Burroughs v. State

• Decision Date: 24 February 1988
• Docket Number: Nos. 75447,75452,s. 75447
• Citation: 366 S.E.2d 378,186 Ga.App. 40
• Parties: BURROUGHS v. The STATE (Two Cases).
• Court: Georgia Court of Appeals

Page 378

366 S.E.2d 378

186 Ga.App. 40

BURROUGHS v. The STATE (Two Cases).

Nos. 75447, 75452.

Court of Appeals of Georgia.

Feb. 24, 1988.

Robert B. Royce, for appellant.

Spencer Lawton, Jr., Dist. Atty., Larry Chisolm, Asst. Dist. Atty., for appellee.

BENHAM, Judge.

In Case No. 75447, appellant seeks reversal of a conviction for rape. In Case No. 75452, he seeks reversal of a conviction for rape and aggravated sodomy. The offenses involved different victims and were committed at different times, but were related in that the victim in each case testified against appellant in the other prosecution, and in that the motions for new trial were consolidated. Though the issues in each case must, with the exception of the denial of the consolidated motions for new trial, be dealt with separately, we will treat these cases as consolidated.

Case No. 75447

1. Appellant's first enumeration of error in this case is that the evidence is insufficient to support his conviction for rape. The State's evidence authorized the jury to find that while appellant and another young man were walking three young women (the prosecutrix, her sister, and a friend) home from a party late one night, the other young man took hold of the prosecutrix and led her down to some railroad tracks; that appellant suggested that one or both of the other girls commit an act of sodomy; that upon their refusal and hurried departure, he followed the other man and the prosecutrix; that after the first man raped the victim, appellant followed suit, and then walked her back to meet her sister and friend. The victim from Case No. 75452 testified that appellant raped her and forced her to commit an act of oral sodomy, telling her as he began the assault that he had raped another girl in the same area. That evidence was sufficient for a rational trier of fact to find that appellant was guilty beyond a reasonable doubt of the offense of rape. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Banks v. State, 179 Ga.App. 798, 348 S.E.2d 124 (1986).

Although there were certainly conflicts in the evidence and some question about the veracity of various witnesses, the conflicts in the evidence did not demand appellant's acquittal. "The credibility of a witness is a matter for the trier of fact, and this court will not disturb the jury's finding unless it is insupportable as a matter of law. [Cit.] Since we do not find that to be the situation in the case at bar, we will not disturb the jury's finding." May v. State, 179 Ga.App. 736(1), 348 S.E.2d 61 (1986).

2. The admission of the testimony of the victim in Case No. 75452 is enumerated as error. "Evidence of similar transactions or crimes is admissible when it is shown that the defendant is the perpetrator of the similar offense, and there is sufficient similarity between the independent crime and the offense charged that proof of the former tends to prove the latter. [Cit.] Evidence of independent crimes has been admitted to show bent of mind and course of conduct, and has been most liberally extended in the area of sexual offenses." Davis v. State, 180 Ga.App. 190(2), 348 S.E.2d 730 (1986). Here, there was an unequivocal identification of appellant as the perpetrator, and the circumstances and location of the offenses were very similar. We find no error in the admission of evidence of the other offense.

3. In the course of a colloquy concerning the admissibility of evidence of another offense, the trial court articulated one of the reasons for which such evidence could be admitted. Appellant now contends that the trial court's statement was an impermissible comment on the evidence. Even if appellant had objected, which he did not, and the jury had been present, which it was not, the remark would not have been erroneous: " 'The statutory inhibition (OCGA § 17-8-55) against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.' [Cits.] The comment at issue clearly falls into this category and thus did not give rise to any prejudicial error." Havard v. State, 175 Ga.App. 798, 799, 334 S.E.2d 381 (1985).

4. Appellant's co-defendant in this case made a motion for severance. The grant of that motion while the trial was underway is enumerated as error, as is the trial court's denial of appellant's motion for mistrial.

When evidence of a similar crime was introduced, the victim of the other crime recounted that appellant boasted that he had raped another girl in the same place. No reference was made on direct examination to the fact that the rape of which appellant was alleged to have boasted was the one for which he and his co-defendant were on trial in the present case. On cross-examination, however, appellant's counsel phrased a question in such a way that it not only made it apparent that the witness was speaking of the rape involved in the present trial, but also brought appellant's co-defendant's involvement into the open. By doing so, appellant's counsel robbed of any force the trial court's direction to the jury to consider the evidence against appellant only.

"The granting or denial of a motion for severance of the trials of defendants jointly indicted for less than a capital offense is a matter within the sound discretion of the court. [Cits.]" Griggs v. State, 181 Ga.App. 618(5) 353 S.E.2d 97 (1987). Under the circumstances here, including the fact that it was appellant's own counsel who made severance of the co-defendant necessary by connecting the co-defendant to the testimony of the witness, and considering the trial court's neutral explanation of the co-defendant's absence, we find no abuse of discretion in severing the defendants or in denying appellant's motion for mistrial made following the trial court's explanation.

5. After the evidence had closed, the trial court undertook an examination, outside the presence of the jury, of a person alleged by courtroom personnel to have been engaged in a disturbance in the courtroom: a deputy sheriff testified that the spectator had been making faces. It developed that the woman involved was a friend of all the principals, and had gone into the jury room during a recess in order to speak to the prosecutrix and her sister. After ascertaining that there had been no improper communication, the trial court cautioned everyone present that it would not permit intimidation of witnesses. Appellant's counsel moved for a mistrial at several points during the inquiry, and now enumerates as error the denial of his motions. If appellant means to appeal from the denial of his motion for mistrial based on a violation of the rule of sequestration, that issue is without merit since the conversation between a witness and a spectator is not such a violation. Kirkland v. State, 173 Ga.App. 687(3), 327 S.E.2d 808 (1985). Appellant's related complaint on appeal, that the inquiry was conducted for the purpose of chastising defense counsel, is also without merit since there is no support for it in the record.

Case No. 75452

6. Appellant's first enumeration of error in this case is that the trial court erroneously denied his motion for mistrial after the prosecuting attorney made improper remarks during the State's opening statement. Although the statement was not transcribed, it appears that appellant's objection is to the prosecuting attorney's declaration during his opening statement that he expected the victim to testify that appellant had told her at the time he raped her that he had raped another girl in the same place.

A prosecuting attorney, in an opening statement, "may state what he expects in good faith a witness will testify if the witness is going to testify. [Cit.]" Brantley v. State, 177 Ga.App. 13(1), 338 S.E.2d 694 (1985). Appellant was aware that the State intended to put on evidence of a similar offense and was aware that the trial court was going to consider the admissibility of such evidence immediately after opening statements were made. In light of that fact and the fact that the testimony to which the prosecuting attorney referred was clearly admissible as part of the res gestae ( Wolke v. State, 181 Ga.App. 635(2), 353 S.E.2d 827 (1987)), we find no error in the trial court's denial of appellant's motion for mistrial.

7. Appellant next asserts that the trial court erred in permitting the State to elicit testimony in narrative form from the victim and in allegedly ridiculing counsel for objecting to that testimony and to leading questions. We find no such error.

A trial court has discretion to allow...