Summitt v. State

SUMMITT, Appellant, v. THE VERNON Respondent. NEVADA, OF STATE

No. 14022 March Harris, Defender, Morgan Thomson, D. Public and E. Lee Defender,

Deputy Public County, Clark for Appellant. Brian McKay, General, Attorney Carson City; Robert J. Miller, District Attorney, Tufteland, and James District Deputy Attorney, County, Clark for Respondent.

OPINION Court, Mowbray, J.: By the of two counts of guilty Summitt Vernon jury appellant A found judgment his of conviction reversal of sexual assault. He seeks error, one of which we find only assignments asserting several merit; testimony excluding erred in judge district have that the of the victim. experience sexual prior about a similar centered new trial. and remand the case for a Accordingly, we reverse counts of sexual Summitt for three jury A indicted grand charging old child. A count year on a six assault committed the trial because of was dismissed before sexual intercourse and con- was tried preserve failure to evidence. Summitt state’s fellatio. remaining cunnilingus counts of victed of the of a to introduce evidence sought At the trial Summitt jury intercourse, included of the victim which sexual prior experience genitalia. The prior of the victim’s fondling fellatio and the issue, the crime in in the years before had occurred two assault year and her nine involved the same victim same trailer park, friend, in the instant case. who was also a witness girl old young victim had testimony show that Summitt offered acts which consti- knowledge similar had independent charge. present tuted the basis for the ground offer on the district denied Summitt’s judge law,” Revised Statute section Nevada “rape victim shield 50.0901, We turn to the admission of such evidence. barred the statute. construction of part: pertinent

1NRS 50.090 states present any ... the accused prosecution for sexual assault In any conduct of the victim of the crime previous sexual evidence credibility prosecutor has challenge as witness unless the victim’s conduct, concerning such evidence or the victim has testified presented conduct, scope in which case the absence of such or the shall of the victim or rebuttal be limited accused’s cross-examination prosecutor presented or victim. the evidence In joined forty-five 1977 Nevada govern- states the federal statute, ment in passing “rape shield” limiting into the inquiry of a history witness in a or sexual assault Bocchino, case. J. See A. Tanford and A. J. Rape Victim Shield Amendment, 544, Laws and the Sixth 128 U.Pa.L.Rev. (1980). Such generally laws have designed been reverse the common cases, rule applicable

law in rape that use of evidence aof female complainant’s general reputation morality for and chastity was admissible to infer consent and also to attack gener Thus, ally. example, for it had been held: “It is a matter of common knowledge that the bad character of a man chastity for does truth, not even in the degree remotest affect his character for alone, when based upon that while it does that of a woman.” State (Mo. Sibley, 1895), S.W. quoted in State v. Brown, (Mo. 1982), 636 S.W.2d 933 n. 3 cert. denied sub nom., Missouri, Brown v. (1983). 103 S.Ct. 1207 Such statutes as Nevada’s have been described as “directed at the misuse of conduct evidence based on this and antiquated obvi Hudlow, ously illogical 514, premise.” State v. P.2d 659 519 (Wash. 1983). McKenna, 275, See v. People also 585 P.2d 278 “ (Colo. 1978). An purpose additional of such statutes ‘to protect rape victims from degrading and embarrassing disclosure ” of intimate details about their private lives.’ 124 Cong. Rec. at (1978), States, H 11945 quoted 43, in Doe v. United 666 F.2d 45 (4th 1981). Cir. Finally, placed restrictions on the admis “[t]he will, sibility of certain by evidence the rape-shield laws it was hoped, encourage victims to come and report forward the testify crimes and in court from protected unnecessary indignities and needless probing into their sexual histories.” respective State Lemon, 261, (R.I. 1983). v. 456 A.2d 264 law,” In Nevada’s construing “shield we must be mindful of these legislative Equally the purposes. important is rule that “[a] should, can, statute if it reasonably be construed to so avoid any conflict with the constitution.” v. Woodbury, State 17 Nev. 337, 356, 1006, (1883). State, 30 P. 1012 Anaya See also v. 96 119, Milchem, (1980); Court, Nev. 606 P.2d 156 Inc. v. District 541, 84 Nev. (1968).2 445 P.2d 148 2Although counsel not appeal, has raised the constitutional on issue the statutory of preserved. issue construction been In has view of the fundamen importance tal right of the confrontation clause to a a defendant’s to fair trial appellant-defendant preserve and fact that the question did of the consideration, proper application of the our statute for we shall consider the Chrysler-Plymouth Chrysler constitutional issue. Corp., See Desert v. 95 denied, 640, (1979), (1980); Nev. 600 P.2d 1189 cert. 445 U.S. v. 964 Dias State, 710, (1979); State, 95 Nev. v. Davies 95 Nev. 598 (1979). P.2d 636 behalf, in his own to witnesses rights present

A defendant’s him are to cross-examine witnesses confront and Amendment, appli- rights, secured Sixth fundamental the Fourteenth Amendment. Chambers through cable to the states Texas, v. (1973); Washington v. 410 U.S. Mississippi, Texas, (1965). The (1967); v. 380 U.S. 400 U.S. 14 Pointer to confront right Court has held that United States Supreme cases, bow may, in appropriate and cross-examine witnesses interests in the criminal trial legitimate other “accommodate But, 410 U.S. at 295. Mississippi, v. Chambers process.” cautioned, diminution calls significant has “its denial or Court fact-finding ‘integrity process’ into the ultimate question closely interest be examined.” Id. competing that the requires Alaska, (1974), the court 415 U.S. Thus Davis state in from protecting that the interest legitimate held scrutiny prosecution record of a witness could juvenile public right so vital a constitutional as the “require yielding for bias of adverse witness.” The effective cross-examination of the state and the defend- particular court examined the interests ant, it he counsel made clear that would not noting defense juvenile “general impeachment record as [the introduce but rather to show character as a truthful person,” witness’s] crime, for a similar that the witness was on specifically probation shifting a motive for blame which have provided case, in this we have defendant Similarly defendant. Id. 311. general evidence which it is the policy who seeks to introduce for which the defendant seeks to use but protect, state the witness’s challenging purpose sole limited may well draw other- jury an inference which the dispelling circumstances, year old child would six wise from testimony her unless they the occurrences in unable describe had in fact taken place. of necessity accommodating with the

Other courts confronted the of witnesses defendants competing complaining interests that shield statutes should be cases have concluded such rights the constitutional of uphold construed and so applied defendants, interference with the creating the least possible while See, esp., v. reflected in the statutes. Bell legislative purpose Harrison, statute); (6th 1982) (Tennessee Cir. State 670 F.2d 656 Blue, 1979); v. (Kan. Joyce, Commonwealth 415 v. P.2d 897 Howard, (N.H. 1981); 426 A.2d 457 (Mass. State v. N.E.2d 181 Jalo, 1976); Shockley v. 1981); (Or.App. v. 557 P.2d 1359 State 1978); State, Winfield v. S.W.2d 645 (Tenn.Crim.App. Hudlow, Commonwealth, (Va. 1983); v. State 301 S.E.2d 15 (Wash. 1983). P.2d 514 supra, 659 of holdings two of these state court decisions apply to the Howard, at bar. State case In v. the supra, Supreme Court of New Hampshire considered a statute which purported any to preclude evidence of a victim’s consensual sexual activity persons with case, one, other than a defendant. In that as in this the defendant sought introduce such evidence in order to the challenge young complaining credibility, by showing witness’s that she had had experiences other which explain could the source her of knowl- activity of the edge she described in her testimony. The court determined that in order to the uphold of constitutionality statute, the it would that a defendant in a require prosecution to “must, the motion, which shield law was applicable upon given opportunity to demonstrate that due process requires the admission of such evidence because the probative value in the particular context that case outweighs prejudicial its effect on should, course, the Such motion prosecutrix. be made out of of the presence jury.” 426 A.2d at 461. We are persuaded that procedure this would a means of provide proper deciding, aon basis, case case whether such evidence should be admitted. State, Anaya See v. Nev. supra, (1980).

We agree with the reasoning Supreme Court Washing- ton in following procedure, that this the trial court must under- take balance value of the probative evidence its effect, 48.035(1)3, prejudicial see NRS inquiry particularly should focus upon “potential prejudice to the itself,” e., truthfinding i. process “whether the introduction of the issues, past victim’s sexual conduct confuse the mislead the or jury, jury cause decide the on an improper case or Hudlow, emotional basis.” State supra, 659 P.2d at 521. In instant case the defendant does seek to impeach by general witness allegation of Rather, unchastity. specific evidence was offered to show knowledge of such rather We chastity.4 acts than lack of agree 48.035(1)

3NRS reads: relevant, Although probative if its evidence is not admissible value danger substantially prejudice, of outweighed of unfair confu- jury. misleading the sion of the issues or of supporting appellant-defendant’s 4In affidavit motion for a new trial in below, Linton, proceedings Juror L. it was asserted that No. Richard rendered, after was stated both the verdict counsel for the state and the appellant during' jury’s posed question among deliberations “the girl age jurors why young such would know of such sexual acts fact, had, they alleged.” unless occurred as in State Hampshire New Court of ruling with the of the Supreme Howard, supra, 426 A.2d at 462: perceive average would average juror We believe that the Therefore, it girl as a innocent. is twelve-year-old sexual experience would believe that sexual jurors that probable with the have occurred in connection she describes must otherwise, she could not have being prosecuted; incident However, have had statutory rape if victims described it. be for them to possible it would experiences, other sexual detailed, incident testimony concerning an provide realistic To a defendant from happened. preclude never have if it jury, evidence to is otherwise admis- presenting such sible, Accordingly, error. a defendant must would be obvious show, by specific incidents of be afforded the opportunity conduct, has prosecutrix experience that the and sexual charge him. ability statutory rape against to contrive a however, the exercise its sound agree, We also “[i]n discretion, the important the trial court should mindful of statute,” underlying rape-shield considerations policy specific the admission of evidence of accordingly “should limit conduct to the extent that it complainant’s instances of the unduly infringing upon without defendant’s consti- possible Id. right tutional to confrontation.” remaining guilt strong, evidence of was not and since Since and truthfulness accuracy [the witness’s] “[t]he . . . the case testimony key were elements in [defend- Alaska, ant],” we reverse and supra, Davis v. U.S. opinion. consistent with this proceedings remand for further J., J., concur. Springer, Gunderson, C. J.,

Steffen, dissenting part. in concurring part my concur in brethren on fellatio count but I result with cunnilingus. to the count involving dissent as error agree that the district court committed reversible I involving reference to a incident same child- excluding prior (NRS the “rape victim shield law” purposes victim. admission 50.090) by would not have been frustrated terse child, then age the earlier since concerning experience facts four, whose would have been clearly reputation victim The admission unaffected such disclosure. jurors the defendant to disabuse who permit

occurrence would familiarity with fellatio could not might conclude that the child’s trial of the ordeal described at actuality have existed absent the child. Evidence of the prior incident would not relate to the child, sexual conduct of the but rather her experience as a tender- aged victim of a sexual assault. The error which we upon must reverse the fellatio conviction not,

does my in opinion, similarly affect the cunnilingus count. The majority emphasizes that the trial court should allow inquiry into the prior incident only to the extent “specific instances of the complainant’s sexual conduct.” added.) (Emphasis It is espe- cially significant that there is no evidence in the record that the prior violation of the child included an act of cunnilingus. More- over, there is an equal absence of evidence that the child was even questioned about in cunnilingus connection with the prior inci- dent. We are thus faced with a reversal by this Court of the felony e., count of non-event, cunnilingus based upon i. the introduc- tion of the four-year-old then victim to cunnilingus as a result of the prior incident. The majority Howard, relies on State v. (N.H. 426 A.2d 457

1981), as authority for reversal of defendant’s conviction on both counts. Unfortunately, State v. Howard does not support the reversal of the cunnilingus conviction. The Supreme Court of New Hampshire, as quoted by majority, states that “a defend- show, ant must be afforded the opportunity to by specific inci- conduct, dents of sexual that the prosecutrix has the experience and ability to contrive a statutory rape charge against him.” added.) (Emphasis Aside from the fact that State v. Howard involved a twelve-year-old with an complainant allegedly exten- sive prior history of consensual sexual conduct as opposed to the six-year-old in prosecutrix the instant case whose only “history” assault, was as a four-year-old victim of sexual it must be empha- sized that there is no showing that the child-victim in this case had “the experience ability” to contrive a charge of cunnilin- gus against the defendant stemming from the prior incident.

Another consequence of the majority is ruling that it actually violates the spirit of shield law rape accommodating general effect, attack on the credibility of the child-victim. In majority holds that the child’s experience as a four-year-old victim of sexual assault in the form of fellatio may be admitted as a basis for inferring that she contrived a charge of cunnilingus against Summitt. We are thus propelled into the concept in history general, opposed to specific instances of sexual experience in particular, may be introduced to attack the of a It is prosecutrix. clear that such a proposition substantially both the expands and the holding ratio decidendi of Howard, State v. supra. It also appears, given the tender age of case, the prosecutrix in the instant that the proposition created this decision would apply virtually all instances involving a an experience is limited to “history” whose sexual

child-victim I am age simply four or above. occurring of sexual assault necessity of ruling “with the majority unable reconcile interests of witnesses accommodating competing the rape shield law by construing applying and defendants” defendants, while rights “so as to the constitutional uphold legislative pur- the least interference with creating possible conclude that the statutes.” I therefore reflected pose purpose spirit is in conflict with the basic majority position statute. Nevada’s shield rape I Court why additional reason believe this should

There to the circumstances particularly peculiar sensitive Specifically, law. rape case in relation to the shield instant statute, 50.090, NRS to victims who applies Nevada’s shield have of sexual conduct. The word “conduct” prior history behavior, experi- and does not mere imports comprehend active a tender-aged by ence a child means of felonious sexual forced on I conclude that the beneficial assault. would therefore concerns legislation would have even and shield purposes a of sexual who has no stronger application to child-victim assault permit It is the history personal thing sexual conduct. one specific experiences introduction of instances of actual sexual upon jurors forced a child as victim order to disabuse knowledge such must have experiences inference that a child’s necessarily of the defendant. It alleged resulted from acts of evidence quite proposition permit another introduction type previously of one of sexual assault suffered the child- ability an inferring part victim as basis for on the of the child- victim to contrive a different sexual crime the defendant. achieves fairness to the defendant proposition former and victim; youthful respect provides advantage for the the latter which defendant is unfair to state which diminishes or statutory for the protection respect eliminates intended prosecutrix.

My in dissent is reinforced the failure of defense position preserve counsel to as an issue on the refusal the district appeal prior court to admit evidence of the incident it relates to the Such cunnilingus conviction. “failure” was both understandable since there no evidence which to justifiable upon create Furthermore, such an issue.1 in defendant’s motion for a nev/ trial I count. therefore the instant issue was directed the fellatio did, however, object properly to the 1Defensecounsel trial court’s refusal it to the fellatio count. In to allow evidence of the incident as related regard, unsuccessfully proifered following instruction counsel jury: you . improper for to infer that . . would have [the child-victim] “It is

167 should to the time-honored rule conclude that this Court defer will not be entertained on that an issue not raised in trial court 457, State, (1971); Merica v. 87 Nev. P.2d 1161 appeal. State, (1960). Actually, 76 Nev. Kelly conviction, only this Court not disre- reversing cunnilingus the rule consideration of issues raised ini- gards precluding create, sponte, extends itself to sua tially appeal on —it which relief is without upon granted non-constitutional issue or legal precedent authority. benefit of

These types of are extremely cases difficult. I am keenly aware of the concern of brethren my majority in the for both the rights of the defendant and the ordeal of the young prosecutrix upon Moreover, retrial. I respect sense majority I am thin drawing my too a line in dissenting position. I must neverthe- conclude, above, less for reasons noted that defendant’s convic- tion on the cunnilingus count should be affirmed. Accordingly, I respectfully dissent. SMITH, Appellant,

THOMAS GEORGE v. THE Respondent. NEVADA, STATE OF

No. 13536 March P.2d known being of the act penis of fellatio: the insertion of the into the mouth, only if the actions she testified to in fact had occurred.” Additionally, below, arguing court defense counsel said: “But the fact is that are people community, there normal in this normal people get jurors called up that sit there and growing up in their old, experiences years acts, six did type not know of these of sexual [sic] act, maybe cunnilingus in that mentioned but fellatio was, definitely fellatio is issue in case.” this

Case Details

Case Name: Summitt v. State

Court Name: Nevada Supreme Court

Date Published: Mar 26, 1985

Citation: 697 P.2d 1374

Docket Number: 14022

Court Abbreviation: Nev.