Mathis v. State
| Decision Date | 05 October 1987 |
| Docket Number | No. 75431,75431 |
| Citation | 184 Ga.App. 455,361 S.E.2d 856 |
| Parties | MATHIS v. The STATE. |
| Court | Georgia Court of Appeals |
Reuben A. Garland, Jr., Atlanta, for appellant.
Robert E. Wilson, Dist. Atty., Elisabeth G. MacNamara, John H. Petrey, Asst. Dist. Attys., for appellee.
A Ms. Hightower, occupant of a first-floor apartment in a DeKalb County complex, was lying in bed watching television between 1:00 and 2:00 a.m. on June 8, 1986, when her dog barked and looked toward the open, unscreened window located about three feet from the head of the bed. Ms. Hightower turned towards the window and saw the head and upper torso of a man above the windowsill, his hands resting on the sill. In the light emanating from the television and from a light on the complex grounds near her apartment, the woman could see that the man in the window was black and was wearing a blue or green "hospital-type" shirt.
Upon realizing that he was observed, the man jumped to the ground, and Ms. Hightower ran to the window and shouted that she had called the police. The man began running away, but not before his intended victim had noticed that he was wearing blue jogging pants with a white stripe. She then called police and the resident manager, and a police officer arrived shortly thereafter. He discovered a kitchen chair positioned beneath the bedroom window but was unable to locate the intruder; he then left to resume his regular duties. About twenty minutes later the resident manager knocked on Ms. Hightower's door and asked her to come out to the parking lot and look at a man whom one of the other tenants had apprehended. When she got to the parking lot, Ms. Hightower saw a police officer (not the same one who had responded to her call) and a number of tenants standing around a black man who was wearing a blue or green shirt, blue pants, and handcuffs, and was lying on the ground. She unhesitatingly identified this man as the person who had attempted to enter her window; she subsequently identified appellant Mathis at trial as the man she had seen at her window.
Immediately after making her on-site identification, Ms. Hightower, while still at the apartment complex parking lot, learned that Ms. McLaurin, also a resident of the complex, had just identified the man on the ground as the one who, within a few minutes of the time the intruder had fled from Ms. Hightower's window, had entered her lighted bedroom, beaten her, thrown her down, stabbed her with a metal table fork, and run his hands over her body in what she interpreted as an attempt to rape her--an attempt she had foiled only by repeatedly kicking and hitting at him and by finally managing to unlock her front door and run out into the grounds. At trial Ms. McLaurin positively identified appellant Mathis as her assailant. She testified that she had had ample light in which to see the intruder during the five to ten minutes of her struggle with him. Ms. Hightower also testified that she had had ample light in which to see the person at her window.
Testimony adduced at trial showed that residents of nearby apartments had come to Ms. McLaurin's aid after she had burst screaming from her front door, and that they had seen emerging from her door a few moments later a black man wearing clothes matching the descriptions given by Ms. Hightower and Ms. McLaurin. The neighbor who had actually chased down and apprehended the intruder testified that he identified his quarry by the clothing description given him by another neighbor who had seen, at close range, the man leaving the McLaurin apartment, and that, once he spotted him running along the back of the apartment, he never lost sight of him. This witness, too, identified appellant at trial as the man whom he had chased, captured, and brought back to the parking lot, where both of the intended victims subsequently identified him as the intruder.
A DeKalb County jury found appellant guilty as charged on Count 1 (burglary: unauthorized entry with intent to commit a theft), Count 2 (burglary: unauthorized entry with intent to commit the felony of aggravated assault), Count 3 (burglary: unauthorized entry with intent to commit the felony of rape), and Count 4 (aggravated assault: assault with a deadly weapon). On Count 5 (aggravated assault: assault with intent to rape) the jury found appellant guilty of the lesser offense of simple battery. Appellant was sentenced to twenty years on the first three counts; twenty years on Count 4; and twelve months on Count 5. The sentence on Count 4 was to be served consecutively to that on counts 1 through 3, and the sentence on Count 5 was to run concurrently with that on Count 4. After denial of his motion for new trial on the general grounds, Mathis filed an appeal with this court, enumerating as error the general grounds and seven additional alleged errors. Held:
1. Appellant first asserts the general grounds as the basis for his assignment of error to the trial court's denial of his motion for new trial (enumerations 1-3). Our examination of the trial transcript and the record indicates that the proceedings below were conducted in a correct and regular manner and that the evidence adduced was sufficient to authorize the rational trier of fact to find appellant guilty on Counts 1 through 4, and on Count 5, to find appellant guilty not of aggravated assault (assault with the intent to rape), but of simple battery as a lesser included offense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Division 7, infra. As to the weight of the evidence, the appellate court does not weigh the evidence, but considers only its sufficiency. Stewart v. State, 180 Ga.App. 266, 349 S.E.2d 18 (1986). These requirements were satisfied in the instant case, and these enumerations are without merit.
2. Our close reading of the trial transcript reveals that the trial court ruled correctly in refusing to suppress either the on-site pretrial identification of appellant as the perpetrator of the crimes charged, or the trial testimony in which appellant was identified by both victims and by other witnesses. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The sixth and seventh enumerations of error have no merit.
3. The challenged jury instruction regarding "reasonable doubt" and "moral and reasonable certainty" is a correct statement of the law and constitutes a part of the jury charge customarily given in criminal trials. See, e.g., Moore v. State, 170 Ga.App. 698, 318 S.E.2d 172 (1984). The eighth enumeration of error is patently without merit.
4. Defendant's requested jury instruction No. 3 concerns identification of the defendant as the perpetrator of the crime or crimes charged. Examination of the transcript shows that the trial court gave a full and correct charge on this subject, expressing the same substance as that requested by appellant and employing essentially the same language, but presenting it in more concise form. If the trial court gives a full and correct charge on an issue warranted by the evidence and covers the substance of what is requested, it is never error to decline to give the charge in the exact...
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...pattern jury charges for criminal trials." Reed v. State, 204 Ga.App. 272, 273(3), 419 S.E.2d 45 (1992). See also Mathis v. State, 184 Ga.App. 455(3), 361 S.E.2d 856 (1987); Moore v. State, 170 Ga.App. 698(3), 318 S.E.2d 172 3. We reject defendant's argument that the trial court erred in de......
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...187 Ga.App. 40, 44, 369 S.E.2d 487 (1988), where both charges referred to the same ultimately proved facts. In Mathis v. State, 184 Ga.App. 455, 457(7), 361 S.E.2d 856 (1987), it was the "language of the indictment ..." which governed the outcome. Unlike the Knight indictment, one count in ......
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...S.E.2d 741. Such being the situation in the case sub judice defendant's first enumeration of error is without merit. Mathis v. State, 184 Ga.App. 455, 457(4), 361 S.E.2d 856; Daniels v. State, 184 Ga.App. 689, 690(2), 362 S.E.2d JUDGMENT AFFIRMED. POPE and BENHAM, JJ., concur. ...
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Reed v. State, A92A0282
...certainty" is a correct statement of the law and is part of the pattern jury charges for criminal trials. Mathis v. State, 184 Ga.App. 455, 457(3), 361 S.E.2d 856 (1987); Moore v. State, 170 Ga.App. 698, 318 S.E.2d 172 (1984). Further, there was no assertion that the charge was harmful and ......