Durden v. StateDurden v. State
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- Before:
- Beasley
In a single indictment, Durden and Lawson were charged with aggravated assault upon Bledsoe,
Lawson and Durden were tried jointly, without Howard. Evi dence showed that officers first responded to a call at Howard’s home after midnight to find that Bledsoe had been beaten. The officers also noticed a Chevrolet El Camino in the front yard that had apparently been wrecked, but it did not appear to have any connection with Bledsoe. Although Bledsoe was uncooperative, he was eventually taken away in an ambulance and the officers remained at the scene for a few minutes investigating. About an hour later, another call came from Howard’s home and the same officers responded. This time they found Payton lying on a sofa, severely beaten and naked but for a blanket wrapped around him.
Testimony showed that despite the time the calls were made to police, both Bledsoe and Payton had been beaten before police arrived the first time. Before either incident, several people were in the house, and many had been drinking alcohol. Bledsoe made a remark to which Durden took umbrage, and Durden and Lawson proceeded to throw him against a wall and beat him about the face with their fists. After the Bledsoe beating, Durden stated he wished to kill Pay-ton because he had allegedly raped Durden’s
When Payton arrived in his El Camino, Durden spoke with him and Howard called for him to come into the backyard, which he did with forceful accompaniment by Durden. There, Durden and Lawson beat him with their fists, smashed his head into a wall and, after he fell to the ground, kicked him in the head. Durden stripped Payton of all his clothes and gave Howard, at her insistence, the two dollars he found in Payton’s pockets. After Durden rolled Payton into the bushes, he and Lawson went inside for a time and then out to Pay-ton’s El Camino. Durden broke its windows, slashed its tires, and otherwise damaged the vehicle to an extent it would cost over $500 to repair. Then they left. It was apparently after this that Durden, at a different location, struck his wife on the head with a beer bottle and slapped her.
Only after Durden and Lawson had left did anyone call for assistance for Bledsoe. While the officers were at the scene on that call, no one told them about Payton’s beating and they did not discover him in the backyard bushes. Sometime after the officers left, Payton called for help from the bushes and medical and police assistance was again called. Payton was hospitalized for more than two weeks, had no memory of the events, and could not identify his attackers; Bledsoe also testified that he had no memory of his attack.
The jury returned guilty verdicts against Durden on all three aggravated assaults, criminal damage to property in the second degree, and robbery by force as a lesser included offense of armed robbery.
See
Case No. A95A2579
1. Investigating officers testified that Howard, during their first visit, told them Bledsoe had been beaten by Durden and “a friend.” During the second visit, she told them Payton had been beaten by “the same guys,” naming both Durden and Lawson. She was inconsistent and sometimes evasive while giving these reports and did not testify at trial. Lawson contends allowing the State to introduce testimony about her statements to police was a violation of his rights under the confrontation clause of the Sixth Amendment to the United States Constitution.
We need not decide if there was such a violation because any error in allowing the officers to testify as to Howard’s statements was clearly harmless. See McDonald v. State, 210 Ga. App. 689, 691 (2) (436 SE2d 811) (1993). Two eyewitnesses to the beatings described, in much greater detail than Howard gave the police, the assaults on Bledsoe and Payton. See Jones v. State, 265 Ga. 84, 86 (4) (453 SE2d 716) (1995). We do not hesitate to conclude that the officers’ testimony about Howard’s statements at the scene during their investigation had little if any effect on the jury’s verdict. Id.
2. Lawson moved the court to sever trial of Count 5, Durden’s assault on his wife, from the rest of the charges in the indictment. Count 5 affected only Durden, but Lawson did not move to sever his trial from Durden’s. Compare
Hayes v. State,
182 Ga. App. 26, 27 (1) (354 SE2d 655) (1987). Lawson cites no authority for the proposition that he can move to sever one count addressed solely to his co-defendant while never moving to have the co-defendant’s trial severed from his own, see
3. Lawson also contends the evidence was not sufficient to convict him of aggravated assault but only, at most, simple assault.
Case No. A95A2222
4. Durden contends the court erred in not severing Count 5, which charged him with aggravated assault on his wife, from the other four counts. His motion in the trial court asked that Count 1 (aggravated assault on Bledsoe) be severed from the other assault counts because it was not connected with them and had no common elements of substantial importance with them. Durden did not ask the court to sever Count 5. As discussed in Division 2, Lawson moved the court to sever Count 5, but the record does not show Durden ever joined in Lawson’s motion. As Durden did not seek severance of Count 5 below, he cannot do so on appeal. McBride v. State, 213 Ga. App. 857, 858 (3) (c) (446 SE2d 193) (1994).
5. Durden contends the court erred in allowing co-defendant Lawson’s statement to police to be read into the record because Lawson did not testify and was not subject to cross-examination about the statement, violating Durden’s rights under the confrontation clause of the Sixth Amendment to the United States Constitution. See Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). Although the statement was redacted to eliminate any reference to Durden, he argues other evidence showed Durden and Lawson were together before, during, and after the incidents addressed in Lawson’s statement, and it was then clear to the jury that Durden was the man referred to in Lawson’s statement. “The implication of another defendant must be direct. It is not a Bruton violation if the redacted confession identifies the defendant only through the jury’s making connections with other evidence and drawing infer enees. [Cit.] ‘ “(T)he statements standing alone must clearly inculpate the defendant. (Cits.)” . . . (Cit.)’ [Cit.]” (Emphasis supplied.) Walker v. State, 213 Ga. App. 407, 413 (7) (444 SE2d 824) (1994). As the only inference identifying Durden with Lawson’s redacted statement was through other evidence, there was no error.
6. Durden contends the court erred in allowing Howard’s trial to be severed without a written motion being filed, but he cites no authority for the proposition that this would be an abuse of the court’s discretion, see
7. Durden contends the evidence was insufficient to support the conviction under the standard set forth in
Jackson v. Virginia,
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The eyewitnesses were not interviewed at the scene until the second police visit. According to the officers’ testimony, they seemed scared and stated they had seen
Judgments affirmed.
Pope, P. J., and Ruffin, J., concur.