A jury found Ricky Heard guilty of two counts of felony murder, two counts of armed robbery, three counts of aggravated assault, two counts of theft by receiving stolen property, criminal use of an article with an altered identification mark, possession of a firearm during the commission of a crime, and hijacking a motor vehicle. Treating one of the felony murder counts as surplusage, the trial court sentenced Heard to life imprisonment for the other felony murder count and for one of the armed robbery counts, a consecutive 20-year term for hijacking, ten-year terms each for two of the aggravated assault counts and for the two counts of theft by receiving, and five-year terms for the weapons offense and criminal use of an article. The remaining counts were merged by the trial court. Heard appeals after the denial of a motion for new trial. *
1. Construed most strongly in support of the verdicts, the evidence shows that, on May 22, 2005, Heard and three other young men entered a tennis center where Stephanie Bishop was working. The young men left the building at Ms. Bishop’s request, but then Heard and another member of the group returned. They threw Ms. Bishop to the ground, punched her, and threatened to shoot her. The assailants took money, Ms. Bishop’s car keys, and other items, and then fled from the scene in her car. Approximately three weeks later, on June 13, 2005, Heard obtained a stolen handgun and was using a stolen vehicle. He and some of the same accomplices approached Alberto Ramirez and Juan Navarro at an apartment complex. Heard brandished a gun and demanded money. He and his accomplices took Ramirez’s wallet, but it was empty, and they started to leave. Ramirez got a bat from his apartment and ran after Heard, who then shot and killed Ramirez. The stolen gun, with the serial number partially scratched off, was found in the stolen vehicle.
*555
Heard specifically contends that the trial court erred in failing to direct a verdict of acquittal as to the count of hijacking Ms. Bishop’s motor vehicle. The offense of hijacking a motor vehicle is committed when a “person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.” OCGA § 16-5-44.1 (b). Heard argues that the State presented no evidence that the vehicle was taken from the person or presence of Ms. Bishop, as she testified that, after her car keys were taken, she locked herself in a closet some 200 yards away from her car’s location in a parking lot. However, “[t]he statute does not require that the person be in the motor vehicle.”
Stephens v. State,
car keys, which are integral to the car’s operation, were taken directly from [her] person upon threat of injury. Given these circumstances, the jury was authorized to find that [Heard] took the [vehicle] from [Ms. Bishop’s] “person or presence” for purposes of the offense of hijacking a motor vehicle.
Johnson v. State, supra (where victim was in store and his car was parked just outside). See also Kollie v. State, supra (where victim was in his home and the vehicle was in the attached garage).
Heard further argues that the evidence is not sufficient to show that he possessed a firearm or weapon. “[T]he weapon requirement of the hijacking statute is similar to that of the armed robbery statute.”
Haugland v. State,
“may be established by circumstantial evidence, and a conviction . . . may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may be inferred.” [Cit.] (Emphasis in original.)
Prins v. State,
“We have reviewed the evidence and find that a rational trier of fact could find [Heard] guilty beyond a reasonable doubt of hijacking a motor vehicle.”
Johnson v. State,
supra. Furthermore, viewed in a light most favorable to the verdicts, the evidence was sufficient to authorize a rational trier of fact to find Heard guilty beyond a reasonable doubt of all of the crimes for which he was convicted.
Jackson v. Virginia,
2. Heard contends that the trial court erroneously admitted his custodial statements, because the State failed to prove a knowing and voluntary waiver of his rights pursuant to
Miranda v. Arizona,
Even where, as here, a juvenile is involved, the question of whether there was a knowing and intelligent waiver of constitutional rights depends on the totality of the circumstances surrounding a police interrogation. [Cits.] “Among the factors to be considered are the accused’s age and education; his knowledge of the charge and his constitutional rights; his ability to consult with family, friends, or an attorney; the length, method, and time of the interrogation; and whether he previously had refused to give a statement *557 or repudiated the statement later. [Cits.] On appeal, we accept the trial court’s findings on disputed facts and credibility of witnesses unless clearly erroneous, but independently apply the law to the facts. [Cits.]”
Norris v. State,
Construed in support of the trial court’s ruling, the evidence shows that, at the time of his statements, Heard was 15 years old and between the eighth and ninth grades. He received average grades and was literate. His mother gave police detectives permission to interview Heard outside of her presence as part of their investigation into the shooting of Ramirez. “The fact that [Heard’s] mother was not present was a factor for the trial court to consider, but it was not determinative on the issue of voluntariness. [Cit.]”
Allen v. State,
Before Heard was asked about the shooting, a detective read the juvenile advisement of rights to him, and he expressed his understanding and executed a waiver thereof. Heard was informed that he did not have to talk to the police without a parent present. The detectives did not have probable cause to charge Heard at the time but, after he admitted some involvement in the shooting and his mother was informed, she requested an attorney and Heard was not questioned further. The interrogation lasted about an hour and a half and was followed by a brief admission by Heard that he was the one who shot the gun. Heard had not previously refused to give a statement, and he did not subsequently repudiate his statements.
At one point during the interview, one of the detectives confirmed Heard’s belief in God and knowledge of the Ten Commandments, called murder a mortal sin to be answered for, and implied the need to confess while he has the chance. Heard argues that these statements constituted coercive interrogation tactics which induced his confession by “the slightest hope of benefit or remotest fear of injury” in violation of OCGA § 24-3-50. However, “[t]he fact that a confession has been made under a spiritual exhortation ... or a promise of collateral benefit shall not exclude it.” OCGA § 24-3-51. See also
State v. Woods,
“Given the totality of the circumstances, we find no abuse of discretion in the refusal to exclude [Heard’s] statements]. [Cit.]”
Allen v. State,
supra. See also
Green v. State,
3. Heard urges that trial counsel rendered ineffective assistance by failing to call Heard’s mother at the hearing held pursuant to
Jackson v. Denno,
One of the attorneys representing Heard testified that his mother could not specifically remember whether she had requested to be present during Heard’s interview. In light of the questionable probative value of her testimony and the admission of certain other evidence on the issue which was favorable to the defense, Heard has not rebutted the strong presumption that trial counsel’s decision was made in the exercise of reasonable professional judgment. See
Allen v. State,
supra at 307-308 (4);
Dewberry v. State,
Moreover, as already noted, the absence of Heard’s mother from his interview is not determinative of the admissibility of his statements.
Allen v. State,
supra at 306 (2) (a). Accordingly, Heard has not shown a reasonable probability that testimony by his mother at the
Jackson-Denno
hearing would have so changed the trial court’s analysis of the totality of circumstances as to result in the suppression of Heard’s statements. Nor has he shown a reasonable probability that such suppression would have altered the outcome of the trial in the face of the overwhelming evidence presented by the prosecution.
See Bridges v. State,
4. Heard also enumerates as error the denial of a motion to sever the offenses committed on May 22, 2005 from those occurring on June 13, 2005.
If the charges are joined solely because they are of the same or similar character, a defendant has an absolute right to sever. [Cits.] . . . [However,] offenses have not been joined solely because they are of the same or similar character when evidence of one offense can be admitted upon the trial *559 of another, i.e., when they are so strikingly similar as to evidence a common motive, plan, scheme or bent of mind. [Cits.] (Emphasis in original.)
Stewart v. State,
The fact that evidence of one offense would be admissible in a trial of another offense is a relevant consideration in determining whether to sever, [cit.], but it does not end the inquiry. A trial court must still determine if severance of the offenses would promote a fair [and intelligent] determination of guilt or innocence as to each offense. [Cit.]
Stewart v. State, supra at 140. “In so doing, a trial court must look to the number and complexity of the offenses charged and determine whether a trier of fact can parse the evidence and apply the law with regard to each charge. [Cit.]” Stewart v. State, supra at 139. There is no evidence in this case that the combined trial of the charges confused or misled the jury, “and the verdict itself, including [Heard’s] acquittal for some of the charges, shows that the jury fully understood the law and evidence.” Simmons v. State, supra at 186 (4). “Therefore, on the facts of this case, it cannot be said that the trial court abused its discretion in denying the motion for severance. [Cit.]” Simmons v. State, supra at 185 (4).
5. A witness for the State was permitted to testify, over a hearsay objection, that Tafarion Childs, who was one of Heard’s co-indictees, stated that Heard had admitted his involvement in the shooting of Ramirez. The trial court allowed the testimony under the co-conspirator exception to the hearsay rule. Heard contends that there was no evidence that Childs was a party to the conspiracy to commit robbery at the apartment complex.
“Under OCGA § 24-3-5, the State must make a prima facie showing of the existence of the conspiracy, without regard to the declarations of the co-conspirator, in order to admit his out-of-court declarations. (Cit.) ...” [Cit.] Conduct which *560 discloses a common design, even without proof of an express agreement between the parties, may establish a conspiracy. [Cit.]
Livingston v. State,
Heard further complains that the trial court prevented him from examining a witness about overhearing statements by two other co-conspirators that they planned to blame the shooting on Heard because he was a minor. However, at the close of that witness’ testimony, the trial court reversed itself and gave Heard the opportunity to question the witness about the co-conspirators’ statements. Although Heard declined to avail himself of that opportunity, he could have done so and, therefore, “any error in this regard is harmless, [cit.] . . .”
Guyton v. State,
Judgments affirmed.
Notes
The crimes occurred on May 22 and June 13, 2005. Heard was originally indicted on December 16, 2005 and tried on an indictment which was filed on July 6, 2007. The jury found Heard guilty on November 7,2007, and the trial court entered the judgments of conviction and sentences on January 16, 2008. The motion for new trial was prematurely filed on November 13, 2007, amended on September 30, 2008, and denied on June 10, 2009. Heard filed the notice of appeal on June 22, 2009. The case was docketed in this Court for the April 2010 term and orally argued on June 8, 2010.