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Reid v. State

Court of Appeals of Georgia, Second Division

June 7, 2017


          DOYLE, C. J., MILLER, P. J., and REESE, J.

          Reese, Judge.

         A Fulton County jury found Eddie Reid guilty beyond a reasonable doubt of rape, aggravated sodomy, kidnapping, false imprisonment, aggravated assault, and possession of a firearm during the commission of a felony.[1] He appeals from the denial of his motion for new trial, contending, inter alia, that the trial court abused its discretion in admitting certain evidence, that the judge improperly commented on the evidence, that the jury instruction contained errors, that the oath was not properly given to some of the witnesses, and that he received ineffective assistance of counsel. For the reasons that follow, infra, we affirm.

          Viewed in the light most favorable to the jury's verdict, [2] the evidence shows the following facts. Around 11:00 p.m. on May 28, 2010, a 27-year-old woman left her brother's home in Atlanta and started walking home along Jonesboro Road. A car pulled up and stopped along the road, and the driver, whom she did not know, asked her if she needed a ride. She got into the car and, as they traveled, she gave the driver directions, eventually asking him to make a right turn. The driver did not turn, but drove onto the expressway instead. The woman (hereinafter, "the victim") started yelling at him and asking him what he was doing. The driver, whom the victim later identified as Reid, said something about "pimping, " took her phone and purse, and told her to put her head down. The victim could not see where they were going and was frightened, and she repeatedly asked him to let her go. Reid kept telling her, "Bitch, shut the f up." The victim would have tried to get out of the car, but the passenger-side door handle was missing.

         Reid took the victim to an abandoned house, but, before he let her out of the car, he got something out of the trunk. When he opened the passenger-side door, she got out and tried to run, but he caught her and choked her, telling her that he would kill her right there. She saw that he had a 9 millimeter handgun, and she started screaming for help. Reid told her to shut up, accusing her of trying to send him to prison, and he dragged her into the house. Once inside, he took her through the house and appeared to be looking for some place to put the victim, while she begged him to let her go. Still holding the handgun, Reid took the victim upstairs, forced her to perform oral sex on him, and then raped her. When he was finished, Reid made her take off her clothes, shutting her inside a room while he went downstairs and made a phone call. He returned and tied her hands behind her back with stereo wire and duct tape, then used a shirt to hog-tie her hands and feet. Reid went downstairs, and the victim thought he had left the house. She moved around until she freed her legs from the restraints. However, Reid came back into the room, told her he was going to kill her, and tried to throw her out an upstairs window. When that failed, he took her downstairs and threw her through a window that was about eight feet above the ground, shattering the glass and seriously wounding the victim. The victim heard Reid say something like, "I killed that b***h, " before he left in his car.

         The victim got up and ran to a neighbor's house, screaming that she had been kidnapped and raped and kicking the door because her hands were still tied behind her back. She begged the neighbor to let her in. The neighbor saw the victim on his front stairs through a window, and saw that she was naked, bleeding severely, and had her hands tied behind her back. Although he did not let her in, he told his grandmother to call 911 while he kept an eye on the victim.

         A few minutes later, Reid returned in his car, jumped out and ran toward the victim with his gun drawn, and told her that he was going to kill her. He grabbed her, slammed her against the neighbor's door, dragged her by her hair through the yard, hit her repeatedly, and threw her into his car, hitting her face against the car in the process. He drove away before police officers arrived, and, as he drove, he started crying, saying that he had kids and that he should not have done it. He took the victim to a hotel, where they stayed until the next morning, when the victim convinced him that she needed to go to the hospital. Reid dropped off the victim at a hospital emergency room and told her that he was going to come back and get her. The victim told the hospital staff what had happened to her, and a staff member called the police.

         An Atlanta police officer arrived at the hospital and spoke with the victim before calling the Special Victims Unit of the police department. According to the detective who interviewed the victim at the hospital, the victim had deep cuts all over her body, she was in pain and appeared to be in shock, and she was crying and scared. While speaking with the detective, the victim received some texts from Reid on her cell phone. After reading the texts, the detective had another officer trace the phone number. After confirming that the number belonged to Reid, the officer compiled a photographic array of six pictures, one of which was Reid's. The detective showed the victim the photos, and the victim picked out Reid's picture and identified him as her assailant. The detective took pictures of the victim's injuries, then transported her to police headquarters, where the detective interviewed the victim again before obtaining warrants for Reid's arrest.

         In the meantime, at 1:47 a.m. that morning, Atlanta police officers were dispatched in response to the neighbor's 911 call and spoke with the neighbor. The officers observed blood on the neighbor's porch and stairs and drag marks across the yard, where they also found braids that looked as if they had been pulled from someone's head. The house next door had a broken window with the blinds pushed outside the window and shattered glass and a screen on the ground. There was blood on the windowsill and the screen. Fearing that there might be someone in danger inside the house, the officers broke through the front door and went into the house. Upstairs, the officers found blood on the floor and women's clothing and underwear.

         On June 1, 2010, officers with the Atlanta Police Department's Fugitive Squad arrested Reid pursuant to several warrants arising from the instant offenses. After transporting Reid back to the public safety headquarters, investigators with the Special Victims Unit conducted a custodial interview of Reid.[3] Reid told investigators that, while driving on the night at issue, he picked up the victim, whom he did not know, at random from the side of the road with the intention of forcing her to become a prostitute. He took the victim to a house, showed her his handgun, and took her inside the house. Reid admitted that the victim was "upset" and "scared." Inside the house, he had sex with her. Reid admitted to the investigators that he did not think she would have had sex with him if he had not had the handgun. Reid tied the victim's hands with speaker wire, then he left the house. According to Reid, when he came back, he saw the victim walking down the sidewalk, naked, trying to "get away." He tried to "convince" her to get into his car, but, when she refused, he grabbed her hair and pulled her into the car against her will. Reid admitted that he punched the victim, that she was screaming and physically resisting him, that he knew she was afraid and did not want to leave with him, that he knew what he was doing was wrong, and that he was very "sorry that he had to do that to her." Reid also told the investigators that a "pimp" and drug dealer named "Mike" had forced him to pick up the victim so that "Mike" could make her a prostitute. Reid claimed that "Mike" had control over him and had threatened to kill him and his family.

         The evidence also showed that, when officers arrested Reid, they impounded a car that was registered to him and was parked at the house where he was apprehended. The detective in charge of the case obtained a search warrant for the car, and the officer who conducted the search found a handgun, blood residue, speaker wire, pliers, and a shirt with blood on it. They also observed that the inside, passenger-side door handle was missing.

         The State indicted Reid for rape, aggravated sodomy, kidnapping, false imprisonment, armed robbery, aggravated battery, three counts of aggravated assault, and possession of a firearm during the commission of a felony. At trial, Reid testified in his own defense, telling the jury that, as he was driving on the night at issue, the victim waved him down and asked him for a ride. The victim directed him to a house and went inside while he waited in the car. According to Reid, two men drove up and forced him at gunpoint to go into the house and to lie on the floor. A man inside the house, who was named "Mike, " took Reid's wallet, found out Reid's address, and threatened to kill his family. Reid testified that he and "Mike" got into his car and drove to his (Reid's) house, leaving the victim behind. "Mike" took Reid's phone, warned him not to call the police, and then left with the other men in a separate car. Reid told the jury that "Mike" had framed him for the crimes against the victim.

         During cross-examination, however, Reid admitted that, during his custodial interview, he had not told the investigators about being accosted by the two men. Reid also admitted that he had told the investigators that he had taken the victim to an abandoned house; that she saw his handgun; that he had sex with her; that he tied her hands with speaker wire; that he bound her feet with a shirt; that, after he returned to the house, he grabbed her and pulled her by her hair; that he had his gun when he forced her into his car; and that, throughout most of this encounter, she was naked, afraid, panicking, and screaming. Even so, he specifically denied that he raped the victim, threw her out of the window, hit her with his gun, dragged her through the yard, or threw her into his car.

         The jury found Reid guilty of rape, aggravated sodomy, kidnapping, false imprisonment, aggravated assault, and possession of a firearm during the commission of a felony. Following the court's denial of his motion for new trial, he appeals.

         1. Reid contends that the trial court abused its discretion in allowing the State to introduce evidence of "improper matters" during the trial. This Court reviews a trial court's ruling on the admission of evidence under an abuse of discretion standard.[4]

         (a) Reid challenges the admission of a statement by the victim that he characterizes as a statement about his potential "future dangerousness." The trial transcript shows that, when the prosecutor asked the victim why she reported the assault to the police, she responded, "Because I felt like if he did it to me, he'll do it to somebody else." Defense counsel objected on the basis that the prosecutor's question was "improper, " and the court overruled the objection. However, Reid did not object to the evidence at issue (the victim's answer) on the basis that it constituted inadmissible "future dangerousness" evidence.

         "Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court."[5]

         Reid argues that, even though his counsel did not raise this specific objection at trial, the admission of this evidence may be reviewed for "plain error" on appeal under OCGA § 24-1-103 (d). However, the General Assembly enacted that provision as part of the new Evidence Code, which does not apply in this case, because Reid's trial was conducted in April 2011.[6] And, under the former Evidence Code, evidentiary rulings are not subject to appellate review in the absence of a timely objection at trial.[7]

         Consequently, because Reid's counsel did not object to the victim's answer on the basis that it constituted inadmissible "future dangerousness" evidence, [8] this alleged error is waived.[9]

         (b) Reid contends that the State improperly presented a "victim impact statement" when it elicited the victim's testimony about how her life had changed since her assault. Reid did not object to the testimony, [10] however, so this claim of error is not preserved for appellate review.[11]

         (c) Reid contends that the trial court abused its discretion in admitting bad character evidence, specifically, an officer's reference to him as a "violent felon, " in violation of former OCGA §§ 24-2-2 and 24-9-20 (b).[12] He argues that the statement was false, irrelevant, and prejudicial.

         The trial transcript shows that an officer with the Fugitive Squad of both the Atlanta Police Department and the Federal Bureau of Investigation testified that, on June 1, 2010, three days after the victim was assaulted, his squad was tasked with apprehending Reid pursuant to several arrest warrants. As the officer explained, "It's common procedure for the fugitive unit . . . to be assigned cases where violent felons have . . . outstanding warrants[ ] for their apprehension." Reid did not object to this testimony at trial, but the record shows that he filed a motion in limine to exclude bad character evidence. Although the trial court's order on this motion is not in the appellate record, [13] we find that the motion has preserved this issue for our review.[14]

          Pretermitting whether the officer's general reference to "violent felons" appeared to label Reid, specifically, as a "violent felon, " the overwhelming evidence presented prior to the officer's testimony showed that Reid had, in fact, committed several extremely violent felonies against the victim and that, as a result, investigators had obtained multiple felony warrants for his arrest. And, shortly before making the statement at issue, the same officer testified that, as a detective with the Fugitive Task Force, "my primary responsibility is apprehending people that are wanted for violent crimes." Moreover, there was no evidence that there were any other outstanding felony warrants for Reid for offenses arising from a separate, unrelated incident, nor was there any evidence that he had previously been convicted of other violent crimes. Therefore, based upon the evidence presented, the only reasonable inference the jury could have made from the term "violent felons" was that it referred to Reid's commission of the instant crimes.

         We conclude that, when read in context, the reference to "violent felons" was not false, irrelevant, or unfairly prejudicial to Reid, and the trial court did not abuse its discretion in allowing the testimony.[15]

         2. Reid contends that the trial court abused its discretion in allowing the State to present "victim impact" evidence when the State failed to provide advance notice of its intent to present such evidence and failed to get the court's permission. Because Reid failed to object on this basis before or during the trial, this alleged error is waived.[16]

          3. Reid contends that a witness for the State improperly commented on his right to remain silent. We disagree.

         The trial transcript shows that, when the prosecutor asked the arresting officer if Reid was given his Miranda[17] warnings at the time of his arrest, the officer responded, "Not by me, but I also didn't ask him any questions or anything like that." The prosecutor then asked him, "Did he speak to you?" The officer responded "Not about the case. We might have had a brief conversation like, you know . . ." Defense counsel objected, stating, "This is improper, " and the court sustained the objection. But, when counsel added that he wanted to make a motion, the court told him, "No. you can make it later." After the State rested its case-in-chief, Reid's counsel moved for a mistrial on the basis that the officer's testimony impermissibly commented on his right to remain silent. The court denied it, and counsel did not ask for a curative instruction.

[A]n improper comment on the defendant's silence does not necessarily require a reversal. The grant or denial of a mistrial is within the trial court's sound discretion, and the appellate court will not interfere with the trial court's exercise of that discretion unless it is clear that a mistrial was essential to preserve the right to a fair trial. Furthermore, testimony about the defendant remaining silent is not deemed to be prejudicial if it is made during a narrative on the part of the authorities of a course of events and apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant. Indeed, to warrant a reversal of a defendant's conviction, the evidence of the election to remain silent must point directly at the substance of the defendant's defense or otherwise substantially prejudice the defendant in the eyes of the jury.[18]

         In this case, the statement at issue was elicited while the officer was describing the circumstances surrounding Reid's arrest, the officer affirmatively stated that he had not asked Reid any questions, the comment did not point directly at the substance of Reid's defense, [19] and the comment could not reasonably be interpreted as commenting on Reid's guilt or innocence. And, although the trial court did not give a curative instruction after sustaining the objection, Reid cannot assert on appeal that the "court erred in failing to take any additional, unrequested curative actions."[20]

          Under these circumstances, we find that the court did not abuse its discretion in denying Reid's motion for a mistrial.[21]

         4. Reid argues that the trial court improperly invited a hearsay objection to his testimony about his coercion defense. According to Reid, this made it appear that the court was advising the prosecutor, was biased in favor of the State, and was commenting on Reid's credibility.

         As shown in the recitation of facts, supra, while testifying at trial, Reid gave a lengthy, uninterrupted narrative about his interaction with the victim, the man who had allegedly threatened him ("Mike"), and the two other men who he claimed accosted him on the night at issue. Reid repeatedly testified, without objection, about what the men said to him and to each other, [22] but then started testifying about what he heard "Mike" say to the victim. The court interrupted, asking, "Is there an objection to hearsay?" The prosecutor responded with a hearsay objection, and the court told Reid, "Don't tell us what anybody else said." Reid then testified that "Mike" took information about where he lived and then threatened him. Although the State objected to the hearsay, the court allowed it because the evidence was relevant to Reid's claim of coercion.

         Later, during jury instructions, the court gave the following charge: "By no ruling or comment that the court has made during the progress of the trial has the court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant."

         Former OCGA § 17-8-57[23] provided, in part, as follows: "It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused." However,

[t]he trial judge is more than a mere moderator of a debate, he is a minister of justice, whose duty it is to govern the progress of the trial and, where possible, to prevent introduction of redundant or inadmissible matters. Because of the trial court's broad discretion in regulating and controlling the business of the court, the reviewing court should never interfere with the exercise of that discretion unless it is made to appear that wrong or oppression has resulted from its abuse, or the court in some manner takes away the rights the parties have under the law.[24]

         Here, the trial judge did not express or intimate his opinion as to Reid's guilt or what had or had not been proven, nor did he demean or admonish Reid or his counsel or suggest any bias toward the State. Further, Reid was not prevented from testifying about what the men purportedly said to him, explaining how their statements and actions affected him, and otherwise presenting his defenses.[25] Under these circumstances, we find no error.

         5. Reid complains that the trial court erred in charging the jury.

         (a) Reid claims that the court committed reversible error by failing to give the coercion charge he requested in ...

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