Jones v. The State (Two Cases)., 159 Ga. App. 634, 284 S.E.2d 651 (1981)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 61922

Parts: CARLEY, Judge.

Linked as:

Summary

Judgments affirmed. Deen, P. J., and Banke, J., concur.

Summary

Judgments affirmed. Deen, P. J., and Banke, J., concur.

Text

Gene Reeves, Jack T. Elrod, for appellant.

Appellant was tried on two separate indictments which were consolidated for trial. In Case Number 61922 appellant was convicted of rape, kidnapping and aggravated sodomy as charged in one indictment. In Case Number 61923 he was convicted of attempted rape as charged under the second indictment. Appellant appeals from the convictions under both indictments, filing the identical enumeration of errors in both cases. Accordingly, the two appeals are consolidated for review.

1. Apparently at the same time that appellant was indicted for the charges which are the subject of the instant appeals, he was also indicted on yet another charge of rape. He was brought to trial on this third indictment before being tried on the instant two. In the trial on this third indictment, the two victims of the crimes for which appellant was subsequently convicted in the instant cases testified concerning appellant's sexual attack upon them. Their testimony was apparently admitted in the earlier trial under the "similar crimes" exception to the "other transactions" rule. Appellant was acquitted of the rape charged in the third indictment.

At the outset of the instant trial on the remaining two indictments, appellant invoked a ruling by the trial court on the admissibility of evidence concerning his former acquittal of the charges in the third indictment. The trial court ruled that the previous trial concerned a "separate transaction" and that the fact that appellant was acquitted of the charges therein would be irrelevant unless the state first sought to introduce into the instant trial evidence concerning the circumstances connected with that "separate transaction." See Rivers v. State, 147 Ga. App. 19 (1) (248 SE2d 31) (1978). Thus, the trial court ruled that if the state introduced evidence purporting to show that appellant had committed another separate act of rape, appellant would be entitled to show that he had been indicted, tried and acquitted of such an offense, for only then would his prior acquittal of the separate crime be "relevant" in the instant trial.

The instant trial proceeded under this ruling and the state did in fact introduce evidence concerning appellant's commission of the rape for which he had been acquitted in the former trial. This was accomplished when the state called as its witness the prosecutrix in the previous trial who then testified that appellant had raped her. The trial court instructed the jury of the limited purpose for which this testimony was being admitted and that appellant was on trial for and could be convicted of only the offenses set forth in the indictments in the instant case. See Taylor v. State, 219 Ga. 509 (134 SE2d 8) (1963). And, in accordance with the trial court's previous ruling, appellant was afforded the opportunity to demonstrate to the jury that he had been acquitted of the charge of raping the witness.

Appellant urges that the trial court's original ruling, delimiting the circumstances in which evidence concerning his previous acquittal would be admissible in the instant trial, was erroneous. In several related enumerations appellant also asserts that subsequent rulings by the trial court concerning the admissibility or in-admissibility of such evidence constitute the erroneous effectuations of its original ruling on the issue. We find no error in the trial court's original or subsequent rulings on the admissibility of evidence concerning appellant's prior acquittal.

"The general character of the parties, and especially their conduct in other transactions, are irrelevant matter, unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct." Code Ann 38-202. "Proof of other crimes is never admissible (except in cases where the defendant has himself put his character in issue) where its chief or only probative value consists in showing that the defendant is, by reason of his bad character (demonstrated through a criminal career), more likely to have committed the crime than he otherwise would have been. To admit such evidence, it must have relevancy and probative value from some other point of view." Lee v. State, 143 Ga. App. 632, 634 (4) (239 SE2d 395) (1977). Nor was appellant precluded from impeaching any witness' testimony should it have been contrary to that given at an earlier time. Evidence concerning appellant's commission of "other" separate but similar acts and his acquittal of any criminal charges arising therefrom was properly raised in the instant trial. See Perry v. State, 158 Ga. App. 349, 352 (2) (280 SE2d 390) (1981). "The fact that the jury trying the case in which [the 'other' transactions] were under investigation decided that there was not enough proved in that case to show beyond a reasonable doubt that the defendant acted criminally in that transaction, according to the manner and form in which he was then indicted, does not rob the facts attendant on that transaction of their inherent probative value . . ." Lee v. State, 122 Ga. App. 553, 554 (3) (177 SE2d 838) (1970). Furthermore, the record demonstrates that appellant's counsel did not object or move for a mistrial upon the trial court's alleged judicial expression or intimation of opinions. Kapplin v. Seiden, 109 Ga. App. 586 (3) (137 SE2d 55) (1964).

3. It was not error to overrule the appellant's motion for mistrial predicated upon the state's allegedly prejudicial closing argument. Bryan v. State, 137 Ga. App. 169, 174 (7) (223 SE2d 219) (1976).

4. Remaining enumerations of error are found to be meritless or to have been abandoned.

W. Bryant Huff, District Attorney, Johnny H. Moore, Assistant District Attorney, for appellee.