Rogers v. State

Citation247 Ga. App. 219,543 S.E.2d 81
Decision Date28 November 2000
Docket Number No. A00A2230-A00A2232.
CourtUnited States Court of Appeals (Georgia)
PartiesROGERS v. The STATE. Montalvo v. The State. Bettencourt v. The State.


Brian Steel, Atlanta, L. Allyn Stockton, Jr., for appellant (case no. 00A2230).

Kenneth D. Kondritzer, for appellant (case no. 00A2231).

Douglas L. Henry, for appellant (case no. 00A2232).

Michael H. Crawford, District Attorney, Robert D. Cullifer, Assistant District Attorney, for appellee. ELDRIDGE, Judge.

Jay Shannon Rogers, Stephen Allen Montalvo, and Paul Bettencourt were charged with the offenses of armed robbery (Count 1) and kidnapping (Count 2). Bettencourt was also charged with the offense of aggravated sodomy (Count 3). Following a jury trial, the jury found all three defendants guilty of armed robbery; Montalvo and Bettencourt guilty of kidnapping, Rogers not guilty of kidnapping; and Bettencourt guilty of aggravated sodomy. Defendants appeal from the denials of their respective motions for new trial. Because these appeals arise from the same trial, we consolidate them. We find no error and affirm.

The three defendants and the victim knew one another prior to the events which gave rise to this appeal. The victim considered Montalvo a friend, and the victim, Rogers, and Bettencourt had been roommates for a period of time. On March 28, 1999, at around 8:00 p.m., the victim was leaving work at McDonald's and walking toward the Genesis Gym in Rabun County. Bettencourt, who was driving a pick-up truck, pulled in front of the victim and stopped. Montalvo was a passenger in the truck. Bettencourt exited the truck and talked with the victim in a friendly manner for one to two minutes, but suddenly pulled a shotgun from the truck and forced the victim inside. With the victim thus secured, Bettencourt and passenger Montalvo picked up Rogers at his home, and proceeded to "Stonewall."

At Stonewall the victim was forced to give up his wallet at gunpoint. All three defendants held the gun at some point. Rogers and Bettencourt started to force the victim to commit oral sodomy on Rogers, but released him after the victim begged them to stop. Rogers hit the victim in the back of the head.

The victim was forced back in the truck at gunpoint, and they left Stonewall. They stopped for gas, and, while Rogers and Montalvo pumped and paid for the gas, Bettencourt held the victim in the truck at knifepoint. After leaving the gas station, Bettencourt dropped Rogers off at his house. Bettencourt stopped the truck down the road from Rogers' house, asked Montalvo to hand him some rope, and tied up the victim. When the victim asked Montalvo what was happening, Montalvo replied, "[T]his is between you and Bettencourt." After dropping Montalvo off at his house, Bettencourt drove up Screamer Road, stopped the truck, and attempted to force the victim to perform oral sodomy on him. When the victim resisted, Bettencourt put a plastic bag on the victim's head. After the victim tore a hole in the bag, Bettencourt forced the victim at knife-point to perform oral sodomy on him and to allow him to perform oral sodomy on the victim. Bettencourt then drove the victim back into town, stopped near the post office, untied the victim, and let him out of the truck.

Case No. A00A2230

1. Rogers claims that juror Barnett was not a resident of Rabun County and, therefore, was not qualified to be a competent juror. We disagree.

When the defendants' case was called for trial, the venire panel was sworn and all jurors were asked to state where they lived, where they worked, if they were married, and where their spouses worked. In response to these questions, juror Barnett stated that he lived on Betty's Creek Road, Rabun Gap; worked for the Department of Natural Resources; and traveled all over the state. No further inquiry was made during voir dire concerning Barnett's residence. Barnett was selected as a deliberating petit juror and was the foreperson of the jury. During voir dire, defendants' counsel could have questioned Barnett further about his residency, but elected not to do so. "A juror incompetent propter defectum is made specially competent by the act of the parties in allowing him to serve without challenge, and a verdict will not be set aside for such cause." (Citations and punctuation omitted.) Vaughn v. State, 173 Ga.App. 716, 718, 327 S.E.2d 747 ( 1985); Parris v. State, 125 Ga. 777(1), 54 S.E. 751 (1906). Further, under the testimony given at the motion for new trial hearing,1 we find no error in the trial court's finding that Barnett was domiciled in Rabun County at the time of the trial.

2. Rogers alleges that the State failed to prove beyond a reasonable doubt that the alleged crime occurred in Rabun County. We disagree. The victim testified that the events set forth in our statement of facts occurred in Rabun County. Such testimony is sufficient to prove venue. OCGA § 24-4-8 (testimony of a single witness sufficient to establish a fact).

3. Rogers contends that the trial court erred in failing to charge on the law of circumstantial evidence, even though the defense did not make a request for such charge. Rogers argues that such charge is mandated because the only direct evidence that he committed the offense of armed robbery came from the victim's testimony, which was impeached by witnesses for the defense who testified that the alleged victim had made prior inconsistent statements and that the victim's reputation in the community was one of dishonesty. We disagree. This issue was decided adversely to Rogers in Carter v. State, 240 Ga.App. 203, 523 S.E.2d 47 (1999).

When the State's case includes both direct and circumstantial evidence, a defendant is not relieved from the necessity of requesting a charge on circumstantial evidence. In the absence of a request to charge on circumstantial evidence, it is not error to fail to give it. Yarn v. State, 265 Ga. 787(1), 462 S.E.2d 359 (1995).

Whether [the victim's] testimony was impeached was a jury question, and even if the jury determined that he had been impeached, his credibility was a matter for that jury. Chapman v. State, 263 Ga. 393, 394-395(3), 435 S.E.2d 202 (1993). As stated in Chapman, "the impeachment of a witness does not change the direct evidence given by that witness into circumstantial evidence." Id. at 395(3), 435 S.E.2d 202.

Carter v. State, supra at 206, 523 S.E.2d 47.

Regardless of whether the victim's testimony was impeached, because there was direct evidence of Rogers' guilt, and there was no request made by the defense for a charge on circumstantial evidence, the trial court did not err in refusing to give a charge on this issue.

4. Rogers alleges that the trial court erred in failing to charge the jury, without request, on the lesser included offense of simple robbery.

"A charge on a lesser included offense is waived in the absence of a written request." Pearson v. State, 216 Ga.App. 333, 334, 454 S.E.2d 205 (1995). Rogers asserts that the charge should have been given even absent a request because simple robbery was his sole defense. Rogers argues that even though the victim testified that his money was taken at gunpoint, he denied possessing a weapon and admitted only that he used his hands to take the money in his statement to police.

"A trial court must charge the jury on a defendant's sole defense, even without a written request, if the circumstances support the charge. Tarvestad v. State, 261 Ga. 605, 606, 409 S.E.2d 513 [(1991)]." Green v. State, 240 Ga.App. 774, 779, 525 S.E.2d 154 (1999) (McMurray, P.J., dissenting). Assuming, without deciding, that a lesser included offense is a "sole defense" as used in Tarvestad, contrary to Rogers' assertion, there was no evidence to support a jury charge on simple robbery. The victim testified that while they were at "Stonewall" all three defendants at some point held the gun on him. Initially, Montalvo held the gun on him while Rogers and Bettencourt talked. Then Montalvo passed the gun to Rogers, and Montalvo and Bettencourt began to ask the victim how much his life was worth. Montalvo then gave the gun to Bettencourt who walked behind the victim and pointed the gun at his head and told him to get down on his knees. After the victim was allowed to stand back up, Rogers took the victim's money and, then, hit him on the head.

Officer Cary Thomas was called to the stand by the State and testified to the statements given by all three defendants. While Officer Thomas testified that Rogers denied holding the gun, he also testified that Rogers stated there was a shotgun there that night, which would make him a party to the crime of armed robbery. Rogers and his co-defendants did not testify. Therefore, neither the evidence presented by the State nor the evidence presented by the defense reasonably raised the issue that Rogers may have been guilty of simple robbery.

5. In four separate enumerations of error, Rogers asserts that the prosecutor made improper comments and arguments during closing argument. However, he did not object below, and therefore, he did not invoke a ruling by the trial court.

An objection to improper closing argument must be voiced when the alleged impropriety occurs at trial in order that the trial court may take remedial action, if necessary. Todd v. State, 261 Ga. 766(2)(a), 410 S.E.2d 725 (1991). In the case at bar, appellant did not interpose an objection to the assistant district attorney's argument. Such failure to act has been held to constitute a waiver of the right to raise the issue on appeal (Wyatt v. State, 267 Ga. 860(2)(a), 485 S.E.2d 470 (1997); Miller v. State, 267 Ga. 92(2), 475 S.E.2d 610 (1996)); in other cases, the failure to object to improper closing argument has resulted in a review of the questioned argument to determine if there is a "reasonable probability" that, but for

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