Hamilton v. State

365 S.E.2d 120, 185 Ga. App. 536
CourtCourt of Appeals of Georgia
DecidedJanuary 14, 1988
Docket74757
StatusPublished
Cited by6 cases

This text of 365 S.E.2d 120 (Hamilton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hamilton v. State, 365 S.E.2d 120, 185 Ga. App. 536 (Ga. Ct. App. 1988).

Opinions

Beasley, Judge.

Defendant was indicted for the offenses of aggravated assault, rape and kidnapping with bodily injury, to wit: rape. The jury returned guilty verdicts for the offenses of kidnapping and aggravated assault. The trial court declared a mistrial as to the offense of rape. Defendant’s motion for directed verdict of acquittal was partially granted as to the offense of kidnapping with bodily injury reducing that offense to simple kidnapping. Thus, on the kidnapping offense defendant was sentenced under the general provisions of OCGA § 16-5-40 (b) and did not receive the sentence of life imprisonment mandated for the offense of kidnapping with bodily injury. Defendant appeals from the two convictions.

1. Defendant contends the trial court erred in refusing to allow him to cross-examine the prosecuting witness with regard to her juvenile record. The trial court ruled on the State’s motion in limine that such testimony would not be allowed. Defendant argues that the cross-examination of this witness as to her juvenile record was necessary to establish her motive, interest and bias to testify favorably for [537]*537the State, in that such testimony also exonerated her from any wrongful conduct.

The incident at issue occurred in April 1986 when the alleged victim was 14 years old. Just a year earlier, when she was 13, she had been “found to be unruly in that she engages in behavior detrimental to her health, morals, and future welfare.” She was placed on probation in her parents’ home for two years subject to a number of conditions, including that she not associate with Scotty Guffey without one of her parent’s consent, not drink (there was evidence at trial that she drank on the night in question), obey the laws, and be of general good behavior. Several months later she was found guilty of shoplifting and again two years’ probation was ordered, with generally the same conditions except that the association with Guffey was not mentioned.

When her father and Scotty Guffey found her at defendant’s house the morning after she had gone there, she ran downstairs from defendant’s bedroom and out the door which had been answered by defendant’s mother, who had been home from work for a number of hours. After talking to her sister, she declared that the alleged crimes had occurred. She called her probation officer and asked for what amounted to protective custody because she said she was afraid of defendant and also did not want to be around her parents or people who knew her.

The defense was that the girl had consented to the encounter and willingly stayed overnight and participated, at least to the extent that defendant was not guilty of any of the crimes charged. The theory was that she had fabricated her side of the story and that her real motivation was in avoiding revocation of her probation for violation of conditions, as well, perhaps, in precluding further delinquency adjudications. She testified, as a matter of fact, that she begged her probation officer to “send her off” to the Youth Development Center but knew she was not going to “get sent off” because according to her version of the encounter, she did not violate her probation since she could not stop the acts which constituted the crimes.

Defendant was prevented from cross-examining the girl about the two juvenile adjudications and dispositions and warnings that probation would be revoked. The only evidence permitted on this score, through the girl and her probation officer, was the fact that she was on probation at the time of the incident. This fit in with her version.

The subtleties of motivation for what people do and say are at best difficult to unearth and decipher. The tool of a thorough and sifting cross-examination is thus provided to produce knowledge which will more fully equip the factfinder to ascertain this fact. Defendant relies primarily on the right of confrontation of witnesses under the Sixth and Fourteenth Amendments to the federal constitution. Thus we assume for the purpose of this case that the Georgia [538]*538statute, OCGA § 24-9-64, and the state constitution, Ga. Const. 1983, Art. I, Sec. I, Par. XIV, were not violated.

Applying the construction accorded to that federal right by Davis v. Alaska, 415 U. S. 308 (94 SC 1105, 39 LE2d 347) (1974), defendant’s right was violated. It makes no difference that these were juvenile adjudications, for as said in Davis, supra at 319, in these circumstances where they would be evidence of the bias of self-interest or self-preservation, “the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.” Nor is the answer that it is harmless error, for as repeated in Davis, supra at 318, denial of the right of effective cross-examination “ ‘ “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” ’ ” Brookhart v. Janis, 384 U. S. 1, 3 (86 SC 1245, 16 LE2d 314) (1966).

The extent of cross-examination is constitutionally protected, so that a court abuses its discretion if it restricts it too narrowly. Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982). “[Exposing the motives of a state’s witness for testifying is always relevant in attacking the credibility of the witness.” Owens v. State, 251 Ga. 313, 316 (1) (305 SE2d 102) (1983).

2. As contended by appellant, the court also erred in foreclosing any hearing on the defendant’s offer of proof relating to the complaining witness’ past sexual behavior, as provided for in OCGA § 24-2-3 (c), by granting the state’s motion in limine at the beginning of the trial. Defendant offered to prove that the girl had prior sexual encounters with defendant and others and that defendant knew about the others and of her reputation at the time of the incident on trial. He explained that since consent was the issue of focus in the case, defendant’s knowledge would affect his belief as to the girl’s attitude on this occasion, and thus the evidence was crucial.

The trial court summarily ruled that only prior sexual conduct with defendant would be admissible. If defendant’s proffer had been borne out, the evidence would have been admissible under OCGA § 24-2-3 (b). Cf. Lamar v. State, 243 Ga. 401, 402 (2) (254 SE2d 353) (1979). See Hardy v. State, 159 Ga. App. 854, 857-858 (285 SE2d 547) (1981); In the Interest of J. F. F., 177 Ga. App. 816, 817 (1) (341 SE2d 465) (1986).

The procedural circumstances here differ from those in Tucker v. State, 173 Ga. App. 742, 744 (3) (327 SE2d 852) (1985) and Evans v. State, 180 Ga. App. 1 (1) (348 SE2d 561) (1986). At the time specified by OCGA § 24-2-3 (c) (1), the court had already ruled that the evidence sought to be introduced was inadmissible.

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365 S.E.2d 120, 185 Ga. App. 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamilton-v-state-gactapp-1988.