Sanborn v. State

304 S.E.2d 377, 251 Ga. 169, 1983 Ga. LEXIS 760

• Court: Supreme Court of Georgia
• Decided: June 28, 1983
• Docket: 39458
• Status: Published

Opinions

Clarke, Justice.

Appellant was convicted of the murder of Randolph Williams and of armed robbery and sentenced to life imprisonment on both counts. He appeals. We affirm the murder conviction and reverse the conviction of armed robbery.

Appellant and John Roy stole a car, a pistol, and a box of ammunition from a residence in Snellville, Georgia. Two days later they robbed a Majik Market in Americus, Georgia. In the course of the robbery the clerk, Randolph Williams, was shot and subsequently died. An anonymous witness called the police giving a report of the crime and describing a vehicle which he saw leaving the scene. The car was stopped and searched and appellant and Roy were arrested after the search uncovered the pistol used in the robbery, as well as the ammunition. After being given their Miranda rights, they both signed statements which were used in evidence against them after the court determined pursuant to a Jackson v. Denno hearing that the statements were freely and voluntarily given.

1. Appellant’s first and second enumerations of error deal with the search of the car, the custodial interrogation, and the testimony of a ballistics expert tying the pistol found in the car to the murder. Appellant contends that the warrantless search was unlawful, that since the arrest was without probable cause the custodial interrogation was illegal, and that the ballistics testimony, depending upon the fruit of the illegal search, was inadmissible. This argument and all of its subparts depend upon the premise that the search was illegal. Appellant concedes that the initial stop, based upon the informant’s tip, was lawful. Under the standard enunciated in Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), and Chambers v. Maroney, 399 U. S. 42 (90 SC 1975, 26 LE2d 419) (1970), the stop was proper. Appellant’s argument concerning the lawfulness of the search following the stop must fail because appellant and his companion could have had no legitimate expectation of privacy in a stolen car. Under the reasoning of Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978), appellant had no legitimate expectation of privacy in the automobile. Similarly, appellant had no possessory interest in the stolen property seized. Consequently, both the search and the discovery of the pistol and the ammunition were lawful. The arrest, following discovery of the pistol and the ammunition, was based upon probable cause and the custodial questioning after the appellant was given Miranda warnings did not offend the Fourth Amendment protection against custodial interrogation following arrest on less than probable cause. Dunaway v. New York, 442 U. S. 200 (99 SC 2248, 60 LE2d 824) (1979).

2. In his third enumeration of error appellant contends that the court erred in finding that he waived his right to remain silent and his right to counsel during questioning. He insists that under Townsend v. Sain, 372 U. S. 293 (83 SC 745, 9 LE2d 770) (1963); Reck v. Pate, 367 U. S. 433 (81 SC 1541, 6 LE2d 948) (1961); and Blackburn v. Alabama, 361 U. S. 199 (80 SC 274, 4 LE2d 242) (1960), the state has the burden of proving that a prisoner when questioned was coherent. The court in this case held a Jackson v. Denno hearing at which the state established to the court’s satisfaction that appellant was coherent at the time of questioning, which took place several hours after his arrest. In the absence of evidence that the court’s findings were clearly erroneous or evidence of a clear abuse of discretion, the findings of a trial court at a Jackson v. Denno hearing will not be disturbed. Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974). See also Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618) (1972). A review of the record convinces us that the trial court’s finding that appellant’s statement was given freely and voluntarily and with knowledge of his rights was neither clearly erroneous nor an abuse of discretion.

3. Appellant argues that the court erred in refusing to grant sequestered individual voir dire after the judge handling the pretrial granted appellant’s motion for sequestered voir dire. The state points out that at the time of pretrial the state still planned to seek the death penalty, which was no longer true by the time of trial. Sequestered voir dire is not mandated by OCGA § 15-12-133 (former Code Ann. § 59-705), which provides for individual examination of jurors. The granting of sequestered voir dire is within the discretion of the court, and a showing of prejudice from denial is necessary to show an abuse of discretion. Smith v. State, 245 Ga. 168 (263 SE2d 910) (1980); Stinson v. State, 244 Ga. 219 (259 SE2d 471) (1979).

4. Finally, appellant contends that the trial court erred in imposing sentence upon him for armed robbery since the armed robbery was a lesser included offense in the felony murder of which he was also convicted. The provisions of OCGA §§ 16-1-6 and 16-1-7 (Code Ann. §§ 26-505, 26-506), as well as our holdings in Stanley v. State, 240 Ga. 341 (241 SE2d 173) (1977), cert. den. 439 U. S. 882 (1978); Atkins v. Hopper, 234 Ga. 330 (216 SE2d 89) (1975) and Burke v. State, 234 Ga. 512 (216 SE2d 812) (1975), require that the armed robbery conviction be set aside. Since proof of the armed robbery was essential to the conviction for felony murder, the armed robbery was a lesser included offense in the felony murder.

Decided June 28, 1983. Crisp, Oxford & Gatewood, Howard S. McKelvey, Jr., for appellant. John R. Parks, District Attorney, Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Assistant Attorney General, for appellee.

Judgment affirmed in part; reversed in part.

All the Justices concur, except Smith, J., who concurs specially as to Division 1 and the judgment.