Williams v. State

Decision Date18 March 1986
Docket NumberNo. 71507,71507
Citation178 Ga.App. 581,344 S.E.2d 247
PartiesWILLIAMS v. The STATE.
CourtGeorgia Court of Appeals

Alden W. Snead, Lawrenceville, for appellant.

Robert E. Wilson, Dist. Atty., Barbara B. Conroy, John H. Petrey, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

The defendant was charged under a multi-count indictment by the DeKalb County Grand Jury for the following offenses: Count 1, rape; Count 2, robbery; Count 3, burglary (all occurring on October 4, 1984, involving the same victim); Count 4, rape; Count 5, kidnapping with bodily harm (injury); Count 6, aggravated sodomy; Count 7, robbery; Count 8, burglary (all occurring on November 2, 1984, involving a different victim from Counts 1, 2 and 3); and, Count 9, rape (occurring on December 30, 1984, and involving a different victim). Pursuant to a motion for severance filed by the defendant, the trial court severed Count 9 from the indictment. From May 20, 1985, through May 25, 1985, the defendant was tried for the crimes charged in Counts 1 through 8 of the indictment. The evidence adduced at trial, construed most favorably to support the verdict, showed the following: On November 2, 1984, at around 4:00 in the afternoon, the victim in Counts 4, 5, 6, 7 and 8, was at home alone when she heard something outside her door. The victim then heard the doorbell ring and when she opened the door a young man, later identified by the victim as the defendant, was standing outside. He asked whether her husband was home and referred to her husband by his correct name. When she answered "no," the defendant pushed in the door, jumped into the apartment and said, "This is a stickup." The victim started to scream, and the defendant, who had her by the arm, said, "If you scream, I'll cut you." The defendant then asked the victim for money. She told him that she did not have any. He then asked, "Do you have any gold?" She answered, "no." The defendant then said, "Well, I'll have some of you then." The defendant held the victim and each time she tried to move, he hit her in the face. He tried to push her into the bedroom to get her purse, and when she resisted he hit her in the jaw so hard that she fell down on the floor. He then removed her pants and panties and pulled down his own pants, got on top of her and raped her. He hit her in the face again and started to have "oral sex" with the victim. She told him that her husband would be home any minute and he jumped up and said, "Where's your purse?" She pointed to it in a room across the hall and he told her to go get it with him. The defendant then dragged the victim into the bedroom. He went through her jewelry box on the dresser and took her high school graduation ring, a pearl necklace and some other jewelry. He then put his pants back on and picked up her purse. The victim asked the defendant if they could go into the living room, and he agreed. After they entered the living room, the defendant began going through her purse. He became angry when he saw that there was no money in the purse and threw it on the floor. The defendant then pushed the victim onto the arm of the couch and started having "oral sex" with her again. When he was done, the defendant got up and asked her if she was going to call the police. She said no. The defendant asked her where the telephone was, and when she said that they didn't have one, he called her a liar. The defendant said, "Well, I'm going to leave now. I'll be right outside the door, so don't move. Don't do anything." After the defendant left, the victim put her pants on and waited about ten minutes until her husband came home. She told her husband what had happened and they got into the car and went to the police station. The victim told the police what happened and gave them a description of the defendant. The defendant had left a Falcons' cap in the apartment and the victim's husband gave the cap to the police. The police then took the victim to Grady Hospital to be examined.

That evening, Investigator C.E. Thacker of the DeKalb County Police Department showed the victim a photographic lineup which included a photograph of the defendant that was several years old. She tentatively identified the defendant. On January 17, 1985, at the police station, the victim viewed a physical lineup which included the defendant. At that time, she was able to positively identify the defendant as the man who raped her.

The State then introduced the following evidence concerning the rape, robbery and burglary charges in Counts 1, 2 and 3. During the early morning hours of October 4, 1984, a young man, later identified by this victim as the defendant, broke into her apartment. The man called her by a variation of her given name and told her that he was there to take her valuables. After having victim get her purse for him, he made her dump the contents of the purse out on the floor. He told her if she made any noise or cried out he would hurt her children who were asleep in the apartment. He then raped the victim. Next, the man rummaged around in the dresser and took her engagement ring. He told her that he knew where she worked and that if she called the police he would hurt her children. The man then left, taking the victim's engagement ring, a washcloth, and the bedsheet.

The evidence as to the description of the assailant that the victim in Counts 1, 2 and 3 gave to the police was inconsistent. On direct examination, she testified that the man who attacked her did not wear glasses. On cross-examination, she testified that her assailant may have been wearing glasses, but she wasn't certain. Investigator H.P. Brown of the DeKalb County Police Department testified that the victim told him that the man wore eyeglasses.

The State introduced the following evidence of a similar crime committed by the defendant: This victim testified that during the afternoon of May 11, 1983, at about 5:30 or 6:00, the defendant jumped into her car while she was stopped at a red light at the intersection of Glendale and North Decatur. The victim had her six-month-old son with her. After the defendant "jerked open the door," he put a flat edged razor to her son's throat and told her to start driving. The defendant made her drive around for about 1 1/2 hours. While the victim was driving, the defendant was holding the razor to the baby's neck. The defendant told this victim to drive into the gymnasium of a school that had garage type doors. While parked inside the gymnasium, the defendant took fifteen dollars and some change from the victim's purse. The defendant then "threw" the baby into the back seat of the car. When the baby started crying, the defendant told the victim "that if [she] didn't shut [him] up, he would shut him up permanently." The defendant then performed oral sex on the victim and forced her to perform oral sodomy on him. The defendant then told her that he was going to rape her. He said that she could "do it in the front seat of the car or ... do it on the concrete where [they] were parked inside the gymnasium." The victim pleaded to the defendant, asking him not to rape her. The defendant threatened her and she said, "Okay, I'll do anything, but just don't hurt me or my son." She told the defendant that "if [she] had to, [she] would rather go outside the car, because [she] didn't want to do that in front of [her] child." The victim got out of the car and the defendant raped her on the floor of the gymnasium. Afterwards, the defendant escorted the victim back to the car, and told her to stay there and not to move. The defendant then fled on foot.

From the foregoing and other evidence adduced at trial, the jury returned a verdict of not guilty as to Counts 1, 2 and 3 and guilty as to Counts 4, 5, 6, 7 and 8. The defendant filed a motion for new trial on June 19, 1985. This motion was denied and the defendant appeals. Held:

1. In his first enumeration of error the defendant contends that the trial court erred by refusing to sever Counts 1, 2 and 3. The defendant argues that he was entitled to a severance because the incident relating to Counts 4, 5, 6, 7 and 8, and the incident relating to Counts 1, 2 and 3 were dissimilar. "Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. Dingler v. State, 233 Ga. 462, 211 SE2d 752. However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court. '(I)f there is a valid reason for joinder other than similarity of offense, then severance of offenses becomes discretionary with the trial court.' Davis v. State, 159 Ga.App. 356(1), 283 S.E.2d 286. '(W)here the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined--subject to the right of the defendant to a severance in the interests of justice. (Cits.).' Id. at 357." Mack v. State, 163 Ga.App. 778(1), 779, 296 S.E.2d 115.

"[W]e find that the court did not abuse its discretion in denying severance as 'the crimes charged were so similar as to evidence a common plan or scheme and revealed [a similar] modus operandi.' Davis v. State, 158 Ga.App. 549(1), 550, 281 S.E.2d 305." Mack v. State, 163 Ga.App. 778(1), 779, 296 S.E.2d 115, supra. See Gober v. State, 247 Ga. 652(1), 278 S.E.2d 386; Williams v. State, 251 Ga. 749, 804, 312 S.E.2d 40.

Further, since the defendant was acquitted of the charges in Counts 1, 2 and 3 and since he has shown no harm or prejudice which might have been avoided by severing the trials, any questions concerning the trial court's failure to grant the defendant's motion to sever are moot. Brown v. State, 173 Ga.App. 640, 641, 327 S.E.2d 515.

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