Richardson v. State , 276 Ga. 639 ( 2003 )

Carley, Justice.

Terry Richardson was tried for rape and kidnapping with bodily injury. At trial, he admitted engaging in sexual intercourse with the victim, but claimed that it was consensual. On direct examination, the victim testified that she was walking to an ex-boyfriend’s home to return his jacket when she accepted a ride from Richardson. According to her, he drove to a secluded area and assaulted her. During cross-examination, the defense sought to inquire further about the former boyfriend. The contention was that the victim wanted to rekindle a relationship with him, but his jacket became stained with blood and semen during the voluntary intercourse with Richardson. According to the defense, she then fabricated the rape charge to explain those stains and to prevent the act of consensual sex from hindering a possible reconciliation with her previous boyfriend. The trial court disallowed this cross-examination, finding that it was irrelevant and barred by the rape-shield law.

During the trial, Richardson also asked if he could stand behind the jury box. The basis for this request was his assertion that, while seated at the defense table, he was unable to see the witnesses as they testified. The trial court did not allow him to do as he requested.

The jury found Richardson guilty of both offenses. On appeal, he enumerated as error the trial court’s rulings on cross-examination of the victim and the right to confront the witnesses. The Court of Appeals found no merit in either assertion, and affirmed the convictions. Richardson v. State, 256 Ga. App. 322, 323-326 (1), (2) (568 SE2d 548) (2002). We granted certiorari to address the two issues.

1. A defendant in this state enjoys the right to a thorough and sifting cross-examination. OCGA § 24-9-64. However, this right is not unlimited. The trial court “may restrict the cross-examination to matters material to the issues. [Cit.]” Waller v. State, 213 Ga. 291, 294 (5) (99 SE2d 113) (1957). Insofar as the permissible scope of cross-examination in a rape prosecution is concerned, OCGA § 24-2-3 (a) provides, in relevant part, that evidence “relating to the past sexual behavior of the complaining witness shall not be admissible . . . .” By its express terms, however, this provision only bars evidence regarding the sexual aspects of a prior relationship. The judiciary is not free to disregard this clear limitation on the evidence that is excludable under the statute.

Courts of last resort must frequently construe the language of a statute, but such courts may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning.

Frazier v. Southern R. Co., 200 Ga. 590, 593 (2) (37 SE2d 774) (1946). Evidence merely that the victim has or had a romantic relationship with another man does not reflect on her character for sexual behavior. Therefore, so long as Richardson confined his questioning to the non-sexual nature of the victim’s former relationships, the statute would not be a basis for curtailing his cross-examination of her. See Banks v. State, 185 Ga. App. 851, 853 (2) (366 SE2d 228) (1988) (State’s introduction of testimony that victim was “going steady” did not open door to introduction by defense of evidence of her past sexual experience). Compare Harris v. State, 257 Ga. 666 (1) (362 SE2d 211) (1987) (evidence that victim was prostitute related to her sexual behavior and was inadmissible); Alford v. State, 243 Ga. App. 212, 215 (5) (534 SE2d 81) (2000) (victim’s mode of dress at time of rape was inadmissible); Burley v. State, 190 Ga. App. 75, 77 (2) (378 SE2d 328) (1989) (victim’s marital history implicates her sexual behavior and was inadmissible).

There is no indication that the defense intended to exceed that limitation and to pursue the inadmissible topic of the victim’s sexual history with other men. The proposed inquiry was confined to the existence of a relationship with an ex-boyfriend and whether the desire to reestablish that relationship was a motive to make a false claim of rape. “The possibility that [the proposed questions] may have been construed as implicating past sexual conduct could have been eliminated with a corrective instruction to the jury.” George v. State, 257 Ga. 176, 177 (1) (356 SE2d 882) (1987). Therefore, the trial court and the Court of Appeals erred in relying upon the rape-shield law to preclude Richardson from cross-examining the victim in this regard. George v. State, supra at 176 (1); Villafranco v. State, 252 Ga. 188, 193 (1) (313 SE2d 469) (1984).

The evidentiary ruling would be correct only if non-sexual questioning of the victim about her previous relationship was irrelevant to the motive that Richardson attributed to her. He did not contend that she was lying to protect an existing relationship. Compare Olden v. Kentucky, 488 U. S. 227 (109 SC 480, 102 LE2d 513) (1988). His position was that, because she desired to rekindle a relationship with her former boyfriend, she needed an explanation for the stained jacket when she returned it to him and, thus, she fabricated the rape charge. As the trial court and the Court of Appeals observed, she was not compelled to return the stained jacket and had other options, such as cleaning it or claiming that it was lost, which would not threaten a possible reconciliation. The existence of other measures which, if pursued, would prevent the victim’s former boyfriend from learning about the sexual encounter with Richardson is certainly a factor bearing on the viability of the defense’s contention that she lied about engaging in consensual sex with him. However, such credibility determinations are properly left to the jury. On cross-examination, “ ‘it is always permissible to sift the motives of the witness and to show, if possible, any reason other than a purpose to tell the truth which may consciously or unconsciously actuate him in his testimony. (Cit.)’ [Cits.]” Arnold v. State, 163 Ga. App. 10, 13 (4) (293 SE2d 501) (1982). Although a trial court has discretion in determining the admissibility of evidence, the long-standing rule in this state favors the admission of any relevant evidence, no matter how slight its probative value. Hudson v. State, 273 Ga. 124, 126 (2) (538 SE2d 751) (2000). The trial court erroneously prevented Richardson from presenting for the jury’s consideration all testimony relevant to his consent defense, and the Court of Appeals erred in affirming that ruling.

2. “The Confrontation Clause does not. . . compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere . . . .” Coy v. Iowa, 487 U. S. 1012, 1019 (II) (108 SC 2798, 101 LE2d 857) (1988). See also Ortiz v. State, 188 Ga. App. 532, 533 (2) (374 SE2d 92) (1988). However, that constitutional provision does “guarantee [ ] the defendant a face-to-face meeting with witnesses appearing before the trier of fact. [Cit.]” Coy v. Iowa, supra at 1016 (II). Therefore, the Court of Appeals erred in holding that “the right of confrontation does not require that the defendant be able to see witnesses as they testify.” Richardson v. State, supra at 325 (2). Richardson could not insist that the witnesses look directly at him as they testified, but he was entitled to an unobstructed view of them while they were on the stand.

It is unclear from the record whether Richardson’s constitutional right of confrontation was violated in this case. The record shows that the trial court offered to move the defense table, but that Richardson declined that alternative. According to the trial court, “[i]f he moved over there on the end kind of like [the prosecution’s] table is, [then the witnesses would] be able to see him.” If that is true, then Richardson waived his right by rejecting the trial court’s offer. However, we need not decide whether there was a violation or a waiver. Richardson must be retried for the reason discussed in Division 1 and, at the retrial, the trial court will undoubtedly provide the face-to-face confrontation with witnesses that the Constitution guarantees.

Judgment reversed.

All the Justices concur, except Benham and Hunstein, JJ, who dissent.