State v. Long
140 S.W.3d 27
Mo.
2004
Check Treatment

*1 Kimbrough’s Dr. Institute, to fulfill gift attempts Deformity of which nial Facial it re- possible because as near as founding pedia- He is a intent he is a member. University to use Washington City quires Louis tric dentist of St. The education. money dental care to 20 for dental-related provides routine Development Alumni daily pro- at dental clinic and the Dental children fact that longer exist special school no care to children and the dental vides dental Fund objective, on the cleft as care needs and serves health does not frustrate pros- University Gay, Washington team. Dr. a maxillofacial at palate school medical thodontist, of the serves as the Director dental practice to teach and continues of the of Maxillofacial Prosthetics Division medicine. Department at the School Otolaryngology Dr. Kim- is no evidence There the same primarily He does Medicine. money contemplated that the brough ever as he did at at the School of Medicine

work and he great, great-nieces, his go to would prosthes- fits dental the dental school. He rever- for the provision not include did defects or who people es for with birth his heirs property sion of The cir- trauma or cancer. have suffered dental school would that the fund or event directing one or two judgment cuit court’s cease to exist. Kimbrough’s in Dr. name would chairs Kimbrough’s Dr. purpose of general The professorships. two support one or such programs and support educational gift to Smith, the last dean of the den- Richard Washington at in dental fields projects tal and chairman of its orthodontics school accomplished. While University can be professor of anthro- department, became designated by grantor specific fund he and university, at the where pology exists, longer no carry purpose out this in dental-related others educate students trust disposition of the court’s the circuit in the area of den- topics and do research Kimbrough’s Dr. intent. carries out assets of the face. genetics tal and biomechanics circuit court of the judgment The library Washington at Univer- The medical affirmed. sity has dental book collections. two found that “dental medicine is circuit court All concur. Washington necessary component still a School,” University and remarked Medical healing miraculous

on the “borderline university’s professors continue

work” the perform. of the dental school closing Neither the Missouri, Respondent, STATE Alumni De- change in the Dental nor the Kimbrough’s Fund make Dr. velopment LONG, Appellant. Jeffrey D. estate can be used gift useless. The trust patients, of dental continue treatment 85620. No. SC research, education post-graduate Missouri, Supreme Court medicine. dental En Banc. Conclusion 1, 2004. July “as near as.” Cy literally means pres Aug. Rehearing Denied objective to further Kimbrough’s Dr. Washington Universi- dental education disposition court’s

ty. The circuit *2 court

sodomy, section 566.060. The trial by prohibiting Long abused its discretion introducing evidence of *3 allegations by judgment the victim. The and the case is remanded. reversed

FACTS evidence, the According to the state’s apartment with went Long’s apart- Manning. Chris Once ment, began drinking. all three At some point, Long Manning and beat and sexual- ly assaulted the victim and then forced her out of Long’s apartment and into a hall- way. until She remained there the next morning because she was afraid and in pain. nearby gro- then walked to a She store, cery security guard where called a bathed, home, taxi for her. She went and tried to recover from the assault. later, A inci- days reported few she A police. dent medical examination re- trauma, bruising, vaginal vealed rectal tears and abrasions consistent with a sexu- Athough al assault. there was substantial physical evidence that the victim had been assaulted, police Long’s apart- search of indicating ment recovered no evidence victim had been assaulted there. There physical linking Long was no evidence Long assaulting the assault. denied victim. There were no other witnesses. Craig Johnston, A. Office of the State allega- In order to rebut victim’s Defender, Columbia, MO, Ap- Public for tions, to introduce testi- Long attempted pellant. mony from three witnesses via offers of Nixon, Gen., (Jay) Atty. Jeremiah W. Timothy In proof. proof, the first offer of Starnes, Gen., Atty. Richard A. Asst. Jef- Wilson testified that the victim had told MO, City, Respondent. ferson police physically that he had assaulted by hitting her her on the head a rock. TEITELMAN, Judge. RICHARD B. that, Wilson also testified on another occa- sion, Jeffrey D. police was convicted of one the victim had told that he had 566.030, count of rape, neighbor forcible section threatened her with harm. The 2000,1 RSMo count of forcible false. one testified both were statutory 1. All references are to RSMo 2000. I. proof, police

In the second offer of alleged testified that the victim detective attack the party allows a Missouri law her. The de- had threatened Wilson by demonstrating the credibility of witness victim later called tective testified that the for truth and ve bad character witnesses’ man O’Brien, and said that was not the Wilson racity. John C. Law of MISSOURI (3d ed.1996). Evidence, who threatened her. While section may cross-examine the witness party proof, neighbor- final offer relat specific acts of misconduct property manager hood testified may credibility, acts ing these and accused Wilson victim called her *4 Rousan proven by extrinsic evidence. be to by pretending from her home luring her 576, 590 48 S.W.3d sexually then as- security guard be a 2001). Thus, a cross-ex when defendant later, saulting her. weeks the victim Two misconduct, prior about amines witness manager and recanted property called the by is “bound the witness’ the defendant story. to the and “cannot offer evidence answer” course, unless, the character contrary, of testimony trial court excluded the in issue on put of the witness has been that it proof, concluding offer of each Williams, direct examination.” State “proper not character evi- irrelevant and 1, 4 (Mo.App.1973). attorney did not cross- dence.” prior, The bar on extrinsic evidence prior examine the victim these misconduct furthers the specific acts of allegations. the fact-finder the general policy focusing judi conserving probative facts and most ANALYSIS on by avoiding mini-trials cial resources Long point appeal,2 In his first on Graber, collateral issues. Hoffman court its dis argues that the trial abused (Mo.App.1941). In some S.W.2d testimony of the excluding cretion in cases, however, excluding extrin the rule said that the victim three witnesses who fails allegations sic evidence of prior of sex allegations previous had made by shielding the fact- purpose to serve this issues, maintains physical ual or assault. from not collateral but finder testimony was central not that the excluded in the An issue is a central issue case. falsely directly had his defense that if it is a “crucial issue collateral Williams, The state assaulting controversy.” him of her.3 accused Where, testimony (Mo.App.1993). argues proffered S.W.2d case, credibility is improper attempt an in this a witness’ as as inadmissible acquit determining guilt key untruthfulness with ex factor the victim’s prove the wit tal, evidence of excluding of miscon extrinsic specific acts trinsic evidence allegations deprives prior false nesses’ duct. Raines, 118 section 491.015. granted, the other ble has been 2. As new trial appeal (Mo.App.2003); in this need claims of error raised S.W.3d Scott, (Mo.App.2002). be reviewed. However, allega- prior possible that some it is 491.015, rape shield known as the 3. Section implicate prior could tions of sexual assault statute, inquiry prior false into does not bar case, court In that the trial sexual conduct. Evi- allegations rape sexual assault. applicability of have to consider the would pri- complaints, opposed to as dence of 491.015. section conduct, inadmissi- is not rendered or sexual trial courts to make a highly require rele most states fact-finder of evidence determination, outside the directly preliminary in contro vant to a crucial issue (1) jury, that presence of the versy; credibility witness. An or sexual allegation rape another non-collateral, made evidentiary rendering rule (2) false; and, assault; allegation this must highly relevant evidence inadmissible (3) allegation was the victim knew the right yield to the defendant’s constitutional Morgan false. full art. present defense. Mo. Const. (Alaska 18(a). App.2002). 1, section juris- remedy problem, To this several the second and third re While sound, defendants introduce ex- are the first is not. quirements dictions allow prove that a victim has Prior false are relevant to the trinsic evidence credibility. Al- The relevance previously allegations.4 made false witness’ allegation pri is thus derived though the exact rationales for and restric- marily allegation from the fact that admissibility tions on the of such evidence subject varies, entirely was false and not from the the common theme is a concern for *5 allegation. The prior matter of the false striking appropriate the between balance the to false alle limiting inquiry prior rule avoiding misguided focus on collateral is- gations charged that are the same as the allowing fully sues while the accused to erroneously the offense focuses relevance against charge. defend the analysis entirely subject the upon The current Missouri rule prohibit allegation ignores of the the fact from ing prior allega extrinsic evidence of false credibility is which relevance witness tions does not strike the appropriate bal derived; allegation fact that the was the Therefore, ance. a criminal defendant Therefore, require false. the fundamental cases, may, in Missouri some introduce admitting for extrinsic evidence of a ment prior allegations. extrinsic evidence of false showing prior allegation false should be This rule is not limited to sexual assault or trial court legal of relevance5 which the rape cases. probative the value of the must balance prior allegation with knowingly made false II. course, prejudice. Of simi potential the Having prior allegation determined that extrinsic evi- larities the false between prior allegations may charged dence of false and the offense as as circum be well admissible, requirements allegation the for establish- stances under which the admissibility analysis. ing must be defined. In made all factor into the relevance assault, involving rape prior allegation cases or sexual A false could be so remote State, 332, kula, 108, 195, (Alaska Morgan Mich.App. 4. 199 54 P.3d 333 84 269 N.W.2d Walton, McClure, 952, App.2002); (1978); State v. 715 N.E.2d 824 Ill.App.3d People v. (Ind.1999); State, 669, 710 So.2d 617, 899, Clibum (1976); 356 N.E.2d 1 Ill.Dec. (Fla. 1998) (prior allegation 2d DCA false Izzi, R.I. 348 A.2d 372- State v. State, admissible); kidnapping of Beck v. (1975). OK CR 824 P.2d 385 Miller v. Nev. 779 P.2d legally probative 5. Evidence is relevant if its Smith v. 259 Ga. 377 S.E.2d outweighs prejudice, confu- value its costs— Barber, Kan.App.2d issues, misleading jury, the undue sion of the 766 P.2d Clinebell v. delay, waste of time or cumulativeness. State Commonwealth, 235 Va. 368 S.E.2d Anderson, (Mo. banc Anderson, 211 Mont. 2002). (1984); People v. Mi prior time or made under circumstances so to demonstrate of the relevance false allegations. dissimilar charged offense prejudice outweighs probative value. III. trial any relevancy ruling, As other The of this case facts indicate retain wide in determin- courts discretion Long opportunity is entitled to an ing legal prior relevance of false alle- admissibility establish the of extrinsic evi gations. prior dence the victim’s false allegations.7 prosecuting The witness require Most states a defendant that Long Long testified assaulted her. prosecuting witness establish doing so. denies No other witnesses tes allega previously knowingly made Long sexually tified that assaulted the by a preponderance tions either physical victim. There was no evidence convincing evi evidence or clear and Long to on the linking the assault victim. Morgan, pre dence. The P.3d jury’s assessment of the relative ponderance evidence standard credibility prosecuting Long and requirem consistent with foundational conviction, the key witness was admitting evi excluding ents6 for thereby enhancing the relevance is, therefore, dence in Missouri and allegations. Under these circum applicable determining standard stances, excluding evidence whether a defendant has established prejudicial because the deprived opportunity made a full prosecuting previously witness *6 present his that the defense witness allegations. in knowingly false As fabricating present allegations the cases, full may rely upon the defendant the him. against panoply of available for establish evidence ing Documents, admissibility. witnesses reversed, judgment and the is case may and other such evidence admissible remanded for a trial.8 be is new allegations. challenges prior 6. When a defendant the admissi- trinsic evidence of false In confession, case, bility the to cross-examine of a the confession is admis- this decision not allegations prior only proves state the sible if the the voluntariness introducing preponder- does not bar Mr. the of a defendant’s confession a Among given by evidence. reasons the of the evidence. v. Ervin 979 the ance State 1998). Long’s refusing for trial court Mr. offers of S.W.2d testimony proof proffered was that the by preponderance of The state must show a therefore, would, likely relevant. have It allegedly in the evidence that false statements attempt to been futile for counsel to cross- intentionally a warrant were search not made regarding subject the matter examine disregard or with reckless for the truth. State already trial ruled irrele court had Trenter, (Mo.App.2002). v. 85 S.W.3d compel law vant. "The does not under showing by a The state bears the burden of taking of a act for the lone aim of useless preponderance of the evidence that motion requirement.” complying with technical Heyer, suppress should be denied. State Barnett, (Mo. 920[4] 628 S.W.2d (citing (Mo.App.1998) App.1982); Spulak, State (Mo. Hoopingarner, S.W.2d State (Mo.App.1986). App.1993)). judge, consistently displayed argues failure 8.The trial who The state Mr. throughout the operates to bar for course cross-examine the victim also concern fairness trial, existing introducing reasonably interpreted Mis- him from extrinsic evidence allegations. points precedent declining prof- in to admit the prior dissent souri As the out, testimony. opinion is thus a cri- normally first cross- fered This the defendant should introducing tique aspect common law prior ex of one of Missouri’s examine the witness WHITE, C.J., STITH, JJ., upon the sub premised WOLFF and is not ... ject prior allegation concur. requirement ... the fundamental [and] PRICE, J., separate opinion dissents in admitting extrinsic evidence of a filed. essentially showing of allegation legal by balancing probative relevance LIMBAUGH, J., in separate dissents knowingly value made opinion filed. allegation potential prejudice.” with the BENTON, J., opinion concurs in however, majority acknowledges, As the LIMBAUGH, J. assault, rape or sexual involving cases “[i]n require most trial courts to make a states PRICE, JR., RAY Judge, WILLIAM (1) preliminary ... determination dissenting. prosecuting allega witness made another I agree with the second and third ratio- rape tion of sexual assault [that expressed in Judge Limbaugh’s nales dis- fact, every state that has al false].” senting opinion and would affirm the con- allega lowed extrinsic evidence of false viction. Because these two rationales are requires tions sexual assault cases dispositive, necessary it is not to address allegation prior false be the same as appropriate circumstances which charged at least similar to the offense. prior false may accusations be used to See, State, g., e. Pantazes v. 376 Md. impeach a witness. (2003); Morgan A.2d (Alaska App.2002); 54 P.3d LIMBAUGH, JR., STEPHEN N. West, 95 Hawaii Judge, dissenting. Lopez v. S.W.3d I respectfully dissent. Though some (refusing adopt (Tex.Crim.App.2000) per change the law is warranted in sexual looking se rule but each case individual assault credibility cases where the victim’s Walton, ly); N.E.2d issue, is at I would hold that extrinsic (Ind.1999); Smith, 743 So.2d *7 evidence of a victim’s false accusa- (La.1999); Johnson, 202-03 State v. 123 1) tions should be if only admissible the 640, 869, (1997); People N.M. 944 P.2d charged accusations are similar to the of- Grano, 278, 221 Ill.App.3d Ill.Dec. 2) fense, and making denies the 727, 248, (1996); 676 N.E.2d 257-58 State false accusations after being confronted on McCarroll, 559, 18, 336 N.C. 445 S.E.2d case, cross-examination. In this it need (1994); DeSantis, 155 Wis.2d not be determined whether the condi- first 774, 600, (1990); 456 N.W.2d Round certainly tion was met because the second U.S., 315, (D.C.1990); tree v. 581 A.2d met, event, any condition was not and in Smith v. 259 Ga. 377 S.E.2d the prejudiced by defendant was not the Miller Nev. of exclusion the evidence. 779 P.2d 89-90 Barber, I majority’s first take issue Kan.App.2d with the 766 P.2d expansive and unprecedented holding that 1289-90 Commonwealth v. Bohan non, the prior allegations sought false to be 378 N.E.2d Mass. Izzi, introduced need not be similar to the 115 R.I. 348 A.2d Nab, Instead, charged majority offense. as the 245 Or. (1966). explains, relevance of “[t]he evidence, legal judgment. of not of the trial court's acu- men and effect, already these have un- over the states not take circus.” State v. John son, 1985); majority’s legal dertaken the rele- Strong, W. vance/balancing approach by determining, John on Evidence McCoRmick ed.1999). (5th Here, instance, law, sec. categorically, and that as a matter counsel for of the inquired had defendant assault, probative in cases of sexual the on cross-examination whether victim she knowingly allegations made false value allegations in past, had made false the only outweighs potential prejudice the ques the trial court determined that the the false the same or allegations where are tioning was relevant on the issue of her charged the similar to offense. Converse- may credibility, doing she have admitted ly, where the false are not the allegations so, obviating thus for the intro the need offense, to the charged same similar the extrinsic at duction of evidence and the allegations value of probative the false See, waste of Hoover g., tendant time. e. outweighs prejudice. never potential the Denton, (Mo.1960) bright This is the better It is a line rule. (holding that extrinsic evidence should more in apply, that is easier and it is once a person be admitted admits to rule, general by the keeping with as cited criminal conviction on cross-examination majority, that bars extrinsic evidence the further impeachment because becomes prior, specific so to acts misconduct “surplusage”). See also McCoRmick on Ev judicial avoiding by conserve resources (“If fully sec. 39 admits the witness idence mini-trials on collateral issues. Theoreti- facts, impeacher should not be rule, cally, under the even the majority calling prolong by allowed to the attack report of a to collect property loss witnesses”). However, majority, proceeds insurance the willful failure to footnote, failure dismisses defendant’s tax pay a in a sexual assault admissible unnecessary, stating cross-examine as case. This is the unfortunate result of likely that futile for “[i]t would have been too painting with broad a brush.1 attempt cross-examine the counsel Assuming allegations here regarding subject sufficiently the differ were similar under irrelevant.” already trial court had ruled adopt, ent rule I would defendant did not likelihood, not excuse though, That should proper procedure for their ad follow record. litigant making proper majority ignores mission. The defendant’s for false in sexual The rule longstanding eviden- clear violation cases, now, up assault precludes tiary rule the introduction the answers cross-examiner bound a witness impeach of extrinsic evidence to witness, and extrinsic evidence *8 specific acts misconduct without But impeach the witness. inadmissible affording opportunity first witness fact that the allows the new rule now deny matter on cross- to affirm to con introduction extrinsic evidence Fredericks, 136 examination. See State v. the witness’ is no reason tradict answers 51, (1896); 832, v. Mo. 87 S.W. 833 Strahl requirement that discard the (Mo.1958). Turner, 833, 310 S.W.2d 844 brought on cross-examina up must first be course, fact, designed, promote rule is courts appellate all the tion. efficiency preserve judicial resources. have the introduction that addressed false alle to ensure does extrinsic evidence of a witness’ It is also “that the sideshow 248, Wolfe, 258 in whether the false State v. 1. Not issue this case is 1, trial, Williams, 2000); "recently” v. reports occurred before State (Mo.App.1973). See were too remote time to be relevant.

35 v. Hutchin (N.D.1984); State gations sexual assault cases have done N.W.2d 302 son, (1984); only 583, of a so the context foundational 141 Ariz. 688 P.2d 209 Caswell, (Minn. generally, cross-examination. See State v. v. State 320 N.W.2d 417 Baker, (Iowa Mandel, Pan 2004); 952, 679 7 v. 1982); N.W.2d People 48 N.Y.2d State, tazes v. 661, 376 Md. 831 A.2d 432 (1979); 63, 425 401 N.E.2d 185 N.Y.S.2d Bray, v. (2003); 485, State N.J.Super. 356 Bohannon, v. Commonwealth 376 Mass. State, (2003); Morgan v. 813 A.2d 571 54 (1978); State v. Simbo 90, N.E.2d 987 378 (Alaska App.2002); v. State Gor P.3d 332 lo, 49, (1975); State 188 Colo. 532 P.2d 962 don, 258, (2001); 146 N.H. 770 A.2d 702 Izzi, (1975); v. 487, 115 R.I. 348 A.2d 371 West, v. 452, State 95 24 Hawaii P.3d 648 Nab, 454, 421 P.2d State v. 245 Or. 388 State, (Tex. v. (2001); Lopez 18 S.W.3d 220 Hurlburt, v. (1966); People Cal.App.2d 166 State, Crim.App.2000); Bryant v. 734 A.2d (1958). 334, I cannot fathom 333 P.2d 82 157, v. (Del.1999); State 1999 507300 WL why apart. Missouri should stand Walton, State (Ind.1999); 715 N.E.2d 824 Finally, even if the evidence of false Smith, v. v. (La.1999); State 743 S.2d 199 admitted, I allegations should have been Harris, 865, Wash.App. 989 P.2d 553 that the failure to do so was would hold State, (1999); 434, Booker v. 334 Ark. First, not the defendant did prejudicial. Johnson, (1998); State v. S.W.2d testimony introduce the vic- indeed (1997); State N.M. veracity reputation tim’s for truth and Chamley, (S.D.1997); N.W.2d very counsel’s focus on poor, and defense Quinn, State v. 490 S.E.2d W.Va. closing argument was the victim’s inconsis- (1997); State ex rel. Mazurek v. Dis The additional tent stories behaviors. trict Court the Mont. Fourth Judicial specific evidence of Dist., (1996); —alle- 277 Mont. 922 P.2d 474 gations nearly that were not so serious and Grano, People Ill.App.3d involved dissimilar incidents with (1996); Ill.Dec. 676 N.E.2d 248 lit- different individual —would have added Kelley, 229 Conn. 643 A.2d 854 Second, important, and more this was tle. McCarroll, (1994); State v. 336 N.C. merely a “he said-she said” case as the Goodnow, State v. (1994); 445 S.E.2d 18 majority characterizes —a case that turned (1994); 649 A.2d 752 Vt. Instead, solely credibility. on the victim’s Boggs, 63 Ohio St.3d 588 N.E.2d 813 ample independent support there was Boyles, Commonwealth v. claim that the incident was not the victim’s Pa.Super. 595 A.2d 1180 and the were not self- consensual wounds Boiter, 302 S.C. 396 S.E.2d 364 inflicted, At which was the sole defense. DeSantis, 155 Wis.2d trial, sexual Long admitted consensual U.S., Roundtree v. N.W.2d victim, but testified that activity with the (D.C.1990); Phillips 581 A.2d 315 it injuries her were self-inflicted and Smith 545 So.2d 221 (Ala.Crim.App.1989); that she had bruises or surprising was “not 259 Ga. 377 S.E.2d 158 on head ... she was so violent Nevada, bump Miller v. 105 Nev. ” However, *9 noted, Barber, hysterical.... as and 779 P.2d 87 consent, contrary defense of and Kan.App.2d 766 P.2d 1288 Commonwealth, exhibited much more than Clinebell 235 Va. head,” she bump or a on her State v. Schwartz “bruises 368 S.E.2d 263 miller, injuries vaginal to her significant suffered 107 Idaho 685 P.2d 830 Hackett, severely and was beaten People v. and anal areas Mich. Kringstad, body. particulars entire The 353 over her N.W.2d evidence press uncontroverted point: finally to the hospital She went two

days attack after the because she still was

“bleeding from rectum.” An exter- [her]

nal conducted body exam a “sexual “multiple

assault nurse examiner” revealed throughout legs

bruises her arms ... and jaw

head '... ... fin- shoulders ... [and]

gers ... with the way consistent vic- [the [by

tim being held her assail- described] also suffered “abrasions” to

ants].” She vaginal

her labia and “inflammation”

area, penetration.” forced “indicative of lot

Additionally bruising, there was “a

swelling, abrasions” inside [and] rectum, causing pain

around so much barely

that the victim “could sit down.” In

my view, juror, that of a no reasonable

person would consent to such mistreat-

ment. reasons,

For foregoing I would af-

firm judgment. FRANCIS, rel. Lee

STATE ex S.

Relator, McELWAIN, L. Honorable Warren

Respondent.

No. SC Missouri,

Supreme Court

En Banc. 3, 2004.

Aug.