Logan v. State , 212 Ga. App. 734 ( 1994 )

Beasley, Presiding Judge,

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 and it must be such that “justice mandates the admission of such evidence.” OCGA § 24-2-3 (c) (2).² The legislative history of the substantial amendment to OCGA § 24-2-3 is chronicled in 6 Ga. State Univ. L. Rev. 245 (1989).

As to the old law:

In Johnson v. State, 146 Ga. App. 277, 279 (1) (246 SE2d 363) (1978), a case cited, defendant wanted to introduce evidence that the victim was not a virgin, to support an inference that he reasonably believed she consented to his advances. Of course that was not admissible under subsection (b). In the first place, defendant offered no evidence that he knew or believed the victim was not a virgin at the time of the encounter with the victim. He wanted others to testify that they had had intercourse with her. Their activities, without his knowledge of them at the time of his encounter (even if the two witnesses were truthful), could not possibly create an inference that he could have reasonably believed that she consented.

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, 257 Ga. 666, 668 (2) (362 SE2d 211) (1987).

The evidence which defendant sought to introduce came within that exception to the rule of inadmissibility. It would not contravene the statute’s shield against the jury’s “becoming inflamed or impassioned and deciding the case on irrelevant and prejudicial evidence.” (Emphasis supplied.) Harris, supra at 667 (1) (a). It was relevant to show the context in which she made, according to his testimony, a solicitation. The context created by her other statements to him, if the jury believes she said them, renders more plausible his testimony that she solicited sex and could create a reasonable doubt that he committed the crime charged. As to whether she made these statements about herself, the determination of admissibility does not depend on whether or not the trial court would find defendant’s testimony on the subject to be credible.³

Concepcion v. State, 200 Ga. App. 358 (5) (408 SE2d 130) (1991), cited in the majority opinion, is inapposite. In that case, as pointed out by the court, there was no evidence that defendant had knowledge of the alleged prior sexual conduct; this rendered it inadmissible. In this case, defendant’s testimony is that the woman told him about it, in advance of their sexual contact.

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, 190 Ga. App. 75, 78 (2) (378 SE2d 328) (1989); Moore v. State, 195 Ga. App. 814 (395 SE2d 13) (1990).⁴

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, 146 Ga. App. 277, 280 (246 SE2d 363) (1978). That case, decided under the old statute, did not involve an effort by defendant to introduce res gestae evidence, so it presents dictum on this subject. Moreover, it cites no authority for the proposition. Subsequent cases, such as Veal v. State, 191 Ga. App. 445, 447 (4) (382 SE2d 131) (1989), simply apply it.

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, 257 Ga. 666 (1) (362 SE2d 211) (1987). Harris, however, examined the statute before it was amended. The amendments of 1989 further substantially restrict the defendant’s evidence. The statute as amended has not yet been subject to Supreme Court scrutiny.

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, 415 U. S. 308, 315-316[, 39 LE2d 347, 94 SC 1105] (1974).” Olden v. Kentucky, 488 U. S. 227, 231 (109 SC 480, 102 LE2d 513) (1988). In Georgia, a defendant has the statutory right “of a thorough and sifting cross-examination.” OCGA § 24-9-64. Defendant Logan never got to the point of cross-examining the victim about her excluded statements, because the statements were excluded before trial.

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, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973). Thus, Harris does not foreclose this issue.

Fourthly, Harris did not involve res gestae, or matters which were an inherent part of the subject incident, but rather the victim’s alleged prior sexual history standing alone.

I concur in the remainder of the opinion.

I am authorized to state that Chief Judge Pope joins in this opinion.

2 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, 263 Ga. 336, 337 (3) (434 SE2d 54) (1993). The dissent authored by Cooper, J., in the instant case applies this latter standard to Bonds’ testimony and would hold that it meets the standard, as substantive evidence, so as to mandate a new trial.

3 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, 71 Ga. App. 384, 387 (2) (31 SE2d 124) (1944). As to the evidence defendant sought to introduce at trial, however, its credibility and weight would be within the province of the jury.

4 Although Moore was probably decided under the law as amended in 1989, the opinion quotes and applies Villafranco v. State, 252 Ga. 188 (313 SE2d 469) (1984), decided under old law.