Thomas v. State, 70404
Decision Date | 04 September 1985 |
Docket Number | No. 70404,70404 |
Parties | THOMAS v. The STATE. |
Court | Georgia Court of Appeals |
Jack V. Dorsey, Decatur, for appellant.
Robert E. Wilson, Dist. Atty., James E. Richter, Barbara B. Conroy, Asst. Dist. Attys., for appellee.
Appellant was convicted of aggravated assault and burglary. He appeals.
Evidence was adduced at trial to establish that appellant made an unauthorized entry into the apartment of Ms. Linda Wright while she was at home. Appellant grabbed Ms. Wright and threatened her with a knife. As she struggled with him, appellant choked her by twisting her shirt around her neck. He stabbed her with the knife and pulled her through a window of the apartment. They continued to struggle, and appellant eventually fled. Ms. Wright subsequently identified appellant's picture in a photographic lineup, and she unequivocally identified him at trial as the man who had attacked her. Her testimony was buttressed by that of other witnesses.
1. Evidence was admitted over objection of a separate and independent attack upon Karla Larkin. Ms. Larkin testified that she was in the bedroom of her apartment when she was grabbed from the rear by a man with big arms. They struggled, and the man squeezed her neck and shoulders until she became unconscious. When she regained consciousness, a cloth belt which had been on the floor of the bedroom was tied around her wrist. Ms. Larkin was unable positively to identify her attacker, since he was behind her during the incident. However, another woman who lived nearby testified that she saw appellant walking up the sidewalk toward Ms. Larkin's apartment approximately an hour and a half prior to the attack. Although this witness identified appellant's picture in a photographic lineup and positively identified him at a preliminary hearing and at trial, she stated that she did not recall that the person she saw prior to the attack on Ms. Larkin had facial hair. Appellant apparently did have facial hair at the time in question.
In order for evidence of an independent crime to be admissible, the State must show not only that the other crime was similar to the offense charged, but also that the defendant committed the other crime. See Gladson v. State, 253 Ga. 489, 492, 322 S.E.2d 45 (1984). Appellant does not contend that the attack on Ms. Larkin was dissimilar to the attack on Ms. Wright, who was the victim in the instant case. However, he maintains that evidence of the attack on Ms. Larkin was erroneously admitted because he was not adequately identified as the perpetrator of that offense.
Williams v. State, 251 Ga. 749, 784, 312 S.E.2d 40 (1983). Applying that principle to the case at bar, we find that appellant was sufficiently identified as Ms. Larkin's attacker so as to render evidence of that crime admissible. Despite the inconsistency with regard to appellant's facial hair, the witness testified that she was "ninety per cent sure" of her identification of appellant from the photographic lineup, and she was unequivocal in her identification of him in court on two occasions. Evidence of the attack upon Ms. Larkin was properly admitted. Williams v. State, supra; Baldwin v. State, 169 Ga.App. 775, 776, 315 S.E.2d 289 (1984).
2. Appellant further enumerates as error the admission into evidence of the cloth belt used in the Larkin attack. However, we have held that testimony regarding that independent crime was admissible, and real evidence with regard thereto was likewise properly admitted. Cf. Oliver v. State, 168 Ga.App. 477(3), 309 S.E.2d 627 (1983); Powell v. State, 171 Ga.App. 876, 881(3), 321 S.E.2d 745 (1984).
3. Also enumerated as error is the admission over objection of evidence of two other incidents involving appellant. This evidence was expressly introduced for the limited purpose of illustrating appellant's bent of mind, motive, plan, scheme, or course of conduct, or as tending to establish his identity.
The first of the transactions in issue involved Elizabeth Hicks, who lived in the same apartment complex as did Ms. Wright, the victim herein. Ms. Hicks arrived home from work shortly after midnight on the same evening upon which Ms. Wright had been attacked just prior to 11:00 p.m. Appellant approached Ms. Hicks in the parking lot and asked her for a ride. She declined, and appellant made the same request several more times. As Ms. Hicks walked away, appellant called her a white bitch and asked her why all white people were like that.
The second transaction occurred at the apartment complex immediately adjacent to the one where Ms. Wright lived. Appellant approached Susan Ross in the laundry room of the complex and asked whether she would like to get to know a black gentleman. Although Ms. Ross rebuffed appellant, he persisted in his efforts to "pick her up." However, when Ms. Ross asked appellant to let her leave the laundry room, he did so.
Appellant contends that evidence of these two incidents was improperly admitted because they were not sufficiently similar to the crimes for which he was being tried, and because they reflected unfavorably upon his character. However, there is no contention that the laundry room confrontation with Ms. Ross involved any crime, and evidence of that occurrence was relevant and admissible to show appellant's bent of mind. Walker v. State, 156 Ga.App. 842, 843(1(b)), 275 S.E.2d 755 (1980). Furthermore, even if appellant's conduct toward Ms. Hicks could somehow be characterized as criminal, that evidence was also relevant and admissible to establish appellant's bent of mind, and its probative value outweighed any possible prejudice to appellant. See Oliver v. State, supra. Powell v. State, supra 171 Ga.App. at 881-882, 321 S.E.2d 745. There was no error in the admission of the evidence.
4. The trial court correctly instructed the jury concerning the limited purpose for which the foregoing "other transactions" evidence was introduced. See Gladson v. State, supra 253 Ga. at 492, 322 S.E.2d 45; Cooper v. State, 173 Ga.App. 254, 256(3) (325 S.E.2d 877) (1985); Morris v. State, 228 Ga. 39, 53(24), 184 S.E.2d 82 (1971).
5. Appellant enumerates as error the failure of the trial court, without request, to charge the jury on his sole defense of alibi.
Rivers v. State, 250 Ga. 288, 300, 298 S.E.2d 10 (1982). See also Brown v. State, 251 Ga. 598, 601(5), 308 S.E.2d 182 (1983); Jones v. State, 171 Ga.App. 184, 188(6(b)), 319 S.E.2d 18 (1984); Johnson v. State, 174 Ga.App. 751, 330 S.E.2d 925 (1985).
6. Appellant asserts that the trial court erred in charging the jury with regard to incriminating statements. He contends that no such statements were in evidence.
After his arrest, appellant gave an oral statement which was apparently transcribed by law enforcement officials. Appellant testified at trial that the statement was reasonably complete, and that it accurately reflected the information he had provided the police. However, the prior statement conflicted with appellant's trial testimony with regard to the timing of his visit with an acquaintance, which factor was crucial to his alibi defense. Additionally, certain other details which were significant to appellant's theory of defense were included in his trial testimony, but not in his earlier statement to the police. Both the statement and appellant's testimony conflicted with the testimony of other witnesses.
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