Kirby v. State

329 S.E.2d 228, 174 Ga. App. 58, 1985 Ga. App. LEXIS 2692
CourtCourt of Appeals of Georgia
DecidedMarch 7, 1985
Docket69553
StatusPublished
Cited by14 cases

This text of 329 S.E.2d 228 (Kirby v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirby v. State, 329 S.E.2d 228, 174 Ga. App. 58, 1985 Ga. App. LEXIS 2692 (Ga. Ct. App. 1985).

Opinion

Carley, Judge.

Appellant was indicted for aggravated assault and armed robbery. He was convicted of armed robbery and appeals from the judgment of conviction entered on the guilty verdict. The appeal of appellant’s co-defendant can be found in Williams v. State, 174 Ga. App. 56 (329 SE2d 226) (1985).

The evidence adduced at trial was as follows: On February 8, *59 1983, appellant, appellant’s co-defendant Wayne Williams, and Patricia Covington drove to a general merchandise store. Appellant, who was driving, asked the victim to pump gasoline into the automobile. While the victim was pumping gas, Williams walked into the store. Believing that Williams wanted to purchase oil, the victim followed Williams. Upon entering the store, the victim discovered Williams taking money from the cash register. Williams then repeatedly struck the victim over the head with a bottle, and began choking her. At that point, Ms. Covington entered the store to “see what was taking [Williams] so long . . . .” She witnessed Williams hitting the victim and returned to the automobile and told appellant what she had seen. Williams then ran out of the store with a handful of money and told appellant to drive away. Appellant drove to a place where they parked the car. Ms. Covington left, and appellant and Williams walked to the home of appellant’s cousin. Williams was given clean clothes, and his soiled clothes were taken into the woods where appellant thought that they were to be burned. Appellant and Williams then remained together for several hours.

In a statement made to the police, appellant admitted that only two or three days prior to the incident in question he and Williams had talked about taking money from the general merchandise store, and Williams had stated that he had taken money from the store several times and that it “was easy to do.”

1. Appellant and Williams were separately indicted for identical offenses, but jointly tried. Asserting that defendants who are not jointly indicted may not be jointly tried, appellant enumerates as error the denial of his motion to sever his trial from that of Williams.

“When two or more defendants are charged with identical crimes or with different offenses which are part of a common scheme or plan, they may be jointly tried in the discretion of the trial court provided such a trial does not hinder a fair determination of each defendant’s guilt or innocence. [Cits.]” (Emphasis supplied.) Arnsdorff v. State, 152 Ga. App. 515, 516 (263 SE2d 176) (1979). See also Allen v. State, 144 Ga. App. 233, 234 (2) (240 SE2d 754) (1977), U. S. cert. den. 439 U. S. 899 (99 SC 264, 58 LE2d 247) (1978). In the instant case, appellant and Williams were charged with “joint commission of the same criminal act[s] and the evidence against them was substantially identical. In the absence of any showing of prejudice, we find no abuse of discretion in joining the cases for trial.” Arnsdorff, supra at 516.

2. Appellant also contends that the trial court erred in denying his motion for severance because his defenses and those of his co-defendant were antagonistic, and because he wished to call his co-defendant, as well as Ms. Covington, as witnesses.

“The mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials. [Cit.] A showing of *60 harm is necessary. [Cit.] For example, if the defendant wishes to call his co-defendant as a witness, he will not be able to do so in a joint trial because of his co-defendant’s Fifth Amendment rights. In order to have his motion for severance granted, however, the defendant must show not only that his co-defendant will probably not testify at trial where he could cross-examine him or elicit the testimony desired, but also that the testimony of the co-defendant would tend to exculpate the defendant. The trial judge should also consider whether the co-defendant would be more likely to testify if they were tried separately. [Cits.]” Cain v. State, 235 Ga. 128, 129-130 (218 SE2d 856) (1975). “ ‘In order to be entitled to a severance on [this] ground . . ., the movant must demonstrate: (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify if the cases are severed. [Cits.]’ ” Stevens v. State, 165 Ga. App. 814, 817 (302 SE2d 724) (1983), citing United States v. Butler, 611 F2d 1066 (5th Cir. 1980). In the present case, there was no evidence that appellant had a bona fide need for his co-defendant’s testimony, that his testimony would in any way exculpate appellant, or that the co-defendant would in fact have testified if their cases were severed.

Insofar as Ms. Covington is concerned, at trial she invoked her Fifth Amendment right not to testify. Assuming without deciding that Ms. Covington, who was not a co-defendant, has any bearing whatsoever with regard to the issue of severance, there was no evidence that Ms. Covington would have testified at a severed trial, or that her testimony would have been exculpatory of appellant. “ ‘A motion for severance is a matter committed to the sound discretion of the trial court. [Cit.] The ruling of the trial court is subject to reversal only for an abuse of that discretion. [Cits.] In weighing for an abuse of discretion, the appellate court must satisfy itself that the appellant has suffered prejudice of a substantial nature. [Cits.]’ ” Grimes v. State, 168 Ga. App. 372, 374 (308 SE2d 863) (1983). We find no such abuse of the trial court’s discretion in denying appellant’s motion to sever.

3. Appellant enumerates as error the failure of the trial court to give three of his requested charges, all involving the crime of hindering the apprehension or punishment of a criminal. See OCGA § 16-10-50. Hindering the apprehension or punishment of a criminal is a separate offense, for which appellant was not indicted. See Moore v. State, 240 Ga. 210, 211 (1) (240 SE2d 68) (1977). We find that the trial court did not err in refusing to give the requested charges. “ ‘On the trial of an indictment charging a defendant as principal, he cannot be convicted [of hindering the apprehension or punishment of a criminal].’ [Cits.]” Hill v. State, 221 Ga. 65, 67 (6) (142 SE2d 909) (1965).

4. Appellant assigns as error the refusal of the trial court to in *61 struct the jury in accordance with certain other of his requests to charge. Our review of the record reveals that the trial court fully charged on the matters contained in the refused requests. “It is not necessary to charge the jury in the exact language of requests to charge where, as here, the applicable principles are fairly given to the jury in the general charge of the court. [Cit.]” Adams v. State, 242 Ga. 239, 240-241 (4) (248 SE2d 638) (1978). See also Bennett v. State, 169 Ga. App. 85, 86 (2) (311 SE2d 513) (1983).

5. Enumerated as error is the denial of appellant’s motion for allowance of additional jury strikes.

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Bluebook (online)
329 S.E.2d 228, 174 Ga. App. 58, 1985 Ga. App. LEXIS 2692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-state-gactapp-1985.