Finney v. State

• Decision Date: 05 February 1979
• Docket Number: No. 3-976A216,3-976A216
• Citation: 385 N.E.2d 477,179 Ind.App. 316
• Parties: Gary Velman FINNEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 477

385 N.E.2d 477

179 Ind.App. 316

Gary Velman FINNEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-976A216.

Court of Appeals of Indiana, Third District.

Feb. 5, 1979.

Ronald V. Aungst, Valparaiso, William E. McKenna, Gary, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Lesly A. Bowers, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Gary Velman Finney (Finney) was convicted in a jury trial of rape to which he was sentenced to a determinate period of eight years. His appeal raises the following issues for review:

(1) whether the rape shield statute is unconstitutional;

(2) whether the trial court abused its discretion when it restricted the scope of cross-examination of the prosecutrix;

(3) whether the prosecution used improper tactics in impeaching the defendant;

(4) whether the trial court erred in denying defendant's motion for judgment on the evidence; and

(5) whether there was sufficient evidence to support the rape conviction.

The victim of the rape testified that while hitchhiking on U.S. Highway 6 on September 17, 1974, she accepted a ride from the defendant who agreed to drive her to the Liberty Farms Trailer Park where she lived. But instead of driving to her trailer court, Finney turned off of U.S. 6 and drove around the surrounding area for almost an hour until he stopped his Volkswagen near an abandoned building. Placing a knife at the victim's throat, defendant grabbed her breast, but when she began to scream at him to leave her alone, he put the knife under his leg and said he would take her home. However, he then drove her to a cornfield where he parked his car and told her that he would hurt her if she tried to escape. After ordering the victim to undress and climb in the backseat of the car, the defendant raped her at knifepoint. The defendant then drove her to the trailer park where they scuffled in her attempt to snatch his car keys. As a result of the fray, the victim received minor scratches. She enlisted the aid of neighbors to call the police.

Before trial, the State was granted a motion in limine which precluded the defendant from examining the prosecutrix as to her prior sexual conduct. This motion was based upon the rape shield statute which prohibits evidence of the victim's past sexual conduct and opinion or reputation evidence of the victim's prior sexual conduct. Defendant maintains that the rape shield statute, IC 1971, 35-1-32.5-1 (Burns Code Ed.) violates his right to confront witnesses; his right to counsel; and his right to trial by jury which are all guaranteed by the Sixth Amendment of the United States Constitution because it restricts a defendant's cross-examination of witnesses. He also asserts that the statute is constitutionally infirm because it denies rape defendants equal protection of the law under the Fourteenth Amendment of the United States Constitution and because it is an Ex post facto law as applied to him.

Defendant's contention that the rape shield statute infringes on his right to confront witnesses because he cannot attack the credibility of the prosecutrix through her prior sexual conduct must be rejected.

"It is well recognized that the Sixth Amendment right of confrontation includes the right of cross-examination. Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. A number of decisions have held such right to cross-examination to be infringed upon where a defendant's counsel is wholly precluded from bringing before the jury on cross-examination relevant and substantial evidence bearing upon the credibility of a crucial witness against the accused. See, Davis v. Alaska, supra; U.S. v. Duhart (6th Cir., 1975), 511 F.2d 7; Snyder v. Coiner (4th Cir., 1975), 510 F.2d 224; U.S. v. Harris (9th Cir., 1974), 501 F.2d 1. Thus, it is clear that only a total denial of access to such an area of cross-examination presents a constitutional issue. Any lesser curtailment of cross-examination by the trial court is viewed as a regulation of the scope of such examination, and such curtailment is reviewable only for an abuse of discretion. Brooks v. State (1973), 259 Ind. 678, 291 N.E.2d 559." Borosh v. State (1975), Ind.App., at 336 N.E.2d 409, at 412-413.

The Indiana Supreme Court recently held that the Indiana rape shield statute does not violate a defendant's Sixth Amendment right to confront witnesses. Lagenour v. State (1978), Ind., 376 N.E.2d 475; Roberts v. State (1978), Ind., 373 N.E.2d 1103. In Lagenour, the Court stated:

"Appellant has relied upon the general contention throughout that the limitation deprived him of 'reasonable latitude in effectively cross-examining the witness . . . in eliciting facts concerning their prior sexual conduct for the purposes of revealing their reputations for veracity, possible biases, prejudices or ulterior motives.' There is no suggestion made of the existence of any line of questioning related to any of the witnesses which could have been followed in the absence of the limitation. There is no suggestion made that any of the witnesses might have an attitude or inclination which could be the product of prior sexual conduct. Appellant's contention that he was deprived by the order and statute from effectively cross-examining the three witnesses cannot be sustained. We would not be understood as requiring counsel to make an offer to prove to substantiate a confrontation claim of this sort, as any such requirement would be contrary to present law, Strickland v. State (1977), Ind., 359 N.E.2d 244. What we do require is the showing of an actual impingement upon cross-examination."

Applying the rationale of Borosh and Lagenour, since the defendant was not precluded from impeaching the prosecutrix on other grounds such as prior convictions of enumerated felonies, (See: Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210), bias, prejudice, or reputation for truthfulness or veracity, there was not a total denial of cross-examination on the issue of the credibility of the prosecutrix. Hence, defendant has not shown any actual impingement of his right to cross-examine.

Defendant's contentions that he was denied his right to effective assistance of counsel and to trial by jury because he was precluded from presenting all the relevant evidence of the case to the jury must also be rejected since these arguments were based on his inability to explore the credibility of the complaining witness.

Defendant's next argument is that the rape shield statute violates the equal protection clause of the Fourteenth Amendment because it invidiously discriminates against rape defendants. This allegation is premised on the fact that only in rape cases are there limitations on the type of character evidence that may be presented. Since rape defendants are not a suspect classification, the equal protection clause requires only that there be a rational and reasonable basis for the classification and that it bear a fair relationship to the purpose of the statute. Geyer v. City of Logansport (1977), Ind., 370 N.E.2d 333. Roberts v. State, supra, held that the rape shield statute was a rational attempt by the Legislature to protect the prosecutrix from harassment that might arise if her prior sex life was disclosed in court. Another closely related justification for rape shield laws is that they will aid in crime prevention because victims, knowing that the statute protects them from the embarrassment of introduction of evidence of previous sexual activity, will be encouraged to report rape offenses. ¹ In light of these legitimate state policies, it cannot be said that the disparate treatment of this statute is without a reasonable basis.

Defendant's last assertion of constitutional error is that the rape shield law introduced a new rule of evidence which made it easier to convict him, and that as to offenses committed before its passage, it is Ex post facto. ² "The plain and obvious meaning of this prohibition is, that the legislature shall not pass any law, after a fact done by any citizen, which shall have relation to that fact, so as to punish that which was innocent when done; or to add to the punishment of that which was criminal; or to increase the malignancy of a crime; or to retrench the rules of evidence, so as to make conviction more easy." Strong v. State (1822), 1 Blackford 193. The Ex post facto clause ³ applies only to laws which deprive a person accused or convicted of a crime of a substantial personal right which he would have had at the time he committed the offense. Thus, the inquiry turns on whether the statute changed a "substantial right" or "mere procedure." Warner v. State (1976), Ind., 354 N.E.2d 178.

In Robinson v. State (1882), 84 Ind. 452, the Indiana Supreme Court held that a statute permitting the use of general moral character evidence to impeach witnesses was not an Ex post facto law on the grounds that the statute merely furnished a rule of practice applicable to trials for offenses committed before and after its passage. Similarly, the rape shield statute affects the use of character evidence to impeach witnesses at trial and is therefore procedural in nature. Since many other avenues of impeachment were open to the defendant, restricting evidence of the prior sexual conduct of the victim did not deny the defendant any substantial right of confrontation. It would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the...