Baker v. State

• Decision Date: 16 July 1986
• Docket Number: No. 72732,72732
• Citation: 179 Ga.App. 802,348 S.E.2d 128
• Court: Georgia Court of Appeals
• Parties: BAKER v. The STATE.

Page 128

348 S.E.2d 128

179 Ga.App. 802

BAKER v. The STATE.

No. 72732.

Court of Appeals of Georgia.

July 16, 1986.

Joseph M. McLaughlin, Lawrenceville, for appellant.

Thomas C. Lawler III, Dist. Atty., Daniel J. Porter, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

Appellant Baker was convicted on three counts: rape, kidnapping with bodily injury, and aggravated assault with intent to rape. The first two charges pertained to the same incident; the third involved a different victim and took place at a different location, some eighteen days after the other incident.

In the first incident the recently widowed victim, returning to her apartment after accompanying her mother-in-law to the grave of her late husband, observed a man dressed in blue jeans and plaid shirt standing near the entrance to her apartment. She testified that she paid the man no particular attention at the time because in dress and demeanor he looked as if he might be one of the construction workers who, for several days, had been working around the apartment complex. A few minutes later, however, her doorbell rang, and when she went to the door the same man told her that she had left her car's headlights on. She changed into casual clothes and went out to the car, opened the unlocked door, and reached in to turn off the lights (which she did not remember having left on). Suddenly she was grabbed from behind, a knife was placed at her throat, and a male voice ordered her to remain silent or suffer the consequences. She was dragged into a nearby wooded area and thrown to the ground. Her assailant fell on top of her and asked if there was anyone in her apartment. When she replied in the negative, the man again threatened her verbally and, still holding the knife to her throat, took her to the apartment, where he examined each room. Appellant testified that during the assailant's tour of the apartment he was careful to touch nothing--not even the light switches, which he ordered her to turn on as they entered each room.

Apparently satisfied that no one else was in the apartment, the man ordered the victim to disrobe and face the wall. He raped her at knifepoint and ordered her to remain facing the wall for five minutes. When she heard the outer door slam, she ran and locked it and summoned police. She provided the officer who responded to the call with a detailed description of the victim's physical appearance and clothing. Although the victim stated that her assailant had touched nothing in the apartment, investigating officers nevertheless attempted to take fingerprints from the apartment and automobile, but found none definitely attributable to the perpetrator. Results of the physical examination and laboratory tests performed on the victim shortly after the rape yielded no conclusive evidence which, after apprehension of the appellant either affirmatively implicated or affirmatively excluded him as the possible assailant.

Nearly three weeks later another woman, who had gone to a Kroger store at about 11:30 p.m. to pick up items her son needed for school the next day, was suddenly and forcefully pushed into her car as she opened the door. The assailant fell on top of her and put his hand over her mouth, and the woman promptly bit him. (Photographs showing teeth marks on the appellant's hand were introduced at trial.) Just then another car pulled up to park on the passenger side of the victim's car, and the assailant raised his head in alarm and then ran away. At that time his face was clearly visible in the overhead parking lot lights and the headlights of the approaching car. The victim ran into the store and reported the incident, and a police officer was on the scene in approximately one minute. The victim provided a detailed description of the man's physical appearance and stated that he was wearing blue jeans and a plaid shirt. A store employee reported having seen the face of a person matching the physical description in a nearby area of the shopping mall where the Kroger was located, and a person answering the description as to physical appearance and clothing (subsequently identified as appellant) was shortly apprehended. The employee immediately identified him as the person he had seen. The victim, after breaking down and bursting into tears on her first attempt at identifying him, gathered herself emotionally and made a positive identification. All of this took place within a time period lasting between fifteen and thirty minutes, according to witnesses' testimony. While making his report on this incident, the investigating officer realized that the person in custody resembled the composite drawing and description on file in connection with the earlier incident and got in touch with the officer in charge of that investigation. The victim in the former incident then positively identified appellant from a live line-up.

At trial appellant denied having attacked either woman. He accounted for his presence at the shopping center at the time of the second incident by asserting that he had stopped at the Kroger store to purchase five packs of Marlboro cigarettes and had remained in the area for a short while because of trouble in starting his car. The state introduced into evidence the Kroger cash register tapes, which bore no entry indicating the purchase of five packs of Marlboros. Both victims positively identified appellant at trial.

Following conviction, appellant moved for a new trial on the general grounds and, by amendment, on the ground that one or more of the jurors had visited the shopping center where the second incident occurred and had influenced other jurors against appellant by giving them allegedly impeaching information regarding the physical layout of the area. At the hearing on the motion for new trial, all of the jurors were questioned individually as to whether they had visited the shopping center or had been influenced by statements of other jurors who had gone there. Most of the jurors testified that, as residents of the area, they had been in the shopping center in the past; some testified that during the trial they had been to the center as a part of their customary shopping routines; one testified that he had visited the center expressly to clear up confusion in his mind as to some details of the layout, but that he had made no statement that would influence other jurors. All the jurors testified that they recalled hearing no statements about the shopping center by other jurors, other than the bare mention of having been there; one juror qualified her statement by saying that she remembered a juror's (she did not remember which one) saying something about the lighting conditions near the Kroger store. The jurors testified unanimously, however, that the chief factor in their...