Woodward v. State , 262 Ga. App. 363 ( 2003 )

Andrews, Presiding Judge.

Abdullah Woodward appeals from the judgment entered after a jury found him guilty of rape and statutory rape. Woodward claims the trial court erred in admitting similar transaction evidence, in having a discussion in chambers when he was not present, and in allowing the State to introduce evidence that he used drugs and possessed a firearm. For reasons that follow, we conclude there was no reversible error and affirm.

The evidence at trial, taken in the light most favorable to the verdict, was that the victim, C. J., who was 13 at the time, walked to a recreation center on the evening in question with a friend. At some point in the evening, C. J. went to look for her friend and found her in the parking lot talking to some young men in a car. The friend insisted they get in the car so they could have a ride home. C. J. got in the car, but the men did not take the girls home. They drove instead to a house and parked. C. J. said her friend talked her into going inside. Her friend did not go inside, however, stating that she had to go out to the car for a minute. After C. J. got inside, one of the young men came up to her and said, “Your friend did exactly what we wanted her to do.” C. J. said one of the young men held her hands and one held her feet and another one, whom she identified as Woodward, raped her. C. J. said that after the rape, the men released her and left the room. She ran outside, screaming for help, and they grabbed her and brought her back inside. She said Woodward was attempting to rape her again, when the police arrived. When they heard the police, the men in the house all scattered and ran out the back door. The victim ran out when she saw the officers and told them what happened. The officers went around to the back of the house and were able to capture Woodward and one other man.

A neighbor who lived next door to the house in which the rape took place testified that he saw the car pull up in front of the house next door. He became alarmed when he saw three men and a girl go into the house, because he said the girl looked “very apprehensive about going in.” He said there was a slight struggle at the door before the men pulled her in. The neighbor said he went to get his cell phone because he was afraid something was wrong and then went back outside. He stated that after about 15 minutes, the girl came running outside, screaming. She appeared disoriented and her clothing was torn. The neighbor called 911. The neighbor identified the boys the police arrested as the ones who went into the house with the girl.

The doctor who saw the victim at the hospital testified that there was genital trauma and her physical exam was consistent with the victim’s account of what occurred.

The State introduced similar transaction evidence by way of testimony of the victim in a prior case. The victim said she was 13 at the time of the incident. She said a friend and some other young men drove her to a house in the same neighborhood as the house in which the rape in the instant case occurred. After she was inside the house, Woodward and two other men came in and she was raped by several of the men, including Woodward. She said that her aunt and her grandmother persuaded her to drop the case and it was not prosecuted.

The jury convicted Woodward of rape and statutory rape, and the counts were merged for sentencing. This appeal followed.

1. The trial court did not err in allowing the State to file its notice of intent to present evidence of similar transactions. Uniform Superior Court Rules 31.1 and 31.3 provide that the State must give written notice of its intent to introduce similar transaction evidence. The notice “shall be given and filed at least ten (10) days before trial unless the time is shortened or lengthened by the judge.” USCR 31.1. Reducing the time period for notice is a matter within the court’s discretion which will not be disturbed by this Court absent abuse of that discretion. Thaxton v. State, 260 Ga. 141, 144 (390 SE2d 841) (1990).¹

The evidence at the hearing was that the victim’s name was on the witness list and the prosecutor had discussed this evidence and put counsel on notice several months before trial of the State’s intent to introduce this evidence. Although defense counsel acknowledged that he knew about the prior occurrence before the State did and also acknowledged having conversations with the prosecutor about the similar transaction, he stated that because he never received the written notice, he did not know the State was actually going to introduce the evidence. The prosecutor responded that after all the conversations about this evidence, she could not imagine how defense counsel could have been in any doubt that she intended to introduce it because “it was made very clear that I did intend to use it.”

After hearing these arguments, the court determined that, under the circumstances, defense counsel could not claim to be “surprised” by the evidence. Defense counsel requested a recess until the following morning so he could review the file. The prosecutor did not object and offered to make the file available to defense counsel to review overnight. The court granted the request.

Woodward cites Story v. State, 196 Ga. App. 590, 591 (396 SE2d 547) (1990), as authority for his argument, but that case is not on point. In Story, no notice was ever given to defendant and this Court properly held the evidence was inadmissible. Id. Story also holds that “ ‘non-compliance with the rule puts the burden on the State to prove that its violation of the rule’s requirements did not harm the defendant. . . . [T]he State can avoid the consequences of its failure to adhere to the rule by showing that the defendant had the requisite notice in spite of the State’s failure.’ ” Id. at 591. In that case, the court concluded that merely serving the defendant with the State’s file, with no indication whatsoever that the State intended to use the evidence or that defendant knew the State intended to use the evidence, did not provide sufficient notice. Id.

That does not apply in this case. Here, the State provided the court with evidence that defendant had the requisite notice despite the late filing of the written notice. Defense counsel acknowledged that he was aware of the prior offense even before the State knew about it and that he discussed it several months before trial with the prosecutor. The prosecutor stated positively that she made clear that she intended to introduce the similar transaction.

In a similar case, the State never filed a notice of intent to introduce the similar transaction. James v. State, 209 Ga. App. 182 (433 SE2d 132) (1993). But, the State argued that it substantially complied with Rule 31.3 because appellant had sufficient notice of the evidence and the trial court ruled it admissible more than a year before trial. Id. This Court concluded that, under the circumstances, appellant had the requisite notice. Id. at 183.

Here, Woodward also had sufficient notice of the similar transaction evidence and the trial court did not abuse its discretion in shortening thé time required for filing the State’s notice of intent. See James, supra; Todd v. State, 189 Ga. App. 538 (376 SE2d 917) (1988).

2. Next, we must determine whether the court erred in not granting Woodward’s motion for continuance. “Whether to grant a motion for continuance is entirely within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion.” Greene v. State, 274 Ga. 220, 221 (3) (552 SE2d 834) (2001).

In asking for the continuance, defense counsel stated that “there are witnesses I may need to talk to.” He said there were witnesses that he “would have probably called to trial to rebut [the victim’s] testimony, but I haven’t had an opportunity to talk to those people.”

But, counsel had been on notice for five months that the State intended to call the victim because she was on the State’s list of witnesses. Moreover, Woodward did not give the court any specific information as to why the continuance was necessary. He did not specify which witnesses he needed to call and did not tell the court what he expected their testimony would show. See Manning v. State, 273 Ga. 744-745 (545 SE2d 914) (2001) (because defendant did not provide sufficient information to the trial court that explained the need for additional witnesses, court did not err in denying motion for continuance).

As the trial court correctly noted, the continuance could not be granted on the grounds that the evidence was a surprise to the defendant. Further, OCGA § 17-8-20 requires that the party applying for a continuance must show that he has used due diligence. Here, despite having known about the evidence and acknowledging that he was aware that the victim’s name was on the State’s list of witnesses, counsel chose to do nothing. The court stated, “well, when you say you haven’t had the opportunity, you’ve known about this for a considerable period of time. I mean, if you had chosen to do it, fine. The fact that you chose not to do it is no grounds for a continuance.” See Burney v. State, 244 Ga. 33, 40 (257 SE2d 543) (1979) (trial court did not abuse its discretion in refusing to grant a continuance because of absence of material witnesses where defendant was not diligent in attempting to secure their presence).

And, on appeal, Woodward does not point out any harm as a result of the denial of the continuance. The State’s only witness was the victim in the prior case. Counsel was aware that she was on the witness list, he did not request an opportunity to interview her before trial, he was able to cross-examine her at trial, and he fails to point out any additional witnesses or evidence he should have been allowed to present. See Greene, supra at 222; Johnson v. State, 255 Ga. 703, 704 (342 SE2d 312) (1986) (“Where there is no indication-that the continuance would have benefited the defendant, it cannot be said to be necessary.”); Christian v. State, 244 Ga. App. 713 (536 SE2d 600) (2000) (although State did not provide certain evidence as required and defense counsel saw this evidence for the first time on the day of trial, there was no error in denying motion for continuance because defendant could not show harm). It is the well-established rule in this State that harm as well as error must appear in order to warrant a new trial. Dill v. State, 222 Ga. 793, 794 (152 SE2d 741) (1966).

Accordingly, because the trial court is vested with wide discretion as to whether to grant a defendant’s motion for continuance and because Woodward was unable to show that he used due diligence in preparing for trial, was unable to provide specific information as to why he needed a continuance, and is unable on appeal to show any harm as a result of the court’s ruling, there was no abuse of discretion in the court’s refusal to grant a continuance.

In light of the victim’s identification of Woodward, the neighbor’s corroboration of the victim’s description of events, and the doctor’s evidence as to physical trauma, it is highly probable that even if the trial court had erred in allowing the evidence of the similar transaction, this did not contribute to the verdict. Johnson, supra.

3. Woodward also claims the trial court erred in instructing the jury when he was not present. This is a misrepresentation of what occurred at trial. Woodward cites us to no point in the transcript where the court charged the jury in his absence, and, indeed, this did not occur. It appears that, according to remarks made by defense counsel, a question from the jury was discussed in chambers and Woodward was not present. Woodward does not point to, and we do not find, anywhere in the transcript where counsel objected to Woodward’s absence from this discussion in chambers. When counsel moved for a mistrial, the court responded:

I don’t think you insisted upon that at all; and I think you approved of that procedure at the time. And I resent the fact that you are now in a sense sandbagging the court. I would also say that there wasn’t any oral communication with the jury. I would also say that the answer to the question was: in effect, no answer; and that you approved the language that was written on that note.

First, we note that Woodward’s argument in support of this enumeration consists solely of cases in which the jury was charged in defendant’s absence, and that is not what happened in this case. Accordingly, he does not support this enumeration with any pertinent argument.

Second, case law holds that a criminal defendant has a right to be present “at any stage of a criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure. As defined by our Supreme Court, a critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.” (Punctuation and footnotes omitted.) Jackson v. State, 252 Ga. App. 157, 161 (555 SE2d 835) (2001).

Here, Woodward does not point out how the case was substantially affected by his absence from the discussion in chambers and we cannot discern any harm from the record. In a recent case on point, the Supreme Court of Georgia determined that the defendant’s exclusion from a similar conference was not error. Parks v. State, 275 Ga. 320, 324 (565 SE2d 447) (2002). The court held that “there did not exist a ‘reasonably substantial relation’ between [the defendant’s] presence and his opportunity to defend against the charges against him.” Id. at 325 (3). Accordingly, this enumeration is without merit.

4. In his last enumeration, Woodward claims the trial court erred in denying his motion for mistrial after the State elicited testimony that he was using drugs and carrying a gun. The victim testified that after she was raped, Woodward and the other men went outside where they had a “plate of drugs and they [were] chopping it up and they took a razor and they put it toward their nose.” The similar transaction victim testified that Woodward had a gun when he was arrested.

This evidence was admissible. “The state may inform the jury of all the circumstances surrounding the commission of the crimes charged. Additionally, all of the circumstances surrounding an arrest are admissible for whatever value the jury wants to place on them.” Brumelow v. State, 239 Ga. App. 119, 123 (520 SE2d 776) (1999).

Judgment affirmed.

Johnson, P. J., Eldridge and Adams, JJ., concur. Blackburn, P. J., and Mikell, J., concur in the judgment only. Barnes, J., dissents.

1 In this case, the State filed its notice of intent just before trial.