1997 -NMSC- 36, State v. Johnson

• Decision Date: 01 August 1997
• Docket Number: No. 23262,23262
• Citation: 944 P.2d 869,123 N.M. 640,1997 NMSC 36
• Parties: , 1997 -NMSC- 36 STATE of New Mexico, Plaintiff-Petitioner, v. Richard Leonard JOHNSON, Defendant-Respondent.
• Court: New Mexico Supreme Court

Page 869

944 P.2d 869

123 N.M. 640, 1997 -NMSC- 36

STATE of New Mexico, Plaintiff-Petitioner, v. Richard Leonard JOHNSON, Defendant-Respondent.

No. 23262.

Supreme Court of New Mexico.

Aug. 1, 1997.

[123 N.M. 642] Tom Udall, Attorney General, Patricia A. Gandert, Assistant Attorney General, Santa Fe, for Plaintiff-Petitioner.

T. Glenn Ellington, Chief Public Defender, Darryl A. Bouchard, Assistant Appellate Defender, Santa Fe, for Defendant-Respondent.

OPINION

MINZNER, Justice.

¶1 The State appeals a New Mexico Court of Appeals decision granting Defendant Richard Johnson a new trial. See State v. Johnson, 1995 NMCA 170, p 16, 121 N.M. 77, 908 P.2d 770 (Ct.App.1995). A jury convicted Defendant of two accounts each of aggravated assault and second degree criminal penetration, and one count of false imprisonment. The trial court had ruled prior to trial that NMSA 1978, Section 30-9-16 (Repl.Pamp.1994) (New Mexico's rape shield law), and Rule 11-413 NMRA 1997 prevented admission of evidence of the victims' prior sexual conduct. The Court of Appeals reversed the conviction and remanded the case for a new trial, holding that the trial court's decision against admitting such evidence deprived him of his Sixth Amendment right of confrontation. See Johnson, 1995 NMCA 170, p 16. We grantedcertiorari in this case to address the protection provided by Section 30-9-16 and Rule 11-413, and the limitations imposed on that protection by the Sixth Amendment. We conclude that, in this instance, our rape shield law and corresponding rule prevent the admission of prior sexual conduct by the victims, because Defendant failed to show (a) that the evidence was material and relevant, and (b) that its probative value equalled or outweighed its inflammatory or prejudicial nature. See Rule 11-413(A). We therefore reverse the Court of Appeals and remand this case to the Court of Appeals for consideration of the other issues Defendant raised on appeal. See Johnson, 1995 NMCA 170, p 1.

I. FACTS AND PROCEDURE

¶2 The charges of which Defendant was convicted stem from two separate incidents, each occurring on Central Avenue in Albuquerque. The State contended that on or about August 25, 1991, Defendant enticed T.A. to enter his car by indicating that he was a law enforcement officer and needed to speak to her; and that on or about October 11, 1992, he offered T.S. a ride, which she accepted. After each woman entered his car, he drove her to a secluded area where he assaulted and raped her.

¶3 Defense counsel told the jury during opening statement that Defendant approached each woman believing her to be a prostitute, that each incident was "a commercial relationship, not forced sex," and that during the course of "these acts for which [Defendant] was paying money, he did things which annoyed, angered and, in some ways, frightened these women." Counsel for the State and for Defendant each told the jury the issue was whether Defendant used force to overcome each victim's will or whether each had consented.

¶4 Defense counsel filed a motion in limine pursuant to Section 30-9-16(C), asking the court to consider the "admissibility of evidence of the prior sexual conduct of the alleged victims." Relying on Rule 11-413, the State opposed his motion and filed its own motion in limine seeking to preclude evidence "of any sexual conduct by any victim with any person other than the defendant" and any reference "to any alleged illicit sexual activity performed by any victim in this case."

¶5 A few days before trial, Defendant and the State each made legal arguments to the court in support of their respective motions. The court ruled it would hold the in camera hearing after selecting the jury and before opening statements. Subsequently, at the in camera hearing, the court heard testimony from Detective Jeff Arbogast and arguments by the State and the Defendant. Detective Arbogast had investigated the case and interviewed the victim-witnesses, T.A. and T.S. Detective Arbogast testified that both T.A. and Defendant Johnson told him that, on that night, T.A. was not acting as a prostitute. Defendant elicited from Detective Arbogast evidence that T.A. told him she had not been working as a prostitute when she got into the car with Defendant, but on occasions in the past she had engaged in acts of prostitution in order to pay her rent. Defendant argued that this admission went "to a central issue" and also "to her credibility." At the close of the hearing, the trial court denied Defendant's request and granted the State's motion.

¶6 At trial Defendant attempted to cross-examine T.S. on whether she was frightened while she was with Defendant; he also attempted to ask her whether she had stopped entering cars of strangers. The court sustained the State's objection. Defendant testified in his own defense. He admitted that he engaged in acts of sexual intercourse with each woman. He testified that they consented to some acts but not to others. The jury acquitted Defendant on a number of counts, including one that charged him with kidnapping and one that charged him with impersonating a police officer. The jury convicted Johnson of aggravated assault, second degree criminal penetration and false imprisonment.

¶7 The Court of Appeals reversed Defendant's conviction and remanded the case for a new trial on grounds that the evidence in question should have been admitted for the purpose of showing possible motive to fabricate. See Johnson, 1995 NMCA 170, p 15. The Court of Appeals emphasized the importance of a defendant's constitutional right of confrontation and identified that right as a significant basis for determining relevance. Johnson, 1995 NMCA 170, p 12. Additionally, the Court of Appeals held that "the net effect of the evidence did not pose a threat of unfair prejudice to the complaining witnesses or the prosecution," and thus the trial court abused its discretion in denying Defendant's request. Johnson, 1995 NMCA 170, p 15. The Court of Appeals reasoned that Defendant's proffer of evidence "went beyond an attempt to show that the sexual acts were consensual," and "went to the issue of whether the victims had reason to fabricate the rape to avenge Defendant's failure or refusal to pay them." Johnson, 1995 NMCA 170, p 9. The Court of Appeals also stated in its analysis that the rape shield statute does not prevent the public disclosure of the acts of individuals who make themselves available for commercial sex. Johnson, 1995 NMCA 170, p 13.

¶8 We granted certiorari to review the trial court's exclusion of evidence of the victims' prior sexual activity. The central question is whether our rape shield law permits the introduction of such evidence when the evidence tends to prove that the alleged victim acted as a prostitute on the occasion, consented to sex, and subsequently fabricated a claim of rape. We conclude it does. However, this case also raises another question, which is whether a defendant must make a showing that there is evidence to support a theory of fabrication before being allowed to introduce evidence of prior acts of prostitution. We conclude the answer to this question is yes. We also conclude that Defendant did not make an adequate showing.

II. DISCUSSION

¶9 We agree with much of the Court of Appeals' analysis. We particularly agree with the Court of Appeals' emphasis on a defendant's constitutional right of confrontation as a basis for determining relevance and weighing probative value, and on the admissibility of evidence of prior sexual conduct to show bias, motive to fabricate or for other purposes consistent with the constitutional right. Nevertheless, we disagree with the Court of Appeals' application of the statute and rule to the facts of this case. On this record, we conclude Defendant failed to show relevance.

¶10 We begin our discussion with the historical development of rape shield laws. We next examine our own rape shield statute and evidentiary rule. We conclude that our statute and rule implicitly recognize the admissibility of evidence necessary to protect a defendant's right of confrontation and that the trial court exercises discretion under our statute and rule to admit evidence of prior sexual conduct in order to protect a defendant's right of confrontation, as well as implement the Legislature's goals in enacting the statute. We also conclude a motive to fabricate is a theory of relevance that justifies admissibility of evidence otherwise restricted by our statute and rule, but that evidence of prior acts of prostitution is not a sufficient showing of a motive to fabricate. Finally, we examine the showing Defendant made in this case.

A. History of Rape Shield Laws Generally

¶11 Prior to the development of rape shield laws, evidence of a rape victim's past sexual experience was offered as evidence on various theories of relevance. See Clifford S. Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant's Past Sexual Behavior, 44 Cath.U.L.Rev. 709, 714-17 (1995). If the rape victim had had prior sexual experience, this might be offered to impeach her credibility or to show her consent to the sexual act in question. See id. at 715. At that time, some believed that evidence of consent to a previous act of sexual intercourse was relevant and material in a criminal trial to a subsequent charge of rape, based on the reasoning that someone who had consented previously would have been more likely to have consented on the particular occasion at issue. See id.; State v. Wood, 59 Ariz. 48, 122 P.2d 416, 418 (1942); People v. Johnson, 106 Cal. 289, 39 P. 622, 623 (1895). Evidentiary use of the complainant's prior sexual conduct, pursuant to various theories of relevance, appeared to have deterred victims of sexual assault from making formal complaints. Fishman, supra, at 716. During the 1940s and the 1960s, governmental agencies and scholars conducted research to...