Davis v. State

• Decision Date: 25 June 1992
• Docket Number: No. A92A0312,A92A0312
• Citation: 420 S.E.2d 349,204 Ga.App. 657
• Parties: DAVIS v. The STATE.
• Court: Georgia Court of Appeals

Page 349

420 S.E.2d 349

204 Ga.App. 657

DAVIS v. The STATE.

No. A92A0312.

Court of Appeals of Georgia.

June 25, 1992.

Travis T. Vance III, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Michael L. Spotts, Rebecca A. Keel, Asst. Dist. Attys., for appellee.

BIRDSONG, Presiding Judge.

Elroy Davis appeals his conviction for statutory rape of his daughter. He contends the trial court erred by tainting the jury panel by unfairly blaming his counsel for the length of jury selection, by denying his motion for complete recording of the trial, by refusing to allow scientific tests to be conducted on a semen sample, by allowing the prosecution to bolster the victim's testimony, and by allowing the prosecution to introduce evidence of medical reports and testimony in violation of OCGA §§ 17-7-210 and 17-7-211. He also contends the evidence was insufficient to support a conviction for statutory rape. Held:

1. Davis' argument on the insufficiency of the evidence to support his conviction for statutory rape contends that the victim's testimony was not corroborated sufficiently as only the victim's testimony identified him as the perpetrator. See OCGA § 16-6-3 (a). This argument is without merit. "Corroborating identification evidence is not necessary in statutory rape prosecutions. The quantum of corroboration needed in a rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury." (Citation and punctuation omitted.) Byars v. State, 198 Ga.App. 793, 403 S.E.2d 82. Considering all the evidence presented at trial, we are satisfied that the evidence was sufficient to corroborate the victim's testimony. Further, we have reviewed the evidence in the light most favorable to the jury's determination, and we conclude that a rational trier of fact could have found the defendant guilty of the crime for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Crawford v. State, 245 Ga. 89, 90, 263 S.E.2d 131. Accordingly, this enumeration is without merit.

2. Davis contends the trial court prejudiced the jury against him by instructing the jurors that defendant had invoked his right and that they should not be prejudiced against defendant because it would take longer to select a jury. According to the trial judge, he stated: "Do not let it prejudice your minds against the defendant in any way whatsoever." During the trial, Davis based his challenge to the array on the Fourteenth and Fifth Amendments to the United States Constitution. Now he contends the trial judge's remark violated OCGA § 17-8-57. The record shows that Davis' election to question all the jurors on the panel before starting to strike a jury (OCGA § 15-12-133) prompted the trial court's comments to the jury.

Although we agree that " '[j]urors are generally unfamiliar with the mechanics of a trial, civil or criminal, and may enter upon their duties with little or no idea as to how an actual trial is conducted,' " (Edmonds v. State, 196 Ga.App. 190, 194-195, 395 S.E.2d 566) and that a trial court should not make the defense counsel a "heavy" in the presence of a jury (Lahr v. State, 239 Ga. 813, 814, 238 S.E.2d 878), nevertheless, nothing in this record shows that Davis was in any way prejudiced by this remark. Accordingly, any error was harmless. Taylor v. State, 202 Ga.App. 445, 446, 414 S.E.2d 687. Although we are satisfied that the trial court was well intentioned in this matter, the better practice would be for the court not to make such remarks. See Taylor v. State, supra at 446-447, 414 S.E.2d 687, Carley, J., concurring opinion.

3. Davis asserts that the trial court erred by denying his motion to record the entire trial. This enumeration is without merit. Our law only requires such recordation when the State seeks the death penalty. OCGA § 17-8-5; State v. Graham, 246 Ga. 341, 343, 271 S.E.2d 627.

4. Appellant asserts that the trial court erred by denying his motion to conduct scientific tests of certain items of evidence. (The record shows, however, that at the time in question the motion actually made was for a continuance to conduct the tests.) The transcript reveals that a sheet upon which the sexual assault of the victim took place was inadvertently placed in the evidence room rather than being sent to the crime lab, and that the rape kit was not analyzed until shortly before the trial. Thus, when Davis moved for a continuance for a test of these objects, the trial court denied the request as untimely. As Davis concedes the police and prosecution were not guilty of bad faith in their handling of this evidence, there was no error arising from the handling of the evidence. Spaulding v. State, 195 Ga.App. 420, 394 S.E.2d 111. Further, appellant's motion was untimely. Compare Thornton v. State, 255 Ga. 434, 437, 339 S.E.2d 240. Nothing in our law either requires or permits defendants to rely solely on information provided by the State for their pretrial investigation, and before they are entitled to continuance, they must...