Marlow v. the State
337 Ga. App. 1
| Ga. Ct. App. | 2016Background
- Defendant Larry Marlow was convicted by a Hall County jury of rape and false imprisonment; acquitted of two aggravated-assault-by-gun counts.
- Victim moved into Marlow’s home, worked for him, and accused him of forcibly raping her after he threatened her and displayed a handgun; a sexual-assault nurse found recent vaginal injury consistent with forcible assault.
- Police executed a search warrant but did not recover guns or DNA evidence linking Marlow to the assault.
- The State introduced extrinsic evidence under OCGA § 24-4-413: testimony from another woman who alleged Marlow raped her after offering money for sex and kept weapons in the house.
- At trial the court gave a limiting instruction permitting the jury to consider the extrinsic sexual-assault evidence for limited purposes, including to “corroborate” the victim; defense counsel had reviewed and approved the language at a charge conference.
- Marlow appealed, arguing (1) the corroboration language and related limiting instruction were erroneous/plain error or an impermissible comment on the evidence, (2) the court discouraged juror note-taking and improperly supplied written charges, and (3) the prosecutor misstated the burden of proof in closing.
Issues
| Issue | Marlow's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the jury charge permitting extrinsic sexual-assault evidence to be used to “corroborate” the victim was erroneous/plain error | The corroboration language was legally incorrect and amounted to an impermissible comment on the evidence | OCGA § 24-4-413 allows such evidence to be considered for any relevant matter (including credibility/corroboration); defense approved language at charge conference | Court: No error. Charge was authorized by § 24-4-413 and corroboration is a proper limited purpose; no plain error. |
| Whether the limiting instruction constituted an impermissible judicial comment on the evidence | Instruction improperly suggested factual conclusions or court’s belief | Instruction did not state facts or intimate court’s view of the evidence | Court: No; not an impermissible comment under former OCGA § 17-8-57. |
| Whether giving jurors a written copy of the charges and discouraging note-taking was plain error | Court discouraged note-taking and minimized the verbal charge, impairing defendant’s rights | Georgia law permits providing jurors with written charges; court did not prohibit note-taking and defendant made no timely objection | Court: No error; use of written charges is authorized and no timely objection was made. |
| Whether prosecutor misstated the State’s burden of proof in closing argument | Prosecutor told jurors that merely insufficient evidence is not“reasonable doubt,” lowering the burden | Record does not show such a statement; defendant failed to make a timely contemporaneous objection | Court: No reversible error; defendant failed to affirmatively show the alleged misstatement and did not preserve the claim. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for viewing sufficiency of the evidence)
- Owens v. State, 248 Ga. 629 (definition of relevance)
- Van v. State, 294 Ga. 464 (plain-error review of jury charges)
- United States v. Enjady, 134 F.3d 1427 (Rule 413 extrinsic-evidence may corroborate victim where consent is at issue)
- Frazier v. State, 261 Ga. App. 508 (similar-transaction evidence may corroborate victim in sexual-abuse cases)
- Fletcher v. State, 277 Ga. 795 (trial court may provide written jury charges)
- Anderson v. State, 262 Ga. 26 (same)
- Durrence v. State, 307 Ga. App. 817 (burden on appellant to show record-based error)
- Butler v. State, 273 Ga. 380 (objections to improper argument must be timely)
- Mullins v. Thompson, 274 Ga. 366 (motions for mistrial must be made when improper argument is uttered)