Harris v. the State

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

September 23, 2014

In the Court of Appeals of Georgia
A14A1357. HARRIS v. THE STATE.

BARNES, Presiding Judge.

Following a jury trial in 2006, Marvis Harris was convicted of one count each

of rape and kidnapping. He filed a motion for new trial, which was denied by the trial

court.1 On appeal, Harris argues that the trial court applied the wrong standard and

refused to exercise its discretion when concluding that the defense opened the door

to character evidence and, consequently, erred by admitting evidence of Harris’s prior

convictions. He further argues that the trial court erred by admitting certain testimony

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The reason for the exceptional delay between Harris’s trial and the denial of
his motion for new trial is unexplained by the record. Although he was appointed new
counsel and filed a timely motion for new trial following his conviction, Harris
subsequently filed a pro se motion for new trial in December 2008. The trial court
issued an order denying Harris’s pro se motion in January 2009. In August 2010,
Harris’s counsel filed a motion to vacate Harris’s pro se motion, and in April 2011,
the trial court issued an order vacating the prior order denying his motion for new
trial. Harris’s counsel thereafter filed an amended motion for new trial, which was
denied in January 2013, and that denial order forms the basis of this appeal.
from the State’s expert that he alleges was nonresponsive and improperly bolstered

the victim’s testimony. We find no error and affirm.

On appeal from a criminal conviction, we construe the evidence in the light

most favorable to the verdict, and the defendant no longer enjoys the presumption of

innocence. See Knight v. State, 251 Ga. App. 145 (553 SE2d 670) (2001). We neither

weigh the evidence nor assess witness credibility, both of which lie exclusively

within the province of the jury. See Bell v. State, 311 Ga. App. 289 (715 SE2d 684)

(2011).

So viewed, the evidence adduced at trial showed that in April 1995, Harris and

his cousin had driven from Birmingham to Atlanta in order to attend “Freaknik,” an

annual African-American college weekend event. The 19-year-old victim had also

attended the event and, after exiting the MARTA train to return home, discovered that

the last bus had departed the station. She was preparing to walk home when she

encountered Harris, who was the passenger in his cousin’s vehicle.

Harris exited the vehicle and approached the victim in a flirtatious manner

before grabbing her arm and pulling her into the car. Once inside, Harris repeatedly

told her that there was a gun in the glove compartment. Harris then had sexual

intercourse with the victim in the front seat of the vehicle while his cousin drove. The

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men then switched positions and Harris’s cousin also had sexual intercourse with her.

Throughout the ordeal, the victim was crying and pleading to go home.

When the assaults were over and the vehicle was stopped at a traffic light, the

victim ran out of the car to the vehicle immediately behind it and begged the driver

to “Let me in. Let me in. [I’ve] just been raped.” The driver, who happened to be a

former schoolmate of the victim, observed that she was crying hysterically, her

clothes were disheveled, and she appeared to be “running for her life.” Expressing

shame and fear that the perpetrators would discover where she lived, the victim asked

that she not be taken home. The driver therefore drove the victim around for several

hours before taking her to his own house and allowing her to rest.

The following morning, the driver took the victim home and she relayed to her

mother that she had been raped by two men. Her mother immediately called the police

and the victim was taken to the hospital, where a rape kit was performed and cervical

swabs were taken in order to preserve any biological evidence. A DNA profile was

subsequently created from those cervical swabs and was entered into the Georgia

Bureau of Investigation’s (“GBI”) DNA database.

In August 2005, the GBI received notification of a possible match between the

DNA sample taken from the victim and that of Harris. The GBI alerted the Atlanta

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Police Department and during the ensuing investigation, the victim gave a second

statement consistent with that given at the time of the crime. Harris was also

interviewed and admitted that he and his cousin picked up the victim at the MARTA

station on the night in question and both had sexual intercourse with her in the front

seat of the vehicle while the other drove, although he denied any mention of a weapon

and claimed the sex was consensual.

Harris was subsequently arrested and charged with rape2 and kidnapping.3

During the trial, the jury heard testimony from the victim, the former schoolmate into

whose car she ran, the investigator who interviewed her at the time of the crime, and

the investigator who interviewed both her and Harris in 2005 after the DNA match

was discovered. Additionally, the victim’s mother testified that after the incident, the

victim became isolated and withdrawn, cried continuously, and cut off her hair in an

effort to appear unattractive to men. And finally, the State presented an expert in the

psychology of rape who had not interviewed the victim, but who testified in general

2
See OCGA § 16-6-1 (a) (1) (“A person commits the offense of rape when he
has carnal knowledge of . . . [a] female forcibly and against her will.”).
3
See OCGA § 16-5-40 (a) (“A person commits the offense of kidnapping when
such person abducts or steals away another person without lawful authority or warrant
and holds such other person against his or her will.”).

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about certain patterns of behavior frequently exhibited by rape victims and stated that

it is not uncommon for such victims to be reticent about reporting the crime to family

or to law enforcement.

Harris’s cousin testified for the defense. Like Harris, he claimed that the men

picked up the victim from the MARTA station and alternated driving and having

consensual sexual intercourse with her. In the course of a rather long-winded and

nonresponsive answer to a question from Harris’s counsel, the cousin stated that he

and Harris were “probably the nicest people [at Freaknik].” No objection or motion

to strike the statement was made, nor was the judge asked to direct the witness to

limit his answers to the questions asked.

During cross-examination of the cousin, the State moved to admit Harris’s

prior convictions to rebut evidence of Harris’s good character and/or to impeach the

cousin’s statement that Harris was one of “the nicest people” at Freaknik. The defense

strenuously objected to their admission. The trial court overruled the objection and

admitted Harris’s criminal history on the ground that the defense opened the door to

character evidence through the cousin’s testimony. The State then introduced

evidence of Harris’s three prior robbery convictions and prior conviction for

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possession of marijuana by asking Harris’s cousin whether his opinion of Harris

would change had he been aware of them.

The jury convicted Harris on both counts and the trial court ultimately denied

his motion for new trial. This appeal follows.

1. Harris argues that the trial court failed to apply the proper standard and

refused to exercise its discretion when the court allowed the State to introduce

Harris’s prior convictions. Specifically, he contends that, although the statement by

Harris’s cousin did constitute character evidence, the defense did not intentionally

place Harris’s character at issue and, therefore, the trial court erred in holding that the

door had been opened to allow the State to tender bad character evidence. We

disagree.

As a general rule, bad character evidence of a criminal defendant is irrelevant

and inadmissible. See OCGA § 24-2-2 (1996) (“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.”).4 But, “the defendant may open the door to bad

4
OCGA § 24-2-2 was repealed with the adoption of the new evidence code,
effective January 1, 2013. See Ga. L. 2011, Act 52, § 2. The admission of character
evidence is now governed by OCGA § 24-4-404.

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character evidence if he intentionally elects to put his character at issue, and a witness

may be impeached by disproving the facts to which [he] testifies.” (Footnotes

omitted.) Arnold v. State, 305 Ga. App. 45, 51(4) (699 SE2d 77) (2010); Redman v.

State, 281 Ga. App. 605, 606 (2) (636 SE2d 680) (2006) (holding that the defense

witness’s testimony of defendant’s good character “opened the door for the State to

introduce all evidence bearing on his character, including convictions of crimes,

guilty and nolo contendere pleas, juvenile offenses, and incidents which illustrate the

defendant’s character) (punctuation omitted); Porter v. State, 243 Ga. App. 498, 502

(3) (532 SE2d 407) (2000) (“Once a defendant opens the door for character evidence,

specific events may be used in testing the extent and foundation of the witness’s

knowledge and the correctness of his testimony on direct examination.”) (punctuation

omitted). An inadvertent or nonresponsive answer by a witness that invokes the

defendant’s good character, however, does not automatically “put his character [at]

issue” so as to open the door to character evidence. (Punctuation omitted.) Jones v.

State, 257 Ga. 753, 758 (1) (363 SE2d 529) (1988). Significantly, “[w]hether a

statement making reference to the defendant’s good character is merely inadvertent

or manifests a conscious election is a question of fact, determined primarily upon the

trial court’s assessment of the intent of the accused and his counsel.” (Punctuation

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omitted.) Hill v. State, 243 Ga. App. 124, 127 (3) (532 SE2d 491) (2000). We afford

great deference to the trial court’s rulings in this regard. See id.; Arnold, 305 Ga. App.

at 51 (4) (“Whether the defendant has intentionally opened the character door is a

matter for the trial court to determine, and the trial court’s evidentiary decisions will

not be disturbed on appeal absent an abuse of discretion.”) (punctuation and footnotes

omitted).

Here, although counsel’s question to Harris’s cousin may not have been

specifically aimed at eliciting character evidence, it was, as admitted by counsel, part

of his trial strategy to allow the witness to give lengthy and nonresponsive answers

to his questioning. Indeed, throughout the cousin’s testimony, he routinely gave long,

nonresponsive answers—sometimes a single answer spanning over multiple

pages—and at no time did counsel object or request that the witness confine his

answers to the question asked. It is for this reason that the trial court expressly held

that

if [the defense] strategy is to let [the witness] talk and talk, and he says
something that you don’t like, even though its being nonresponsive and
you can object to it being nonresponsive, it is what it is. There is nothing
I can do. You have to take the good with the bad.

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 We disagree with Harris that the trial court refused to assess counsel’s intent

or abdicated its responsibility to exercise discretion in holding that the defense

opened the door to character evidence. To the contrary, the trial court concluded, in

its discretion, that counsel’s conscious decision not to object or redirect the

nonresponsive witness once a reference to Harris’s character was made created an

inference that counsel intended to inject character evidence into the trial and thus

triggered the State’s right to explore and impeach that testimony. Under these

circumstances, we cannot say that the trial court erred by holding that in doing so,

Harris opened the door to evidence of Harris’s prior convictions. See Franklin v.

State, 251 Ga. 77, 80 (2) (303 SE2d 22) (1983) (holding that in the absence of an

objection or motion to strike, a witness’s statement that defendant was “all right”

opened the door to character evidence); Merritt v. State, 288 Ga. App. 89, 100 (3)

(653 SE2d 368) (2007) (affirming trial court’s holding that defendant opened the door

to character evidence by testifying as to his feeling of remorse). Compare Lindsey v.

State, 282 Ga. 447, 449-50 (2) (651 SE2d 66) (2007) (defendant’s statement that he

was “not violent” when testifying that he had never been convicted of a felony or any

crime of violence was an “inadvertent statement of his good character” and did not

open the door evidence of his two dozen misdemeanor arrests); Stinson v. State, 221

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Ga. App. 758, 758-59 (1) (472 SE2d 538) (1996) (defendant’s single, nonresponsive

answer that he did not “convert . . . to a criminal life” did not open the door to

evidence of his prior arrests).

2. Harris next argues that the trial court erred in admitting testimony from the

State’s expert witness that he asserts bolstered the victim’s testimony. Again, we

disagree.

During voir dire questioning from Harris’s counsel, the witness confirmed that

she had not reviewed the record in this case, had not interviewed the victim, and had

“no idea” whether the sexual intercourse between Harris and the victim was

consensual; she was being offered to answer questions with respect to generalized

patterns of behaviors that rape victims may exhibit. Counsel nonetheless asked the

witness several questions related to individuals who make false rape accusations, and

the witness explained that she was not charged with investigating the veracity of a

person’s report—a task left to the police—and that she had never knowingly received

a fabricated allegation of rape. Pushing the issue, counsel asked, “So[,] someone

comes in, tells you something, you’re on board; right?” The witness responded,

“Correct. Nationally, statistics show that less [than] 1 percent of people falsely report

rape.”

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 Counsel objected to the statement on the ground that it was nonresponsive,

irrelevant, and the witness had not yet been tendered as an expert. Before the trial

court ruled on that objection, however, counsel immediately launched into a lengthy

objection to the qualification of the witness as an expert on the basis that the

prejudicial effect of her testimony outweighed its probative value and, further, that

her testimony was irrelevant and immaterial in that it would not assist the jury in

determining Harris’s guilt or innocence. The trial court overruled the objection and

qualified the witness as an expert in the psychology of rape.

Harris argues that the trial court erred in admitting the expert witness’s

statement of statistical evidence and, further, that her testimony improperly bolstered

the victim’s credibility and invaded the province of the jury. But Harris’s counsel

failed to invoke a ruling from the trial court as to his specific objection to the

witness’s statement, elicited by him during voir dire, regarding fabricated reports of

rape. And to the extent his objection to the testimony could be read to have included

improper bolstering or invading the province of the jury, we have held that “an expert

witness may testify as to the existence of certain typical patterns of behavior exhibited

by victims of rape, as long as the jury was permitted to draw for itself the final

conclusion as to whether the victim in the case at hand was raped, as was the case

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here.” (Punctuation omitted.) Harris v. State, 283 Ga. App. 374, 381 (4) (a) (641

SE2d 619) (2007); see also Edmonson v. State, 212 Ga. App. 449, 450-51 (1) (442

SE2d 300) (1994), overruled in part on other grounds, Curtis v. State, 275 Ga. 576,

578 (1) (571 SE2d 376) (2002). The expert here admitted that she had not met or

interviewed the victim and could offer no opinion as to whether the sexual intercourse

involved was voluntary. It follows that the trial court’s admission of this testimony

was not erroneous and does not afford Harris a new trial.

Judgment affirmed. Boggs and Branch, JJ. concur.

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