 158 Ga.App. 549(1), 550, 281 S.E.2d 305.

2. The remaining enumeration complains of the trial court's denial of defendant's motion for a continuance to obtain the transcript of defendant's preliminary hearing.

A defendant is entitled to a continuance to obtain a preliminary hearing transcript, provided he exercises due diligence to obtain it. Martin v. State, 151 Ga.App. 9(7), 258 S.E.2d 711; Terrell v. State, 136 Ga.App. 848...