Watson v. State, 30257
| Decision Date | 28 October 1975 |
| Docket Number | No. 30257,30257 |
| Citation | 235 Ga. 461,219 S.E.2d 763 |
| Parties | Jackie Lamar WATSON v. The STATE. |
| Court | Georgia Supreme Court |
Sams & Glover, A. Harris Adams, Marietta, for appellant.
George W. Darden, Dist. Atty., Richard L. Moore, Asst. Dist. Atty., Marietta, for appellee.
The appellant is a 38-year-old man who was convicted of rape and kidnapping and received two concurrent 15-year sentences in Cobb Superior Court. We have reviewed the enumerations of error and find no basis for reversal of the trial court's judgment.
The facts of the case may be briefly summarized as follows: The prosecutrix, a 14-year old girl, was babysitting at appellant's home for appellant's wife. The appellant came home around 8 o'clock P.M. with food and soft drinks for all the children and for the prosecutrix. Shortly thereafter, appellant tried to put his arms around the victim and she repulsed him. Later, with permission from the mother of the prosecutrix, appellant took the children and the prosecutrix to see Christmas decorations. The prosecutrix testified there was a partially empty bottle of Vodka in the car. When they returned to appellant's apartment, appellant told the prosecutrix to go into the bedroom. The prosecutrix testified that after drinking the soft drink appellant had given her, throughout the evening she became progressively more dizzy and that she went to lie down. While she was in this dizzy state, appellant approached her and began to rape her. She blacked out and remembers nothing until she was awakened by her mother in appellant's car in the early morning hours, miles away from the apartment. The prosecutrix also testified that she had not voluntarily consumed any alcoholic beverages.
Appellant's version of what happened that evening is different. He testified that the prosecutrix began to drink beer in his apartment and that as she became drunk she teased and enticed him. He claims that he did not give her anything to drink. In order to protect the prosecutrix from her mother who he felt would be angry with the girl, he decided to drive her to his relatives' home several miles away. On the way there, the prosecutrix enticed appellant to stop the car and voluntarily had intercourse with him. They then drove to the relatives' home. Since the prosecutrix was asleep in the back seat, he left her in the car and someone alerted her mother to her whereabouts. The mother found the girl in appellant's car. She appeared to be sick and dizzy and was taken to the hospital by her mother. The hospital physician testified that the prosecutrix was in a state of mental shock; that there was a strong smell of alcoholic beverages on her breath; and, that she had recently had intercourse.
The prosecutrix testified that because of her mother's poor health and heart condition she made no complaint of the alleged rape to the police until 40 days after the incident occurred when she told a police officer who was investigating the kidnapping charge. However, the day after the incident, she confided to a young girl friend the details of the alleged rape.
1. Appellant's first enumerations of error deal with the general grounds. There is clearly sufficient evidence to support the convictions and these enumerations are without merit.
2. The next two enumerations of error assert that the trial court erred in allowing the young girl friend of the prosecutrix to testify about particulars of the conversation that she had with the prosecutrix the day after the rape and that the trial court also erred in allowing the police investigator to testify that the prosecutrix told him about the rape and that the defendant was the one who committed the act.
' The rule is well settled that, in a prosecution for rape, the fact of the woman's having made complaint soon after the assault took place is admissible in evidence for the purpose of rebutting the idea that the female consented to the criminal act, and it is equally well settled that the particulars of her complaint cannot be given in evidence (citing cases).' Hooks v. State, 215 Ga. 869(8), 114 S.E.2d 6 (1960); Lowe v. State, 97 Ga. 792, 25 S.E. 676 (1895). The fact that a complaint is made is not hearsay, but the particulars of the complaint are hearsay. However, when the statements of the victim are so nearly connected in time with the act as to be free from all suspicion of device or of afterthought, they are admissible as part of the res gestae, an exception to the hearsay rule. Code Ann. § 38-305.
In this case, contrary to the contention of the state, the particulars of prosecutrix' statements to her girl friend and the officer were too remote in time to be part of the res gestae. See Creswell v. State, 61 Ga.App. 828, 7 S.E.2d 788 (1940). The question then arises whether this testimony was otherwise properly admitted.
Delay in reporting an alleged rape is one circumstance that the jury must consider in determining the credibility of the prosecutrix. That delay may be explained, however, with the decision on credibility left to the jury. See Bennett v. State, 102 Ga. 656, 29 S.E. 918 (1897); see also, Wilkie v. State, 159 Ga. 559, 126 S.E. 383 (1924). In this case, there was evidence that the prosecutrix's mother was ill and had experienced heart trouble. The police investigator testified that the prosecutrix was unwilling to discuss the attack in the presence of her mother and that she only related the details to him after the mother was asked to leave the room.
The only 'particular' that the officer testified to which would have been hearsay was the naming of the defendant as the perpetrator. This could not have been harmful error in this case because the identity of the defendant was not in question. Where the defendant admitted having had intercourse with the prosecutrix but claimed it was consensual, it was not harmful error to allow another to testify that the victim named defendant as the perpetrator in making her complaint. See Thomas v. State, 144 Ga. 298, 87 S.E. 8 (1915). For this reason, this enumeration is without merit.
A similar question, but with a slight nuance, arises in the case of the girl friend's testimony. She testified about the details of the story that the prosecutrix told her. Clearly, testifying about the details of the story is beyond testifying that the prosecutrix made a prompt complaint. The particulars of this testimony then are inadmissible as hearsay under Hooks and Lowe, supra. However, the trial court in its charge to the jury limited the use of this testimony to whether a complaint was made and whether any delay in making a complaint was explained. The trial court then discussed the general question of credibility. In our opinion, this cured any possible error which could arise from the admission of the hearsay.
3. The appellant also enumerates as error the trial court's charge to the effect that if the jury found the prosecutrix had been rendered insensible by intoxicating beverages the jury could additionally find that she was incapable of consent to the intercourse. The argument presented is that this charge was not authorized by the evidence. We believe the evidence authorized this charge and this enumeration of error is without merit. See, Evans v. State, 67 Ga.App. 631, 21 S.E.2d 336 (1942).
4. An acquaintance of the defendant testified the defendant tried to induce this acquaintance to testify that he previously had consensual intercourse with the prosecutrix and with her mother and that the mother was receiving stolen property. Appellant wrote several letters to this acquaintance asking him to make such statements...
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