Aрpellant Bruke Tesfaye was found guilty of and sentenced for committing malice murder, armed robbery, kidnapping, kidnapping with bodily harm, and possession of a firearm in the commission of a crime. 1 After reviewing the enumeration of errors set out by appellant, we affirm the judgment of conviction, but remand the case to the trial court for resentencing on the armed robbery conviction.
1. The State presented evidence that two men, one of whom was carrying a gun, entered a Fulton County liquor store in April 1997 and pushed a store employee into a walk-in cooler. One perpetrator removed money from the cаsh register while the other forced the store owner, Prem Sharma, into a back room where a safe was located. The keys to Sharma’s vehicle were taken from him, and he was beaten about his face and head and fatally shot in the chest. The two men drove away from the liquor store in the victim’s van and abаndoned it several blocks away. Fourteen months later, appellant Bruke Tesfaye walked into the American embassy in Addis Ababa, Ethiopia, reported his involvement in a murder in a liquor store in Atlanta, and asked for assistance in returning to Georgia. While on the airplane from Ethiopia to the United States, apрellant told the FBI agent accompanying him of his involvement in the crimes com
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mitted at the liquor store. Appellant repeated his story to another FBI agent who met the plane when it landed in the United States, telling the second agent he had taken approximately $340 from the cash register while his accomplice attempted to get the victim to open the store safe. At appellant’s trial, the two FBI agents and the embassy employee testified to what appellant had told them about his participation in the liquor store armed robbery that resulted in the death of Prem Sharma. In addition, a regular customer of the victim’s liquor store testified he saw two men, one of whom he identified as appellant’s co-indictee, just outside the liquor store the morning the owner was killed. While he could not identify the second man because he did not see his face, the witness stated the second man called the witness by name and, upon reflеction, the witness realized from the man’s accent, walk, eyes, and association with the coindictee, that the man was appellant. The evidence was sufficient to authorize appellant’s convictions.
Jackson v. Virginia,
2. Appellant complains the testimony concerning the statements he made to the FBI agents was not admissible because the statements were made after he had invoked his right to counsel. At a pretrial hearing, the FBI agent who met appellant in Ethiopia and accompanied him on the plane to the United States testified that appellant was not under arrest since the agent had no authority to arrest appellant or have him arrested in Ethiopia because Ethiopia has no extradition treaty with the United States. Nonetheless, the agent had read the Miranda rights to appellant when he met him at the American embassy and all questioning had ceased when appellаnt declined to make a written statement without counsel. The next day, several hours into the airline flight from Ethiopia, appellant began telling the agent about his life and talked about the liquor store shooting and robbery. The FBI agent testified he asked no questions of appellant. The second FBI agent testified she mеt appellant’s plane when it landed in the United States and appellant told her of his involvement in the crimes at issue after having been informed of his Miranda rights and executing a waiver of rights. The trial court found that appellant initiated the airplane conversation the day after he declined to execute a written statement without counsel and thereby knowingly and intelligently waived his previously-invoked right to have counsel present during custodial interrogation.
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Custodial interrogation of an accused must cease upon the accused’s invocation of the right to counsel, but an accused may waive the previously-invoked right by initiating further communication with the police.
Edwards v. Arizona,
3. The indictment charging appellant with malice murder alleged that appellant and his co-indictee “did unlawfully and with malice aforethought cause the death of Prem Sharma, a human being, by shooting him with a firearm. . . .” Because the means of killing were set out in the indictment, appellant posits that the means are an essential element of the crime and, relying on the trial court’s duty to give appropriate instructions as to the law on each substantive point of the case
(Driver v. State,
*442 4. Appellant was charged with two counts of armed robbery of Mr. Sharma. One count charged appellant and his co-indictee with taking United States currency from the victim, and the other count charged the perpetrators with taking the victim’s keys and van. The “currency” armed robbery count also served as the predicate felony of one of the two felony murder counts lodged against appellant. Upon appellant’s conviction for malice murder, the triаl court vacated the two felony murder convictions and also vacated the convictions for the predicate felony of each felony murder count, including the “currency” armed robbery count. Appellant contends the “keys and van” armed robbery conviction should also have been vacаted because there was only one armed robbery since there was only one victim. While we agree with appellant that he could not be convicted of two armed robberies in the case at bar, we disagree with his conclusion that both armed robbery convictions should be vacated.
When a victim is rоbbed of more than one item in a single transaction, only one robbery may be charged.
Bland v. State,
When guilty verdicts are returned on both felony murder and malice murdеr counts in a case where there is only one death, it is proper to do as the trial court did and sentence the defendant on the malice murder guilty verdict and treat the felony murder verdicts as surplusage.
Malcolm v. State,
5. However, the sentence imposed on the armed robbery conviction is also at issue. The trial court sentenced appellant to a term of 25 years’ imprisonment which, appellant correctly points out, exceeds the 20-year statutory maximum sentence for a term of years for armed robbery. See OCGA § 16-8-41 (b). The State does not dispute the fact that the maximum term-of-years sentence that can be imposed for armed robbery is 20 years. The sentence imposed for armed robbery must be vacated and the case remanded for re-sentencing on that conviction.
6. Lastly, appellant contends he wás denied his constitutional right to confront a witness when the trial court permitted an eyewitness to tell the jury what he heard one perpetrator say to the other
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as they ran from the liquor store to the victim’s van. The declarant/ perpetrator did not testify at appellant’s trial. Over objection, the trial court admitted the contested testimony as part of the res gestae of the crime. The trial court’s determination of admissibility will not be disturbed on appeal unless it was clearly erroneous.
Andrews v. State,
Georgia’s “res gestae” statute provides that “[declarations accompanying an act, or so nearly сonnected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. One of the two kinds of res gestae evidence recognized by Judge Daniel in the Georgia Handbook on Criminal Evidence (2002 ed.) encompasses the “circumstаnces, facts and declarations which grow out of the main criminal act, are contemporaneous with it, and serve to illustrate it.” Id. at § 4-58. “Acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae.”
Floyd v. State,
Judgment of conviction affirmed. Sentence affirmed in part and vacated in part and case remanded for resentencing.
Notes
The crimes were committed on April 14, 1997, and appellant was arrested in June 1998. Following a special presentment, the Fulton County grand jury returned a true bill on a nine-count indictment charging appellant with malice murder; felony murder with armed robbery in which U. S. currency was taken as the underlying felony; felony murder with aggravated assault as the underlying felony; armed robbery in which U. S. currency was taken; armed robbery in which keys to a van were taken; kidnapping with bodily injury оf the murder victim; aggravated assault of the murder victim; kidnapping of a store employee; and possession of a firearm during the commission of a crime. Appellant’s trial commenced January 11, -2000, and concluded with the jury’s return of its guilty verdicts on all nine counts on January 14. On February 2, appellant was sentenced to life imprisonment for the malice murder conviction. The trial court vacated the two felony murder convictions and the convictions for the felonies 'underlying both felony murder convictions. The trial court imposed a consecutive life sentence for the kidnapping with bodily injury of the murder victim; a consecutive twenty-five year sentence for the armed robbery in which the keys were taken; a consecutive ten-year sentence for the kidnapping of the employee; and a consecutive five-year sentence for the firearm possession. Appellant’s trial counsel filed a motion for new trial on February 17, and new counsel filed a motion for new trial on February 28 and an amended motion on May 1, 2001. The trial court denied the motions on July 27,2001, and issued another order denying the motions on September 26, 2001, because the July 27 order had been misplaced. Counsel was permitted to withdraw from representation and appеllant, acting pro se, filed a notice of appeal on October 9. The appeal docketed pursuant to that notice of appeal was struck from this Court’s docket and remanded to the trial court on January 18, 2002, when appellant sought the appointment of appellate counsel. The trial court appointed appellate counsel who, in accordance with the January 18 order of this Court, filed a timely notice of appeal on February 15. The appeal was docketed in this Court on March 14, 2002, and submitted for decision on the briefs.
The witness testified that one perpetrator said to the other, “Oh, s — t, why did you do that, man?”