Nichols v. State

• Decision Date: 26 August 1993
• Docket Number: No. A93A1085,A93A1085
• Citation: 210 Ga.App. 134,435 S.E.2d 502
• Parties: NICHOLS v. The STATE.
• Court: Georgia Court of Appeals

Page 502

435 S.E.2d 502

210 Ga.App. 134

NICHOLS v. The STATE.

No. A93A1085.

Court of Appeals of Georgia.

Aug. 26, 1993.

Luana K. Walsh, for appellant.

Lewis R. Slaton, Dist. Atty., Vivian D. Hoard, Suzanne Wynn, Asst. Dist. Attys., for appellee.

BIRDSONG, Presiding Judge.

Nikita Nichols a/k/a Nikita Richardo Nichols or William Thompson appeals his conviction of six counts of burglary, one count of aggravated assault, one count of theft of services, and the sentence. Held:

1. The grant or denial of a severance motion is within the trial court's discretion. Freeman v. State, 205 Ga.App. 112, 421 S.E.2d 308. Where the offenses are " ' "based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan," ' severance lies within the discretion of the trial court." Bailey v. State, 157 Ga.App. 222, 223-224(3), 276 S.E.2d 843. Compare Dobbs v. State, 204 Ga.App. 83(1), 418 S.E.2d 443. "The test for the court to consider is '(W)hether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense.' " Dobbs, supra at 84, 418 S.E.2d 443. The offenses were committed or initiated within ninety-two days; four of the burglaries were committed in the same apartment complex and within fifteen days of each other; all burglaries were of apartments; all offenses were committed within two miles of each other. Appellant used the rented apartment, the subject of the theft of services count (Count 8), to store certain stolen property from the burglaries; he also used documents that were missing following a burglary (for which he was not indicted) of an apartment in the same complex as the burglaries subject to Counts 1, 2, 3, and 5, to obtain the right of access to and use of the apartment. The aggravated assault occurred while the burglary charged in Count 5 was in progress. Items taken in the Count 3 burglary were found abandoned in the burglarized apartment where the aggravated assault occurred (Counts 4 and 5). While living in the apartment rented using the missing documents above discussed, appellant committed the Counts 6 and 7 burglaries. These missing documents were subsequently found abandoned in the burglarized apartment subject of Count 7. Items taken in Counts 1, 2, 6, and 7 were found in the apartment subject of Count 8. Appellant has failed to establish by the record that the jury was unable to distinguish the evidence and apply the law intelligently as pertains to each offense. The trial court did not abuse its discretion in denying the motion to sever.

2. The trial court did not err in refusing to strike the averred alias, William Thompson, from the indictment. Majors v. State, 203 Ga.App. 139, 143(7), 416 S.E.2d 156.

3. The trial court did not err in denying the motion to suppress certain items seized from appellant's apartment. In considering the legality of a seizure, this court may consider all relevant evidence of record. Jones v. State, 187 Ga.App. 421, 422-423, 370 S.E.2d 784.

(a) To be valid a search warrant must contain an adequate description of the person and/or premises to be searched; the test to be applied is outlined in Landers v. State, 183 Ga.App. 691(1), 359 S.E.2d 748. A John Doe Warrant is legally sufficient for search of described premises. Hout v. State, 190 Ga.App. 700, 701(1), 380 S.E.2d 330. The description of the premises to be searched was legally sufficient. Landers, supra.

(b) Appellant asserts the search warrant failed to describe sufficiently the items to be seized. "A warrant must describe the items to be seized with sufficient particularity to enable a prudent officer to identify them with 'reasonable certainty.' [Cit.] However, '(w)hen circumstances make an exact description of instrumentalities, a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking.' " Thomas v. State, 183 Ga.App. 819, 821(1), 360 S.E.2d 75. The items were described with sufficient particularity.

Further, the papers identified in the search warrant were not protected private papers under the Fourth Amendment of the United States Constitution, Art. I, Sec. I, Par. XIII, Georgia Constitution of 1983, or OCGA § 17-5-21(a)(5). Compare Ledesma v. State, 251 Ga. 885, 890(7a), 311 S.E.2d 427. Moreover, seizure of private papers is not precluded by law where those papers are the instrumentalities of a crime and the search is otherwise lawful. Ledesma, supra; compare Lowe v. State, 203 Ga.App. 277, 279(1), 416 S.E.2d 750.

Further, "[a]n officer conducting a lawful search is not precluded from seizing tangible evidence of the commission of a crime even though that evidence is not specifically listed in the search warrant." Banks v. State, 262 Ga. 190, 192(4), 415 S.E.2d 634. " 'It is not necessary under the law that the officer know with certainty that the item is stolen at the time of the seizure, only that there be probable cause to believe that this is the case.' " Jefferson v. State, 199 Ga.App. 594, 595, 405 S.E.2d 575.

(c) The record reveals that the officer executing the warrant visually examined items in plain view; however, it cannot reasonably be inferred from the record that the officer moved or physically touched these items prior to seizure. Thus, disposition of this case is not controlled by Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347. Compare State v. Field, 188 Ga.App. 639, 373 S.E.2d 815. Even under Arizona v. Hicks, supra 480 U.S. at 324, 107 S.Ct. at 1152 mere visual observation of and recording serial numbers from the objects "did not constitute a seizure."

(d) Appellant argues that because the police knew appellant had committed other burglaries they were seeking to find incriminating items from those burglaries during their search, and that accordingly those items were required to be listed on the warrant. In Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112, the United States Supreme Court in effect modified its plurality holding in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; no longer is "inadvertence" a necessary condition for a legitimate plain-view seizure. Compare King v. State, 200 Ga.App. 801, 804(4), 409 S.E.2d 865. " ' "(T)he expectation that ... evidence will be discovered does not preclude operation of the plain view exception to the warrant requirement." [Cits.]' " State v. Echols, 204 Ga.App. 630, 631, 420 S.E.2d 64; see King, supra. "It is ... an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." Horton, supra 496 U.S. at 136, 110 S.Ct. at 2308. We conclude that at the time the items in question were seized they were in plain view and the officer executing the warrant was lawfully engaged in a search of the premises for the documents specified in the warrant. However, "[t]here are ... two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view [as they were in this case]; its incriminating character must also be 'immediately apparent.' ... Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have[, as the officer here did,] a lawful right of access to the object itself." Id. at 136-137, 110 S.Ct. at 2308; see in tHE interest oF A.B., 194 gA.app. 665, 391 S.E.2d 683.

Prior to the seizure of all the objects in plain view, the police had probable cause to believe that the objects were the fruits or instrumentalities of a crime; or, in the case of any item from which the identification marks had been removed, an object whose incriminating character was otherwise immediately apparent (see, e.g., OCGA § 16-9-70(a)), within the meaning of Horton, supra. Items may be seized when probable cause exists that such items are tangible evidence of the commission of a crime. OCGA § 17-5-21.

Moreover, as to those items seized whose identification marks (serial numbers) had not been removed, the incriminating character of the items also was immediately apparent to the police before actual seizure was accomplished. Additionally, no seizure occurred of the items which had been stolen during the Mitchner burglary--the stolen property status of which was established only by means of a phone call to police headquarters initiated after the items were observed in plain view and catalogued--until after that call was completed and the officer had probable cause to believe the items had been stolen. Thus, at the time of seizure, the incriminating character of the Mitchner burglary items also was immediately apparent within the meaning of Horton, supra.

4. The trial court did not abuse its discretion in failing to strike the juror who apparently had been twice burglarized and whose uncle was murdered within the last year during a burglary. The juror, a paralegal,...