Moore v. State

• Decision Date: 20 November 2009
• Docket Number: No. A09A1047.,A09A1047.
• Citation: Moore v. State, 687 S.E.2d 259, 301 Ga. App. 220 (Ga. App. 2009)
• Parties: MOORE v. The STATE.
• Court: Georgia Court of Appeals

687 S.E.2d 259

301 Ga. App. 220

MOORE v. The STATE.

No. A09A1047.

Court of Appeals of Georgia.

November 20, 2009.

Katherine M. Mason, for appellant.

Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

ADAMS, Judge.

Chastin Moore was convicted by a jury of aggravated assault, kidnapping, aggravated sexual battery, aggravated sodomy, terroristic threats and robbery. He appeals following the denial of his motion, as amended, for new trial.

Construed to support the jury's verdict, the evidence adduced at trial showed the following: On the date of the incident, the victim in this case was headed home at about 4:00 a.m. after going out with friends for the evening. She stopped at a convenience store and while she was pumping gas, a man driving a green Chevy Tahoe,¹ subsequently identified as Moore, yelled at her through his passenger side window that "he liked what he saw." He then asked her if she wanted to get together and when she declined, offered her money. She told him she had a boyfriend and that she just wanted to go home.

The victim went inside the convenience store and paid for her gas. Moore was still there when she came out, and the victim testified that she was a little nervous he would try to follow her. However, it looked like Moore was leaving and that he was going in the opposite direction of where she was headed so the victim left the parking lot. The victim's route home was on Highway 56 through a rural area where, at that time of the morning, there was no traffic and the road was dark. After a while, the victim noticed car lights behind her and then saw that it was the same green vehicle that she had seen at the convenience store. She first tried to call a friend, and then 911 but lost the signal before she could tell them her location. She then reached her ex-mother-in-law, with whom she was living at the time, and frantically told her that she was being followed.

Meanwhile, Moore was blinking his lights at her and tapping her rear bumper. He finally came up beside her and ran her off the road. She stopped and Moore stopped his car in front of her. Moore, whom she recognized from the convenience store, approached the victim's car; when he saw she was trying to call someone, he grabbed her phone from her and threw it into the road. He then demanded money, and the victim told him she did not have any money. Moore pulled the victim out of her car and told her, "well, you're going to suck my dick or die, one." Moore then dragged the victim by her arm down into a ditch and forced his penis into her mouth. He had taken off her clothes and put his finger in her vagina while forcing her to commit oral sodomy. After he ejaculated in the victim's mouth, he walked back to her car to get her purse, telling the victim to stay where she was. But he could not find her purse, so the victim walked to the car to give it to him. He then took her purse and told the victim, who still did not have on any clothes, to leave. The victim drove home and was interviewed by police and taken to the hospital.

The victim subsequently identified Moore from a photographic lineup and at trial. The victim's clothes were also found at the crime scene. Evidence was presented that Moore's fingerprints matched prints taken from the victim's vehicle. DNA evidence obtained from swabs from the victim's mouth also implicated Moore.

Similar transaction evidence was also presented.² One witness testified that she was driving to work in the early morning hours of July 7, 2004, three days after the Burke County incident, when a car with its lights flashing came quickly up behind her. She stopped to let the car pass, and the driver stopped and told her that her back light and brake light were out. The driver offered to help her check it out but then he put his hand, which he held in the shape of a gun, inside her window, forcing her to keep it open, and told her that it was a robbery and for her to give him all her money. The witness struggled to roll up her window and the driver kept telling her to roll the window down and to open the door. The witness testified he became more and more agitated and was basically out of control by the time she was able to get the car into gear and moving. The witness left in her vehicle and the man got back in his car and pursued her until she turned into the emergency room parking lot of the hospital where she worked. The witness subsequently identified Moore from a photographic lineup as being the man who stopped and tried to rob her that night. She also identified Moore at trial.

Another similar transaction witness testified that she was driving back from her boyfriend's house in the early morning hours of July 7, 2004 when she noticed a car pull in behind her. She described the road on which she was traveling as "empty." She said the car began to tailgate her and flash its lights. The witness was very frightened and called her boyfriend and told him she was not going home yet. The driver kept following her through her neighborhood, flashing his lights, honking the horn and tailgating her. The witness left her neighborhood and the car continued to pursue her, attempting to pull around her and run her off the road. The witness put on her brakes and slammed to a stop and the car pulled in front of her, stopping so she would run into the back of him. However, the witness "hit" the gas and was able to speed around the car, although the driver took back up the chase, continuing to tailgate her with flashing lights. The witness continued driving to an area where it would be likely she would encounter other people and she pulled into a convenience store parking lot when she saw a police car there. The car that had been chasing her kept on driving. She could not identify the driver but was able to describe the vehicle as an older model dark color Chevrolet with a square front.

A third similar transaction witness, who was on active duty with the United States Army, testified that she was leaving a friend's house in the early morning hours of July 7, 2004 because she had to report for PT at 4:30 a.m. As the road she was traveling went from four lanes to two, another vehicle got behind her and then the driver started flashing his high beams. She kept driving, but the car came up beside her; the driver was waving his arms, trying to get her to pull over to the side of the road. She kept going, and the car came up again and tried to run her off the road. She slammed on her brakes and the car got in front of her and turned sideways, trying to block the road. She pulled around him and kept going. She also called 911 and was on the phone with the dispatcher when her pursuer finally caused her to lose control of her vehicle and flip several times, hitting a telephone pole. When she got out of her vehicle, she noticed he was still sitting there so she ran to a nearby house and called 911. She described the vehicle that chased her as a dark Chevy SUV and also provided a physical description of her pursuer.

Because of the 911 call that the witness made, police were dispatched to the vicinity. A vehicle matching the description the witness provided was spotted by police and a high speed chase ensued, with speeds reaching over 100 miles per hour. They came into a neighborhood and Moore jumped out of his vehicle and tried to flee on foot. Officers pursued Moore and he was apprehended.

Moore testified at trial and denied involvement in the crimes, although he admitted he tried to elude police on July 7 but said that he did so because he was recently out of prison, did not have a driver's license and had contraband in the car. Moore also presented an alibi defense through the testimony of several witnesses who testified that Moore was with them in the early morning hours on the date of the crime in this case.

1. Moore first contends that the trial judge violated OCGA § 17-8-57 by improperly commenting on the evidence, arguing in essence that the trial court showed favoritism toward the State in its presentation of the case. As examples, Moore cites to the record where the trial court suggested how certain exhibits be marked so that the jury would not be confused by having them in a "pile of ten" and that he instructed that certain items be shown to a witness so she could testify about them. The trial judge also sought to clarify the introduction of another exhibit on one occasion, "Is this the same evidence that the lady gave?" Moore also points to the fact that, after the State indicated it might need to recall a witness, the trial judge informed a witness, "You can be excused. Come back tomorrow, I guess." And Moore contends the trial court showed prejudice toward his case as demonstrated by the judge stating to his trial counsel "Tell the bailiff. I can't tell him; you tell him" and then explaining that it was not the clerk's job.³

However, OCGA § 17-8-57 does not prohibit the trial judge from taking such measures as necessary to ensure the orderly administration of the trial, and the court may even propound questions to a witness to clarify testimony when necessary in order to enforce its duty to ensure a fair trial. Simply put, we do not view the trial court's actions or remarks in this case as amounting to an expression of opinion with regard to Moore's guilt or innocence or to what had or had not been proven at trial in violation of OCGA § 17-8-57. E.g., Salazar v. State, 256 Ga.App. 50, 52(3), 567 S.E.2d 706 (2002).

Additionally, Moore contends that the trial court's charge to the jury on similar transaction evidence impermissibly commented on the evidence. Although the trial judge first referred to the "perpetrator of the crime" he quickly corrected it to state "alleged crime charged in this case now on trial"; likewise when, during the same charge, he referred to the "perpetrator," of the crime charged in this case, he immediately corrected himself to...