Smith v. State

670 S.E.2d 191

294 Ga. App. 692

SMITH v. The STATE.

No. A08A1398.

Court of Appeals of Georgia.

November 19, 2008.

Haygood, Lynch, Harris, Melton & Watson, Jehan Yasmin El-Jourbagy, for Appellant.

Richard G. Milam, Dist. Atty., Mark Stephen Daniel, Asst. Dist. Atty., for Appellee.

PHIPPS, Judge.

Johnnie Edward Smith was charged with committing upon R.A.: kidnapping, aggravated sodomy involving his sex organs and her mouth, rape, aggravated assault with the intent to rape, and aggravated assault with a knife. A jury found him guilty of kidnapping and aggravated sodomy and not guilty of the remaining charges. Denied a new trial, Smith appeals, contending that the evidence was insufficient to sustain his kidnapping and aggravated sodomy convictions. In addition, Smith contends that the trial court erred by allowing impermissible testimony, by disallowing impeachment evidence, by failing to instruct the jury on similar transaction evidence; in instructing the jury during its final charge and on recharge; and by rejecting his claim of ineffective assistance of counsel. Smith also complains that jurors viewed him in custody and asserts that jurors had improper contact with R.A. and a victim's advocate. Because Smith has failed to demonstrate reversible error, we affirm.

The state's case showed that between 4:30 and 5:00 a.m. on Tuesday, August 19, 2003, R.A. left her home on Boxankle Road in Forsyth, Monroe County, for her approximately two-mile walk to her workplace. R.A. testified that a man she did not know and had never seen before grabbed her from behind, pressed a knife against her throat, and dragged her into a white truck. The man drove the truck down a wooded dirt road and parked in a secluded location. With the knife at R.A.'s throat, the man warned her that he would kill her if she did not do what he wanted. R.A. recalled, "He said that if he were to kill me that no one would ever find me because he had done this before and he can do it again." The man ordered R.A. to undress and perform oral sex on him; she complied. He also attempted sexual intercourse. R.A. described, "He had put me on top of him. And the steering wheel was in back of me, and he was in front of me." R.A. testified, "He had tried to go in me. And he got it in, but it wasn't working." R.A. testified that she tossed her sunglasses under the seat, hoping they would serve as evidence that she had been in the man's truck. During the episode, the man mentioned that he worked a labor job, and R.A. noted that a construction hard hat was in the truck. When the man drove R.A. back to her residence, she ran inside.

R.A.'s roommate testified that R.A. burst through the door, crying and hysterical. R.A. told her roommate what had happened, and police were summoned.

The Monroe County Sheriff's Office was dispatched at 6:36 a.m. A sheriff's office sexual assault investigator received a call at about 7:00 a.m. and went to interview R.A. He testified that she appeared to have been crying for some time. R.A. reported to him what had happened, providing details about the attacker, his truck, its contents, their route, and destination.

By 8:00 a.m., R.A. had been taken to a hospital, where she gave her medical history. The emergency room doctor testified that R.A. was emotionally wrought. His physical examination of her body revealed contusions on her back. The doctor compiled a rape kit that included swabs from R.A.'s oral, vaginal, and anal cavities. The emergency room nurse testified that R.A. was crying and shaking. She also noted abrasions and bruises on R.A.'s back. Pictures taken at the hospital of R.A.'s injuries were later shown to the jury, and R.A. testified that she did not have the injuries depicted when she left her residence for work that morning.

Within a few days, the investigator learned that a worker at a local construction site, who drove a truck like that described by R.A., had not shown up for work the Tuesday morning in question. On Friday, the investigator followed up on this lead by going to a particular restaurant at the time the possible suspect was expected to meet his foreman to pick up his earned pay. At the designated time, two men arrived at the restaurant's parking lot in a truck matching the description previously provided by R.A. The officer approached the driver, later identified as Smith; advised him that he was investigating rape allegations; and described the complainant and underlying particulars, including the alleged time and place. Smith responded, "I wasn't even in town," and handed the investigator a cash register receipt.

The investigator noted that the receipt was from a truck stop in another town, Jackson, that it was dated for that Tuesday, and that it was time-stamped at 7:00 a.m. The investigator also noted that Smith's physical appearance was consistent with characteristics of the attacker as related by R.A. A consent search of Smith's truck yielded sunglasses (later identified as R.A.'s), a knife, and a construction hard hat—all of which corresponded to various details reported to the investigator by R.A. The investigator asked Smith to come to the sheriff's office for further questioning, and Smith agreed.

A videorecording of Smith's interview at the sheriff's office was played for the jury. Smith revealed that he had been to the town of Forsyth for the first time the previous week to begin a construction job. He had driven back to his hometown in Hall County for the weekend and returned to Forsyth on Sunday for that week's work. That Tuesday morning, however, he had driven back home because the pay and job duties were not as he had been promised. Smith denied that the woman described by the investigator had been in his truck, and he denied that he had engaged in sexual activity with any woman while in Forsyth. He said he had not known of any sunglasses in the truck and claimed that the knife found belonged to the passenger who had been in his truck when he was approached by the investigator in the restaurant's parking lot.

After the interview, Smith was formally arrested. His photograph was taken. Pursuant to a warrant, his blood was drawn for DNA testing. In a subsequent photographic lineup and at trial, R.A. identified Smith as her attacker. Forensic biologists testified as state expert witnesses that the swab of R.A.'s rectal cavity contained sperm and that DNA found on that swab matched DNA from Smith's blood sample.

At trial, Smith was the only defense witness. He denied abducting R.A., assaulting her with a knife, verbally threatening her, and forcing upon her sexual activity. Smith maintained that the knife was not his, and at one point, insinuated that the search of his truck had begun before he consented to it.

Smith admitted, however, that he was with R.A. the Tuesday morning in question, claiming that she had willingly gotten into his truck and consented to their sexual activity. Smith testified that he had stated otherwise during his police interview because the kidnapping and rape allegations had frightened him.

Smith gave an account of how he had met R.A., how they had spent time together, and how she had met his nephew. He testified that he had met R.A. his first week in Forsyth. He and his nephew had traveled together from their hometown in Hall County to Forsyth for construction work; the two were lodging at the same motel on nights prior to work days. Before daybreak on that Friday, Smith was driving alone when he saw R.A. standing on the side of Boxankle Road. It was raining; he offered her a ride; she accepted; and as they rode together, they talked about their backgrounds and agreed to meet again the next week when he would return to town. Smith and his nephew left town Friday and returned together the following Sunday. As planned, early the following Monday morning, Smith picked up R.A. at the same location. After a brief stop at a Shell gas station, Smith parked a short distance away, where R.A. performed oral sex on him in exchange for money. Smith and R.A. then went to the motel, where Smith told his nephew that he would be late for work because he had to drive R.A. to her job. Smith then drove R.A. to work, before going to work himself.

The next morning, the Tuesday in question, Smith picked up R.A. at the same location and about the same time. They decided that neither would go to work that day. As they spent time together, R.A. continued to share her "life history." Smith testified that because it was foggy and R.A. "[knew] where she was going," he pulled over and allowed her to drive his truck, where after she drove off the road, parked the vehicle, told him she wanted to make some money, and then performed oral sex on him. According to Smith, R.A. had hoped to have "oral sex and sex, too," but he "couldn't perform," and after an attempt at sexual intercourse, he drove R.A. home.

Having reached R.A.'s residence, Smith paid R.A. money for the oral sex, but refused her demand for additional money for sexual intercourse. R.A. retorted, "I'll get it one way or another," got out of the truck, and slammed its door. Smith testified that he then drove to his hometown because the job duties and pay in Forsyth were not as he had been promised. When he reached his hometown of Gainesville, he called his nephew and offered to drive back to Forsyth to get him.

Smith testified that while he was being held in jail on the charges underlying this case, he wrote his nephew letters asking him to testify at trial that he had seen R.A. with him that Monday morning at the motel. The nephew did testify at Smith's trial, but as a witness for the state. The nephew confirmed that he had received Smith's letters asking him to testify that he had met R.A. But, the nephew testified, he had never met R.A. and therefore turned over Smith's letters to the state because Smith was seeking perjured testimony.

According to Smith, however, the nephew's testimony mischaracterized...