Sanders v. State

• Decision Date: 19 February 1999
• Docket Number: No. A99A0481.,A99A0481.
• Citation: 512 S.E.2d 678,236 Ga. App. 578
• Parties: SANDERS v. The STATE.
• Court: Georgia Court of Appeals

512 S.E.2d 678

236 Ga. App. 578

SANDERS v. The STATE.

No. A99A0481.

Court of Appeals of Georgia.

February 19, 1999.

Mark S. Martin, Warner Robins, for appellant. John R. Parks, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

Appellant Ernest E. Sanders challenges his convictions for two counts of armed robbery and one count of burglary. We affirm.

"On appeal[,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]" Grant v. State, 195 Ga. App. 463, 464, 393 S.E.2d 737 (1990); see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Viewed in such light, the evidence shows that, on January 4, 1996, Ernest Powell arrived at his home in Oglethorpe, Georgia, and found his furnishings and possessions in disarray. Moments later, he heard noises in the back of the home, and when he walked back there, he was confronted by Sanders, who was pointing a handgun directly at Powell's face. Sanders cursed at Powell and grabbed Powell's gold chain necklace. As Powell "swung at him," Sanders fell out the door, then got up and ran away. Powell pursued Sanders and soon saw Sanders at the home of Gladys Baldwin, Sanders' aunt. Powell went to the Oglethorpe police station, and a police officer drove Powell to Baldwin's home. While Powell was still in the police vehicle, he identified Sanders as the robber. The officer approached Sanders, and before he could tell Sanders why he was there, Sanders pointed to the vehicle and spontaneously said "I haven't done anything to that m___ f___." Sanders then attempted to flee, but was apprehended, arrested, and charged with burglary and armed robbery. The trial court appointed Donald Lamberth to serve as his attorney. Lamberth arranged for bail, and Baldwin bailed Sanders out on January 11, 1996.

A few days later, while Sanders was out on bail on the first armed robbery, Sanders again was at Baldwin's home when Harold Hankerson stopped by. As Hankerson left a short while later, he saw someone running toward him on the street. Hankerson realized it was Sanders. Sanders pointed a handgun at Hankerson's head, grabbed his wallet, and demanded "Give it up." Hankerson, who was armed with his own handgun, gave Sanders his handgun. Sanders ran back to his aunt's home. Hankerson reported the incident to police officers, who arrested Sanders shortly thereafter. Sanders was indicted on one count of armed robbery. Lamberth was again appointed as Sanders' attorney and represented Sanders on both armed robberies. Lamberth discussed the cases with Sanders on several occasions, participated in discovery, and interviewed witnesses.

Although the record is conflicting, it shows that sometime in the months prior to trial, Sanders' mother arranged for another attorney, Henry Williams, to represent Sanders on one or both of the charges. However, due to a fee dispute, Williams withdrew from the cases on July 1, 1996, and Lamberth renewed his representation on both cases at least two weeks before the trial calendar. Both cases were listed separately on the August 27, 1996 trial calendar. At the urging of the district attorney, the trial court joined the cases for trial. Lamberth had not been aware of the State's intention to join the cases and objected to the joinder, but his objection was overruled.

Lamberth represented Sanders during the jury trial, which was conducted the same day, August 27, 1996. Sanders was convicted on all counts. He filed a motion for new trial, which was denied. This appeal follows. Held:

1. In his first enumeration of error, Sanders claims that the trial court erred when it overruled his objection¹ to the decision to join the armed robbery charges. We disagree.

(a) Joinder of offenses is allowed when two or more offenses (1) have the same or similar character, even though they are not part of a single scheme or plan; (2) are based on the same conduct; (3) are based on a series of connected acts; or (4) constituted parts of a single scheme or plan. Davis v. State, 223 Ga.App. 346, 348, 477 S.E.2d 639 (1996); see also OCGA § 16-1-7(b). The Supreme Court has held that, because of the great risk of the "smear effect," i.e., prejudice from the joint disposition of unrelated charges, a defendant has an absolute right, upon proper motion, to have offenses severed for trial "where the offenses have been joined solely on the ground that they are of the same or similar character." (Emphasis supplied.) Carter v. State, 261 Ga. 344(1), 404 S.E.2d 432 (1991), citing Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975). See also Davis v. State, supra at 349, 477 S.E.2d 639. However, "[o]ffenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind." (Citations and punctuation omitted; emphasis in original.) Whitfield v. State, 217 Ga.App. 402, 403(1), 457 S.E.2d 682 (1995).

In this case, Sanders was charged with two separate counts of armed robbery, as well as one count of burglary. Both armed robberies occurred within 16 days of each other; in fact, the second armed robbery occurred only days after Sanders was released on bond for the first armed robbery. The offenses occurred in the same neighborhood, only blocks apart. In both cases, the defendant surprised the victims, who knew or previously had seen the defendant. Sanders pointed a handgun at their heads, suddenly snatched their valuables, and then ran to his aunt's home. Accordingly, as the charges were not joined solely because of their similar nature, i.e., the fact that they were both armed robberies, Sanders was not automatically entitled to severance of the charges.

(b) When charges are joined for reasons in addition to their similar character, the trial court has the discretion to grant a motion for severance. In exercising this discretion, the trial court "should consider whether[,] in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense." (Citations and punctuation omitted.) Davis v. State, supra at 349, 477 S.E.2d 639. See also OCGA§ 16-1-7(c).

As to whether the trial court abused its discretion in joining these cases, the record shows that there was sufficient evidence for a rational factfinder to find Sanders guilty of each individual charge beyond a reasonable doubt. See Jackson v. Virginia, supra. Further, "the crimes were simple, involved only one defendant and one victim each time, ... the court clearly charged the jury to consider each charge separately[,] ... and the jury announced its verdict on each count separately. There was nothing complex about these two offenses such as could make it difficult for the trier of fact to distinguish the evidence and apply the law intelligently as to each offense. Lastly, the risk of prejudice (`smear effect') from this joint disposition was minimal." (Citations and punctuation omitted.) Davis v. State, supra at 349, 477 S.E.2d 639. "The evidence of [either act] could have been introduced at the trial of [the other], which negates any claim that [Sanders] was impermissibly prejudiced by the trial of the charges...