Burks v. State , 174 Ga. App. 304 ( 1985 )

Benham, Judge,

dissenting.

I must respectfuly dissent from Division 2 of the majority opinion and the concomitant affirmance of appellant’s conviction. While I agree with the majority’s statement of the law concerning the admission of evidence of similar crimes (see State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980)), I do not agree with the application of that law to the facts of the case at bar.

To fully discuss this issue, a more in-depth discussion of the facts is necessary. During the trial concerning the Del Taco robbery, the state introduced testimony and documentary evidence of an armed robbery at a Krystal restaurant in Fulton County, to which offense defendant had pled guilty. The Del Taco robbery took place on April 14, 1982, in Clayton County; the Krystal robbery took place on April 21,1982, in Fulton County, some three miles away. The Del Taco robbery took place at 8:00 p.m. and involved one gunman, while the Krystal robbery took place at 4:00 a.m. and involved two gunmen. At Del Taco, only paper money was taken from the cash register, and no customers or employees were harmed. At the Krystal robbery, the gunmen entered the business without ordering any food, and one gunman grabbed an employee and ushered her into the office, where he forced her to open the safe while another gunman herded the other employees into a back room. One of the robbers boldly put on a uniform and waited on customers, pocketing that money also. Both paper money and coins were taken from the safe and cash register and food was taken from the kitchen area. The robbers remained on the premises for 45 minutes to an hour, and before leaving they led the employees outside to a Dempsey Dumpster and ordered them to remain there while they made their escape.

Where, as here, the dissimilarities are legion and the similarities and connections are few, the court should balance the purpose of the rule disfavoring admissibility against the exceptions to the rule; and where the exceptions are not clearly overriding, the general rule as to inadmissibility should prevail, a situation I find to exist in the present case. Even though the trial judge gave limiting instructions in this instance, it is unlikely that the prejudice could have been overcome. Therefore, I cannot say that the error was harmless (Moody v. State, 237 Ga. 775 (229 SE2d 619) (1976)), and I must respectfully dissent.

Decided March 13, 1985 Rehearing denied March 29, 1985. Harry A. Osborne, for appellant. Robert E. Keller, District Attorney, Michael D. Anderson, Assistant District Attorney, for appellee.