Chisholm v. State
| Decision Date | 24 April 2020 |
| Docket Number | A20A0312 |
| Parties | CHISHOLM v. The STATE. |
| Court | Georgia Court of Appeals |
Amanda Jones Walker, for Appellant.
Margaret Heap, District Attorney, Jennifer L. Parker, Assistant District Attorney, for Appellee.
Jonathan Raymond Chisholm appeals from the denial of his plea in bar of former jeopardy, arguing that the trial court erred by granting the State's motion for mistrial on the basis that the defense attorney's cross-examination of the victim violated OCGA § 24-4-412 ("the Rape Shield Statute"). For the reasons that follow, we affirm.
"[T]he standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's findings support its conclusion."1
Here, the record shows that Chisholm was charged with rape and aggravated sodomy. At trial, Chisholm's attorney argued during his opening statement that the sexual interaction between Chisholm and the victim was consensual. The victim testified that on January 19, 2017, when she was 16 years old, she was walking home in the evening when Chisholm, an adult neighbor, approached her. Chisholm suggested that the two take a shortcut through a ditch-like path, and the victim agreed, despite feeling uncomfortable. Chisholm asked her "a lot of questions," which she answered, but she began to feel apprehensive when he stopped her in a secluded area. The victim testified that Chisholm then kissed her, had her lie on the ground on his shirt, held her down by her wrists so that she could not move, covered her mouth with his hand, and penetrated her with his penis against her will.
During cross-examination of the victim, the following colloquy took place:
The State immediately objected, and counsel approached the bench. After the trial court noted that they were "getting into rape shield here," defense counsel argued that The court responded that he would not permit defense counsel to "get into any other prior sexual —," and defense counsel interjected, "It's part of the res gestae of this case."
The State moved for a mistrial. The trial court initially advised that it would instruct the jury to disregard the statement, and defense counsel continued to argue that he had a right to cross-examine the victim about her conversation with Chisholm. After excusing the jury and the victim, the court engaged in a lengthy colloquy with counsel on the issue. After having the court reporter read back defense counsel's question to the victim regarding her virginity, the court concluded "that the defense violated rape shield by asking a question related to her sexual conduct before this incident[,] which is strictly improper," but questioned whether granting a mistrial would raise double jeopardy concerns. After breaking to permit the parties to research the issue, the colloquy resumed, with the court hearing detailed arguments from both parties, including regarding the possibility of giving a curative instruction. In particular, the State argued that The trial court then granted the State's motion for a mistrial.
This appeal followed.
1. Chisholm contends that the trial court erred by denying his plea of former jeopardy because his cross-examination of the victim did not violate the Rape Shield Statute. We disagree.
In the instant case, the Rape Shield Statute barred defense counsel's question about the victim's "nonchastity" because it related to her past sexual behavior,4 and it did not fall within the single statutory exception set forth in OCGA § 24-4-412 (b) (2011) because it did not "directly involve[ ] the participation of the accused." Chisholm's argument that the question is admissible for other purposes, including impeachment, credibility, and evidence of motive and state of mind of both the victim and Chisholm is without merit. "[I]f evidence of the witness's past sexual behavior falls outside the scope of the sole statutory exception contained in the former Rape Shield Statute, it is inadmissible, and appellate courts cannot write additional exceptions into the statutory framework."5
2. Chisholm argues that the trial court erred by denying his plea of former jeopardy because there was no manifest necessity to declare a mistrial and that limiting instructions would have cured any violation of the Rape Shield Statute. This enumeration presents no basis for reversal.
Once a jury is impaneled and sworn, jeopardy attaches and a defendant is entitled to be acquitted or convicted by that jury. If a mistrial is declared without the defendant's consent or over his objection, he may be retried only if there was a manifest necessity for the mistrial. A manifest necessity exists when the defendant's right to have the trial completed must be subordinated to the public interest in affording the prosecutor a fair opportunity to present evidence to an impartial jury, and the ends of substantial justice cannot be attained without discontinuing the trial. The trial court's decision that there was a manifest necessity to grant a mistrial is entitled to great deference.6
And "[w]here, as here, there is no showing of prosecutorial misconduct, a trial court has broad discretion to decide whether to grant a mistrial."7
"[T]his Court, the Supreme Court of Georgia, and the United States Court of Appeals for the Eleventh Circuit have held that the introduction of evidence prohibited by the Rape Shield Statute gives a court grounds to find manifest necessity for a mistrial."9 Furthermore, "a single unanswered question by defense counsel about the victim's sexual history may alone give rise to the manifest necessity for a mistrial."10
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Priddy v. State
...admissible for other purposes, including proof of the victim's motive or state of mind, is without merit.5 See Chisholm v. State , 355 Ga. App. 19, 22 (1), 842 S.E.2d 327 (2020) (defendant's argument that questions pertaining to the victim's nonchastity were admissible for other purposes, i......