Collins v. StateCollins v. State
- Reporters:
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- Before:
- McMurray
Defendant and a co-indictee were jointly charged in an indictment with three counts of armed robbery and three related charges of pоssession of a firearm during the commission of a crime. An additional count alleged burglary. The co-indictee pleaded guilty to two specific robberies. Defendant was tried separately before a jury, which found him guilty only of one count of armed robbery (Count 8) and the related count of possession of a firearm during the commission of a crime (Count 9). The evidence in support of those charges, including defendant’s custodial stаtement, revealed the following:
Defendant’s co-indictee, Verdell Marshall, was the gunman in two armed robberies in Augusta, Georgia, in late March 1994. Melvin Elstein, an employee of “Plum Nelly’s Florist on Crawford Avenue,” testified that “[t]wo gentlemen came in and stopped about halfway through the front pаrt of the store between two display racks. When [Melvin Elstein] approached them, one of them turned to [Melvin Elstein] and pulled a gun out and asked [him] to back up. [Melvin Elstein] told [his] wife to give them the money. So he [the gunman] *211 said he’d go up to the register and he’d get it. And he did,” taking $20. In a custodial statement, dеfendant admitted that he was “involved in it [that robbery, by] watching out,” while Verdell Marshall “had a gun in the man’s face.”
Defendant’s motion for new trial was denied аnd this appeal followed. Held:
1. Defendant’s first two enumerations urge the general grounds.
(a) “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or immediate presence of another by use of an offensive weapon. . . .”
In our view, defendant’s testimony that he abandoned the criminal enterprise by bolting from the flower shop at thе appearance of a customer is wholly impeached by his custodial statement that he was involved as a lookout for the gunman, while the latter held a gun to Melvin Elstein’s face.
“ ‘The defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. The defendant is the most knowledgeable and unimpeachable source of (any incriminating) information about his past conduct, and one can scarcely imagine evidence more damaging to his defense than his own admission of guilt.’ (Citations and punctuation omitted.) Sawyer v. State, 217 Ga. App. 406, 407 (1), 408 (457 SE2d 685).” McKinney v. State, 218 Ga. App. 633, 635 (3) (463 SE2d 136). In the case sub judice, the еvidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, as a party to the crimе of armed robbery as alleged in Count 8 of the indictment. Graves v. State, 180 Ga. App. 446 (1) (349 SE2d 519).
(b) “Any person who shall have on or within arm’s reach of his person a firearm . . . during the commission of, or the attempt to commit: . . . [a]ny crime against or involving the person of another . . . and which crime is a felony, commits a felony. . . .”
In the case sub judice, proof that defendant was a willing accomplice, keeping watch while Verdell Mаrshall took $20 from Melvin Elstein’s cash register while pointing a pistol at the proprietor, is sufficient under the standard of Jackson v. Virginia, supra, to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, as a party to felony possession of a firearm during the commission of the crime of armеd robbery as alleged in Count 9 of the indictment. Wilcox v. State, 177 Ga. App. 596, 597, supra.
2. A witness for the State, Quincy Murray, testified at trial that defendant’s co-indictee, Verdell Marshall, had told the witnеss about the robberies, affirming that Verdell Marshall “said that he did it.” But Quincy Murray then denied that Verdell Marshall had “indicate[d] anything about [defendant] being involved.” The State’s Attorney drew Quincy Murray’s attention to a statement Murray had given to Officer Timothy J. Taylor of the Augusta Police Department. To impeach his own witness, the State’s Attorney moved for permission to play a tape of that interview, contending that “some of the things he [Quincy Murray] has testified tо are not consistent with what he said on tape.” Officer Taylor then testified he taped the interview with Quincy Murray in his office in the presence of Detective Woods.
Over defendant’s objection as to lack of “foundation,” the trial court permitted the State to play a portion of the audiotape of that interview. This evidentiary ruling is enumerated as error. On appeal, defendant submits that, in order to be admissible under
3. After a portion of the audiotape of Quincy Murray’s pоlice interview was played for the jury, defendant moved for a mistrial on •the grounds that “the information on this tape goes way beyond bringing in or impeаching the witness about prior inconsistent statements.” Certain statements “impermissibly place[d] [defendant’s] character into evidence,” and оthers involved hearsay. The State’s Attorney requested that the trial court “give curative instructions as to what was stated that might reflect bad[ly] on his [defendant’s] character,” but defendant demurred, concluding “that just calls attention to the facts.” Defendant then requested that “we at least have thе tape stopped and played no more,” to which procedure the State’s Attorney agreed. The trial court then denied defendant’s motion for mistrial.
There was no error in denying the motion for mistrial after defendant declined curative instructions. Fitzgerald v. State, 193 Ga. App. 76, 78 (8) (386 SE2d 914). The fourth and fifth enumerations are without merit.
Judgment affirmed.
Beasley and Smith, JJ, concur.