*1 164 37, 42, Kelso v. Nev. an element offense.
negates
(1979).
No.
such a
imposed
Instruction
588 P.2d
con-
to reverse
compelled
appellant’s
burden. We are therefore
remand for a new trial.
viction and we
BROWN, Appellant,
WAYNE
STANLEY
Respondent.
NEVADA,
STATE OF
THE
No.
March [Rehearing denied August 1991] Mausert, Reno, Hager & for Appellant. General, City; Del Kevin Papa, Attorney Frankie Sue Carson Drakulich, Paul District
Pasquale, Attorney, Deputy District Attorney, Bogan, Deputy and Robert V. District Attorney, for County, Respondent. Churchill *2 OPINION Court, Steffen, J.:
theBy
by a
Stanley
Brown was convicted
of
Wayne
jury
Appellant
and one
of
of sexual assault
count
sexual
two counts
consecutively
he was
sentenced
amended
By
judgment,
assault.
ten-year
and a
term
on
assault counts
life terms
the sexual
two
of
first direct
count. As a result Brown’s
attempt
appeal
on the
6,
court,
of
on
September
we issued an Order Remand
the
conviction
directed
judgment
vacated Brown’s
which
to Miller
hearing pursuant
to hold a
district
Miller
(1989). After
the
holding
hearing,
Under to a complaining attributable abuse or assaults sexual prior for purposes sexual conduct” “previous do not constitute witness Miller, law, 105 Nev. at shield NRS 50.090. of Nevada’s wit- determined that complaining We also P.2d at 89. such concerning cross-examination be subject would nesses were able to prove defendants providing false accusations prior evidence, in a outside the hearing of the preponderance a were “(1) or accusations that the accusation jury, of the presence were in fact made; or accusations (2) that the accusation fact in than prejudi- more false; (3) probative the evidence is P.2d at 90. cial.” Id. at Remand, was instructed to judge the trial In our Order of of the by preponderance to determine hearing conduct a witness had made the complaining whether or molestation. The was to assault accusations five wit- defense involve consideration trial. After the Miller testify at were prepared nesses who there was evi- although concluded judge the trial had, fact, made other dence that *3 molestations, and Brown did not of sexual assaults allegations were, fact, in allegations of that such proving meet his burden false. mechanistically test is not of the evidence
The preponderance greater has the produced to “which side according satisfied convincing in trier of to its effect regard [the without quantum, the asserted.” In re proposition of the truth of mind fact’s] 358, (1970). The of preponderance 367-68 U.S. Winship, 397 volume of evidence simple “does not mean evidence burden the Evidence McCormick on Cleary, E. § or number of witnesses.” words, of 1984). by preponderance In other a (3rd proof ed. 339 merely by that is satisfied force of not a standard the evidence is of should proof witnesses. The standard number of greatest the the existence of the contested “to find that lead the trier of fact than its nonexistence.” Id. more probable fact is bare, unsup- more than a something must be falsity Proof of witness is about certain lying the that ported opinion require independent some Purported events. be admissible in evidence.1 in order to basis of factual 1See, 209, Hutchinson, 1984) e.g., (Ariz.Ct.App. 213 688 P.2d State v. charge prior rape to that (written facts show proof lacked sufficient offer of Anderson, 193, (Mont. unsubstantiated); v. 686 P.2d 198-201 State
167 issue of not resolve an simply trial did judge The fact, effect, the decided the “probity in albeit after credibility, but the to divert trial and tendency to its evidence compared Rushen, (9th F.2d 1455 Perry v. jury.” the confuse denied, (1984). The 1983), proffered U.S. 838 cert. Cir. falsity and was therefore irrelevant. prove the waiting in hall to to other witnesses relating of proof offers merely repet statements were the witnesses’ indicated that testify the as that of other irrelevant nature and of same itive the Miller under stand insufficiency because of their witnesses ard. a criminal is during an accused trial of process right
The due
to
defend
State’s
opportunity
fair
right
“the
U.S.
v.
Mississippi,
Chambers
accusations.”
of the Miller
procedure
camera
(1973). Through the in
balance between
defend-
a delicate
must tread
judge
trial,
policy
to a fair
and the State’s
of
rights
ant’s constitutional
harassment and
testify
without
rape victims
encouraging
disclosure of irrelevant
public
stemming
embarrassment
private
experiences.
their
concerning
evidence
of a
due
addresses assurances
defendant’s
Although Chambers
Brown,
in
that
of
emphasizing
aspect
to a fair
right
process
Chambers,
the opinion stating
caveat in
important
overlooks the
accused,
is required
as
right,
of this
the exercise
that “[i]n
procedure
with established rules of
must comply
reliability
both
in the
assure
fairness
designed to
evidence
Chambers, 410 U.S. at
innocence.”
guilt
ascertainment
his own
present
right
The defendant’s
302.
and “does
require
to the rule
relevance
subject
is
defense
every piece
evidence
present
be permitted
the defendant
(Conn.
A.2d
Cassidy,
. . . .” State
he wishes
1985).
App.Ct.
at
presented
ruled
judge correctly
The trial
*4
1984) (dismissal
charges
prove falsity
of
especially
does not
where victim’s
vehemently
daughter
rigors
trial);
mother
not experience
insisted her
the
of
Alexander,
(victim’s
1983)
People
(Ill.App.Ct.
prior
v.
rape
168 was hearing
the irrelevant because its was probity unper- three under the Miller conditions.2 The of testimony suasive the the of satisfy falsity. witnesses did not of requirement proof court thus ruled of appropriately requisites Miller testimony had not been met and that the of the Miller defense not be at trial. Such witnesses would relevant determinations of are within the discretion of the trial court. relevancy State v. 968, Demos, (Wash. 1980). minimal 619 P.2d 970 A threshold of relevancy invoking is a prerequisite constitutional standard. Hackett, 120, (1985). v. 365 People N.W.2d 127 An in assures defendant that rules of camera mechanistic, will not be in a applied unconstitutionally evidence ultimately which “defeat the ends arbitrary might fashion of Chambers, were See 410 if the evidence material.3 U.S. justice” time, the requirement 302. At the for an in procedural at same of false of allegations camera evidence or presentation rape molestation is deferential to the broader state policy protecting “from open unnecessary indignities victims court their respective needless into histories.” Sum- probing State, 159, 161, 1374, (1985); v. Nev. 697 P.2d 1375 mit 101 Lemon, 261, (R.I. 1983). v. 456 A.2d 264 State Brown also contends that he afforded a fair opportunity to cross-examine the complaining witness relative to her “numer- ous sexual assault.” Cross-examination is a substantial right of the defendant “the principal means by which the believability of a witness and the truth of his Alaska, 308, are tested.” v. Davis 415 U.S. (1974). Never- theless, a defendant’s “Sixth Amendment rights subject are to the same rules evidentiary as all other evidence. The threshold ques- ” tion for the admissibility of evidence is relevancy. Blue, State v. 897, (Kan. P.2d 1979) also, text); (emphasis in see Cornes, 1346, People v. 399 N.E.2d 1352 (Ill.App.Ct. 1980) also, Raines, 2See (9th Hughes 1981) (the v. 641 F.2d Cir. Sixth prevent excluding questions Amendment does not the trial court from into little, any, probative value); extraneous issues that if People v. Mc Kenna, (Colo. 1978) (there 585 P.2d is no right constitutional highly inflammatory evidence). introduce irrelevant and (Alaska 1985), Ct.App. Covington 703 P.2d 3In stated that permit majority A the courts which have considered the such issue showing presence only the defendant makes out of if false, prior allegations witness’ of sexual were that the assault as, disproved charges where the somehow had been example, for or falsity. had conceded their where the witness (Citations omitted.) *5 not extend to matters does to cross-examine (right value). probative have little and
which are irrelevant that Brown availed record also reveals of the An examination witness the complaining to cross-examine right of his himself Although hearing. preliminary testified at the when she only to cross-examine he wished the court whether by asked in camera and both when she testified complaining court, to do so. Brown declined open above, that the district we conclude the reasons stated For Brown determined, after the court properly entered original judgment that the his burden and carry be reinstated. The verdict jury’s to pursuant Brown affirmed. is judgment J., J., concur. and Young, C.
Mowbray, J., agrees: Rose, J., Springer, with whom dissenting, and occurred in this case events that the cumulative I believe appellant have prevented of the district court rulings trial, trial. At (Brown) receiving fair Stanley Brown complaining evidence of the to present was not permitted Brown of sexual assault. false accusations to make witness’s propensity the district court found subsequent At the Miller by proven others were of sexual assault that the trial. From the evidence Brown a new and denied be false and a new trial should was erroneous finding this presented, been granted. niece, Brown’s Janet Rains. witness was between the victim and However, relationship was no blood there grandpar- Rains’ adopted Brown had been because appellant assaults, Brown was 21 and alleged of the At the time ents. younger. years was five Rains assaults and one of the two sexual account
The victim’s that on November Rains testified are unusual. assault him a movie and 21, 1986, her to accompany asked Brown left Rains’ house. agreed, pair mother After Rains’ dinner. movie, her to to a Brown took going instead of claimed that Rains Brown denies this her thereafter. assaulted a party any signs her home without visible returned to Rains charge. inci- made no mention been assaulted
having dent. her that Brown entered claims Rains On November her with began to threaten home, her bedroom proceeded her around pushed that Brown She claims shotgun. an unloaded her to her pull pants ordered and then gun with the butt of her knees. At down to pants her pulled In she response, down. moment, mother came home. rang and Rains’ phone room, and her pulled up pants Rains’ Rains Brown ran out of denied allegation Brown also came into the house.
mother *6 at the time. by made Rains no was complaint 4, 1986, Rains testified that she was of December night On by awakened a knock on her She was asleep. in her bedroom Brown, who needed apparently it was window and discovered in the house and then she claims Rains let Brown some clothes. scream, that she tried assaulted her. She claims to that he scream, testified, I I go “whenever would but couldn’t. She when I am don’t have that voice scared.” Rains can’t scream. I anyone. her if she told injure Brown threatened to maintained that and no immediate was charge complaint also denied this Brown Rains. made later, Rains told her mother about assaults. About a month because she was not sure long that she waited that She claimed would react. how her mother wanted to numerous wit- attorney present Brown’s At many Rains had made false accusations of to establish that nesses men. Rather than cross-examine other sexual assault incidents, attorney Brown’s to call attempted Rains about these The to these other false accusations. testify witnesses to these witnesses based on introducing Brown from court precluded law. Brown was to call 50.085(3), permitted shield NRS that Rains’ for truth and reputation five witnesses who testified of the guilty bad. The found Brown two sexual veracity was sexual assault and the court then attempted and one assaults sentence, two life possible Brown to the maximum sentenced and ten on the years on the sexual assaults sentences assault, all to run consecutive. court, we remanded the case back to When to this appealed determine whether Rains had made hearing for a district court and molestation accusations. In doing false sexual assault prior this, we stated: case, facts and circumstances of this
Given Miller and the may that the result below be unreliable and we are concerned Therefore, fair trial. we have been denied a may that Brown below and remand this case to judgment vacate the elect to on Specifically, for further consideration. the district court remand, court shall hold a Miller hearing the district evidence, determine, whether the by preponderance false sexual assault and witness made event that fabrication is In the accusations. molestation established, court shall Brown a new trial. grant the district shown, the shall original judgment is not Assuming falsity be reinstated. remand,
On the district court held a Miller as we had directed, any but refused to hear witnesses Brown had not tried to five witnesses who were present offer at trial. This precluded imposed by Such a restriction was not prepared testify. and I no reason these good why see additional witnesses
should have been at a precluded testifying hearing premised on a search for truth. Brown was permitted
At the Miller to call three witnesses who testified about Rains making allegations of The testimony sexual assault. of these witnesses was compelling no in mind that question my they and there is established that Rains had made such false statements. first witness was a Mr. currently who lives Denver but had met Rains when Sperlak he in the near Fallon. He serving Navy dated for about one month. testified that Rains told him that her father Sperlak had her and that he used to beat her. She also accused her ex- raped her. To boyfriend having raped establish of these two testified that he met Rains’ former charges, Sperlak boy- *7 day by friend the and was told him that no such following had occurred. confronted Rains with this fact and she Sperlak ground looked at the like she—like she was “just caught a lie.” confronting also described Rains about the Sperlak her father when he observed her writing made a letter to nothing again him. Rains said reacted as if she had Again, been in a lie. caught
Brown also called a Ms. She testified that Sprinkle. she lived in years Fallon for seven and had attended school approximately with Rains. stated that Rains told her that Sprinkle she had been Brown raped by by both Darren Summerville. Sprinkle testified that Rains did not seem at all about the upset alleged rape by Mr. Summerville and that she did not believe her because Rains had lied to her about other matters. repeatedly Sprinkle also testified that Rains lied when she said she had had sexual Johnny relations with a Pereira and had had a baby resulting from However, activity. Sprinkle asked Pereira about this and he that he had never even had sex with her. responded by Another witness called Brown was Frankie Sue Aja Jones. fiance, Gobel, Ms. Jones testified that Rains accused her Roger However, her. Jones said that Rains did not seem to be at raping and that when she came home upset supposed rape, all about event, evening alleged she was and made no happy The prosecution mention of the sexual assault. moved to relative to Gobel because Roger strike Ms. Jones’ Brown’s trial. The Rains made these accusations after district court his granted motion. At the conclusion of the district hearing, convictions, it finding
confirmed Brown’s that was not estab- false With regard lished that Rains had made accusations. to the testimony of Mr. and Ms. the court Sperlak Sprinkle, found that However, neither established that the accusations were false. I the only believe reasonable inference that be can drawn from the testimony and the reaction of Rains is that the allega- witnesses’ were shown to be a preponderance tions false of the evidence. father, Summervile, It is reasonable to also assumé Rains’ Pereira, and not Gobel would admit to assaulting Rains if called to the stand. Since Brown would receive no benefit of the court, doubt from the district Brown’s counsel should have witnesses, to call these additional to make certain that However, even proved. testimony, every without their inference all of reasonable is that Rains’ accusations of sexual assault or illicit sex were false.
This was a close case that hinged upon credibility The witness and Brown. facts of the complaining alleged assault are not At a number of compelling. witnesses testified that Rains had a for truth poor reputation veracity. If the jury had falsely also heard that she had accused other many men of sexual assault, the been may result in Brown’s favor. court, also error
It was for the at the Miller additional preclude about testifying allegations of sexual assault which Rains fabricated after trial here in While question. our order remand did direct the district court concerning to hear evidence allegations, we were not any aware others. evidence of false accusations is admitted establish about anything witness’s conduct, but rather to attack her truth and veracity by to make showing propensity false accusations of sexual assault. Evidence of a poor reputation for truth and does veracity not become more or prejudicial less because the events which *8 to the imparted knowledge testifying witness happened after the alleged criminal conduct. See 81 AmJur.2d Witnesses to Compensation, (1976); Worker’s Fisher v. Conway, § Therefore, (1878). Kan. 18 district should court have permit- ted witnesses describe false accusations of sexual assault which Rains made after the This evidence should trial. have been at the received Miller whether it from came dis- newly witnesses, covered or a trial witness like Ms. Jones who had new information. probative
Brown established Rains had made false accusations of against sexual assault and illicit sex a number of men and this should have mandated a new so that this evidence could be presented jury. consistently to a and assertively Brown, the trial by prohibiting ruled first at accusations, refusing of false then find that the false accusa- at the tions were established preponderance Brown to a finally, sentencing very lengthy in its I reviewing totality, jury In this case consider penalty. verdicts unreliable because the hear all of Therefore, relevant evidence. I would reverse and remand for a new trial. REALTY, Appellant,
KEYSTONE v. GLENN OSTERHUS Respondents. OSTERHUS, LAVERNE
No. 21275 March P.2d Reno, I. Jack Michael T. McAuliffe, Appel- for McAuliffe lant. Edwards, Reno, & for Stephens, Knight Respondents.