Postell v. StatePostell v. State
Postell appeals his convictions for rape and robbery by intimidation. The victim testified that Postell had sexual intercourse with her by force and against her will, and, by means of coercion and intimidation, took jewelry from her person. OCGA §§ 16-6-1; 16-8-40. Postell did not testify and presented no evidence.
1. In his first enumeration, Postell claims the trial court erroneously failed to give his requested jury charge defining the nature of direct and circumstantial evidence, and instructing the jury that, to warrant a conviction on circumstantial evidence alone, the facts must not only be consistent with the state’s theory of guilt, but must ex-
The evidence included testimony from the victim that, during their relationship, she told the defendant she would not have sexual relations with him because her church taught that it was wrong outside of marriage. However, on cross-examination, the victim testified that a few days before the rape and at the defendant’s request, she willingly performed oral sex with the defendant. She admitted that this conduct violated her church’s teachings.
Whether or not the victim consented was a material issue in the case. The only direct evidence in the case was the testimony of the victim. The jury was authorized to conclude that the victim’s testimony was at least partially impeached when, after testifying on direct examination that she would not have consensual sexual relations with the defendant because of her religious beliefs, she later contradicted that testimony on cross-examination by admitting she willingly had sexual relations with the defendant prior to the charged rape. OCGA § 24-9-82. “If a witness is impeached or discredited in some legal manner, a jury or a trial judge in a non-jury case may disbelieve him altogether.”
Mustang Transp. v. W. W. Lowe & Sons,
The trial judge instructed the jury as to impeachment, but failed to give any charge on the law of circumstantial evidence. When a jury question exists as to whether the only witness giving direct evidence of the crime has been impeached, it is reversible error for the trial court to fail to charge on the law of circumstantial evidence, even in the absence of a request.
Stanley v. State,
However, “where the circumstantial evidence alone would
not
warrant a conviction, but would, in fact, mandate a
reversal
on the general grounds” it is not reversible error to fail to give the requested charge. (Emphasis in original.)
Robinson v. State,
2. Secondly, Postell claims the trial court erroneously charged on the burden of proof. The court charged: “However, the State is not required to prove the guilt of the accused beyond a reasonable doubt, or to a mathematical certainty.” This charge is no doubt error, and error of constitutional magnitude, since it affects the requirement of the due process clause that a criminal defendant be proved guilty of the crime charged beyond a reasonable doubt.
In re Winship,
3. In his third enumeration, Postell argues that the trial court erred by allowing four state’s witnesses to repeat what they had been told by the victim about the rape. Their testimony was consistent with that given by the victim. He contends this was hearsay, and impermissibly bolstered the testimony of the victim.
“[Wjhere the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible.”
Edwards v. State,
Since all four witnesses testified for the state prior to the victim’s testimony, Postell contends it was error to admit the out-of-court statements prior to any challenge to the victim’s veracity. We agree this testimony should not have been admitted before the victim’s credibility was challenged, but any error was rendered harmless when the victim was later subject to a full cross-examination. Moreover, the evidence was cumulative of the victim’s in-court testimony.
Hicks v. State,
4. Postell asserts the trial court erred by excluding evidence that the victim claimed to have been previously raped by another man. He makes three arguments with respect to this claim of error: (a) that this was evidence of a prior false allegation of sexual misconduct made by the victim against a man other than the defendant, and was therefore not excluded by the rape shield statute (OCGA § 24-2-3); (b) that this was evidence of the victim’s past sexual conduct admissible as an exception to the rape shield statute (OCGA § 24-2-3 (b) and (c) ); (c) that as evidence of a previous rape, it was unrelated to the victim’s own past sexual conduct, and therefore was not excluded by the rape shield statute.
(a) Evidence that a rape victim made previous false allegations of sexual misconduct against a man other than the defendant is not excluded by the rape shield statute, which only excludes evidence regarding the victim’s past sexual behavior.
Smith v. State,
A hearing was held, outside the presence of the jury, in which the defense proffered the testimony of the victim, who stated that she had been previously raped by another man two months prior to the present incident, and had disclosed this to a fellow worker and the defendant. After the present incident, she also reported the previous
(b) The defendant further contends that evidence the victim had been previously raped was improperly excluded by the trial court because the victim had told him about the previous rape. He argues, therefore, he could have reasonably believed she would consent to the conduct alleged in the present case. As an exception to the rape shield statute, OCGA § 24-2-3 (b) and (c) allows introduction of the rape victim’s past sexual behavior if the court finds the past sexual behavior directly involved the participation of the defendant, and such evidence supports an inference that the defendant could have reasonably believed the victim consented to the conduct presently at issue. The court must conduct an in-camera hearing to determine if the defendant’s proof is admissible under these standards, or if such evidence is so highly material that it substantially supports a conclusion that the defendant reasonably believed the victim consented to the conduct complained of, and that justice mandates the admission of such evidence. Id.
The only such evidence proffered by the defendant at the hearing
(c) The defendant’s claim that the trial court improperly prevented him from introducing evidence of the prior rape under the holding in
Raines v. State,
5. In his fifth enumeration of error, Postell claims it was error to allow the state to introduce evidence of the victim’s religious beliefs pertaining to sexual intercourse outside of marriage. The state introduced testimony from a member of the victim’s church, who stated the church teaches that sexual intercourse outside of marriage is wrong, and that this teaching, along with an emphasis on remaining chaste, is taught at almost all of the church meetings. He testified that the victim regularly attended the meetings. The victim testified that although she had been separated from her husband for over two years, they were still married. She stated she attended church meetings three times a week, and was taught that sexual intercourse outside of marriage was a wrong for which one could be expelled from the church. She told the defendant that, because of her religious beliefs, she could not have sexual intercourse with him unless they were married.
“The Rape Shield Statute limits inquiries or suggestive innuendoes concerning the sexual background of the rape victim absent
The state argued that testimony regarding the victim’s religious beliefs was admissible to show her state of mind on the issue of consent. In
Villafranco v. State,
Nevertheless, having allowed the prosecution to introduce this testimony, we find no evidence that the defendant was thereafter improperly prevented from confronting or impeaching the victim on this issue.
Jones v. State,
6. Postell claims the trial court erred by failing to grant his motion for a mistrial on the grounds that the prosecution improperly commented on his failure to testify, and injected the prosecutor’s own personal belief as to the guilt of the defendant.
During the prosecutor’s closing argument, the following transpired in the presence of the jury: The prosecutor stated, “And so . . . you have heard all of the state’s witnesses that have testified, and you haven’t heard anybody rebut that. The defense did not offer any witnesses. . . .” Defense counsel objected to this statement as a comment on the defendant’s failure to testify, then added that, “[The prosecutor] knows that the defendant has no burden of proof and that he comes into this courtroom with the presumption of innocence.” The prosecutor immediately responded to the objection by stating, “That only lasts up until I prove beyond a reasonable doubt that he is guilty, and I have done that.” The trial court intervened stating, “Well, that is up to the jury to decide.” Defense counsel continued, “Yes sir. We ask that be stricken from the record, and it be totally disregarded.” The trial judge then indicated he would charge the jury later about the defendant not having to testify. The prosecutor continued his argument: “[A]s I was saying, the defendant has not put anyone on the stand to rebut any of the testimony that has been offered.” Defense counsel made the same objection, and moved for a mistrial. In explanation, the prosecutor stated that he was attempting to comment on the fact that the state’s evidence was unrebutted. The trial court denied the motion for mistrial.
Defense counsel’s first objection was directed to the initial comment by the prosecutor that “[t]he defense did not offer any witnesses,” and requested that the court instruct the jury to disregard the comment. The trial court took no action on the objection or the request. The second objection was made in response to the prosecutor’s comment that, “the defendant has not put anyone on the stand to rebut any of the testimony that has been offered.” The trial court denied the motion for mistrial made in connection with this objection. Accordingly, the error alleged as to both of these comments was properly preserved for review. See
Hall v. State,
Although it is improper for a prosecutor to comment on a defendant’s failure to testify, it is not error for the prosecutor to argue that the defense has failed to present any evidence to rebut the state’s proof.
Martin v. State,
Postell also argues that the prosecutor’s statement, “That only lasts up until I prove beyond a reasonable doubt that he is guilty, and I have done that,” was a statement of his personal belief in the guilt of the defendant. This comment was made by the prosecutor during colloquy with the court in response to a pending objection by the defense. Though stated in personal terms, when taken in the context in which it was made, it appears to be a statement of the prosecutor’s argument that the state’s evidence was sufficient to carry the burden of proof, rather than a comment on his personal belief in the defendant’s guilt. A prosecutor may not urge his personal belief as to the defendant’s guilt, but he may properly argue such guilt as a conclusion from the proven facts.
Manning v. State,
Judgment affirmed.