JACKSON v. STATE

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Docket Number

A05A1621.

Attorney(S)

Mary Erickson, for appellant. David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judges

John J. Ellington

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Smart Summary

Factual and Procedural Background

A Douglas County jury found Tarik Jackson guilty of multiple offenses arising from a September 19, 2001 gas-station armed robbery and an October 13, 2001 incident while he was incarcerated awaiting trial. [1][2][3]

After the trial court denied Jackson’s motion for a new trial, he appealed, challenging the denial of his motion to sever offenses and the presence of a testifying detective at the prosecution table. [1]

Legal Issues Presented

Whether the trial court abused its discretion by denying Jackson’s motion to sever Counts 6 through 12 from the remaining counts. [4]
Whether the trial court abused its discretion by allowing a detective who testified at trial to remain at the prosecution table despite the rule of sequestration. [5]

Arguments of the Parties

Appellant’s Arguments

Jackson argued that the two incidents underlying the thirteen counts were unrelated and of a different character, requiring severance of Counts 6 through 12. [4]
He argued that permitting the testifying detective to sit at the prosecution table violated the rule of sequestration. [5]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979)	Review of evidence in the light most favorable to the prosecution.	The court stated that it viewed the evidence under this standard. [3][6]
Mangrum v. State, 244 Ga. App. 559 (2000)	When offenses are joined because they involve the same conduct, connected acts, or a single plan or scheme, severance rests within the trial court’s discretion.	The court applied this discretionary standard to the joined offenses. [7]
Bland v. State, 264 Ga. 610, 611 (1994)	Severance is appropriate when necessary for a fair determination of guilt or innocence; admissibility of evidence in separate trials is relevant. Connected original offenses and escape-related conduct may also be tried together.	The court reasoned that the jail incident could be viewed as an attempted escape to avoid prosecution for the robbery, making the offenses connected. [7][8][9]
Carter v. State, 155 Ga. App. 840, 842 (1980)	An original offense and escape charge may constitute connected acts under certain circumstances.	The court relied on the case in concluding that severance was not required. [8][9]
Strozier v. State, 145 Ga. App. 566, 568 (1978)	Evidence of the original offense may establish the lawfulness of confinement, while escape evidence may show consciousness of guilt.	The court cited the case in support of treating the offenses as connected. [8][9]
Brown v. State, 246 Ga. App. 517, 520-521 (2000)	An issue not raised and preserved in the trial court generally cannot be considered on appeal.	The court applied this preservation rule because Jackson consented to the detective’s exemption and did not object when the detective testified. [5]

Court’s Reasoning and Analysis

The September offenses involved an armed robbery, followed within minutes by Jackson’s arrest in the getaway vehicle. The October offenses occurred while Jackson was jailed awaiting trial on those charges and involved conduct suggesting an attempt to escape, including fashioning a knife, obstructing a door lock, and threatening an officer. [3]

The trial court had discretion to deny severance because the offenses could be treated as a series of connected acts. Evidence of the jail conduct could support an inference that Jackson attempted to escape prosecution for the armed robbery, even though the State was not required to prove an attempted escape. [7][9]

Because the record and transcript did not show an abuse of that discretion, the appellate court upheld the denial of severance. [9]

As to the detective, Jackson’s counsel consented to the State’s request to exempt the detective from sequestration, and counsel did not object when the detective testified. The issue therefore was not preserved for appellate review. [5]

Holding and Implications

Judgment affirmed. The court held that the trial court did not abuse its discretion in denying severance and that Jackson failed to preserve his sequestration objection for appeal. [1][9][5][10]

The convictions therefore remained undisturbed. The decision applied existing rules concerning joinder, connected acts, and preservation of objections; it set no new precedent.

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JACKSON v. THE STATE.

ELLINGTON, Judge.

A Douglas County jury found Tarik Jackson guilty beyond a reasonable doubt of armed robbery, OCGA § 16-8-41; kidnapping, OCGA § 16-5-40; possession of a firearm during the commission of a felony, OCGA § 16-11-106; giving a false name to a law enforcement officer, OCGA § 16-10-25; aggravated assault (upon a peace officer), OCGA § 16-5-21 (c); simple assault (as a lesser included offense), OCGA § 16-5-20; four counts of interference with government property, OCGA § 16-7-24; and possession of a deadly weapon by an inmate, OCGA § 42-5-63. Following the denial of his motion for a new trial, Jackson appeals, contending the trial court abused its discretion when it denied his motion to sever offenses and when it allowed a detective to be present at the prosecution table throughout the trial. Finding no error, we affirm.

Jackson also entered a guilty plea to possession of a firearm by a convicted felon, OCGA § 16-11-131.

1. Jackson contends that two separate incidents which formed the basis of the thirteen counts charged were not related or of a similar character, and, accordingly, the trial court abused its discretion when it denied his motion to sever Counts 6 through 12 from the remaining counts.

Viewed in the light most favorable to the prosecution, the evidence shows the following facts. Counts 1 through 5 and Count 13 (the charges of armed robbery, kidnapping, possession of a firearm during the commission of a felony, giving a false name to a law enforcement officer, and possession of a firearm by a convicted felon) all arose from an armed robbery of a gas station on September 19, 2001. Within minutes of the robbery, an officer stopped the vehicle in which Jackson was a passenger and arrested him. Counts 6 through 12 (the charges of assault, interference with government property, and possession of a deadly weapon by an inmate) arose from an incident on October 13, 2001, when Jackson was incarcerated in the Douglas County jail awaiting trial on the September 19 charges. In that incident, Jackson fashioned a knife from a plastic spoon and piece of inmate clothing, stripped insulation from a door and jammed it in the door lock, and then, during a late night inspection, pushed the door open and threatened an officer with the knife.

Jackson v. Virginia, 443 U.S. 307, 318-319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

In this case, the trial court allowed the State to join the September 19, 2001 offenses and the October 13, 2001 offenses after finding that the offenses were based on a series of connected acts. "Where two offenses have been joined because they are based on (1) the same conduct, (2) on a series of connected acts, or (3) on a series of acts constituting parts of a single plan or scheme, the trial judge has discretion to decide whether or not to sever offenses." (Footnote omitted.) Mangrum v. State, 244 Ga. App. 559 ( 536 SE2d 217) (2000). "The trial court should sever the offenses if severance is appropriate to promote a fair determination of guilt or innocence as to each offense. Whether evidence of one offense would be admissible in a trial of the other if severance is granted is a relevant consideration." (Citations omitted.) Bland v. State, 264 Ga. 610, 611 (2) ( 449 SE2d 116) (1994).

Where a defendant escapes from jail while awaiting trial on another charge, the original offense and the escape charge may, under certain circumstances, be deemed a series of connected acts such that the trial court may in its discretion deny the defendant's motion to sever. Bland v. State, 264 Ga. at 611 (2); Carter v. State, 155 Ga. App. 840, 842 (2) ( 273 SE2d 417) (1980). This is because evidence of flight would be admissible at a separate trial as to the original charge to show consciousness of guilt, and evidence of the defendant's alleged commission of the original charge would be admissible at a separate trial on the escape charge to show the lawfulness of the confinement from which the defendant escaped. Bland v. State, 264 Ga. at 611 (2); Strozier v. State, 145 Ga. App. 566, 568 (3) ( 244 SE2d 89) (1978).

In this case, although the State was not required to prove the lawfulness of the confinement because Jackson was not charged with attempted escape, the jury would be authorized to infer that Jackson committed the October 13, 2001 offenses in an attempt to escape from jail and avoid prosecution for the September 19, 2001 armed robbery. After reviewing the record and transcript, we cannot say that the trial court abused its discretion in denying the motion to sever. Bland v. State, 264 Ga. at 611 (2); Carter v. State, 155 Ga. App. at 843 (2); Strozier v. State, 145 Ga. App. at 568 (3).

2. Jackson contends the trial court abused its discretion in allowing a detective who testified at trial to sit at the prosecution table despite Jackson's invocation of the rule of sequestration. The record shows, however, that after Jackson's counsel invoked the rule, the State moved to exempt the detective and Jackson's counsel consented to the exception. In addition, Jackson raised no objection when the State called the detective to testify. Accordingly, Jackson failed to raise and preserve this issue in the trial court, and we cannot now consider it on appeal. Brown v. State, 246 Ga. App. 517, 520-521 (5) ( 541 SE2d 112) (2000).

Judgment affirmed. Smith, P.J., and Adams, J., concur.