Interest of Nichols
| Decision Date | 14 July 1978 |
| Docket Number | No. 49377,49377 |
| Citation | 2 Kan.App.2d 431,580 P.2d 1370 |
| Parties | In the Interest of Lawrence D. NICHOLS, a minor child under 18 years of age. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The Kansas rape shield statute, K.S.A. 60-447a, is constitutional and when properly applied by the trial court does not deny the accused his right to confront and cross-examine witnesses or to present witnesses in his own behalf.
2. In multiple offense cases, where K.S.A. 60-447a would be applicable in one or more of the offenses alleged, but not all, the prohibited evidence under K.S.A. 60-447a may be admitted, if relevant, as to the other offenses contained in the information or complaint.
3. In criminal trials where evidence is excluded under K.S.A. 60-447a such excluded evidence is admissible if relevant as to other charges being tried in the same information or complaint.
S. Richard Mellinger of Roach & Mellinger, Emporia, for appellant.
Jay W. Vander Velde, County Atty. and Curt T. Schneider, Atty. Gen., for appellee.
Before MEYER, P. J., and ABBOTT and SWINEHART, JJ.
This is an appeal from an adjudication of delinquency on two counts: (1) assisting another in the commission of rape (K.S.A. 21-3502 and 21-3205), and (2) aggravated burglary (K.S.A. 21-3716).
The appellant Nichols alleges that the trial court erred by refusing to admit into evidence his testimony which related to the prior sexual conduct of the rape victim, both with the accused and another person. The trial court, after a pretrial hearing as provided by K.S.A. 60-447a, denied the accused the opportunity to present evidence that for several months prior to this incident the accused and the complaining witness had intercourse on a regular basis, and that they had enjoyed "rough sex," I. e., wrestling, etc. Further, the accused was denied the opportunity to present evidence which showed the method used by the parties to set up their sexual escapades; I. e., that the accused would come to the trailer home, flash his automobile lights, and tap on the complainant's bedroom window. If the complainant's mother was home, he would receive a signal not to come in. If she was not home, the door of the trailer would be unlocked and he would then open the door and enter the trailer. The trial judge also excluded evidence tending to show that the complaining witness had intercourse with another boyfriend a few hours prior to this incident.
Briefly, the facts are that the accused, in the company of two young men, came to the complainant's home during the evening in question. When they did not receive the signal that the victim's mother was home, they entered the trailer. The accused had sexual intercourse with the complainant, as he testified, and further, by force he assisted his two companions in having intercourse with the complainant.
This case, questioning the constitutionality and the application of K.S.A. 60-447a is one of first impression with the Appellate Courts of Kansas. K.S.A. 60-447a is as follows:
First, we must determine the scope of appellate review of orders made by a trial court when applying K.S.A. 60-447a. Because the statute makes relevancy the touchstone of admissibility of the evidence, the same standard of review applies to decisions made under this statute as applies to appellate review of any other question involving the relevancy of evidence: decisions regarding the relevancy of evidence rest within the sound discretion of the trial court, and the trial court's decision should not be set aside absent a showing of abuse of discretion. See State Highway Commission v. Lee, 207 Kan. 284, 291, 485 P.2d 310 (1971), and State v. Gonzales, 217 Kan. 159, 161, 535 P.2d 988 (1975).
On appeal, the defendant argues that K.S.A. 60-447a is unconstitutional. He contends that the Kansas rape shield statute effectively denies his right to confront witnesses against him, as guaranteed by the Sixth Amendment of the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution.
The Sixth Amendment of the United States Constitution and its Kansas counterpart encompass two rights that are at issue here: the right of the accused to cross-examine witnesses against him and the right to present witnesses in his behalf. In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the United States Supreme Court recognized that the right to cross-examine is inherent and essential under the Sixth Amendment and is made applicable to state proceedings through the general requirements of due process under the Fourteenth Amendment. In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), the Court held that the Sixth Amendment also includes the right to present witnesses to establish a defense, and that this right was guaranteed to defendants in state proceedings through the Fourteenth Amendment. The fundamental, essential nature of these rights was stressed recently in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
A recent Supreme Court case holds that a state's juvenile shield law, designed to preserve the confidentiality of a juvenile's record, must yield to an accused's Sixth Amendment rights. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The Kansas Supreme Court has reached the same conclusion when facing the identical question. State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974). It has been pointed out that such cases provide a useful analogy for considering the constitutionality of a rape shield law, for both rape shield statutes and juvenile shield statutes are designed to protect interests not directly related to the search for truth. Berger, Man's Trial, Woman's Tribulation: Rape...
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...v. Howard, Utah, 544 P.2d 466, 470 (1975). See also Turley v. State, Ala.App., 356 So.2d 1238 (1978); In Interest of Nichols, 2 Kan.App.2d 431, 580 P.2d 1370 (1978); People v. Hastings, 72 Ill.App.3d 816, 28 Ill.Dec. 683, 390 N.E.2d 1273, 1277 (1979); People v. Dery, 74 Ill.App.2d 112, 219 ......
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...no bearing on the important issue of consent.'" (Emphasis added.) Atkinson, 276 Kan. at 926, 80 P.3d 1143 (quoting In re Nichols, 2 Kan.App.2d 431, 433-34, 580 P.2d 1370, rev. denied 255 Kan. 844 Although the victim's death negated some of the policy concerns of the rape shield statute, its......
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...no bearing on the important issue of consent.’ " State v. Atkinson, 276 Kan. 920, 926, 80 P.3d 1143 (2003) (quoting In re Nichols, 2 Kan.App.2d 431, 433–34, 580 P.2d 1370, rev. denied 255 Kan. 844 [1978] ); see State v. Jones, 168 Wash.2d 713, 723, 230 P.3d 576 (2010) (rape shield statute "......
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State v. Atkinson, 87,805.
...by the Sixth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. In re Nichols, 2 Kan. App. 2d 431, 433-34, 580 P.2d 1370, rev. denied 225 Kan. 844 "The Kansas [rape shield] statute merely serves to focus both judges' and attorneys' attentio......