Petition for Writ of Certiorari — Selvidge v. Georgia

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88-1856 rrr]

raged MAY 4 1984

TEVAS,

IN THE oo

Supreme Court of the United States

OCTOBER TERM, 1983

ee a

JAMES KENNETH SELVIDGE,

: Petitioner,

STATE OF GEORGIA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE GEORGIA SUPREME COURT

G. ALAN BLACKBURN

Attorney for Petitioner

4205 Roswell Read, N.E.

Atlanta, Georgia 30342

404) 256-3445

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Does the following conduct constitute such a viola-

tion of Defendant’s Sixth Amendment right of confronta-

tion as to require the reversal of his conviction:

a) \The reference by the State in closing argument

to the “cynfession” of an alleged co-conspirator, implicat-

ing rather where the “confession” was not in evi-

dence, and

b) The reading of the above “confession” to the

jury, in the guise of cross-examination of a defense wit-

ness who knew nothing of the “confession”, where the

alleged co-conspirator was not present at trial, although -

he was readily available to the State, and did not testify,

and where Defendant had never previously had an oppor-

tunity to cross-examine him, under oath, at any previous

hearing on the subject matter, and

c) The false opening statement to the jury by the

State in which the State, after stating the co-conspirator

was a thief, explained his absence and failure to testify at

the trial of Defendant, as being the result of his being in

Florida some place, inaccessible to the State, while know-

_ ing the co-conspirator was available under the uniform

law for such purpose?

2. Where the Defendant, who was charged with theft

by receiving, residéd in a trailer with an alleged co-

conspirator, which co-conspirator made an out-of-court

confession to having committed the subject burglary by

himself, and therein implicated Defendant, but did not

testify at Defendant’s trial, is circumstantial evidence

sufficient to sustain Defendant’s conviction where:

a) There was no live testimony connecting Defend-

ant to the subject crime, and

‘3

b) The comments of the State concerning the co-

conspirator’s confession, even though unobjected to, con-

stituted hearsay, and under Georgia law, cannot sustain a

verdict, and

c) .The only other evidence of the subject crime was

property from the subject burglary discovered in a shed

attached to the trailer Defendant shared with the alleged

co-conspirator?

3. Was Petitioner’s right to due process under Sec-

tion 1, of the Fourteenth Amendment to the Constitution

of the United States violated by the actions of the State in

the trial of theft by receiving charges, by the introduction

into evidence of property not alleged to have been stole

and the sending of same out with the jury, without an

appropriate charge, along with property alleged to have

been stolen, and by the State’s reference in closing argu-

ment to still other merchandise found at Petitioner’s

shared residence as being obviously stolen merchandise,

when Petitioner had never been charged with any crime

connected with such merchandise and no evidence was ~

introduced at trial concerning said merchandise?

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED .............. ccc cccececess

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MM ARPIIUIITUED oo ive ein ececcccnccccuccs

wc os waa e Kase cawckuc ts

EE ee Rohbuh kone eens

CONSTITUTIONAL & STATUTORY PRO¥#ISIONS ...........

ee ene

REASONS FOR GRANTING THE WRIT ............0..000.

cca sacdaccun

CERTIFICATE OF SERVICE ............... Teer Ce ee

APPENDIX

Appendix A ,

Opinion of the Georgia Supreme Court, entered March

7, 1984, affirming Georgia Court of Appeals .....

Appendix B

Opinion of the Georgia Court of Appeals, entered April

13, 1984, adopting opinion pf Georgia Supreme

Court, entered March 7, 1984 Peele Tyee

Appendix C

Opinion of the Georgia Cotitt of Appeals, entered

March 14, 1983, Mee RE IES ion deduces

Dissent of Judge Banke ............. 0.0... ccceaee

Appendix D

Denial By the Georgia Court of Appeals of Appellant’s

BEOUION TOP RONOATING ..... 1... ccc cece cece peces

Dissenting opinion filed by Judge Carley ..........

Substituted page 6 of original opinion, entered March

ge ee EMRGNER CCCI Tp ikas shee ss

Appendix E

Order, Newton County Superior Court, denying De-

fendant’s Motion for Judgment N otwithstanding the

Verdict, Indictment #6480, March 25, 1982 ......

Page

iii

Table of Contents Continued

Page

Appendix F

Order, Newton County Superior Court, denying De-

fendant’s Motion for New Trial, Indictments #6480

and #6482 ...... Stee e eens er eT eT

Appendix G

Sentence and judgment of Newton County Superior

Court, indictment #6480, entered November 3,

1981, and filed November 6, 1981 .......... wesue

Appendix H

Sentence and judgment of Newton County Superior

Court, indictment #6482, entered November 3,

1981, and filed November 6, 1981 ...............

Appendix I

Directed verdict of acquittal, Newton County Superior

i entered October 23, 1981, filed November 1,

Appendix —- \

. Sixth Amendment and Section 1 of the Fourteenth

Amendment to the U.S. Constitution ...........

Appendix K

0.C.G.A. § 16-8-7, formerly Ga. Code 1933, § 26-1806

Appendix L

O0.C.G.A. § 17-8-75, formerly Ga. Code, 1933 § 81-1009

Appendix M

Pertinent portions of trial transcript ...... puke

Opening remarks of District Attorney ...........

Testimony of David Grant .................0005

Direct examination of Mrs. Pollard ..............

Re-direct examination of Mrs. Pollard ...........

Re-Cross-examination of Mrs. Pollard............

Defense motion for directed verdict & ruling ..:.. :

Closing argument of District Attorney ..........

The Court's charge.to the jury ............. pee

Index of witnesses ...... Seweaeeeadecessewseces

l6a

17a

27a

28a

Table of Contents Continued

Page

e-wrene N

- Motion for New Trial & Judgment Notwithstanding the

WEEE: oad d4 Wewhes ous cechaes REheb eb kav b cess 60a

Appendix O

Appeal to Georgia Court EE a ds ka nee hand 67a

Appendix P

Motion for Rehearing-Georgia Court of Appeeia ee

Appendix Q

Prese R

0.C.G.A. 24-10-92, formerly Ga, Code 1933 § 38-2003a 86a

Appendix S

Selected ~_ ions of transcript of March 23, 1982, hear-

ing on Defendant’s Motion for New sp ppred 87a

Appendix T

Indictment #6482, Breedlove charge .............. 93a

Appendix U

Indictment #6480, Hayes charge ................. 95a

vi —

TABLE OF AUTHORITIES

CASES: - Page

I. Unitrep States SuPREME Court Cases: 7

_ Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61

L.Ed.2d DEE bivus cscs taxnauweeeneteeks 8, 13

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041,

ee ae Se EE CPU sc oo. b 4.0.63 0006 cae beak eee 11

Schneble vi. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31

El, DNETIE x0 550 ccncanse cee 10

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20

Re es ee Eo 6 0.00.48 000005454 deReeeeeees 9, 10

Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13

Sk; REED fn. c's c ckitnadtskawaws manele. 10

Pointer v. Texas, 380 U.S. 414, 85 S.Ct. 1065 (1965) . 10

Fay v. Noia, 372 U.S. 391, 835 S.Ct. 822 (1963) ..... ll

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.

A i al ed ed ee ea ee ds ll

Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 7$

I i ee clk aren 10

Ki v. United States, 174 U.S. 47, 19 S.Ct. 574, 48

.Ed. 890 (1899) ....... SVS wENCERS CHS cap ennsadse 10

II. GEoRGIA SUPREME CouRT CASES:

Smith v. State, 230 Ga. 412, 228 S.E.2d 811 (1976) ... 18

DePalma v. State, 225 Ga. 465, 169 S.E.2d 465 (1969) 13

Bacon v. State, 209 Ga. 261, 71 S.E.2d 615 (1952) .... 18

Rabun vy. Wynn, 209 Ga. 80(2), 70 S.E.2d 745 (1952) . 18

Mims v. State, 207 Ga. 118, 60 S.E.2d 373 (1950) .... 18

Myers v. Phillips, 197 Ga. 586, 29 S.E.2d 700 (1944) . 18

Higgins v. Trentham, 186 Ga. 264, 185 S.E. 862 (1938) 13

Cawthon v. State, 119 Ga. 395, 46, S.E. 897 (1904) ... 18

III. GEORGIA COURT OF APPEALS CASES:

Morris v. State, 161 Ga. App. 141, 288 S.E.2d. 102 (1982) 12

Allen y- State, 161 Ga. App. 142, 288 S.E. 2d 126(1981) 12

Mitchell v. State, 150 Ga. App. 44, 256 S.E. 2d 652(1979) 12

Mason v. State, 146 Ga. App. 675, 247S.E. 2d 121(1978) 12

Table of Authorities Continued

Page

Bass v. State, 140 Ga. App. 788, 232 S.E. 2d 98 (1976) 12

Blankenship v. State, 1385 Ga. App. 482, 218 S.E. 2d 157

A kav sa luCk buh ned tases conbebvesancatan l

Helton v. State, 134 Ga. App. 590, 215S.E. 2d 261(1975) =—12

McCrary v. State, 124 Ga. App. 649, 185 S.E. 2d 586

SE Ry Oar are re eer ere 13

Gee v. State, 121 Ga. App. 41, 172 S.E.2d 480 (1970) . 12

IV. UNITED STATES CONSTITUTION:

U.S. Constitution, Section 1, Amendment XIV ...... 2

U.S. Constitution, Amendment VI eS PRO FRG te ON 2

V. FEDERAL STATUTES:

IIR ee Are ie 2

VI. GeEorcia STATUTES:

0.C.G.A. § 16-8/7, formerly Ga., Code 1933

8 ig Ee Sa a > Pee eee 2, 12

0.C.G.A. § 24-10-92, formerly Ga., Code 1933

§ 38-2003a :

VII. FLoripa STATUTES: ,

West’s F.S.A. § 942.01-942.06 Lt ecatiesagdbeeeh ute 2,4

: IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No.

err

‘

JAMES KENNETH SELVIDGE,

Petitioner,

Vv.

. STATE OF GEORGIA

Respondent.

—

PETITION FOR WRIT OF CERTIORARI

_ TO THE GEORGIA SUPREME COURT

Petitioner prays that a Writ of Certiorari issue to re-

view the judgment of the Georgia Supreme Court entered

March 7, 1983.

CITATION TO OPINIONS BELOW

The opinion of the Georgia Supreme Court in this case

is cited as Selvidge v. The State, case #39889, ____ Ga.

——, 313 S.E.2d 84, (Appendix A). The opinions of the

Georgia Court of Appeals are cited as Selvidge v. The

State, Case #64723, ___ Ga. App. S.E. 2d

—___., (Appendix B) and Selvidge v. State, 166 Ga. App.

80, 303 S.E. 2d 294 (Appendix C and D). The denial of

Appellant’s motion for rehearing by the Georgia Court of

Appeals is Appendix D. The order of the Newton County

Superior Court, denying Defendant’s Motion for Judg-

ment Notwithstanding the Verdict on Indictment #6480

is Appendix E, and its order denying Defendant’s Motion

for New Trial on Indictments #6480 and #6482 is Appen-

dix F. The sentence and judgment of the Newton County

Superior Court on Indictment #6480 is Appendix G, its

sentence and judgment on Indictment #6482 is Appendix

H, and its directed verdict of acquittal is Appendix I.

JURISDICTION

The judgment of the Georgia Supreme Court was en-

tered on March 7, 1984. The jurisdicticn of this Court is

invoked pursuant to 28 U.S.C. § 1257 (3).

CONSTITUTIONAL & STATUTORY PROVISIONS

The Sixth Amendment and Section 1 of the Fourteenth

Amendment to the Constitution of the United States are

set out in Appendix J. 0.C.G.A. § 16-8-7, formerly Ga.

Code, 1933 § 26-1806, is set out in Appendix K. O.C.G.A.

§ 24-10-92, formerly Ga, Code 1933 § 38-2003a is set out in

Appendix R. West’s F.S.A. § 942.01-942.06 is set out as

Appendix L.

STATEMENT OF THE CASE

Petitioner was tried by a jury on three indictments for

theft by receiving stolen goods in connection with three

separate burglaries involving different fact situations and

parties, at a consolidated trial on October 22, 1981, in the

Superior Court of Newton County, Georgia, said indict-

ments being:

a) #6481, involving goods taken from Malcolm’s

Grocery, during a burglary which occurred on June

12-13, 1980, Defendant being charged with receiving

said goods on June 12-13, 1980. A directed verdict of

acquittal on this count was granted on Defendant’s

motion; :

b) #6482, involving goods taken from Breedlove’s

(Pony Express Stop and Go) on December 1-2, 1980,

. Defendant being ee ee with receiving said goods

in rawmne& 1981. Defendant was convicted on this

charge, after the Court denied Defendant’s motion

for directed verdict, and was sentenced to serve ten

years on probation, consecutive to the%sentence in

#6480, and to pay a fine of $1,000.00;

c) #6480, involving goods taken from Hayes Truck

and Tractor, during a burgiary which occurred on

December 4, 1980, Defendant being charged with

receiving said goods on January 24, 1981. Defendant

was convicted on this charge after the Court denied

Defendant’s motion for directed verdict, and was

sentenced to serve ten years, the first eight to be

served in confinement, with the balance on proba-

tion.

Other than the testimony of the owners of the involvéd

businesses, and the investigating officers, the only testi-

mony presented by the State was that of David Grant and

his wife, Bella Grant. Bella Grant’s testimony was con-

sistent with that of her husband, David Grant, who testi-

fied that:

1) He and Jay Flowers had committed both the

Malcolm (#6481) and Breedlove (#6482) burglaries,

2) He, Jay FLowers and Petitioner had been in-

volved in the consumption and disposal of the goods

stolen in the Malcolm and Breedlove burglaries,

3) He knew nothing about the Hayes (#6480)

burglary or the goods stolen tHerein.

4) Jay Flowers was the half-brother of Petitioner

and shared a trailer with Petitioner and had free and

open access to the property.

The testimony of David Grant as is herein relevant is

included as Appendix M2-3.

Jay Flowers was incarcerated in Florida at the time of

the {nal, was not present at the trjal, was not called as a

witness by the State and did not testify at the trial and

had never previously given testimony, under oath, at any

hearing on the charges herein involved (Appendix M6,

M43-45).

During opening statement, after having identified Jay

Flowers as having been involved in the subject burglar-

ies, the State intentionally misrepresented to the jury the

reason Flowers was not present to testify live at Petition-

* er’s trial by stating: “Flowers is some place in Florida,

inaccessible to us; __.” (Appendix M1, Lines 19-20).

Flowers, who had been turned over to the State of Flor-

_ ida, by the State of Georgia, was institutionalized in

Florida at the time of Petitioner’s trial and was readily

available to be brought to Georgia as a witness under the

‘Uniform Act to Secure the Attendance of Witness from

withcut the State, codified in Georgia as 0.C.G.A. § 24-

10-92, formerly Ga, Code 1933 § 38-2003a (Appendix M);

and codified in Florida as West’s F.S.A. § 942.01-942.06,

as amended (Appendix L).

During direct examination of Mrs. Pollard, the grand-

mother of Petitioner and Jay Flowers, defense counsel, in

reference to Jay Flowers, asked her if Flowers had been

sent to Florida by the Court, and she responded in the

affirmative. She was then asked if Flowers had been

involved in a robbery to which she responded that he had

- admitted it and said he was the only one that was in it. On

cross-examination, the State proceeded to hold up the

“confession” of Jay Flowers and, after being advised by

Mrs. Pollard that she knew nothing of any statement

given by Flowers, proceeded to read same to her in the

guise of questioning, i.e.:

“Q. Hesaid he did it. All right. Did he ever tell you

“how did yo ou get the tools ant I took them to my

grandmother’s house and I called my brother, he

came down there, he knows they are stolen. He had

to know where they came from. Investigator Reed »

asked him where they came from and he came up and

icked me up. I should have got more than I did. I

: ow I left the bolt cutters, I know I left the door

open, I was going to go back and try and wipe the

prints off, but I didn’t. I got the tools, I got two~

cardboard boxes and carried everything in two

boxes. I carried one box at a time out of the building

and my grandmother’s house was only. about fifty

yards from the building and I hid them in the bushes

and I got ahold of my brother and he came down

there and picked me up and took me to his house.

Where are they now? At his house, as far as I know.”

ae 4 tell you about the tvols he stole?” (Appendix

The State preceeded with this line of questioning with-

out objection by defense counsel. A

When the State attempted to introduce into evidence

the confession it had just read, defense counsel objected

to tis introduction on the basis that it was the confession

of another and would only be admissible at the trial of the

confessing party. The Court sustained the objection and

the confession was never admitted into evidence (Appen-

dix M11-12).

The State’s response to Defendant’s objection was

“Ordinarily, I would agree. However, on direct examina-

tion the Court well remembers Mr. Strickland’s witness,

while under direct indicated thathe (Flowers) gave a

statement to her exonerating the defendant. What this

statement is introduced for, is strictly to rebutt that state-

ment and: show prior inconsistencies.” (Emphasis add-

ed). The Court stated: “—The direct question was what

he (Flowers) told this witness, not what he told Mr.

Reed.—What he told Mr. Reed doesn’t rebutt what he

told her. He might have told two stories.” MR.

STRAUSS (District Attorney): “I think it is important

for the jury to know he (Flowers) told two stories.” “THE

COURT: That’s not an issue in this case. This is clearly

hearsay evidence.” (Emphasis added) (Appendix M12-

13). |

“No motion for mistrial or to strike was made at this

time by defense counsel and the Court did not take any

corrective action on its’ own initiative to attempt to cure

the damage done by the jury having heard the prejudicial

hearsay comments of the prosecutor.

This line of questioning was clearly without a factual

basis, as was later admitted by the District Attorney in

the argument on Defendant’s motion for new trial, when

he stated: “There may not have been factual basis for the

line of questioning.” (Appendix S2). Mrs. Pollard knew

nothing of the confession of Jay Flowers, and its reading

by the State was improper and prejudicial and deprived

' Petitioner of his right of confrontation and due process

under the Sixth and Fourteenth Amendments to the Con-

stitution of the United States.

At the close of evidence, Defendant madeamotionfora .

directed verdict of acquittal, based upon the insufficiency

of the evidence, which was granted as to Malcolm (#6481)

and denied as to Breedlove (#6482) and Hayes (#6480),

(Arpendix M14-24).

The State added to the abuse of Defendant’s con-

stitutional rights by referring in closing argument to the

confession of Flowers which had not been admitted into

evidence as follows:

MR. STRAUSS (District Attorney): “—he (Flowers)

hadn’t told her any of that stuff that you have already

heard from testimony showed that was confessed to Dale

Reed. The man is doing prison time, folks don’t confess to

& 7

go to. prison if they are not basically telling the truth.”

(Emphasis added) (Appendix M26, Lines 13-21).

During closing argument, the State referred to several

items found in the shed of Selvidge’s shared residence as

being stolen property, when no charge had been made

against any person in connection with these items, and

there was no evidence offered that they had been stolen.

The State argued that the presence of a parking meter, a

bible and a water jug, not connected with the burglary of

Malcolm, Breedlove or Hayes, was proof Petitioner was

guilty of the charges for which he was being tried (Appen-

dix M29-31). In referenct to the parking meter, the State

said “I asked him (Petitioner) about the parking meter,—

that’s obviously stolen,—he said, “You know my little

brother.” “We are not accusing James Selvidge of steal-

ing it, we are accusing him of aiding or abetting or being a

receiver of stolen goods. That’s what he is charged with

doing. By his own admission, with respect to the parking

meter, he has to be a receiver of stolen goods. Ifhe does it

in one case what is he going to do in the other case?”

(Appendix M29-30). :

It was error to introduce into evidence the red toolbox

(Exhibit 9), a pair of old bolt cutters (Exhibit 15) and a

socket wrench (Exhibit 12), and a certain rifle, all items

being the undisputed property of Petitioner’s grand-

father, Mr. J. C. Pollard, which were not identified by

any victim and which were returned to him after the trial

(Appendix S4-5). The jury was never instructed by the

Court not to consider these items in determining Petition-

er’s innocence or guilt or the value of the stolen goods

(Appendix M32-47).

Defendant subsequently filed his Motion for Judgment

Notwithstanding the Verdict as to Hayes (#6480), based

upon the insufficiency of the circumstantial evidence to

prove Petitioner’s guilt beyond a reasonable doubt and to

exclude every reasonable hypothesis save the guilt of the

defendant, per Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979), which was denied by

the trial court on March 25, 1982 (Appendix N, E and $7).

Defendant also filed his Motion for New Trial (Appen-

dix N,: item (f)), as to Breedlove (#6482) and Hayes

(#6480) based upon numerous grounds, including the

violation of. Defendant’s Sixth Amendment confrontation

rights and his Fourteenth Amendment due process rights

(Appendix N & F), which motion was argued before the °

trial court on March 23, 1982 (Appendix S), and was

denied by the court on March 25, 1982 (Appendix F).

» '. Each of the above issues were addressed in Defend-

ant’s appeal to the Georgia Court of Appeals (Appendix

QO), which affirmed the trial court in an opinion which

indicated that the Court thought Flowers had testified,

when in the Court’s opinion, it stated “—(c) There was no

error in allowing impeaching testimony from a statement

made by the witness Flowers which was inconsistent with

his in-court testimony.—” (Appendix C6). Flowers clear-

ly had not testified (APpendix M48-50) and this was

pointed out to the Georgia Court of Appeals in Defend-

ant’s Motion for Rehearing (Appendix P3). In its ruling on

Defendant’s, Motion for Rehearing, the Court sub-

stituted the following for the previously quoted portion of

its original opinion: “—(c) There was no error in allowing

impeaching testimony from a statement made by the

witness Flowers made to a police officer which was in-

consistent with what he reputably said to his grand-

mother in her in-court testimony, especially in the ab-

sence of an objection or motion to strike.” (Emphasis

added) (Appendix .D3).. The Court was still under the

impression that Flowers had testified, which he had not.

Judge Carley joined Judge Banke’s dissent in the Hayes

ruling, but felt that “—sufficient to support appallant’s

conviction of that burglary.” (Emphasis added) (Appen-

dix D8) Petitioner was, of course, charged with theft by

receiving, not burglary (Appendix T & U). The.opinion of

the Georgia Court of Appeals was rendered March 14,

1983 (Appendix C1-6, & D1-3).

Defendant’s application to the Georgia Supreme Court

on all issues (Appendix Q), was granted on the narrow

issue of the necessity for corroboration of witness Grant’s

testimony in connection with the/Breedlove (#6482)

burglary, and no argument was 3Mowed on other issues.

The opinion of the Georgia Court’of Appeals was modified

and affirmed by the Georgia Supreme Court on March 7,

1984.

\ The opinion of the Georgia Court of Appeals was

amended to conform with the opinion of the Georgia Su-

preme Court on April 13, 1984 (Appendix B1).

REASONS FOR GRANTING THE WRIT

The right to confront the witnesses used against one

charged with a crime is so basic a thread in our judicial

fabric, that it is essentially self-evident. The primary

safeguard for one accused of a crime is the right of cross-

examination. It is the best way in which the defendant can

show the falsity of the testimony by which the defendant

is sought to be convicted. The jury has the opportunity to

scrutinize the witness, his demeanor, and his response to

cross-examination, and is not subject to being fooled by

the polished delivery of a professional advocate standing

in as a witness. 7

‘The right of confrontation of witnesses and the limita- -

tions on the use of the confession of a co-conspirator has

been affirmed and outlined by this Court in Burton v.

, United States, 391 U.S. 128, 88 S.Ct 1620, 20 L. Ed2d 476.

(1968); Berger v. United States, 295 U.S. 78, 58S.Ct. 629,

79 L.Ed 1314 (1935); Douglas v. Alabama, 380 U.S. 415,

85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Schneble v. Flor-

ida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43

L.Ed. 890, and Pointer v. Texas, 3®0 U.S. 414, 85 S.Ct.

1065. —

The confession of one co-conspirator may not be used in’

the separate trial of another co-conspirator where the

confessing party is not available for cross-examination

and where there has been no prior opportunity for the

confessor to be cross-examined, under oath, by the de-

fendant. She.

The State indicates that the purpose of the reading of

the confession of the absent Flowers was to “rebutt that

statement (witness Pollard’s) and show prior inconsisten-

cies.” (Appendix M12-13). The confession of Flowers

could not rebutt the statement of witness Pollard, and

there was no prior statement by witness Pollard which

could be shown to be inconsistent. The prior inconsistent

statement rule clearly applies to statements by the wit-

ness sought to be discredited. Where the witness knew

nothing of the confession, there could be no good faith

basis for pursuing the questioning of the witness about

said statement while holding it in hand. Berger v. United

States, supra: The tactics employed by the State in this

connection are very similar to those which this Court

ruled were improper in Douglas v. Alabama, supra,

wherein the witness, who had claimed his fifth amend-

ment right against self-incrimination, was read his earlier

confession by the prosecutor, while holding same in hand,

and with each statement being preceded by a “Let me

refresh your memory”-type preamble.

In this case the preamble was “Did he tell you that”

followed by the reading of an incriminating portion of

Flower’s confession. If, as the trial court indicated in the

argument on Defendant’s motion for new trial, (Appendix

S9-10), it is permissable to use the confession of a non-

testifying co-conspirator by simply forming questions and

reading from the confession, then the confrontation

rights of the defendant may be emasculated by any clever

prosecutor, simply by “cross-examining” any defense

witness and asking him if “he had been told”—read con-

fession.

The State argues that Defendant has waived any objec-

tions to.the use of the confession of Flowers at trial by his

failure to object at trial. A personal waiver is required ofa

confrontation right as described in Schneckloth v. Busta-

monte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed. 854 (1972),

and any such waiver must be a knowing and intelligent

waiver. Jehnson v. Zerbst, 304 U.S. 458, 585 S.Ct. 1019,

82 L.Ed. 1461 (1938). Any waiver in this case was clearly

- inadvertant, as defense counsel objected to the introduc-

tion of the confession into evidence (Appendix M11, Line

20). The waiver of rights conferred or secured by the

Constitution of the United States is a federal question.

Fay v. Nova, 372 U.S. 391, 83 S.Ct. 822 (1963).

In any event, the waiver argument does not address

the confrontation violation the State engaged in by

referring to the confession to Daie Reed (police officer),

when the confession was not admitted into evidence and

the due process violation resulting from the reference to

other merchandise located in Defendant’s shared resi-

dence as being obviously stolen goods, when no such

evidence was tendered in that regard and the subject

merchandise was not connected with either of the charges

for which Defendant was being tried (Appendix M26,

Lines 13-21, M29-30).

The above actions were compounded by the State

advising the jury during opening statement that Flowers °

was a burglar and that he was not accessible to the State

to testify as a witness, when in fact Flowers was available

under the Uniform Act to Secure the Attendance of Wit-

ness from without the State (Appendix L & M).

The crime of theft by receiving, O.C.G.A. § 16-8-7,

formerly Ga., Code 1933 § 26-1806, fs described as the

receiving, disposing or retaining of stolen property which

one knows or should know was stolen unless possessed

with the intention of restoring same to its owner (Appen-

dix K).

Georgia law provides that unexplained possession of

recently stolen goods, standing alone will not support the

inference of guilty knowledge or authorize a conviction of

theft by receiving stolen property, the charge for which

Petitioner was tried, although it may be sufficient to

support a charge as the principal thief. Helton v. The

State, 134 Ga. App. 590, 215 S.E.2d 261 (April 7, 1975);

Gee v. The State, 121 Ga. App. 41, 172 S.E. 2d 480,

(January 21, 1970), and Blankenship v. The State, 135 Ga.

App. 482; 218 S.E. 2d 157, (July 16, 1975).

The Georgia equal access rule provides that merely

finding contraband on premises occupied by defendant is

not sufficient tq support conviction if it affirmatively

appears from the rene that persons other than de-

fendant had equal oppoktunity to commit the crime. Gee

v. The State, supra; Allen v. The State, 158 Ga. App. 691,

282 S.E. 2d 126 (1981); Morris v. The State, 161 Ga. App.

141, 288 S.E. 2d 102 (1982); Mason v. The State, 146 Ga.

App. 675, 247 S.E. 2d 121 (1978); Bass v. The State, 140

Ga. App. 482, 218S.E. 2d 157 (1975); Blankenship v. The

State, supra, and Mifehell v. The State, 150 Ga. App. 44,

256 S.E. 2d 652 (1979).

It is undisputed that Petitioner shared a trailer with his

half-brother, Jay Flowers, and that Flowers had free

access to the property, including the shed attached to the

trailer (Appendix M2-3; M6, Line 24-M7, Line 1). Jay

Flowers did not testify at Petitioner’s trial (Appendix

M48-50). Neither David or Bella Grant knew anything

about the Hayes (#6480) break-in (Appendix M2-3).

The evidence against Petitioner as to Hayes (#6480)

was strictly circumstantial. The confession of Flowers

was purely hearsay and had no probative value under

Georgia law, which follows the minority view in this

respect, in that hearsay which is admitted without object

still cannot be considered to sustain a verdict. McCrary v.

The State, 124 Ga. App. 649, 185'S:E. 2d 586 (1971),

Higgins v. Trentham, 186 Ga. 264, 197 S.E. 862 (1938),

and Rabun v. Wyn, 209 Ga. 80 (2), 70S. E. 2d 745 (1952).

Where circumstantial evidence is relied upon to estab-

lish the guilt of the defendant, such evidence must estab-

lish defendant’s guilt beyond a reasonable doubt and must

preclude every other reasonable hypothesis save that of

the guilt of the defendant. Jackson v. Commonwealth of

Virginia, et al., 443 U.S. 307, 99S. Ct. 2781, 61 L.Ed 2d

560; DePalma v. The State, 225 Ga. 465, 169 S.E. 2d 465

(1969); Myers v. Phillips, 197 Ga. 586, 29 S.E. 2d 700

(1944); Bacon v. The State, 209 Ga. 261, 71 S.E. 2d 615

(1952); Smith v. The State 230 Ga. 412, 228 S.E. 2d 811

(1976); Mims v. The State, 207 Ga. 118, 60 S.E. 2d 373

(1950), and Cawthon v. The State, 119 Ga. 395, 46 S.E.

897 (1904). The State’s evidence does not meet the re-

quired standards in that one very obvious hypothesis not

reasonably precluded by the evidence as to Hayes

(#6480) is the possibility that Jay Flowers committed the

burglary alone and never received any assistance from

Petitioner. Indeed, from the State’s own statement it is

known that Flowers initiated the Hayes (#6480) burgla-

ry, and under the law of continuance, there exists a

presumption that that state which is shown to exist is

presumed to continue until a different state is shown by

evidence having probative value. The State has not

shown by any evidence having probative value, that the

goods stolen from Hayes (#6480) by Flowers, ever left his

possession and came into the possession of Petitioner.

The State has failed to prove Petitioner's guilt of the

crime of theft by receiving property stolen from Hayes

(#6480), beyond a reasonable doubt.

CONCLUSION

For the above reasons, 2 Writ of Certiorari should issue

to review the judgment of the Georgia Supreme Court,

and Petitioner’s conviction as to Hayes (#6480) should be

reversed because of the failure of the State to prove its

case beyond a reasonable doubt, and it should be reversed

as to both Hayes (#6480) and Breedlove (#6482), because

of the prejudice resulting to Petitioner from the flagrant

violation of Petitioner’s rights of confrontation of witnes-

ses under the Sixth Amendment, and of due process and

_equal protection under Section 1, of the Fourteenth

Amendment to the Constitution of the United States.

Respectfully submitted,

G. ALAN BLACKBURN,

Counsel for Petitioner

4205 Roswell Road, N.E.

Atlanta, Georgia 30342

(404) 256-3445

May 7, 1984

CERTIFICATE OF SERVICE

This is to certify that copies of the Petition for Writ of

Certiorari have been served upon the State of Georgia by

placing three copies thereof in the United States Mail,

postage prepaid, addressed to Attorney General, State of

Georgia, Attn: Mr. William Hill, 132 State Judicial Build-

ing, 40 Capitol Square, Atlanta, Georgia 30334, and to

Mr. John Strauss, Newton County District Attorney,

Newton County Superior Courthouse, Covington, Geor-

gia 30209. I further certify that all parties required to be

served have been served.

Atlanta, Georgia, this 7th day of May, 1984.

G. ALAN BLACKBURN,

4205 Roswell Road, N.E.

a, Atlanta, Georgia 30342

7 (404) 256-3445

Counsel for Petitioner

APPENDIX A

IN THE SUPREME COURT OF GEORGIA

39889. SELVIDGE v. THE STATE

; Decided: MAR 7 1984

BELL, Justice.

Selvidge was tried on three counts of theft by receiving. The

counts charged him with receiving stolen goods from,

respectively, a hardware store known as Hayes Truck and

’ Tractor, Malcolm’s Grocery, and a ccnvenience store known as

Pop Breedlove’s. Selvidge was granted a directed verdict on

the Malcolm’s Grocery count, but he was convicted on the

remaining counts. Selvidge appealed, and the Court of Appeals

affirmed the two convictions. Selvidge v. State, 166 Ga. App.

80 (303 SE2d 294) (1983)..We granted certiorari to review a

question relating solely to the Pop Breedlove’s count: whether

the testimony of David Grant, the burglar of Breedlove’s store

and the principal witness against Selvidge on the Breedlove’s

count, required corroboration under OCGA. § 24-4-8. In

answering this question, we will supplement the facts as stated

by the Court of Appeals only where necessary to this opinion.

1. A basic rule of our criminal law is that ina felony case the

uncorroborated testimony of an accomplice is insufficient to

support a conviction. OCGA 8 24-4-8; Kesler v. State, 249 Ga.

251 Ga. 291 (1)(a) (305 SE2d 82) (1983); Moore v. State, 240 Ga.

210 (1) (240 SE2d 68) (1977); Ford v. State, 232 Ga. 511 (7) (207

SE2d 494) (1974)—and relying upon the general rule that a

thief and the receiver of the gonds he has stolen are not accom-

plices within the meaning of CCGA § 24-4-8, see Springer v.

State, 102 Ga. 447 (1) (2) (30 SE 971) (1897); Harris v. State, 67

Ga. App. 446 (4) (20 SE2d 434) (1942), cited in Selvidge, supra,

at 83; accord, Birdsong v. State, 120 Ga. 850 (1) (48 Se 329)

(1904); Storer v. State, 158 Ga. App. 644 (1) (281 SE2d 642)

_ (1981); Bradley v. State, 2 Ga. App. 622 (1) (55 SE2d 1064)

(1907); contra, Roberts v. State, 55 Ga. 220 (1) (1875), the Court

of Appeals found that Selvidge and Grant were not accom-

plices. Accordingly, the court concluded that Grant’s testi-

mony as to Selvidge’s participation in the crime of receiving

stolen goods from Breedlove’s store did not have to be corrobo-

rated. Selvidge v. State, 166 Ga. at 82-83. We disagree with the

court’s conclusion that Grant and Selvidge were not accom-

plices; however, we uphold the court’s affirmance of Selvidge’s

conviction on the Breedlove’s count because we find that suffi-

cient corroboration existed.

Although we agree that the general rule is that a thief and his

receiver are not accomplices within the meaning of OCGA

§ 24-4-8, we find that, in light of the evil which § 24-4-8 is

designed to remedy, an exception to this general rule is justi-

fied where there is evidence that the thief and the receiver

have engaged in a common criminal enterprise. See 53 ALR2d,

817, 838-846; Wilson v. Commonwealth, 75 SW2d 202 (Ky.

1934); People v. Lirna, 154 P2d 698 (Cal. 1944). The corrobora-

tion requirement of OCGA § 24-4-8 is based upon the concern

that an accomplice, due to motives such as a hope or promise of

leniency or immunity, may perjure himself to aid the state in

procuring the conviction of others. 7 Wigmore on Evidence,

§ 2057 at 322 (3rd Ed. 1940); 30 Am.Jur. 2d, Evidence, § 1148;

Coleman v. State, 227 Ga. 769 (1) (183 SE2d 379) (1971). In

cases where the thief and his receiver have acted pursuant to a

common criminal enterprise and one or both are testifying

against the other, the opportunity and motives for perjury

which present themselves are essentially the same as those in

criminal prosecutions involving the traditional forms of accom-

plices, and the testimony should be afforded the same measure

of distrust.

For this reason, we now hold that, if a thief and a receiver of

the stolen goods have acted pursuant to a common criminal

. enterprise, they are to be considered accomplices within the

meaning of OCGA § 24-4-8. Accordingly, the Court of Appeals’

decision in the instant case and the other cases cited above

which have held that the thief and receiver are not accomplices

of each other are hereby disapproved to the extent they are

_ inconsistent with this opinion. We emphasize, however, that

many cases involving a thief and a receiver of stolen goods will

fall outside the ambit of the above exception, in that there will

have been no connection between the thief and the receiver

other than the passing of stolen goods from one to the other. In

those instances, the thief and receiver are not accomplices, and

no corroboration is necessary.

‘In the instant case, there is some evidence that Grant and

Selvidge were involved in a common criminal enterprise.

. There was evidence that Selvidge drove Grant and Flowers t9

Breedlove’s. where he dropped them off and left the scene.

Grant’s testimony shows that, when Selvidge returned close to

midnight and picked them up in front of the store, they loaded

goods stolen from Breedlove’s into Selvidge’s car. Moreover,

the record shows that Grant, Selvidge, and Flowers aided each

other in transporting the goods to Selvidge’s trailer and in

consuming and disposing of the stolen goods. Under these

circumstances, we find that Grant should be considered an

accomplice of Selvidge for the purposes of the evidentiary rule

of OCGA § 24-4-8.

It being determined that Grant was an accomplice of Sel-

vidge, it follows that his testimony as to Selvidge’s identity and

participation in the crime of receiving stolen goods had to be

corroborated, and that that corroboration had to be indepen-

dent of Grant’s testimony. Kesler v. State, 249 Ga. at 465-466;

Milton v. State, 248 Ga. 192 (2) (282 SE2d 90) (1981). The

sufficiency of corroborating evidence is peculiarly a matter for

the jury to determine, and slight evidence, which may be

circumstantial, connecting the defendant with the crime is

sufficient corroboration. Kessier v. State, 249 Ga. at 466; Meek-

er v. State, 249 Ga. 780 (3) (294 SE2d 479) (1982).

In the instant case, we find that there was sufficient inde-

pendent evidence corroborating Grant’s testimony. First, the

two walkie-talkies found at Selvidge’s mobile home were iden-

tified by Ms. Breedlove as the ones stolen during the burglary.

She testified that a chipped corner near the battery compart-

ment of one walkie-talkie, and slightly bent and broken anten-

nas on both, identified the walkie-talkies as the ones stolen

from the store. Although Selvidge offered an explanation that

he thought the walkie-talkies were left at the trailer by his

brother or grandparents, the jury was authorized to resolve.

this conflicting evidence against Selvidge. See Ladson v.

State, 248 Ga. 470 (5) (285 SE2d 507) (1981); Rowland v. State,

141 Ga. App. 643 (234 SE2d 183) (1977). Most importantly,

testimony of Bella Grant, David’s wife, connected Selvidge to

the crime of theft by receiving. The Breedlove’s burglary

occurred during the late evening hours of December 1, 1980,

and the early morning hours of December 2, 1980. Bella Grant

testified that one night in early December of 1980, David,

. Flowers, and Selvidge drove off leaving her at Selvidge’s trail-

er. She testified that the three men came back around midnight

and carried a lot of beer and foodstuffs into the trailer. We find

that the above evidence constitutes sufficient independent

corroboration of David Grant’s testimony as to Selvidge’s par-

ticipation in the crime of receiving goods stolen from Breed-

love’s store.

Accordingly, although we disagree with the Court of

Appeals’ holding that Grant’s testimony did not have to be

corroborated, we uphold its affirmance of Selvidge’s conviction

on the Breedlove’s count because of our finding that Grant’s

testimony was sufficiently corroborated. /

Judgment affirmed. Ali the Justices concur.

APPENDIX B

64723. SELVIDGE v. THE STATE (Ba-174 to Bi)

SEPTEMBER, 1982

AFFIRMED______

BIRDSONG, Judge.

Our judgment in Selvidge v. State, 166 Ga. App. 80 (303

SE2d 294) has been affirmed by the Supreme Court in Se/vidge

v. State, Ga. (Case No. 39889, decided March 7, 1984). How-

ever, that portion of our opinion holding that a thief and a

receiver of the goods stolen are not considered to be accom-

plices thus obviating any necessity for the corroboration of an

accomplice’s testimony has been overruled, as have been the

earlier decisions to that effect.

We hereby adopt the reasoning and judgment of the Su-

preme Court holding that where a thief and a receiver of stolen

property have acted pursuant to a common criminal enter-

prise, they are considered to be accomplices within the mean-

ing of OCGA § 24-4-8 and the accomplice’s testimony requires

some corroboration.

For the reasons stated in our original opinion as modified by

the Supreme Court, the judgment of conviction and sentence in

this case are affirmed.

Judgment affirmed. McMurray, C.J., Deen, P. J., Quil-

lian, P. J.,and Banke, P. J., Carley, Sognier, and Pope, JJ.,

concur. Benham, J., not participating.

| APPENDIX C

64723. SELVIDGE v. THE STATE (Ba-174 to Bi)

MAR 14 1983

SEPTEMBER, 1982

AFFIRMED

BIRDSONG, Judge.

The appellant was tried on three separate indictments, each

charging him with theft by receiving stolen property with a

value of more than $200. The trial court granted his motion for

verdict of acquittal on the second indictment, and the jury

found him guilty on the other two. This appeal is from the

denial of his motion for new trial.

The first indictment charged the appellant with receiving

property stolen from a hardware store known as Hayes Truck

and Tractor, the second with receiving property stolen from

Malcolm’s Grocery, and the third with receiving property

stolen from a convenience store known as Pop Breedlove’s.

David Grant testified that in June of 1980, he and Jay Mitchell

Flowers, the appellants’ half brother, burglarized Malcolm’s

grocery and carried the bulk of the loot (mostly beer, wine,

cigarettes, and groceries) to the appellant’s trailer, where

Flowers and the appellant were both living at the time. Grant

testified that the appellant was present when they unloaded

the goods and that they told him the property had been stolen.

The trial court directed a verdict in the appellant’s favor on this

indictment for the stated reason that there was no evidence to

corroborate Grant’s testimony.

With regard to the burglary of Pop Breedlove’s store, Grant

testified that he and Flowers had committed this offense with

the appellant’s direct assistance in driving them to the scene

and back, and there was evidence that two walkie-talkies

stolen from the store were later discovered during a search of

the appellant’s trailer. Grant testified that he had seen these

walkie-talkies on the appeilant’s premises subsequent to the

night of the burglary but that each time they were outside the

trailer and in Flower’s possession. The appellant admitted

knowing the walkie-talkies were in the trailer but stated that

he believed they belonged to his two brother and/or his grand-

father. Appellant supported this explanation by the testimony

of both his grandparents to the effect that the grandmother

had previously purchased at least three walkie-talkies of the

same brand as gifts for her husband and her other two grand-

sons.

With regard to the Hayes Truck and Tractor burglary, the

evidence established that tools similar in quantity, quality and

appearance to those stolen from the establishment were seized

from a storage shed adjoining the appellant’s trailer during the

execution of the same search which led to the seizure of the

walkie-talkies. The appeilant testified that he did not know the

tools were there and that Flowers also had access to the shet.

He denied having participated in any of the burglaries or

having been present when any of the merchandise referred to

by Grant was brought to his home. —

1. A summary of the evidence indicates that David Grant

and Jay Flowers committeed a burglary of Malcolm’s grocery

stealing primarily foodstuff. Half the stolen goods were taken

to Grant’s residence and the other half take to Selvidge’s

trailer where Flowers lived with Selvidge. Grant testified that

Selvidge watched the stolen groceries brought into the trailer

and stored. Thereafter, the foodstuff was all consumed and

none was found on the premises. Therefore, the only evidence

connecting Selvidge to the burglary of Malcolm’s store and the

receipt of the fruits of that burglary was the uncorroborated

testimony of Grant. Thus, though the grant of directed verdict

of acquittal as to that count was proper, the evidence of Sel-

vidge’s knowledge that Grant and Flowers were engaged in

acts of burglary and that he received the products of their

misdeeds was a factor to be weighed by the jury in the other

counts.

As to the burglary of Pop Breedlove’s store, accepting the

story of Grant, he testified that only he and Jay Flowers

discussed a burglary. There is not even a scintilla of evidence .

- that they ever mentioned their plans to Selvidge. Though

Selvidge drove Grant and Flowers to a point near Breedlove’s

store and let the two youths out, Selvidge then drove on to

Manchester, apparently nearby. After the burglary was com-

pleted, Flowers walked on into Manchester to get Selvidge.

Thus there appeared to be no agreement for Selvidge to pick

them up. Grant testified that when they got out of the car, he

(Grant) did not know how they (Flowers and Grant) were going

to get the stolen foodstuff and beer back home. Again there is

no evidence that Selvidge was even aware of the plans except

for a statement apparently made by Selvidge when he got back

to the roadside near Breedlove’s: “Did you get all you wanted?”

It was only after the three returned home that Grant saw the

walkie-talkies. These were clearly identified as being the ones

taken in the burglary and not only were they found at Sel-

vidge’s trailier but Selvidge admitted possessing them.

Though he gave an explanation (that he thought they were

walkie-talkies purchased by his grandmother for members of

his family), this was a question of fact for the jury.

The evidence of Selvidge’s driving to and from the point of

the burglary points to nothing more than mere presence.

Grant’s testimony shows that Selvidge simply was transpori-

ing the burglars to a place close to the burgled store for he left

them off and drove on to Manchester. Grant had no idea how he

was going to get back home which wholly belies any agreement

or understanding by Selvidge that a burglary was going to take

place or that he was a party to it. Selvidge’s question after the

burglary, “Did you get all you wanted?” is fully consistent with

knowingly receiving stolen property and at best raises a bare

_suspicion-that he was a party to the burglary. In my opinion,

“this excludes any guilt of Selvidge as to the crime of burglary.

If Selvidge was not a party to the burglary, then he was not an

accomplice to the crime of burglary or theft by taking. More-

over, Grant could not be an accomplice to the crime of receiving

the property he had stolen; therefore, his testimony would not

be excludable as an accomplice in relation to Selvidge’s receipt

or knowledge. Se Springer v. State, 102 Ga. 447 (30 SE 971);

Harris v. State, 67 Ga. App. 446, 447 (4) (20 SE2d 434). The

cases of Patterson v. State, 109 Ga. App. 582 (137 SE2d 74) and

Goodbread v. State, 29 Ga. App. 195 (115 SE 44), cited in the

dissent, both deal with situations where the defendant was

directly or indirectly involved in the theft (and was charged

with the theft—not receiving stolen property). In each of those

cases, the testimony of a co-accomplice needed corroboration,

a fact not present in the instant case. In fact, the Goodbread

case, supra, at p. 199, holds: “Granting that George Ponder,

who did not participate in the burglary, was guilty of receiving

stolen goods, he was not an accomplice of the principal thief.”

Grant’s testimony .was sufficient to warrant conviction.

As to the burglary of Hayes Truck & Tractor, Grant was

unable to shed much light on that crime. However, the evi-

dence clear|y demonstrated that Selvidge was the owner of the

trailer and the property upon which the shed was located.

Though Flowers lived with Selvidge, there is no indication that

Flowers had any proprietary interest in any of the buildings or

land. Thus the inference of possession flowing from ownership

supports the finding of receiving the stolen tools located at the

shed by Selvidge. See Cleveland v. State, 155 Ga. App. 267

(270 SE2d 687). See also Jarrard v. State, 163 Ga. App. 99

(SE2d).

In both Gee v. State, 121 Ga. App. 41 (172 SE2d 480) and

Blankenship v. State, 135 Ga. App. 482 (218 SE2d 157), cited

by the appellant, sole proprietorship was not shown. Thus the

rule of equal access had relevance. In this case, the mere

presence of Flowers on the premises does not establish that he

had the right of equal access to the shed with Selvidge. The sole

proprietor of the premises (Selvidge) is charged with knowl-

edge of and possession of the stolen property which equally

authorizes a finding by the jury of receipt of stolen property.

Taken together with his apparent knowledge of other burglar-

ies and his possession of the stolen property, this warranted

conviction of receiving the property stolen from the Hayes

10a

Truck & Tractor business. See Galloway v. State, 157 Ga. App.

85, 87 (2) (276 SE2d 135).

2. Appellant complains that there was insufficient evi-

dence of value of the items stolen to support a felony sentence.

We disagree. The victims were merchants engaged in the

business of buying and selling merchandise such as that stolen. 2

There was testimony offered, without objection that the loss in

the Breedlove burglary was in an amount of almost $1,000 and

in the Hayes case that tools of a value of over $1,300 were

taken. The items in the Breedlove burglary were placed in the

possession of Selvidge by the testimony of Grant. The tools

taken from Hayes reasonably were identified as being the

same type and kind stolen, and subsequently found in a shed

under Selvidge’s proprietary control. We conclude this is

minimally sufficient, at the least, to support possession of

stolen property (and also of receiving same) of a value of $200 or

more so as to support a felony sentence. Lez v. State, 162 Ga.

App. 259, 261 (3) (290 SE2d 307). Moreover, the evidence as to

value was received without objection and could not be raised

after conviction either on a motion for new trial or in this court.

Hart v. State, 227 Ga. 171 (179 SE2d 346); Moore v. State, 138

Ga. App. 902 (2) (227 SE2d 809).

3. The remaining enumerations of error have all carefully

been examined.

(a) There is sufficient circumstantial evidence, as sup-

ported by other direct evidence, to warrant a jury finding of

guilt beyond a reasonable doubt.

(b) We are satisfied beyond a reasonable doybt that the

victim Hayes sufficiently identified the tools recqvered from

selvidge’s out building as being his and the ones take from his

store.

from a statement made by the witness Flowers which was

inconsistent with his in-court testimony. ;

lla

concur in ¥

dissents 7%

Meas

ment faa ‘Carley, J, co? ncurs in part and

part. Banke, J., dissents.

64723. SELVIDGE v. THE STATE. (Ba-174 to Bi).

BANKE, Judge, dissenting.

1. The majority is simply incorrect in its conclusion that

Grant’s testimony evidences no prior awareness by the appel-

lant of the plan to burglarize Pop Breedlove’s store. Grant

testified that after he and Flowers planned the burglary, Flow-

ers spoke with the appellant, and the appellant then drove the

two of them to the store. All of this took place in the middle of

the night, and Grant stated that he left the appellant’s vehicle.

carrying a crowbar. All:hough it is true Grant testified that

initially he did not know how he and F lowers were going to get

back with the loot, the majority neglects to mention that Grant -

also said he asked Flowers about this problem, and Flowers

told him the appellant was coming back for them. Grant further

testified that after the burglary was completed, the appellant —

drove back to the vicinity of the store, cut his headlights, asked

if they had gotten everything they wanted, and waited while

they loaded the vehicle with the stolen property.

I do not comprehend how this testimony can be character-

ized as evidencing no participation by the appellant in the

commission of the burglary. Rather, I believe that. Grant

directly implicated the appellant as an accomplice to the

burglary and that Grant’s testimony must consequently be

corroborated in order to support the appellant’s conviction for

receiving property stolen in that burglary. See generally

OCGA § 24-4-8. Accord Patterson v. State, 109 Ga. App. 582

(187 SE2d 74) (1964). Compare Harris v. State, 67 Ga. App. 446

(4) (20 SE2d 434) (1942); Goodbread v. State, 29 Ga. App. 195

(5) (115 SE 44) (1922).

12a

Aside from Grant’s testimony, the only evidence connecting

the appellant to the property stolen from Pop Breedlove’s was

the discovery of the two walkie-talkies in his trailer. However,

the appellant shared this trailer with Flowers, and there is

absolutely nothing, aside from Grant’s testimony, to indicate

that the appellant knew these items were stolen. In fact, it is

undisputed that the appellayit’s grandmother had given at least

three walkie-talkies of the’same make to various members of

his family, and th ant testified that he believed these

were the waliie-falkies in his trailer.

“Where in a felony case the only witness implicating the

defendants in the crime is himself avowedly guilty, the

corroborating citcumstances necessary to dispense with

another witness ynust be such as to connect the defendants

with the offenseAnd lead to an inference of guilt independent of

the testimonyéf the accomplice.” Patterson v. State, supra, at

582. BecapSe there:are no such corroborating circumstances in

I would reverse the appellant’s conviction for know-

ingly receiving the property stolen from Pop Breedlove’s. See

generally OCGA § 16-8-7.

2. I find no evidence at ail to support the appellant’s convic-

tion for receiving property stolen from hayes Truck & Tractor.

Insofar as this offense was concerned, the sum total of the

state’s case was merely that property stolen from the store was

discovered in a shed adjacent to the trailer which the appellant

shared with Flowers, the actual perpetrator of the burglary.

There was evidence that Flowers had free access to this shed.

“Merely finding contraband on premises occupied by defend-

ant is not sufficient to support a conviction if it affirmatively

appears from the evidence that persons other than the defend-

ant had equal opportunity to commit the crime.” Gee v. State,

121 Ga. App. 41, 42 (172 SE2d 480) (1970); Blankenship v.

State, 135 Ga. App. 482, 483 (218) SE2d 157) (1975). I would

accordingly reverse the appellant’s conviction of this offense,

also.

13a

APPENDIX D

COURT OF APPEALS OF THE STATE OF GEORGIA

ATLANTA, March 30, 1983

The Honorable Court of Appeals met pursuant to adjourn-

ment.

The following order was passed:

64723 James K. Selvidge v. State

Upon consideration of the motion for a rehearing filed in this

ease, it is ordered that it be hereby denied.

Note:

New page 6 in majority opinion; Judge Carley’s concurring in

part and dissenting in part also added. (copies enclosed) Please

substitute and add to your opinion dated 3/14/83.

COURT OF APPEALS OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta MAR 30 1983

I certify that the above is a true extract from the minutes of

the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

ALTON HAWK

Clerk.

64723. SELVIDGE v. THE STATE. BA-174 to BI

CARLEY, Judge, concurring in part and dissenting in part.

With regard to the indictment relating to the burgiary of Pop

Breedlove’s store, I agree with the majority that Grant’s testi-

l4a

mony was sufficient to support appellant’s conviction of that

burglary. However, I join the dissent in concluding that the

evidence was insufficient to sustain the conviction for theft by

receiving with respect to the property stolen from Hayes

Truck and Tractor.

conviction either on a motion for new trial or in this court. Hart

v. State, 227 Ga. 171 (179 SE2d 346); Moore v. State, 138 Ga.

App. 902 (2) (227 SE2d 809).

3. The remaining enumerations of error have all carefully

been examined.

(a) There is sufficient circumstantial evidence, as sup-

ported by other direct evidence, to warrant a jury finding of

guilt beyond a reasonable doubt.

(b) Weare satisfied beyond a reasonable doubt that the

victim Hayes sufficiently identified the tools recovered from

Selvidge’s out building as being his and the ones taken from his |

store.

(ec) There was no error in allowing impeaching testimony

from a statement made by the witness Flowers madetoa police ~

officer which inconsistent with what he reputably said to

er in her in-court testimony, especially in the’

absence of an objection or motion to strike.

- (d) We find no merit, either, in any of the other numerus

asserted errors raised by the appellant.

Judgment affirmed. Quillian, P. J. McMurray, P. J., Sog-

nier, and Pope, JJ., concur. Shulman, C. J., and Deen, P. J.,

concur in judgment only. Carley, J., concurs in part and

dissents in part. Banke, J., dissents.

‘

15a

APPENDIX E

IN THE SUPERIOR COURT FOR NEWTON COUNTY

STATE OF GEORGIA

INDICTMENT #6480

THEFT BY RECEIVING STOLEN PROPERTY

MOTION FOR JUDGMENT NOTWITHSTANDING

THE VERDICT

STATE OF GEORGIA

Vv.

JAMES KENNETH SELVIDCE

ORDER

This motion having been duly heard and considered, the

same is hereby denied.

This 25th day of March, 1982.

GREELEY ELLIS

Judge, Superior Courts

Aleovy Judicial Circuit

‘FILED IN OFFICE

This 25th day of March 1982

MILDRED B. Lorp, CLERK

Newton Superior Court

l6a

APPENDIX F

IN THE SUPERIOR COURT FOR NEWTON COUNTY

STATE OF GEORGIA

INDICTMENTS #6480 and #6482

THEFT BY RECEIVING STOLEN PROPERTY

MOTION FOR NEW TRIAL

STATE OF GEORGIA

JAMES KENNETH SELVIDGE

ORDER 5

This motion having been duly heard and considered, the

same is hereby denied.

With respect to the jury instructions, the record should

show that instructions on “recent possession” were requested .

by defense counsel, and that the instructions actually given

were prepared by defense counsel, the District Attorney and

the Court, and were expressly approved by defense counsel

before given to the jury.

SO ORDERED, this 25th day of March, 1982.

GREELEY ELLIS

Judge, Superior Courts

Aleovy Judicial Circuit

FILED IN OFFICE

This 25th day of March 1982

MILDRED B. Lorp, CLERK

Newton Superior Court «

ee a ae ee

17a

APPENDIX G-

FELONY OR STATE MISDEMEANOR SENTENCE

PARTIAL PROBATION

IN THE SUPERIOR COURT FOR NEWTON COUNTY, GEORGIA

Case No. 6480

Charge Theft by Receiving Stolen Property, Fel.

Count #1

October Term, 1981

(VERDICT) OF GUILTY

Attorney: Charles Strickland

THE STATE OF GEORGIA

vs.

JAMES KENNETH SELVIDGE

WHEREUPON it is ordered and adjudged by the Court

that the Defendant James Kenneth Selvidge be taken from the

Bar of the Court to the jail of this County, and be there safely

kept until a sufficient guard is sent for him from the State Penal

System and be then delivered to, and be by said guard taken to

such penal institution in said system as the Director of Correc-

tions may direct’, where he, the said defendant, shall be con-

fined at labor for a term of ten (10) years to be computed

according to law. oe

It is further ordered by the Court that the first eight years

(8) of said sentence be served in confinement, but that the

defendant be permitted to serve the balance of said sentence on

probation—with said probation to begin immediately upon

defendant’s release from confinement—upon the following

conditions: that defendant—

1. Avoid injurious and vicious habits.

18a

- ._ 2. Avoid persons or places of disreputable or harmful

character.

3. Report to the probation officer as directed

4. Permit such officer to visit him at his home or else-

where.

5. Work faithfully. at suitable employment insofar as

may be possible. °

6. Remain within a specified location.

7. Support his legal dependents to the best of his ability.

8. Violate no local, State or Federal laws and be of

general good behavior.

9. Ifpermitted to move or travel to another State, agree

to waive extradition from any jurisdiction where he may

be found and not contest any effort by any jurisdiction to

return him to the State of Georgia.

10. Pays through the Circuit Probation Office restitu-

tion in the amount of ___ and a fine in the amount of __.,

in the following manner:

FILED IN OFFICE

This 6th day of Nov., 1981

MILDRED B. Lorp, CLERK

Newton Superior Court

This 3rd day of Nov. 1981.

Judge, Superior Courts .

Aleovy Circuit

John T. Strauss, District Attorney

Aleovy Circuit

* * * * *

I, the undersigned (Clerk) (Deputy Clerk) of the Superior

Court in and for said County, do hereby certify that the above

is a true and complete copy of the sentence and judgment of the

19a

Court in the case of State vs. James Kenneth Selvidge as

appears of record and from the minutes of said Court.

Given under my official signature and the seal of said Court,

this 17th day of Nov., 1981.

~ Linpa D. Hays

(Deputy Clerk)

Recorded Crim Min Book 8

11-13-81 Page 300

MILDRED B. Lorp,

CLERK Superior Court

Newton County, GA.

20a

APPENDIX H

FELONY OR STATE MISDEMEANOR SENTENCE

PROBATION

IN THE SUPERIOR COURT

NEWTON COUNTY, GEORGIA

Case No. 6482

— Theft by Receiving Stolen Property

Felony

October Term, 1981

(VERDICT) OF GUILTY

Attorney: Charles Strickland

THE STATE OF GEORGIA

vs.

JAMES KENNETH SELVIDGE

WHEREUPON it is ordered and adjudged by the Court

that the Defendant James Kenneth Selvidge be taken from the

Bar of the Court to the jail of this County, and be there safely

kept until a sufficient guard is sent for him from the State Penal

System and be then delivered to, and be by said guard taken to

such penal institution in said system as the Director of Correc-

tions may direct, where he, the said defendant, shal! be con-

fined at labor for a term of ten (10) years to be computed

according to law.

HOWEVER, it is further ordered by the Court that the

above sentence may be served on probation, under the super-

vision of the Officer designated by the Circuit Probation Office,

PROVIDED, that said defendant complies with the following

2la

special conditions herein imposed by the Court as a part of this

| sentence that defendant:

\ 1. Avoid injurious and vicious habits.

2. Avoid persons or places of disreputable or harmful

character.

3. Report to the probation officer as directed

4. Permit such officer to visit him at his home or else-

where. 3

5. Work faithfully at suitable employment insofar as

may be possible.

6. _Remain within a specified location.

7. Support his legal dependents to the best of his ability.

8. Violate no local, State or Federal laws and be of

general good behavior.

9. Ifpermitted to. move or travel to another State, agree

to waive extradition from any jurisdiction where he may

be found and not contest any effort by any jurisdiction to

return him to the State of Georgia.

10. Pays through the Circuit Probatio

tion in the amount of ___ and a fine i

$1,000.00, in the following manner:

-Office restitu-

the amount of

Fine to be paid at the rate of $10.00 er week, beginning

thirty days after defendant is releaseti from confinement.

Said sentence to run consecutively with previously im-

sed sentence of this date, Indictment Number 6480,

heft by Receiving Stolen Property, Felony.

22a

The defendant was advised of his‘right to a review of the

Sentence by the Sentence Review Panel.

FILED IN OFFICE

This 6th day of Nov., 1981

MILDRED B. Lorp, CLERK

Newton Superior Court

This 3rd day of November 1981.

Judge, Superior Courts

Aleovy Circuit

John T. Strauss

District Attorney A.C.

vo * * * *

I, the undersigned (Clerk) (Deputy Clerk) of the Superior

Court in and for said County, do hereby certify that the above

is atrue and complete copy of the sentence and judgment of the

Court in the case of State vs. James Kenneth Selvidge as

appears of record and from the minutes of said Court.

Given under my official signature and the seal of said Court,

this 13th day of November 1981. .

Linpa D. Hays

(Deputy Clerk)

Recorded Crim Min Book 8

11-13-81 Page 270

MILDRED B. Lorp,

CLERK Superior Court

Newton County, GA.

23a

APPENDIX I

GEORGIA, NEWTON COUNTY

IN THE SUPERIOR COURT OF SAID COUNTY

Case No. 6481

The Grand Jurors selected, chosen and sworn for the C ounty

of Newton to-wit:

I, Sam Ramsey, Foreman; (2) Hollis Blackshear; (3) Helen

Knight; (4) Arthur Mae Jefferson; (5) John Wayne Cody; (6)

Carole C. Doster; (7) Jean Burton; (8) Gail Bayes: (9) Johnny

Blackshear, Jr.; (10):Judy Allen; (11) Henry. Hollingsworth;

(12) Weston M. Brown; (13) Marshall R. Elizer; (14) Joe W.

Allgood; (15) Frank Castellana; (16) T. M. Ewing; (17) R. A.

Maddox; (18) Isaac Henderson; (19) Harold J. Ayers; (20)

Robert Lee Hurst, Sr.; (21) Connie W. Knight; (22) Jannie Bell

Hammonds; (23) Georgia Anderson. |

In the name and behalf of the citizens of Georgia, charge and

accuse James Kenneth Selvidge with the offense of Theft by

Receiving Stolen Property, Felony for that the said James

Kenneth Selvidge on the 13th day of June, in the year Nineteen

Hundred and eighty 80 in the County aforesaid, did then and

there, unlawfully did receive stolen property, to-wit: beer,

meat items, cigarettes, cigars, can goods and other various

perishable foods, the property of Margaret Malcom, doing

business as Malcom’s Grocery, Highway 11 North, Newton

’ County, Georgia, with a value of more than $200.00, knowing

said property was stolen, said property not having been re-

ceived with intent to restore it to the owner.

FILED OPEN COURT

This 8th day of Oct.,-1981

MILDRED B. Lorp, CLERK

Newton Superior Court

Aleovy Circuit

24a

Contrary to the laws of said State, the good order, peace and

dignity thereof.

Newton Superivr Court

October Term, 1981

W. A. Reed

Prosecutor.

John T. Strauss

District Attorney

SPECIAL PRESENTMENT

We, the Jury, find the Defendant (Not Guilty)

This 23rd day of October, 1981

VicKI ALLEN, Foreperson

Recorded Crim Min Book 8

11-13-81 page 271

MILDRED B. LorpD

Clerk Superior Court

Newton County, GA.

Georgia, Newton County

This is to certify that the within is a true and correct copy of

Jury Verdict James Kenneth Selvidge Recorded Crim Min 8,

Pg. 271.

25a

INDICTMENT

| No. 6481

SUPERIOR COURT

NEWTON COUNTY,

October Term, 1981

THE STATE

VS.

JAMES KENNETH SELVIDGE

Theft by Receiving Stolen Property,.

Felony

—

True Bill

SaM RaMSEY, Forenfan.

W. A. REED, Prosecutor.

JOHN Strauss District Attorney.

SPECIAL PRESENTMENT

WITNESS FOR THE STATE

The Defendant James Kenneth Selvidge waives formal

arraignment, and pleads (Not Guilty) subject to ___ moving.

This 19th day of Oct. 1981.

JAMES K. SELVIDGE, Defendant

CHARLES D. STRICKLAND, Defendant’s Attorney

JOHN T. STRAUSS, District Attorney

26a

APPENDIX J

CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the Constitution of the United

States provides:

“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnes-

ses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Coun-

sel for his defense.”

Section 1 of the Fourteenth Amendment to the Constitution

of the United States provides: .

“All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to my person within its jurisdiction the equal protection of

the laws.”

27a

APPENDIX K

0.C.G.A. § 16-8-7, formerly Ga. Code, 1933 § 26-1806, pro-

vides:

“(a) A person commits the offense of theft by receiving

stolen property when he receives, disposes of, or retains

stolen property which he knows or should know was stolen

unless the property is received, disposed of, or retained

with intent to restore it to the owner. “Receiving” means

acquiring possession or control or lending on the security

of the property.

(b) In any prosecution under this Code section it shall

a necessary to show a conviction of the principal

thief.”

28a

APPENDIX L

942.02 Summoning witness in this state to testify in another

state

(1) Ifa judge of a court of record in any state which by its

laws has made provision for commanding persons within that

state to attend and testify in this state certifies under the seal

of such court that there is a criminal prosecution pending in

such court, or that a grand jury investigation has commenced

or is about to commence, that a person being within this state is

a materia! witness in such prosecution, or grand jury investiga-

tion, and that his presence will be required for a specified

number of days, upon presentation of such certificate to any

judge of a court of record in the county in which such person is,

such judge shall fix a time and place for a hearing, and shall

make an order directing the witness to appear at a time and

place certain for the hearing. The witness shall at all times be

entitled to counsel.

(2) Ifata hearing the judge determines that the witness is

material and necessary, that it will not cause undue hardship to

the witness to be compelled to attend and testify in the

prosecution or a grand jury investigation in the other state,

and that the laws of the state in which the prosecution is

pending, or grand jury investigation has commenced or is

about to commence, will give to him protection from arrest and

the service of civil and criminal process, he shall issue a sum-

mons, with a copy of the certificate.attached, directing the

witness to attend and testify in the court where the prosecu-

tion is pending, or where a grand jury investigation has com-

menced or is about to commence at a time and place specified in

the summons. In any such hearing the certificate shall be prima

facie evidence of all the facts stated therein.

(3) If said certificate recommends that the witness be

taken into immediate custody and delivered to an officer of the

requesting state_to assure his attendance in the requesting

state, such judge , in lieu of notification of the hearing,

direct that such witneSs be forthwith brought before him for

en eS ENS ERR es:

29a

said hearing; and the judge at the hearing being satisfied of the

desirability of such custody and delivery, for which determina-

tion the certificate shall be prima facie proof of such desirabil-

ity may, in lieu of issuing subpoena or summons, order that said

witness be forthwith taken in custody and delivered to an

officer of the requesting state.

(4) If the witness, who is summoned as above provided,

after being paid or tendered by some properly authorized

person the sum of ten cents a mile for each mile by the ordinary

traveled route to and from the court where the prosecution is

pending and five dollars for each day, that he is required to

travel and attend as a witness, fails without good cause to

attend and testify, as directed in the summons, he shall be

punished in the manner provided for the punishment of any

witness who disobeys a summons issued from a court of record

in this state.

30a

APPENDIX M

. . . the dates here as to exactly when these things occurred. Of

course, that’s been waived. All we need to be concerned about

is that it did occur within four years prior to the return of this

indictment, the statute of limitations. Those were returned

October the eighteenth, 1981. All these occurred four years

prior to that indictment. :

The testimony will show that starting with Ms. Malcolm’s

place that an entry was made and a substantial amount of beer,

food, and other items were taken. The testimony will show that

two people actually took these items, two men by the name of

Jay Flowers, brother of the defendant, and a young man by the

name of Harold David Grant, he is here to testify, both of these

men are in prison. Flowers is some place in Florida, in-

accessible to us; this man, Grant, is here. He is a thief. He is

doing time. We make no bones about it. Grant, as the evidence

will show, for one of those offenses, he was only involved

directly in two of them, and the other

* Q State your name, please.

A Harold David Grant.

Mr. Grant, do you know the defendant, Selvidge?

Yes, sir.

How long have you known him?

About a year.

All right. Did you know his brother, Jay Flowers?

Yes, sir.

How long did you know him?

r OO FO PH PP

About the same length, a year.

Q Prior to—well, let’s say from about the middle of last

summer through the end of the year, where was Jay Flowers

living?

ACO? Tle Bet, oC ric ede eS

3la

A He was here in Georgia, I believe.

Q_ Was he living with Mr. Selvidge?

A -At times.

‘Q And did you occasionally get together with Jay Flowers

and Selvidge at time?

A Yes, sir.

Did they get together at your house?

No, sir.

Where would get together with them?

Sometimes up in the parking lot in Covington.

Oo FO YP ©

And this would have been approximately a month and a

half after this last break in at Pop’s place?

A It seems like a little longer, but it might have been.

Q Whatever. You were questioned about Hayes Truck and

Tractor burglary?

A Yes, sit.

Did you have anything to do with that?

No, sir.

Who picked you up?

Officer Reed.

Investigator Reed right there?

> O > O >

Yes, sir.

Q To your knowledge, at that time had anybody else been

arrested?

A No, sir.

Q And did Officer Reed tell you what you were charged

with?

32a

At the beginning he just kept on asking me, you know, |

about a hole in the wall and he asked me, you know, that he

knew what I did, I didn’t know what he was talking about for a

while.

Q But then did you realize what he was talking about?

By Mr. STRICKLAND:

If you will speak into the microphone where the Judge

and jury can hear you. What is your name, please ma’am?

>OP-POPOPrOP,O > OPO

foo

O PF PP

Freeda Pollard.

Also, Ms. J. C. Pollard?

Ms. J. C. Pollard. .

Where do you live, Ms. Pollard?

Second Avenue in Mansfield, Georgia.

Do you known James Selvidge?

He is my grandson. He is a son to me.

And how long has he been living at Mansfield, Georgia?

Two or three years, about three years last time, I guess.

Does he live in a mobile home?

Yes.

Are you a frequent visitor?

Oh, yes.

How often do you go down there to his home.

Quite often. I take him something, groceries or cooked

He works all day and I take him something to eat.

Do you do that on a regular basis?

Pretty regular, two or three times, three.

Oh, they worked pretty good for a while.

Were any of them ever broken, to your knowledge?

A Not that I know of.

Q Not that you know of.

Mr. Strauss: I believe that’s all.

THE Court: Mr. Strickland?

RE-DIRECT EXAMINATION

By Mr. STRICKLAND:

Ms. Pollard, did you clean up the trailer?

Yes.

Mr. Selvidge was not married at the time, was he?

No.

Was he living there by himself?

Yes.

Did you go in and clean his trailer?

I did.

And how often did you do that?

Not to often, maybe every two weeks, every week.

And did you clean throughout his trailer, did you clean

oughout his trailer?

FO POPrO POP, O PO

Oh, yes, I sure did.

Did you see any beer in his trailer?

I never even saw a beer can.

Does he drink beer?

I never saw him drinking any beer.

Did you ever see any box of meat?

No.

Did you ever see any wine?

OP Of FO PO Pe

A No.

@ Did you ever see any excessive amount of groceries?

A Not excessive, no.

Q And what he had, did you take there most of the tir ie?

A I sure did.

Q You did the shopping for he and your house?

| ee ee

Q Doyou know where your other grandson is, Jay Mitchell

Flowers?

A Ido.

Q Where is he?

A Ina drug treatment center in Florida.

Q And has he had a history of drug problems?

A Yes, he does.

Q Was he the same one that lived with James?

A He lived there with him a while.

Q With James?

A Yes. Ws

Q Do you know of any problems that he and James had or

might have had?

He would take his car every chance he got or his truck

and drive it and have somebody chasing him or he would drink

and he was taking drugs and he was irratic, you couldn't trust

him.

Do you know this David Grant?

Yes, he came to my house and I fed him.

You fed him?

Yes.

i a i oe kk ee eee eee Te Anteagh

35a

Did you ever observe him drinking or taking drugs?

He was taking drugs, he admitted to me he took drugs.

When.was this?

e O Ff

While he was working at Beaver Manufacturing Com-

pany. I was lecturing him.

Why is your son down at this drug treatment center?

pe ©

3 He said he was taking everything he could get his hands:

on.

Did the Court send him down there?

Yes.

He was involved in a robbery?

> O F&F

He admitted it, he said he was the only one that was in it.

MR STRICKLAND: That’s all.

RE-CROSS EXAMINATION

By Mr. STRAUSS:

Q Let me see if I understand you correctly. You say that

Jay Flowers told you that he was the only one that was in-

volved?

‘A Hetold me that his brother was not involved, it was only

him.

Q That’s what he told you? : ‘

A That’s what he told me.

(Whereupon, State’s exhibit number seventeen is marked

= identification. ) \

By MR. STRAUSS:

Q Ms. Pollard, I know he was under arrest, Jay Mitchell

Flowers, that is by Investigator Reed with the Sheriffs De-

partment?

36a

ae > sir.

Q You knew he gave a statement to the police?

A I suppose he did.

Q Does his statement fo you, according to your direct

testimony, was that he did it by himself; is that correct?

A Manytimes more than once he told me that. He called his

brother Barney, said, “Barney had nothing to do with it.”

Q Did he mention David Grant?

A Idon’t remember if he mentioned David.

Q Iask you whether or not he said, “Me and David Grant

broke into it, we knocked the air conditioner out and took a lot

of beer, fifteen dollars worth of beer and grabbed anything we

could grab real quick.” Did he ever say that David Grant was

involved? ‘

A I knew he ran around with David, but I don’t remember

him saying that. |

Q Allright. Did he ever te you about his involvement ina

burglary at that time, Hayes Truck and Tractor?

A He told me that he did it.

Q’ He said he did it. All right. Did he ever tell you quote

how did you get the tools away? I took them to grandmother’s

house and I called my brother, he came down there, he knows

they are stolen. He had to know where they came from. Inves-

tigator Reed asked him where they came from and hecomeand -

picked me up. I should have got more than I did, I know ! left

the bolt cutters, I know [ left the door open, I was going to go

back and try to wipe the prints off, but I didn’t. I got the tools, I

got two cardboard boxes and carried everything in two boxes,

I carried one*box at a time out of the building and my grand-

mother’s house was only about fifty yards from the building

and I hid them in the bushes and I got a hold to my brother and

he came down there and picked me up and took me to his house.

Where are they now? At his house, as far as I know. Did he tell

you aout the tools he stole? :

37a

A He told Judge Stephenson he sold them to get drugs,

that’s all he told me about them.

Q That might account for part of it, did he tell you he left

part of the toois at James Selvidge’s house?

A No, he didn’t.

Q Ma’am, I think rather than my going through this, can

you see all right, do you want to see if there is anything there

that he did tell you?

THE Court: While the witness is doing that, we are going to

take a brief recess.

(Whereupon, the jury retires from the courtroom and a brief

recess is held.)

CONTINUING RE-CROSS EXAMINATION

By Mr. STRAUSS:

Q Ms. Pollard, during the recess, you have had an oppor- -

tunity, I believe, to go over this statement and the waiver

attached to it. Now, did he tell you everything that is stated in

here? .

A No, he didn’t.

Q He didn’t tell you all these things?

A No, but when my grandson, Keith, made him move out

of the trailer he said he would get even with him and I think he

has.

Q Inany case, he talked to you and he said Selvidge was not

involved?

A He tertainly did. He had a truck to drive.

Q But—

A He was working for a man and I don’t believe they ever

caught him, he drove that truck or else, he stole his truck, he

might even have taken ours, my husband had a truck—

38a

Mr. Strauss: Your Honor, I move into evidence State’s

exhibit number seventeen, the witness has now had a chance to

inspect.

MR. STRICKLAND: I object to its admission. It is the fashion of

a third party. I don’t believe it would be admissible in any

proceeding except his own trial.

Mr. Strauss: Ordinarily, I would agree. However, on direct

examination the Court well remembers Mr. Strickland’s wit-

ness, while under direct indicated that he gave a statement to

her exonerating the defendant. What this statement is in-

troduced for, is strictly to rebutt that statement and show

prior inconsistencies.

THE Court: That statement, I presume, shows what Mr.

Flowers told someone else?

Mr. Strauss: Told investigator Reed.

THE Court: It doesn’t purport to show what he told her?

Mr. STRAUuSS: This is t show that in fact, it is what he told

Investigator Reed was entirely inconsistent with what he told

Ms. Pollard.

THE CourRT: Objection sustained. It is not admitted.

Mr. Strauss: I would like to ask the Court, if I may, to, for

my own edification the basis of the ruling?

THE Court: I explained it, Mr. Strauss. The direct question

was what Mr. Flowers might have told this witness, not what

he told Mr. Reed.

Mr. Strauss: Your Honor, but—

THE CourT: What he told Mr. Reed doesn’t rebutt what he

told her. He might have told two stories.

Mr. Strauss: I think it is important for the jury to know he

told two stories.

THE Court: That’s not an issue in this case. This is clearly

hearsay evidence.

39a

Mr. Strauss: All right, your Honor.

THE Court: It doesn’t rebutt what he might have told her, it

simply another statement. It is not admissible, !t is out.

Mr. Strauss: I understand the Court’s ruling.

THE CourRT: Go on to something else.

By Mr. STRAUSS:

Q Ms. Pollard, one last area of questioning I would like to

go into, that is, very simply when did you start first cleaning

house for your grandson, Selvidge?

A When his wife left.

Q Were you cleaning the house at the time that Jay Mitch-

ell was staying over there, too?

A Cleaned it more, then.

Q Iamsure you did. Did you find beer over there at that

time?

A I found it there and when he left my house he left a closet

full of empty beer bottles and cans and he left a six pack tied toa

line outside his

At this time we are going to recess until tomorrow morning at

nine thirty.

(Whereupon, the jury is excused.) 2 Q

MR. STRICKLAND: I have a motion outside the presence of the

jury. If it please the Court, I make a motion for a directed

verdict of acquittal. Excuse me, I possible should have made

this at the close of the State’s witness, but I reserved it until I

put up some evidence and the reason for this is that there is no

evidence that I can see to go to the jury to sustain a conviction

against Mr. Selvidge, and the only testimony really was that of

Mr. David Grant, and even if it would be believed by the jury, it

would be the testimony of an accomplice, and, of course, if

that’s the only evidence that is presented, then the trial court

should grant a motion for directed verdict of acquittal and

f 40a

based on the evidence and what the witness has said, there is

really no evidence at all connecting him with this crime, unless

the testimony of David Grant is believed, and if it is believed,

then, as [ stated earlier, he is an accomplice, and for those

reasons I respectfully request the Court to grant a motion fora

directed verdict of acquittal or to direct a verdict of acquittal.

THE Court: Mr. Strauss?

’ Mr. Strauss: Your Honor, I will cite to the Court Powell

versus the State, 123 Georgia Appeals, 795, held in any case

where the only witness is an accomplice, it’s corroborating

circumstances sustains the testimony of the accomplice and of

the alleged crime.

In this case, the testimony of David Grant, who testified

specifically implicating the defendant in the circumstances of

bringing the goods into his home, we have had ample evidence

and testimony with respect to the nature of certain goods found

on his premises. We have got all the circumstances as far as

time and place fitting together with the exception of the de-

fendant’s testimony about the access to the car. All things jive,

there i ent corroborating evidence, there is no question, it

is enough to go to the jury.

THE Court: Let’s take the three different indictments sepa-

rately. Let’s refer first to indictment 6481, concerning the

burglary of Malcolm’s Grocery and the items that were taken

from the burglary. What evidence, Mr. Strauss, connects this

defendant with the items taken except that of Mr. Grant?

Mr. Strauss: Your Honor, the situation here we are looking

at a common scheme, motive. You cannot separate one from

another. We are talking about a continuance stream and pat-

tern of events. Now, the evidence that establishes, that is, the

fact that we found other goods received from other burglaries

at which David Grant tesified as to one, therefore, the other

applies in as well as we have corroboration of his involvement

in the truthfulness of what he said, not only corroborates by the

description of exactly how the goods were taken by the accom-

plice, but also the testimony of his wife. All of the three

AICI LN HEE EY SERRE I NT eT GIN EIST Pe caer

teal

4la

together is a continuance pattern, involvement to show that

one corroborating to the other, so you have to look at the things

as a common scheme and plan, that’s precisely what we have

seen, that Selvidge was the receiver for these other thieves. It

is that simple, one corroborated the other.

THE Court: Well, you have shown that you have present

evidence that the defendant was actually involved in the

burglary of the Breedlove’s business.

Mr. Strauss: No question.

THE Court: Are you suggesting that involvement in that

crime, if the jury believes the evidence presented, would cor- *

roborate the testimony of the accomplice in the Malcolm

. burglary?

Mr. Strauss: That’s precisely what I am stating to the

Court.

THE Court: What is your response to that, Mr. Strickland? :

MR. STRICKLAND: No, sir, [ don’t think it would, your Honor.

Those are three distinct incidents and if Mr. Grant’s testimony,

I believe he stated that these were separate incidents, that

they didn’t even plan it} they thought about it spontaneously,

and they did it, and these are three separate incidents, they

can’t be connected; so I deajjsee how one could corroborate the

other.

Mr. Strauss: The whole basis, if I may state this, that the

- need for corroboration is simply because of the concern of the

courts, legitimately, that one accomplice may have such an

interest in the outcome of the litigation that he couldn’t be

testifying by himself to convict another, that’s why you have to

have two accomplices or you have other evidence to show that

this particular accomplice, who was taking the stand as a

witness, is being truthful, but he is not coming up with some-

thing off the wall. Now, here we have a whole pattern, motive

and scheme. Three distinct offenses, two of which he can speak

to, one of which he can speak to the evidence recovered whichis

already proceeds of that crime and a second incident, we have

42a

goods received completely independent of his testimony which

tends to corroborate and make valid the fact that Mr. Selvidge

is in fact the received. The fact that he, that is, Grant and

Flowers, were involved in both of the first two incidents and

the fact we found goods that came from allegedly one of those

burglaries in his home, and the act that the statements by Ms.

Grant corroborates specifically the second of those, she not

being an accomplice, shows that he is credible to the whole

thing.

THE Court: Let me point out further that, with respect to

Mr. Strickland’s motion, the only indictment I am concerned

about is the one I mentioned, Malcolm’s, because there were

items burglarized from the other two establishments found in

the possession of the defendant. That, alone, will be sufficient

to corroborate, but with respect to the Malcolm’s burglary,

none of those items were found in his possession.

Mr. StTRAuSs: Because they were consumed and I grant you

that.

THE Court: The fact is none were found in his possession. It

seems to me the question presented is whether or not evidence

of other crimes such as has been presented here would be

sufficient to corroborate the testimony of an accomplice with

respect to items taken from the Malcolm burglary. I don’t

know of any authority on that point, but I will give you gentle-

men a chance to research that. We need to find some case law

on that point. The only evidence presented tc corroborate the

testimony of the accomplice with respect to the items taken

from Malcolm’s burglary is the fact there were two other

similar offenses and whether that’s sufficient or not is a ques-

tion I don’t have the answer to. I would like some authority on

that question. I deny the motion with respect to the other two

indictments, and I reserve my decision with respect to this

indictment until I have seen more authority.

Let’s take up the request of charge so you men will know

what to expect tomorrow in your argument. The State has no

request of charge. The Defendant has filed two requests of

_—

PEE NT DEO E RIT OE OK

43a

charge. Number one concerns with accident or misfortune. Mr.

Strickland, I presume your request goes to the fact that Jay

Flowers had access to the premises of the defendant and there-

fore conceivably could have placed items there without the

knowledge of the defendant?

MR. STRICKLAND: That’s true, your Honor.

THE Court: But I don’t think that would be accident or

misfortune. I think that defense is a part for general denial.

You may argue that point if you wish in arguing your case and

the jury will be amply instructed on the burden of proof, the

presumption of innocence and reasonable doubt, but I find this

request of charge to be inproper in the circumstances of the

case and will not be given for that reason.

Turning now to the request of charge number two, I will not

give this request as requested, but you touch on a principle of

law there which I think the jury should be instructed on and

that is the fact that mere possession alone, standing alone of

stolen items does not permit the jury to infer that he received

those stolen items with knowledge they were stolen. Now, in

this case, there is no evidence, so technically speaking, we

aren’t dealing with a situation where there is merely posses-

sion standing alone. We are dealing with the situation where

possession of stolen items definitely is a part of the case and I

am sure the State is relying heavily on that. I think the jury

should be instructed that if they find that he was in fact in

possession of stolen items, that they cannot infer from that

alone that the defendant is guilty, but they may consider that

factor along with other evidence if they find there is no evi-

dence of his guilt in inferring that he did in fact receive these

items with knowledge that they were stolen.

Mr. Strauss: May I point out something here?

THE Court: We have to instruct the jury you can’t go on that

alone, but you can consider that if you find other evidence that

he received these items with knowledge that they were stolen,

will counsel prepare an appropriate charge on that?

44a

Mr. STRAUuss: It does not get into the knowledge or reason to

know it could be other evidence that would give him reason to

believe that the items were stolen.

THE CourT: Well, the law is that the State must prove

beyond a reasonable doubt that the defendant knew or should

have known at the time he received these items that they were

stolen } property. First, they got to find that he was in posses-

sion but that he did receive stolen property and; secondly, that

he knew or should have known at that time that it was stolen

property. J

Mr. STRAUSS: Or retained it after he was aware that it was, I

certainly will try and put something together.

THE Court: It will be helpful to the Court to work an appro-

priate charge covering that. The law is not that lengthy, the

code section is quite simply—it’s just a matter of choosing the

proper language for the State and the defense. Let me ask you

this; is there any issue regarding the value of the property

involved, the indictment all alleging that the values exceeded

two hundred dollars.

MR. STRICKLAND: I think there is some question there, your

Honor, because the only witness that could testify as to what

was actually stolen was Mr. Grant; he couldn’t testify to any-

thing he didn’t know what was stolen. He did refer to these

papers, but when I asked him questions about them he said he

could read what was on the paper, but he had no knowledge of

what they actually took and he would say something like ten

cartons cigarettes well, they had forty-five and if you believed

his testimony, it would be a question about the value and there

is a possibility.

THE CourT: The defense having taken that position, the

Court will have to respect that and will charge that one, that if

they find him guilty, one is they find him guilty, but that the

items in possession were less than two hundred dollars or two

hundred dollars or less and, of course, a verdict of not guilty.

Any questions about that?

45a

Mr. Strauss: I don’t see the evidence as to any question in

this case, but—

THE Court: I think the evidence is shaky enough on that

point that the defense is entitled to take that position.

Mr. Strauss: I see no reason to take the risk.

THE Court: I so rule. There will be three alternatives on

each indictment, so if you do two things, get something pre-

sented on the question with respect to the first indictment

dealing with the Malcolm burglary and work up an appropriate

charge regarding the offense itself.

(Whereupon, Court is adjourned and an overnight recess

was held.)

~ 10-23-81:

THE Court: As you recall from the beginning of the trial, the

defendant is on trial for charges set forth in three indictments;

indictment number 6480 concerning the property taken from

Hayes Truck and Tractor; indictment number 6481, concern-

ing the property taken from Malcolm’s Grocery and indictment

number 6482, concerning the property taken from the Pony

Express Stop and Go, that’s the business of Mr. Breedlove.

For technical reasons, which you are not to concern yourselves

with, I am removing from your consideration the indictment

number 6481 which has to do with the property from Malcolm’s

Grocery. You will consider only the charges alleged in 6480 and

6482 having to do with the property taken from Hayes Truck

and Tractor and Mr. Breedlove’s business. You may proceed

with closing arguments.

Mr. Strauss: The State waives opening, your

in possession of Selvidge? Has anybody said, “Well, Jay Flow-

ers left them we me or the other grandson left his with me?”

No. You see, ‘certainly Mr. Pollard hasn’t given him his, he

would have said so if he did. So two of them together—now, the

interesting thing is well, I can tell from these marks that these

are the ones or I remember this to be mine, but what does Ms.

46a

Breedlove say? She said, “Look, well I know these have got to

be the same ones, not because they are Realistic, not because of

the same type, but there is a curvature, a bend in both anten-

nas, this is broke off and see the chips off the back of this one

here.” They pointed to three things on these two that said

these are mine. Okay, nobody else has done that. And you bet

the defense would have brought in all the other evidence with

respect to these other walkie-talkies to prove that those two

were the same, that is, if they had that evidence available.

There is no question about it. |

Now, Ms. Pollard’s testimony about really not being sure

when she was cleaning and how long it was that Jay told her

about committing these crimes and if he told her James Sel-

vidge was involved. I don’t fault her. That’s a grandparent. I

have to apologize to her for that, I don’t know when she got up

there and said Jay Flowers said that Selvidge was not in-

volved, we had to bring to your attention that that wasn’t true

the best I could without bringing it out and she hadn’t told him

or her hadn’t told her—excuse me, about the involvement in

Hayes, he hadn’t tole her about what Selvidge’s involvement

was, that was apparent. She read through the statement in the

recess, he hasn’t told her any of that stuffthat you have already

heard from testimony showed that was confessed to Dale

Reed. The man is doing prison time, folks don’t confess to go to

prison if they are not basically telling the truth. So she didn’t

know about that. All right. Iam sure it must be very, very hard

for her having one grandson already in prison to think that the

better might have encouraged the one that was in prison, that’s

unless it is impossible. Now, I think with one exception, you

can do that, with the exception, I believe is the defendant, so

we will talk about it. 3

Let me start at the defense end of the testimony first. Now,

there is no question in my mind that Mr. Pollard told what he

knew to be the truth. I don’t doubt for one minute and I don’t

think you do either that this one set of tools here, this one here,

this set of tools which is marked state’s exhibit twelve, is his,

he so identified it, that is possible. Mr. Hayes said he sold this

. 47a

type of tools. Allright. Also there is no reason to doubt that and

as far as for your consideration because it is part of the evi-

dence, but I am not concerned about that, this box of tools you

will look at the list that Mr. Hayes prepared, this is only one of

multiple items here and the items he described here, all the

evidence that was in here, he totaled it up and it was four

hundred and eighty-one dollars worth, if you take that item

out, and the’only other item out, according to my recollection,

we are not talking about the box, because that’s not the issue,

and the bolt cutters, these two are not going to reduce that four

hundred and eighty dollars below two hundred dollars, so I

don’t think there is any problem as far as value if those are his,

they very well may be. It is no problem. Selvidge works with

him, working with the tools, he could have brought some of the

tools home to the storage shed, but, of course, what that does is

prove nothing else, so I won’t talk about it. Some of the old stuff

may have belonged to Mr. Pollard. He got the box from a

gentlemen he signed a note with, there is no question about

that. The question is, what was received by Selvidge here

totaled over two hundred dollars in value and the testimony

indicates very clearly that it was stolen.

All right. With respect to the other items, the one from

Breedlove’s, you got a very, very clear indication, state’s ex-

hibit five an six, testified to by Ms. Breedlove the fact of the

case, I certainly understand that. All right, so that’s not in-

consistent, neither of the Pollard’s testimony is inconsistent

_with what we know.

All right. Now, let’s talk about Selvidge himself. He doesn’t

know anything about-it. The storage shed is out there any

anybody can come and go and all the stuff ended up there,

right? But you saw my first question, the first question I asked

him on cross examination was about the parking meter, he

obviously knew that was in there, right? Ripped out of the

concrete, that’s obviously stolen, he knows it is stolen, but he

didn’t say anything about.it, he said, “You know my little

brother”. We are not accusing James Selvidge of stealing it, we

- are accusing him of aiding’ or abetting or being a receiver of

48a

stolen goods. That’s what he is charged with doing. By his own

admission, with respect to the parking meter, he has to be-a

receiver of stolen goods. If he does it in one case what is he

going to do in the other cases? He claims he has never seen

these tool boxes before. Now, I ask you, particularly you men,

you may not know everything, but you know whether or not

you have tools if you got a storage shed or work room or closet.

You stick your tools in the closet, you go in there and see a new

box of tools there, he has to go in and out, he works as a

plumber by everybody’s testimony, he works as a plumber and

at a mobile home he has got to have a place to store the tools.

You are going to tell me he doesn’t know there is a box of tools

lying around he never saw, he never looked in the draw and

never saw these things, never looked in there and seen all these

crescent wrenches, these are good wrenches, screw drivers,

didn’t use them, didn’t know they were there? Come on, that’s

about as credible as—

_ All right. Now, what about the Bible that’s all wrapped up,

what about this water jug that’s all wrapped up. He didn’t

know anything about that. There is no explanation about all

those things. Now, the key thing here is did he ever try to find

the owners of any of that property? The property that he

admitted he kriew was there, did he try to find the owner of the

property and return it to the owner? No. He continued to keep

that, he received it without intent of restoring it to the owner.

Did he ever get in touch with Mr. Hayes and say, “This might

be some of your stuff’? Grandmother lived fifty yards away

from Mr. hayes. No, of course not.

Now, the other thing you got to realize too, is by his own

admission, the only one in this crowd during the period we are

talking about, Malcolm’s Grocery aside, that’s no longer in

consideration, the only one who had any transportation in this

whole crowd, Flowers, Grant or Selvidge was Selvidge. Only

one. Now look at the list of stuff, you are going to be able to lift

these things and carry them around. I am weak, but you can

look at all this stuff and look at the

49a

CHARGE OF THE COURT

Ladies and gentlemen of the jury, it now becomes my duty as

presiding Judge to instruct you as to the principles of law

applicable to this case, and to explain to you the procedure tobe

followed in reaching your verdict.

Now, the grand jury of this county has returned two indict-

ments against this defendant, and charging him in each indict-

ment with the offense of theft by receiving stolen property.

You will have these with you in the jury room, and you should

refer to them as often as you wish to see the specific charge

against the defendant.

Now, you must make a finding of guilt or innocence with

respect to each indictment. You should keep that in mind as the

charge of the Court progresses.

Now, to these indictments, to each of them, the defendant

has entered his plea of not guilty; and this creates the issue to

be decided by you on each indictment, that is, his guilt or his

innocence.

Now, I charge you that the indictment is not evidence of his

guilt, and his plea of not guilty is not evidence of his innocence.

This is simply the manner in which the issue is presented to you

for your decision.

It is your duty to determine the facts of the case, based upon

the evidence presented to you, and to apply to these facts the

principles of law given to you by the Court, and in that manner,

reach a verdict. which speaks the truth. The object of this and

all other legal investigations is the discovery of the truth. You

are not responsible frr the effect or consequences of your

verdict; but you are responsible that it speak the truth.

The defendant enters upon this trial with the presumption of

innocence in his favor, and this presumption remains with him

‘throughout the trial, until and unless it is overcome by evi-

dence sufficiently strong to satisfy you of his guilt to a reason-

able and moral certainty and beyond a reasonable doubt.

50a

The burden, therefore, is upon the State to prove each

essential element of the offense charged in each indictment

beyond a reasonable doubt. And I charge you that each ele-

ment of the offense charged is essential except that of the date.

With respect to the date, it is sufficient to find that the alleged

offense was committed anytime within four years of the date

this indictment was returned in open court, and I charge you

that each indictment was returned in open court on the eightth

day of October of this year, that is, 1981.

Now, the State is not required to prove the guilt of the

defendant beyond all doubt, or to a mathematical certainty.

Moral and reasonable certainty is all that can-be expected in a

legal investigation.

A reasonable doubt, ladies and gentlemen, is just what the

term implies. It is a doubt based upon reason. It is not a fancy

or a conjecture or a supposition that the defendant might be

innocent, but is just such a doubt as a reasonable man or woman

would have and would act upon, or decline to act upon, in a

matter of importance or of grave concern to himself or herself.

In other words, it is the doubt of a fair-minded, impartial juror

honestly seeking the truth, and it may arise from a considera-

tion of the evidence or from a lack of evidence.

You are the sole and exclusive judges of the facts in the case.

You pass upon the weight, force and credit to be given to the

evidence in the case and you alone determine the credibility of

the witnesses who have testified in the case. In passing upon

the credibility of the witnesses, you are authorized to consider

all the facts and circumstances of the case, the witnesses man-

ner on the stand, their means and opportunities for knowing

the matters about which they testified, their interest or want

of interest in the case, their intelligence or lack of intelligence,

the nature of the matters to which they testified the probabili-

ty or improbability of their testimony, their bias or prejudice,

if any and also their personal credibility as the same may

legitimately appear from the trial. You may also consider the

witnesses relation to the case or the parties in the case. All of

Sconce ny Tang aN red Bee TI cpensaptecpeapsmcae

XR BER Ege ost

5la

these things are proper matters for your consideration, insofar

as they legitimately appear from the trial of the case. It is for

you, the jury, to finally determine what credit is to be given to

the testimony of a witness who has testified in this case.

The defendant may not be compelled to testify, but when he

elects to do so as he has in this case, the law provides that he >

shall be sworn, examined and cross examined as any other

witness. You are instructed that you have no right to disregard

his testimony merely because he is accused of crime; that his

testimony is to be received arid assessed by you, and his credi-

bility tested by you, in the same manner as the testimony of

other witnesses; and you are to weigh his testimony along with

all the other evidence in the case, in deciding his guilt or

innocence.

If there are conflicts in the testimony, it is your duty to

reconcile those conflicts, if you can, so as not to impute perjury

to any witness; but if there are conflicts which you cannot

reconcile, then you should believe that wintess or those witnes-

ses you find to be most believable.

I charge you now as to two types of evidence. Direct evi-

dence is that which immediately points to the question at issue.

Indirect or circumstantial evidence is that which generally

tends to establish the issue by proof of various facts sustaining

by their consistency the hypothesis claimed. .

To warrant a conviction on circumstantial evidence, the

proved facts must not only be consistent with the hypothesis of

guilt, but they must exclude every other reasonable hypoth-

esis save that of the guilt of the accused.

I charge you, however, that whether dependent upon direct

or circumstantial evidence, the true test in a criminal case in

not whether the conclusion at which the evidence points may © *

be false, but is whether or not the evidence is sufficiently

strong to satisfy you of the defendant’s guilt to a reasonable

and moral certainty and beyond a reasonable doubt. If the

evidence is thus strong, it would be your duty to convict. Ifit is

not thus strong, it would be equally your duty to acquit.

52a

Now, the state has presented the testimony of a witness

claimedby the State to be an accomplice in the crime alleged in

each of these indictments —in one of these indictments, the one

dealing with the Breedlove place of business. In ths connection

I charge you that to be an accomplice in the alleged crime, the

witness must have participated in the criminal acts alleged in

the indictment with criminal intent, and be subject to prosecu-

tion for such conduct. I charge you further in this connection

that the testimony of a single witness is generally sufficient to

establish a fact, but the testimony of an accompliance is an

exception to the general rule and that a person accused of crime

cannot be convicted on the testimony of an accomplice unless

such testimony is supported by other evidence connecting the

accused with the alleged crime and tending to show his partici-

pation therein; which other evidence would lead to an inference

of the guilt of the accused independently of the testimony of the

accomplice. Such supporting evidence may be direct or cireum-

stantial evidence, and it need not be sufficient of itself to

warrant a verdict of guilt, but it would be sufficient if it other-

wise implicated the accused, as a party to the alleged crime,

and out believe it to be true, and you believe the accused to be

guilty beyond a reasonable doubt.

Whether or not the witness claimed to be an accomplice is,

infact, an accomplice, whether there has been additional and

confirming evidence presentedthat supports the testimony of

the witness claimed to be an accomplice, and the weight to be

given the testimony of any accomplice is supported by other

evidence is all matters for you to determine under the rules I

have just given you. The Court does not intimate that there is

or that there is not any testimony of an accomplice in this case.

The Court simply give you the rule and if there is any evidence

that has been delivered in the case by an accomplice, then you -

will apply this rule that the Court has given you in charge as to

that testimony.

I charge you that Code Section 26-801 of the State of Georgia

as applied to this case, provides that every person concerned in

the commission of a crime is a party thereto and may be

53a

charged with and convicted of commission of the crime. I

furter charge you that a person is concerned in the commission

ofa crime only if he directly commits the crime, or intentional-

ly aides or abets in the commission of the crime, or intentional-

ly advises, encourages, hires, counsel or procures another to

commit the crime.

I charge you that, for the purposes of this case, a crime may

be defined as a violation of a statute of this state in which there

shall be a union or joint operation of act and intention.

An accused person will not e presumed to have acted with

criminal intention; but the jury may find such intention upon

consideration of the words, conduct, demeanor, motive and all

other circumstances connected with the act for whch the ac-

cused is prosecuted.

Now on each of these indictments the state contends that the

defendant is guilty of the offense of theft by receiving stolen

property; and in that connection I charge you that Code Sec-

tion 26-1806A of the Code of Georgia, as applied to this case,

provides that a person commits theft by receiving stolen prop-

erty when he receives, disposes of or retains stolen property

which he knows or should know was stolen unless the property

is received, disposed of, or retained with intent to restore it to

the owner. Receiving, as here used, means acquiring, posses-

sion or control of the property in question.

I further charge you that an essential element to the crime of

theft by receiving stolen property which you must find in order

to convict is that the defendant knew or should have known

that the goods were stolen when the defendat received the

property, if you find that he did, in fact, receive stolen prop-

erty.

I charge you further that mere proof of possession of recent-

ly stolen property standing alone will not authorize an in-

ference that the possessor received it with knowledge that the

property was stolen, but if you find there is other evidence

tending to show that the defendant received stolen property

54a

with knowledge that it was stolen, you may consider that

evidence, together with the evidence of his possession of such

property in deciding his guilt or innocence.

Now, you will note in each indictment that the accused is

charged with receiving stolen property of value of two hundred

dollars, that is, in excess of two hundred dollars. Now, I charge

you that if you find beyond a reasonable doubt that the defend-

ant did, at any time within four years next preceding the date

this indictment was filed in this court, which was on the eighth

day of October, 1981, commit the offense of theft by receiving

stolen property as alleged in the indictment, then you would be

authorized and it would be your duty to convict the defendant

of this offense, and in that even the form of your verdict will be,

“We, the jury, find the defendant guilty.”

Now, if you find the defendan guilty as charged in each

indictment except that you find the property received by him

had a value of two hundred dollars or less, then the form of your

verdict would be, “We, the jury, find the defendant guilty of

theft by receiving stolen property having 4 value of two hun-

dred dollars or less.”

Now, if you do not find beyond a reasonable doubt that the

defendant committed the offense of theft by receiving stolen

property as alleged, in the indictment, you should gve him the

benefit of that doubt and acquit him, and in that event the form

of your verdict would be, “We, the jury, find the defendant not

guilty.”

Now, the defendant in this case contends with respect to

indictment 6482, dealing with the property allegedly taken

from the Breedlove’s business, that at the time that alleged

offense occurred, he was somewhere else, that he was visiting

his girlfriend who was sick in the hospital. This is known as the

defense of alibi. In that connection I charge you that the burden

is upon the State to prove beyond a reasonable doubt as I have

instructed you earlier, that the defendant was present at the

time of the alleged offense and did, in fact, commit the offense

as alleged in this indictment. Any evidence in the nature of alibi

55a

should be considered by the jury in connection with all the

evidence in this case and if in doing so, the jury should enter-

tain a reasonable doubt as to the guilt of the defendant, they

should acquit him.

Now, I remind you again that you are dealing with two

indictments and you must find his gult or innocence as charged i

each indictment.

To summarize briefly, there are three possible verdicts you

may reach on each of these indictments. If you find he is guilty

as charged, the form of your verdict would be, “We, the jury,

find the defendant guilty.” If you find him guilty as charged

except you find that the property received by him had a value

of two hundred dollars or less, the form of your verdict would °

be, “We, the jury, find the defendant guilty of theft by receiv-

ing stolen property having a value of two hundred dollars or

less.” If you find the defendant not guilty, the form of your

verdict would be, “We, the juyr, find the defendant not guilty.”

Now, on the back of each of these indictments is a form which

you may use in entering your verdict. It presenting reads,

“We, the jury, find the defendant not guilty—guilty.” Thre is a

space there to insert the date and also insert the signature of

your foreperson. Now, you should take a pen or pencil and

cross out the words and/or add the words necessary to make

this verdict form express your findings with respect to the

charge in each indictment. It should be dated and signed by one

of your members as foreperson.

By no rulings which the Court has made during the progress

of this trial has the Court intimated or expressed any opnion

upon the facts of this case, upon the weight of the evidence, or

upon the guilt or innocence of the defendant.

By no portion of this charge has the Court intimated or

expressed any opinion upon any of these matters, each and all

of which belong exclusively to you for your judgment and

determination.

56a

The Court states the law. You find the facts. You apply the

one to the other and in that way reach a verdict. which speaks

the truth.

You are the sole judges of the facts of the case. You are the

- sole judges of the credibility of the witnesses. You are the sole

judges of the weight of the evidence. You are the sole judges of

the guilt or innocence of the accused and that is the only issue

you are to deliberate in this case; that is, his guilt or innocence

with respect to each of these indictments.

Now, whatever your verdict is, it must be agreed to by all

twelve of you and entered in accordance with the previous.

directons of the Court. I will ask you at this time to please

retire to the jury room for just a few minutes. I will bring you

out again and give you further instructions.

(Whereupon, the jury retires to

SS eee

57a

IN THE SUPERIOR COURT OF NEWTON COUNTY

STATE OF GEORGIA

Theft by Receiving—Felony

THE STATE OF GEORGIA

Vs.

JAMES SELVIDGE

—

The above-entitled matter came on for hearing before |

Honorable Greeley Ellis, and a jury commencing on Octo-

ber 22, 1981.

APPEARANCES OF COUNSEL

For the State: John Strauss, D.A.

For the Defendant: Charles Strickland, Esq.

INDEX

Page

MARGARET MALCOLM

Direct — Mr. Strauss 13

Cross — Mr. Strickland 22

Redirect — Mr. Strauss 24

BERNIE BREEDLOVE

Direct — Mr. Strauss 24

| — Mr. Strickland 33

Cont. Cross — Mr. Strickland 37

DAVIS POWELL GRANT

Direct — Mr. Strauss 38

Cross — Mr. Strickland 74

Redirect — Mr. Strauss 103

Recross — Mr. STrickland 106

LEE HAISC

Direct — Mr

Cross — Mr.

Cont. Cross — Mr

W. A. REED

, Direct — Mr.

Cross — Mr.

Redirect — Mr.

MRS. J. C. POLLARD

Direct — Mr

Cross — Mr.

Redirect — — Mr.

Recross — Mr.

Cont. Cross — Mr.

JAMES POLLARD

Direct — Mr

Cross — Mr.

Redirect — Mr

JAMES KENNETH SELVIDGE

Direct — Mr

Cross — Mr

REBUTTABLE

BELLA GRANT

Direct — Mr

JAMES KENNETH SELVIDGE

Direct — Mr.

. Strauss

Strickland

. Strickland

Strauss

Strickland

Strauss

. Strickland

Strauss

Strickland

Strauss

. Strickland

Strauss

. Strickland

Strickland

Strauss

Strickland

108

125

127

129

141

147

149

156

159

162

164

169

176

180

182

191

197

204

OPENING STATEMENT:

EES ie a ae 5

Es ae a 10

CLOSING ARGUMENTS:

eas, 217

Mr. Strauss ....... Dah Leics GsIRS 6 x won ao ba 231

ek | Pe) 5 260

60a

APPENDIX N

IN THE SUPERIOR COURT OF NEWTON COUNTY

STATE OF GEORGIA

INDICTMENTS 6480 & 6482

STATE OF GEORGIA, —

Plaintiff,

VS.

JAMES KENNETH SELVIDGE, on

Defendant.

FILED IN OFFICE

This 17th day of November 1981

Mildred B. Lord, CLERK

Newton Superior Court

MOTION FOR NEW TRIAL AND BOND

COMES NOW, JAMES KENNETH SELVIDGE, Defend-

ant, who shows the Court that he was indicted by the Grand

Jury of Newton County on Indictment No. 6480, theft by

receiving stolen property, felony, on October 8, 1981, and was

indicated on indictment number 5482, theft by receiving stolen

property, felony, on October 8, 1981, -and was tried on each of

these charges on October 22, and October 23, 1981 and found

guilty on each of said counts. Defendant shows that sentence

‘was imposed and judgment rendered on November 3, 1981.

The Defendant, JAMES KENNETH SELVIDGE, being

dissatisfied with the verdict and judgment in said case, comes

during said term of Court, before the adjournment thereof,

and within 30 days from said trial, and moves the Court for a

new trial, upon the following grounds, to-wit:

lst because the verdict is contrary to evidence and without

evidence to support it.

6la

2nd because the verdict is decidedly and strongly against the

weight of the evidence.

3rd because the verdict is contrary to law and the principals

of justice and equity.

: Whereupon JAMES KENNETH SELVIDGE prays that

these, his general grounds for a new trial, be inquired of bythe

Court, and that a new trial be granted, and that Defendant

remain on bond pending determination.

G. ALAN BLACKBURN

ATTORNEY FOR MOVANT

JUDGE GREFLEY ELLIS,

NEWTON COUNTY SUPERIOR COURT

hag,

62a

IN THE SUPERIOR COURT OF NEWTON COUNTY

STATE OF GEORGIA

INDICTMENTS 6480 & 6482

STATE OF GEORGIA,

Plaintiff,

V. .

JAMES KENNETH SELVIDGE,

Defendant.

FILED IN OFFICE

This 29th day of January 1982

Mildred B. Lard, CLERK

Newton Superior Court

DEFENDANT’S AMENDED MOTION FOR NEW TRIAL

AND FOR JUDGMENT NOTWITHSTANDING VERDICT

COMES NOW, JAMES KENNETH SELVIDGE, Defend-

ant who files this his Amended Motion and shows the Court as

follows:

(a) Defendant was indicted by the Grand Jury of Newton

County, Georgia on October 8, 1981 on Indictment #6480,

theft by receiving stolen property, felony, said property being

the property of Lee Hayes. Defendant was tried on October 22

and 23, 1981, on Indictments #6480, #6481 and #6482 jointly.

Defendant was found guilty on Indictment #6480 on October

23, 1981, and was sentenced to ten (10) years, with the first

_ eight (8) years to be served in confinement and the last two (2)

years to be served on probation, said Judgment being filed

with the Clerk of the Court on November 6, 1981;

(b) Defendant shows that he was indicted by the Grand

Jury of Newton County, Georgia on October 8, 1981 on Indict-

ment #6481, theft by receiving stolen property, felony, said

63a

property being the property of Margaret Malcolm. On October

22 and 23, 1981, Defendant was tried on Indictments #6480,

6481 and #6482 jointly. A directed verdict of not guilty was

rendered on October 23, 1981 and was recorded on November

13, 1981 in the Criminal Minute Boopk 8 at page 271, by the

Clerk of the Superior Court of Newton County, Georgia;

Jury of Newton County, Georgia on October 8, 1981 on Indict-

ment #6482, theft by receiving stolen property, felony, said

property being the property of Pop Breedlove. Defendant was

tried on October 22 and 23, 1981, on Indictments #6480, #6481

and #6482 jointly. Defendant was found guilty on Indictment

#6482 on October 23, 1981, and was sentenced to ten (10) years

probation to run consecutively with the sentence imposed

under Indictment #6480, and was fined the sum of One Thou-

sand ($1,000.00) Dollars, payable at the rate of Ten ($10.00)

Dollars per week beginning thirty (30) days after Defendant is

released from confinement, said Judgment being signed

November 3, 1981, and filed with the Clerk of the Court of

November 6, 1981.

The Defendant being dissatisfied with the verdict and judg-

ment in said case retained new counsel on approximately

November 1, 1981, who filed a pleading entitled “Motion for

New Trial and Bond” in this Cour on November 17, 1981, based

upon the following grounds to wit:

lst because the verdict is contrary to evidence and without

evidence to support it.

2nd because the verdict is decidedly and strongly against the

weight of the evidence.

3rd because the verdict is contrary to law and the principals

of justice and equity.

64a

Grounds Related Solely to Indictment. #5480

(a) Defendant shows that the conviction on Indictment

#6480 was without sufficient evidence to support it and that

the Motion for Directed Verdict make by Defendant’s counsel

at the trial and denied by the Court (see T 205), should have

~ been granted and Defendant hereby requests that the Court

grant judgment notwithstanding the verdict on Indictment

_ #6480. Defendant files the hereinafter listed enumerations

subject to the Court’s ruling on this his Motion for Judgment -

Notwithstanding the Verdict.

sion of the allegedly.stolen merchandise under Indictment

#6480 in that others had equal access to the trailer in which

said goods were found.

(d) The State has failed | to prove that if Defendant pos-

sessed the allegedly stolen property under Indictment #5480,

he did so with knowledge that it had been stolen by another.

(e) The testimony received from David Grnt and Bella

Grant in connection with Indictment #6482 may not be con-

sidered in connection with Indictment #6480 inasmuch as the

crimes are not sufficently similar crimes t allow the jury to

infer motive, scheme or intent in one by belief of the Defend-

ant’s guilt in the other.

(f) The improper examination of Mrs. Pollard whereby, in

the guise of questions, the State read from an alleged state-

ment from the alleged burglar, which statements incriminated

the Defendant, violated the confrontation caluse of the Sixth

Amendment of the Constitution of the United States.

(h) The Court’s failure to instruct the jury to disregard the

testimony and evidence heard in connection with Indictment

#6481, on which a directed verdict was granted, denied De-

fendant a fair trail as said testimony and evidence was left

befor the jury for consideration.

“oe

65a

(i) The introduction into evidence of property not alleged

to be stolen and allowing same to go out with the jury with no

instructions concerning same, denied Defendant a fair trial and

allowed the jury to consider improper evidence.

(j) Defendant’s conviction is contrary to law in that posses-

_ sion alone is not sufficient to support a conviction of theft by

receiving, and circumstantial evidence is not sufficient.

Defendant requests that the Court grant his Motion

forJudgment Notwithstanding the Verdict based upon in-

sufficient evidence as to Indictment #6480 and refusing that,

that the Court grant Defendant a new trial as to Indictment

#6480 based upon the above-listed grounds, which actions are

contrary to law and principles of justice and equity.

Grounds Based Upon Charges Related to Indictment #6480

(a) The court failed to charge the jury concerning the equal

access rule as it relates to possegsion of stolen prperty which

failure was error in view of the evidence at trial and Defendnt

was therby denied a fair trial in violation of the principles of

ustice and equity.

* (b) The charge ofthe Court was incomplete and misleading

as it relates to the possession of stolen goods in that the Court

states that the jury may consider other evidence to show guilty

knowledge while not instructing the jury that they may not

consider the evidence presented in connection with Indictment

#6481 on which the Court had directed a verdict.

As a result of the errors in the charge of the Court listed

above, the Defendant was denied a fair trial in violation of the

principles of ustice and equity and under the laws of the Stae of

Georgia.

above necessarily prejudiced the ury against the Defendant as

to Indictment #6482 and denied him a fiar trial as the principles

of equity and justice require.

66a

WHEREFORE, Defendant prays as follows:

(a) That the Court rule upn Defendant’s motion for Judg-

) ment Notwithstandng the Verdict outlined above;

(b) That the Court grant Defendant a new trial as is

_ py es by equity, justice and the laws of the State

of Georgia in the vent the Court rules against De-

fendant as to his Motion fo Judgment Notwithstand-

ing the Verdict.

Respectfully submitted,

By: G. Alan Blackburn

Attorney for Defendant

JAMES KENNETH SELVIDGE

G. ALAN BLACKBURN

4205 Roswell Road, N.E.

Atlanta, Georgia 30342

(404) 256-3445

67a

APPENDIX O

IN THE COURT OF APPEALS

STATE OF GEORGIA

APPEAL NO. 64723.

JAMES KENNETH SELVIDGE,

Appellant

VS.

STATE OF GEORGIA,

Appellee

ENUMERATION OF ERRORS

COMES NOW JAMES KENNETH SELVIDGE, Appel-

lant in the above captioned appeal, and pursuant to the Appel-

late Practice Act of 1965, as amended, Ga. Code Ann., § 6-810,

and the rules of this Honorable Court, enumerates the follow-

ing as errors committed in the trial of the above case in the

Superior Court of Newton County, Alcovy Judicial Circuit,

State of Georgia, in connection with Appellant’s prosecution on

three felony indictments, each charging theft by receiving

stolen property.

The first alleged incident occurred on approximately June

12, 1980 and involved property belonging to Malcolm’s Groce-

ry, (Indictment #6481, hereinafter referred to as “MAL-

COLM”). A directed verdict of acquittal was rendered on

MALCOLM at the close of the State’s case.

The next alleged incident occurred on approximately De-

cember 1, 1980, and involved the PONY EXPRESS STOP

AND GO, also known. as POP BREEDLOVE’S place (Indict-

ment #6482, hereinafter referred to as “BREEDLOVE”).

Defendant was found guilty and judgment was entered against

him.

68a

The next alleged incident involved HAYES TRUCK AND

TRACTOR, belonging to LEE HAYES, (Indictment #6480,

hereinafter referred to as “HAYES”). Defendant was found

guilty and judgment was entered against him.

All three indictments were tried jointly beginning October

22, 1981.

The court erred in failing to grant Defendant's Motion For a

Directed Verdict, (T-120), and subsequent motion For Judg-

ment Notwithstanding The Verdict, and Motion For New

Trial, (See Order Signed and filed March 25, 1982) in HAYES.

Where the STATE’s case was based upon circumstantial evi-

dence which was insufficient to support a conviction, and the

verict was contrary to law and the principles of justife and

equity in the following particulars:

(a) The STATE failed to prove that the Defendant has

possession of the allegedly stolen property where the undis-

puted evidence clearly showed that others had equal access and

opportunity to commit the crime. (See 2(b) citations).

(b) The STATE presented only circumstantialk evidence

of Defendant’s guilt, and failed to exclude every reasonable

hypothesis save that of the guilt of the Defendant, namely that

the crime, if committed, could have been committed without

the knowledge of the Defendant by Jay Flowers who resided

with Defendant. (T.38, lunes 13-18; T.151, lines 7-19; T:185,

line 18 through 186, line 24).

(f). The STATE knowingly and intentionally. introduced

into evidence and allowed same to go out with the jury, proper-

ty which was not alleged to have been stolen and belonged to

Mr. 42. C. Pollard and was turned over to him by the STATE

subsequent to trial (See Motion For New Trial transcript,

hereinafter MF NTT, 21-22, 28-35). This illegal evidence con-

fused the jury as to the amount of property alleged to have

been stolen and its value and operated.to prejudice them

against the Defendant.

69a

(g) The testimony received from David Grant and Bella

Grant in connection with BREEDLOVE could not lawfully be

considered by the j jury in support of the HAYES indictment

inasmuch as the crimes are not similar, the parties are differ-

ent and they are separate, unrelated incidences which oc-

curred at different times. (T. 38-406, T.197-203). The court

erred in directing the jury that it could consider this evidence.

. (T. 270, lines 12-24).

(h) The STATE failed to provide any evidence having

probative value which would support anything other than the

fact that the Defendant had possession of the goods alleged to

have been stolen and possession alone is not sufficient to sup-

port a conviction of theft by receiving.

(i) The STATE violated the Defendant’s Sixth Amend-

ment right of confrontation of witnesses by reading to the jury

the alleged confessin of an unindicted, non-present, non-

testifying alleged accomplice tc the crime under the guise of

impeaching the Defendant’s grandmother. (T.161, line 12

ghrough T.167, line 8).

The court erred in failing to grant Defendant’s motions out-

lined above in both BREEDLOVE and HAYES, and Defend-

ant was denied his right to a fair trial and to due process under

the Fifth amendment for the following reasons:

(a) The court, after directing a verdict in MALCOLM,

failed to instruct the jury to disregard any evidence they had

seen or testimony they lad heard in connection with MAL-

COLM and indeed instructed the jury that they could consider

same. (T. 215, line 17, T. 270, lines 12 through 24).

(b) The STATE with full knowledge of the evidence it had

on each of the charges improperly joined dissimilar indict-

ments for trial while the Defendant, being without knowledge

of thé crimes, was without sufficient information and knowl-

edge to make a knowing and meaningful decision whether or

not to move for severance.

70a

property not alleged to have been stolen (parking meter and

bible), stating that these things prove the Defendant pos-

sessed stolen goods. (T.240, lines 12 through 25, T.241, lines 22

through 24).

(d) The District Attornery improperiy argued that this

non-evidentiary material proved that the Defendant retained

the material without intent to restore it to the owner. | (T/242,

lines 8 through 9). E

(e) TheSTATE in closing argument continued to argue the

MALCOLM case upon which a verdict had been tree

(T.248, lines 16 through T.249,:line 4).

(g) The STATE improperly sought to inflame the jury by

arguing that the Defendant had been helping Flowers with his

drug habit and helping him feed it. (T.258, lines 7-12).

(h) The STATE further improperly referred in closing

argument to the alleged statement of the unindicted, non-

testifying, non-present alleged HAYES accomplice. (T.239,

lines 1 through 18).

(k) Defendart was denied a fair trial and due process of law

by the cumulative conduct of the officers of the court whose

duty it was to insure that the Defendant recieved a fair trial.

Respectfully submitted,

G. Alan Blackburn

G. ALAN BLACKBURN

Attorney for Appellant,

James Kenneth Selvidge

Tla

APPENDIX P

IN THE COURT OF APPEALS

STATE OF GEORGIA

APPEAL NO. 64723

JAMES KENNETH SELVIDGE,

Appellant,

VS.

STATE OF GEORGIA,

Appellee.

APPELLANT’S MOTION FOR REHEARING

COMES NOW, JAMES KENNETH SELVIDGE, Appe-

lant in the above-captioned Appeal, and within the time pro-

vided by law and pursuant to the provisions of Rule 48 of this

Court, files this his Motion for Rehearing of the decision of this

Court dated March 14, 1983, affirming the Judgment of the

Superior Court of Newton County, denying Defendant’s Mo-

tion for Judgment Notwithstanding the Verdict and Motion for

New Trial following his conviction for theft by receiving under

Indictments No. 6480 and 6482, on each of the following

‘grounds:

(1) The majority opinion is based upon patent misstate-

ments of fact contained in the opinion, including the statement

that Mr. flowers, whose “confession” was read to the jury

testified live at the trial and the confessin was used to impeach

him which he did not and which it was not; and

(2) The majority opinion has overlooked material and _un-

disputed facts in the record; and

(3) The majority opinion has overlooked and failed to apply

decisions which are controlling as authority and which would

require a different, Judgment from that rendered; and

72a

(4) The majority opinion has erroneously construed and

misapplied controlling authority.

ARGUMENT AND CITATION OF AUTHORITY

Rule 48(f) of this Court sets forth the basis used by the Court

in granting a Motion for Rehearing. Measured by those stand-

ards, Appellant respectfully submits that this Motion should

be granted on each of the grounds set forth above.

I. SUMMARY OF CASE

The Appellant was tried on three (3) separate Indictments,

each charging him with theft by receiving stolen property with

a value of more than Two Hundred ($200.00) Dollars.

The first Indictment charged the Appellant with receiving

stolen property from a Hardware Store known as Hayes Truck

and Tractor, the second with receiving property stolen from

Malcolm’s Grocery, and the third with receiving property

stolen from a Convenience Store known as Pop Breedlove’s.

The Court granted Appellant’s Motion for Directed Verdict

of Acquittal on the Malcolm Indictment and the Jury found him

guilty on the Hayes and Malcolm Indictmerts.

This Appeal is from the denial of Appellant’s Motions for

Judgment Notwithstanding the Verdict and for New Trial, not

merely from Appellant’s Motion for New Trial as indicated in

the majority opinion. (Majority Opinion Page 1, Paragraph 1).

73a

- ILCONFRONTATION ARGUMENT

Enumeration of Error 2(i), shows that the State violated the

Sixth Amendment Right of Confrontation of Witnesses by

reading to the jury portions of an alleged confession by an

alleged accomplice (Flowers) which accomplice was unin-

dicted, was not present at the trial, and did not testify, and was

not available for cross-examination, and there had been no

prior opportunity for cross-examination by the Defendant of

said person, in violation of Bruton v. United States, 391 U.S.

123, 88 Sup. Ct. 1620, 20 L. E. 2d 476 (1968).

The majority opinion erroneously states at 3(c) “There was

no error in allowing impeaching testimony from a statement

made by the witness Flowers which was inconsistent with his

in-court testimony.” FLOWERS NEVER TESTIFIED! ! YY

(See Index of transcript of trial).

Appellant’s grandmother was on direct examination and she

was asked by defense counsel: J

“Question—Why is your son down at this drug treatment

center?

Answer—He said he was taking everything he could get

his hands on.

Question—Did the Court send him down theré?

Answer—Yes.

Question—Was he involved in a robbery?

Answer—He admitted it. He said he was the only one that

was in it.” (T 161 Line 19 through T 162 Line 2).

Mr. Flowers was never indicted, tried, or sentenced, for any

crime related to a burgiary at Hayes Truck and Tractor, which

fact is undisputed. The District Attorney in cross-examination

74a

of Appellant’s grandmother then proceed the guise of cross-

examination of the witness to hold in his band and read there-

from portions of an aileged “confession” by Mr. Flowers con-

cerning only the burglary at Hayes Truck and Tractor. After

reading from the confession the State attempted to introduc

same into evidence and stated its reasons therefore as flow

“What this statement is introduced for, is strictly to rebutt

that statement and show prior inconsistencies.” (T 166 Lines 1

through 5). The District Attorney could not possibly have

assumed the witness was referring to the Hayes robbery when

she said he had been sent to the drug center by the State and he

had been involved in a robbery and he was the only one in-

volved, in as much as he had not been indicted or tried for the

crime to which he had allegedly confessed.

The cross-examination by the State went as follows:

“BY MR. STRAUSS:

Q—Let me see if I understand you correctly. You say that

a Jay Flowers told you that he was the only one that was in-

volved?

A—He told me that his brother was not involved, it was only

him.

Q—That’s what he told you?

A-—That’s what he told me.

(Whereupon, State’s exhibit number seventeen is marked

for indentification. ) :

BY MR. STRUASS:

Q—Ms. Pollard, I know he was under arrest, Jay Mitchell

Flowers, that is by Investigator Reed with the Sheriff's De-

partment?

A—Yes, sir.

Q—You knew he gave a statement to the police?

Pay

A—TI suppose he did.

75a

Q—Does his statement’ to you, according ‘to your direct

testimony, was that he did if by himself; is that correct?

A—Many times more than once he told me that. He called his

brother Barney, said, “Barney had nothing to do with it.”

Q—-Did he mention David Grant?

A—lI don’t remember if he mentioned David.

I ask you whether or not he said, “Me and David Grant

broke into it, we knocked the air conditioner out and took a lot

of beer, fifteen dollars worth of beer and grabbed anything we

could grab real quick.” Did he ever say that David Grant was

involved?

A—I knew he ran around with David, but I don’t remember

him saying that.

Q—All right. Did he ever tell you about his involvement in a

burglary at that time, Hayes Truck and Tractors?

A—He told me that he did it. .

Q—He said he did it. All right. Did he ever tell you quote

how did you get the tools away? I took them to grandmother’s

house and I called my brother, he came down there, he knows

they are stolen. He had to know where they came from. Inves-

tigator Reed asked him here they came from and he.come and

picked me up. should have got more than I did, I know I left

the bolt cutters, I know I left the door open, I was going to go

back and try to wipe the prints off, but I didn’t. I got the tools, I

got two cardboard Doxes and carried everything in two boxes,

I carried on box at a time out of the building and my grand-

mother’s house was only about fifty years from the building

and I hid them in the bushes and I got a hold to my brother and

he come down there and picked me up and took me to his house.

Wheregre they now? At his house, as far as Mehow. Did he tell

you bout the tools he stole?

A—He told Judge Stephenson he sold them to get drugs,

that’s all he told me about them.

76a

Q—That might account for part of it, did he tell you he left

part of the tools at James Seltidge’s house?

A—No, he didn’t.

Q—Ma’am, I think rather than my going through this, can

you see all right, do you want to see if there is anything there

that he did tell you?

THE COURT: While the witness is s doing that, we are going

to take a brief recess.

(Whereupon, the jury retires from the courtroom and a brief

recesgpis held.)

CONTINUING RE-CROSS EXAMINATION

BY MR. STRAUSS:

Q—Ms. Pollard, during the recess, you have had an oppor-

tunity, I believe, to go over this statement and the waiver

attached to it. Now, did he tell you everything that is stated in

' - here?

A—-No, he didn’t.” (T 162 Lime 5 through T 165 Line 4).

Appeliant has argued this point thoroughly in his original

Brief at Page 26 and again in Appellant’s Second Supplemental

Brief and will not repeat his argument herein. The State con-

tends that this technique is an-appropriate method of impeach-

ing the witness and rebutting her statements and that in any

event Appellant has waived his right to raise this issue by not

objecting at the time of trial. See Appellant’s Second Sup-

plemental Brief in this respect.

The Court’s affirmation of the State’s conduct in this matter

' was based upon the erroneous conclusion of fact that Mr.

Flowers was available as a witness and in fact testified which

he did not. If the State’s argument is correct then there is no

meaning to Bruton vs. United States, supra, in as muchas any

time there is a confession all the State has to do is paraphrase

it’s contents in the form of questions to a witness and the Jury

will clearly have the-message that a confession had been made

77a

by someone involved in the case. The fact that the Court

refused to allow the actual introduction of the confession is a

further indication of the impropriety of the impeachment tech-

nique. It makes little difference whether the Jury reads the

confession personally or observes the District Attorney read-

ing it to a witness, the same improper prejudicial illegal in-

formation is injected into the trial in either event.

V. EQUAL ACCESS RULE

The majority concluded and the record confirms that Appel-

lant and Flowers both resided in the trailer titled in Appellant.

(Majority Opinion, Page 1, Paragraph 2, Page 4, Paragraph 1).

' Appellant testified and the law presumes that Flowers a

resident, had access to the property on which he resided.

(Majority Opinion, Page 2, Paragraph 3). It is well established

that the owner, lessee, or resident of real property is rebuttab-

ly presumably to be in possession of personal property located

on the real property which is in control of any such party.

Mason v. State, 146 Ga. App. 675, 247 S.E. 2d 121; Bass v.

State, 140 Ga. App. 788, 232 S.E. 2d 98; Mitchell v. State, 150

Ga. App. 44, 256 S.E. 2d 652, and caes cited thereunder.

The majority opinion indicates that no inference of own-

’ ership of any stolen goods found on the real property would.

apply against Flowers because there was no eivdence that

Flowers had an ownership interest in the real property. There-

fore, the majority opinion concludes the Equal Access Rule has

no applicatioy because Flowers was merely a resident. (Major-

ity Opinion, Page 4, Paragraph 1, Pages 4-5, Paragraph 1). The

evidence is undisputed and indeed the Court has concluded

that Flowers resided at the trailer titled in Appellant. The

Equal Access Rule clearly applies where two persons reside at

« the same location, and the property is titled in one of the

—_

ess

78a

parties, a rebuttable presumption of possession may lie against

either resident. Morris v. State, 161 Ga. App. 141, 288 S.E. 2d

102.

The majority opinion also incorrectly concludes that “The

sole proprietor of the premises (Selvidge) is charged with

knowledge of and possession of the stolen property which

equally authorizes a finding by the Jury of receipt of stolen

property” (Majority Opinion, Page 4-5, Paragraph 1). The

preceding is an incorrect statement of the law, as no such

charge exists. A rebuttable presumption of possession of per-

sonal property located on real property under the control of an

owner, lessee, or resident exists under Georgia Law. Mason v.

State, 146 Ga. App. 675, 247 S.E. 2d 121. In the instant case we

have two residents occupying the same dwelling, one of whom

has title. A rebuttable presumption of possession would rise

against either such party. The majority opinion infers that

equal access has no relevance in this case because “sole prop-

rietorship” has been shown. (Majority Opinion Page 4-5, Para-

graph 1). “Sole Proprietorship” is defined by Black’s Law

Dictionery as “A form of business in which one person owns all

the assets of the business in contrast to a partnership and

corporation. The sofe proprietor is solely liable for all the debts

of the business.” “Sole Proprietorship” is a business term

which has nothing to do with this case.

owner, lessee, or resident, of the subject real property in order

to invoke the Equal Access Rule. The law merely requires that

it be shown that there\ were others wt0 had been on the

premises frequently so as.to h d equal access with De-

fendant to the stolen property. Allen v. State, 158 Ga. App.

691, 282 S.E. 2d 126. In the instant case, of course, the person

having access was in fact a resident and more than just a mere

visitor. .

79a

VI. HAYES CHARGE

The court unde ed the fact when it concluded that “as to

the oe of Hayes Truck and Tractor, Grant was unable to

t on that crime.” The fact is Grant knew abso-

lutely authing about that crime.

The only evidence in the Hayes case was certain material

which was found in the shed of the residence shared by Appel-

lant and Flowers.

At no time was the evidence found identified as the material

from the Hayes burglary. The physical evidence in connection

with the Hayes burglary consisted of State’s exhibits nine

through thirteen. Mr. Lee Hayes testified at T 112 Lines 14-20,

T 120 at Line 19, T 121 Line 24, and T 123 Line 4, and never

identified goods taken from Appellant’s shéd. In addition, the

State identified and tendered physical evidence to the Court,

which evidence was allowed to go out with the jury, which was

not claimed to be stolen by any party, and in fact was the

property of Defendant’s grandfather, Mr. J. C. Pollard, specif-

icall}one red tool box marked as State’s exhibit 9, one pair of

red Fuller boit cutters, and one gray Hess sockett wrench set

identified as State’s Exhibit 12. The above items were sent out

with the Jury as stolen property and yet were returned to Mr.

Pollard by delivering same to his attorney, Mr. Charles D.

Strickland. (See Transcript of Motion for New Trial—Pages 21

through 22 which reads as follows: “The socket wrench set was

the type being sold but Mr. Pollard claimed he had such a

socket wrench. Now at the close of the evidence, Mr. Poilard

having claimed his items and saying he owned these particular

items, whose property it actually was, Mr. Jayes or Mr. Pol-

lard, after discussion with the Deputy Sheriffs, we photo-

graphed all of the evidence, it was decided that the superior

claim in absence that these might be Mr. Pollards, so they

80a

released it.” Although State’s Exhibit’s 9 through 14 were

admitted without objection (See T 124 Line 22), the Court, on

its own motion and without request from Defendant, made the

following instruction to the jury on T 126 Line 22. ’

THE COURT:

“Let me make these instructions to the jury. These various

tools were admitted in evidence, not as necessarily being the

same tools that were taken from this witness’s place of busi-

ness. They may or may not be. They are offered in evidence and

admitted in evidence as being tools like those that were taken

and the Jury is to consider it accordingly. Allrig’.: Mr. Strick-

land?” No further evidence of ownership was introduced and

there was cleariy unsufficient evidence to establish qunarenip

of the subject property.

4. a

The State has not proved the guilt of Appellant beyond a

reasonable doubt and its case relies upon circumstantial evi-

dence. Jackson v. Commonwealth of Virginia, et al., 443 U.S.

307, 61 L.E. 2d 560, 99 S.Ct. 2781, requires that where circum-

stantial evidence is relied upon to establish the guilt of the

Defendant, such evidence must establish Defendant’s guilt

beyond a resonable doubt and must preclude every other

reasonable hypothesis save that of the guild of the Defendant.

In the instant case the evidence clearly does not rise to this

level as the State has indeed shown that the material found at

the rei ared by the Defendant and Flowers was in fact

stolen by Flowers, and under the iaw of a presumption of

continuance, said goods would be presumed to continue to be in

the possession of the thief until shown otherwise.

The equal access argument and failure to possess with

knowledge of the fact that the he goods were stolen outlined

above apply equally to the Hayes count.

8la

CONCLUSION

For the reasons herein stated and on the authority cited,

Appellant respectfully submits that his Motion for Rehearing

should be granted and the decision of the Trial Court reversed.

Respectfully submitted,

G. Alan Blackburn

G. ALAN BLACKBURN

Attorney for Appellant,

4205 Roswell Road, N.E.

Atlanta, Georgia 30342

4.04) 256-3445

82a

APPENDIX @Q

IN THE SUPREME COURT

STATE OF GEORGIA

CASE NO.

COURT OF APPEALS OF GEORGIA

CASE NO. 64723

JAMES KENNETH SELVIDGE,

Defendant-Appellant,

Vs.

STATE OF GEORGIA,

% Appellee.

APPLICATION FOR WRIT OF CERTIORARI

G. Alan Blackburn

G. ALAN BLACKBURN

Attorney for Appellant

* 4205 Roswell Road, N.E.

Atlanta, Georgia 30342

(404) 256-3445

‘.

- 8a

IN THE SUPREME COURT

_ STATE OF GEORGIA

CASE NO.

COURT OF APPEALS OF GEORG:A

CASE NO. 64723

JAMES KENNETH SELVIDGE,

Defendant-Appellant,

“Vs.

STATE OF GEORGIA,

Appellee. .

APPLICATION FOR WRIT OF CERTIORARI

COMES NOW, JAMES KENNETH SELVIDGE, Defend-

ant, in the above-styled action, who files this his Application

for Writ of Certiorari within the time and in the manner pro-

vided by law from:

(1) TheJudgment of the Court of Appeals dated March 14,

1983, afi: ming the Judgment-of the Superior Court of Newton

County, denying the Defendants’ Motion for Judgment

Notwithstanding the Verdict and Motion for New Trial follow-

ing his conviction for theft by receiving under Indictments

Number 6480 (Hayes) and 6482 (Breedlove), as follows, four (4)

\. judges concurred in Judge Birdsong’s opinion, Chief Judge

\\ Shulman and Presiding Judge Deen concurred i in the Judgment

only, Judge Carley concurred in part ‘and dissented in part (as

to\the Hayes conviction), and Judge Banke dissented and

wrote a dissenting opinion; and

(2) From the Judgment of the Court of Appeals dated

March 30, 1983, denying Appellant’s Motion for Rehearing,

and substituting a new page 6 in the Majority Opinion, and

adding Judge Carley’s written dissent as to,¢he conviction in

Hayes, with all other votes being the same as above outlined.

84a

Copies of the adverse Judgments of the Court of Appeals are

attached hereto as. Exhibits “A” and “B” respectively. Notice.

of Intention to Apply for a Writ of Certiorari was timely filed

with the Clerk of the Court of Appeals of Georgia on April 4,

1983.

The questions raised in this Appeal are of great concern.

gravity and importance to the public and invclve the following:

(1) Factual errors which form the basis for the Majority

Opinion which errors of fact include the following:

(a) That Mr. Flowers, whose “confession” was read to the

jury, was present and testified as a witness and was thus

available for cross-examination by the Defendant. See both the

original and amended Majority Opinion which refer to “Wit-

ness Flowers.” A review of the trial transcript shows clearly

that Mr. Flowers did not testify as a witness, and was not

available for cross-examination.

based on the erroneous conclusion that Defendant Selvidge

was convicted of burglary in the Breedlove matter. See con-

curring opinion of Judge Carley in which he states “I agree

with the majority that Grant’s testimony was sufficient to

support Appellant’s conviction of that burglary. Defendant

Selvidge was charged with theft by receiving, and if the evi-

dence was sufficient to support a conviction for burglarly, then

the evidence could not possibly support a conviction for theft

by receiving.

(a) The Defendant’s right of confrontation of witnesses

under the Sixth Amendment to the Constitution of the United

States is violated where the State during cross-examination of

Defendant Selvidge’s grandmother read excerpts from a “con-

fession” directly naming Defendant Selvidge as being a princi-

pal in the Hayes burglary, which “confession” by Flowers

the contents, and Mr. Flowers was not present and did not

testify live and was not subject to-cross-examination.

85a

The only evidence of any type which was introduced in

connection with the Hayes charge was the allegedly stolen

tools found in the shed of the trailer to which Mr. Flowers, as

well as Defendant Selvidge, without dispute, had equal access.

Other than the identification witness Mr. Hayes, there was no

other evidence directly connecting Defendant Selvidge with

the Hayes’ burglary. The State has not proved the guild of

Appellant beyond a reasonable doubt in this a circumstantial

evidence case, contrary to the requirements of Jackson v.

Commonwealth of Virginia, et al., 443 U.S. 307, 99S.Ct. 2781,

61 L.Ed 2d 560, which requires that where circumstantial

evidence is relied upon to establish the guilt of the defendant,

such evidence must establish defendant’s guilt beyond a

reasonable doubt and must preclu

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