Summary
finding no error in failing to sever the charges for trial where “[t]he evidence of identity, though relating to different victims, was inextricably intertwined in all the various offenses charged” and that “it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of the others”
Summary of this case from Cupe v. StateOpinion
60755.
DECIDED JANUARY 8, 1981.
Armed robbery. Richmond Superior Court. Before Judge Fleming.
Charles A. DeVaney, for appellant.
Richard E. Allen, District Attorney, W. Leon Barfield, Assistant District Attorney, for appellee.
The defendant was indicted on two counts of robbery by intimidation of two named individuals on October 7, 1979, and on one count of armed robbery of another named individual on October 11, 1979. He was convicted on all three counts and appeals to this court where he contends the trial court erred in failing to sever, for purposes of trial, the counts of the indictment. Held:
The basic rule of Dingler v. State, 233 Ga. 462 ( 211 S.E.2d 752) is that severance is mandatory where offenses are joined solely on the ground that they are of the same or similar character. However, the exceptions expounded in Dingler and further articulated and expanded in subsequent cases are controlling here. As held in Haisman v. State, 242 Ga. 896, 900 (2) ( 252 S.E.2d 397) "Offenses may also be joined for trial when they are based (1) `on the same conduct' or (2) `on a series of acts connected together' or (3) on a series of acts `constituting parts of a single scheme or plan.' § 1.1 (b). If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance. . ." See Smith v. State, 138 Ga. App. 226 (2) ( 225 S.E.2d 744); Underwood v. State, 144 Ga. App. 684 (2) ( 242 S.E.2d 339); Askea v. State, 153 Ga. App. 849 (2) ( 267 S.E.2d 279); Park v. State, 154 Ga. App. 348 (2) ( 268 S.E.2d 401); Clemson v. State, 239 Ga. 357, 359 ( 236 S.E.2d 663); Wilson v. State, 245 Ga. 49 (4) ( 262 S.E.2d 810).
Stone v. State, 155 Ga. App. 357 ( 271 S.E.2d 22) which deals with application of the basic rule of Dingler, 233 Ga. 462, supra, is not applicable to the case sub judice involving exceptions to that basic rule.
In Williams v. State, 150 Ga. App. 852, 854 ( 258 S.E.2d 659) this court considered a motion for severance of several counts of robbery by intimidation extended over a 45-day period and held: "The prime issue in the case was one of identity. The evidence of identity, though relating to different victims, was inextricably intertwined in all the various offenses charged. We conclude that it was not an abuse of discretion in the interest of justice for the trial court to refuse a motion for severance of the trial of the multiple charges where the crimes alleged were part of a continuous course of criminal conduct extending over a relatively short time, and from the nature of the entire course of conduct, it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of the others." We are therefore constrained to hold the trial judge did not abuse his discretion in permitting the separate charges contained in separate counts of the indictment to be tried together.
Judgment affirmed. Shulman, P. J., and Carley, J., concur.