Lead Opinion
Defendant was tried before a jury and found guilty of rape, aggravated sodomy, kidnapping with bodily injury, aggravated assault, and simple battery.
At trial, the victim testified that in the early morning hours of December 17, 1988, she was working as a taxi cab driver when defendant approached her for a ride; that she drove to several sites in compliance with defendant’s requests (purportedly to locate a friend) and that defendant then pulled a knife, instructed her to drive to a remote area and forced her to engage in sodomy and intercourse. Defendant testified that he engaged in consensual sex with the victim pursuant to her solicitation; that he ejaculated during copulation over the victim’s objection; that he gave the victim $20 after the encounter and that the victim then gave him a card with her name and number for future reference.
This appeal followed the denial of defendant’s motion for new trial. Held:
1. In his first four enumerations of error, defendant contends the trial court erred in applying the Rape Shield Statute, OCGA § 24-2-3, to preclude him from testifying as to certain statements the victim uttered shortly before the incident which forms the basis of the crimes charged.
Prior to trial, the trial court held an in camera hearing pursuant to OCGA § 24-2-3 where defense counsel stated that he intended to
Noting that some of the proffered testimony did relate to the victim’s past sexual behavior, the trial court ruled that any statements which the victim uttered concerning her marital history, general reputation of promiscuity, chasteness, or sexual mores contrary to community standards were excluded by the Rape Shield Statute. Specifically, the trial court ruled that the victim’s alleged statement that she did not want to have any more children was inadmissible because it was proof of sexual conduct unrelated to the crimes charged. However, the trial court ruled that the victim’s alleged statement that she did not want to get pregnant was admissible. It appears from a review of the record that the only aspects of defendant’s proffered testimony that he did not subsequently testify to before the jury were that the victim had been involved with black men, that she had children by black men and that her husband had left her.
(a) Relying on Villafranco v. State,
Although the victim’s statements to defendant about her having had sexual relations with black men and having had children by these men would otherwise be admissible as part of the res gestae, it is well settled that the “Rape Shield Statute, OCGA § 24-2-3, supersedes all evidentiary exceptions, including the res gestae rule.” Veal v. State,
(b) Next, defendant contends the trial court erred in applying the Rape Shield Statute as amended July 1, 1989, because he committed the alleged offense in December 1988. Defendant argues that the amendment to subsection (b) of the statute violates the ex post facto clause because it deprives him of the substantive right to introduce evidence that was admissible under the prior version of subsection (b).
Prior to July 1, 1989, the Rape Shield Statute excluded evidence of past sexual behavior of the complaining witness unless the court “finds that the past sexual behavior directly involved the participation of the accused or finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of. . . .” (Emphasis supplied.) OCGA § 24-2-3 (b). The 1989 amendment substituted the word “and” for “or” such that in order for evidence of past sexual behavior to be introduced under subsection (b), it must directly involve the accused and support an inference that he reasonably believed the complaining witness consented.
Generally, statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. OCGA § 1-3-5. However, where a statute governs only procedure, including the rules of evidence, it is to be given retroactive effect. Polito v. Holland,
In any event, we agree with the trial court that the amended statute was not ex post facto as to the defendant because the evidence he sought to introduce was not admissible under the prior version of subsection (b). Defendant essentially sought to introduce statements the victim made to him about being with other men and having children with such men as evidence that defendant believed the victim consented to have sex with him. This evidence did not directly involve the defendant nor do we view it as a circumstance which would reasonably support defendant’s purported view that the victim consented to have sex with him. See former OCGA § 24-2-3 (b). In fact, it is against just such reasoning that Rape Shield laws were enacted. See Johnson v. State,
(c) Defendant next argues that the trial court erred in ruling his testimony inadmissible under the amended statute because the testimony is admissible under subsection (c) (2) of the amended statute.
Subsection (c) of the Rape Shield Statute was amended in 1989 to provide an exception for the admission of evidence of past sexual behavior if the court finds that the evidence “is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence. . . .” OCGA § 24-2-3 (c) (2). As noted above, the essence of defendant’s argument appears to be that the victim’s statements to him that she had been with black men before and had children by such men supports the conclusion that he reasonably believed the victim consented to have sex with him. The trial court ruled this interpretation was not a reasonable belief but an inappropriate implication that “if she did it once, she did it again.” See Johnson v. State,
(d) Defendant next contends the trial court erred in denying his motion for new trial on the ground that OCGA § 24-2-3, as amended in 1989, is unconstitutional. Defendant argues only that if the trial
The Georgia Supreme Court has already established the constitutionality of the Rape Shield Statute. Harris v. State,
2. In his next enumeration of error, defendant contends the trial court erred in denying his motion for new trial based on newly discovered evidence that the victim recanted her accusation that defendant committed the crimes charged.
“ ‘That a material witness for the State, who at the trial gave direct evidence tending strongly to show [the defendant’s] guilt, has since the trial made statements (even) under oath that [her] former testimony was false, is not cause for a new trial. (Cits.)’ Fowler v. State,
In the case sub judice, Jackie Bonds testified at the hearing on defendant’s motion for new trial that the victim informed her two years after defendant’s conviction that she falsely accused defendant of rape because defendant only gave her $20 for engaging in consensual intercourse, defendant ignored her request to avoid ejaculation
3. In his fifth enumeration, defendant contends that because “the bodily injury on which his kidnapping with bodily injury conviction was predicated consisted of the rape of which he was also convicted, these two offenses merged, with the result that the sentence of life imprisonment which he received for kidnapping with bodily injury must be vacated. [It appears that the] state concedes that these two offenses merged under the circumstances. See Allen v. State,
4. In his seventh enumeration, defendant contends the trial court
Judgment affirmed in part and vacated in part.
Notes
Defendant concedes that the testimony is not admissible under subsection (b) of the amended Rape Shield Statute.
Concurrence Opinion
concurring in part and dissenting in part.
1. I dissent with respect to Division 1 (a) and that portion of Division 1 (b) which analyzes whether the evidence would be admissible under the old, inapplicable law. I do not join in the conclusions that it would be inadmissible under the old law and is inadmissible under the amended version.
After the defendant’s testimony in camera, the court excluded all evidence of what the court described as statements made by the prosecutrix to defendant about her marital history, what she said about sexual things she had done, what she said about nonchastity on her part and her activity related to sexual mores contrary to community standards, her statement about not wanting to have more children, and her statement about having children by others of defendant’s race. The court later ruled that he could testify that she said she had children, because she herself so testified at trial.
Thus, the court excised portions of what the prosecutrix allegedly told defendant about herself leading up to a direct exchange about having sex, shortly before their sexual activity. These portions were part of the whole conversation which, defendant urged, in its totality and under the circumstances, had led him to believe she consented. The prosecutrix’ statements were offered to show her state of mind and motive at the time of the alleged rape, as a basis for the defendant’s belief about her willingness to engage in sex, and also her motive thereafter for claiming she was raped. Her statements would thus relate to the issue of her consent vel non. Defendant’s testimony about them was substantive evidence, that is, that type of evidence which the other dissenters would hold entitled defendant to a new trial based on Bonds’ newly discovered testimony.
Under both the prior and present rape shield versions, the victim’s statements would be allowed to show a basis for defendant’s belief that there was consent. Such evidence is more circumscribed under the present statute than formerly, however, as it now must be “so highly material that it will substantially support” such a finding
As to the old law:
In Johnson v. State,
In the second place, whether she was a virgin or not has zero relevancy to whether she consented or not to intercourse with defendant. There is just no logical tie between the fact that a woman is not a virgin and the question of consent in a given situation. That is, if defendant had been permitted to introduce the evidence, it would not have shed light on the issue of consent.
In this case, on the other hand, defendant wished to show the woman’s motive and state of mind leading up to the incident, by what she said to him, to explain why he believed she consented. As defendant’s counsel put it, he was trying to show that this cab driver, to whom defendant was a stranger, made some very personal disclosures about sexual activities with members of his race, as a come-on. His theory is that she would not discuss such things with this man she picked up unless she had sexual activity in mind. That would be very relevant to the issue of consent because these statements would have supported an inference that the accused could have reasonably believed that she consented to the conduct which then transpired between them. Evidence of consent is one of the exceptions under OCGA § 24-2-3’s old subsection (b). Harris v. State,
The evidence which defendant sought to introduce came within that exception to the rule of inadmissibility. It would not contravene
Concepcion v. State,
Knowledge of the prosecutrix’ past sexual activity which could support a reasonable belief that the prosecutrix consented to the conduct complained of, such as infidelity discussed at the time of the encounter, would be admissible under the prior OCGA § 24-2-3 (b). Lack of such knowledge renders it inadmissible. Burley v. State,
As to the amended, applicable law:
This challenged evidence comes within the exception carved out in OCGA § 24-2-3 (c) (2). In the context and environment in which the alleged statements were made, what defendant testified the prosecutrix said to him about her personal sexual life and the sexual relationships she had had with other men of his race were relevant to his defense of consent.
The majority applies an earlier ruling of this court that the Rape Shield Statute supersedes the res gestae rule. It comes from Johnson v. State,
The nature of the alleged statements, and the setting in which they were said, in this case meet the statutory requirement that the evidence be “so highly material that it will substantially support a conclusion that the accused reasonably believed that [she] consented to the conduct complained of.” Because this was defendant’s sole defense, “justice mandates the admission of such evidence,” which is the second requirement of the statute.
2. The majority, having concluded that the evidence was excludable under the statute, is confronted with a constitutional argument that construing and applying the statute in such a manner renders it unconstitutional. This places the matter squarely within the jurisdiction of the Supreme Court of Georgia. 1983 Ga. Const., Art. VI, Sec. VI, Par. II (1). Defendant raised the issue of constitutionality under the federal Confrontation Clause and due process clause in the trial court, the trial court rejected the claims, and so does the majority here.
This Court’s position is that the question was resolved in Harris v. State,
Secondly, Harris dealt only with a challenge under the Confrontation Clause, the defendant’s Sixth Amendment right “to be confronted with the witnesses against him.” It “includes the right to conduct reasonable cross-examination. Davis v. Alaska,
Thirdly, Harris did not deal with a separate due process challenge, which defendant also asserts. To the extent that this is not covered by the Sixth Amendment right to impeach the victim’s testimony, he claims that refusing to permit him to testify about the substance of the encounter, on the basis of the statute, in particular those portions of the conversation which he had with the victim which led him to believe she consented to the sex which transpired, deprived him of due process of law. See Chambers v. Mississippi,
Fourthly, Harris did not involve res gestae, or matters which
I concur in the remainder of the opinion.
I am authorized to state that Chief Judge Pope joins in this opinion.
Compare this evidentiary standard with that which applies to newly-discovered evidence. To warrant a new trial, such evidence must fulfill six requirements, one of which is that “ ‘it is so material that it would probably produce a different verdict.’ ” Spann v. State,
The dissent authored by Cooper, J., refers to this same matter of credibility as to Bonds’ testimony, in the context of newly-discovered evidence in a motion for new trial. The trial judge is the trier of the facts in deciding motions based on newly-discovered evidence. Herrin v. State,
Although Moore was probably decided under the law as amended in 1989, the opinion quotes and applies Villafranco v. State,
Concurrence Opinion
concurring in part and dissenting in part.
I respectfully dissent as to Division 2 of the majority opinion since I believe the trial court erred in denying defendant’s motion for new trial based on newly discovered evidence. The majority holds that Bonds’ testimony does not meet the requirements for granting a new trial because it goes only to impeaching the victim’s trial testimony. I disagree based on this court’s recent decision in Humphrey v. State,
Bonds testified that the victim told her the following: she took the defendant to a wooded area and had sex with him, she told him not to “come inside of her because she did not want [any] more [children],” he ejaculated in her anyway and, after they had sex, he gave her $20 to which she responded “this is all you’re going to give me after what I gave you?” Bonds also testified that the victim said that she fabricated the rape charge because she knew the defendant was not from there and knew no one in the area. Bonds testified to the same effect at the hearing on the motion for new trial.
Here, as in Humphrey, the testimony of Bonds, the later discovered witness, was admissible not merely to impeach the testimony of the victim but as substantive evidence “affirmatively supporting] the defense claim of consent and fabrication of rape.” Id. Bonds’ testimony as to why the victim said she fabricated the rape charge was not
Finally, with respect to whether the submitted testimony was so material as to probably produce a different verdict, I conclude the jury may well have believed defendant’s version of the events if it had Bonds’ testimony concerning the victim’s subsequent admissions before it. However, as in Humphrey, the trial court has seemingly passed on Bonds’ credibility and said, in effect, that no jury could believe her. See
I concur in the remainder of the opinion.
I am authorized to state that Chief Judge Pope joins in this opinion.