Wilson v. State, A95A2848

• Decision Date: 06 March 1996
• Docket Number: No. A95A2848,A95A2848
• Citation: 469 S.E.2d 516,220 Ga.App. 487
• Parties: WILSON v. The STATE.
• Court: Georgia Court of Appeals

Page 516

469 S.E.2d 516

220 Ga.App. 487

WILSON v. The STATE.

No. A95A2848.

Court of Appeals of Georgia.

March 6, 1996.

Rape, etc. DeKalb Superior Court. Before Judge Castellani.

Devon A. Orland, Decatur, for appellant.

J. Tom Morgan, District Attorney, Desiree L.S. Peagler, Jeffrey H. Brickman, Niria Dominguez, Assistant District Attorneys, Decatur, for appellee.

RUFFIN, Judge.

A jury convicted Danny Wilson of rape, aggravated sodomy, aggravated assault, and burglary. Wilson appeals from the judgment of conviction and the denial of his motion for new trial. For reasons which follow, we affirm.

The evidence at trial showed that early on the morning of November 12, 1991, Wilson, wearing a ski mask and gloves, entered the victim's apartment as she was exiting the shower. Wilson put his hand over the victim's mouth and led her into the living room where he put tape over her eyes. Wilson then put a knife-like object to the victim's neck and proceeded to rape her. After the rape, Wilson led the victim into the bathroom where he forced her to clean her vagina using a wash cloth and douche. Wilson asked the victim if she had any money or credit cards and she responded that she did not. Wilson then put the douche, wash cloth, and tape from the victim's eyes into a bag, ordered the victim to stay in the bathroom, and left the apartment.

1. Wilson asserts that the trial court erred in failing to excuse three prospective jurors for cause.

During voir dire, Wilson's trial counsel asked the first prospective juror whether she could be impartial in light of the fact that Wilson had a prior conviction. The juror responded: "I just feel like I would lean more that he could possibly be guilty of the second." The trial judge then interposed that he would instruct the jurors on how they could consider the prior offense and asked whether the juror could follow the court's instructions. The juror responded affirmatively and further affirmed that she could be fair and impartial. Wilson argued the prospective juror should have been excused for cause because her answers indicated she could not be impartial.

The second prospective juror stated that she thought DNA evidence was "a good tool," and when asked whether she would focus on the DNA evidence to the exclusion of all other evidence, she responded, "I hope not.... I would have to hear it all." Wilson argued this prospective juror should have been excused for cause because her answer indicated she "has some kind of mindset ... for DNA or against DNA" that was so strong that she may not be able to consider the other evidence.

The third prospective juror to whom Wilson objected stated that her husband had recently undergone surgery and that she was concerned with his health and would need to arrange for someone to care for him. When asked whether she would have difficulty giving her full attention to the trial, the prospective juror reiterated that she was concerned but hoped that she could be a good juror. Wilson argued the juror should have been excused due to her hardship and apparent inability to focus on the trial.

"In order to disqualify a juror for cause, it must be established that the juror's opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause." (Citations and punctuation omitted.) Toledo v. State, 216 Ga.App. 480, 483(6), 455 S.E.2d 595 (1995). "The Supreme Court of the United States has held that '(v)oir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." [Cits.] This is so because the "determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge." ' [Cit.]" Arnold v. State, 236 Ga. 534, 538-539(6), 224 S.E.2d 386 (1976). Accordingly, absent a manifest abuse of this discretion, we cannot require a new trial. Diaz v. State, 262 Ga. 750, 752(2), 425 S.E.2d 869 (1993).

We do not find such an abuse of discretion here. Although the first prospective juror initially indicated she might be influenced by the fact that Wilson had a prior conviction, after further questioning by the court she confirmed that she could follow the court's instructions on the proper use of that evidence. Likewise, although the second prospective juror's response may have indicated that she would be persuaded by DNA evidence, she stated that she hoped she would not do so and that she would have to hear all the evidence. The foregoing responses "reflected that [their] purported bias or prejudice was not so fixed that it would not yield to the evidence and that [they] would vote in accordance with the evidence as required by law." Davis v. State, 134 Ga.App. 750, 751(1), 216 S.E.2d 348 (1975). See also Watkins v. State, 160 Ga.App. 9, 11(4), 285 S.E.2d 758 (1981) (although potential juror exhibited strong belief in integrity and credibility of police officers, response indicated she would weigh such testimony in light of all the evidence). Finally, we find nothing in the third prospective juror's responses indicating she would not be a fair and impartial juror. Although she stated she was concerned with her husband's health, there was nothing showing that she could not follow the evidence and be fair and impartial. Furthermore, the decision of whether to excuse a juror because of a potential hardship is within the discretion of the trial court. See McMichen v. State, 265 Ga. 598, 612(33)(a), 458 S.E.2d 833 (1995). Under the facts presented, we find no abuse of that discretion.

2. Wilson also asserts that the trial court erred in allowing the State to introduce evidence of his previous rape conviction and another rape committed one month prior to the rape at issue here.

(a) Wilson argues that one of the similar crimes, his 1979 conviction for rape, was too remote in time and not sufficiently similar to the rape at issue in this case.

" 'Evidence of other criminal acts of the defendant may be admitted if it is substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.... To render evidence of extrinsic offenses admissible for any of [the permitted] purposes, the (S)tate must show that the defendant was the perpetrator of the extrinsic offenses, and that there is a sufficient similarity or connection between the extrinsic offense and the offense charged, such that proof of the former tends to prove the latter.'... [Cits.]" Anderson v. State, 183 Ga.App. 669(1), 670, 359 S.E.2d 688 (1987).

" 'Although lapse of time is one of the more important factors to weigh in considering the admissibility of the evidence in question it is not wholly determinative.' [Cit.] Thus, 'lapse of time between the two (offenses does not) automatically require the exclusion of such evidence.' [Cit.] In this case we find that the 12-year lapse between the prior and present offenses does not render evidence of the prior offense inadmissible. [Cit.] In so holding, we are persuaded by the fact that [Wilson] was incarcerated for approximately [nine] of the intervening years, thus circumscribing his ability to commit similar offenses during much of the 12-year period. [Cit.]" Id. at 670-671, 359 S.E.2d 688. See also Moore v. State, 207 Ga.App. 412, 415(1)(b), 427 S.E.2d 779 (1993).

Furthermore, the use of similar crimes has been liberally extended in cases involving sex crimes. Id. at 414-415, 427 S.E.2d 779. "Where forcible sexual assaults are involved, there is at least much sociological evidence to support the conclusion that this type of deviant sexual behavior is a sufficiently isolated abnormality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent proof of the one tends to establish the other." (Citations and punctuation omitted.) Id. at 415(1)(a), 427 S.E.2d 779.

Moreover, there were numerous similarities between the 1979 rape and the one in this case. In both cases, Wilson lived near the victims, who were both young females, that were raped in their homes in the morning hours. In both cases Wilson blindfolded the victims and put a sharp object to their neck as he raped them. Accordingly, the...