Cert. applied for.
Armed robbery, etc. Fulton Superior Court. Before Judge Bedford.
Sutherland Asbill & Brennan, Thomas W. Curvin, Kurt E. Lentz, Yvonne M. Williams-Wass, for appellant.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Herbrina D. Sanders, Sheila E. Gallow, Assistant District Attorneys, for appellee.
Barnes, Presiding Judge.
A jury convicted Javarious Demario Davis of possession of a firearm during the commission of a felony and five counts each of armed robbery and aggravated assault. Following the denial of his motion for new trial, he appealed, arguing that the trial court erred in denying his motion to sever his trial from that of his three co-defendants and in failing to exclude similar transaction evidence [331 Ga.App. 586] against one of his co-defendants. He further argues that he was denied his constitutional right to be present during a critical stage of his trial.
Viewed in the light most favorable to the verdict, the evidence at trial showed that four men in a grey or silver Chevrolet with a Kentucky license plate pulled up to a construction site where five Hispanic workers were taking a lunch break. One man remained in the car while three others got out. While the workers thought at first that the men were approaching to offer them work,
one man pointed a black handgun at them and demanded their wallets. Another man acted as a look-out, and the fourth man, later identified as Davis, took the wallets from each worker and extracted a total of $800 to $925, including a $2 bill and a 20-peso bill. Davis tossed the wallets on the ground, and the robbers left. The workers, none of whom spoke English, called their foreman, who called 911, and the police responded to the scene. One of the workers had written the license plate number on a two-by-four with a carpenter's pencil, and the police issued a be-on-the-lookout for a gray or silver Chevrolet with a particular Kentucky license plate.
A patrol officer saw the car parked in the driveway of a residence a mile or two from the robbery site. Because there were " a lot of people outside," she parked with the property in view, called it in, and waited for more officers to arrive. Another officer rode his motorcycle by the house and saw four men and two women standing in front of the car with the Kentucky plates. After additional back-up officers arrived, they converged on the residence, and the men attempted unsuccessfully to flee or hide in the house.
The police drove four of the five victims to the house where the car was located, while one victim waited at the site to make sure their tools were not stolen in their absence. The victims identified three of the four men and the car on-site, and following their arrest, the police found cash on three of the four men, including Davis. One co-defendant also had two $2 bills among the American money, and another had a 20-peso bill. A search of the car uncovered a black handgun hidden under the carpet on the front passenger side. Davis's aunt had rented the car and had lent it to him around the time of the robbery.
The four men were indicted for possession of a firearm during the commission of a felony and five counts each of armed robbery and aggravated assault, and Trenard Bivins was acquitted of all charges. The other three, Davis, Ryan Davis, and Shannon Bradley, were convicted on all counts. After the trial court merged the aggravated assault counts into the armed robbery counts, Ryan Davis and Bradley were sentenced to life as recidivists, and Javarious Davis was sentenced to fifteen years to serve concurrently on each armed [331 Ga.App. 587] robbery count, plus five years consecutively on the firearms charge, which the court suspended.
1. Although Davis does not challenge the sufficiency of the evidence, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. Davis argues that (a) the trial court erred in denying his motion to sever or alternatively to exclude the similar transaction evidence, and (b) he was denied his constitutional right to be present at all critical stages of his trial because he left the courtroom while the State presented similar transaction evidence against his co-defendant Ryan Davis. The record shows, however, that Davis never moved to sever his trial from his co-defendants' trial or to exclude the similar transaction evidence, and that he waived his right to be present and acquiesced to his absence while the State presented the similar transaction evidence against Ryan Davis.
The State filed a notice of its intent to present evidence that co-defendant Ryan Davis had committed similar transactions. During a motions hearing on the day before trial began, the trial court heard and addressed the State's motion in limine to prevent the defendants from referring to the victims' immigration status. The trial court then referred to a ruling made in regard to co-defendant Bivins only. Davis asked to be included in that ruling as he had moved to adopt the motions of any co-defendant, and the trial court responded that it did not recognize such motions but required each defendant to file a specific motion for the relief he sought. Then, after addressing issues of trial mechanics with the four co-defendants,
the trial court asked counsel for everyone but Ryan Davis whether they saw any need for their clients to be present during the rest of the hearing, which would address the State's motion to introduce evidence of similar transactions against Ryan Davis. No one objected, and the trial court excused Javarious Davis, Bivins, and Bradley, who then left the courtroom. Counsel for ...