Grier v. State
| Decision Date | 05 December 2005 |
| Docket Number | No. A05A1463.,A05A1463. |
| Citation | 624 S.E.2d 149,276 Ga. App. 655 |
| Parties | GRIER v. The STATE. |
| Court | Georgia Court of Appeals |
Barry M. Hazen, Atlanta, for appellant.
Gwendolyn Keyes Fleming, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.
After a jury trial, Eric Grier was convicted of false imprisonment, aggravated assault, and aggravated battery, and acquitted of kidnapping, aggravated sodomy, and two counts of rape.1 Grier appeals his conviction, arguing that the trial court erroneously excluded certain evidence and incorrectly instructed the jury. Grier also challenges his trial counsel's effectiveness. We affirm.
"On appeal, we view the evidence in the light most favorable to support the jury's verdict; an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility."2 So viewed, the evidence shows that Shaqunna Zachery was the alleged victim in each of the offenses charged. Zachery testified that as she waited at a bus stop at approximately 8:00 p.m. on February 15, 2002, Grier, whom she did not know, forced her into his car and took her to a house. During the drive to the house, Grier told her that she was his "ho," and that he was "gorilla pimping" her. She understood that he was calling her a prostitute.
Zachery further testified that upon their arrival at the house, co-defendant Hall was present. Grier took Zachery to an upstairs room that had a mattress on the floor and told her to remove her clothes. When Zachery refused, Grier repeatedly slapped her face until she disrobed. Grier went through her clothes, took some personal items from her wallet, and put her in a closet. Grier used the door to the room, which was off its hinges, to block the closet door after he forced Zachery into the closet.
According to Zachery, Grier walked in and out of the room while she was in the closet, asking her if she were his "ho," and she repeatedly said no. He pulled her from the closet, used an extension cord to tie her hands behind her back, then slapped her to force her to the floor. Grier asked her again if she would be his "ho" and when she refused, he burned her with a hot metal hanger on her back. He repeatedly posed this question, and each time she said no, he burned her again. Zachery testified that Grier burned her on her buttocks, her inner thighs, stomach, and breast. Once he began to burn her breast, she agreed to be his "ho," and he left the room.
Zachery testified that she had managed to untie herself by the time Grier returned to the room; that he hit her with the extension cord on her legs, then slapped her in the face until she agreed to lie down on the mattress; that he raped her then told her to wash up; that when she returned to the room, Grier and two other men were present, one of whom was Hall, whom Grier referred to as "Po Boy"; that Grier told both men to have sex with her and gave them condoms; and that Hall initially said that he did not want to sleep with her, but both men raped her. That night, Zachery slept on a mattress in another room with Grier, and Hall remained in the house. From Grier's conversation, Zachery realized that he intended to make her his prostitute.
On the next morning, Zachery walked with Grier to his uncle's home and along the way, he told various people that she was his "ho" and they could pay him to have sex with her. When asked why she did not try to escape or scream, she said that she could barely walk because her burns were hurting and that she was afraid that Grier would kill her. He introduced her to his uncle's family as his "ho." After they left his uncle's house, they walked to a gas station, where Grier told two men, who worked at the station, that they could have sex with her for $50 each. The men told them to come back at 4:00 p.m. As Grier and Zachery returned to the gas station, he told her that he would split the money he made with her. Grier gave Zachery his number to call him when she was done and she drove away with the two men to a nearby hotel. Once the men saw her burns, however, they did not want to have sex with her. Instead, they asked her where she wanted to go and took her to her boyfriend's room.
Zachery reported the incident to the police. The responding officer took Zachery and her boyfriend to the police department, where Zachery gave a statement and her burns and scars were photographed, then to the hospital. Days later, Zachery met with another police officer and identified Grier, Hall, and the third man who raped her from a photographic lineup.
Co-defendant Crane testified that he was charged along with Hall and Grier for acts allegedly committed upon Zachery; that on the date of the incident, he saw Zachery at a gas station and called Grier and told him that he had a "ho" for him; that Grier arrived and picked up Zachery; that they told her they were having a barbeque to get her to the house; that he followed Grier and Zachery to Hall's house; that he knew that Zachery did not want to be a "ho"; that he saw Grier burn Zachery with a coat hanger; that he did not have sex with Zachery or witness Grier or Hall having sex with her; that he saw Grier put Zachery in the closet, hit her, and position the coat hanger such that it would leave the most burn marks on her body; that Hall was upset that Grier was abusing Zachery in his house and that Grier became aggressive with him and Hall; and that Hall gave a videotaped statement implicating him because he was scared of Grier.
1. In his first error, Grier argues that the trial court erred in excluding evidence that Zachery voluntarily went to Hall's house for purposes of prostitution and makes the alternative argument that his counsel was ineffective for failing to introduce evidence on this point. We will address Grier's ineffectiveness claim in Division 4 below when we address his other claims of ineffectiveness.
The state moved in limine to exclude evidence pertaining to Zachery's sexual history with persons other than the defendants on the grounds that the evidence would violate the rape shield statute, codified at OCGA § 24-2-3. Pursuant to subsection (a) of the statute 34;evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses" and specifically excludes evidence of the complaining witness's "general reputation for promiscuity." Grier argues, however, that the trial court's ruling prevented him from advancing his theory of the case that Zachery was a prostitute, who voluntarily came to and remained at Hall's house for purposes of prostitution, and that she was burned by Crane in retaliation for her pimp's assault of one of Crane's prostitutes. Grier maintains that the evidence of Zachery's intent to engage in prostitution was directly related to the false imprisonment charge.
Assuming, arguendo, that the trial court's ruling was erroneous, the verdict is nonetheless sustainable. "In order to have reversible error, there must be harm as well as error."3 Even in the absence of the proffered evidence, the evidence that Zachery was forced into a closet against her will was sufficient to sustain the guilty verdict on the false imprisonment charge. Pursuant to OCGA § 16-5-41(a), "[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority." 4 Therefore, the jury could have concluded that Zachery voluntarily came to and remained at Hall's home for the purpose of prostitution and simultaneously found Grier guilty of false imprisonment as well as assault and battery. The jury's acquittal of Grier on the kidnapping, aggravated sodomy, and rape charges is consistent with this conclusion.
2. In his third enumeration of error, Grier argues that the trial court erred when it prohibited the testimony of Joshan Michael Dorsey, who would have provided exculpatory evidence, because it concluded that Grier violated the reciprocal discovery statutes. We review the trial court's decision to exclude the witness under an abuse of discretion standard,5 and we find no abuse of discretion here.
Pursuant to OCGA § 17-16-8(a), "the defendant's attorney, within ten days after compliance by the prosecuting attorney but no later than five days prior to trial,. . . shall furnish to the opposing counsel . . . the names, current locations, dates of birth, and telephone numbers of [the defendant's] witnesses." Upon a showing of bad faith and prejudice, the trial court is authorized to prohibit the testimony of a witness who was not identified in a timely manner.6 The record shows that on the afternoon of the third day of trial, Grier's trial counsel informed the court that he intended to offer the testimony of Dorsey to rebut Crane's testimony and that he had first learned of Dorsey on the afternoon of the previous day. Trial counsel had informed Crane's counsel of the identity of the witness earlier that morning. When asked about the content of Dorsey's testimony, Grier's counsel stated that Dorsey would testify that he was at the house on the day of the incident, that Crane repeatedly said that he would burn Zachery, that he saw Crane with the hot metal hanger, that he heard whimpering from one of the rooms in the house, that Crane said he was going to burn the girl because another man had "cut up one of his `hos'". The trial court gave Crane's counsel and the state an opportunity to talk to Dorsey before hearing...
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