Joyner v. State

JIM HANNAH, Chief Justice, concurring.

I concur in the result reached by this court but write separately regarding Joyner’s motion to permit testimony concerning prior sexual abuse. Joyner argues that he was denied his federal and state constitutional rights to present a defense when the circuit court refused to allow him to question S.O. at the in camera hearing regarding earlier sexual abuse that could have been the cause of the tear to S.O.’s hymen.

I conclude that regardless of any error by the circuit court at the in camera hearing, Joyner suffered no prejudice. While evidence of the alleged 2001 vaginal rape of S.O. was not presented to the jury, evidence of the 2000 sexual abuse of S.O. and possible injury from that abuse was presented to the jury. Dr. Jerry Jones testified at trial that the injury was at least a week or two old at the time of his examination, and that it was “possible that it could |ube years old.” Thus, the jury knew the injury could have predated the conduct alleged against Joyner. Further, at trial the State and the defense stipulated that S.O. was digitally penetrated in a sexual assault in 2000. This stipulation was read to the jury. Additionally, in closing argument Joyner stated that it was stipulated and “uncontroverted that in 2000 this little girl was, I mean, basically raped. She was digitally penetrated by another guy.” Thus, the jury was told that Joyner denied the charged conduct, and evidence was presented to show that the tear in S.O.’s hymen may have been caused by the 2000 sexual assault.

I also note our comment in Sterling v. State, 267 Ark. 208, 210 , 590 S.W.2d 254, 255 (1979): “There is no requirement that the victim present herself for questioning by the accused.” This comment is often misunderstood, and it may have been misunderstood by the circuit court in this case. In Sterling, the victim testified at the rape-shield in camera hearing and was asked about her motive in reporting the rape, what she told her parents, and how much she had to drink. Sterling, 267 Ark. at 209 , 590 S.W.2d at 255 . The State objected. This court held that what the victim told her father and what her motive might have been were not issues within the bounds of either the statute or the motion. Id. This court noted in Sterling that Sterling’s motion asserted he “had information which he desired to present to the court for consideration.” Sterling, 267 Ark. at 211 , 590 S.W.2d at 255 . In other words, Sterling told the court he wanted a decision on the admissibility of evidence 115of prior sexual conduct. 1 Instead, at the in camera hearing counsel sought to use the hearing to fish for information about the victim’s motives and facts about the charged rape. Because of this attempt to circumvent the statute, which limits the hearing to admissibility of evidence of pri- or sexual conduct, this court in Sterling stated that the in camera hearing is not to be used as a means to carry out discovery unrelated to sexual conduct. Sterling, 267 Ark. at 210 , 590 S.W.2d at 255 . Rather, the purpose of the in camera hearing is to determine whether evidence of prior sexual conduct is relevant and admissible for trial purposes. Id.

Sterling does not stand for the proposition that a victim may never be subjected to questioning at the in camera hearing. It stands for the proposition that a victim does not have to present him or herself at the in camera hearing to be subjected to a discovery deposition:

Appellant should have been permitted to present any available evidence relating to the victim’s prior sexual conduct and any available evidence relating to the acts upon which the present prosecution is based. However, the in camera hearing is not designed to be used as a subterfuge to obtain a discovery deposition from the alleged victim.

Sterling, 267 Ark. at 210 , 590 S.W.2d at 255 . The rape-shield statute concerns evidence of prior sexual conduct. General discovery is not the purpose of the in camera hearing. The right to confront the victim as the accusing witness is not compromised by the rape-shield 11fistatute:

If the statute absolutely barred evidence of the victim’s prior sexual conduct, its constitutionality would be suspect in light of Davis v. Alaska, 415 U.S. 308 [ 94 S.Ct. 1105 , 39 L.Ed.2d 347 ] (1975)[ (1974) ]. This it does not do. Since this evidence is admissible at trial upon the court’s determination that it is relevant to the fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, we cannot say that the appellant’s due process rights are not fully protected.

Marion v. State, 267 Ark. 345, 347 , 590 S.W.2d 288, 290 (1979).

The rape-shield statute prohibits hearing the issue of admissibility of evidence of prior sexual conduct at trial. Ark.Code Ann. § 16-42-101(b) (Repl.1999). This prohibition against admission at trial applies regardless of what purpose the evidence may serve, whether that be attacking the “credibility of the victim, to prove consent, or any other defense, or for any other purpose.” Id. Rather, the admissibility of evidence of prior sexual conduct of the victim is decided at an in camera hearing. Ark.Code Ann. § 16-42-101(c) (Repl. 1999). Further, at the in camera hearing, the circuit court must, once it decides to admit the evidence as relevant and sufficiently probative, instruct counsel how the admitted testimony is to be presented at trial. Ark.Code Ann. § 16-42-101(c)(2)(C) (Repl.1999). The rape-shield statute was designed to stop the practice of cross-examination of victims at a public trial regarding their complete sexual history because the history is usually irrelevant to proving the charged crime. Duncan v. State, 263 Ark. 242, 244 , 565 S.W.2d 1, 2 (1978). The intent is to shield victims of rape or sexual abuse from the humiliation of having personal conduct unrelated to, and irrelevant to, the defendant’s guilt discussed in front of |17the jury and the pub-lie. Bond v. State, 374 Ark. 332, 335-36 , 288 S.W.3d 206, 209 (2008); Flurry v. State, 290 Ark. 417 , 720 S.W.2d 699 (1986). It is also intended to encourage rape and sexual assault victims to prosecute their attackers. State v. Sheard, 315 Ark. 710, 716 , 870 S.W.2d 212, 215-16 (1994).

The rape-shield statute controls where the decision on admission is made. To characterize the statute as a rule excluding evidence and subject to exceptions is inaccurate. “This statute clearly allows evidence of the alleged victim’s prior sexual conduct, as well as evidence directly pertaining to the acts upon which the present prosecution is based, to be introduced or inquired about in the in camera hearing.” Sterling, 267 Ark. at 210 , 590 S.W.2d at 255 . Thus, it does not exclude evidence of prior sexual conduct and then grant an exception.

The rape-shield statute moves the decision on relevance and probative value of evidence of past sexual conduct from the public setting of trial to a closed in camera hearing. In other words, if the evidence of past sexual conduct is found at the in camera hearing to be relevant to and sufficiently probative of the defendant’s defense, it is admissible at trial. See Ark. Code Ann. § 16-42-101 (c)(2)(C) (Repl. 1999). The rape-shield statute process makes discussion on admission non-public and means that irrelevant evidence of abuse or the victim’s sexual conduct will not be disclosed in public. Irrelevant evidence is not admissible in any event. See Ark. R. Evid. 402.

In the present case at the in camera hearing, Joyner offered hearsay testimony about |1sother instances of sexual abuse suffered by S.O., as well as unauthenticated governmental reports of abuse she suffered. Further, Joyner believed that at trial the State would attribute the hymen tear to him. The State did so. In opening statements, the prosecutor referenced expert witness Dr. Jerry Jones and stated as follows:

But what he’s going to tell you is that there was evidence of penetration, ah, in this little girl’s hymen. Trauma.

Ah, so you’re going to hear [S.O.] tell that he did it. You’re going to hear the DNA and the probabilities of it being someone else. You’re going to see the holes in the wall.

Joyner requested that S.O. testify at the in camera hearing held before trial. The State argued that the rape-shield statute precludes subjecting a victim to testify about prior abuse at an in camera hearing unless the defendant shows that the “prior acts clearly occurred.” Based on finding that the hearsay testimony and the reports were inadmissible, the State argued she could not be compelled to testify at the in camera hearing because Joyner had failed to show by admissible evidence that “the prior acts clearly occurred.” The circuit court agreed and did not compel S.O. to testify. 2 The State argues on appeal, as it did in the circuit court below, that under State v. Townsend, 366 Ark. 152 , 233 S.W.3d 680 (2006), the defendant must prove that the prior act clearly occurred before the victim may be |19compelled to testify at the in camera hearing. Reliance on Townsend is misplaced. Townsend controls what must be shown before trial to compel the victim to testify at trial. It does not speak to the victim’s testifying at the in camera hearing. The in camera hearing is specifically held so that the victim can testify in a protected setting to avoid public humiliation by disclosure of unrelated and irrelevant evidence of prior sexual conduct, in this case, prior sexual abuse. See Bond, supra. Under the facts of this case, the circuit court erred in concluding that S.O. need not testify at the in camera hearing. However, for the reasons noted above, Joyner suffered no prejudice. Therefore, I concur in the decision to affirm the circuit court.

DANIELSON, J., joins.

. Sterling's motion made reference to prior consensual sexual acts; however, it appears that there was no proffer to allow review of that issue. Sterling v. State, 267 Ark. 208, 211 , 590 S.W.2d 254, 255-56 (1979).

. I note that at the in camera hearing, the prosecutor represented to the circuit court that S.O. had been asked about the prior abuse and could not remember one of the instances. Based on this assertion, the prosecutor also argued that S.O. should not be required to testify. It is doubtful that Joyner’s right to confront an accusing witness would be satisfied by the State’s representation of what the witness would say.