DocketNumber: S18G0365
Citation Numbers: 823 S.E.2d 794, 305 Ga. 111
Judges: Bethel, Melton
Filed Date: 2/4/2019
Status: Precedential
Modified Date: 7/29/2022
**111This case concerns the proper statutory interpretation of OCGA § 24-4-412, Georgia's Rape Shield Statute, which provides:
(a) In any prosecution for rape in violation of Code Section 16-6-1 ; aggravated assault with the intent to rape in violation of Code Section 16-5-21 ; aggravated sodomy or sodomy in violation of Code Section 16-6-2 ; statutory rape in violation of Code Section 16-6-3 ; aggravated child molestation or child molestation in violation of Code Section 16-6-4 ; incest in violation of Code Section 16-6-22 ; sexual battery in violation of Code Section 16-6-22.1 ; or aggravated sexual battery in violation of Code Section 16-6-22.2, evidence relating to the past sexual behavior of the complaining witness shall not be admissible , either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section . For the **112purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness's marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.
(b) ... [E]vidence relating to the past sexual behavior of the complaining witness may be introduced if the court, following the procedure described in subsection (c) of this Code section, finds that the past sexual behavior directly involved the participation of the accused and 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 in the prosecution .
(c) The procedure for introducing evidence as described in subsection (b) of this Code section shall be as follows:
(1) At the time the defense seeks to introduce evidence which would be covered by subsection (b) of this Code section, the defense shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused's offer of proof;
(2) At the conclusion of the hearing, if the court finds that any of the evidence introduced at the hearing is admissible under subsection (b) of this Code section or 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, the court shall by order state what evidence may be introduced by the *797defense at the trial of the case and in what manner the evidence may be introduced; and
(3) The defense may then introduce evidence pursuant to the order of the court.
(Emphasis supplied).
In this case, on November 21, 2014, Charles White was found guilty of three counts of rape, one count of statutory rape, ten counts of child molestation, three counts of aggravated sodomy, three counts of incest, and one count of enticing a child for indecent purposes in connection with incidents involving three victims, including S.M., who was a member of White's extended family. The information that led to White's indictment for these sex crimes came to light after **113twelve-year-old S.M. had been accused of, and later admitted to, molesting her two younger stepsisters.
White filed a pretrial motion in limine to have evidence of S.M.'s prior sexual acts excluded from his trial, arguing that the admission of the evidence would have been more prejudicial to White than probative of any issue at trial. But the trial court denied White's motion, and, at trial, without further objection from White's counsel, the State briefly elicited testimony from S.M. regarding her prior sexual misconduct and her delinquency adjudication. The State also presented expert testimony in which the expert noted briefly that, in general, young children who act sexually toward other children may be exhibiting behavior consistent with having been victims of sexual abuse. In addition to this evidence, White's other two victims testified directly about the abuse that they claimed that they had been subjected to by White, and the family members to whom the victims had spoken about the abuse testified as well.
Following his convictions, White filed a motion for new trial on November 25, 2014, which he amended on September 19, 2016, arguing for the first time that the trial court committed plain error
(1) Can a defendant invoke OCGA § 24-4-412 in order to prohibit the admission of evidence of a witness's past sexual behavior offered by the State? Compare, e.g., Orengo v. State,339 Ga. App. 117 (10),793 S.E.2d 466 (2016) (" 'the Rape Shield [S]tatute ... cannot be invoked by a defendant to prevent a victim from offering otherwise relevant evidence' (citation omitted)") with, e.g., Johnson v. State,146 Ga. App. 277 (2),246 S.E.2d 363 (1978) (holding that a defendant may, by proper and timely objection, prevent the State from introducing evidence excluded by the Rape Shield Statute).
(2) Is evidence of a complaining witness's past sexual behavior admissible if that evidence is relevant to an issue other than consent? Compare, e.g., Warner v. State,277 Ga. App. 421 (2),626 S.E.2d 620 (2006), *798with, e.g., Herndon v. State,232 Ga. App. 129 (2),499 S.E.2d 918 (1998).
(3) Did the trial court improperly admit evidence of the complaining witness's past sexual behavior, and, if so, was any such error harmless?
For the reasons set forth below, we determine that (1) yes, a defendant can invoke the Rape Shield Statute to prohibit the admission of evidence of a witness's past sexual behavior offered by the State where such offered evidence is inadmissible pursuant to the terms of the Rape Shield Statute; (2) no, because evidence of a complaining witness's past sexual behavior is only admissible under the Rape Shield Statute if that evidence is relevant to the issue of consent; and (3) the trial court did improperly admit evidence of the complaining witness's past sexual behavior in this case, but the admission of this evidence did not amount to plain error requiring reversal of White's convictions. Accordingly, we ultimately affirm the judgment of the Court of Appeals, though we reject the Court of Appeals' reasoning.
1. In order to determine whether a defendant can invoke OCGA § 24-4-412 to prohibit the admission of evidence of a witness's past sexual behavior offered by the State, we examine the plain language of the statute, presuming
that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory **115text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would .... [And] if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.
(Citations and punctuation omitted.) Deal v. Coleman,
With these principles in mind, a natural reading of the text of OCGA § 24-4-412 indicates that evidence of a complaining witness's past sexual behavior may not be introduced by any party at a trial involving a prosecution for certain sexual crimes unless such evidence falls under the one specific exception contained in the statute itself. There is nothing ambiguous about the language in OCGA § 24-4-412 (a) stating that
[i]n any prosecution for [the sex crimes listed in the Rape Shield Statute], evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section.
Thus, unless there is a specific exception contained in OCGA § 24-4-412 indicating that the statute only applies to evidence introduced by criminal defendants and not to evidence introduced by the State, the evidentiary restrictions contained in the statute apply equally to both the State and defendants "[i]n any prosecution" for the sex crimes to which the Rape Shield Statute applies. The only exception to the evidentiary restrictions created by the Rape Shield Statute is contained in OCGA § 24-4-412 (b), which establishes that a defendant
evidence relating to the past sexual behavior of the complaining witness ... if ... the past sexual behavior directly involved the participation of the accused and ... 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 in the prosecution.
**116There is no additional exception in the Rape Shield Statute that would exempt the State from its application. Evidence of a complaining witness's past sexual history that falls outside of the one specific exception contained in OCGA § 24-4-412 is inadmissible in any prosecution to which the Rape Shield Statute applies and may not be introduced by either party as "direct evidence or on cross-examination of the complaining witness or other witnesses." OCGA § 24-4-412 (a).
*799While the exception under the Rape Shield Statute applies only to certain evidence offered by defendants, this does not mean that the evidentiary restrictions contained in the statute would also apply only to defendants. A specific carve-out does not usually serve to restrict the application of the broader general provisions. Regardless of the State's possible desire to introduce evidence of a complaining witness's past sexual history to support its theory of a case against a defendant (as was the case here) or for some other purpose, there is simply no additional exception written into the statute to allow the State to do so, and this Court cannot write such an exception into the statute for the State. State v. Fielden,
Our conclusion in this regard is supported by the fact that, when the General Assembly adopted Georgia's new Evidence Code in 2011, which became effective in 2013, it did not adopt the federal counterpart to Georgia's Rape Shield statute. Compare former OCGA § 24-2-3 with OCGA § 24-4-412 (containing nearly identical language without either statute containing any exception for the State to be excluded from its requirements).
The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence **117offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition. ... The court may admit the following evidence in a criminal case: ... evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor .
(Emphasis supplied.) Fed. R. Evid. 412 (a) and (b) (1) (B).
This distinction between Federal Rule of Evidence 412 and OCGA § 24-4-412 is significant to our analysis because
[o]ur new Evidence Code was based in large part on the Federal Rules of Evidence. And where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance. ... [However,] [w]here a provision of the new Evidence Code differs in substance from the counterpart federal rule, as interpreted by federal courts, we must correspondingly presume that the General Assembly meant the Georgia provision to be different.
(Footnote and citation omitted; emphasis in original.) Parker v. State,
Here, Georgia's Rape Shield Statute differs in substance from its federal counterpart in that the Georgia General Assembly specifically declined to include an exception for the State in OCGA § 24-4-412 of our new Evidence Code even though such an exception exists for prosecutors under *800Federal Rule of Evidence 412 (b) (1) (B).
2. Additionally, the plain language of OCGA § 24-4-412 does not support the conclusion that evidence of a complaining witness's past sexual behavior would be admissible if it were relevant to an issue other than consent. As explained in Division 1, supra, the sole exception to the evidentiary restrictions contained in the Rape Shield Statute allows a defendant to introduce evidence of the complaining witness's past sexual behavior where such activities directly involved the defendant and supports an inference that the defendant "could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution." (Emphasis supplied.) OCGA § 24-4-412 (b). There is no exception written into the statute for any party to introduce evidence of a complaining witness's sexual behavior that is "otherwise relevant" (see Demetrios v. State,
3. In light of our discussion in Divisions 1 and 2, supra, we conclude that the trial court erred by admitting into evidence testimony regarding S.M.'s sexual behavior. However, the question remains as to whether such error amounted to "plain error[ ] affecting substantial rights." OCGA § 24-1-103 (d). As explained more fully below, we conclude that it does not.
In order to show plain error:
First, there must be an error or defect - some sort of "deviation from a legal rule" - that has not been intentionally **120relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it "affected the outcome of the trial court proceedings." Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error - discretion which ought to be exercised only if the error " 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' "
(Citation, punctuation, and emphasis omitted.) State v. Kelly,
Here, there was an error that was not affirmatively waived by White with respect to the admission of testimony at his trial relating to S.M.'s past sexual behavior. The error regarding the admission of this evidence was also a clear or obvious one in light of the plain language of the statute, and, as explained more fully below, older and binding case law from the Court of Appeals that properly interpreted the Rape Shield Statute and that the trial court was bound to follow.
In its older case law, the Court of Appeals properly recognized that, by its terms, Georgia's Rape Shield Statute applied to exclude evidence offered by the State. See, e.g., Johnson v. State,
The Court of Appeals continued to follow this incorrect reasoning from Demetrios in Warner,
Thus, the Court of Appeals created two competing lines of cases that stood for opposing propositions with respect to the application of Georgia's Rape Shield Statute to evidence introduced by the State. This raises another issue that the Court of Appeals failed to properly resolve. Specifically, when faced with these competing lines of authority from its own court, the Court of Appeals was obligated to continue to rely on the older precedent from that court until such time as the older law was properly overruled by that court or reversed or overruled by this Court:
[T]he older decisions of [the Court of Appeals] are binding on [panels of that] court until reversed or overruled by the Supreme Court or overruled by [the Court of Appeals, and the Court of Appeals] must adhere to the authority of those cases which [it] think[s] state the correct principle of law. Anything to the contrary which may have been ruled by [panels of the Court of Appeals] in [more recent decisions] must yield to the older authorities [from that court].
McKibben v. State,
**122(outlining manner in which cases can be overruled by Court of Appeals pursuant to mandates set forth in OCGA § 15-3-1 (d) and the Court of Appeals' own Rule 33.3).
But the Court of Appeals here did not follow or overrule its binding older precedents. Instead, it followed the holdings in the erroneously decided and non-binding decisions in Demetrios,
The prior case law from the Court of Appeals that properly interpreted the Rape Shield Statute was specifically brought to the trial court's attention in White's amended motion for new trial. See Herndon,
However, we do not find that the error here "likely affected" the outcome of the trial court proceedings. See Kelly,
Judgment affirmed.
All the Justices concur, except Bethel, J., who concurs specially. Ellington, J., disqualified.
The stepsisters whom S.M. molested were not White's other two victims.
White failed to object at trial to the admission of the testimony relating to S.M.'s sexual history on the basis that he later asserted in his amended motion for new trial. He therefore concedes that the analysis of any issue relating to the alleged error in the admission of the evidence is limited to a review for "plain error[ ] affecting substantial rights." OCGA § 24-1-103 (d).
"The procedure [set forth in OCGA § 24-4-412 (c) ] for introducing evidence as described in subsection (b)" makes it clear - repeatedly - that only the "defense" can use that exception.
The Rape Shield Statute was amended in 2005 and 2013 to expand the range of sex crimes to which the statute is applicable. See, e.g., Abdulkadir v. State,
Federal Rule of Evidence 412 (c) does not limit the procedures for admitting evidence of a victim's sexual behavior to only the defense.
As shown in the Advisory Committee notes on the proposed 1994 amendment to Federal Rule of Evidence 412 :
Under the exception in subdivision (b)(1)(B), evidence of specific instances of sexual behavior with respect to the person whose sexual misconduct is alleged is admissible if offered to prove consent, or offered by the prosecution. Admissible pursuant to this exception might be evidence of prior instances of sexual activities between the alleged victim and the accused, as well as statements in which the alleged victim expressed an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving the specific accused. In a prosecution for child sexual abuse, for example, evidence of uncharged sexual activity between the accused and the alleged victim offered by the prosecution may be admissible pursuant to Rule 404(b) to show a pattern of behavior. Evidence relating to the victim's alleged sexual predisposition is not admissible pursuant to this exception.
We acknowledge that good policy reasons may exist to allow the State to introduce evidence of a victim's past sexual behavior in the manner that a federal prosecutor may do so pursuant to Federal Rule Evidence 412. For instance, as was the case here, the introduction of S.M.'s prior sexual behavior was not to further victimize her, but to expose potential wrongdoing by White. Federal Rule of Evidence 412 allows for potential wrongdoing by a defendant to be exposed in ways that Georgia's Rape Shield Statute does not. For example, in the context of a federal prosecution for a sex crime in which evidence existed to show that the victim had been involved sexually with the defendant in the past in a manner that was in some way relevant to proving the crimes at issue in the defendant's trial, Federal Rule of Evidence 412 would allow the prosecutor to bring forth that evidence after following the appropriate procedures. See Fed. R. Evid. 412 (b) (1) (B) ("The court may admit ... evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct ... if offered by the prosecutor."). However, the plain language of Georgia's Rape Shield law would not allow for the admission of such evidence because the State cannot introduce evidence of a victim's past sexual behavior. But see, e.g., Orengo,
Now that Georgia's Rape Shield Statute has been amended to apply to child molestation cases, we must also note that prior case law from the Court of Appeals that was decided based on trials that began before the January 1, 2013 amendment became effective and that allowed evidence of a child's past sexual behavior to be admitted at trial has been superseded by the current version of the statute. See, e.g., Hall v. State,
It is undisputed that the Court of Appeals has not overruled its prior authority that properly interpreted Georgia's Rape Shield Statute, as only three (rather than all) judges on the court participated in the decisions that diverged from this properly decided prior case law, and the more recent cases did not even cite to the prior controlling case law. See Stephen Louis A. Dillard, Open Chambers: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals,
The rule that applies to an intermediate appellate court such as the Georgia Court of Appeals when examining its own discordant decisions should not be confused with the rule that applies to a jurisdiction's highest court such as the Georgia Supreme Court when discord may exist between older and newer precedents of that high court. "When a high court finds discordant opinions among its own horizontal precedents ... [the court] generally follows its decision in the most recent case, which must have tacitly overruled any truly inconsistent holding." (Punctuation omitted; emphasis supplied.) The Law of Judicial Precedent, supra, at 300. See also Houston v. Lowes of Savannah, Inc.,
We also note that the error in the admission of evidence about S.M.'s sexual behavior did not affect the evidence of White's guilt regarding the other two victims, who testified, like S.M., about the horrific abuse that White inflicted on them.
The special concurrence suggests that the obvious evidentiary error in this case may actually have caused harm to White by likely affecting the outcome of his trial, which in other words means it is likely that if the error had not occurred, the jury would have found White not guilty. The special concurrence argues that the Court nonetheless should decline to correct the error because it did not "seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings." Some of us find it difficult to imagine a criminal case in which the fairness, integrity, and public reputation of judicial proceedings would not be seriously affected by a court's doing nothing about an obvious evidentiary error after the court has held (or assumed) that the error likely resulted in the defendant going to prison rather than going free. The special concurrence cites no case from Georgia (or elsewhere) in which a court has applied the plain error standard in this way. In any event, because we have concluded that the obvious error in this case did not likely affect the outcome of White's trial, we need not decide whether it "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings."