Henry v. State

• Decision Date: 06 March 1986
• Docket Number: No. 71044,71044
• Parties: HENRY v. The STATE.
• Court: Georgia Court of Appeals

Page 499

342 S.E.2d 499

178 Ga.App. 127

HENRY v. The STATE.

No. 71044.

Court of Appeals of Georgia.

March 6, 1986.

H. Haywood Turner, III, Columbus, for appellant.

William J. Smith, Dist. Atty., Douglas C. Pullen, Asst. Dist. Atty., for appellee.

BENHAM, Judge.

This appeal of Clifford James Henry is brought from his conviction of rape and the denial of his motion for new trial.

1. The threshold inquiry concerns the sufficiency of evidence necessary to convict for rape. The jury was warranted in believing that on the night of April 29, 1983, the 78-year-old victim was resting in bed at her home on Sentry Street in Columbus, Georgia, when the doorbell rang. Due to her inability to walk without the assistance of her walker, she was slow in getting to the door. Fearing that she might be set upon by an intruder, she took a butcher knife with her and without opening either the door or the screen, asked who was at her door. The assailant responded that his car had broken down and that he needed to come in and call his brother. The victim refused to open the door, and the assailant continued to plead for entrance, saying, "Just let me in, I'm not going to hurt you. I just want to use the phone." The victim offered to call help for him, but the assailant would not give her a number to call. During the conversation through the door, the victim heard the assailant repeatedly trying to turn the latch to gain entrance. As the victim, supported by her walker, stood at the door, the assailant entered by snatching the screen door off and breaking down the door. The victim tried to flee but the assailant pounced upon her, whereupon she slashed him on the forehead with the butcher knife. The assailant wrestled the victim to the floor, took the knife from her, and, while holding her hands down, had sexual intercourse with her against her will. The room was dark and the victim could not identify her attacker other than by height, weight, head shape, and race.

Code Ann. § 16-6-1 states that rape is committed when a person has carnal knowledge of a female forcibly and against her will. Therefore, the evidence was sufficient to allow a jury to find beyond a reasonable doubt that the offense of rape was committed. Further, the victim's identification of appellant and the presence of a scar on his forehead consistent with the victim's testimony that she cut her assailant there was sufficient to allow a jury to find beyond a reasonable doubt that appellant was the perpetrator of the rape. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Perry v. State, 154 Ga.App. 385, 268 S.E.2d 747 (1980).

2. Appellant assigns as error the admission of evidence concerning voice identification. In support of this contention, he cites Walter v. State, 131 Ga.App. 667, 206 S.E.2d 662 (1974). In addition, appellant contends that the vocal exemplar was obtained through compulsion, threat or artifice, all against his will. This contention is not borne out by the facts, which show that several months after this incident, appellant was arrested while hiding under the bed at his mother's house. Upon being taken into custody, he was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant was placed in a five-man lineup and asked to repeat the following: "Just let me in. I'm not going to hurt you. I just want to use the phone." The victim positively identified ...