CRUZ v. THE STATE.
A18A1082
In the Court of Appeals of Georgia
October 26, 2018
McMILLIAN, Judge.
FIRST DIVISION BARNES, P. J., MCMILLIAN and REESE, JJ.
McMILLIAN, Judge.
Antonio Cruz appeals from the denial of his motion for new trial after a jury convicted him of rape, aggravated sodomy, burglary in the first degree, aggravated assault, false imprisonment, and terroristic threats.1 Cruz argues on appeal that there was insufficient evidence to support his conviction for terroristic threats; that the trial court erred by not admitting evidence which contained a prior inconsistent statement; and that his constitutional right to cross examine a witness was violated. Finding no error, we affirm.
On September 18, 2014, the victim was alone in her apartment while her children with Cruz were spending the night at his apartment. She was asleep in her bedroom when sometime around midnight, Cruz entered her apartment using a spare key taken from their son‘s book bag. The victim said that she heard a noise at her bedroom door and then Cruz broke the door down. He jumped on her bed and when she started to yell, he called her names and told her to “shut up” or he would kill her. Cruz then put his hands around her neck and applied pressure until she fainted, later waking up on the floor at his feet. After she awoke, Cruz said he wanted to talk about rumors he had heard that she was seeing someone else, which she denied. The victim
At some point, the victim observed a large kitchen knife on her kitchen table, which she did not remember putting there. Cruz asked her to go to the kitchen with him several times but she avoided doing so, and he stood by the front door to prevent her from leaving. The victim was worried that he was going to kill her, and she spoke to him about her concerns for their children, who were still at Cruz‘s house. Cruz forced the victim to drive to his apartment where they checked on the children and then returned to her apartment. Once there, the victim pretended to be calm so Cruz would not think she was going to call 911. When Cruz eventually left, the victim called her adult daughter, who lived nearby, and asked her to call the police.
The police responded to the 911 call to find the victim and her daughter at the scene, and the victim was visibly upset and crying. While the police officers were
Officers went to Cruz‘s house to check on the children. They attempted to talk with Cruz outside of his house, but Cruz refused to come out, stating that he was arrested last time he went outside his house to speak with police. Although the officers made no mention of any allegations by the victim of violence or rape, Cruz told them that the victim had hurt herself before and then blamed him for it and that she had previously accused him of rape. When communicating with the police, he said that he knew he was going to be arrested and that once he spoke to his lawyer, he would turn himself in, but the officers continued to try to persuade him to come outside and talk with them because they were concerned about the children‘s safety. Cruz came outside approximately two hours after police arrived, and the officers transported him to the police station.
Meanwhile, the police continued to interview the victim at her apartment before she was taken to the hospital. During that time and while at the hospital, the victim was still distraught, expressed concern for her children, and appeared to have been traumatized. After Cruz was convicted and his motion for new trial was denied, this appeal followed.
The standard of review for cases contesting the sufficiency of the evidence is whether, in the light most favorable to the verdict, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 S. Ct. 2781, 61 L. Ed. 2d 560) (1979). Under
Therefore, “the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged.” (Citation omitted.) Pringle v. State, 281 Ga. App. 235, 237 (1) (a) (635 SE2d 839) (2006); see also Atkins v. State, 304 Ga. 240, 242 (2) (_ SE2d _) (2018) (explaining the independent corroborating evidence is required to support statutory rape conviction). Such “corroboration can consist of the victim‘s demeanor after the threat is communicated” and wounds or other injuries to the victim. (Citations and punctuation omitted.) Nelson v. State, 277 Ga. App. 92, 97 (1) (c) (625 SE2d 465) (2005) (evidence that victim injured during incident and witness‘s testimony as to her frightened state sufficient corroboration for terroristic threat conviction); see also Tidwell v. State, 312 Ga. App. 468, 470 (1) (a) (718 SE2d 808) (2011) (victim‘s testimony of threat corroborated by independent evidence of injury to her face and officer‘s testimony that victim was crying, looked as if she had
Cruz admitted in his statement to police that he was in the victim‘s apartment at around 11:30 p.m. that night and said that he hit her with a box while moving it, causing her to yell. At trial, he testified that he went to the victim‘s apartment at around 11:40 or 12:00 p.m., using his son‘s keys to let himself in. Cruz went upstairs into the victim‘s bedroom. He admitted that the victim became scared and very nervous, collapsing to her knees on the floor, while he was there. He also admitted that the victim screamed when she became scared after he kicked a box. The victim also testified that after the incident, she was visibly upset and crying and told the police multiple times that she feared for her children since Cruz said he had a gun and threatened to kill her children and her. She was insistent that the police go to Cruz‘s house to make sure her children were safe. When the victim was at the hospital, the nurse testified that she looked like someone who had been traumatized and continued to express concern for her children‘s safety. Additionally, the victim had a bite mark on her back and bruising on her arms, knees, legs, shoulder, and chest. We find that this evidence, including Cruz‘s statement and testimony, was sufficient to corroborate the victim‘s testimony.
Prior to the victim‘s trial testimony and outside the jury‘s presence, the defense sought a ruling on the admissibility of a letter, written on several pages of note paper, sent by the victim to Cruz while he was in jail. The State objected to the admission of the letter on the grounds that it had been altered: portions were missing and parts of it were highlighted and underlined. Moreover, although the victim admitted writing the majority of the letter, she denied writing the portion on the back of the page that Cruz asserted contained the inconsistent statement (the “Disputed Portion“).4 The trial
Defense counsel subsequently asked the victim about the letter during cross-examination, including whether she wrote the Disputed Portion, reading portions of the language aloud for the jury. The victim admitted writing the letter except for the Disputed Portion. She also stated that the letter had been cut and marked and that it was not in the same condition as when she sent it. Cruz later testified that he recognized the letter; that he did not write any of it since it was written in pen, which he was not allowed to have in jail; and that the letter was in the same condition as when he received it. The only alteration he admitted making was underlining certain parts for his counsel.
Later, during a court recess outside the presence of the jury, defense counsel asked to voir dire the victim about the letter in order to decide if the defense would call her to testify. During voir dire, defense counsel went line by line through the letter and asked the victim to verify what she had written. She testified that she wrote all of the letter, with the exception of a few pictures and notes written by the children and the Disputed Portion. After she was excused, defense counsel argued that
Following a recess, the trial court ruled that the letter was not admissible on the ground that the exemplar for the handwriting cannot be the same letter that the defense was trying to get into evidence.5 Subsequently, during jury deliberations, the jury sent a note asking to see the letter. The court replied that “The letter was not admitted into evidence. You are to consider only the testimony of the witnesses under oath and the exhibits admitted into evidence.”
Under Georgia law, “[t]he requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
Initially, the trial court refused to admit the letter, finding that additional exemplars were required to compare to the Disputed Portion even though the victim identified portions of the letter as containing her handwriting. We disagree. Although exemplars may be found in writings other than the document sought to be admitted into evidence, the trial court cited no authority, and we have found none, holding that a handwriting exemplar must come in the form of a separate document. Rather, an exemplar can be any properly authenticated, voluntary writing.6 See U.S. v. Bell, 833 F2d 272, 276 (IV) (B) (11th Cir. 1987) (jury permitted to compare signature on
That is not to say that an exemplar is required to authenticate a handwritten document. See Smith, 300 Ga. at 540-41 (2) (b) (setting out means by which handwritten documents may be authenticated). Implicitly recognizing that a document may be authenticated by other means, the trial court also excluded the letter because the only evidence that the handwriting in the Disputed Portion belonged to the victim came from Cruz‘s testimony. Although under
Likewise, the trial court acted well within its discretion in determining that an alternative and independent basis existed for excluding the letter. The trial court found that the letter proffered at trial had been tampered with as it contained alterations that neither the victim nor Cruz admitted to making, including highlighting and one page that had been cut. Under these circumstances, we cannot say that the trial court abused its broad discretion in excluding the letter from the jury‘s consideration. See United States v. Castaneda-Reyes, 703 F2d 522, 525 (11th Cir. 1983) (affirming trial court‘s exclusion of document that showed that it appeared to have been subjected to tampering regardless of ground cited for its admission).
Finally, we note that the trial court allowed defense counsel to question the victim about the letter, and the jury heard the pertinent language from the Disputed Portion during that cross-examination.7 Therefore, even if the trial court‘s exclusion of the letter could be considered error, we cannot say that any such error was harmful, in light of that and the other evidence at trial. See
3. Cruz further argues that the trial court erred when it sustained an objection to a line of questioning regarding a bruise on the victim‘s back, improperly limiting his right to cross examination. “Like most questions about the admissibility of evidence, the scope of cross-examination is committed in the first instance to the sound discretion of the trial court, and we review a limitation of cross-examination only for an abuse of that discretion.” Lucas v. State, 303 Ga. 134, 136-37 (2) (810 SE2d 491) (2018). That discretion is circumscribed by the defendant‘s right to a thorough and sifting cross-examination under
During the cross examination of the State‘s crime scene investigator concerning the bruise on the victim‘s back, defense counsel asked whether the witness had heard of the term “hickey,” and whether he was familiar with “passion marks.” The State objected to both questions on the ground that it was improper for
Without deciding whether the trial court‘s rulings were in error or whether defense counsel acquiesced in such rulings, as the State argues, we find that Cruz‘s right to cross-examination was not improperly limited and that any alleged error was harmless in light of the defense‘s questioning of the sexual assault nurse examiner (“SANE“) who treated the victim and who was qualified as an expert at trial. Defense counsel questioned the SANE in detail about the victim‘s bruise, including about the relative appearance of marks caused by suction and marks caused by biting, as well as the notation in her report on the victim indicating that she had a suction injury as well as a bite mark. Under these circumstances, any testimony from the crime scene investigator, who was not a medical expert, regarding whether the bruise could have been a passion mark or a hickey would have been merely cumulative, and its exclusion was harmless. See Williams, 302 Ga. at 152 n.5 (exclusion of cumulative evidence harmless error).
During cross-examination, defense counsel asked the victim‘s adult daughter about an appointment the victim and she had with him at his office, during which the defense contended the victim made statements contradicting and undercutting her allegations against Cruz and considered signing an affidavit containing such statements.8 In response to the State‘s questioning on redirect, the daughter testified that she believed that it was actually Cruz‘s brother, and not the victim, who asked her to set up the appointment and that the brother was funding Cruz‘s defense. Defense counsel objected to the State‘s question regarding who was paying for his fees on the ground of relevance, which was overruled. In its order on the motion for new trial, the trial court found that the evidence was relevant to the witness‘s credibility.
The State‘s redirect was aimed at refuting the inference that the victim sought out defense counsel in order to change her story, by introducing evidence that Cruz‘s
Judgment affirmed. Barnes, P. J., and Reese, J., concur.
Notes
The Disputed Portion read (with the portions read to the jury in italics):
Antonio, if I said lies it‘s because of my sickness. You know how I get when I get nervous, that I even end up in the hospital. Anyway, I can‘t change what I said. I‘m not going-they are a lot. I‘m not going to jail and lose my kids and they are a lot. Why did you look for me if you already had another woman? Take good care.