Howard v. State
| Decision Date | 10 June 1997 |
| Docket Number | No. A97A1254,A97A1254 |
| Citation | 488 S.E.2d 489,227 Ga.App. 5 |
| Parties | , 97 FCDR 2321 HOWARD v. The STATE. |
| Court | Georgia Court of Appeals |
Roderick Howard, pro se.
J. Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellee.
Defendant was tried before a jury and found guilty of a sole count of burglary. The 68-year-old victim, Mary D. Ellison, identified defendant as the "the man [she saw] crawling at the foot of [her] bed," at approximately 1:30 a.m. She affirmed she turned on a lamp and when she "touched the light ... [h]e was ... about two or three feet [away], because [she] was in bed." Ellison "keep[s] [her] purse right there by the T.V., where [defendant] was crawling at, down there where he was crawling at."
The victim knew defendant's Ellison spoke to defendant, saying
Defendant subsequently contacted the victim and told her, He "called [her] two times." Defendant also accosted her in a grocery store, "trying to talk to [the victim] then, trying to--told [her] to drop the charges, to call you all [the authorities], call you all and drop the charges." Defendant also threatened the victim, telling her "what he's going to do to [her]...."
Officer Allen Little of the Columbus Police Department responded to a burglary call at the victim's address. The victim "stated that she could point out the house [where the suspect lived], and she took [Officer Little] straight to [defendant's] mother's house." In the opinion of Special Agent Thomas James Davis, Sr., a polygraph examiner with the Georgia Bureau of Investigation, defendant was deceptive when he denied being in the victim's bedroom that night. Gwendolyn Johnson, defendant's former girl friend, was permitted to testify about a burglary at her apartment when someone stole her "T.V. and [her] telephone with the radio." Two weeks later, defendant told Gwendolyn Johnson, "yeah, I broke into your house...."
From the judgment of conviction and 20-year sentence, defendant brings this direct pro se appeal. Held:
1. Defendant first contends the trial court erred in admitting evidence of the separate burglary of Gwendolyn Johnson's apartment. He argues the State never proved he committed that crime and so it is inadmissible, citing Salcedo v. State, 258 Ga. 870, 376 S.E.2d 360.
"In order for a similar transaction to be admissible, it is not required that the transaction resulted in a conviction." (Citations and punctuation omitted.) Grier v. State, 218 Ga.App. 637, 639(2), 463 S.E.2d 130. Accord Green v. State, 178 Ga.App. 203(2), 204, 342 S.E.2d 386. Defendant's reliance on Salcedo v. State, 258 Ga. 870, 376 S.E.2d 360, supra, is misplaced. In Salcedo, evidence of a prior alleged sexual assault was erroneously admitted where that defendant had been tried and "acquitted of sexual battery and burglary, [but] convicted of criminal trespass." (Emphasis supplied.) Id. We find no error.
2. Over defendant's hearsay objection, Geraldine Chambliss, Gwendolyn Johnson's neighbor, was permitted to relate the observations of Cory Lewis, who watched as defendant allegedly burglarized the Johnson apartment. Defendant argues the State must show necessity to admit hearsay under OCGA § 24-3-1(b) and here the State failed to do so.
The statement objected to is Cory Lewis' observation to Geraldine Chambliss, "there ain't nobody but Gwen's baby's daddy and he's helping her move some stuff." We assume, without deciding, this statement was not admissible under OCGA § 24-3-3 as an excited utterance and further assume it does not fit within any other recognized exception to the prohibition against hearsay. Nevertheless, we hold the admission of this irrelevant and nonprobative hearsay was harmless in this instance.
Glass v. State, 235 Ga. 17, 18(2), 19, 218 S.E.2d 776. Geraldine Chambliss testified from her personal knowledge that moments before, defendant was calling for Gwendolyn Johnson and that she subsequently heard "scrubbing" noises from the Johnson apartment as if furniture were being moved. Defendant subsequently admitted to Gwendolyn Johnson, "yeah, I broke into your house...." This latter evidence, even if technically hearsay, is nevertheless admissible as an admission by defendant against his penal interest. OCGA § 24-3-31; Crossley v. Collins, 128 Ga.App. 889, 890(2), 198 S.E.2d 428. Thus, there is competent evidence placing defendant in Gwendolyn Johnson's apartment during that burglary. It follows the erroneous admission of hearsay evidence of that fact was harmless in this instance.
3. In his third enumeration, defendant contends the trial court abused its discretion in allowing the testimony of Special Agent Davis, who interpreted the results of defendant's polygraph examination. He argues that the State violated his rights "by not furnishing [him] with the test results and a copy of the chart reading," as envisioned in a stipulation.
The State and defendant "stipulated to [the] admissibility of the results of said polygraph." The "results and/or opinions resulting from the examination [were] to be released orally and in writing by the polygraphist to both sides within fifteen days after the administration [of the polygraph]." The State's attorney explained to the trial court that the written report Moreover, the State's attorney "sen[t] him everything, including this written report, three or four weeks [before trial]." Defense counsel conceded he received oral notice.
In our view, the trial court was authorized to conclude that the failure to provide the written report within the 15 days envisaged by the stipulation did not amount to any material breach of that stipulation, since defense counsel was given immediate oral notice that defendant showed signs of deceptiveness and the written report confirming that interpretation was actually provided to the defense at least three weeks before trial....
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