Rooks v. State, No. A99A0313

• Decision Date: 20 May 1999
• Docket Number: No. A99A0313, No. A99A0355.
• Citation: 518 S.E.2d 179,238 Ga. App. 177
• Parties: ROOKS v. The STATE. Monroe v. The State.
• Court: Georgia Court of Appeals

518 S.E.2d 179

238 Ga. App. 177

ROOKS v. The STATE.

Monroe v. The State.

Nos. A99A0313, A99A0355.

Court of Appeals of Georgia.

May 20, 1999.

Bellury & Luton, Evelyn P. Luton, Milledgeville, for appellant (case no. A99A0313).

Jerry Boykin, Smyrna, for appellant (case no. A99A0355).

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee. POPE, Presiding Judge.

Harold Rooks appeals from his convictions for armed robbery, aggravated assault, attempt to elude, reckless driving, speeding, and driving with no license or proof of insurance. Frederick Monroe appeals from his convictions for armed robbery and aggravated assault.

On or about August 24, 1995, four men arrived at the Corral Food Store in Milledgeville, Georgia. At around 3:30 a.m., Lee Wilkins, who was dozing outside the store, was awakened by a man ordering him out of the car and pointing a shotgun in his face. Two other men, at least one of whom held a pistol, were also present. The men demanded that Wilkins go behind the store. Wilkins refused and the men forced him into the store, where two clerks were inside. Three men, one armed with a shotgun and two armed with pistols, then demanded money. After the two clerks handed the money over, the men backed out of the store and took off. Rooks and Monroe were identified at trial as two of the gunmen in the store. The store employees then called 911 to report the crime. A short time later a shotgun blast was fired through the store's window. After the crime was reported, the police observed a burgundy Ford Explorer exiting a parking lot from behind the store. A multi-county, high-speed chase ensued and ended only when the car crashed in Macon, Georgia, killing two of the passengers. Rooks and Monroe were pulled from the wreckage alive.

Case No. A99A0313

1. In his sole enumeration, Rooks asserts that the trial court erred in admitting an audiotape of the 911 call made from the store because the defense had not been allowed to listen to the tape at least ten days before trial as required by OCGA § 17-16-4(a)(3).¹ When the state tried to introduce the tape at trial, counsel for both Rooks and Monroe objected stating that they did not recall seeing the tape during the prior discovery exchange with the state. The prosecutor, on the other hand, recalled showing the tape to Rooks' and Monroe's counsel at the discovery exchange and discussing its contents. Monroe's counsel conceded that the tape could have been there, noting that the prosecution had been "very truthful with me and very open with me. I just simply don't remember it." Defendants' counsel listened to the tape shortly before the trial began.

Assuming arguendo that the state failed to comply with the discovery statute, we find no error in the admission of the tape. The discovery statute grants broad discretion to the trial court in remedying any violations of its provisions. Marshall v. State, 230 Ga.App. 116, 118(2), 495 S.E.2d 585 (1998).

[T]he court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

OCGA § 17-16-6.

In enacting this statute, the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial.

(Citation and punctuation omitted.) Peeples v. State, 234 Ga.App. 454, 456(2), 507 S.E.2d 197 (1998).

In this instance, although Rooks now argues he was prejudiced because he was not prepared to address the discrepancies between the 911 tape and the victims' testimony at trial, he never asserted this argument before the trial court and never requested a continuance to allow further preparation. The defendants objected only that the state had failed to produce the tape earlier. The trial judge then ascertained that counsel had had the opportunity to listen to the tape before allowing its admission into evidence. We find that the trial court acted within its discretion in allowing the 911 tape into evidence and that no abuse occurred. See McWhorter v. State, 229 Ga.App. 875, 876 (2), 495 S.E.2d 139 (1997); Hammitt v. State, 225 Ga.App. 21, 22, 482 S.E.2d 437 (1997) (physical precedent only).

Case No. A99A0355

2. In his first enumeration, Monroe argues his conviction for aggravated assault merged into his armed robbery convictions because the same evidence was used to convict him of both charges.

The offenses of aggravated assault and armed robbery do not merge as a matter of law. Brantley v. State, 230 Ga.App. 651, 652(2), 497 S.E.2d 399 (1998). However, the offenses may merge as a matter of fact, and

"[t]he key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge."

(Citation omitted.) Reeves v. State, 233 Ga. App. 802, 805(2), 505 S.E.2d 540 (1998).

Monroe was convicted on two counts of armed robbery, each count relating to one of the two clerks in the store. His conviction for aggravated assault, however, was based upon a charge that he had assaulted Lee Wilkins with a firearm. The jury was unable to reach a decision on additional aggravated assault charges against Monroe as to the two store clerks, and a mistrial was declared as to those counts.

"If the pointing of a firearm places the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred. [Cits.]" (Punctuation omitted.) Dunagan v. State, 269 Ga. 590, 593(2)(b), 502 S.E.2d 726 (1998). The evidence at trial supported a finding that the offense of aggravated assault was complete when Lee Wilkins was accosted at gunpoint in his truck, before the defendants even entered the store. The armed robbery of the two clerks then occurred after the men entered the store. Alternatively, the jury could have found that the aggravated assault occurred when the shotgun blast was fired through the window of the store, after the completion of the robbery. Either way, "`the underlying facts used to prove each offense are different and the evidence showed that one crime was complete before the other occurred.'" (Citations omitted.) Reeves v. State, 233 Ga.App. at 805, 505 S.E.2d 540. Accordingly, no merger occurred. See, id.; Guild v. State, 234 Ga.App. 862, 865(3), 508 S.E.2d 231 (1998).

3. Monroe next asserts that the trial court erred when it allowed a statement made by his co-defendant Rooks into evidence in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Rooks' original statement directly implicated Monroe in the crimes. At trial, however, the only evidence of the statement came through the testimony of the investigating officer. The officer testified that Rooks told him that he was in the Ford Explorer that night with Monroe and the two other men when they stopped at the Corral Food Store. That was the only reference to Monroe by name. The officer then testified, "Mr. Rooks said he went into the store first and that the other men came in after he did. He said they had guns and that they began robbing the store." The testimony then proceeded with continued references to "they" and "the other men." Rooks did not testify.

Every defendant has the right under the Sixth Amendment to be confronted with the witnesses against him. Bruton holds that the right of confrontation is violated when several co-defendants are all tried jointly, one defendant's confession is used to implicate another defendant in the crime, and the confessor does not take the stand. The result is that the accusing co-defendant cannot be cross-examined....

(Citation and punctuation omitted.) Hodges v. State, 229 Ga.App. 475, 477(2), 494 S.E.2d 223 (1997).

In a recent opinion, the U.S. Supreme Court further explained the protection offered by the Confrontation Clause. It stated that the Confrontation Clause is not violated by "statements that [do] not refer directly to the defendant himself and which [become] incriminating `only when linked with evidence introduced later at trial.'" Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 1157, 140 L.Ed.2d 294 (1998). However, "statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial" do fall within the protection of Bruton. Id.

The Supreme Court of Georgia, "[f]ollowing the lead of the U.S. Supreme Court," recently held

that, unless the statement is otherwise directly admissible against the defendant, the Confrontation Clause is violated by the admission of a nontestifying co-defendant's statement which inculpates the defendant by referring to the defendant's name or existence, regardless of the existence of limiting instructions and of whether the incriminated defendant has made an interlocking incriminating statement. A co-defendant's statement meets the Confrontation Clause's standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant.

Hanifa v. State, 269 Ga. 797, 803(2), 505 S.E.2d 731 (1998).

In this instance, the testimony was that Rooks told police that he was in the car that night with three other men, including Monroe. Rooks then said that the men...