362 S.E.2d 384 | Ga. Ct. App. | 1987
Michael Marceya Smith a/k/a Van Moody a/k/a Michael Scott was tried by jury for armed robbery of a UPS truck and driver, and found guilty. Smith was not present during his trial because he escaped custody of his guard in the courthouse, after the jury had been impaneled but before evidence was taken. Several jurors saw the escape but several did not. Over objection and motion for mistrial, the trial court allowed the guarding deputy to testify that appellant had escaped.
The appellant urges the overturning of the armed robbery verdict because of the prejudicial effect of proceeding with trial after the escape, because of the jury’s knowledge of the escape, and because of the admission of the deputy’s testimony as to the escape, all of which he contends deprived him of his constitutional rights on every ground. Held:
The pursuers surrounded the dumpster and thus the appellant was captured. He was removed to the police station, robbery division, and was searched for weapons. A key was found in his pocket. This key had numbers on it and was identified by the UPS driver as the key to the back door of his UPS van which the robber had taken from the driver’s key ring. Also, the victim was shown a photographic lineup and unhesitatingly selected appellant’s photo as being that of one of the robbers.
This evidence is such that a reasonable trier of fact could rationally have found proof of appellant’s guilt of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The evidence directly connecting the appellant with the armed robbery of the UPS truck and driver is, we think, overwhelming, even in the face of the appellant’s voluntary absence from his trial and the consequent inability of the victim to physically identify him at the trial.
The admission of the evidence of escape and the fact that some jurors observed the escape do not justify overturning this conviction. The testimony of the guard explained appellant’s absence. The evidence had probative value for jury consideration. In Carver v. State, 137 Ga. App. 240 (1) (223 SE2d 275), we upheld a conviction over similar objections, because flight, even an escape from jail after the
As for appellant’s having voluntarily absented himself from his trial, he should not be allowed to profit from this action by winning a reversal of the conviction because he was not there. “Confrontation rights are personal to the accused and are waived when the accused . . . voluntarily absents himself from the trial.” Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610), cert. den. 442 U. S. 1011 (95 SC 2636, 45 LE2d 675); Croy v. State, 168 Ga. App. 241 (308 SE2d 568).
Therefore, neither the conduct of the trial in the face of appellant’s voluntary absence from his trial, nor the admission of testimony as to his flight “or similar act” was error by itself; and the two do not combine to create error. We conclude, in any case, that if any error attached to the conduct of the trial on these grounds, it is highly probable that any such error did not contribute to the conviction for armed robbery, and any such error was harmless beyond a reasonable doubt. Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133). The appellant was caught red-handed by returning to retrieve the apparent get-away car, after a flight and a fierce interstate chase, with the key to the UPS truck in his pocket; and his photo was immediately identified by the victim. The evidence is overwhelming that he committed the armed robbery and, in these circumstances, it would indeed be a perversion of justice to reverse his conviction because he escaped during trial in such circumstances that the jury became aware of it. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515).
Appellant’s objection that the sentence of 20 years, not to be served concurrently with any other, is indeterminate, is without authority, without argument, and without merit.
Judgment affirmed.