Opinion
73466.
DECIDED FEBRUARY 13, 1987.
Armed robbery, etc. Gwinnett Superior Court. Before Judge Stark.
J. Stanley Rhymer, for appellant.
Thomas C. Lawler III, District Attorney, Thomas A. Devlin, Jr., Assistant District Attorney, for appellee.
David Franklin Morton brings this appeal from his conviction of two counts of armed robbery and one count of kidnapping with bodily injury. He was tried by jury in a joint trial with co-defendant Deborah Elaine Morton. The victim worked as a cashier at a Spur station located in an isolated area of Gwinnett County. After closing the station late at night, she was walking to her car when appellant suddenly grabbed and hit her. She screamed as appellant forced her into her car and cut her on the forehead with a knife. He held the knife at her throat, threatening, "Don't scream any more, bitch, or I will cut your throat." Then the co-defendant joined them in the car. Although the victim was bleeding profusely, appellant forced her to unlock the Spur station in order to obtain money from the store. Once again, he threatened to kill her if she attempted to alert the police. After obtaining money, checks, beer, and cigarettes from the station, appellant and the co-defendant forced the victim to drive them towards Jacksonville, Florida. The victim's wound continued to bleed, and appellant gave her his undershirt to absorb the blood. She drove until the blood from the wound impeded her ability to see and drive properly. Later, they stopped at a Holiday Inn where co-defendant secured a room in a fictitious name and gave the motel clerk a fictitious license tag for the car. In the room the victim took a shower without removing her clothes in an attempt to wash the blood from her face, hair and clothes. The towel with which she dried herself was bloodied in the process. Appellant and the co-defendant counted the money, and after ascertaining that the checks taken from the Spur station could not be cashed, appellant directed the victim to burn them in the trash can. Smoke from the burning checks triggered the fire alarm in the room, whereupon appellant violently dismantled it.
Subsequently, appellant decided that the three would leave the motel that night. They continued their journey, leaving the bloodied undershirt and towels in the room. Appellant drove until stopped by the State Patrol. At that time, he directed the victim to change places with him and to represent to the officer that she was driving. The officer noticed that appellant changed places with the victim and indicated that he wanted to talk to appellant. At this point, the victim told the officer that she had been robbed and kidnapped.
Both appellant and the co-defendant submitted statements to the police at the time of arrest. Although the co-defendant did not testify at trial, her statement implicating appellant was tendered into evidence by the prosecution over the objection of defense counsel. The statements of appellant and co-defendant were substantially the same; however, the statement of appellant did not contain an admission that he utilized a knife in the abduction of the victim, or that he threatened to kill the victim, or that he premeditated the robbery of the station. The statement of co-defendant did indicate that appellant premeditated the robbery, and that appellant threatened to kill the victim. At the close of evidence at trial, the court instructed the jury, inter alia, that "any statement made by one of the Defendants in this case . . . is admissible only against the person who made any such statement. . . ."
1. Appellant contends that he was deprived of his right of cross-examination secured by the confrontation clause of the Sixth Amendment by the introduction into evidence of the statement made to the police by the co-defendant and the failure of the co-defendant to testify at trial. In Bruton v. United States, 391 U.S. 123 ( 88 SC 1620, 20 L.Ed.2d 476) (1968), the United States Supreme Court held that the admission into evidence at a joint trial of a co-defendant's extrajudicial confession implicating the defendant violated the defendant's Sixth Amendment right of cross-examination, despite instructions to the jury to disregard the co-defendant's statement in determining the defendant's guilt or innocence. In Gamarra v. State, 142 Ga. App. 196 (2) ( 235 S.E.2d 652) (1977), this court held that there is no Bruton violation when the testimony presented in the co-defendant's confession is supported by the complaining defendant's own confession. Finally, in Harrington v. California, 395 U.S. 250 ( 89 SC 1726, 23 L.Ed.2d 284) (1969), the United States Supreme Court indicated that if overwhelming evidence against a defendant exists apart from the statement of the co-defendant, then any violation of Bruton can be said to be harmless beyond a reasonable doubt. In Harrington, the defendant's statement, although not a confession, placed him at the scene of the crime. Further, there was overwhelming evidence against the defendant apart from the statements of his co-defendants.
In the case sub judice, the facts of both statements are interlocking. We find no abuse of discretion in the trial court's finding that appellant's statement was supportive of the co-defendant's statement. See Gamarra, supra. Nevertheless, the record reveals overwhelming evidence apart from the statement of the co-defendant on which the jury could have found appellant guilty beyond a reasonable doubt. The victim's testimony included the most damaging facts contained in the co-defendant's statement, thereby rendering the facts of the co-defendant's statement merely cumulative. Further, the testimony of the victim was buttressed by tangible evidence, viz., the bloodied towel and clothing, as well as by the testimony of the guard and other witnesses. In view of the overwhelming evidence against appellant, existing apart from the co-defendant's statement, there is no reasonable possibility that the statement contributed to his conviction. Accord Butler v. State, 156 Ga. App. 89 (2) ( 274 S.E.2d 104) (1980).
2. Appellant argues that the trial court committed reversible error by denying his motion to suppress evidence obtained without a warrant from the motel room. The record reveals that appellant, the co-defendant, and the victim drove into the Holiday Inn parking lot at approximately 3:00 a. m. in the morning. The night security guard testified that he became suspicious due to the unusual time of arrival, the appearance of the victim, and the fact that the car was old and "just didn't look the type that usually stays at the Holiday Inn." After the three checked into a room, the guard examined the registration card completed by the co-defendant. He learned that the co-defendant had supplied false information on the card concerning the number of persons staying in the room and the type of automobile driven. He also noticed that appellant parked the car in a manner which suggested that he wished to hide the car. Approximately forty-five minutes after the three entered the motel room, the guard observed them leave and drive south on the interstate highway. No establishments existed along the southern part of the interstate; therefore, the guard surmised that the three had left permanently. He entered the appellant's room where he noticed the key to the room, the bloodied undershirt, a bloodied towel, blood on the bottom of the bathtub, remains of burned articles in a trash can, and the dismantled smoke alarm. The guard called the Georgia State Patrol to investigate. A short time later, the local police stopped on a routine call, whereupon the guard explained what he had observed. The police officer inspected the room, remarking that a crime had been committed. Subsequently, the registration clerk informed the guard and policeman that the State Patrol had stopped the automobile and discovered that the victim had been kidnapped. The guard and police locked the motel room, which remained locked until the Georgia Bureau of Investigation arrived some four to five hours later. The GBI then seized the bloody towels, undershirt, fiber evidence, and other evidence.
The trial court did not abuse its discretion in finding that appellant vacated the motel room before governmental authorities were alerted. See Buttrum v. State, 249 Ga. 652 ( 293 S.E.2d 334) (1982); Abel v. United States, 362 U.S. 217, 241 ( 80 SC 683, 4 L.Ed.2d 668) (1960). Further, in light of all of the circumstances, the record does not support a finding that the security guard must be regarded as having acted as an agent of the state at the time he entered the room and alerted the State Patrol. Accord Coolidge v. New Hampshire, 403 U.S. 443, 487-90 (91 SC 2022, 29 L.Ed.2d 564) (1971). The guard entered the room on his own volition, clearly outside of the behest of any governmental agent. His actions were based solely on his own suspicions. Although the Fourth Amendment protects individuals from unreasonable searches and seizures conducted by governmental authority, its protections do not extend to private individuals who conduct even unreasonable searches and seizures. Marks v. State, 174 Ga. App. 711 (1) ( 331 S.E.2d 900) (1985). Based on these findings, we find no error in the trial court's denial of appellant's motion to suppress.
Judgment affirmed. McMurray, P. J., and Carley, J., concur.