Tutt v. State

• Decision Date: 23 February 1983
• Docket Number: No. 65047,65047
• Citation: 302 S.E.2d 580,165 Ga.App. 715
• Parties: TUTT v. The STATE.
• Court: Georgia Court of Appeals

Page 580

302 S.E.2d 580

165 Ga.App. 715

TUTT v. The STATE.

No. 65047.

Court of Appeals of Georgia.

Feb. 23, 1983.

Rehearing Denied March 10, 1983.

John Paul Batson, Augusta, for appellant.

Sam B. Sibley, Jr., Dist. Atty., for appellee.

SOGNIER, Judge.

Appeal from a conviction of armed robbery. Appellant contends the trial court erred (1) by allowing evidence of an independent crime when it was not shown that appellant was the perpetrator of that crime; (2) by asking for the numerical division of the jury as to guilt or innocence while the jury was still deliberating; (3) by mentioning the expense of a retrial to the jury; and (4) by giving the so-called "dynamite" charge to the jury when they were unable to reach a decision.

About 9:15 P.M. the Lo-Lo self-service station near Fort Gordon, Georgia was robbed at gunpoint. Two shots were fired during the robbery; appellant and a second man waiting outside then ran and escaped in a blue Chevelle. During the robbery appellant was wearing a panty-hose mask over his head and face. Based on a description given to the police, appellant was apprehended around midnight and returned to Lo-Lo's, where he was identified positively by an employee and the store manager.

1. The state presented evidence that on the day preceding the robbery in the instant case a grocery store in Columbia County was robbed by a man with a ladies stocking over his head. He was carrying a nickel-plated pistol and was dressed in blue jeans and blue denim tennis shoes. A second man was with the robber, waiting outside; the robber fired a shot while leaving, and the two men escaped in a blue Chevelle. The robber was of the same height and build as appellant.

In the instant case appellant was wearing cutoff pantyhose over his head and face; he was carrying a silver-colored pistol; he fired two shots during the course of the robbery; his dress and build were the same as the robber's the preceding night; and he escaped in a blue Chevelle. A pair of blue denim tennis shoes were found in a blue Chevelle at the scene of appellant's apprehension. Although the victim of the robbery in Columbia County could not identify appellant positively, the victim testified that appellant was of the same height and build and had the same physical characteristics as the man who robbed the victim. Because appellant could not be identified positively as the person who robbed the grocery store in Columbia County, he contends that evidence of an independent crime was not admissible.

"[B]efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cit.]" Hamilton v. State, 239 Ga. 72, 75, 235 S.E.2d 515 (1977). Although appellant was not identified positively as the perpetrator of the earlier robbery, the two offenses were strikingly similar in all respects, and we have held that "[c]ircumstantial evidence may be used to establish a prior similar offense. [Cit.]" Smith v. State, 154 Ga.App. 497, 499, 268 S.E.2d 714 (1980). The court instructed the jury properly as to evidence of an independent crime, and there was sufficient circumstantial evidence to support a finding that appellant was the perpetrator of the earlier robbery if the jury chose to believe such evidence. Accordingly, no error was committed by allowing evidence of an independent crime. Id.

2. Appellant's remaining enumerations of error deal with the giving of the "dynamite" or "Allen" charge (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528), and will be discussed together.

After deliberating for approximately one and one-half hours, the court was informed by the...