Wallace v. State, 36710
| Decision Date | 25 November 1980 |
| Docket Number | No. 36710,36710 |
| Citation | 246 Ga. 738,273 S.E.2d 143 |
| Parties | WALLACE v. The STATE. |
| Court | Georgia Supreme Court |
G. Terry Jackson, Savannah, for appellant.
Andrew J. Ryan, III, Dist. Atty., Robert M. Hitch, III, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., for appellee.
James Michael Wallace appeals his convictions for armed robbery and murder, for which he received, respectively sentences of twenty years and life imprisonment. The state had sought the death penalty.
The jury heard evidence authorizing the following to be found as facts beyond a reasonable doubt: Wallace entered the offices of Savannah Steel Company and asked for a job. He was told by Ms. Steele, the company secretary-bookkeeper, that the company was not hiring. He left and returned a short while later carrying a .22 caliber rifle, with which he shot and fatally wounded Jerry Bragg, an employee of Savannah Steel, who was standing nearby, and who told Wallace to put his gun down. He then forced Ms. Steele to give him $200.00 from the company's safe.
Two detectives of the Savannah Police Department were looking for a person matching the description of the robber-assailant. They observed Wallace driving a vehicle, followed him in their unmarked car, and confronted him, identifying themselves as police officers. Wallace backed his vehicle towards the detectives, and each detective fired one shot. Wallace drove away, then abandoned his vehicle and fled on foot. He was apprehended by a third detective. Ms. Steele and Douglas Richardson, who also was present at Savannah Steel Company during the robbery and shooting, identified Wallace in a lineup.
The state introduced evidence establishing that a few minutes before the robbery and shooting at Savannah Steel Company, Wallace had entered the business premises of the nearby Atlantic Supply Company and had asked whether there were any job openings. Upon being told that there were no openings, he had left and had returned just seconds later brandishing a .22 caliber rifle and demanding money. He had taken $3.00 from the pocketbook of the company secretary-bookkeeper, Sandy Poythress, $25.00 from a box, and $20.00 from John Finke, the owner of Atlantic Supply Company. He had fired the rifle in Finke's direction, then had left. Finke gave a description of Wallace to the police, later identified him in a lineup, and testified that he had no doubts whatsoever that Wallace was the man who had robbed his business the day in question.
Jerry Findley, a fingerprint expert, testified that fingerprints taken from Atlantic Supply Company were Wallace's. Wallace was convicted in the present case for armed robbery at Savannah Steel Company. Evidence as to the armed robbery at Atlantic Supply Company was introduced solely to show motive, scheme, intent, or bent of mind because the Atlantic Supply Company case was tried separately.
Wallace testified in his own behalf that he never had been to either business establishment. His defense was alibi. He sought to explain his flight from the detectives by testifying that he did not know who was shooting at him.
The foregoing evidence supports the jury's verdict under the current legal standard. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hardy v. State, 245 Ga. 272, 280, 264 S.E.2d 209 (1980); Whitaker v. State, 246 Ga. 163, 168, 269 S.E.2d 436 (1980).
1. Wallace first contends that introducing into evidence the testimony about the armed robbery at Atlantic Supply Company put his character in evidence contrary to the principles stated in Cawthon v. State, 119 Ga. 395, 46 S.E. 897 (1903). The state replies that this evidence properly was admitted for the purpose of showing identity, motive, plan, scheme, bent of mind and course of conduct. Hamilton v. State, 239 Ga. 72, 235 S.E.2d 515 (1977).
There was evidence that Wallace was the perpetrator of the independent crime. John Finke, the owner of Atlantic Supply Company, identified Wallace as the person who had robbed his company at gunpoint on the date in question. Jerry Findley of the Savannah Police Department testified that Wallace's fingerprints were left at the scene of the Atlantic Supply Company armed robbery. Also, there is sufficient similarity or logical connection between the independent crime (the Atlantic Supply Company armed robbery) and the offense charged (the Savannah Steel Company armed robbery) that proof of the former tended to prove the latter. The two businesses are located on the same road only minutes apart by automobile travel. The two armed robberies happened only a few minutes apart on the same day. In both instances, the perpetrator entered the business premises, asked for employment, was told that the company was not hiring, left and returned immediately armed with a .22 caliber rifle, and robbed the business and its owner or employees at gunpoint. The conditions of admissibility stated in French v. State, 237 Ga. 620, 621, 229 S.E.2d 410 (1976), are satisfied. The trial court charged the jury on the limited purposes for which the evidence was admitted. McClesky v. State, 245 Ga. 108, 114(6), 263 S.E.2d 146 (1980). The first enumeration of error is without merit.
2. Wallace next contends that the state impermissibly commented on his post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Wallace asserts that this Doyle violation occurred twice during examination of Detective Wedlock, the investigating officer on the Atlantic Supply Company case. On cross-examination by defense counsel, Detective Wedlock testified that Wallace had not remained silent; rather, that he had denied involvement in the Atlantic Supply Company armed robbery. Defense counsel then inquired whether Wallace ever made another statement to Wedlock, to which Wedlock replied that Wallace had not given him another statement. Defense counsel pressed on: Defense counsel moved for a mistrial but did not ask for curative instructions. Later, during redirect examination by the state, Detective Wedlock responded to the question of whether Wallace had told him where Wallace was on the day of the Atlantic Supply Company armed robbery by stating, "He didn't tell me nothing, sir." Defense counsel again moved for a mistrial but did not seek curative instructions.
The Doyle case is factually distinguishable and is not implicated in the present case. Doyle, himself, was under cross examination by the state as to his involvement in the crime charged. In the present case, an investigating officer was under cross examination by defense counsel as to Wallace's involvement in a separate and independent crime. Doyle had elected to remain silent. Wallace had elected to speak. Wallace had denied his involvement in the separate crime. The line of inquiry on direct and cross...
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