Kvasnikoff v. State, 5588

• Decision Date: 09 December 1983
• Docket Number: No. 5588,5588
• Citation: 674 P.2d 302
• Parties: Paul M. KVASNIKOFF, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 302

674 P.2d 302

Paul M. KVASNIKOFF, Appellant, v. STATE of Alaska, Appellee.

No. 5588.

Court of Appeals of Alaska.

Dec. 9, 1983.

Thomas W. Findley, Findley & Brinkman, Juneau, for appellant.

Patrick J. Gullufsen, Dist. Atty., Wilson L. Condon, Atty. Gen., Juneau, for appellee.

OPINION

Before COATS and SINGLETON, JJ., and BURKE, Chief Justice. ^*

BURKE, Chief Justice.

Paul Kvasnikoff was convicted of rape, under former AS 11.15.120. ¹ At the time of the offense Kvasnikoff was an inmate at the Southeastern Correctional Center, near Juneau. His alleged victim, W.K., was a fellow inmate. According to W.K., Kvasnikoff forced him to perform an act of fellatio, then submit to an act of anal intercourse. Kvasnikoff's defense was based partly on the contention that W.K. consented to the acts complained of. Following entry of a final judgment, Kvasnikoff appealed.

Kvasnikoff asserts that evidence was excluded as a result of an erroneous application of AS 12.45.045. Kvasnikoff also asserts that the exclusion deprived him of his right to confront the complaining witness through effective cross-examination.

Kvasnikoff's first allegation of error requires us to examine Alaska's rape victim shield law, AS 12.45.045, in the context of a homosexual rape. AS 12.45.045 provides in part:

(a) In prosecutions for the crime of sexual assault ... evidence of the complaining witness' previous sexual conduct shall not be admitted nor reference made to it in the presence of the jury except as provided in this section. When the defendant seeks to admit the evidence for any purpose, he may apply for an order of the court at any time before or during the trial or preliminary hearing. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that the evidence offered by the defendant regarding the sexual conduct of the complaining witness is relevant and that the probative value of the evidence offered is not outweighed by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the complaining witness, the court shall make an order stating what evidence may be introduced and the nature of the questions which shall be permitted ....

(b) In the absence of a persuasive showing to the contrary, evidence of the complaining witness' sexual conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible under this section.

See Alaska Rule of Evidence 404(a)(2).

In accordance with AS 12.45.045 and Alaska Evidence Rule 404(a)(2), Kvasnikoff requested a hearing in camera wherein he informed the court that he would seek to introduce evidence of W.K.'s homosexuality as relevant to the issue of consent. Kvasnikoff asserted that proving W.K. had engaged or offered to engage in other homosexual acts would tend to show that W.K., acting in conformity therewith, consented to sexual intercourse with him on this occasion. Kvasnikoff also sought to use the evidence to impeach W.K.'s credibility. He offered the following items of proof:

(1) Witness Mark Self would testify that he overheard W.K. offer sex in exchange for protection to an unnamed prison inmate less than twenty-four hours prior to the alleged rape.

(2) Witness Mark Self would testify that he saw W.K. rubbing the groin of an unnamed prison inmate several days before the alleged rape.

(3) Witness Don Stefan would testify that W.K. made a verbal agreement with him to engage in sexual acts, several weeks prior to the alleged rape.

(4) Witness Paul Dick would testify that W.K. asked him to engage in sex with him, over a year prior to the alleged rape.

(5) Witness Don Stefan would testify that W.K.'s reputation as a child at the Jesse Lee Home in Anchorage was one of a little boy who performed homosexual acts upon other little boys.

After reviewing the evidence and considering both the defense attorney's and prosecution's oral arguments, the trial judge concluded:

[T]he probative value of all of it, in my judgment is very weak. And it does not outweigh the probability that its admission would create confusion of the issues, confusion in the jury's mind as to whether they're trying Mr. W.K. for being a homosexual, or whether they're really looking at what happened on the night concerned. And I think it would create undue prejudice to the victim too. Because as I say it makes no difference what his sexual preference is, the question is what happened between him and the defendant on that night. So I will exclude all of the tendered evidence and any questions concerning it .... ²

"A trial judge's ruling on the admissibility of evidence 'should be reversed only upon a showing of a clear abuse of discretion.' " Eben v. State, 599 P.2d 700, 710 (Alaska 1979); quoting Newsom v. State, 533 P.2d 904, 908 (Alaska 1975). We hold that exclusion of the evidence in this case did not violate the defendant's right to confront the witnesses against him, nor did the trial judge improperly apply the rape shield statute. We conclude, therefore, that the court did not abuse its discretion in excluding the evidence of W.K.'s prior sexual conduct.

Kvasnikoff argues that Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), is controlling. There, the United States Supreme Court held unconstitutional a statute which barred the introduction of relevant evidence of a juvenile witness' criminal record. The statute involved in this case, however, does not totally prohibit the introduction of relevant evidence of the victim's prior sexual conduct. Rather, the statute requires the trial judge to balance the probative value of the evidence against the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim. Only when its probative value is outweighed by other considerations will the evidence be excluded. ³ Therefore, Davis is not controlling.

While a defendant may generally cross-examine and impugn the credibility of a witness, the right is not inviolate. In Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309 (1973), the United States Supreme Court held that: "the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." As stated in Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544, 560 (1980), "the validity of [state rape shield laws] must be tested against the traditional standard of admissibility: the sixth amendment guarantees that a criminal defendant will be able to introduce any evidence probative of a material issue, unless the probative value is outweighed by the prejudicial effect of the testimony." See State v. Blue, 225 Kan. 576, 592 P.2d 897, 901 (1979); State v. Fortney, 301 N.C. 31, 269 S.E.2d 110, 113 (1980). Therefore, Kvasnikoff's Sixth Amendment right to confront witnesses was not violated if the trial court properly concluded that the probative value of the evidence was outweighed by the possibility of undue prejudice, confusion of the issues or unnecessary invasion of the privacy of the victim. Larson v. State, 656 P.2d 571, 575 (Alaska App.1982).

The trial judge in this case had the difficult task of weighing the probative value of evidence which indicated that the defendant had engaged in other homosexual conduct, against the danger of undue prejudice, i.e., that the jury might presume consent simply as a result of their own prejudices or hostilities against homosexuals, and confusion of the issues. ⁴ The prosecution indicated that if the defense succeeded in getting the evidence admitted, it would support the character and credibility of W.K with its own witnesses. The trial judge in this case was understandably concerned that the main issue in the trial would become the sexuality of the victim rather than the conduct of the defendant on the occasion in question. In addition, the probative value of the evidence was diminished by the fact that none of it involved prior sexual conduct between W.K. and the defendant. Rather it involved conduct between W.K. and third persons.

Until recently, female victims of heterosexual rape suffered under a rule of relevancy which reflected the view that a woman who consented to sex with one individual was more likely to have consented to sex with another. This rule was finally rejected, when it was realized that such reasoning was "more a creature of a one-time male fantasy of the 'girls men date and the girls men marry' than one of logical inference." People v. Blackburn, 56 Cal.App.3d 685, 128 Cal.Rptr. 864, 867 (1976). ⁵ We see no reason to revert to such reasoning only because the sexual preference of the victim changes. A homosexual has no more or less free will than a heterosexual to engage in consensual sex with another individual. ⁶

The decision in this case was a difficult and close one. We cannot say that it was arbitrary, capricious, manifestly unreasonable or that it stemmed from an improper motive, Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979). We hold that the court did not abuse its discretion and find no violation of Kvasnikoff's right to confront witnesses. ⁷

Kvasnikoff's second allegation of error is that the trial court erroneously admitted into evidence a letter that he wrote to Duane Buell, the assistant superintendent of the institution. He argues that the letter was obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

After the alleged rape, Kvasnikoff was removed from the prison dormitory and placed in a maximum security cell. The evidence indicates that Kvasnikoff requested and was denied an opportunity to speak with an attorney at this time. Later the same day, Kvasnikoff was...