Watkins v. State, A92A0906

• Decision Date: 02 December 1992
• Docket Number: No. A92A0906,A92A0906
• Citation: 206 Ga.App. 701,426 S.E.2d 238
• Parties: WATKINS v. The STATE.
• Court: Georgia Court of Appeals

Page 238

426 S.E.2d 238

206 Ga.App. 701

WATKINS v. The STATE.

No. A92A0906.

Court of Appeals of Georgia.

Dec. 2, 1992.

Reconsideration Denied Dec. 14, 1992.

Lauren L. Becker, Atlanta, for appellant.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, Nancy I. Jordan, Asst. Dist. Attys., for appellee.

COOPER, Judge.

Appellant was convicted of robbery in a jury trial and appeals the trial court's denial of her motion for new trial.

Viewed in a light to support the jury's verdict, the evidence shows that appellant's accomplice entered the victim's home and physically attacked him, eventually wrestling him to his bed where she forcibly restrained him by placing her knee in his abdomen and her arms around his neck. The victim then saw appellant peek through the front door. Appellant entered the house, threw a coat over the victim's head, reached under the victim's mattress and took the victim's wallet containing at least $100. Although appellant denied committing the robbery, she admitted that she had known the victim for ten years and had visited his home on numerous occasions.

1. In her first and second enumerations of error, appellant contends the trial court erred in admitting evidence of a 1989 conviction for a robbery committed in 1988 as a similar transaction.

(a) Appellant argues first that the State failed to give timely notice of its intention to introduce evidence of the 1988 robbery. " 'Although [Uniform Superior Court] Rule 31.1 requires the notice to be filed at least 10 days before trial, it also provides the time may be either shortened or lengthened by the judge. [Cit.] We interpret this as clothing the trial court with discretion which will not be controlled absent abuse.' [Cit.]" Thompson v. State, 186 Ga.App. 421, 422(2), 367 S.E.2d 586 (1988). The record shows that the State filed notice of its intention to introduce evidence of appellant's prior robbery conviction one day before the trial commenced. Appellant contends that the trial court erred in shortening the ten-day requirement because the State failed to exercise due diligence in complying with the notice requirement. Appellant argues that the 1989 conviction took place in Cobb County; that the instant case was pending against her for seven months during which time the prosecutor had access to appellant's Cobb County criminal record, as well as computer network criminal files; that more than ten days prior to the trial, the prosecutor and appellant's attorney discussed the fact that appellant was already on probation at that time; that although the prosecutor did not know the specific circumstances surrounding the probation and related conviction, he initiated the revocation of that probation; and that further inquiry into the prosecutor's own Cobb County records after the conversation with appellant's attorney would have revealed the 1989 robbery conviction soon enough to have given appellant timely notice of the State's intent to introduce the prior conviction at trial. The prosecutor maintained at the pre-trial hearing that the customary computer search of appellant's record revealed five prior felony convictions but inexplicably did not include the 1988 robbery and that until he received a probation revocation form referring to the 1988 case on the day before the trial, he was unaware of the conviction and the similarities between the two robberies. The trial court found no lack of diligence on the part of the State but ordered that the victim of the 1988 robbery be produced by the State for discovery by appellant prior to the commencement of the trial.

" '[T]his court has adopted as its primary consideration whether defendant was deprived of any substantial rights under the circumstances. [Cit.] (Cit.) (In this regard we have also) noted "that the apparent purpose of the rule is to provide a criminal defendant with fair and adequate notice of the State's intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial." The purpose of the length of the advance notice is to allow defendant the opportunity to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses.... [Cit.]' [Cits.]" Thompson, supra at 422-423, 367 S.E.2d 586. This purpose was served by the trial court's order requiring the victim of the 1988 robbery to be available for questioning by appellant in advance of the trial. The record contains no request for a continuance, no further objection regarding the 1988 robbery and no further objection to proceeding to trial by appellant prior to the commencement of the trial. Appellant has the burden on appeal of establishing not only error, but harmful error. Id. "Common sense dictates that the State cannot give notice of its intention to introduce evidence ten days prior to trial when it is not aware of the existence of such evidence until [one day] prior to trial." Roman v. State, 185 Ga.App. 32, 33(1), 363 S.E.2d 329 (1987). Accordingly, we find no abuse of discretion or prejudice to appellant resulting from the shortening of the ten-day notice requirement. Adams v. State, 191 Ga.App. 16(4), 381 S.E.2d 69 (1989).

(b) Appellant next argues that the transaction was not sufficiently similar to the offense of which he was convicted. " 'Before evidence of similar offenses is admissible, two criteria must be met. First, it must be shown that appellant was the perpetrator of the similar offenses, and second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter.' [Cit.]" Jordan v. State, 192 Ga.App. 69, 70(2), 383 S.E.2d 631 (1989). Appellant admits having been the perpetrator of the prior offense; however, we agree with appellant that there is insufficient similarity between the two such that proof of the former tends to prove the latter. In the 1988 robbery, the victim had been driving around in search of a particular address when she stopped and asked appellant for assistance. Appellant offered to ride with the victim to the address. When they reached the dead-end street the victim was looking for, appellant grabbed the victim's pocketbook and ran. The State contends the offenses were similar in many respects: both victims were elderly, black and in bad health, such that they could not pursue appellant after the robbery; in both incidents items were personally taken from the victims; appellant did not mask her face in either case; in both incidents a pocketbook or wallet containing money was taken; and in both incidents appellant fled on foot. However, our review of the similarities reveals that in the 1988 robbery, although appellant had been in the company of another woman before she was picked up by the victim, the robbery was committed by appellant alone whereas the current robbery was accomplished by the planning and participation of appellant and her accomplice. Moreover, in the 1988 robbery, it was the victim who initiated contact with appellant. In addition, there was no evidence that appellant knew the 1988 victim prior to the incident and thus no basis for an assumption on appellant's part before the theft that the victim would be unable to pursue appellant. In our view, introduction of the prior offense does not tend to show common design or scheme, intent, bent of mind, or course of conduct, the purposes for which the prior offense was offered. Accordingly, "[i]t was error to admit the evidence of the prior crime. [Cit.] However, the admission was harmless since the jury verdict was overwhelmingly supported by the other evidence, including the victim's identification of appellant.... [Cit.]" Black v. State, 186 Ga.App. 406, 407, 367 S.E.2d 238 (1988).

2. Appellant also contends the court erred in permitting the victim to testify as to a prior incident in which appellant allegedly took his wallet because the State failed to give the defense any notice of its intention to introduce evidence of this similar transaction. The record reveals that prior to the trial, the prosecutor informed defense counsel that the victim might offer testimony regarding the incident; however the prosecutor indicated that the evidence would not be offered as a similar transaction under Rule 31.1 but was admissible as evidence of the crime...