312 Ga. App. 345
Ga. Ct. App.2011Background
- Birdsong convicted of two counts aggravated assault, one count simple battery, and one count possession of a firearm during the commission of a crime; appeals court review of curative instruction about victim's sexual history.
- Earlier trial (May 2008) ended in mistrial after defense cross-examined victim's sexual activities, violating Rape Shield Statute; double jeopardy plea denied on appeal (Birdsong v. State, 298 Ga. App. 322 (2009)).
- Second trial (Feb. 2010) featured victim's testimony of assault including forced intercourse; DNA match to Birdsong from vaginal swabs; defense attacked credibility and elicited victim's prior sexual history from witnesses.
- Defense witnesses testified about victim's alleged sexual history; prosecutor urged curative instruction at closing rather than a mistrial; trial court gave curative instruction as part of closing charge.
- Jury found Birdsong guilty on two aggravated assaults, simple battery, and firearm during crime; acquitted on kidnapping with bodily injury, rape, one aggravated assault, terroristic threats, and family violence battery; appellate court affirmed the curative instruction and judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether curative instruction in closing was proper | Birdsong argues timing was improper, no objection timely. | State contends closing-charge curative instruction was appropriate. | Proper; within trial court's discretion; not reversible error. |
| Whether curative instruction affected verdict | Instruction potentially emphasized impermissible evidence. | Acquittal on rape shows non-contribution. | Harmless error; highly probable instruction did not contribute. |
Key Cases Cited
- Clay v. State, 216 Ga. App. 310 (Ga. App. 1995) (trial court may tailor curative instructions; not abuse of discretion when timely objection lacking)
- Mobley v. State, 235 Ga. App. 151 (Ga. App. 1998) (curative instruction in closing allowed when immediate instruction not requested)
- Ranson v. State, 198 Ga. App. 659 (Ga. App. 1991) (court authorized to charge on relevant concepts even without timely request)
- Nesbitt v. State, 296 Ga. App. 139 (Ga. App. 2009) (harmless error standard for jury instruction)
- Knox v. State, 290 Ga. App. 49 (Ga. App. 2008) (harmless-error analysis when defendant acquitted on related count)
- Birdsong v. State, 298 Ga. App. 322 (Ga. App. 2009) (Rape Shield violation; prior appellate decision)