Sims v. State, 34317

• Decision Date: 06 February 1979
• Docket Number: No. 34317,34317
• Citation: 252 S.E.2d 501,243 Ga. 83
• Parties: SIMS v. The STATE.
• Court: Georgia Supreme Court

Page 501

252 S.E.2d 501

243 Ga. 83

SIMS v. The STATE.

No. 34317.

Supreme Court of Georgia.

Submitted Jan. 8, 1979.

Decided Feb. 6, 1979.

Myers, Parks & Fennessy, Michael A. Fennessy, Americus, for appellant.

Claude N. Morris, Dist. Atty., Howard S. McKelvey, Jr., Asst. Dist. Atty., Americus, Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., for appellee.

BOWLES, Justice.

Appellant Charlie Lee Sims was indicted by a Sumter County grand jury for armed robbery and felony murder. He was tried along with two co-defendants and found guilty of both offenses. His co-defendants, indicted on the same two counts, were found guilty of armed robbery, and a mistrial was declared as to the felony murder charges against them. The trial court, finding the armed robbery count to be an integral part of and merged into the felony murder count, vacated appellant's conviction of armed robbery, and sentenced appellant to life imprisonment for murder. We affirm.

1. Appellant complains that the trial court erred in allowing a witness to testify, over objection, as to incriminating statements allegedly made to her by appellant, in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and Reddish v. State, 238 Ga. 136, 231 S.E.2d 737 (1977). The testimony objected to is that of Robenna Butts, who repeated a statement made by appellant to her that, "he might have killed a man for $5.00."

The rule enunciated in Bruton, supra, prohibits the statement or confession of a co-defendant who does not testify at a joint trial, to be used to implicate other co-defendants. Bruton, supra, was decided on Sixth Amendment principles, which protects a defendant's right to confrontation of witnesses.

The Bruton rule is inapposite here. Appellant is attacking his own statement, implicating only himself. He was afforded a full opportunity to cross-examine the witness Robenna Butts concerning her testimony. We find no error in allowing the testimony. Appellant's first enumeration of error is without merit.

2. At the trial of all three defendants, James Looney, a detective with the Americus Police Department, testified that he obtained a written statement from co-defendant Oscar Lee Lester, which led to additional evidence in appellant's case. Lester's statement was found to have been obtained in violation of the Juvenile Court Code and was held to be inadmissible at the joint trial.

Appellant complains of the admission of certain evidence, which he contends was obtained as a direct result of the illegal confession of his co-defendant. The evidence objected to was the testimony of three State's witnesses implicating appellant as a participant in the murder and robbery, a .22 caliber rifle identified as the murder weapon, and testimony of a ballistics expert regarding ballistics tests performed on the murder weapon.

We find that appellant lacks standing to attack the admission of the murder weapon and the testimony of state's witnesses as being "fruit of the poisonous tree." A party will not be heard to complain of the violation of another person's constitutional rights. The only person with standing to complain of the admission of fruits gained from an illegally obtained confession would be the person who made the confession. In this case, that person is Oscar Lee Lester, not appellant. See: Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), reh. d. 394 U.S. 939, 89 S.Ct. 1177, 22 L.Ed.2d 475 (1969); Gissendanner v. Wainwright, 482 F.2d 1293 (5th Cir. 1973); U. S. v. Dowdy, 486 F.2d 1042, 1043 (5th Cir. 1973); Grantling v. State, 229 Ga. 746, 747, 194 S.E.2d 405 (1972); Wisdom v. State, 234 Ga. 650, 657, 217 S.E.2d 244 (1975); Lively v. State, 237 Ga. 35, 36, 226 S.E.2d 581 (1976).

Appellant's enumerations of error two, three and four concerning the admissibility of the murder weapon and testimony of State's witnesses are without merit.

3. Appellant complains that the trial court erred in admitting the testimony of the State's ballistics expert regarding tests performed on the bullet allegedly removed from the victim, for the...