Mathis v. State

• Decision Date: 08 September 1989
• Docket Number: No. A89A0998,A89A0998
• Parties: MATHIS v. The STATE.
• Court: Georgia Court of Appeals

Page 532

386 S.E.2d 532

192 Ga.App. 772

MATHIS v. The STATE.

No. A89A0998.

Court of Appeals of Georgia.

Sept. 8, 1989.

Steven A. Hathorn, Covington, for appellant.

John M. Ott, Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant, William O'Neal Mathis, appeals the sentence arising from his conviction for rape, aggravated sodomy, kidnapping, and three counts of possession of a firearm during the commission of the above three felonies.

Nancy M. was jogging and fast-walking during her lunch hour. Appellant forced her into his car under threat of shooting her with the gun he was carrying. While appellant was driving he fondled Nancy M. with one hand and drove with the other; the gun was placed in his lap. In response to appellant's cross-examination as to why she did not grab the gun, Nancy M. testified that she had "never seen a gun before in [her] life and [she] was scared"; that she "wouldn't know how to shoot a gun"; and, that "[a]ll I wanted to do is not die."

Appellant took Nancy M. to a house owned by a friend of his, where he forced her to submit to an act of oral sodomy and raped her. During a portion of the rape incident the gun was placed on the floor next to appellant. Nancy M. was also cross-examined regarding why she did not attempt to grab the gun when it was on the floor; she testified that the appellant was bigger than her, and "I never shot a gun. I wouldn't know what to do." Nancy M. made an in-court identification of the appellant as her assailant.

Following the incident Nancy M. was released by appellant and she entered the house of another woman seeking help. Persons who viewed her at this house and certain hospital personnel testified that she appeared to be in shock and to be greatly upset. She would not let the police come to the house, but insisted that they go to the hospital, as the appellant had threatened that either he or his partner would kill her if she called the police.

Appellant testified that Nancy M. voluntarily accepted a ride with him, she did not resist his advances and engaged in sexual intercourse with him, with apparent consent, but that no act of sodomy occurred. Held:

1. Appellant asserts that the verdicts are contrary to the weight and sufficiency of the evidence. On appeal the evidence must be viewed in the light most favorable to the verdict, and the appellant is no longer shielded by a presumption of innocence. Watts v. State, 186 Ga.App. 358(1), 366 S.E.2d 849. Review of the transcript in a light most favorable to the jury's verdict reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of the offenses charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Baggett v. State, 257 Ga. 735(2), 363 S.E.2d 257.

2. Appellant asserts that his out-of-court statements to police were made with the manifest hope of benefit and therefore were erroneously admitted at trial as voluntarily made.

Appellant testified that the law enforcement agent had offered him a monetary benefit and had told him that it "would go easier on [his] case" if appellant assisted them in locating a person named Notae. The law enforcement officer denied such statements. The trial judge found, as to each statement in question, from a preponderance of the evidence with respect to the statement which the State intended to offer, that the defendant was advised of each of his Miranda rights before that statement was made; that he understood those rights; that he voluntarily waived them and that he thereafter gave his statement freely and voluntarily without any hope of benefit or fear of injury.

"Factual and credibility determinations as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate courts unless such determinations are clearly erroneous." Johnson v. State, 186 Ga.App. 801, 803, 368 S.E.2d 562; accord Snipes v. State, 188 Ga.App. 366, 368, 373 S.E.2d 48; Walker v. State, 186 Ga.App. 765(2), 368 S.E.2d 547.

3. Appellant asserts that his character was illegally and improperly injected into evidence when the trial court allowed testimony regarding an alleged burglary to be admitted.

The record reveals the following colloquy between a State's rebuttal witness who lived in the house where the incident occurred and court personnel. "[PROSECUTOR]: Does he [appellant] have a key? [DEFENSE COUNSEL]: Your, Honor, I object and may we approach the Bench....? THE COURT: All right.... [DEFENSE COUNSEL]: I wish to object to the line of questioning because it leads to insinuate that my client has broke in, insinuating that he burglarized that particular house.... THE COURT: Objection overruled. Make the same objection on the record. (Whereupon, the Bench conference [was] concluded.) [DEFENSE COUNSEL]: Your Honor, we would like to object on the ground that the prosecutor is tending to ... introduce [appellant's] character into evidence, as he was breaking into this individual's house and again the fact that it tends to go towards his character. We now move for a mistrial in that matter as well. THE COURT: Objection overruled and motion denied."

It is well-established that if evidence is otherwise relevant and material to the issues being tried, it is not rendered inadmissible merely because it may incidentally place the defendant's character in issue. Lanzo v. State, 187 Ga.App. 616(2)(c), 371 S.E.2d 119, citing Worthy v. State, 180 Ga.App. 506, 508(3), 349 S.E.2d 529; accord Frazier v. State, 257 Ga. 690, 698, 362 S.E.2d 351. What is forbidden is the State's introduction in the first instance of evidence whose sole probative value is that it tends to show a defendant's bad character. Robinson v. State, 192 Ga.App. 32, 383 S.E.2d 593 (1989) and cases cited therein.

In this instance, evidence that the door was supposed to be locked and that appellant did not have a key would tend to corroborate the testimony of the victim that appellant had "put the gun in [her] back and forced [her] up some back stairs and we went into, this looked like the door, you couldn't open the door, we had to kind of like crawl through the side and into the back room...." (Emphasis supplied.) "Any evidence is relevant which logically tends to prove or to disprove any...