STATE оf Missouri, Respondent, v. Precious Lee BROWN, Appellant.
No. 63143.
Supreme Court of Missouri, En Banc.
Aug. 23, 1982.
Rehearing Denied Sept. 13, 1982.
637 S.W.2d 929
Not only is the first test of Oldham not met here, but the second test is not, either. Despite the principal opinion‘s invocation of “totality of circumstances“, there is no evidence that appellant initiated further communication with the officers or that if he did so it was done voluntarily, knowingly and intelligently. Instead, appellant did no more than react to the accusations of the officers—that they were there to talk about Donald Stewart and that they knew about the Minnesota trip taken by the two. Appellant‘s reaсtions to this pressure cannot be considered a waiver of his Miranda rights, no matter if the trial court did find otherwise. The principal opinion is in error in saying it is a matter of credibility. On the stated facts, there was no valid waiver of his right to counsel, earlier invoked. There are no facts present showing that appellant intelligently and knowingly relinquished his right to counsel with respect to the homicide under investigation. He was never asked about this specifically or given a chance to refuse counsel before committing himself.
The trial court erred in admitting into evidence, over objection, the incriminating statements obtained in violation of appellant‘s
Terry M. McVey, Welman, Seabaugh, Beaton & Williams, Kennett, for appellant.
John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jeffersоn City, for respondent.
MORGAN, Judge.
Appellant was convicted of three counts of forcible rape and two counts of forcible
There is no dispute between the prosecutrix (herein referred to as the complainant) and the appellant as to whether or not the sexual activity, now reflected in the record, actually did occur. However, appellant submits that the same was сonsensual while the complainant asserts that it followed “forcible compulsion” upon her. Obviously, the jury believed the latter and we will hereafter recite facts thought sufficient to provide a predicate therefor.
The complainant lived and worked in Kennett, Missouri, and on October 17, 1980, had loaned her automobile to a friend, one Phillip Green, that he could look for a job and then pick her up around 4:30 p. m. Appellant, a black male, testified that early in the afternoon he and another were driven around by Green and that one stop, among others, was at a liquor store. Later they were let out with a promise by Green that he would return after going after complainant at her place of employment. Sometime thereafter he did, and aрpellant was introduced for the first time to the complainant under a fictitious name. At his request, they drove to a cotton gin south of Kennett where he worked that he might borrow some money. Temporary stops were made at several places prior to Green allegedly becoming ill and requesting that he be let out at the complainant‘s home. Appellant then asked if she could deliver him to a friend‘s home not far away. When no one was there, appellant asked that he be taken to a nearby service station. Finding it closed, he asked for a ride outside the city to the residence of another. At this time, insofar as of interest here, the testi-
As noted, appellаnt‘s primary issue references the constitutionality of
Prior to enactment of the statute, evidence of a complainant‘s general reputation for morality and chastity was held admissible as bearing on the issue of consent but not specific acts of alleged misconduct. State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974); State v. Kain, 330 S.W.2d 842 (Mo. 1960). The reasoning behind this proposition was that a woman of previous unchaste character was more likely to consent to an act of sexual intercourse than a woman strictly virtuous. Such evidence historically was permissible not only to infer consent but also to attack credibility.3 We, as have others, declare that chastity is no longer a pertinent character trait upon which credibility must turn. Further, as found in Milenkovic v. State of Wisconsin, 86 Wis.2d 272, 272 N.W.2d 320 (1979), we find the idea that a woman‘s prior consent is per se relevant to the question of a later consent to be a “tired, insensitive and archaic platitude of yesteryear.” 272 N.W.2d at 324. Indeed, the legislative department of оur state recognized the same fallacy when it limited the admissibility of prior sexual conduct to those specific exceptions found in
The thinking behind the enactment of said section undoubtedly was threefold. First, it redressed the faulty premise upon which evidence of prior sexual conduct traditionally had been admitted. Second, it is apparent that in most instances a rape victim‘s past conduct has no reasonable bearing upon the issue of consent or credibility. Introduction of such evidence serves only to humiliate and embarrass the witness in a public “fishing expedition” which puts the complainant on trial instead of the appellant. Section 491.015, thus, reflects a major public policy decision that “victims” not be subjected to unwarranted psychological and emotional abuse. People v. McKenna, 196 Colo. 367, 585 P.2d 275 (Colo.1978). Lastly, the statute demonstrates a reasonable and proper attempt to aid effective law enforcement by encouraging victims of rape to report and prosecute such crimes without a threat to expose intimate details of past sexual activity, if any, to the public. The significance of the latter factor is apparent when it is accepted that the incidence of rape is ever increasing and there remains a reluctance to report the offenses.4
Nevertheless, when read objectively it is clear that the challenged statute creates only a “presumption” that evidence of a victim‘s prior sexual conduct is irrelevant. Enumerated exceptions to the general рresumption, as listed in
Thus, an accused is not strictly prohibited from tendering the prior sexual conduct of a prosecuting witness into evidence. In
In this light, the challenged statute suffers no constitutional infirmity and is not violative of any rights of confrontation;6 and is, in our opinion, facially constitutional.7 Of immediate interest, on the same point, is the holding in United States v. Kasto, 584 F.2d 268 (8th Cir. 1978), cited
Next, we look to the manner in which the statute was applied in the instant case. Appellant asked to introduce evidence of a prior sexual relationship between complainant and the alleged boy friend, Phillip Green, within a few weeks of the commission of the crime charged. The specific request was denied by reason of the dictates of the statute. However, evidence was admitted that complainant was twenty-eight years of age; that she had been married and divorced at least once; that she had known Green since they were kids; that she had not seen him for several years until a few weeks before the offense and that they had “dated” during the recent period. Although evidence of specific sexual activity was excluded, certainly no effort was made to present the complainant as a stranger to past sexual experiences. With at least some appreciation of this obvious fact, appellant by argument now developes somewhat of a syllogism, i.e., that complainant consented to the activities, forming the basis of the charge; that she did not want to reveal this fact to the would-be boy friend; and, that a falsified rape charge was required to save face. The assertion is made that evidence of a sexual relationship would have shown the “strength” of that friendship and buttressed the argument as made. For some continuity of thought, we note to the contrary that Green could not be found at time of trial and complainant‘s testimony that: “I feel that he [Green] set me up for this.” Thus, appellant was not denied an opportunity to demonstrate some possible underlying motive for the charge made in contrast to the ruling for complete denial of evidence, to protect the victim‘s privacy interеst, rejected in Davis v. Alaska, supra.
We hold that the trial court did not abuse its discretion in failing to permit the admission of the tendered evidence; and we further find
We now address appellant‘s numerous additional allegations.
He asserts that a mistrial should have been declared when a police officer, Chief Elliott, testified that appellant, when arrested, threw up his hands and said, “Oh, no, not again.” This testimony allegedly had not been disclosed specifically to appellant prior to trial pursuant to a discovery request. In response, the prosecutor explained that: “I‘ve given [defense counsel] copies of everything I‘ve had in this case. I gave it to him long ago. As I obtained recent items, I would give him new items when I had them. He‘s known about Chief Elliott as a witness and has had ample opportunity to examine [him] as a witness. I don‘t know in every case what a witnеss is going to say . . . and there‘s no existing memorandum of Chief Elliott that he [defense counsel] doesn‘t have.” Even if the explanation as given were to be rejected, the question would remain as to whether any prejudice or fundamental unfairness resulted, State v. Smothers, 605 S.W.2d 128 (Mo. banc 1980), and it is clear that it did not. Further, appellant has not suggested how this testimony affected the result of his trial. We observe, nevertheless, the implication that appellant was aware that he had done something illegal; but, in light of other testimony8 which was either disclosed or not objected to, this evidence was merely
Appellant‘s argument that the state was late in providing a copy of a report of a medical examination of complainant is without merit. First, the prosecutor said he was not aware that expert testimony was contemplated nor the significance, if any, of the examination or report. In any event, if an issue did exist it was mooted by appellant being granted a continuance of ten days and thereafter reporting to the court that: “Our concerns were unfounded.”
It is contended that the trial court‘s finding that he was a persistent sexual offender under
Appellant further attacks his sentence as being cruel and unusual, in that the sixty-five year sentence without probation or parole is greater than that for a capital murder. The weakness of the argument is that one convicted of capital murder could receive death,
The purpose of recidivist statutes such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of
society for an extended period of time. This segregation and its duration are based not merely on that person‘s most recent offense but also on the propensities he has demonstrаted over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.
Id. at 284, 100 S.Ct. at 1144.
It is not for this court to specify punishments for the offenses involved.
Appellant alleges the trial court erred in sustaining the state‘s oral motion for a two day continuance in that it denied appellant‘s right to a speedy trial. The point is totally without merit but we recognize it by pointing out that the two days were tacked on to appellant‘s continuance heretofore mentioned. Furthermore, the court has broad discretion in granting continuances. State v. Stout, 604 S.W.2d 710 (Mo.App.1980); State v. Oliver, 572 S.W.2d 440 (Mo.1978). Trial was had within the time directives of
Argument is made that the state was allowed improperly to introduce a portion of a deposition taken by defendant. The record reflects that the parties agreed it could be admitted; and, if the challenge is to the “order of proof,” the trial court has great discretion which was not abused. Kansas City v. Ramsey, 525 S.W.2d 392 (Mo.App.1975); State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22 (1929); State v. Smith, 631 S.W.2d 353 (Mo.App.1982).
Over objection, a statement of appellant to an arresting officer was admitted. After the officer had told him that: “I know exactly what your doing, what you‘re doing in this rape, you‘re coercing these people, your threatening them,” he replied: “You‘re right, I know that you know what I‘m doing.” The admission thereof was within the court‘s discretion as a declaration showing a consciousness of guilt and was admissible. State v. Brooks, 551 S.W.2d 634 (Mo.App.1977).
During cross-examination of appellant, he was asked about the prior rape conviction and if it involved the same liquor store mentioned in the instant case. The basic inquiry was proper as an attack on appellant‘s credibility; however, the reference to a “specific” thereof was improper, State v. Scott, 459 S.W.2d 321 (Mo.1970), but not so prejudicial as to require a declaration of “mistrial” which was the only relief requested.
After a defense witness had referred several times to a girlfriend of appellant, the prosecutor asked that she be identified in the courtroom. The record does not place any ill-motive on the state merely because it would appear that she was white, as the evidence throughout indicates appellant was accepted as an associate and friend of other white persons in the community—both male and female. Likewise, it does not seem to have been an effort toward racial prejudice when in closing argument the prosecutor said: “Well, ladies and gentlemen, you‘re the only ones that can do anything. You‘re the only ones that can do anything in this case. The Judge can judge, the Reporter can report, I can prosecute, the Police Officers can police. We can all do it ‘til we‘re black in the face. Unless you do your job . . . .” (Emphasis added.) Obviously, the argument as made was a legitimate effort to emphasize to the jury the gravity of their assigned task, and it would take an extremely strained reading to find therein some racial innuendo designed to affect the jury‘s deliberations.
Appellant submits that the verdict directing instructions, given in each of the five counts, were erroneous and thus prejudicial. Admittedly, the instructions as to “rape” followed MAI-CR2d 20.02.1 and those reference “sodomy” followed MAI-CR2d 20.08.1. One example should suffice. Instruction No. 5, in paragraph Third, required the jury to find that the “sexual intercourse” finding mandated by para-
Lastly, it is alleged that the trial court erred in limiting closing argument of counsel to twenty minutes. In this regard, broad discretion is given to a trial court, State v. Townzell, 286 S.W.2d 785 (Mo.1956), and the record presented does not reflect an abuse thereof. The sole issue was whether or not there was “consent” to the admitted sexual activity and we cannot with any confidence declare that the time allotted was inadequate.
Finding no reversible error, the judgment is affirmed.
DONNELLY, C. J., and RENDLEN, HIGGINS and BARDGETT, JJ., concur.
WELLIVER, J., dissents in separate dissenting opinion filed.
SEILER, J., dissents and concurs in separate dissenting opinion of WELLIVER, J.
WELLIVER, Judge, dissenting.
I respectfully dissent.
The application of the rape shield statute,
In Davis the United States Supreme Court held that an Alaska statute protecting the anonymity of juvenile offenders violated the confrontation clause. Davis had been convicted of burglary and grand larceny of a safe containing well over one thousand dollars. The safe was found near the home of Green, the prosecution‘s chief witness, who testified that he had seen and spoken with two men, including Davis, near the site where the safe later was discovered. At trial Davis proposed to demonstrate Green‘s bias by cross-examining Green about his adjudication as a juvenile delinquent because of a burglary and about his probationary status at the time of the events about which he was to testify. The trial court, on motion of the prosecution, issued a protective order based upon the statute and refused to allow the proposed cross-examination.
The Supreme Court reversed the conviction and remanded. A criminal defendant, the Court said, may attack а witness’ credibility
by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as
discrediting the witness and affecting the weight of his testimony.” . . . We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.
Id. at 316-17, 94 S.Ct. at 1110-1111. The Court continued by stating that
[w]e cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning [that Green was biased because of his own interest in avoiding prosecution] had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green‘s testimony which provided “a crucial link in the proof . . . of petitioner‘s act.” The accuracy and truthfulness of Green‘s testimony were key elements in the State‘s case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green‘s vulnerable status as a probationer, . . . as well as of Green‘s possible concern that he might be a suspect in the investigation.
Id. at 317-18, 94 S.Ct. at 1111. The Court concluded that “[t]he State‘s policy interest in protecting the confidentiality of a juvenile offender‘s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.” Id. at 320, 94 S.Ct. at 1112.
The impact of Davis on cases involving the application of rape shield statutes is apparent. Regardless of the facial constitutionality of such statutes, it is obvious that when, as here, the issue is timely raised,2 application of such statutes to prevent admission of evidence of a complainant‘s previous sexual conduct works an unconstitutional deprivation of the right of confrontation when the question involves the possible biases, prejudices, or ulterior motives of the complainant. Other courts have reached this conclusion when faced with the same issue. Marion v. State, 267 Ark. 345, 590 S.W.2d 288, 290 (1979); State v. DeLawder, 28 Md.App. 212, 226-28, 344 A.2d 446, 454-55 (1975); Commonwealth v. Joyce, 382 Mass. 222, 1981 Mass. Adv.Sh. 39, 415 N.E.2d 181, 186-87; State v. Jalo, 27 Or.App. 845, 850, 557 P.2d 1359, 1362 (1976). See State v. Decuir, 364 So.2d 946, 947, 949 (La.1978) (Dennis, J., concurring); State v. Howard, 426 A.2d 457, 462 (N.H.1981).
The principal opinion dismisses Davis with little more than a footnote. The failure to discuss Davis at length demonstrаtes the fallacy of the attempt to distinguish it. The evidence of the complainant‘s relationship with Phillip Green is, under Davis, an insufficient substitute for a comprehensive cross-examination. Evidence of any sexual relationship that may have existed between the complainant and her boyfriend doubtless would strengthen appellant‘s defense. For the cross-examination of the complainant to be effective, “defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis, 415 U.S. at 318, 94 S.Ct. at 1111. The principal opinion makes a hollow distinction when it asserts that
I do not suggest that in every case the asserted interest of the individual defend-
The judgment should be reversed, and the case should be remanded for further proceedings consistent with the views expressed herein.
Notes
Appellant denied complainant‘s testimony as related and testified that all sexual activity was voluntary. When Green left the car at the cotton gin, “I asked her how she ever went out on him, had she ever wanted a black dude before. She said yes, she had one in Arkansas she go see whenever she got ready.” He offered to stay at the gin if she and Green had something to do, but she said, “No, you don‘t have to.” He said they drove around to get some marijuana and Green and complainant smoked it at her house but appellant did not. Green told him: “You and her head on out” and after appellant refused they all left together. Later they brought Green back to complainant‘s house and the two “went riding around drinking beer and whiskey.” “We talked about me and her having sex . . . and I told her I‘d give her $10.” She told appellant that Green didn‘t have a job and that she supported him. After further conversation, they each had oral sex and intercourse several times throughout the night. “I told her I‘d pay her rent if I could see her once a month. She agreed.” Later testimony by appellant indicated no agreement was reached as to “money” and “number of times.” In summary, appellant testified consistently that all sexual activity was consensual and that he did not “force” complainant to have sex with him at any time. The sixth amendment guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” U.S.Const. amend. VI. The guarantee applies against the states through the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 94 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
1. In prosecutions for the crimes of rape, attempt to commit rape, or conspiracy to commit rape, opinion and reputation evidence of the complaining witness’ prior sexual conduct is inadmissible; evidence of specific instances of the complaining witness’ prior sexual conduct or the absence of such instances or conduct is inadmissible, except where such specific instances are:
(1) Evidence of the sexual conduct of the complaining witness with the defendant to prove consent and the evidence is reasonаbly contemporaneous with the date of the alleged crime; or
(2) Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease;
(3) Evidence of immediate surrounding circumstances of the alleged crime; or
(4) Evidence relating to the previous chastity of the complaining witness in cases, where, by statute, previously chaste character is required to be proved by the prosecution.
2. Evidence of the sexual conduct of the complaining witness offered under this section is admissible to the extent that the court finds the evidence relevant to a material fact or issue.
3. If the defendant proposes to offer evidence of the sexual conduct of the complaining witness under this section, he shall file with the court a written motion accompanied by an offer of proof or make an offer of proof on the record outside the hearing of the jury. The court shall hold an in camera hearing to determine the sufficiency of the offer of proof and may at that hearing hear evidence if the court deems it necessary to determine the sufficiency of the offer of proof. If the court finds any of the evidence offered admissible under this section the court shall make an order stating the scope of the evidence which may be introduced. Objections to any decision of the court under this section may be made by either the prosecution or the defendant in the manner provided by law. The in camera hearing shall be recorded and the court shall set forth its reasons for its ruling. The record of the in camera hearing shall be sealed for delivery to the parties and to the appellate court in the event of an appeal or other post trial proceeding. A defendant may not complain on appeal that the trial court erred in failing to admit proffered testimony whenever he fails at trial to present a proper theory of relevance. See United States v. Nez, 661 F.2d 1203, 1206 (10th Cir. 1981). An appellate court will not overturn a conviction on such an allegation of error whenever “it appears that the [asserted theory of relevance] was developed on appeal rather than as an integral part of [a defendant‘s] trial strategy.” Logan v. Marshall, 680 F.2d 1121, 1123 (6th Cir. 1982).