State v. Burns

• Decision Date: 10 June 2019
• Docket Number: S18G1354
• Citation: 829 S.E.2d 367,306 Ga. 117
• Court: Georgia Supreme Court
• Parties: The STATE v. BURNS.

306 Ga. 117

829 S.E.2d 367

The STATE

v.BURNS.

S18G1354

Supreme Court of Georgia.

Decided: June 10, 2019

Shannon G. Wallace, District Attorney, Cliff Head, Randall J. Ivey, Assistant District Attorneys, for appellant.

Grisham & Poole, Scott T. Poole, Michael A. Ray, for appellee.

D. Victor Reynolds, District Attorney, Michael S. Carlson, John S. Melvin, Charles P. Boring, John R. Edwards, Amelia G. Pray, Jaret T. Usher, Assistant District Attorneys; James L. Ford, Sr., amici curiae.

Benham, Justice.

In Smith v. State , 259 Ga. 135 (1), 377 S.E.2d 158(1989), this Court held that, once certain procedural requirements are satisfied, a defendant in a sexual offense prosecution may adduce evidence at trial that the complaining witness has made prior false accusations of sexual misconduct and, further, that such evidence is admissible both to attack the credibility of the victim and as substantive evidence tending to prove that the conduct underlying the charges did not occur.In its decision below, the Court of Appeals followed Smith to reverse the trial court, which had excluded such evidence from being presented during trial under OCGA § 24-4-403.SeeBurns v. State , 345 Ga. App. 822, 813 S.E.2d 425(2018).We subsequently granted certiorari review to reconsider Smith , and, though we conclude that it was wrongly decided, we affirm the ultimate judgment of the Court of Appeals reversing the trial court.

AppelleeJames Phillip Burns was charged with aggravated sexual battery, aggravated sodomy, and incest.The charges followed the discovery of a social media message written by Burns’s stepdaughter, K.R., detailing an alleged July 2015 sexual encounter with Burns.The message also included the following statement: "And my brother’s best friend tried to rape me."K.R. later acknowledged that the attempted rape statement was "made up," and the State moved in limine to prevent Burns from mentioning it at trial.The trial court granted the State’s motion, concluding "that the probative value of the statement in question is substantially outweighed by the danger of unfair prejudice and confusion of the issues and is inadmissible under OCGA § 24-4-403."The trial court certified the issue for immediate review, and the Court of Appeals granted Burns’s application for interlocutory appeal.

The Court of Appeals reversed the trial court, holding, in relevant part, that the trial court had misapplied the exclusionary provision in OCGA § 24-4-403 but that, also, "under the principles recognized in Smith , this exclusionary rule must yield to greater constitutional concerns," namely, a "defendant’s right of confrontation and right to present a full defense."(Punctuation and citation omitted.)Burns , 345 Ga. App. at 824–825, 813 S.E.2d 425.The Court of Appeals also indicated that these "constitutional concerns" resulted in the evidence being admissible under OCGA § 24-6-608 (b).We subsequently granted the State’s petition for certiorari, asking the parties to address the following questions:

1.This Court held in [ Smith ] that evidence of prior false allegations by a victim of sexual misconduct is admissible in a criminal case regarding alleged sexual misconduct.Was our decision one of constitutional law or of evidence law?

2.If our holding in Smith was one of constitutional law, was it rightly decided?If it was instead an evidentiary holding, does it remain good law under the new Evidence Code?

3.Given the answers to the first two questions, in a criminal proceeding involving alleged sexual misconduct, does OCGA § 24-4-403 apply to evidence of prior false accusations of sexual misconduct made by the victim or a person close to the victim?

We address each legal question in turn, applying a de novo standard of review.SeeFulton County Bd. of Educ. v. Thomas , 299 Ga. 59, 61, 786 S.E.2d 628(2016).

1.As relevant here, our decision in Smith was two-fold.We first held that, as a threshold matter, Georgia’s Rape Shield Statute, as it then existed, "does not prohibit testimony of previous false

allegations by the victim" because such "evidence does not involve the victim’s past sexual conduct but rather the victim’s propensity to make false statements regarding sexual misconduct."Smith , 259 Ga. at 137, 377 S.E.2d 158.We then held, in response to the State’s argument that other parts of our then-existing Evidence Code prohibited the admission of false allegation evidence, that "evidentiary rule[s] preventing evidence of specific acts of untruthfulness must yield to the defendant’s right of confrontation and right to present a full defense."Id.In conclusion, we announced that evidence of a prior false allegation was admissible during trial following " ‘a threshold determination [made by the trial court outside the presence of the jury] that a reasonable probability of falsity exists.’ "Id.(quotingClinebell v. Commonwealth , 235 Va. 319, 368 S.E.2d 263, 266(1988) ).

Though the parties disagree as to the exact nature of our holdings in Smith , the language of the opinion combined with the authority cited therein reflect that the decision was premised on both evidence law and constitutional law.The first holding was a straightforward, plain-language application of the then-existing Rape Shield Statute, which is a rule of evidence.See former OCGA § 24-2-3(2010)(discussing admissibility of "evidence relating to the past sexual behavior of the complaining witness").The second holding, though nebulous, appears to invoke the Sixth and Fourteenth Amendments.Indeed, in response to Smith’s argument that his constitutional rights would be violated if such evidence were ruled inadmissible, this Court indicated that the rules of evidence "must yield" to the right of confrontation, as well as the right to present a full defense.Smith , 259 Ga. at 137, 377 S.E.2d 158.Notably, the authority cited in Smith regarding the admissibility of false allegation evidence squarely relies on the two relevant constitutional provisions.SeeClinebell , 368 S.E.2d at 266("At least in the context of prosecutions of sexual offenses, evidentiary constraints must sometimes yield to a defendant’s right of cross-examination.[Cit.] Cross-examination is an absolute right guaranteed to a defendant by the confrontation clause of the Sixth Amendment and is fundamental to the truth-finding process.");Commonwealth v. Bohannon , 376 Mass. 90, 378 N.E.2d 987, 990-991(1978)("When evidence concerning a critical issue is excluded and when that evidence might have had a significant impact on the result of the trial, the right to present a full defense has been denied.").

2.We next consider the propriety of our holdings in Smith .We must first consider whether the evidentiary holding of Smith remains good law following the recent overhaul of Georgia’s Evidence Code.

We must also consider whether the constitutional holding in Smith was correctly decided.¹As we discuss below, though the evidentiary holding of Smith has survived the enactment of Georgia’s new Evidence Code, the constitutional holding was wrongly decided.

The Rape Shield Statute has been part of Georgia law since 1976, seeGa. L.1976, p. 741.Since that time, the General Assembly has reworked the exceptions to the provision (which are irrelevant to our current inquiry) and amended the statute to broaden the offenses to which it applies, seeWhite v. State , 305 Ga. 111, 116, n. 4, 823 S.E.2d 794(2019), but the core language remains unchanged, providing 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.For the purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness’s marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

OCGA § 24-4-412 (a).CompareGa. L.1976, p. 741, § 1(using nearly identical language).Indeed, as we recently noted, "when the General Assembly adopted Georgia’s new Evidence Code in 2011 ... it did not adopt the federal counterpart to Georgia’s Rape Shield Statute."White , 305 Ga. at 116, 823 S.E.2d 794.Instead, the language of the current iteration of the statutory provision remains largely identical to the statute it replaced.Id.

"If there is no materially identical Federal Rule of Evidence and a provision of the old Evidence Code was retained in the new Code, our case law interpreting that former provision applies."

State v. Almanza , 304 Ga. 553, 557, 820 S.E.2d 1(2018).Here, the pertinent language of the Rape Shield statute—which is not materially identical to the Federal Rule—has remained substantively consistent for decades and has been carried over into the new Evidence Code; the focus of this provision continues to be the exclusion of evidence concerning the "past sexual behavior of the complaining witness."Our evidentiary holding in Smith is consistent with the decades-old plain language of the Rape Shield Statute and remains good law in the era of the new Evidence Code.SeeMorgan v. State , 337 Ga. App. 29 (1), 785 S.E.2d 667(2016)(recognizing that the new iteration of the Rape Shield Statute does not prohibit false allegation evidence).

Now, turning to the constitutional portion of our holding in Smith , the opinion seemingly relies on the Sixth and Fourteenth Amendments to create a per se rule of admissibility for evidence of prior false allegations where falsity has been established, notwithstanding other rules of evidence.These constitutional provisions demand no such rule.

The Sixth Amendment includes a compact statement of the rights necessary to a full defense:

In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation; to be confronted

...