McGahee v. Massey
| Decision Date | 16 February 1982 |
| Docket Number | No. 80-5910,80-5910 |
| Citation | 667 F.2d 1357 |
| Parties | Robert McGAHEE, Petitioner-Appellee, v. Raymond D. MASSEY, Superintendent, Union Correctional Institution, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Max Rudmann, Robert L. Bogen, Asst. Attys. Gen., West Palm Beach, Fla., for respondent-appellant.
Robert E. Austin, Jr., Leesburg, Fla., for petitioner-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before FAY, ANDERSON and CLARK, Circuit Judges.
A confrontation between the defendant's belatedly asserted fifth amendment right to remain silent and the prosecutor's ability to present fair comment on the evidence sets the legal stage for this appeal. The State of Florida appeals from the grant of a writ of habeas corpus by the Middle District of Florida on October 15, 1980. Having found the defendant to have waived his fifth amendment right by testifying on the merits of his case and having determined no plain error existed, we reverse.
Robert C. McGahee was convicted of rape on April 26, 1974, by a Brevard County jury and was sentenced to a term of six months to thirty years. The defendant appealed his conviction to the Fourth District Court of Appeal, which affirmed per curiam on October 31, 1974. 1 The Florida Supreme Court subsequently denied the defendant's petition for writ of certiorari. 2 Having exhausted his state remedies, the defendant filed a petition for writ of habeas corpus in the Middle District of Florida. He asserted three grounds upon which he sought relief:
(1) the trial court committed fundamental error in admitting testimony of prior incidents of indecent exposure or exhibitionism;
(2) the prosecutor's comment on the defendant's failure to testify prejudiced his right to a fair trial and violated his fifth amendment right; and
(3) the trial court committed fundamental error in denying defendant's motion for a directed judgment of acquittal.
The District Court issued a memorandum opinion granting the defendant's request for habeas corpus relief. In so doing, he relied solely upon the defendant's second ground as a basis for finding constitutional error. We do not presume to blaze the trail by reviewing issues not addressed by the District Court. But here, where the district court found it unnecessary to elicit testimony beyond the written record and that record is now before us in full, we find it in the best interest of judicial economy to review all of the grounds asserted.
The evidence introduced at trial included testimony from the prosecutrix concerning the sequence of events of October 11, 1973, the date of the rape. She testified that while sunbathing at Satellite Beach, she was approached by the defendant wearing a white see-through bikini bathing suit. He grabbed at her pants, made a suggestive remark, and then pushed her back into a sand dune where he raped her.
In addition to this testimony, the prosecution called police officers, the victim's mother, the examining physician and an additional identification witness, Kathie Hayes. Kathie Hayes testified that she had seen the defendant on two prior occasions, September 18 and 19, 1973, while she and her girlfriends were at the beach. On both days the defendant had worn a red see-through bikini bathing suit, he had walked towards them and exposed himself.
The prosecution proffered this testimony to the trial judge outside the presence of the jury in order to show the defendant's "manner of operation." Defense counsel lodged an immediate objection. The trial judge overruled the objection relying on Williams v. State, 110 So.2d 654 (Fla.1959). 3
Upon completion of Kathie Hayes' testimony, the prosecution rested its case. Defense counsel moved for a directed verdict of acquittal, which the judge denied. In the discussion which transpired during the subsequent charge conference, the judge asked if the defendant would be called upon to testify, and if not, whether defense counsel wanted "the charge" read. Defense counsel responded that he was unsure, but he would tell the judge of his decision in the morning.
The following morning the defendant testified as to his whereabouts on September 18th, the first day Kathie Hayes had seen him on the beach. He did not testify about the events of September 19th, nor of October 11th, the date of the rape. He attempted to prove he had been in Jacksonville on the 18th in order to impeach the credibility of Kathie Hayes. The trial judge strictly limited cross examination to questions concerning September 18th.
Objections entered by defense counsel during cross examination, however, alleged only that the questions were beyond the scope of direct examination. Not once did defense counsel object to cross examination by asserting the defendant's fifth amendment protection against self-incrimination. 4 The defense rested at the conclusion of the defendant's testimony.
Prior to closing argument, the prosecutor approached the bench. The following colloquy took place:
Mr. Johnston: Your Honor, I have rebuttal about the day in question, and I want to approach this issue. Don't want reversible error. My intention, unless the Court wants, the Defendant has taken the stand, and it is fair for me to comment.
Mr. Kutsche: The exercise of his right to testify.
The Court: I don't think it is error. 5
Defense counsel made no objection at this time.
During closing argument, the prosecutor made the following comment:
The defendant just a few minutes ago took the stand and said that he wasn't in Brevard County on the 18th. That's not the issue here today. That's not the issue at all. The issue is whether or not the defendant was here on the 11th. Whether he was in the sand on the 11th. On Vicki's stomach committing sexual intercourse with her, against her will. Ladies and gentlemen of the jury, why didn't the defendant talk about that? If there was some lack of resistance, or if there was something inconsistent about her story, why didn't he stand up and say, well, maybe we did have intercourse. He could have said, we didn't have intercourse. Those are the two things.
Assuming he said we did have intercourse, he would say, well, it was by her consent, or by her suggestion that we do it. Or that there was a slight bit of resistance, that after a point in time, she thought that was a pretty good idea. He didn't do that. He didn't do that at all, ladies and gentlemen of the jury, and it was his perfect and only opportunity to tell anybody what really happened. He could say, well, she was attacking me, for all that's concerned. It just doesn't follow that he wouldn't say anything at all about it, if he disagreed with it, or he could disagree with it by specific and true facts as to her resistance or lack of it. 6
Not only did defense counsel fail to object to these remarks, he provided additional comment in his rebuttal. 7 Notwithstanding the absence of objections and defense counsel's additional comment, the District Court found the prosecutor's remarks an impermissible comment on the defendant's silence.
The admission of Kathie Hayes' testimony serves as defendant's first ground in his request for relief. A thorough review of the relevant Florida law leaves us with the firm conviction that the testimony was properly admitted.
The Williams decision, relied upon by the trial judge, sets forth the law on the relevance of prior incidents in connection with proving identity and method of operation in a subsequent crime. The Florida Supreme Court held that such testimony 110 So.2d at 663. Reliance on Williams is well-founded in view of its factual similarity with the present case. In Williams, the defendant had hidden in the back seat of the victim's car outside a shopping center. Approximately six weeks prior to the rape for which he was on trial, he had hidden himself in the back seat of another girl's car at the same shopping center. In the prior instance, however, the girl had screamed and the defendant fled. This testimony was introduced to show identity and method of operation. The facts in the present case and the testimony proffered at trial emulate that in Williams. Kathie Hayes' testimony concerned an episode occurring approximately three and one-half weeks prior to the rape in issue and demonstrated the manner of operation, identity, and type of clothing worn by the defendant.
Not only did Kathie Hayes' testimony relate to the defendant's identity and method of operation, it contributed to negating the defense of consent. The Florida Supreme Court noted the relevance of such testimony for this purpose in Williams. Similarly, the defense in the present case evolved around what was considered the victim's lack of resistance to the defendant's advances. Under such authority, we find the trial judge properly admitted Kathie Hayes' testimony.
In addition, the court limited the use of Kathie Hayes' testimony by instructing the jury that the evidence of prior incidents could only be considered "upon the question of the defendant's identity, his plan or design,... or his mode of operating." By so doing, he eliminated any potential misconception as to the relevance and use to be given that testimony.
The defendant asserts as an alternative ground in his petition that the trial judge erred in denying his motion for a directed...
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