Way v. State
| Decision Date | 28 June 1977 |
| Docket Number | No. 32316,32316 |
| Citation | 239 Ga. 316,236 S.E.2d 655 |
| Parties | Anthony WAY v. The STATE. |
| Court | Georgia Supreme Court |
Folk & Neal, Joseph R. Neal, Augusta, for appellant.
Richard E. Allen, Dist. Atty., Stephen E. Curry, Asst. Dist. Atty., Augusta, Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.
The appellant, Anthony Way, was charged with committing the armed robbery of a convenience store in Richmond County, Georgia. He was tried along with co-defendants Harris and Oliphant, found guilty, and sentenced to ten years in prison. He comes here complaining that the verdict rendered was contrary to the law and evidence; was against the weight of the evidence that the trial court refused to grant a co-defendant's motion for severance; that the trial court erred in admitting illegal evidence to the jury; and that the trial court erred in finding that the statement given to the investigators was freely and voluntarily made.
After reviewing the record, we affirm.
1. In his brief appellant has failed to support his enumerations of error 1, 2, 3 and 6 with citation of authority or argument. Therefore, pursuant to Rule 18(c)(2) of the Supreme Court of Georgia, they are deemed abandoned. Ezzard v. State, 229 Ga. 465, 192 S.E.2d 374 (1972).
2. Appellant argues that it was error for the trial court to refuse to grant a co-defendant's motion for severance. The appellant made no Motion for Severance on his own behalf. Appellant cites no examples of prejudice or other injury to him resulting from the court's ruling. Code Ann. § 27-2101 provides in part "When two or more defendants are jointly indicted for a capital offense, any defendant so electing shall be separately tried . . ." (Emphasis supplied). The appellant in this case did not elect to sever. There is no authority, under the statute, to require the court to sever the trial of a defendant who has made no motion to sever. Coachman v. State, 236 Ga. 473, 224 S.E.2d 36 (1976). It is too late after an adverse verdict to raise the issue for the first time. Strickland v. State, 226 Ga. 750, 177 S.E.2d 238 (1970).
The appellant will not be heard to complain of the trial court's denial of a co-defendant's motion to sever. His enumeration of error No. 4 is without merit.
3. Appellant complains of the admission over his objection of identification testimony by an eyewitness who had been shown a photographic line-up and admission of testimony relating to confessions of co-defendants.
The state's eyewitness testified that, approximately one hour after the crime, she was shown a photographic line-up, from which she was able to positively identify appellant as one of the men who had robbed her. Appellant objected on hearsay grounds, contending that the eyewitness was testifying based on knowledge gained through an unidentified third party and that this tainted the line-up, making it impermissibly suggestive so as to contribute to misidentification. This set of circumstances was not shown by the record. The eyewitness was the cashier at the store which was robbed; she was the person from whom the money was taken; she identified appellant from a series of photographs shown to her soon after the occurrence; and she testified at trial that appellant was the man she identified in the photographic line-up. We find no hearsay issue.
Appellant has not established that the photographic display shown to the eyewitness was impermissibly suggestive. Absent such a showing, there is no basis upon which to consider the question of whether the alleged suggestiveness contributed to misidentification. Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974); Simmons v. United States,...
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McDonald v. State
...(Cit.) The appellant will not be heard to complain of the trial court's denial of a co-defendant's motion to sever." Way v. State, 239 Ga. 316(2), 236 S.E.2d 655 (1977). McDonald had no right to rely upon his co-defendant's motion and, thus, is estopped from raising the issue for the first ......
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Bennett v. State
...a court to sever the trial of a defendant who has made no motion to sever nor joined in a co-defendant's motion. Way v. State, 239 Ga. 316(2), 236 S.E.2d 655 (1977). Since "[i]t is too late after an adverse verdict to raise the issue for the first time," an "appellant will not be heard to c......
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Smith v. State
...during trial request to proceed separately. Thus, Smith may not now raise the issue of severance for the first time. Way v. State, 239 Ga. 316(2), 236 S.E.2d 655 (1977). Greene contends that severance was required because their defenses were antagonistic and because the evidence created con......
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Azizi v. State, S98A1879.
...need not consider the second question—whether there was a substantial likelihood of irreparable misidentification. Way v. State, 239 Ga. 316, 317(3), 236 S.E.2d 655 (1977); Payne v. State, 233 Ga. 294, 299, 210 S.E.2d 775 (1974). The evidence demonstrates that the encounter between Ms. Lum ......