Huffman v. State, 73--917

• Citation: 301 So.2d 815
• Decision Date: 23 October 1974
• Docket Number: No. 73--917,73--917
• Parties: David S. HUFFMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 815

301 So.2d 815

David S. HUFFMAN, Appellant, v. STATE of Florida, Appellee.

No. 73--917.

District Court of Appeal of Florida, Second District.

Oct. 23, 1974.

James A. Gardner, Public Defender, Sarasota, and Robert B. Persons, Jr., Asst. Public Defender, Sarasota, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Richard C. Booth, Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Judge.

The appellant was charged with rape and with breaking and entering with intent to commit a felony, to wit: grand larceny, and, once inside, committing an assault upon a person lawfully therein. He pled not guilty to both charges. After trial by jury, he was found guilty as charged and sentenced to concurrent life terms.

There is no dispute that the appellant broke into the residence of the prosecutrix in the middle of the night and had sexual relations with her. The appellant testified in his own behalf and candidly admitted these acts. What was disputed at trial and at issue by reason of appellant's plea of not guilty to the charge under § 794.01(2), Florida Statutes, was the presence or absence of consent on the part of the prosecutrix. During cross-examination of the prosecutrix, the following question was asked:

'Prior to this incident, ma'am--believe me, I'm not trying to probe. But under the circumstances I have to ask this. Had you had intercourse with any other individual?'

Appellant contends that the court erred in sustaining the state's objection to this question. We disagree.

The leading Florida case concerning evidence of the unchastity of the prosecutrix in a rape case is Rice v. State, 1895, 35 Fla. 236, 17 So. 286, in which the court said:

'. . . At the trial the defendant's counsel propounded the following question in cross-examination of the prosecutrix, to wit: 'Did you ever have intercourse with this defendant, or any other man, previous to last Monday morning?' The time inquired about was that at which the offense was committed, as shown by her examination in chief. The ruling of the court sustaining an objection to this question is assigned as error. The assignment is not well taken. The avowed object of the question was to impeach the chastity of the prosecutrix, and to show a probability of her consent to carnal intercourse with the defendant. If the question had been confined to the matter of acts of intercourse between the prosecutrix and the defendant, it would have been admissible, but she could not be interrogated as to such acts with other persons than the defendant. On a trial for rape, the character of the prosecutrix for chastity, or the want of it, is competent evidence as bearing upon the probability of her consent to defendant's act; but the impeachment of her character in this respect must be confined to evidence of her general reputation, except that she may be interrogated as to her previus intercourse with the defendant, or as to promiscuous intercourse with men, or common prostitution. . . .' (emphasis added)

This case is not squarely in point because it was later pointed out that Rice's defense was not predicated upon consent. However, the substance of the italicized portion of that opinion has been reaffirmed on several occasions. Nickels v. State, 1925, 90 Fla. 659, 106 So. 479; Peterson v. State, 1925, 90 Fla. 361, 106 So. 75; Tully v. State, 1915, 69 Fla. 662, 68 So. 934. ¹

In discussing the reasoning behind the rule, the Supreme Court in Rice went on to say:

'. . . The fact that a woman may have been guilty of illicit intercourse with one man is too slight an uncertain an indication to warrant the conclusion that she would probably be guilty with any other man who sought such favors of her. If she was a woman of general bad reputation for chastity, or had been guilty of acts of lewdness with the defendant, the case would be different. In the first instance, the evidence would bear directly upon the question as to whether such a woman would be likely to resist the advances of any man; and, in the second, as to whether, having yielded once to the sexual embraces of the defendant, she would not be likely to yield again to the same person. The greatest objection to such testimony is that it introduces collateral issues, which have no direct bearing upon the defendant's guilt. Although the prosecuting witness may have been guilty of specific acts of unchastity, such acts afford no justification to the defendant for having ravished her. She is still under the protection of the law, and not subject to a forced violation of her person by every man who has the strength to overpower her. If she denied having acts of carnal intercourse with other men, of course the defendant would attempt to prove specific acts in contradiction of her denial, and there would be presented to the jury other collateral issues calculated to embarrass and mislead them, and in no way decisive of the guilt or innocence of the accused. . . .'

The only language from the Rice opinion which ould possibly be said to support the appellant's position is that which says 'except that she may be interrogated . . . as to promiscuous intercourse with (other) men, . . .' When considered in the context of the entire quotation, the most we read this language to permit would be evidence of...