# Petition for Writ of Certiorari — Selvidge v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2824%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 823 ## Text 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, V. 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 i 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 ee a *.. 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 te iii la 5a iv Table of Contents Continued Pe 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 Vv 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 %s 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 9 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 2 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, 3 . 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 4 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 5 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. 6 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 8 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. 9 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. 10 , 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. 11 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). 12 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). 13 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- l4 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 15 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 la 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. 2a 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 3a . 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). 4a 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. oa 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. 6a | 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 Ta 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. 8a 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 9a 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. (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. ; 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 v. 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? A 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: Q If you will speak into the microphone where the Judge and jury can hear you. What is your name, please ma’am? A >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. af And did you clean throughout his trailer, did you clean oughout his trailer? FO POPrO POP, O PO th 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 P 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? A 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. Q A Q A 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 a a 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? 5 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 en 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2824%3A1. Public record. Not legal advice.