Campbell v. State

147 Ga. App. 554 (1978)

249 S.E.2d 356

CAMPBELL v. THE STATE.

56379.

Court of Appeals of Georgia.

Submitted September 19, 1978.

Decided October 16, 1978.

Arline S. Kerman, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Gordon Miller, R. David Petersen, Assistant District Attorneys, for appellee.

BELL, Chief Judge.

Defendant was convicted of two counts of armed robbery. Held:

1. The trial court denied the defendant's motion for a severance of the two counts. There was no error. Where the joinder is based on the same conduct or series of connected acts or constituting parts of a single plan, severance lies within the sound discretion of the trial judge. Coats v. State, 234 Ga. 659, 662 (217 SE2d 260). There was no abuse of that discretion as it was shown that the two robberies arose out of the same conduct.

2. The court admitted evidence of photo identification of defendant at a pre-indictment lineup held in the absence of counsel for defendant. There was no error. An accused is not entitled as a matter of right to counsel at a lineup conducted after arrest but prior to indictment. Kirby v. Illinois, 406 U.S. 682 (92 SC 1877, 32 LE2d 411). The right to counsel attaches only after the onset of formal prosecutorial proceedings. Mitchell v. Smith, 229 Ga. 781, 782 (1) (194 SE2d 414).

3. Evidence of the commission by the defendant of other robberies was admitted over objection. The evidence of these independent crimes was shown to be admissible as they all were closely connected in point of time and were similar in nature and proof of these crimes had a *555 tendency to prove defendant's intent and motive to rob in the instant case. Sloan v. State, 115 Ga. App. 852 (156 SE2d 177).

4. A state's witness testified that he had gone to DeKalb County where he "picked up" the defendant. Defendant's motion for mistrial based on this statement was denied. The defendant contends that this statement erroneously placed his character in issue as it implies that defendant was incarcerated. It did not. See and compare Ogles v. State, 238 Ga. 716 (235 SE2d 384).

5. The evidence authorized the conviction of the defendant.

Judgment affirmed. Shulman and Birdsong, JJ., concur.