Hardy v. State , 223 Ga. App. 597 ( 1996 )

Blackburn, Judge.

Charles Hardy appeals his conviction on one count of theft by taking a motor vehicle, one count of criminal attempt to commit armed robbery, and two counts of armed robbery on the grounds that the trial court erred in admitting impermissible hearsay evidence and that the properly admitted evidence was insufficient to sustain a conviction.

This case concerns a string of three robberies that occurred in. the early morning hours of April 1,1994, at different apartment complexes located in Athens. In the first incident, shortly after Thomas W. Lynch parked his car near his apartment building, another car pulled up beside him. Two men exited the car. One of them was wielding a gun and demanded money. Lynch described the gunman as wearing a red baseball cap and dark, hooded top akin to a sweatshirt. The gunman took $15 in cash and a credit card from Lynch’s wallet.

In the second incident, shortly after Carl Bartholomaus and his wife parked their car in the lot of an apartment complex, a large, four-door vehicle pulled into the same lot. Three men were in the car, and two got out. One was carrying a gun and came towards the Bartholomauses’ vehicle. He banged on the window and commanded the couple to get out of the car. Bartholomaus was able to flee by placing the car in reverse. The gunman was described as wearing a dark, hooded jacket or sweatshirt. Bartholomaus subsequently identified Hardy as the gunman.

In the third incident, Vern Cresap was accosted by three men as he approached his apartment. The men were wearing red baseball caps and dark, hooded sweatshirts. One of the men was carrying a gun. They demanded money from Cresap and searched his pockets. Before leaving, they took Cresap’s keys and identification.

Later the same morning, a Winder police officer responded to a burglary call at a local pawn shop. Upon arriving, he found a blue Oldsmobile Delta Ninety-Eight occupied by David Burgess parked in front of the pawn shop. A revolver was also found in the automobile with one round of live ammunition. Hardy and another man were subsequently found hiding in the pawn shop. The three individuals found at the pawn shop were wearing dark jackets with hoods and red baseball caps. A credit card imprinted with Thomas Lynch’s name was found in Hardy’s pocket together with several rounds of ammunition that had been fired from a .357 revolver, the same type of gun found in the Oldsmobile. The Oldsmobile was being driven without a key. It had a broken steering column, a broken window, and a stolen tag. Subsequent investigation revealed that the car had been stolen from the Athens Auto Exchange either late in the evening of March 31, 1994, or early in the morning of April 1, 1994.

Upon learning the description of the suspects arrested in Winder, the Athens Police Department investigated to determine if the three men were involved in any of the aforementioned apartment robberies. Burgess confessed to an Athens police officer that he was present at each of the apartment robberies and implicated Hardy as also participating in these crimes. Burgess also indicated that Hardy had stolen the Oldsmobile that the trio had been traveling in at the time of their arrest. The officer from Athens wrote Burgess’ statement in her own handwriting and paraphrased what she remembered Burgess as saying about each of the apartment complex crimes.

Burgess refused to testify at trial, and his unredacted custodial statement, as transcribed by the Athens police officer, was read to the jury over Hardy’s hearsay objection.

1. Hardy argues that the trial court committed harmful error by admitting Burgess’ statement. The State offers no argument in support of the admission of the hearsay statement and in fact states that “admission of the hearsay testimony was likely improper.” While recognizing that the trial court erred in admitting the hearsay statement, the State argues that the error was harmless in light of the other evidence of Hardy’s guilt.

We agree the admission of Burgess’ statement was error, as Burgess’ refusal to testify at trial deprived Hardy of his constitutional right to confront the witnesses against him. See Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968); Short v. State, 256 Ga. 165, 168 (5) (345 SE2d 340) (1986); Crawford v. State, 203 Ga. App. 215, 216 (2) (416 SE2d 820) (1992).

For Hardy’s conviction to stand despite this evidentiary error, we must determine that the error was harmless beyond a reasonable doubt. Short, supra at 168-169, citing Schneble v. Florida, 405 U. S. 427 (92 SC 1056, 31 LE2d 340) (1972). Burgess’ statement was, undoubtedly, a significant tool in the State’s case. It linked Hardy to each crime and explained the crimes as part of a “spree.” The evidence of Hardy’s guilt was not otherwise overwhelming, and we cannot say “the minds of an average jury would not have found the State’s case significantly less persuasive had the [confession] been excluded.” Crawford, supra at 216 (2). This error demands reversal.

2. Having excluded the inadmissible confession, however, we determine the evidence was otherwise sufficient to support each of Hardy’s convictions. We review the remaining evidence under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), with all evidence construed and all reasonable inferences drawn most strongly in favor of the verdict.

As to the attempted armed robbery of the Bartholomauses, the record reveals that within a few hours of the crime, Hardy was located wearing clothing similar to the gunman, he had access to a gun, he was found in a group of three men as described by the victim, he was traveling in a car similar to that described by the victim, and, foremost, he was identified by the victim.¹

As to the robbery of Lynch, at the time of his arrest, Hardy was carrying a credit card obtained in the robbery which had occurred only a few hours earlier. The recent unexplained possession of stolen goods may be sufficient to support a conviction when considered with other evidence. Slater v. State, 209 Ga. App. 723, 724 (434 SE2d 547) (1993). Other evidence showed that, shortly after the robbery, Hardy was found wearing clothing similar to Lynch’s armed assailant.

With regard to the Cresap robbery, admissible evidence tying Hardy to the crime was his dress, the dress of his two companions, the similarity of the car near which Hardy was found to the car used by Cresap’s robbers, and the string of similar robberies that occurred on April 1, 1994, for which Hardy stood accused. The circumstantial evidence showed the other crimes were committed using the same modus operandi as this one. Such evidence allowed the jury to infer that Hardy committed this crime and to exclude the possibility that anyone else committed it. See Shaw v. State, 211 Ga. App. 647, 648-649 (1) (440 SE2d 245) (1994).

With regard to Hardy’s conviction for theft of the Oldsmobile, a jury may infer participation in a crime by one’s conduct, companionship, demeanor and “all other circumstances connected with the act for which the accused is prosecuted.” (Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 89 (469 SE2d 214) (1996). While Hardy was not found in the automobile, the circumstances would enable a jury to reasonably infer that Hardy participated in its theft. It manifested many of the characteristics of a stolen vehicle such that he should have known that it was stolen. The jury could infer that Hardy had been riding in the vehicle prior to his arrest, as the car was similar to the vehicle used in the attempted robbery of the Bartholomauses for which Hardy was implicated. See Shaw, supra. Finally, Hardy was found hiding from the police in close proximity to the vehicle.

Although this evidence was sufficient to support the convictions, the erroneous admission of the confession requires a new trial.

Judgment reversed.

Birdsong, P. J., concurs. Beasley, C. J, concurs specially.

1 While Hardy never demanded money or goods from the couple, the evidence permitted a jury to infer that Hardy had the intent to rob the Bartholomauses when he approached them with a gun in the early morning hours and demanded that they exit their car. See OCGA § 16-2-6. See also Murray v. State, 187 Ga. App. 747 (371 SE2d 272) (1988) (evidence sufficiently supported conviction for attempted burglary as the jury could infer defendant’s intent to commit burglary by his conduct); Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981) (defendant’s attempt to commit bank robbery could be inferred by his conduct).