FINAL COPY
294 Ga. 431

                   S13A1903. JACKSON v. THE STATE.


      MELTON, Justice.

      Following a joint jury trial regarding two separate crimes committed on

the same night, Martavious Jackson was found guilty of armed robbery,

aggravated assault with a deadly weapon, aggravated battery, possession of a

firearm during the commission of a felony, malice murder, felony murder,

aggravated assault with a deadly weapon, and possession of a firearm by a

convicted felon.1 Jackson appeals, contending that he should not have been tried

      1
        In Indictment 07SC62994, Jackson was indicted for armed robbery,
criminal attempt to commit armed robbery, aggravated assault with a deadly
weapon, aggravated assault, aggravated assault with intent to rob, aggravated
battery, battery, possession of a firearm by a convicted felon, and possession of
a firearm during the commission of a felony. In Indictment 08SC65707, Jackson
was indicted for malice murder, felony murder, aggravated assault with a deadly
weapon, possession of a firearm during the commission of a felony, and
possession of a firearm by a convicted felon. Following a consolidated jury trial
ending on March 26, 2010, Jackson was found guilty of all crimes except
criminal attempt to commit armed robbery, aggravated assault with a deadly
weapon, aggravated assault with intent to rob, and battery under the first
indictment. Thereafter, with regard to the first indictment, Jackson was
sentenced to life imprisonment for armed robbery, twenty concurrent years for
aggravated assault with a deadly weapon, twenty consecutive years for
aggravated battery, and five consecutive years for each of two counts of
possession of a firearm (one during the commission of a felony and one as a
for both crimes at the same trial, the jury array was improper, and the trial court

failed to appropriately consider the possibility that Jackson was incompetent to

stand trial. For the reasons set forth below, we affirm.

      1. In the light most favorable to the verdict, the record shows that, at

approximately 6:00 p.m. on November 21, 2007, Jackson and another man

identified as “Skeet” broke into Cynthia Denson’s apartment and began asking

about her boyfriend, Latoron Scott. After placing a gun to Denson’s head,

Jackson and Skeet stole money and left Denson’s apartment. At roughly the

same time, Scott, who had been telephoned by Denson, was pulling into the

parking lot of the apartment complex and saw Jackson, whom he had known for



convicted felon). With regard to the second indictment, Jackson was sentenced
to a consecutive term of life imprisonment for murder, twenty concurrent years
to the murder count for aggravated assault with a deadly weapon (for each of
two counts), and five years concurrent with armed robbery for each of two
counts of possession of a firearm (one during the commission of a felony and
one as a convicted felon). The conviction for felony murder was vacated by
operation of law. Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993).
Jackson filed a motion for new trial on March 30, 2010, which was amended on
December 27, 2010 following the appointment of new counsel. The trial court
denied the motion on March 26, 2012, and Jackson filed a timely notice of
appeal. After the payment of costs on August 28, 2013, Jackson’s case was
docketed to the September 2013 term of this Court and submitted for decision
on the briefs.
                                        2
years, with Skeet. Jackson approached Scott's car, put a gun in his face, and

ordered him to get out of the car. Scott tried to talk to Jackson, but was struck

in the head. Scott's cousin, Antonio Collins, was also in the car and was ordered

to get out of the car and onto the ground by Skeet. Collins, who also recognized

Jackson, was then pistol-whipped in the head. A shot was fired at Collins, but

missed. Scott tried to run away, but was shot in the leg as he was fleeing. He

was then forced to give up his money as well as his shoes. Scott was taken to the

hospital, and, while there, he told the police that Jackson shot him. Jackson was

subsequently identified by Scott and Collins as being the perpetrator of the

crimes.

      A few hours later, between 2:00 and 3:00 a.m. on the following morning,

Jarvis Phillips and Ronnie Houston were standing outside the 1738 Café, where

they had performed earlier. Jackson, who was with another man, walked toward

them with an assault rifle and started spraying shots. Houston was shot twice in

the thigh, but survived. Phillips was killed. Jackson was identified by two

witnesses. The shell casings from both the armed robbery at the apartment and

from the murder outside the club were determined to have been fired from the

same AK-47 assault rifle. Additional similar transaction evidence of a prior

                                       3
robbery committed by Jackson was also admitted at trial.

      This evidence was sufficient to enable the jury to find Jackson guilty of

all of the crimes for which he was convicted beyond a reasonable doubt. Jackson

v. Virginia, 443 U. S. 307 (99 SCt 2781 61 LE2d 560) (1979).

      2. Jackson contends that the trial court erred by granting a motion by the

State to consolidate for a single trial the charges involving Denson and Scott

with the charges involving Phillips and Houston. We disagree. “The trial of

offenses may be joined when the offenses are based on the same conduct or

constitute a series of acts connected together or when the acts constitute parts

of a single scheme or plan. Dingler v. State, 233 Ga. 462 (211 SE2d 752)

(1975).” Burrell v. State, 258 Ga. 841, 843 (2) (376 SE2d 184) (1989). In the

related area of severance, severance is not mandatory where crimes were

committed as part of a continuing spree. Davis v. State, 279 Ga. 11, 13 (3) (608

SE2d 628) (2005). In this case, the murder of Phillips was committed less than

a mile from the armed robbery of Scott, and both occurred within a short period

of time from one another. Both crimes involved aggravated assaults against

multiple victims with an AK-47. Ballistics evidence showed the same gun was

used in both crimes. Under these circumstances, the trial court did not err by

                                       4
granting the state’s motion for joinder. Id.

      3. Jackson argues that the trial court erred by overruling his objection to

the jury array, contending that the array was not comprised of a fair cross-

section of the population of Fulton County. More specifically, Jackson contends

that African-Americans were under-represented. This contention fails.

      While traverse jury lists must consist of a representative and fair
      cross-section of the community to the fullest extent possible, the
      same is not true of an array. Provided that persons are not
      systematically excluded on the basis of race or other cognizable
      grouping, and provided that the jurors comprising a panel are
      randomly selected from a representative pool, the selection process
      is not inherently defective. [Kent v. State, 245 Ga. App. 531 (538
      SE2d 185) (2000).] The defendant has the burden of proving
      purposeful discrimination in the jury array. Pruitt v. State, 279 Ga.
      140, 142 (611 SE2d 47) (2005).

(Punctuation omitted; emphasis supplied.) Fisher v. State, 317 Ga. App. 761,

768 (7) (732 SE2d 821) (2012). Because Jackson has presented no evidence of

purposeful discrimination, his challenge to the array fails.

      4. Jackson contends that the trial court erred by denying his motion for a

continuance to evaluate his competency. “Denial of a motion for continuance is

within the sound discretion of the trial court, and this Court will not interfere

unless there was a clear abuse of discretion.” (Citation omitted.) Simmons v.


                                        5
State, 291 Ga. 705, 706 (2) (733 SE2d 280) (2012). There was no such abuse

of discretion here.

      The record shows that, prior to a hearing on the day before his trial,

Jackson refused to come to court. At that time, the trial court called the prison,

spoke to the medical director, and was informed that Jackson had received a

“clean bill of mental health.” Jackson was then brought to the courtroom, where

the judge asked him about his situation. Jackson complained that he did not

receive appropriate mental care in prison and that he had to eat his own feces in

order to get any attention. Jackson did not exhibit any mental problems at the

hearing, itself. At the beginning of trial the next morning, trial counsel requested

a continuance to investigate Jackson’s competence. The trial court denied the

motion for a number of reasons. First, the trial court noted that, up until the day

before trial, defense counsel had never had any reason to ask for a psychiatric

evaluation. Second, the trial court spoke with the jail’s medical director, who

had examined Jackson and determined him to be in good mental health. Third,

based on colloquy with Jackson about his odd behavior, the trial court

determined that Jackson understood that eating his own feces was improper and

and had been knowingly done to trigger an evaluation. Finally, the trial court

                                         6
determined that, based on Jackson’s familiarity with the justice system, he might

be attempting to delay trial. Based on all of these considerations, the trial court

did not err in denying the motion for continuance. Simmons, 291 Ga. at 706 (2).

      5. In a related argument, Jackson contends that the trial court erred by

failing to conduct, sua sponte, an adequate investigation into his competency to

stand trial. “[C]onstitutional guarantees require the trial court to inquire into

competency, even where state procedures for raising competency are not

followed, if evidence of incompetence comes to the court’s attention.” Baker v.

State, 250 Ga. 187, 190 (297 SE2d 9) (1982). As discussed in the previous

division, the trial court spoke to the medical director at the jail, Jackson’s trial

counsel, and Jackson, himself, before proceeding with trial. This enumeration

is meritless.

      Judgment affirmed. All the Justices concur.



                             Decided January 21, 2014.

                Murder. Fulton Superior Court. Before Judge Markle.

                Jennifer A. Trieshmann, for appellant.

                Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker,

                                          7
Joshua D. Morrison, Assistant District Attorneys, Samuel S. Olens, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith,

Senior Assistant Attorney General, Andrew G. Sims, Assistant Attorney

General, for appellee.




                                     8
