Young v. State

456 S.E.2d 733, 217 Ga. App. 144, 95 Fulton County D. Rep. 1455, 1995 Ga. App. LEXIS 369
CourtCourt of Appeals of Georgia
DecidedMarch 30, 1995
DocketA95A0044
StatusPublished
Cited by2 cases

This text of 456 S.E.2d 733 (Young 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
Young v. State, 456 S.E.2d 733, 217 Ga. App. 144, 95 Fulton County D. Rep. 1455, 1995 Ga. App. LEXIS 369 (Ga. Ct. App. 1995).

Opinion

Andrews, Judge.

Young was charged in DeKalb County with three counts of armed robbery and two counts of possession of a firearm during the commission of a crime. The indictment charged that on July 2, 1990, Young and co-indictee Raymond Burgess, using a handgun, took property from Janet Stefanowycz and from Janet Cook. The indictment also charged that on July 3, 1990, the two men used a handgun to take property from Billy McNutt.

The case was tried and Young was convicted of the armed robbery counts and acquitted of the other charges. He was sentenced to concurrent life sentences on Counts 1 and 2, and to a consecutive life sentence on Count 3. Through counsel appointed to represent Young on post-trial matters, Young filed a motion for new trial. An evidentiary hearing was held, the motion was denied, and this appeal followed.

Viewing the evidence in the light most favorable to the verdict, it was that on July 2, 1990, Cook and Stefanowycz were entering their motel room at a motel near 1-85. They were approached by two men, one of whom carried a gold handgun. Cook and Stefanowycz were forced at gunpoint into the motel room. Cook was pushed onto a bed and her head was covered with a bedspread to prevent her from observing the perpetrators. Stefanowycz was pushed to the floor, which knocked her unconscious.

At one point Cook tried to get up off the bed, but she was pushed back down with a pillow over her head by one of the perpetrators. He placed the gun against the pillow and pulled back the trigger. The robbers stayed in the room for about half an hour and took jewelry and cash from the women. The perpetrators tied the victims’ hands before fleeing.

Cook got a good look at Burgess during the robbery. Although neither woman was able to identify Young, both women identified the golden revolver, which was later recovered from Burgess, as similar to the one used in the robbery.

There was also evidence that on July 3, 1990, McNutt was coming out of his motel room in a motel near 1-20. As he came out, a man carrying a gold revolver and a second man forced McNutt back into the room. The gunman ordered McNutt into a position where he could not see the perpetrators. When McNutt refused to comply, the gunman pistol-whipped him 12 to 15 times and threatened to blow his [145]*145face off. Continuing to hold a gun to McNutt’s head, the gunman threw McNutt down and choked him, while the other gunman ransacked the room. The men took jewelry and cash from McNutt and tied him up before they fled.

McNutt saw both perpetrators, but was unable to identify Young. He identified the gold revolver and one of his watches which was recovered from Burgess upon his subsequent arrest.

As stated above, Burgess was arrested and the gold handgun and various pieces of property from the burglaries were found on him. In addition to McNutt’s watch, which was found in Burgess’ possession, Burgess’ wife was wearing Mrs. McNutt’s ring. Burgess directed the police to Young as the co-perpetrator and Young was arrested on July 20, 1990.

A DeKalb County police officer testified that on July 25, 1990, after reading Young his rights, he took two written statements from him. In one statement, Young confessed that he and Burgess robbed a man (McNutt) at the motel near 1-20 with a golden gun. In the other statement, Young confessed to the robbery with a golden gun of two women (Cook and Stefanowycz) at the motel off 1-85. In both statements Young related that Burgess threatened to shoot the robbery victims.

There was also evidence regarding similar transactions.1 A taped statement which Young made to an officer of the Douglas County Sheriff’s Department, after being read his Miranda rights, was played for the jury. In that statement, Young admitted that on July 16, 1990, he and Burgess held up two people at a motel adjacent to 1-20 in Douglas County. Young stated that Burgess carried the golden gun; that he and Burgess followed the victims to their motel room; that cash was taken from the victims; and that he tied the victims’ hands before leaving.

Also entered into evidence was a confession which Young made on July 22, 1990 to a Clayton County police officer. In that statement, Young admitted robbing a man at gunpoint at a motel adjacent to I-75 in Clayton County on July 9, 1990. Young stated that he and Burgess went to “commit an armed robbery” and that they selected a victim who was standing near his motel room. He stated that an attempt was made to prevent the victim from seeing them and that [146]*146cash was taken from him.

Young did not testify at trial.

Prior to trial, Young’s attorney stipulated to the inclusion in the record of hearings held in Douglas County regarding the admissibility and voluntariness of statements Young made. In Douglas County, Young and Burgess were charged with armed robbery and murder, and faced the death penalty. The Douglas County court had conducted several days of hearings on the various statements Young gave with regard to the DeKalb, Clayton and Douglas County crimes. Included in the record before us are the transcripts of those extensive hearings which the Douglas County court conducted.

While Young’s attorney stated that Young objected to the use of any similar transactions, counsel recognized that the transcript related to the court’s inquiry on this subject. Young’s attorney stated that the statements from that hearing had been deemed admissible in Douglas County.

1. In Young’s first enumeration of error, he argues that the trial court erred in failing to give his requested robbery charge in that it was a lesser included offense of armed robbery. Citing Edwards v. State, 264 Ga. 131 (442 SE2d 444) (1994), Young contends that the fact that he was acquitted of the charges of possession of a firearm during the commission of the crimes establishes that there was evidence to support the lesser included charge of robbery.

We find no error in the trial court’s failure to so charge. In Edwards, supra, the Supreme Court stated: “[t]he complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” Id. at 133. Here, both the testimonies of the victims and Young’s own confessions established that the robberies were committed with Burgess’ golden gun. The evidence showed the commission of the completed offenses as charged, or the commission of no offense, and there was no error in the court’s failure to charge the lesser offense. See Leaver v. State, 211 Ga. App. 876 (2) (440 SE2d 760) (1994).

Moreover, assuming arguendo, that there was some evidence that Young committed the lesser offense, in light of the overwhelming evidence against him, “it is highly probable that the failure to give this charge did not contribute to the verdict.” Edwards, supra at 133.

2. In Young’s second enumeration of error, he contends that the trial court erred in denying his motion for new trial based on the ineffective assistance of counsel which arose from a conflict of interest. Citing Fleming v. State, 246 Ga. 90 (270 SE2d 185) (1980), he argues that there was a conflict of interest since attorney Michael Mears represented him both in the Douglas County case in which the death [147]

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Bluebook (online)
456 S.E.2d 733, 217 Ga. App. 144, 95 Fulton County D. Rep. 1455, 1995 Ga. App. LEXIS 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-state-gactapp-1995.