Herndon v. State

• Decision Date: 09 April 1998
• Docket Number: No. A98A0063.,A98A0063.
• Citation: 499 S.E.2d 918,232 Ga. App. 129
• Parties: HERNDON v. The STATE.
• Court: Georgia Court of Appeals

499 S.E.2d 918

232 Ga. App. 129

HERNDON v. The STATE.

No. A98A0063.

Court of Appeals of Georgia.

April 9, 1998.

Steven V. Bennett, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Martha P. Jacobs, Assistant District Attorneys, for appellee.

POPE, Presiding Judge.

Billy Joe Herndon was charged with rape, kidnapping, aggravated sodomy, aggravated assault, armed robbery, theft by taking, possession of a knife during the commission of a crime, driving under the influence, driving with a suspended or revoked license, and two counts of recidivism. In a May 1996 trial, a jury found Herndon guilty of theft by taking and driving under the influence, and the court withdrew the charges of driving with a suspended license. Because the jury was unable to reach a unanimous verdict, the judge declared a mistrial on the other counts and sentencing was delayed until all charges were fully adjudicated. In October 1996, Herndon was again tried and the jury convicted him of rape, kidnapping, aggravated sodomy, aggravated assault, and armed robbery. He was sentenced to three consecutive life sentences; two concurrent twenty-year sentences; and a twelve-month concurrent term.¹ Here, Herndon appeals, arguing that the trial court erred in allowing evidence of the photographic array; that the court committed harmful error by allowing evidence that the victim was a virgin at the time of the attack; and that his trial counsel was ineffective in failing to object to the court's adoption of a prior ruling regarding Herndon's statement. For the following reasons, we reject Herndon's arguments and affirm.

Construed most favorably to the verdict, the evidence showed that at about 8:30 p.m. on December 31, 1995, Herndon abducted the victim while she was waiting in her car in a convenience store parking lot for a friend. Herndon got into the victim's car, threatened the victim with a knife, and told her to back up the car. Herndon forced the victim to drive to a remote area where he had her stop the car. He then held a knife to her throat; forced her to remove her clothes; forced her to perform oral sex; and raped and sodomized her. Herndon then forced the victim out of the car and threatened to cut her up. Herndon drove off and left the victim lying on the ground. The victim eventually found help and was taken to the hospital. The victim described her attacker to the doctor and later to police.

The victim's father was called and en route to the hospital he saw Herndon driving the victim's car. The victim's father intentionally bumped the car, causing it to spin out of control. The victim's father then ran to the car and held a knife to Herndon's throat until police arrived. The victim's father identified Herndon at trial.

When the police arrived, they noticed that Herndon appeared to be under the influence of alcohol and they arrested him. Later, after being read his rights, Herndon gave a statement, which was read at trial, in which he denied the attack. In the statement Herndon said that he had gotten the victim's car from a friend about ten minutes before the wreck with the victim's father.

The victim identified Herndon as her attacker in a photographic line-up and later identified Herndon's tape recorded voice as that of her attacker. Again at trial, she identified Herndon as her attacker.

1. Herndon argues that the court erred in allowing into evidence the photographic line-up and testimony regarding it, because the line-up was impermissibly suggestive. Herndon also argues that there was a substantial likelihood of misidentification. We disagree with both contentions.

"[T]he test is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness' degree of attention, (c) the accuracy of the witness' prior description of the criminal, (d) the level of certainty demonstrated by the witness at the identification, and (e) the length of time between the crime and the identification." (Citations and punctuation omitted.) Smith v. State, 209 Ga.App. 540, 543(4), 433 S.E.2d 694 (1993); Daniels v. State, 207 Ga.App. 689, 691(4), 428 S.E.2d 820 (1993).

We first conclude that the identification procedure was not impermissibly suggestive. A review of the five photographs which were used in the line-up shows that the four individuals whose photographs were displayed with Herndon's shared many of his general physical characteristics. And there is no indication that the procedures used in showing the victim the photographic display were improper. Moreover, even assuming arguendo that the photographic identification procedure was impermissibly suggestive, there was not a substantial likelihood of irreparable misidentification. The victim had an extended period during which she observed Herndon at close proximity and she remembered seeing him previously at the convenience store; she paid attention to his face and recognized him when she saw him; her description of him was unwavering and accurate; she showed no hesitation in picking him out from the line-up; and, as Herndon concedes, very little time elapsed between the incident and subsequent identification. The court did not err in allowing the evidence.

2. Herndon argues that the trial court erred in allowing argument and testimony that the victim was a virgin before this assault. In his opening statement, the prosecutor stated that the victim had been a virgin at the time of the attack. Defense counsel objected and moved for a mistrial, but the trial court denied the motion. Later, during the State's case, a doctor who examined the victim testified that he had determined that she had been a virgin before the attack. Again defense counsel objected and the court ruled that the victim's prior sexual history was not relevant, except as it related to the doctor's examination. Accordingly, the court sustained the objection to the testimony generally, but overruled the objection as to evidence of the victim's prior sexual history which was relevant to the examination.

Here, Herndon argues that the court's overruling of his objection to these statements was erroneous. He argues that the victim's sexual history, or lack thereof, was not relevant to the charges and should have been excluded. Citing Jenkins v. State, 156 Ga.App. 387(5), 274 S.E.2d 618 (1980), and Collins v. State, 171 Ga.App. 906, 910(3), 321 S.E.2d 757 (1984), the State argues that evidence of the victim's virginity was relevant to prove the extent of the injuries caused by the rape.

We agree with Herndon that evidence that the victim was a virgin—meaning that she had not had prior sexual relations— was inadmissible. See Veal v. State, 191 Ga.App. 445, 447(4), 382 S.E.2d 131 (1989); see generally Johnson v. State, 146 Ga.App. 277, 246 S.E.2d 363 (1978); compare Villafranco v. State, 252 Ga. 188, 313 S.E.2d 469 (1984). To the extent that the court's ruling during the prosecutor's opening statement allowed statements about the victim's virginity, it was erroneous. Similarly, statements regarding the victim's virginity which the doctor testified were relevant to his examination of the victim were erroneously admitted. In reaching this conclusion,...