Ray v. State

• Decision Date: 02 April 2020
• Docket Number: A18A0333
• Court: Georgia Court of Appeals
• Parties: RAY v. The STATE.

356 Ga.App. 266

841 S.E.2d 477

RAY

v.The STATE.

A18A0333

Court of Appeals of Georgia.

April 2, 2020

Reconsideration Denied July 16, 2020

Grisham & Poole, Scott Thomas Poole ; Speights Law, Amanda Gaddis Speights, Benjamin James Huntington, for Appellant.

Shannon Glover Wallace, District Attorney, Lara A. Snow, for Appellee.

Phipps, Senior Appellate Judge.

This is the second appearance of this criminal matter before this Court. In Ray v. State , 345 Ga. App. 522, 812 S.E.2d 97 (2018) (" Ray I "), we rejected most of appellant James Roy Ray's assertions of error concerning his conviction for rape and sexual battery, but vacated the order denying his motion for new trial and remanded for further proceedings as to whether trial counsel was ineffective in failing to assert a plea in bar and whether the trial court erred in excluding evidence concerning the victim's aunt's false accusations of sexual misconduct in a prior matter. Id. at 528-530 (3) (f), (4), 812 S.E.2d 97. On the second of these issues, the Supreme Court of Georgia vacated our opinion and remanded to this Court with instruction to "reconsider [our] decision in the light of" State v. Burns , 306 Ga. 117, 829 S.E.2d 367 (2019), which overruled the precedent on which we had relied. See Burns , 306 Ga. at 121 (2), 829 S.E.2d 367 (abrogating the "per se rule of admissibility for evidence of prior false allegations" established in Smith v. State , 259 Ga. 135, 137 (1), 377 S.E.2d 158 (1989) ). State v. Ray (Case No. S18C1201) (decided August 19, 2019) (by order). On remand, we apply Burns and remand the case to the trial court with direction that it consider both the merits of Ray's remaining ineffective assistance claim and whether the evidence of the victim's aunt's false accusations is admissible under OCGA § 24-4-403 ("Rule 403").

Our previous opinion laid out the relevant facts as follows:

Viewed favorably to the jury's verdict, the evidence shows that the victim, a mentally challenged adult, lived with her aunt and several cousins. Ray, who was also related to the victim, visited the home on occasion, and the family spent time at his house, as well. In December 2009, the victim disclosed to a family member that Ray had assaulted her. The victim's aunt reported the disclosure to the police.

During the ensuing investigation, the victim submitted to a forensic interview and described several instances of sexual abuse by Ray. The victim confirmed that abuse at trial, testifying that on various occasions Ray had inserted his "boy part" into her "girlie part," touched her "girlie part" with his tongue and finger, placed a sex toy on her "girlie part," and touched her breast with his tongue. She further testified that Ray never asked whether he could touch her, that she did not want to have sexual relations with him, and that the encounters made her feel dirty.

345 Ga. App. at 522-523, 812 S.E.2d 97.

Some weeks before trial, the State filed a motion to exclude "any testimony of alleged prior false allegations [by the victim] of sexual abuse" absent a determination that the testimony was relevant under OCGA § 24-1-104 and a "reasonable probability" that the prior allegations were false. See, e.g., Kelley v. State , 233 Ga. App. 244, 251 (5), 503 S.E.2d 881 (1998) (among cases disapproved in Burns , 306 Ga. at 124 (2) n. 3, 829 S.E.2d 367 ) (requiring a showing of "reasonable probability" that prior allegations of sexual abuse were false in order for evidence of those allegations to be admissible). A few days before trial, the State moved (more specifically) to exclude testimony concerning an accusation made in the late 1990s by a three-year-old child against her father. The accusation was allegedly made in the presence of the deceased aunt of the victim in the case-in-chief.

At the pretrial hearing on the State's motion, the State argued that Ray should be barred from presenting testimony concerning the prior accusation, which the State saw as bolstering the defense's claim that the deceased aunt had coached the victim in this case. The defense responded with a proffer of testimony from the aunt's daughter showing that the aunt and other members of the victim's family had threatened and forced the daughter to make a false report that the daughter herself had been raped. After getting permission to treat the aunt's daughter as a hostile witness, the defense attempted to elicit testimony about this false report. The aunt's daughter admitted that she had been persuaded to report a rape, but refused to discredit her dead mother in any further detail. At the conclusion of the proffer, the trial court held that testimony concerning the aunt's false reports was inadmissible, and filed orders explaining that such testimony was not "relevant" or "[ ]admissible absent a further order of the Court."

Our opinion in Ray I recounts the proceedings that followed:

Ray's primary defense at trial was that various individuals had convinced the mentally disabled victim to fabricate the allegations against him. He ... claimed that the victim was influenced before the December 29, 2009 interview. But through his cross-examination of the victim and other witnesses, Ray also intimated that relatives and state officials had influenced her trial testimony after the interview occurred.

...

[On his first appeal,] Ray argue[d] that the trial court erred in excluding evidence that the victim's aunt had, on several previous occasions, falsely accused other individuals of sexual misconduct. ... Ray [had] asserted [at trial] that the family of the mentally[ ]challenged victim had convinced her to fabricate the allegations against him, and the aunt made the initial report to police.

(Emphasis in original.) Ray I , 345 Ga. App. at 524 (1), 529 (4), 812 S.E.2d 97. In Ray I , we rejected most of Ray's claims of error, but vacated his conviction and remanded for further proceedings as to (1) his ineffectiveness claim concerning trial counsel's failure to assert a plea in bar under Barker v. Wingo , 407 U. S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ; and (2) the exclusion of evidence of the deceased aunt's prior false reports of sexual abuse. 345 Ga. App. at 528-529 (3) (f), (4), 812 S.E.2d 97. We now address the issue identified by our Supreme Court: whether evidence of the deceased aunt's prior false reports, previously deemed inadmissible without a determination of a "reasonable probability" of their falsity, should be admissible under Rule 403.

On this issue, the State's motions in limine and the trial court's orders granting the motions cite only OCGA § 24-1-104, which provides in relevant part:

(a) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b) of this Code section . In making its determination, the court shall not be bound by the rules of evidence except those with respect to privileges. Preliminary questions shall be resolved by a preponderance of the evidence standard.

(b) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

...

(e) This Code section shall not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

(Emphasis supplied.) On its face, the statute concerns only "preliminary" determinations of relevance, and "shall not limit the right of a party to introduce before the jury evidence relevant to weight or credibility." OCGA § 24-1-104 (a), (e).

As we noted in our prior opinion, it may well be that testimony showing that the victim's deceased aunt, who reported the crimes at issue, had previously made false claims of sexual abuse "would be relevant to the veracity of the allegations here." Ray I , 345 Ga. App. at 529 (4), 812 S.E.2d 97. In any event, however, in order to make a definitive determination of whether such testimony was relevant, the trial court was obligated to consider whether the probative value of the evidence was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of...