Larocque v. State

• Decision Date: 05 December 1996
• Docket Number: No. A96A1123,A96A1123
• Citation: 224 Ga.App. 92,479 S.E.2d 450
• Parties: , 96 FCDR 4346 LAROCQUE v. The STATE.
• Court: Georgia Court of Appeals

Page 450

479 S.E.2d 450

224 Ga.App. 92, 96 FCDR 4346

LAROCQUE v. The STATE.

No. A96A1123.

Court of Appeals of Georgia.

Dec. 5, 1996.

Reconsideration Denied Dec. 19, 1996.

Certiorari Granted May 9, 1997.

Chandler & Britt, Walter M. Britt, Gregory D. Jay, Buford, for appellant.

Lydia J. Sartain, Dist. Atty., Lee Darragh, Asst. Dist. Atty., for appellee.

BLACKBURN, Judge.

Jerry Lee Larocque appeals his convictions of rape, false imprisonment, sexual battery, and battery.

1. Larocque contends the trial court erred by allowing the State to introduce testimony regarding purported threats and intimidation which put his character in issue.

Over Larocque's objection, the State was allowed to cross-examine him concerning alleged acts of intimidation and violations of his bond. Larocque's bond required that he stay a certain distance away from the victim's home and place of work. ¹ During cross-examination, Larocque denied purchasing a beverage from a Golden Pantry near the victim's home. However, a State witness testified that Larocque did make a purchase at that location. Larocque also denied going to the victim's place of employment, as to which a State witness testified that he saw Larocque drive by the back of the victim's place of employment. The State maintained, and the trial court agreed, that this evidence was admissible to show Larocque's attempts to intimidate the victim. The State's evidence, however, failed to show any intimidation by Larocque against the victim or any other witness.

"Evidence of an act by an accused, intended to obstruct justice or avoid punishment for the crime for which he or she is on trial, is admissible if the act constitutes an admission by conduct." (Citation and punctuation omitted.) Riden v. State, 151 Ga.App. 654, 657, 261 S.E.2d 409 (1979). Therefore, we have previously held that evidence of a defendant's threats against witnesses are admissible where such threats are properly linked to the defendant. See Conner v. State, 160 Ga.App. 202, 203, 286 S.E.2d 441 (1981) (evidence that defendant hired a "hitman" to kill accomplice and co-indictee who planned to testify against the defendant properly admitted); Payne v. State, 152 Ga.App. 471, 473, 263 S.E.2d 251 (1979) (evidence of defendant's purported threats and actions against State witness admissible); Riden, supra (defendant's properly authenticated threatening letters sent to victim admissible); Grindle v. State, 151 Ga.App. 255, 256, 259 S.E.2d 663 (1979) (evidence that defendant attempted to influence testimony of witness admissible); Smith v. State, 142 Ga.App. 1, 3-4, 234 S.E.2d 816 (1977) (defendant's threats to witnesses regarding their testimony admissible).

The present case, however, does not involve evidence of threats or threatening conduct. The only evidence presented indicates that Larocque was seen at locations near the victim's residence and place of employment. The victim did not testify that Larocque threatened her. Furthermore, the witnesses who testified that they saw Larocque did not indicate that he exhibited threatening or intimidating behavior. While such evidence might have been admissible in a bond revocation hearing, we find that it has no relevance to the present trial. Furthermore, its potential prejudicial effect on Larocque requires that his convictions be reversed. The jury could have inferred that Larocque's conduct constituted a threat against the victim and was an admission of guilt. See Fields v. State, 260 Ga. 331, 333, 393 S.E.2d 252 (1990) (admission of threatening phone call to witness without evidence connecting calls to the defendant resulted in reversible error).

In Riden and similar cases cited supra, it is the evidence of an actual threat communicated to the witness or victim that allows the jury to find an admission by conduct. But as in Fields, the State's evidence in this case never connected Larocque to any act which could be considered intimidation of the victim. The mere fact that he may have violated the conditions of his bond does not allow the jury to infer that his goal was to intimidate the victim. To do so allows the jury to engage in rank speculation.

2. The trial court properly excluded evidence of the victim's past sexual relationship with Larocque, including their mutual participation in "rough sex." OCGA § 24-2-3(a) provides that evidence of the victim's past sexual behavior shall not be admissible. The exception provided in OCGA § 24-2-3(b) was not applicable to the present case as the trial court properly concluded that Larocque's offer of proof did not support an inference that Larocque "could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution." OCGA § 24-2-3(b).

3. Larocque's remaining enumeration of error is rendered moot as it will not recur upon any retrial of this matter.

Judgment reversed.

McMURRAY, BIRDSONG and POPE, P.JJ., and JOHNSON and RUFFIN, JJ., concur.

BEASLEY, C.J., and ANDREWS and SMITH, JJ., dissent.

BEASLEY, Chief Judge, dissenting.

I respectfully dissent because the admission of the evidence of which defendant complains did not constitute reversible error, as held in Division 1 of the majority.

1. Several witnesses testified they saw defendant near the victim's residence and place of work prior to trial. Not all of this evidence was adequately objected to. When the district attorney first approached the subject of visits to the convenience store at a certain crossroads in Hall County near the victim's residence, during cross-examination of defendant, defendant objected on the ground that it was not relevant to the particular incident for which he was on trial. In a bench conference the court asked the district attorney to connect it up, and the district attorney explained that defendant would get close to the victim's residence just prior to a trial setting, nearly violating his bond condition that he stay away from her. The State's theory was that this was an attempt to intimidate her with respect to the trial. That being a reasonable inference and the very reason it was made a condition of bond (so she would not be intimidated and harassed before trial), the court permitted the questions about the store visits to be asked.

Thus the relevancy objection to evidence of his visits to the nearby store was preserved.

Continuing at the bench conference, defendant asked the court if the State was required to have given defendant advance notice of these incidents, as "similar transactions." The court responded that it did not think so. Defendant said "all right," but the court liberally construed this as a second ground of objection and overruled it as well as the objection that it was not relevant. Defendant does not raise as enumeration of error the lack of notice ground of objection, nor is it mentioned in the argument in support of enumeration of error "C".

In further cross-examination the defendant denied visiting the store, stating that to have done so could have violated the condition of his bond, as would visiting her work premises at a certain location. He admitted that he had no business in Hall County and said he would be in Hall County only if I-85 traversed it on the route between Lawrenceville and Athens. He agreed that he was not to have any contact with the prosecutrix, his former girl friend, directly or indirectly, and that before this condition was placed on him he had attempted to call her from the jail the day after he was arrested. There was no objection to this nor to the cross-examination regarding his visit to a car rental business diagonally across the intersection from the Home Depot where the victim worked, at another time close to a trial setting. Defendant testified that he was there to rent a car for himself and his brother-in-law and had used his own white Ford Festiva. He admitted that he lived in Lawrenceville and this rental agency was in Stone Mountain.

He also denied slowly driving a white pickup truck on a service road behind a Home Depot at which the victim was working, two days before the car rental incident. He denied even knowing that the victim was at that location. The cross-examination about this was not objected to, nor was there objection to the subsequent testimony from the convenience store clerk and a Home Depot employee who both placed defendant at the locations in close proximity to the victim at the time defendant had denied his presence. The store clerk testified that defendant came to the convenience store five or six times within eleven days, about the same time each day, bought a certain soft drink, and was memorable because he was solemn and never looked her in the eye. The Home Depot employee had worked with defendant and testified that he recognized him out behind the store, driving a white Mazda truck five to ten mph.

On none of the many pages of the transcript cited by appellant in the recitation of this enumeration of error is there any objection other than the one described above involving the relevancy of the Hall County store visits. Yet these pages include not only testimony of defendant but also of the witnesses who saw defendant at the store near the victim's residence and near the place she worked or she sometimes worked. Both the State and defendant examined these witnesses. The very fact that defendant now takes the position that it was a continuing objection and he did not have to object to each incident shows that he considered detrimental all evidence which could lead a jury to infer he tried to intimidate the victim before trial or get her to relent. We cannot ignore the history of their relationship and its nature at the time of the crimes after she had broken it off. The one ruling, on the relevancy objection to the cross-examination of defendant about his visiting a nearby store when he had no business in Hall County and was under bond to stay away from the victim does not cover...