Tesfaye v. State, S02A0953.

• Decision Date: 16 September 2002
• Docket Number: No. S02A0953.,S02A0953.
• Citation: 275 Ga. 439,569 S.E.2d 849
• Parties: TESFAYE v. The STATE.
• Court: Georgia Supreme Court

569 S.E.2d 849

275 Ga. 439

TESFAYE v. The STATE.

No. S02A0953.

Supreme Court of Georgia.

September 16, 2002.

Zell & Zell, Rodney S. Zell, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Christopher M. Quinn, Asst. Dist. Atty., Bettieanne C. Hart, Deputy Dist. Atty., Thurbert E. Baker, Atty. Gen., Jill M. Zubler, Asst. Atty. Gen., for appellee. BENHAM, Justice.

Appellant Bruke Tesfaye was found guilty of and sentenced for committing malice murder, armed robbery, kidnaping, kidnaping with bodily harm, and possession of a firearm in the commission of a crime.¹ After reviewing the enumeration of errors set out by appellant, we affirm the judgment of conviction, but remand the case to the trial court for re-sentencing on the armed robbery conviction.

1. The State presented evidence that two men, one of whom was carrying a gun, entered a Fulton County liquor store in April 1997 and pushed a store employee into a walk-in cooler. One perpetrator removed money from the cash register while the other forced the store owner, Prem Sharma, into a back room where a safe was located. The keys to Sharma's vehicle were taken from him, and he was beaten about his face and head and fatally shot in the chest. The two men drove away from the liquor store in the victim's van and abandoned it several blocks away. Fourteen months later, appellant Bruke Tesfaye walked into the American embassy in Addis Ababa, Ethiopia, reported his involvement in a murder in a liquor store in Atlanta, and asked for assistance in returning to Georgia. While on the airplane from Ethiopia to the United States, appellant told the FBI agent accompanying him of his involvement in the crimes committed at the liquor store. Appellant repeated his story to another FBI agent who met the plane when it landed in the United States, telling the second agent he had taken approximately $340 from the cash register while his accomplice attempted to get the victim to open the store safe. At appellant's trial, the two FBI agents and the embassy employee testified to what appellant had told them about his participation in the liquor store armed robbery that resulted in the death of Prem Sharma. In addition, a regular customer of the victim's liquor store testified he saw two men, one of whom he identified as appellant's coindictee, just outside the liquor store the morning the owner was killed. While he could not identify the second man because he did not see his face, the witness stated the second man called the witness by name and, upon reflection, the witness realized from the man's accent, walk, eyes, and association with the co-indictee, that the man was appellant. The evidence was sufficient to authorize appellant's convictions. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); OCGA § 16-2-20 (party to a crime); Howze v. State, 201 Ga.App. 96, 97, 410 S.E.2d 323 (1991) (if accomplice carries a gun, defendant need not have actual possession of the firearm to be found guilty of armed robbery and possession of a firearm during the commission of a crime); Clements v. State, 84 Ga. 660(1), 11 S.E. 505(1890) (robbery occurs when perpetrators keep victim away from near-by site from which the victim's property is taken).

2. Appellant complains the testimony concerning the statements he made to the FBI agents was not admissible because the statements were made after he had invoked his right to counsel. At a pre-trial hearing, the FBI agent who met appellant in Ethiopia and accompanied him on the plane to the United States testified that appellant was not under arrest since the agent had no authority to arrest appellant or have him arrested in Ethiopia because Ethiopia has no extradition treaty with the United States. Nonetheless, the agent had read the Miranda rights to appellant when he met him at the American embassy and all questioning had ceased when appellant declined to make a written statement without counsel. The next day, several hours into the airline flight from Ethiopia, appellant began telling the agent about his life and talked about the liquor store shooting and robbery. The FBI agent testified he asked no questions of appellant. The second FBI agent testified she met appellant's plane when it landed in the United States and appellant told her of his involvement in the crimes at issue after having been informed of his Miranda rights and executing a waiver of rights. The trial court found that appellant initiated the airplane conversation the day after he declined to execute a written statement without counsel and thereby knowingly and intelligently waived his previously-invoked right to have counsel present during custodial interrogation.

Custodial interrogation of an accused must cease upon the accused's invocation of the right to counsel, but an accused may waive the previously-invoked right by initiating further communication with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Walton v. State, 267 Ga. 713(3), 482 S.E.2d 330 (1997). The trial court's determination that appellant initiated the conversation with the FBI agent on the airplane is supported by the evidence and therefore is not clearly erroneous. White v. State, 255 Ga. 210(2), 336 S.E.2d 777 (1985). Accordingly, the trial court did not err when it declined to suppress appellant's statements to the agent. Since appellant waived his previously-invoked right to have counsel present during custodial interrogation, was again informed of his rights, and executed a written waiver of rights, his statement to the second FBI agent upon arrival in the United States was also correctly found to be admissible. See Ottis v. State, 269 Ga. 151(2), 496 S.E.2d 264 (1998); Guimond v. State, 259 Ga. 752(2), 386 S.E.2d 158 (1989).

3. The indictment charging appellant with malice murder alleged that appellant and his co-indictee "did unlawfully and with malice aforethought cause the death of Prem Sharma, a human being, by shooting him with a firearm...." Because the means of killing were set out in the indictment, appellant posits that the means are an essential element of the crime and, relying on the trial court's duty to give appropriate instructions as to the law on each substantive point of the case (Driver v. State, 194 Ga. 561(1), 22 S.E.2d 83 (1942)), contends the trial court was required to instruct the jury specifically that the jury had to find the victim had died as a result of having been shot in order to find appellant guilty. Appellant maintains such an instruction was important in the case at bar because the forensic pathologist who performed the victim's autopsy testified that the victim could have bled to death from the head lacerations he suffered. However, the pathologist's testimony was clarified when he stated unequivocally that the gunshot wound to the chest was the "primary and severe and obvious cause of his death," with the head injuries being a "significant condition." In light of the expert's testimony and the fact that the jury was given the pattern jury instruction on malice murder, was told that the State was required to prove every material allegation of the indictment and every essential element of the crime beyond a reasonable doubt, and was informed that appellant could not be convicted unless each element was proven beyond a reasonable doubt, there was no reversible error as a result of the trial court's failure to inform the jury that they had to find the victim had died from a gunshot wound before they could convict appellant of malice murder. See Henderson v. State, 252 Ga.App. 295(1a), 556 S.E.2d 204 (2001).

4. Appellant was charged with two counts of armed robbery of Mr. Sharma. One count charged appellant and his co-indictee with taking United States currency from the victim, and the other count charged the perpetrators with taking the victim's keys and van. The "currency" armed robbery count also served as the predicate felony of one of the two felony murder counts lodged against appellant. Upon appellant's conviction for malice murder, the trial court vacated the two felony murder convictions and also vacated the convictions for the predicate felony of each felony murder count, including the "currency" armed robbery count. Appellant contends the "keys and van" armed robbery conviction should also have been vacated because there was only one armed robbery since there was only one victim. While we agree with appellant that he could not be convicted of two armed robberies in the case at bar, we disagree with his conclusion that both armed robbery convictions should be vacated.

When a victim is robbed of more than one item in a single transaction, only one robbery may be charged. Bland v. State, 264 Ga. 610(4), 449 S.E.2d 116 (1994). The taking of property in a single transaction from a victim at two sites under the same roof constitutes one robbery. Randolph v. State, 246 Ga.App. 141(1), 538 S.E.2d 139 (2000) (one armed robbery occurred when property was taken from victim at one end of store and more property was taken from victim at other end of store). Using a gun to take cash from the cash register and then to take the victim's keys from him in the store's backroom in order to use the van constituted one armed robbery. Id. Thus, appellant is correct that only one armed robbery occurred. That...