Majors v. State, A91A2104

• Decision Date: 02 March 1992
• Docket Number: No. A91A2104,A91A2104
• Citation: 203 Ga.App. 139,416 S.E.2d 156
• Parties: MAJORS v. The STATE.
• Court: Georgia Court of Appeals

Page 156

416 S.E.2d 156

203 Ga.App. 139

MAJORS v. The STATE.

No. A91A2104.

Court of Appeals of Georgia.

March 2, 1992.

Giddens, Davidson, Mitchell & Eaton, Earl A. Davidson, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Henry M. Newkirk, and Rebecca A. Keel, Asst. Dist. Attys., for appellee.

ANDREWS, Judge.

Majors was indicted for armed robbery, aggravated assault and criminal interference with government property. He was tried by a jury, convicted and appeals.

Evidence adduced at trial was that at about 3:00 a.m. on April 23, 1990, police officer Barrett was riding morning watch alone when he observed an Oldsmobile sedan driving very slowly. As he approached the vehicle it picked up speed and began driving in excess of the speed limit. Barrett pulled the car over and it stopped at the right side of the road. Barrett stopped his cruiser behind and to the left of the Oldsmobile. The driver of the Oldsmobile, later identified as co-defendant Lane, got out of the car, walked back to Barrett and showed him his driver's license and a tag receipt for a car which had been reported stolen. Barrett then followed the driver to the front of the car and noticed that the steering column was broken in a manner consistent with the vehicle being stolen. Barrett took the driver back to the police vehicle, frisked him and placed him in the back seat.

Barrett then walked to the front of the police vehicle so that he could see the license tag number and as he did so Majors got out of the passenger seat, walked to the rear of the Oldsmobile, raised a gun to Barrett's face and stated: "I have something for you." Majors forced Barrett to drop to his knees and took Barrett's gun belt, which contained his gun, police radio and ammunition clips. The other passenger, who was not present for trial, released Lane from the police car and then Barrett's shirt and bulletproof vest were taken off as Majors continued to hold the gun to Barrett's head. Majors told Barrett to run, and as he did so, Majors opened fire, firing an estimated 16 rounds and riddling the police vehicle with bullets. Majors and the other men sped off in the car. In the report which was made of the incident, Barrett recalled that Majors was about six feet tall, was dark complected and was wearing a dark starter's jacket and a cap.

At 4:00 a.m. on the same date, the three men went to the home of a witness, and told him of this incident. At that time, the men had with them a police radio and police vest.

Later that day, Majors was arrested at a hotel. The officers entered the hotel room in which Majors was sleeping and observed a pistol under his pillow. Further investigation revealed that the pistol belonged to Barrett.

On May 14, 1990, Barrett identified Majors during a lineup. According to one of the police officers conducting the lineup, Majors selected the participants in the lineup and then Majors selected his number and, after all numbers were assigned, Barrett entered the room to view the participants.

Majors was sentenced to life for armed robbery, ten years to run consecutively for the aggravated assault and five years to run concurrently for interference with government property. Co-defendant Lane was acquitted.

1. In his first enumeration of error, Majors argues that the trial court abused its discretion by failing to grant his motion for severance.

"OCGA § 17-8-4 provides that when two or more defendants are jointly indicted for a felony less than capital defendants may be tried jointly or separately in the discretion of the trial court. Our Supreme Court has found that the trial judge must exercise his discretion in each particular case, but the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process. They set forth a three-part standard: (1) Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? (2) Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? (3) Are the defenses of the defendants antagonistic to each other or to each other's rights? We answer each question in the negative. We find no error." (Punctuation and citations omitted.) Sims v. State, 186 Ga.App. 74(4), 366 S.E.2d 406 (1988); see also Sims v. State, 195 Ga.App. 631, 394 S.E.2d 422 (1990); Martin v. State, 189 Ga.App. 483, 487-88(3), 376 S.E.2d 888 (1988); Stephens v. State, 170 Ga.App. 267(1), 316 S.E.2d 847 (1984); see Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975). Majors has failed to articulate any specific reason for severance, he has failed to show any actual prejudice or denial of due process which resulted from the failure to sever, and we find no error in the trial court's denial of the motion to sever.

2. In his second enumeration of error, Majors argues that the aggravated assault conviction should be vacated since that crime merged into the conviction for armed robbery. Majors argues that the act of pointing the gun at Barrett was the basis for both the aggravated assault and the armed robbery charge and that the latter crime therefore merged with the prior.

This enumeration is without merit. The indictment itself charged that the armed robbery was committed when Majors and the two other men "did unlawfully, with the intent to commit theft, take from the person and immediate presence of T.D Barrett, the following property ... by intimidation and by use of a handgun, the same being an offensive weapon." With respect to aggravated assault, the indictment charged that the three men "did unlawfully commit an assault upon the person of T.D. Barrett, by pointing a firearm, a deadly weapon, at him and discharging the firearm in his immediate presence, thereby placing him in reasonable apprehension of immediately receiving serious bodily injury."

"While it is settled that aggravated assault is not included in robbery, armed robbery or attempted armed robbery, as a matter of law, [cits.], it may be included as a matter of fact." Hambrick v. State, 256 Ga. 148, 150, 344 S.E.2d 639 (1986). Evidence here established that the armed robbery occurred when Majors held the machine gun to Barrett's head and took his property; "the shots subsequently fired by appellant at the victim constituted a separate offense." Johnson v. State, 190 Ga.App. 172, 173, 378 S.E.2d 700 (1989). Thus, the armed robbery was complete before the assault occurred and the crimes did not merge. See Lambert v. State, 157 Ga.App. 275, 277 S.E.2d 66 (1981).

3. In Majors' next enumeration of error, he contends that the trial court erred by refusing to excuse a biased juror for cause. The allegedly biased juror was a journalist who indicated that he had written a story regarding the incident, although he did not recall any details of it. In response to general inquiry, the reporter stated that he could be a fair and impartial juror. In later questioning by the court, the reporter stated that he "hoped" his slight knowledge of the matter would not affect his ability to be impartial. He agreed that he would be willing to listen to the evidence and determine the facts from the evidence presented. He...