Lakes v. State

• Decision Date: 07 February 2012
• Docket Number: No. A11A1530.,A11A1530.
• Citation: 12 FCDR 521,314 Ga.App. 10,722 S.E.2d 859
• Parties: LAKES v. The STATE.
• Court: Georgia Court of Appeals

12 FCDR 521

314 Ga.App. 10

722 S.E.2d 859

LAKES

v.The STATE.

No. A11A1530.

Court of Appeals of Georgia.

Feb. 7, 2012.

Dell Jackson, for appellant.

Paul L. Howard, Jr., Dist. Atty., Peggy R. Katz, Asst. Dist. Atty., for appellee.

BOGGS, Judge.

Corey Lakes appeals from his convictions for robbery, kidnapping, rape, aggravated sodomy, financial transaction card theft, and identity fraud. He contends he is entitled to a new trial because the trial court erred by: (1) admitting a similar transaction; (2) denying his motion for a mistrial; (3) giving an inapplicable jury charge on intoxication of a rape victim; and (4) denying his claim of ineffective assistance of counsel. He also asserts that prosecutorial misconduct entitles him to a new trial. For the reasons explained below, we find no merit in these assertions and affirm.

Viewed in the light most favorable to the verdict, the record shows that on July 27, 2007, the victim and her brother were searching for their parked car after leaving a club in downtown Atlanta around 1:30 or 2:00 a.m. A witness described both of them as obviously drunk. The victim kept falling over and stopping, with her brother urging her to get up. The witness helped them find their car, along with four other men who insisted on helping as well. After the victim entered the passenger seat and her brother got into the driver's seat, the witness started to walk away. When he heard a scream, he turned around and saw one of the four men “trying to force himself in the front passenger seat.” The brother drove the car in an attempt to escape, but stopped near the entrance to an underground mall in the hope of finding help. He got out of the driver's seat and attempted, with the help of the witness, to pull the man out of the car. A second man then jumped into the driver's seat and drove away with the victim and the man in the passenger seat. The brother was dragged several feet by the car until he fell off and broke his finger. While calling and talking with a 911 operator, the brother and the witness ran behind the car until they could not see it anymore. Police officers arrived six minutes after the brother lost sight of the car.

The victim testified that after her brother fell off the car, she was taken by the two men onto the interstate for about 15 minutes while the two men “ were screaming between each other asking [her] for money.” After the men took $10 and her ATM card, the driver asked the other man to get out of the car after exiting the highway. The driver then took the victim to a drive-through ATM where he used her pin number to withdraw $100. Next, he drove to a gas station, where he asked someone standing outside to buy condoms and a pack of cigarettes. Afterward, he drove to the driveway of an abandoned house where he threatened to shoot the victim if she did not perform oral sodomy on him. He forced the victim to perform oral sodomy and then raped her. After ejaculating on her skirt and shirt, the man “started getting paranoid and told [her] to take everything off and he was wiping [her] down [with her brother's shirt] and just acting crazy.” He threw her clothes out of the window and drove away. When her cell phone started ringing and a car pulled up nearby, he told the victim to get out of the car with her phone and clothes from her brother's bag and drove away. The victim ran to the man in the other car and called the police. The victim testified that although she was intoxicated, she was certain “he forced himself onto [her].”

Police investigating the crime learned that someone was using the victim's ATM card after the rape. At one location where it was used, the police were able to review the surveillance tape with the store owner, who identified the man using the ATM card as a regular customer named Corey. The police issued a warrant for Lakes' arrest. During the execution of the arrest warrant, Lakes engaged police in a high-speed chase ending in an accident before his arrest. The store owner testified at trial and identified Lakes as the man he knew as Corey who had used the ATM card.

Detectives found the victim's shirt in the area where the rape occurred, and DNA in semen found on the shirt matched that of Lakes. The victim identified Lakes at trial as the man who drove her brother's car and raped her. The witness who helped the victim and her brother find their car also identified Lakes in a photographic lineup and at trial.

A similar transaction witness testified that on December 24, 2006, seven months before the rape at issue in this case, she and her boyfriend went to a club where they drank a lot of alcohol. She testified that she was kicked out of the club around 1:00 or 2:00 a.m. after tripping a couple of times and that her boyfriend remained inside to close out the tab. The next thing she remembered was waking up in her car with a man who removed her clothing, threatened to kill her with a gun, and forced her to perform oral sodomy. When he stopped at a convenience store and got out of the car, she ran to a payphone and called 911. The witness acknowledged there were periods of time that evening in which she did not know what happened because she had too much to drink. Police subsequently arrested Lakes on January 8, 2007, while he was in possession of the similar transaction victim's car, which had been reported stolen. At the time of trial, Lakes had not been charged or arrested for any sexual offenses in the similar transaction case.

The State presented testimony that rape kit evidence was collected from the similar transaction victim and that police learned in May 2007 that “the evidence from the victim's rape kit came back with some DNA evidence.” Police obtained a search warrant to obtain a buccal swab for the purpose of collecting DNA from Lakes. The record shows that the rape kit evidence collected from the similar transaction victim, along with the buccal swab from Lakes, were submitted to the GBI for DNA testing. Although the GBI was not provided with a known DNA sample from the victim, a forensic biologist determined that it was Lakes' DNA on the rectal swab from the similar transaction victim's rape kit.

1. We find no merit in Lakes' claim that the trial court erred by allowing the State to introduce evidence regarding the similar transaction. The procedural guidelines for admitting similar transaction evidence are well established. Pareja v. State, 286 Ga. 117, 119, 686 S.E.2d 232 (2009). Generally, “evidence of independent offenses committed by a defendant is irrelevant and inadmissible in a trial for a different crime.” Id. In some cases, however, evidence of similar crimes can be admitted if “its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” (Citation and punctuation omitted.) Id. Before admitting evidence of prior crimes,

the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

Id. “Particularly in the area of sexual offenses, the admissibility of similar transaction evidence is liberally construed. Evidence of an earlier assault on a woman is material to the issue of consent or the lack thereof, and has a direct bearing on appellant's bent of mind.” (Citation and punctuation omitted.) Brooks v. State, 230 Ga.App. 846, 847(1), 498 S.E.2d 139 (1998).

In this case, the similarities are pronounced. Both women were intoxicated after leaving a club and sexually assaulted while in their own cars. Both women were forced to perform oral sodomy after being threatened with being shot. Lakes was later found in possession of the cars belonging to both victims, and the incidents happened seven months apart. The trial court did not err by admitting the similar transaction evidence to show Lakes' state of mind or intent. See Breland v. State, 287 Ga.App. 83, 84–86(1), 651 S.E.2d 439 (2007).

2. Lakes contends the trial court should have granted his motion for a mistrial based upon the following portion of the State's opening statement regarding the similar transaction victim:

He kept her car, not for one day, not for two days, but for at least ten days, driving around DeKalb County like it was his car. You will hear that he is at the Wal–Mart, and he gets in trouble at the Wal–Mart. The police then follow him to the car where he admits to what happened at the Wal–Mart, ... They run the tags and they realize that it is a carjacking and a rape case that the car is involved in. They take him in.

Lakes' counsel did not make a contemporaneous objection, but instead waited until the conclusion of the State's opening to move for a mistrial on the ground that the State put his character in issue for a shoplifting offense that he was never charged for and that the State “implied to the jury that he is being charged for this other alleged rape....” The trial court denied the motion.

“[A] defendant must timely object to the alleged impropriety in opening argument so that the trial court can take remedial action, if any is warranted. Having failed to assert a contemporaneous objection, [Lakes] has waived his right to complain about the remarks on appeal.” (Citations, punctuation and footnote omitted.) Brooks v. State, 284 Ga.App. 762, 764, 644 S.E.2d 891 (2007). See also Mullins v. Thompson, 274 Ga. 366, 367(2), 553 S.E.2d 154 (2001) (objection to improper closing argument must be made during closing argument, not at conclusion of argument). Additionally, even if the error were somehow preserved for our review, the overwhelming evidence of Lakes' guilt renders any error harmless. Brooks, supr...