“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.
Grant v. State,
In the case sub judice, the evidence showed that appellant met the victim at a Chattanooga, Tennessee lounge in August 1994. Approximately four weeks later, on September 24, 1994, appellant and the victim met again by chance at the same lounge and danced together three times. As the victim was leaving the lounge at approximately 2:00 the next morning, appellant approached her in the parking lot and asked her for a ride home, saying that his ride had already left. Since appellant’s home in Ringgold, Georgia, was on the victim’s way home to Dalton, Georgia, she agreed to give appellant a ride.
Upon arriving at appellant’s home, the victim asked to use appellant’s bathroom. While she was using the bathroom, appellant walked in; she immediately told him to leave, which he did. However, as the victim walked
During the act, however, someone rang the doorbell to appellant’s duplex; appellant stopped his assault, put on his jeans, and answered the door. While appellant and his male visitor talked in the living room, the victim put on some of her clothes and rushed out the front door, past both men. The victim drove to a Chevron station and immediately called the police. The victim was interviewed by police officers, directed the officers to appellant’s duplex, and was examined at the local hospital. During the medical examination, which occurred at approximately 5:15 a.m. the day of the assault, a nurse took a photograph of a bruise on the victim’s shoulder; the photograph was introduced as evidence. The nurse testified that the victim was distraught, angry, and tearful; diazepam (commonly known as Valium) was prescribed to calm her down.
Detective Vic Wells of the Catoosa County Sheriff’s Department interviewed the victim before the medical examination and testified that the victim “was very upset, she was crying, she was scared, she was mad, she didn’t know what to do, and she wanted help.” Detective Wells also noticed the bruise on the victim’s shoulder. The victim told Detective Wells that, in her haste to flee appellant’s home, she had left her belt, panties, and a glass in appellant’s bedroom. Detective Wells contacted a magistrate, submitted an affidavit, and secured a search warrant for appellant’s duplex; such warrant was executed at approximately 7:50 a.m. the same day. Upon arriving at appellant’s duplex, police officers were met by appellant on the porch. The officers told appellant that they had a search warrant, but did not tell him why it had been secured. Even so, an officer testified that appellant spontaneously stated that “if we was [sic] there about the girl that brought him home last night, that he didn’t rape her, that they had sex.”
During the search, the officers recovered the victim’s belt and panties; they also seized photographs of nude and semi-nude women in various sexual poses.
Appellant was arrested a few days later and charged with rape and aggravated sodomy. A hearing on appellant’s motion to suppress the seized evidence was held on March 23, 1995; the motion was denied. Appellant was tried by a jury in October 1995 and convicted on October 13, 1995. He was sentenced to life imprisonment for the rape and was given a consecutive 20-year sentence for aggravated sodomy. Appellant’s motion for a new trial was denied on April 17, 1996, and he timely appealed.
1. In the first enumeration of error, appellant asserts that the trial court erred in allowing the State to introduce as similar transactions evidence of appellant’s conviction for criminal trespass and evidence of a non-sexual dispute with a former girl friend. For the reasons set forth below, there was no error.
Georgia’s courts have long held that evidence of a separate crime unfairly places a defendant’s character in issue and therefore is inadmissible.
Williams v. State,
“Similarity between the charged crime and the extrinsic crime is an important factor pertinent to a determination of the admissibility of the extrinsic crime. However, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues in the trial of the case. Depending upon the purpose for which the extrinsic offense is offered, the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar.” (Citation and punctuation omitted.)
Ward v. State,
Further, “[wjhere forcible sexual assaults are involved, there is at least much sociological evidence to support the conclusion that this type of deviant sexual behavior is a sufficiently isolated abnor
mality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent proof of the one tends to establish the other.” (Citation and punctuation omitted.)
Moore v. State,
Evidence of an earlier assault on a woman is “material [to] the issue of consent or the lack thereof, and [has] a direct bearing on appellant’s bent of mind.”
O’Neal v. State,
In the case sub judice, a witness testified that she had a brief relationship with appellant, but that she had broken up with him. Shortly thereafter, appellant arrived unannounced at her apartment in the middle of the night; he said he wanted to talk, and the witness let him in. Appellant shoved the witness against a wall, dragged her into the bathroom, and held her down. After turning on the water, he told the witness that she could “yell as loud as you want” and no one would hear her. He also told the witness that he could kill her “and no one would know.” He then told the witness to say that she loved him. After several hours, she calmed him down, and he left. The witness did not report the incident to police because she “didn’t really want to make him any madder than he already was at me, I was kind of scared of him.”
Six months later, the same witness awoke in the middle of the night to find appellant standing in her bedroom without her permission. Appellant pled guilty to criminal trespass in that incident.
While appellant correctly points out that the prior acts by appellant did not involve an actual sexual assault on the witness, his attempt
2. In the second enumeration of error, appellant asserts that the trial court erred in allowing the State to introduce evidence of a pending contempt action to establish the lack of trustworthiness and credibility of appellant’s witness. While we agree that the impeachment was improper, we find that it did not rise to the level of reversible error.
The witness was appellant’s former defense attorney, who had been charged with contempt in an unrelated civil action for falsifying evidence; he had not yet received a hearing on the charge. The witness no longer represented appellant in the case sub judice and apparently was called to testify in order to impeach another defense witness. In an effort to “test the truthfulness of this witness,” the State questioned the witness about the pending charge, and the witness was allowed to explain in detail the circumstances that resulted in the pending charge. Appellant claims that raising such issue “significantly injured the credibility of Appellant,” so that a new trial is required.
However, while we agree that the attempted impeachment of appellant’s former counsel was improper, it does not rise to the level of harmful error, particularly in light of the substantial evidence of appellant’s guilt. The witness’ only apparent value to appellant was his assertion that another defense witness, who lived in the adjoining unit of appellant’s duplex, had made a prior inconsistent statement regarding whether or not he could hear noises emanating from appellant’s duplex. Therefore, even if the jury inferred, as appellant asserts, that appellant’s former counsel was not being truthful in his testimony, the only harm was that the jury would disregard his testimony, thereby leaving the credibility of the other defense witness unchallenged. Further, the former counsel was allowed to explain the circumstances of the pending charge and to stress that it was unre lated to appellant’s case. Finally, there is no basis upon which the jury could form a nexus between the former counsel’s allegedly fraudulent conduct and the appellant’s defense in the case sub judice, as the former counsel neither represented appellant at the trial nor put forward appellant’s defense therein.
For a conviction to be reversed, appellant must show both error and harm. See
Moreland v. State,
3. Appellant asserts that the trial court erred in denying his motion to suppress evidence seized pursuant to a search warrant which he characterizes as a “general warrant” giving complete discretion to the police officers conducting the search.
In the case sub judice, the warrant was issued by a magistrate upon the affidavit of Detective Wells, to whom the victim had specifically described items she had left at the scene of the crime, including panties, a belt, and a “Hard Rock Cafe” glass. The affidavit noted that “certain personal items” of the victim had been left at appellant’s home. The warrant authorized a search of appellant’s residence for “[ejvidence in regards
The seized items, including several photographs of nude and semi-nude women, were the result of a search for the victim’s belongings. The police officers’ testimony indicates that the search was reasonably limited to appellant’s bedroom, the site of the assault. Apparently, it became obvious during the search that appellant may have put away evidence of the assault, hanging the belt on the back of the bedroom door and putting the panties in the closet. Even though the belt was in plain sight, the officers were justified in manipulating clothing, personal items, etc. in their continuing search for the panties and the missing glass. It was during this search that a wooden box containing the photographs inadvertently was found. The photographs were seized as evidence of a transaction similar to the rape, but not as evidence of another crime. See
Dugan v. State,
The record does not indicate that the police officers undertook a generalized search for additional contraband, other incriminating evidence, or evidence of other crimes. In fact, it appears that the search and seizure was “reasonably related in scope to the justification for their initiation.”
Terry v. Ohio,
This case is distinguishable from
Grant v. State,
supra, where police officers seized business records, computers, and numerous files belonging to individuals not named in the warrant.
Grant v. State,
In the case sub judice, no personal papers were sought or seized, and no one else lived in appellant’s home, the site of the search. Appellant admitted that the seized photographs belonged to him, and the victim testified that the belt and panties found in the bedroom were hers. “The items seized from the home were obviously relevant to the crime and were properly seized as evidence. The warrants were issued by a neutral and detached magistrate and were supported by probable cause. There was no error in the denial of the motion to suppress.” (Citation omitted.)
Ward v. State,
4. In the fourth enumeration of error, appellant asserts that his constitutional right to confront witnesses against him was violated when the trial court allowed the introduction of a sworn hearsay statement which allegedly lacked necessity and reliability. We disagree for several reasons.
The evidence at issue in this enumeration involves an aggravated sexual assault committed by appellant in 1988; appellant pled guilty to the charge and was sentenced to five years probation. The State sought to compel the victim, who now resides in South Carolina, to testify in the case sub judice as a material witness to a similar transaction committed by the appellant. When the victim refused to testify in Georgia, the Georgia
At trial, the State read into evidence the prior victim’s testimony. The State also presented the testimony of a witness who arrived shortly after the assault, confronted appellant in the victim’s apartment, and was told by the victim that appellant had just raped her.
(a)
Waiver of Appellant’s Right to Confront a Witness.
With regard to appellant’s assertion that he was denied his right to confront this witness, we note that this Court, in
Moore v. State,
Further, appellant received notice of the State’s efforts to compel the witness to testify, when the trial court’s certificate of materiality of the witness was filed on August 23, 1995. It seems clear that appellant had the opportunity to attend the South Carolina hearing if he had, in fact, followed up on the State’s motion to compel. As such, he has waived the right to complain that he was not specifically notified of the hearing.
(b) Necessity Exception to Hearsay Evidence. It is incumbent at this point to stress that the transcript evidence was not, as appellant asserts, hearsay. Hearsay is defined as evidence “which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). In the case sub judice, the testimony of the witness was given under oath in a proceeding which was ancillary to the case for which appellant was being tried, i.e., a hearing on the State’s motion to compel the witness to testify. The weight of the testimony was dependent solely on the veracity of the witness, not a third party, as a court transcript transmitted the witness’ statements to the jury. However, since the trial court specifically admitted the transcript under a “necessity exception” to the hearsay rules, we will address appellant’s contention that the trial court erred in its hearsay analysis.
“OCGA § 24-3-1 (b) . . . provides that ‘hearsay evidence is admissible in specified cases from necessity.’ There are two prerequisites for admission of hearsay because of necessity: T) necessity; [and] 2) particularized guarantees of trustworthiness.’
Idaho v. Wright,
[497] U. S. [805] (110 SC 3139, 111 LE2d
In the case sub judice, the South Carolina Circuit Court decided that the witness should not be compelled to testify in Georgia, concluding that to do so would “unduly jeopardize” her mental health. The Georgia court had already determined that the witness was a “necessary and material witness” to appellant’s prosecution. Therefore, the witness was unavailable for the purposes of OCGA § 24-3-1 (b).
“The second aspect operates once a witness is shown to be unavailable. Only hearsay marked with such trustworthiness that there is no material departure from the reason of the general rule
may be admitted.” (Citation and punctuation omitted.)
Adams v. State,
All of these indicia are present in the case sub judice. The victim gave a sworn statement under oath; was questioned by her personal attorney during the hearing in front of the South Carolina Circuit Court judge; the hearing was transcribed; the victim never recanted her testimony; and the testimony was corroborated by testimony from another witness. Further, while appellant complains that the psychologist’s report indicates that the witness’ testimony could have been unreliable, appellant was given the opportunity to introduce the report in rebuttal to the admission of the transcript testimony. However, appellant refused to do so, which was understandable since the report was, in many ways, unfavorable to his position, in that it underscored the “severe emotional trauma” inflicted on the witness by appellant.
“We have held that it is implicit in the trial court’s admission of statements pursuant to OCGA § 24-3-16 that the trial court made the necessary finding of sufficient indicia of reliability. [Cits.]” (Punctuation omitted.)
Green v. State,
5. Appellant asserts that the trial court erred in failing to charge the jury on the limited purpose of the similar transaction evidence. However, the trial court specifically instructed the jury that such evidence was “admitted
solely
for the jury to consider only as it might tend to illustrate the defendant’s
state of mind
on the subject involved, if you think it does so illustrate it, and for that purpose alone, . . . [and] if you believe that the accused has had similar transactions, you will bear in mind that in connection with any such evidence you are considering it
solely
6. In his final enumeration, appellant asserts that the trial court erred in allowing the introduction of photographs of nude and semi-nude women, allegedly to demonstrate appellant’s bad character. The photographs at issue were discovered during the search of appellant’s home, while police officers were looking for a glass belonging to the victim.
“With regard to allegations of illegal sexual conduct, this court has repeatedly held that possession of [sexually explicit photographs] is relevant to show ‘state of mind and lustful disposition.’
Stamey v. State,
This case is distinguishable from
Roose v. State,
There was no abuse of discretion in the trial court’s admission of the photographs into evidence.
Judgment affirmed.