Frazier v. State

• Decision Date: 16 November 1995
• Docket Number: No. A95A2518,A95A2518
• Citation: 219 Ga.App. 768,467 S.E.2d 338
• Parties: FRAZIER v. The STATE.
• Court: Georgia Court of Appeals

Page 338

467 S.E.2d 338

219 Ga.App. 768

FRAZIER v. The STATE.

No. A95A2518.

Court of Appeals of Georgia.

Nov. 16, 1995.

Reconsideration Denied Jan. 4, 1996.

Burglary. Glynn Superior Court. Before Judge Taylor.

C. Foster Lindberg, Brunswick, for appellant.

Willie Frazier, pro se.

W. Glenn Thomas, Jr., District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

BIRDSONG, Presiding Judge.

Willie Frazier appeals his conviction of burglary; he enumerates three errors. Held:

1. Appellant asserts that as Ms. Davis is his common law wife, the trial court erred in allowing her to testify in violation of OCGA § 24-9-23. We disagree.

Ms. Davis was indicted as a co-defendant with appellant. In anticipation that she would invoke her privilege against self-incrimination, the State granted her use and derivative use immunity with regard to any testimony or evidence she may give at appellant's trial, and petitioned for an order from the trial court compelling her to testify. The trial court granted the State's petition and issued the order. However, when Ms. Davis was called as a State's witness, appellant's counsel stated in his place that he anticipated the witness would invoke the marital privilege as she had been living with appellant for more than two years, had requested visiting privileges with appellant which was granted after she and appellant executed an affidavit of common law marriage, and had a gas bill which listed her name as "Tonya Frazier." At trial, both the affidavit and the gas bill were introduced in evidence; the gas bill is dated approximately three months after the burglary. Ms. Davis subsequently testified that her name was "Tonya Joan Davis"; she had resided on Gordon Street with appellant for three months prior to her arrest; prior to moving to Gordon Street she had lived with her mother on Palamore Drive; she "now" has been living longer than three months with appellant, at her mother's house and elsewhere; at the time of her arrest, she gave police the Palamore Drive address, because she did not have a phone at appellant's address; just after her arrest she gave a statement to a police detective in which she stated that appellant was her boyfriend; upon being processed in the Glynn County Detention Center she gave her marital status as "single" but she has used the last name of "Frazier"; she does not remember signing any form of affidavit; in September she and appellant signed an affidavit to get visitation rights; she was 22 years old when she moved in with appellant; she has never been married before and has not lived with anyone else; she used the name "Frazier" in front of a lot of people and on her bills; one of her bills, she believes it was the gas bill, was listed in the name "Tonya Frazier"; she is the common law wife of appellant and has been so since 1993; she had sexual relations with appellant during the time she claimed to be his wife; in 1993, Ms. Davis had a miscarriage and lost a child by appellant; her mother considered her as married to appellant as did her friends; she had intended to be appellant's wife and they subsequently had taken "the blood test and everything"; a ceremonial marriage was not performed, however, as Ms. Davis was incarcerated on a probation violation the day before the wedding was scheduled; although the ceremony was scheduled to be held after the date when both she and appellant were arrested, it was not being done for the purposes of claiming a marital privilege; and, it was appellant who told her she could claim a marital privilege but did not ask her to do so. Ms. Davis' mother testified and corroborated inter alia that portion of her daughter's testimony pertaining to appellant's residing with Ms. Davis in the mother's house and sleeping with Ms. Davis. She considered her daughter and appellant as being married; appellant and Ms. Davis told her they were married. The mother's alleged common law husband testified that he too considered appellant and Ms. Davis as being married to each other. Tonya cooked for appellant and they went shopping together; however, during the year and a half that he lived with Ms. Davis' mother, he had never heard Ms. Davis refer to herself as "Tonya Frazier." But Ms. Davis may have done so and his attention may have been elsewhere at the time. At a family reunion appellant and Ms. Davis attended, he never heard them say they were man and wife. A holding cell mate of Tonya and longtime friend of the family testified that she believed appellant and Ms. Davis married as they were living together and Tonya always called appellant her husband.

The trial court found that neither appellant nor Ms. Davis had carried the burden of proving a common law marriage by the preponderance of the evidence; and, on the contrary, that the State has proven, based on admissions and statements of Ms. Davis herself, by a preponderance of the evidence and to the trial court "as a matter of fact, proof beyond a reasonable doubt, that there was not a common law marriage existing and existing now." Accordingly, the trial court denied the witness' assertion of the marital privilege and ordered her to testify under the grant of immunity given by the State.

As a "grant of immunity does not operate to compel one spouse to testify against another" (Stanley v. State, 240 Ga. 341, 348(6), 241 S.E.2d 173) and as a marital privilege extends to common law as well as to ceremonial marriages (see Overcash v. State, 239 Ga. 499, 500(3), 238 S.E.2d 50), we must determine whether the trial court erred in concluding that Tonya Davis was not the common law spouse of appellant. At trial, "[t]he party asserting a common law marriage must prove its existence to a preponderance of the evidence." Dixon v. State, 217 Ga.App. 267, 268(1), 456 S.E.2d 758; cf. Brantley v. State, 262 Ga. 786, 792(7)(d), 427 S.E.2d 758 (not unconstitutional to place burden of proving insanity or mental illness on defendant); Johnson v. State, 209 Ga.App. 514, 516(2), 433 S.E.2d 717 (burden upon defendant to show incompetency by a preponderance of the evidence). "If the evidence is in conflict as to the existence of a marriage, two procedures have been used to determine whether a marriage exists. The trial judge may hear evidence to determine whether a marriage exists, and his decision will not be disturbed on appeal if there is any evidence to support his finding. [Cit.] The second procedure is for the trial court to submit to the jury with appropriate instructions the question of whether or not a marriage exists. [Cit.]" Sheffield v. State, 241 Ga. 245, 246(1), 244...