Bobo v. State, CR79-146
| Decision Date | 29 October 1979 |
| Docket Number | No. CR79-146,CR79-146 |
| Citation | 589 S.W.2d 5,267 Ark. 1 |
| Parties | Donny BOBO and Michael Forrest, Appellants, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
John W. Walker, James P. Massie, Little Rock, Kenneth Mourton, Fayetteville, for appellants.
Steve Clark, Atty. Gen. by Dennis R. Molock, Asst. Atty. Gen., Little Rock, for appellee.
The two appellants were charged with rape, allegedly committed in the early morning hours of December 12, 1978, at the Wilson Sharp athletic dormitory in Fayetteville. Before the trial, which has not yet been held, the defendants filed a motion pursuant to Ark.Stat.Ann. § 41-1810.2 (Repl.1977), asking that evidence of the prosecutrix's prior sexual conduct with the defendants and with other persons be declared to be admissible.
At the ensuing hearing, in camera, the court held admissible (a) evidence of the prosecutrix's prior sexual relations with the defendants during the 18 months preceding the date of the offense charged and (b) evidence of the prosecutrix's alleged sexual relations with one Bobby Duckworth on the same evening and in the same room as the alleged rape. The court's order provided that the testimony as to item (b) might be developed by direct or cross-examination of the prosecutrix, of Duckworth, and of the defendants.
On this interlocutory appeal the defendants contend that three additional trial procedures should have been approved: (1) Introduction of proof of Duckworth's prior sexual relations with the prosecutrix; (2) cross-examination of the prosecutrix about her prior sexual relations with some 15 other persons, at least four of whom were athletes; and (3) introduction in evidence of a nude picture of the prosecutrix published in 1977 in the magazine "Gallery."
The exact language of the controlling act, passed in 1977, is important to our decision. We quote Sections 1 and 2 of the act:
Section 1. In any criminal prosecution under Arkansas Statutes Annotated 41-1803 through 41-1810, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of these sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
Section 2. Notwithstanding the prohibition contained in Section 1 (§ 41-1810.1), evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim's prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of such evidence is determined in the following manner:
(a) A written motion shall be filed by the defendant with the Court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence of the victim's prior sexual conduct and the purpose for which the evidence is believed relevant.
(b) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the Court may for good cause permit. A written record shall be made of such in camera hearing, and shall be furnished to the Arkansas Supreme Court on appeal. If, following the hearing, the Court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the Court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence.
(c) If the Court determines that some or all of the offered proof is relevant to a fact in issue, the victim shall to told of the Court's order and given the opportunity to consult in private with the Prosecuting Attorney. If the Prosecuting Attorney is satisfied that the order substantially prejudices the prosecution of the case, an interlocutory appeal on behalf of the State may be taken in accordance with Rule 36.10(a) and (c), Arkansas Rules of Criminal Procedure. The defense may appeal such court order in like manner if such order is deemed by the defense to be prejudicial. Further proceedings in the trial court shall be stayed pending determination of the appeal. Provided, a decision by the Arkansas Supreme Court sustaining in its entirety the order appealed shall not bar further proceedings against...
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State v. Vonesh
...her father to bed" arguably admissible under rape shield law prohibiting references to victim's past sexual conduct); Bobo v. State, 267 Ark. 1, 589 S.W.2d 5, 8 (1979); State v. Zaehringer, 280 N.W.2d 416, 420 (La.1979) (posing in the nude for a photograph not within the rape shield Books, ......
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Testerman v. State, 382
...Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979) (evidence of prior relations with the accused was admissible); Bobo and Forrest v. State, 267 Ark. 1, 589 S.W.2d 5 (1979) (evidence that the parties had had prior relations over a period of eighteen months held to be admissible); Brown v.......
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State v. Sheard, CR
...somebody is sick or something.... Nobody's no pervert." The trial court (and dissenting opinion) relied on the case of Bobo v. State, 267 Ark. 1, 589 S.W.2d 5 (1979), as support for admitting into evidence prior sexual conduct between a defendant and an alleged rape victim when consent is a......
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Manees v. State, CR
...central fact in issue. We have upheld the rape shield statute in Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); Bobo & Forrest v. State, 267 Ark. 1, 289 S.W.2d 5 (1979); Marion v. State, supra; Dorn v. State, 267 Ark. 365, 590 S.W.2d 297 (1979); Kemp v. State, 270 Ark. 835, 606 S.W.2d ......