Gibbs v. State
| Decision Date | 27 June 1990 |
| Docket Number | No. A90A0250,A90A0250 |
| Citation | 196 Ga.App. 140,395 S.E.2d 387 |
| Parties | GIBBS v. The STATE. |
| Court | Georgia Court of Appeals |
J. Robert Joiner, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Richard E. Hicks, Constance C. Russell, Asst. Dist. Attys., for appellee.
Defendant, convicted of two counts of rape, OCGA § 16-6-1(a), appeals, contending that the court improperly refused to allow him to thoroughly cross-examine the teenage victim.
Viewed in favor of the verdict, the evidence was that Gibbs lived with the victim and 8 to 10 other people. According to the victim and corroborating witnesses, the first rape occurred in October 1987 and the second on January 16, 1988. The victim's father took her to the hospital on January 19, but the doctor's exam produced inconclusive findings.
1. Gibbs introduced no evidence. Instead, he sought to impeach the victim through her cross-examination, plus that of the doctor to the effect that she said Gibbs raped her on additional occasions. The court conducted an in camera hearing and disallowed this evidence based on OCGA § 24-2-3 (the Rape Shield Statute). It provides in subsection (a) that "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."
Subsection (b) provides that "[i]n any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness may be introduced if the court ... finds that the past sexual behavior directly involved the participation of the accused or 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...." 1
Despite repeated inquiries by the court, Gibbs disavowed any intent to invoke consent as a defense. He further denied that he had ever had sexual relations with the victim. His sole intention was to "attack the credibility of the victim," to cause a reasonable doubt that the incidents in the indictment even happened.
The Rape Shield Statute limits inquiries or suggestive innuendos concerning the sexual background of the rape victim absent compliance with its terms. It represents "the exclusive means for admitting evidence relating to the past sexual behavior of the complaining witness ... The res gestae rule, impeachment techniques and other traditional means for introducing evidence which is otherwise inadmissible can have no effect in this situation." Johnson v. State, 146 Ga.App. 277, 280, 246 S.E.2d 363 (1978); Veal v. State, 191 Ga.App. 445, 447(4), 382 S.E.2d 131 (1989).
Gibbs denied both alternative prerequisites of the statute, i.e., that he had ever had sexual relations with the victim or that he did but she consented. See Marks v. State, 192 Ga.App. 64(2), 383 S.E.2d 626 (1989). His proffer indicated only that she might have said defendant raped her also on occasions other than the two charged. Rape is not consensual sexual behavior, which is what the statute alludes to. Moreover, it is not clear how such evidence would have aided defendant.
The proffer also failed to show how the evidence would impeach the victim. Haynes v. State, 180 Ga.App. 202, 203(3), 349 S.E.2d 208 (1986). Despite Gibbs' argument, the present case is dissimilar from Smith v. State, 259 Ga. 135, 137(1), 377 S.E.2d 158 (1989), cert. denied, 493 U.S. 825, 110 S.Ct. 88, 107 L.Ed.2d 53 (1989) which involved prior false accusations by the victim against other men. Here, there was no indication that the victim was lying about the other incidents of rape by Gibbs. In fact, such evidence would have been admissible as proof of guilt rather than innocence. See, e.g., Felker v. State, 252 Ga. 351, 359(1), 314 S.E.2d 621 (1984), for the principles pertaining to the admissibility of other criminal acts.
2. The enumeration dealing with the examining doctor's recollection of the victim's reference to more than two rapes by Gibbs is controlled by Division 1.
3. Defendant enumerates that the court's failure to allow him to cross-examine the victim with regard to sexual acts with males other than defendant and the fact that she was "quite possibly pregnant" when she went to the doctor violated his federal Sixth Amendment right to confrontation. He cites Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988).
Defendant did not specifically invoke the Sixth Amendment right during the in camera hearing or otherwise. He argued only that such evidence was relevant to the victim's credibility and not precluded by the Rape Shield Statute. Those are the only grounds which will be considered. Prince v. State, 257 Ga. 84, 86(3), 355 S.E.2d 424 (1987). The statute has previously been held constitutional and not...
To continue reading
Request your trial
-
Farley v. State
...purpose for the cross-examination, however, it was a factor in the exclusion by the trial court. See also Gibbs v. State, 196 Ga.App. 140(3), 395 S.E.2d 387 (1990) (holding that cross-examination was not applicable on the For specific cross-examination as to bias and prejudice, such bias an......
-
Griffin v. State
...such factors as ' "... interrogation that (would be) repetitive or only marginally relevant(.)" [Cit.]' [Cit.]" Gibbs v. State, 196 Ga.App. 140, 142(3), 395 S.E.2d 387 (1990); compare Boggs v. State, 195 Ga.App. 605, 394 S.E.2d 401 (1990). " 'The extent of cross-examination with respect to ......
-
Postell v. State
...or suggestive innuendoes concerning the sexual background of the rape victim absent compliance with its terms." Gibbs v. State, 196 Ga.App. 140, 141, 395 S.E.2d 387 (1990). "[E]vidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness's marital his......
- City of College Park v. Batson-Cook Co., BATSON-COOK