Banks v. State

• Decision Date: 21 January 1998
• Docket Number: No. A97A1823,A97A1823
• Citation: 495 S.E.2d 877,230 Ga.App. 258
• Parties: BANKS v. The STATE.
• Court: Georgia Court of Appeals

Page 877

495 S.E.2d 877

230 Ga.App. 258

BANKS v. The STATE.

No. A97A1823.

Court of Appeals of Georgia.

Jan. 21, 1998.

Jo C. Nesset-Sale, Athens, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

BEASLEY, Judge.

When a nurse responded affirmatively to defense counsel's inquiry whether the victim had reported a prior act of consensual intercourse, the court declared a mistrial in Jeffrey Banks' trial for rape (OCGA § 16-6-1), aggravated assault (OCGA § 16-5-21), false imprisonment (OCGA § 16-5-41), and false statements (OCGA § 16-10-20). Prior to retrial, Banks moved to dismiss on grounds of double jeopardy under the United States and Georgia Constitutions and under OCGA § 16-1-8, which motion the court denied. The issues are (i) whether the court's pre-trial order allowing Banks to present his own testimony that he and the victim had previously had consensual intercourse permitted him under Georgia's Rape Shield Statute (OCGA § 24-2-3) to ask the nurse about the victim's statement, and (ii) whether the inquiry and answer were so prejudicial as to create a manifest necessity to declare a mistrial.

1. "The United States and Georgia Constitutions proscribe a defendant's being twice placed in jeopardy for the same offense. United States Constitution, Fifth Amendment; Georgia Constitution, Art. I, Sec. I, Par. XVIII. OCGA §§ 16-1-6, 16-1-7, and 16-1-8 extend the proscription of double jeopardy beyond those constitutional limits by placing limitations upon multiple prosecutions, convictions and punishments for the same criminal conduct. A defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled and a jury has been impaneled and sworn." ¹

Under OCGA § 16-1-8(a)(2), a prosecution is barred if the defendant was formerly prosecuted for the same crime and the former prosecution was terminated improperly after the jury was impaneled and sworn. A prosecution is not terminated improperly under this statute if the court declares a mistrial based on the misconduct of the defendant in introducing prohibited evidence that irreparably prejudices the State's case. ² Similarly, the "double-jeopardy clause of the Fifth Amendment, as applicable to the states through the due-process clause of the Fourteenth Amendment, does not bar retrial of a criminal defendant following declaration of a mistrial over his objection where there is 'manifest necessity' for declaration of the mistrial or the 'ends of public justice' would be defeated by allowing the trial to continue. Illinois v. Somerville, 410 U.S. [458, 93 S.Ct 1066, 35 L.Ed.2d 425 (1973) ]." ³ Nor does the Georgia Constitution bar a retrial under such circumstances. ⁴ In determining whether there was manifest necessity, we consider whether Banks' inquiry of the nurse violated the Rape Shield Statute, and if so, whether the inquiry and answer caused irreparable prejudice.

2. In any prosecution for rape, Georgia's Rape Shield Statute ⁵ prohibits the introduction of evidence relating to the past sexual behavior of the victim. The statute "is a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused. It prohibits all evidence relating to the past sexual behavior of the complaining witness, including marital history, mode of dress, general reputation for promiscuity, nonchastity or sexual mores contrary to community standards; in other words, her reputation concerning past sexual activity with persons other than the defendant." ⁶ "OCGA § 24-2-3 assists the truth-seeking process by preventing the jury from becoming inflamed or impassioned and deciding the case on irrelevant and prejudicial evidence." ⁷

The statute provides for a limited exception subject to a specified procedure that is "the exclusive means for admitting evidence relating to the past sexual behavior of the complaining witness." ⁸ The defendant must first notify the court of an intent to introduce the evidence, whereupon the court conducts an in camera hearing to consider the defendant's offer of proof. ⁹ The court must make one of the following sets of findings before the evidence is admissible: (i) "that the past sexual behavior directly involved the participation of the accused and ... 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," or (ii) 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." ¹⁰ If the court makes one of these sets of findings, "the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced." ¹¹ Only then may the defendant introduce the evidence, and then only as set forth in the court order. ¹²

With regard to the question asked of the nurse, Banks did not follow this procedure. Prior to trial he did notify the court of his intent to introduce evidence of prior sexual relations with the victim. At the in camera hearing on the first day of trial, defense counsel claimed that a few weeks prior to the incident, Banks and the victim had engaged in voluntary intercourse under similar circumstances, and that this contributed to his belief that the later incident was consensual. Counsel stated that Banks would testify to this, and that a police officer and a friend of Banks would both testify that Banks told them of this prior act. The prosecution doggedly pressed defense counsel to ensure the defense intended to present no other evidence of this alleged earlier incident. After extensive argument, the court found the evidence admissible and specifically limited it to the proffer made.

At no time did Banks proffer that a nurse would testify that the victim admitted to a prior act of voluntary intercourse, nor did he claim the victim had ever admitted it to anyone. Nevertheless, when the nurse who had treated the victim was testifying, Banks asked whether in taking the history of the victim she had established that three to four weeks before the alleged rape the victim had had voluntary intercourse. This statement of the victim appeared in the nurse's admissions report, which the defense had received ten days prior to trial. Just before the State objected, the nurse responded affirmatively.

The State moved for curative instructions and then for a mistrial, arguing that Banks had not included this admissions report statement in his proffer, and further that had he done so, the State would have presented evidence from the victim and her ex-boyfriend that the statement referred to an act of intercourse with the friend, not with Banks. Conceding the evidence had not been included in the proffer, Banks' counsel explained she had failed to notice it until reviewing the report during the direct examination of the nurse. Counsel argued she nevertheless had the latitude to cross-examine on the statement because it coincided with Banks' proffered testimony about the prior act of consensual intercourse. After lengthy argument and a recess, the court granted the State's motion for a mistrial.

Where the defendant has failed to include certain evidence in his proffer, the court is unable to make the required finding that the missing evidence concerns past sexual behavior directly involving the participation of the defendant, or that the missing evidence is so highly material that it substantially supports a consent defense. ¹³

This case exemplifies the purpose for requiring a complete proffer. Had Banks proffered in the in camera hearing that he intended to introduce the statement in the admissions report as evidence of consensual intercourse with him, the State would have had the opportunity to elicit from the victim and her ex-boyfriend that the statement did not refer to Banks. If based on the evidence presented the court found the statement did not refer to sexual activity involving Banks, the court would have precluded its admission. On the other hand, if the court found it did involve him and was indicative of consent, the court would have ordered the manner in which it would be introduced. Banks completely bypassed these procedural safeguards by failing to give any notice of an intent to ask about the sexual history contained in the admissions report. Because the procedure in the statute is the "exclusive means" for admitting any past sexual history of the victim in a rape prosecution, ¹⁴ Banks' failure rendered any reference to the statement inadmissible.

Banks argues that the State's failure to object before the nurse responded constitutes waiver, citing Garner v. State. ¹⁵ This argument is specious. The record shows the prosecution objected so quickly that the court and parties were unsure whether the nurse had answered the question before the objection, and that the court had the tape of the proceedings played back to determine this. Furthermore, objecting after a one-word answer is hardly dilatory. There is no waiver here. In contrast, Garner found waiver where the party failed to object to the prejudicial evidence when discussed on direct and did not object until the matter was raised again on redirect. ¹⁶ When the matter was raised yet a second time on redirect, the party made no objection or motion until after recross-examination was concluded. ¹⁷

3. The second issue is whether the introduction of evidence prohibited by the Rape Shield Statute gives a court grounds to find manifest necessity for a mistrial. This Court ...