Martin v. State

• Decision Date: 01 December 1995
• Docket Number: No. A95A1770,A95A1770
• Citation: Martin v. State, 464 S.E.2d 872, 219 Ga.App. 277 (Ga. App. 1995)
• Parties: MARTIN v. The STATE.
• Court: Georgia Court of Appeals

Page 872

464 S.E.2d 872

219 Ga.App. 277

MARTIN v.The STATE.

No. A95A1770.

Court of Appeals of Georgia.

Dec. 1, 1995.

Certiorari Denied March 8, 1996.

D. Dustin Tapley, Jr., Vidalia, for appellant.

Rene Joseph Martin, III, District Attorney, Richard A. Mallard, Assistant District Attorney, Statesboro, for appellee.

BEASLEY, Chief Judge.

A jury convicted Martin of aggravated assault (OCGA § 16-5-21), rape (OCGA § 16-6-1), and terroristic threats and acts (OCGA § 16-11-37).Martin enumerates 14 errors, primarily challenging the sufficiency of the evidence and the trial court's evidentiary rulings, none of which requires reversal.

Martin was a correctional officer at Bulloch County Correctional Institute("BCCI").The victim was a 19-year-old female with a tenth grade education.Her husband, an inmate, was on a work detail under Martin's supervision.When the victim visited her husband, Martin indicated to her he knew the right people to help get her husband released.The husband provided Martin with the couple's home telephone number because he trusted Martin, who reminded him of his own father.Martin called the victim several times, assuring that her husband would be released soon.During one conversation, Martin requested she meet him away from BCCI, at a location behind a certain grocery store.From there they drove to a motel supposedly to meet with influential officials, including the judge who had sentenced her husband.They waited about three hours until Martin announced that apparently the officials were not coming.

Shortly after this incident, the victim's husband informed her that Martin told him that things were coming together and it seemed like he would be home soon.Martin again contacted the victim, asking that she meet him at the same parking lot at 7:30 p.m.Again they drove to the motel but did not stay.The victim believed they were going to meet people who could arrange her husband's release.That night at Martin's request and direction, she wrote in lipstick what appeared to be a series of blackmail notes.After driving to a secluded location, suddenly and without warning, Martin threatened her life and the life of her year-old boy and then sexually attacked her.He put a gun to her head and a knife to her throat.Attempting to resist, she tried to spray Martin with mace but he broke her finger, struck her in the face, beat her, and emptied the can of mace in her face.Martin also threatened to have her husband sent so far away she would not know his whereabouts, and he warned that he would make it appear as though she was blackmailing him.

A police officer encountered the victim in the grocery store parking lot at about 2:00 a.m. just after Martin dropped her off.Her hair was disheveled, her eyes were swollen as if she had been crying, and she attempted to conceal her lower lip.She rejected the officer's offer to help, appeared "nervous and scared," adamantly refused to tell him who hit her, and repeatedly said, "Please don't touch me."The officer considered the situation so abnormal that he called his sergeant, but the victim also refused the sergeant's offer of assistance.

Shortly after leaving the officers, the victim went to the sheriff's department in another county and reported the crimes to the sheriff, whom she knew.She was taken to a local hospital, and a rape kit was prepared.All the witnesses who saw her early that morning testified that she was terrified and had obvious injuries.

Martin testified that he was her victim, the sexual relationship was both consensual and mutual, and it had begun at her instigation and insistence.He claimed she had been blackmailing him, threatening to report him to the warden, and continually demanding money and conjugal visits with her husband.Martin testified that he paid her over $1,000 in cash and that she attempted to extort an additional $2,000 to "let me walk and leave me alone."He confirmed there had been a "tussle" but claimed they struggled over a tape recorder he had used to attempt to obtain incriminating statements from her.

1.In Martin's first three enumerations of error, he claims the verdict was contrary to the evidence, against the weight of the evidence, and contrary to the law and principles of justice and equity.Where the "general grounds" are raised, there is nothing for the appellate court to review except sufficiency of the evidence.Towns v. State, 185 Ga.App. 545, 365 S.E.2d 137(1988).

The jury heard the victim describe in detail how she had been raped and how Martin had threatened her life and her child's life if she reported him to authorities.The victim's physical injuries were corroborated by numerous witnesses who testified on behalf of the State.Having reviewed the evidence in the light most favorable to the jury's determination, leaving evidence weight and witness credibility to the jury, a jury could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979);Witherspoon v. State, 262 Ga. 2, 412 S.E.2d 829(1992);Crawford v. State, 245 Ga. 89, 90, 263 S.E.2d 131(1980);Pardo v. State, 215 Ga.App. 317(1), 450 S.E.2d 440(1994).

2.In his next three enumerations, Martin contends the evidence of similar transactions was improperly admitted.

(a)He claims the incident involving him and another young woman was not sufficiently similar as required by Williams v. State, 261 Ga. 640, 409 S.E.2d 649(1991).

The State's evidence showed that in 1982, Martin tried to proposition 22-year-old Coleman when she came to visit her incarcerated brother, who was assigned to Martin's work detail.Coleman testified that Martin wanted to trade favors and told her he could make it hard or easy on her brother.In both the instant case and that one, Martin used his authority and position as a corrections officer with a young female to initiate a sexual relationship.He approached both females, called them at their homes, and propositioned them to meet at a local motel.The State moved to introduce the uncharged incident to show common scheme, motive, identity, and intent.

The three requirements of Williams were satisfied.Martin was the perpetrator in both instances, they were strikingly similar, and the independent episode tended to prove the facts it was offered for.Similar transactions need not be identical.Sessions v. State, 207 Ga.App. 609, 428 S.E.2d 652(1993).

(b) Martin claims that the State's notice of its intent to introduce similar transactions violated USCR 31.1 because it was not timely, failed to meet the rule's specificity requirements, was not given prior to the jury being impaneled, and prejudiced Martin's right to a fair trial.

The jury was struck on September 9, 1992.On September 18, notice of the State's motion to allow evidence of similar transactions was served.A hearing was held on September 29, prior to the trial's start.This complied with the ten-day notice requirement.As to specificity, the notice was facially incomplete because it failed to state the date, county, and name of the victim as required by USCR 31.3(B).However, the record shows that eight months earlier, the State provided Martin's attorney with the State's witness list, which included the name and address of the proposed similar transaction victim, and a copy of her statement containing the basic facts that outlined her later testimony.

It is clear that Martin's counsel already had knowledge of the information missing from the notice--date(s), county, and name of victim.Coleman's statement is virtually identical to paragraph 2A of the State's notice.¹He also had notice of the State's intent to call Coleman as a witness.Martin's brief in support of his motion in limine, filed before the hearing, identifies the year of that incident in the earlier provided handwritten statement.In addition, Martin had subpoenaed Coleman as a witness and, prior to the similar transaction hearing, informed the court that she would be a defense witness.

A party seeking a reversal must show not only error, but injury arising from it.Ga. Power Co. v. Bishop, 162 Ga.App. 122, 126, 290 S.E.2d 328(1982).Even though the USCR 31.1 notice was defective, Martin cannot show harm.However, we caution the State.Why risk reversal of a conviction for failure to follow the simple and straightforward rule requiring certain factual information?It is unprofessional, disobedient, and creates totally unnecessary legal issues.

(c) Martin claims the introduction of the four items belonging to Coleman and discovered in Martin's possession, when considered cumulatively with her trial testimony, improperly placed his character in issue because the evidence made Martin appear to be a thief.

Martin consented to a search of his car and was present with his attorney when police conducted their search and found items belonging to the victim and to Coleman.Investigators discovered the latter's date book, her driver's license, a credit card, and a receipt.The trial court determined that these items were found after Martin asked that the State search his vehicle and that these items were part of the res gestae OCGA § 24-3-3.These items were still in Martin's car eight years after meeting Coleman.The fact that relevant evidence may indicate a crime or incidentally place a defendant's character in issue does not render it inadmissible.O'Kelly v. State, 196 Ga.App. 860, 861, 397 S.E.2d 197(1990).

3.Martin contends the court erred by granting the State's motion in limine and precluding examination of an officer concerning photographs and intimate letters written by the victim to her husband while he was incarcerated at BCCI, as a way to attack the victim's credibility.He wanted to attempt to illustrate purported similarities between the vivid sexual descriptions the victim had depicted in her letters and the victim's...