However, the mere fact that a handcuffed defendant is seen by jurors or prospective jurors is not a ground for the automatic grant of a challenge to the array of jurors or of a mistrial. Gates v. State, 244 Ga. 587, 592 (2) ( 261 S.E.2d 349) (1979); Phillips v. State, 238 Ga. 616 (1) ( 234 S.E.2d 527) (1977); Howard v. State, 144 Ga. App. 208, 212 (8) ( 240 S.E.2d 908) (1977). In the instant case, at the time appellant was seen handcuffed he was in the process of being transported by the Sheriff's deputies, who are charged with the responsibility of taking the appropriate security measures to assure the confinement of a prisoner.
'" Coats v. State, 234 Ga. 659, 662 ( 217 S.E.2d 260). Stated conversely, "[t]he right to severance of offenses exists only where the offenses have been `joined solely on the ground that they are of the same or similar character.'" Phillips v. State, 238 Ga. 616, 618 (5) ( 234 S.E.2d 527); Coats v. State, 234 Ga. 659, 662, supra. Under the test of Haisman, supra, it is obvious that the acts of the defendants are not based on the "same conduct" or "a series of acts connected together."
Todd v. State, 261 Ga. 766, 769 (3) ( 410 S.E.2d 725) (1991). See also Phillips v. State, 238 Ga. 616, 617 (4) ( 234 S.E.2d 527) (1977). Accordingly, this enumeration of error is without merit.
The appellant claims that the court should not have allowed the in-court identification of appellant by the two prostitutes because the appellant had been identified by photographs before the preliminary hearing and before trial. From an examination of the record we conclude that the photographic arrays were not impermissibly suggestive. See Phillips v. State, 238 Ga. 616 ( 234 S.E.2d 527) (1977). 9. At a lineup involving the appellant's co-defendant neither of the prostitutes could identify the co-defendant.
See also the cases collected in Hayes v. State, 182 Ga. App. 26, 27 (1) ( 354 S.E.2d 655) (1987). And Phillips v. State, 238 Ga. 616, 618 (5) ( 234 S.E.2d 527) (1977), where it was held not error to refuse severance of two armed robberies of the same store cashier within a one-month period and the shooting of one store employee on the second occasion. And Cooper v. Smith, 253 Ga. 736, 727 (3) ( 325 S.E.2d 137) (1985), where it was held not error to refuse severance of aggravated assault with intent to rape one victim, kidnapping and rape of a second victim, and simple battery of a third victim.
Even if it did, since defense counsel failed to object to it and later elicited the same testimony on cross-examination, there is no merit to this enumeration. Heard v. State, 204 Ga. App. 757, 759 ( 420 S.E.2d 639) (1992); Phillips v. State, 238 Ga. 616, 617 ( 234 S.E.2d 527) (1977). 5. Searcy claims the trial court erred in permitting the jury to remain present during a defense motion for a directed verdict.
2. The trial court's denial of appellant's motion to sever for trial the charges arising from the two armed robberies is the subject of his second enumeration of error. Under the circumstances of this case, where the two robberies occurred approximately one month apart and involved the same store and the same victim, it cannot be said that the offenses were joined solely on the ground that they were of the same or similar character or that the trial court erred in denying appellant's motion for severance. Phillips v. State, 238 Ga. 616 (5) ( 234 S.E.2d 527) (1977). 3. Appellant's co-indictee testified against him at trial.
However, pretermitting the question of whether a trial judge is required to act sua sponte in severing charges, the right to severance of offenses exists only where the offenses have been joined solely on the ground that they are of the same or similar character. Phillips v. State, 238 Ga. 616, 618 (5) ( 234 S.E.2d 527) (1977). We have held that a charge of escape is not of the same or similar character as a charge of armed robbery, and in a factual situation similar to that in the instant case, we held that evidence of appellant's prior commission of armed robbery was relevant to the issue of his lawful confinement at the time of his subsequent escape.
For example, Haisman v. State, 242 Ga. 896, 900 ( 252 S.E.2d 397) stated that "[o]ffenses may also be joined for trial when they are based (1) `on the same conduct' or (2) `on a series of acts connected together' or (3) on a series of acts `constituting parts of a single scheme or plan.'" Thus, in Phillips v. State, 238 Ga. 616, 618 ( 234 S.E.2d 527), involving robbery of the same convenience store cashier twice within one month, the Supreme Court held: "In view of the fact that the charges against the [defendant] involve both the same store and a common victim, it was not error to refuse to order that they be severed." Again, in Clemson v. State, 239 Ga. 357 (1) ( 236 S.E.2d 663) where two counts of robbery and two counts of attempt to commit robbery were joined, the court found "where separate crimes are committed in order to accomplish a single criminal purpose, the crimes are said to constitute parts of a single scheme or plan, even if they are somewhat removed from one another in terms of time and place. [Cit.] The same is true of a continuing series of crimes committed against the same victim. [Cits.] . . . Here the crimes are not merely similar, but are nearly identical . . . Clearly, there was more reason here for joining the offenses than simply that they were `of the same or similar character.
"The right to severance of offenses exists only where the offenses have been `joined solely on the ground that they are of the same or similar character.' Dingler v. State, 233 Ga. 462, 464 ( 211 S.E.2d 752) (1975) (Emphasis supplied.)" Phillips v. State, 238 Ga. 616, 618 (5) ( 234 S.E.2d 527) (1977). However, where they are "`based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan,'" severance lies within the discretion of the trial court since the facts in each case are likely to be unique.