State v. Brown

WELLIVER, Judge,

dissenting.

I respectfully dissent.

The application of the rape shield statute, § 491.015, RSMo 1978, in this case deprives appellant of his sixth amendment right to confront adverse witnesses. 1 The principal opinion dismisses the controlling principle announced in Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974), and ignores those cases that have applied it in situations similar to the one presented here. Davis and its progeny require that this case be reversed and remanded for a new trial.

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 a 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 *939 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 demonstrates 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 § 491.015, RSMo 1978, is not a total prohibition of evidence of prior sexual conduct. The fact remains that the statute would in this case prevent admission of evidence that appellant has a constitutional right to introduce.

I do not suggest that in every case the asserted interest of the individual defend *940 ant will outweigh the interests of the state. There may well be situations in which a defendant might concoct a theory of bias, prejudice, or ulterior motive so untenable that it is obvious that any testimony sought to be elicited would be aimed merely at embarrassing or harassing the witness. In such situations the trial court, in the exercise of its “broad discretion ... to preclude repetitive and unduly harassing interrogation,” Davis, 415 U.S. at 316 , 94 S.Ct. at 1110 , would be justified in excluding such evidence. See United States v. Nez, 661 F.2d 1203, 1206 (10th Cir. 1981). That, however, is not the case before us. It is clear that the testimony appellant sought to introduce was reasonably related to proof of bias, prejudice, or ulterior motive. Here “The right of confrontation is paramount” to the asserted state interest. Davis, 415 U.S. at 319 , 94 S.Ct. at 1112 .

The judgment should be reversed, and the case should be remanded for further proceedings consistent with the views expressed herein.

. 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).

. 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).