Smith v. State

• Decision Date: 17 September 1987
• Docket Number: No. 74723,74723
• Citation: Smith v. State, 362 S.E.2d 384, 184 Ga.App. 739 (Ga. App. 1987)
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 384

362 S.E.2d 384

184 Ga.App. 739

SMITH v.The STATE.

No. 74723.

Court of Appeals of Georgia.

Sept. 17, 1987.

Rehearing Denied Nov. 4, 1987.

Certiorari Denied Feb. 5, 1988.

Frank B. Hester, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Benjamin H. Oehlert III and Doris L. Downs, Asst. Dist. Attys., for appellee.

BIRDSONG, Chief Judge.

Michael Marceya Smith a/k/a Van Moody a/k/a Michael Scott was tried by jury for armed robbery of a UPS truck and driver, and found guilty.Smith was not present during his trial because he escaped custody of his guard in the courthouse, after the jury had been impaneled but before evidence was taken.Several jurors saw the escape but several did not.Over objection and motion for mistrial, the trial court allowed the guarding deputy to testify that appellant had escaped.

The appellant urges the overturning of the armed robbery verdict because of the prejudicial effect of proceeding with trial after the escape, because of the jury's knowledge of the escape, and because of the admission of the deputy's testimony as to the escape, all of which he contends deprived him of his constitutional rights on every ground.Held:

The evidence showed two men abducted the UPS driver in downtown Atlanta using a gun and threatening bodily harm; and that the driver observed them for several minutes while they threatened to shoot him.When he was let go and was told to run or he would be shot, he did run, but looked back to see one of the robbers moving as if to get in a parked black Chevrolet Malibu with its emergency lights blinking.When the robber saw the victim looking, he got back in the truck and the two robbers drove north on Piedmont Avenue.The victim truck driver called the police; he told them about the truck heist and about the parked Malibu that one of the robbers had appeared to be going towards.The truck was soon found abandoned; the black Malibu was found parked where the victim said it was, 30 or 40 feet from the exit ramp of the parking garage where the UPS truck and driver had been overtaken.A patrolman parked his car across the street from where the black Malibu was still illegally parked with its lights still flashing.Finally, about three hours after the robbery, a man who fit a description given by the UPS driver, walked towards the Malibu and got in it.The patrolman gave chase along with two other policemen in another car.The chase led onto Interstate 75/85 and then to Interstate 20.Finally, the man exited at Lee Street, abandoned the Malibu, ran through a building (being chased by a security guard) and then ran through a construction site where he was seen jumping into a dumpster.

The pursuers surrounded the dumpster and thus the appellant was captured.He was removed to the police station, robbery division, and was searched for weapons.A key was found in his pocket.This key had numbers on it and was identified by the UPS driver as the key to the back door of his UPS van which the robber had taken from the driver's key ring.Also, the victim was shown a photographic lineup and unhesitatingly selected appellant's photo as being that of one of the robbers.

This evidence is such that a reasonable trier of fact could rationally have found proof of appellant's guilt of armed robbery beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.The evidence directly connecting the appellant with the armed robbery of the UPS truck and driver is, we think, overwhelming, even in the face of the appellant's voluntary absence from his trial and the consequent inability of the victim to physically identify him at the trial.

The admission of the evidence of escape and the fact that some jurors observed the escape do not justify overturning this conviction.The testimony of the guard explained appellant's absence.The evidence had probative value for jury consideration.In Carver v. State, 137 Ga.App. 240(1), 223 S.E.2d 275, we upheld a conviction over similar...