Ex parte Dennis
- Reporters:
- ,
- Before:
- Per Curiam
The evidence at trial tended to show that Dennis began sexually abusing the daughter when she was about 10 years old. The daughter testified that Dennis had had sexual intercourse with her on more than 10 occasions, including one time around Easter 1996; this occasion was the basis of Dennis‘s conviction in this case. The only physical evidence indicating that Dennis had had intercourse with the daughter was supplied by Dr. John F. Shriner, an expert who testified on behalf of the prosecution. Dr. Shriner testified that his examination revealed that the child‘s hymen showed signs of penetration. Dr. Shriner admitted that he could not tell from his physical examination who might have engaged in sexual activity with her or how recently sexual activity might have occurred. However, Dr. Shriner stated unequivocally that, in his opinion, her condition was caused by recurrent penetration rather than by a one-time occurrence.
In an attempt to rebut Dr. Shriner‘s testimony regarding the daughter‘s medical condition, Dennis sought to introduce the testimony of C.M. Outside the presence of the jury, C.M. testified that on one occasion in August 1996 she witnessed a man named Sherman Packer attempting to force himself sexually on this child. C.M. claimed that she witnessed this incident when she entered Packer‘s house after being told that Packer had been “messing with” this child. She also stated that both Packer and the child had their pants down and that “he was trying to go up in her.” When asked if she saw whether Packer had actually penetrated the child, C.M. responded, “It was close. I don‘t know. They was against each other and she
The trial court did not permit the jury to hear C.M.‘s testimony regarding the child‘s alleged sexual history with Sherman Packer. The trial court ruled that C.M.‘s testimony was inadmissible according to Alabama‘s rape-shield statute,
We note that although the trial court held that the evidence was inadmissible according to
Dennis argued to the Court of Criminal Appeals that the trial court‘s application of
Dennis argues that the Court of Criminal Appeals erred in holding that evidence of a rape victim‘s past sexual experience is admissible only in those instances in which the past experience involved the accused and in holding that the trial court did not unconstitutionally exclude the testimony regarding Sherman Packer. We agree that the Court of Criminal Appeals’ holding regarding the application of
While our research has produced no published cases addressing the constitutionality of
The Court of Criminal Appeals correctly recognized that that court has repeatedly rejected constitutional challenges to the rape-shield statute. See Mitchell v. State, 593 So.2d 176 (Ala.Crim.App. 1991); Fairchild v. State, 505 So.2d 1265 (Ala.Crim.App. 1986); Hall v. State, 500 So.2d 1282 (Ala.Crim.App. 1986); Darrow v. State, 451 So.2d 394 (Ala.Crim.App. 1984); Mosely v. State, 448 So.2d 450 (Ala.Crim.App. 1984); Young v. State, 429 So.2d 1162 (Ala.Crim.App. 1983). It also correctly recognized that the plain language of
However, we conclude that to read
Dennis argues that the trial court violated his right to due process by excluding evidence that he says indicates a third person‘s sexual activity with the victim caused the physical condition presented by the prosecution as evidence of rape. Although this Court has not addressed such an argument before, we note that other jurisdictions have held that admission of evidence offered to show that a physical injury or condition of the victim could have been inflicted by someone other than the accused is constitutionally required in some cases. See Williams v. State, 681 N.E.2d 195, 201 (Ind. 1997); see also Tague, supra (concluding that because the prosecution introduced evidence showing that 11-year-old victim was not a virgin, with hope that the jury would infer that the defendant caused the hymenal condition, it was constitutional error for the court to apply the rape-shield law to preclude testimony that the victim‘s father had molested the victim several times before the charged crimes); United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993) (admission of evidence regarding facts of sexual assault by third persons was constitutionally required, to show alternative explanation for physical and mental abuse); Neeley v. Commonwealth, 17 Va. App. 349, 437 S.E.2d 721 (1993) (rape defendant‘s constitutional rights of compulsory process, confrontation, and due process entitled him to introduce evidence of victim‘s prior sexual behavior to explain presence of hair fragment found in cervix, even though such evidence fell outside an exception to Virginia‘s rape-shield statute; evidence tended to rebut assertion that the defendant was the source of the hair fragment, which was the only significant physical evidence of guilt); United States v. Begay, 937 F.2d 515 (10th Cir. 1991) (where prosecution specifically relied on victim‘s enlarged hymen as evidence of molestation, Confrontation Clause mandated admission of evidence of another source of that condition); State v. Pulizzano, 155 Wis.2d 633, 456 N.E.2d 325 (1990) (constitutional guarantees of confrontation and compulsory process required that the defendant be able to cross-examine seven-year-old victim about prior sexual assault in order to rebut prosecution‘s suggestion that the victim could have possessed explicit sexual knowledge only if defendant had committed the charged sexual assault); State v. Douglas, 797 S.W.2d 532 (Mo.App. 1990) (reversing first-degree-sexual-assault conviction because the defendant was not allowed to offer evidence that the victim had engaged in intercourse with another person, following expert testimony that a medical examination of the victim disclosed an absence of hymenal tissue).
In addition, other states and the federal courts, perhaps anticipating a constitutional argument similar to Dennis‘s, have made express exceptions permitting the introduction of evidence of the victim‘s sexual history where it is offered to rebut or to explain
Moreover, the exception in
In the “Scottsboro cases,” nine black men were accused of raping two white women on a freight train while it was traveling through northern Alabama. A key piece of circumstantial evidence offered on behalf of the prosecution in the defendants’ first trial was medical testimony indicating that small amounts of semen had been found in the vagina of each woman. The defendants attempted to offer evidence in rebuttal to prove that these women had had sex the night before the alleged rapes, and, therefore, that the defendants were not the source of the semen. This rebuttal evidence was important because the small amount and the nonmotile condition of the semen found in the women was inconsistent with their account of a “gang rape” that the women had alleged had occurred on the day they were examined, and because the only other evidence in the trial was the testimony of the alleged victims. The trial court, however, excluded the rebuttal evidence on its own motion and scathingly chastised the defendants’ lawyer for attempting to introduce it. Several of the defendants were later found guilty. Some of the defendants’ convictions were overturned, and other defendants were released when it was later determined that the women were lying about the rape to cover up for their own “hoboing.” See, Dan T. Carter, Scottsboro: A Tragedy of the American South (1969), for an excellent, thorough account of the cases involving the Scottsboro nine. According to Wright & Graham, the trials, and the negative “public perceptions of the fairness of the trials,” motivated “civil libertarians” to ensure the inclusion of the “Scottsboro exception” in
We agree with the other jurisdictions that the “Scottsboro exception” is not only wise, but is constitutionally required in some cases in which the prosecution offers evidence to show that a physical injury or condition of the victim indicates that the defendant committed the offense of rape. To the extent that cases previously decided by this Court or the Court of Criminal Appeals are contrary to this holding, they are overruled.
Of course, “Scottsboro rebuttal” evidence would not be relevant in a prosecution in which the defendant claims that the victim consented to intercourse, because, in such a case, the defendant admits to being the source of the physical condition. Also, the evidence is admissible only to rebut physical evidence offered by the prosecution; it is not freely admissible by the defendant. In addition, the evidence offered by the defendant to rebut the prosecution‘s evidence cannot be “reputation” or “opinion” evidence that would be prohibited by
Dennis maintains that C.M.‘s testimony rebuts the State‘s physical evidence implying that Dennis created his daughter‘s hymenal condition and was therefore admissible under the “Scottsboro exception.” The State, however, contends that the trial court did not abuse its discretion by excluding C.M.‘s testimony. The State says the testimony was irrelevant and overly prejudicial and says
The State objected to C.M.‘s testimony on the grounds that it was inadmissible under
First, C.M.‘s testimony that the child told her that Packer had “rammed up in her” was inadmissible hearsay because it was offered to prove that Packer had had sex with the child, an activity that resulted in her hymenal condition. See Commonwealth v. McGee, 42 Mass. App. 740, 679 N.E.2d 609 (1997) (testimony by a proposed defense witness that victim told witness that victim had had sex with someone other than the defendant was inadmissible hearsay if offered to prove that victim in fact had had the sexual encounter); see also Wright & Miller, supra, § 5388, p. 593 (stating that inadmissible hearsay cannot be used to rebut the prosecution‘s physical evidence of intercourse). Therefore, although the trial court did not exclude the evidence upon an objection that it was inadmissible hearsay, the court‘s ruling was correct. See Smith, supra.
Second, we cannot hold that the trial court abused its discretion in ruling that C.M.‘s testimony that she saw Packer attempting to have sex with the child was inadmissible because its prejudicial effect substantially outweighed its probative value. Dr. Shriner testified unequivocally that he believed the child‘s condition was caused by recurrent penetration, rather than by a single incident. Thus, C.M.‘s testimony regarding the assault had very limited probative value because her testimony would not have established that penetration occurred during the incident involving Packer, much less that Packer was responsible for recurrent penetration.
Therefore, we hold that the trial court did not err in finding that C.M.‘s testimony was inadmissible and that the Court of Criminal Appeals’ statement of an erroneous rationale for holding that
AFFIRMED.
Hooper, C.J., and Maddox, Houston, Cook, See, and Lyons, JJ., concur.
Kennedy, J., concurs in the result.
Brown, J.,