Pearson v. State

Decision Date14 November 2002
Docket NumberNo. A03A0090.,A03A0090.
Citation258 Ga. App. 651,574 S.E.2d 820
PartiesPEARSON v. The STATE.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

John T. Strauss, Covington, for appellant.

W. Kendall Wynne, Jr., Dist. Atty., Jeffrey L. Foster, Asst. Dist. Atty., for appellee. ELDRIDGE, Judge.

A Walton County jury found Isaac Pearson guilty of twenty felony counts as follows: one count of kidnapping with bodily injury; two counts of kidnapping; one count of burglary; one count of armed robbery; one count of aggravated battery; three counts of aggravated assault; one count of hijacking a motor vehicle; and ten counts of possession of a firearm during the commission of a crime. Pearson appeals his conviction, and upon review of the record, we affirm.

Viewed to support the verdict,1 the evidence of record shows that Pearson and three other men approached Edward Walton outside his mother's house. Pearson was carrying a handgun, as was each of the men with him. Walton was struck in the head with a gun, and his arms and legs were strapped with duct tape. Pearson and the other perpetrators dragged Walton into the kitchen of his mother's house and beat him while demanding drugs and money; Walton insisted that he had no drugs or money.

Pearson located Walton's mother, Edna Walton, in the house; he put a gun to her head and forced her into the living room. Walton's aunt, Floydia Whipple, was forced at gunpoint from her bedroom into the living room. The perpetrators removed money from Whipple's purse; $300 was also removed from Mrs. Walton's purse on her dresser. The women were taken to the kitchen and made to get on their knees. Thereafter, Pearson forced the women at gunpoint into a back bedroom. The women's arms and legs were bound with duct tape.

Still demanding drugs and money, Pearson and the perpetrators located an electric iron in the house and plugged it into an outlet in a bathroom. Edward Walton testified, "So they plugged the iron up, my mama's house iron up in the bathroom, and they drug me back in the hallway and they pulled my pants down and they went to putting the iron all over my body and stuff demanding the money." Photographic exhibits of the burns sustained by Walton corroborate his testimony and show extensive injuries.

When such methods did not produce information about drugs and money, Pearson and the other perpetrators took the keys to a Chevrolet Tahoe from Walton's bedroom dresser. Walton was dragged from the house and placed into the backseat of the Tahoe; he was told, "You gonna tell us where somebody got some money.... We fixing to take your ass with us and we're going to kill you if you don't." Edward Walton was driven around for approximately 15 minutes with accompanying threats that "we fixing to take your ass and kill you and throw you in a pond or lake somewhere." Meanwhile, his mother had freed herself from the duct tape, and the police had been called. A lookout was placed on Mrs. Walton's Tahoe. A patrol officer spotted the vehicle at the intersection of Highway 78 and Sardis Church Road near Loganville. The officer followed the Tahoe, which was "taking off at a pretty fast pace." Shortly thereafter, the Tahoe wrecked, and the perpetrators fled. Edward Walton was able to escape. Subsequent investigation led to Pearson's arrest. Held:

1. Pearson challenges the sufficiency of the evidence against him only as to his conviction for the offense of hijacking a motor vehicle; he contends that there was no evidence that he took the vehicle in question from "the immediate presence" of the victim as required by OCGA § 16-5-44.1(b). We disagree.

A person commits the offense of hijacking a motor vehicle when such person "while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so."2 "We have construed similar language in the armed robbery statute, OCGA § 16-8-41(a). In that context, `immediate presence' has been held to extend fairly far, and robbery convictions are upheld even out of the physical presence of the victim."3 Here, although Edward Walton was not initially in the Tahoe, it was parked just outside his house, and "he could have accessed it within seconds."4 In addition, the keys were removed from Walton's dresser, i.e., his control, by a perpetrator armed with a handgun, and Walton was then forced into the back of the Tahoe at gunpoint as the vehicle was "taken" in his presence. "Given these circumstances, the jury was authorized to find that [Pearson] took the [Tahoe] from [Walton's] `person or presence' for purposes of the offense of hijacking a motor vehicle."5

2. Next, Pearson claims the 20count indictment was flawed because only the first count followed the form authorized by OCGA § 17-7-54, while the remainder of the counts were stated in the language of an accusation.

The face of the indictment lists all of the 20 counts charged against Pearson, and immediately under such list, the foreman of the grand jury, John H. Redding, signed his name attesting to the fact that a true bill was returned during the May Term 2000 as to such counts, under Indictment No. 00CR-0433-3. Each count of the indictment is on a page marked "Bill of Indictment" with the corresponding Indictment No. 00CR-0433-3. The true bill was filed with the court on June 19, 2000, and Pearson waived formal arraignment and entered a "not guilty" plea to the indictment on July 6, 2000. Thus, and in the absence of any evidence to the contrary, the record sufficiently shows that Pearson joined issue and was tried on an indictment returned by the grand jury, not on an accusation.

We agree with Pearson, however, that Counts 2 through 20 of the indictment are not stated in the language contemplated by OCGA § 17-7-54(b); but this complaint goes solely to the form of the indictment, not the merits.6 And it is well established that, "All exceptions which go merely to the form of an indictment or accusation shall be made before trial."7 No such exception having been made in this case, the instant claim of error is waived. 8

As Pearson was tried on an indictment, his reliance on OCGA § 17-7-70(a) and related cases concerning the State's failure to try a defendant on a felony indictment or obtain a written waiver of indictment is misplaced.9 Accordingly, there is no merit to Pearson's attempts to avoid waiver by claiming his convictions are "null and void" as having been obtained without indictment or a written waiver thereof.10

In addition, Pearson's motion in arrest of judgment filed on February 19, 2002, is insufficient to preserve the instant claim of error. Such motion is the wrong vehicle by which to challenge the form of an indictment.11 Moreover, the motion was filed over a year after the verdict was returned and judgment entered; thus, the trial court was authorized to deny the motion as untimely.12

3. Pearson contends that Count 9 of the indictment charging him with hijacking a motor vehicle is "null and void"; he asserts that, contrary to the hijacking statute, OCGA § 16-5-44.1, Count 9 alleges "the forcible act by means of which the theft occurred did not involve the use of a weapon, but hands to bind the victims" with duct tape. We disagree.

(a) Pearson failed to raise the instant claim of error by way of either a general demurrer or a timely filed motion in arrest of judgment.

If the indictment was void for any reason, the question should have been raised by demurrer before pleading to the merits, or by motion in arrest of judgment after conviction. No demurrers or [timely] motions in arrest of judgment were filed by [Pearson].... Under controlling Supreme Court authority, [Pearson's] motion for new trial cannot be considered to be a viable procedural substitute for a motion in arrest of judgment.13

Therefore, we find that the instant claim of error has not been preserved for appellate review.

(b) A person commits the offense of hijacking a motor vehicle when such person "while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so."14 The indictment in this case charged Pearson with hijacking a motor vehicle in that Pearson:

while in possession of a firearm, to wit: a pistol, make and model unknown, obtained a motor vehicle from another by violence and intimidation, to wit: did take a 1998 Chevrolet Tahoe from the presence of Edna Walton and Edward Jerome Walton, by beating Edward Walton and binding both with duct tape.

The allegata of Count 9 of the indictment contains the essential elements of the offense, i.e., that Pearson was in possession of a weapon; that he took a vehicle from the person or presence of another while in possession of such weapon; and that he used force, violence, or intimidation to accomplish the taking. Accordingly, Count 9 is sufficient to withstand demurrer.15 There is no requirement, as Pearson appears to suggest, that the force, violence, or intimidation which accompanies a hijacking be carried out specifically by using the firearm/weapon in a forceful act. OCGA § 16-5-44.1(b) requires that the defendant be clearly in possession of a firearm/weapon during the hijacking.

4. In his next claim of error, Pearson alleges he received ineffective assistance of counsel based on counsel's failure to demur to the indictment on the bases articulated in Divisions 2 and 3, supra, which failure results in waiver as to the merits of the contentions asserted therein. However, this claim of error, too, is waived for the reasons that follow.

On February 22, 2001, Pearson was appointed appellate counsel to pursue a motion for new trial. Such motion as filed and amended alleged, inter alia, ineffective assistance of counsel against Pearson's trial attorney on several...

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3 cases
  • State v. Marlowe
    • United States
    • Georgia Supreme Court
    • November 17, 2003
    ...victim. However, the possession charge predicated on the burglary count, a crime involving illegal entry into a building, would stand. In Pearson, the Court of Appeals permitted ten possession offenses simply because there were ten predicate felonies. A proper analysis permits three possess......
  • Little v. State, A03A1196.
    • United States
    • Georgia Court of Appeals
    • November 5, 2003
    ...if the same weapon is used in the commission of the underlying crime.2 However, the cases to which the writ was granted are inapposite. Pearson v. State involved multiple crimes committed against two victims during a single incident—a home invasion.3 We affirmed the defendant's conviction o......
  • Pearson v. State, A03A0090.
    • United States
    • Georgia Court of Appeals
    • January 9, 2003
    ...17, 2003, Case No. S03G0564, the Supreme Court of Georgia reversed this Court's opinion in the above-captioned case, Pearson v. State, 258 Ga.App. 651, 574 S.E.2d 820 (2002), with regard to ten indicted counts of possession of a firearm during the commission of a felony. Based on the notion......

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