Larocque v. State

479 S.E.2d 450, 224 Ga. App. 92, 96 Fulton County D. Rep. 4346, 1996 Ga. App. LEXIS 1319

• Court: Court of Appeals of Georgia
• Decided: December 5, 1996
• Docket: A96A1123
• Status: Published

Opinions

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 SE2d 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 SE2d 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 SE2d 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 SE2d 663) (1979) (evidence that defendant attempted to influence testimony of witness admissible); Smith v. State, 142 Ga. App. 1, 3-4 (234 SE2d 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 SE2d 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, P. J., Birdsong, P. J., Pope, P. J., Johnson and Ruffin, JJ., concur. Beasley, C. J., Andrews and Smith, JJ., dissent.

1 Once the State delved into this area, Larocque’s attorney objected. At a bench conference, however, the trial judge noted but overruled his objection and stated he was going to allow the question at hand as well as other evidence of “intimidation of a witness.” The single objection, therefore, adequately preserved for review the entire line of questioning.