Easter v. State

322 Ga.App. 183

744 S.E.2d 374

EASTER

v.The STATE.

No. A13A0024.

Court of Appeals of Georgia.

June 12, 2013.

Harry H. Harkins, Jr., Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Christopher Michael Quinn, Asst. Dist. Atty., for appellee.

RAY, Judge.

After a jury trial, Mark Easter was convicted of rape, kidnapping, false imprisonment and impersonating a police officer. He appeals the denial of his motion for new trial, asserting the following enumerations of error: (1) the trial court erred in denying his motion to produce the victim's psychiatric records; (2) the trial court erred in denying his motion to exclude; (3) the trial court erred in denying his motion for a mistrial and a curative instruction; (4) the trial court erred in restricting his general voir dire questions; and (5) the trial court erred in denying his motion for a continuance. Easter additionally argues that the prosecutor's closing statement improperly shifted the burden of proof onto the defendant. Because each of these enumerations lacks merit, we affirm Easter's convictions.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the trial evidence shows that on March 7, 1999, the victim, a 17-year-old female, hopped a turnstile at a MARTA station to catch a train. Easter approached the victim. He identified himself as an undercover MARTA policeman, showed her his badge, told her she was under arrest, and placed her in handcuffs. Easter then picked up the MARTA service phone and gave a code to give the appearance that he was a MARTA officer.

Easter forced the handcuffed victim to leave the MARTA station with him, informing her that they were going to the police station. Easter then took the victim to an abandoned apartment; he told the victim that “he had a friend that was a pimp, and if [she] worked for the friend that he would not arrest [her].” The victim refused. Easter then informed her that he had a gun, pepper spray, and a knife, and that he wanted to have sex with her. The victim said that she did not want to have sex with him, but that she would not fight back because she was afraid that he would hurt her. Easter raped the victim.

Easter then dressed and walked with the victim to a telephone at a hotel in the city. The victim testified that she did not call out for help because she was still handcuffed under her coat and was afraid that Easter would hurt her. After making the call, Easter forced the victim to walk down the street where they were picked up by a taxicab driven by Easter's friend. Easter and his friend drove her to an apartment on Buford Highway where they introduced her to a third man, who informed the victim that he would meet her that weekend. The taxi driver then drove them to another apartment where she was released from her handcuffs. Once inside, Easter instructed the victim to take a shower. He then sprayed her with cologne and forced her to have sex with the taxi driver.

After about two hours, Easter forced the victim back into the taxi and drove to the first apartment complex on Buford Highway. Easter knocked on the door, and no one answered. Easter then forced the victim into the apartment's laundry room and raped her again. The victim testified that Easter used a condom both times he raped her.

Easter then drove the victim to an Office Max store and began to xerox fliers for a business called “Massage World.” Easter told the victim that he was making the flyers because he had a prostitution business and that he was a pimp. As Easter walked the victim back from the restroom, the victim noticed an Office Max employee and signaled “911” to her using her fingers behind her back. The victim then mouthed “please” to the employee. The employee then mouthed back “are you okay?” to the victim, who shook her head no. The employee then mouthed “It's going to be okay.” A policeman entered the store as Easter went to the front desk of the store. Easter put his bag down and then ran out the back door of the store.

The police took the victim to the hospital, where a rape kit was performed. The treating physician noted in her report that the victim had bruising around both wrists that would have been consistent with being placed in handcuffs and noted redness and irritation to the victim's vaginal area.

The rape kit was then tested by the GBI crime lab. Spermatozoa was located in the rape kit, and a DNA comparison matched the spermatozoa to Easter's DNA.

1. In his first enumeration of error, Easter contends that the trial court erred when it refused to grant his motion for disclosure of the psychiatric history of the victim under Bobo v. State, 256 Ga. 357, 349 S.E.2d 690 (1986). Easter claims that he was entitled to the victim's psychiatric records because he did not deny having sex with the victim; thus, the case against him rested upon the victim's credibility. Easter argues that “[h]ad he been able to further attack her credibility with materials gleaned from mental health records, the outcome might have been very different.” We are unpersuaded.

In Bobo, our Supreme Court held, in a plurality opinion, that a witness' statutory psychiatrist-patient privilege must yield to the defendant's constitutional right of confrontation if the defendant makes a “showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him.” Id. at 360(4), 349 S.E.2d 690. Our Supreme Court noted that the psychiatrist-patient privilege “prohibits the defendant from engaging in a ‘fishing expedition’ regarding a witness' consultations with a psychiatrist. Therefore, a defendant may not explore such evidence unless he makes allegations sufficient establish a prima facie need for its discovery.” Id.¹ At the motions hearing and in his appellate brief, Easter points to no evidence indicating that the victim's psychological records are necessary to his defense. Rather, Easter merely speculates that the records might show that the victim's “story was different than what we expect her to testify at trial, and any other information that may go to her credibility.” Easter has not shown that the victim's mental condition or treatment was relevant to, or affected the credibility of, her allegations. In the absence of such evidence, Easter has failed to demonstrate the required necessity to obtain the victim's psychiatric history. See Atkins v. State, 243 Ga.App. 489, 496–497(3), 533 S.E.2d 152 (2000).

2. Easter alleges that the trial court erred when it allowed the State to admit into evidence the contents of the bag Easter left behind when he fled the Office Max store. Specifically, Easter objects to the admission of condoms and “Massage World” flyers found inside the bag.

“Admission of evidence is a matter which rests largely within the sound discretion of the trial judge, and if the evidence has a tendency to establish a fact in issue, that is sufficient to make it relevant and admissible.” (Citations and punctuation omitted.) Davidson v. State, 231 Ga.App. 605, 608(3), 499 S.E.2d 697 (1998).

Easter relies upon Simpson v. State, 271 Ga. 772, 523 S.E.2d 320 (1999) for the assertion that

evidence of sexual paraphernalia found in defendant's possession is inadmissible unless it shows defendant's lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material ... can only be admitted if it can be linked to the crime charged.

Id. at 774(1), 523 S.E.2d 320. Easter argues that “the mere possession of condoms” and flyers for a massage business have “nothing to do with rape.” However, this argument is unavailing, as the items from the bag admitted at trial corroborate the victim's testimony. The victim testified that Easter used a condom both times he raped her; that Easter had the black bag with him; that on several occasions, he had told her that he was a pimp; and that he had told her that the “Massage World” flyers were for his prostitution business. Further, when Easter was arrested, he had a business card in his pocket for “Massage World.” See Miller v. State, 219 Ga.App. 213, 217(3), 464 S.E.2d 621 (1995). The trial court did not err when it allowed the contents of the bag into evidence.

3. Easter asserts that the trial court erred when it refused to grant a mistrial or give a curative instruction based upon the testimony of Detective James Beavers. Detective Beavers spoke with the victim shortly after she was rescued at the Office Max. He testified at trial that the victim looked “very tired. Her eyes were red as if she had been crying. She had on her clothing some red or orange substance that could have been pepper spray.” Without citing to any legal authority, Easter contends that Detective Beavers' passing reference to the potential for the presence of pepper spray on the victim's clothing was cause for a mistrial because there had been no evidence presented at trial that the victim had been sprayed with pepper spray.

“Whether to grant a motion for mistrial is within the trial court's sound discretion, and the trial court's exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant's right to a fair trial.” (Footnote omitted.) Ottis v. State, 271 Ga. 200, 201(3), 517 S.E.2d 525 (1999). See Smith v. State, 288 Ga. 348, 350(3), 703 S.E.2d 629 (2010) (mistrial should be granted only where “essential to the preservation of the defendant's right to a fair trial”) (citation and punctuation omitted).

In this case, we find no prejudice and no abuse of discretion. At trial, the victim testified that Easter told her that he had pepper spray and that he had threatened to spray her with pepper spray if she tried to run or if she looked at anyone else. However, there was no testimony...