Jefferson v. State

• Decision Date: 01 December 1992
• Docket Number: No. A92A1655,A92A1655
• Citation: 206 Ga.App. 544,425 S.E.2d 915
• Parties: JEFFERSON v. The STATE.
• Court: Georgia Court of Appeals

Page 915

425 S.E.2d 915

206 Ga.App. 544

JEFFERSON v. The STATE.

No. A92A1655.

Court of Appeals of Georgia.

Dec. 1, 1992.

Herbert W. Benson, Melinda B. Banks, Tifton, for appellant.

David E. Perry, Dist. Atty., A. Douglas Newsome, Asst. Dist. Atty., for appellee.

ANDREWS, Judge.

Jefferson appeals from a jury verdict finding him guilty of two counts of rape, two counts of burglary, and one count of aggravated assault. The charges stemmed from two separate incidents. In the first incident, occurring on December 29, 1989, Jefferson was charged with unlawfully entering the first victim's residence and assaulting and raping her. In the second incident, occurring on August 2, 1990, Jefferson was charged with unlawfully entering another residence and raping the occupant.

In the 1989 incident, the State introduced eyewitness testimony from the victim and a witness identifying Jefferson as the assailant, who entered the residence, and raped and assaulted the victim with a crowbar-like weapon. In the 1990 incident, the State relied primarily on the victim's voice identification of Jefferson as the assailant, who entered her residence and raped her. Other evidence in the 1990 incident showed that hair found at the crime scene was consistent with pubic hair collected from Jefferson; that a shoe print found outside the victim's residence was consistent with shoes Jefferson was wearing when arrested the day of the rape, and that Jefferson was in the vicinity of the victim's residence near the time of the rape in a field where his truck was stuck in a ditch. As similar transaction evidence, the State also introduced testimony that Jefferson raped a woman in an adjoining county on December 21, 1989.

1. Jefferson contends the trial court erred by refusing to grant him a new trial based on newly discovered evidence that he was not on leave from military service on December 20, 1988. Prior to trial, the State sought approval to show as similar transaction evidence that, while Jefferson was on leave from military service in December 1988, he committed a similar rape. However, the State did not introduce any evidence at trial relating to the December 1988 rape. "To obtain a new trial because of newly discovered evidence, a movant must satisfy the court (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted. Humphrey v. State, 252 Ga. 525, 528 (314 SE2d 436) (1984); Young v. State, 194 Ga.App. 335(1) (390 SE2d 305) (1990)." (Punctuation omitted.) Eliopulos v. State, 203 Ga.App. 262, 263, 416 S.E.2d 745 (1992); OCGA § 5-5-23. The affidavits relied upon by appellant do not establish that the alleged new evidence was obtained. Even if such evidence was obtained, we fail to see its relevance given that the December 1988 incident was not in evidence. The trial court did not abuse its discretion by denying the motion for a new trial. See Wilson v. State, 193 Ga.App. 374, 375, 387 S.E.2d 642 (1989).

2. Jefferson next contends the trial court erred by denying his motion in limine to exclude evidence that the 1990 victim identified him by his voice on the day of the rape while he was being questioned by police. He argues that the voice identification was unduly suggestive and produced a substantial likelihood of misidentification.

Although the victim was approached from behind, was blindfolded during the attack, and had no opportunity to observe her assailant, evidence showed the assailant spoke to her numerous times, and she had ample opportunity to hear his voice. She testified the assailant spoke calmly in completely formed sentences with a gruffy-sounding distinctive voice, which sounded to her to be that of a black man. Jefferson, a black male, was detained for questioning on the day of the rape after an investigation revealed that he was seen near the victim's residence shortly after the time of the rape, attempting to remove his truck from a ditch. While Jefferson was being questioned in a room at the police station, police seated the victim outside the room in a position where she could hear Jefferson's voice, but could not see him. The victim testified that she positively identified Jefferson's voice at the police station as that of her assailant. The officer who staged the voice identification testified that as the victim heard Jefferson's voice she suddenly moved her hand to her mouth, and began crying.

We first conclude that a proper foundation was laid to show the basis of the victim's opinion that she recognized her assailant by voice. See Stevanus v. State, 185 Ga.App. 7, 9-10, 363 S.E.2d 322 (1987); Shepherd v. State, 173 Ga.App. 499, 500-501, 326 S.E.2d 596 (1985); Jenkins v. State, 167 Ga.App. 840, 841-842, 308 S.E.2d 14 (1983). Next, we conclude that the voice identification was admissible under the test of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See Stith v. State, 201 Ga.App. 621, 622, 411 S.E.2d 532 (1991). The voice identification procedure employed by the police was the equivalent of using a one-person show-up for an eyewitness identification. "The test for determining whether a due process violation occurred in cases such as this is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Citation and punctuation omitted.) Martin v. State, 193 Ga.App. 581, 582, 388 S.E.2d 420 (1989). Under Neil v. Biggers, supra, a two-step analysis is used: "First, an impermissibly suggestive identification procedure is to be avoided. Only if it was suggestive need the court consider the second question--whether there was a substantial likelihood of irreparable misidentification. Although one-on-one show-ups have been sharply criticized, and are inherently suggestive, the identification need not be excluded as long as under all the circumstances the identification was reliable notwithstanding any suggestive procedure. Our inquiry, therefore, must focus upon whether, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view [or hear] the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil, supra 409 U.S. at 199-200 ." (Citations and punctuation omitted.) Barnett v. State, 191 Ga.App. 552, 555-556, 382 S.E.2d 620 (1989).

The blindfolded victim was clearly focused on her assailant's voice, had ample opportunity to hear him speak during the crime, and described his voice in detail. Her identification of his voice was unequivocal and made on the day of the crime. Under all these circumstances, there was no substantial likelihood of irreparable misidentification. Barnett, supra at 556, 382 S.E.2d 620; Killens v. State, 184 Ga.App. 717, 720, 362 S.E.2d 425 (1987); Martin, supra 193 Ga.App. at 582, 388 S.E.2d 420. The trial court did not err by denying the motion in limine and admitting evidence of the pre-trial voice identification.

3. Jefferson contends the trial court erred by refusing to sever the counts relating to the 1989 incident from the counts relating to the 1990 incident. "Severance is required if offenses are joined solely because they are similar in nature. Cooper v. State, 253 Ga. 736, 737 (325 SE2d 137) (1985); Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975); Wilson v. State, 188 Ga.App. 779, 780 (374 SE2d 325) (1988)." Dobbs v. State, 199 Ga.App. 793, 406 S.E.2d 252 (1991). Severance is not mandated, however, where the similarity of the offenses is coupled with evidence of a pattern which shows a common motive, plan, scheme, or bent of mind. Wilson v. State, 188 Ga.App. 779, 780, 374 S.E.2d 325 (1988). "Where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined--subject to the right of the defendant to severance in the interests of justice. Severance in this particular kind of circumstance lies within the sound discretion of the trial judge." (Citations and punctuation omitted.) Id. at 780, 374 S.E.2d 325.

There was a valid reason, other than similarity, for joinder of the offenses relating to the 1989 and 1990 incidents, so severance was discretionary with the trial court. Davis v. State, 159 Ga.App. 356, 283 S.E.2d 286 (1981). The 1989 and 1990 assaults, about six months apart, both occurred while the defendant was home on leave from military service. The victims were young white females, who lived close to one another in Sycamore, Georgia, and were attacked after an assailant entered their residences in the early morning hours and awoke them from sleep. A weapon was employed against the victim in both cases, and evidence showed that entry in each case was gained through a window. The victims described the assailant's voice in similar terms, and the defendant was positively identified by both victims as the assailant. The trial court did not abuse its discretion in denying the motion to sever. See Exley v. State, 198 Ga.App. 748, 750, 402 S.E.2d 798 (1991).

4. Contrary to Jefferson's contentions, the trial court did not err in admitting evidence that he committed...