Marion v. State

• Decision Date: 10 December 1979
• Docket Number: No. CR,CR
• Citation: 590 S.W.2d 288,267 Ark. 345
• Court: Arkansas Supreme Court
• Parties: Kenneth MARION, Appellant, v. STATE of Arkansas, Appellee. 79-175.

Page 288

590 S.W.2d 288

267 Ark. 345

Kenneth MARION, Appellant, v. STATE of Arkansas, Appellee.

No. CR 79-175.

Supreme Court of Arkansas.

Dec. 10, 1979.

John W. Achor, Public Defender, by James H. Phillips, Deputy Public Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen., by Dennis R. Molock, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

Appellant was charged with rape in violation of Ark.Stat. Ann. § 41-1803 (Repl.1977). Prior to the trial, appellant filed a motion for an in camera hearing to determine the admissibility at trial of the victim's prior sexual conduct. Ark.Stat. Ann. § 41-1810.2(a) (Repl.1977). After a hearing the court denied the admissibility of some of this evidence. Appellant brings this interlocutory appeal pursuant to Ark.Stat. Ann. § 41-1810.2(c).

Appellant first asserts that exclusion of the victim's prior sexual conduct at trial impairs his ability to establish his defense to the rape charges. His argument is two fold: (1) application of §§ 41-1810.1 and 41-1810.2 violates his Sixth Amendment due process right at a criminal proceeding to confront his accuser, and (2) at the in camera pretrial hearing, he is forced to reveal certain aspects, the weakness or strength, of his defense in violation of his Fifth Amendment right against self-incrimination.

The application and interpretation of this exclusionary policy in rape cases will no doubt continue to be the source of much litigation. This statute provides that evidence of the victim's prior sexual conduct is inadmissible at trial except where the court, at an in camera hearing, makes a written determination that it is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. Ark.Stat. Ann. § 41-1810.2(b) (Repl.1977), and Bobo v. State, 266 Ark. ---, 589 S.W.2d 5 (1979).

We are satisfied that the exception to the general exclusionary policy and the in camera hearing provide the appellant with a full and fair opportunity to confront his accuser. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1964). In Sterling v. State, 267 Ark. ---, 590 S.W.2d 254 (1979), we stated:

This statute clearly allows evidence of the alleged victim's Prior sexual conduct, as well as evidence directly pertaining to the acts upon which the present prosecution is based, to be Introduced or inquired about at the in camera hearing. The purpose of such hearing is to review the evidence to determine whether it is Relevant for trial purposes. (Italics supplied.)

After giving due deference to the right of the accused to present his defense, the statute seeks to protect the victim from unnecessary humiliation at trial based on irrelevant and prejudicial, though probative, evidence. See Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); and Bobo and Forrest v. State, supra. The appellant certainly has no constitutional right to present irrelevant evidence at trial. Here, for example, the fact that the victim has two illegitimate children and an alleged reputation as a prostitute is not relevant to the central fact in issue; i. e., whether the alleged act of sexual intercourse actually occurred. The court also correctly ruled that the prosecutrix may be questioned on cross-examination concerning her prior sexual involvement with the appellant and that the appellant could testify at trial concerning his prior sexual involvement with the victim. Bobo and Forrest v. State, supra.

If the statute absolutely barred evidence of the victim's prior sexual conduct, its constitutionality would be suspect in light of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1975). This it does not do. Since this evidence is admissible at trial upon the court's determination that it is relevant to the fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, we cannot say that the appellant's due process rights are not fully protected.

We are also satisfied that application of the statute does not result in a violation of the accused's Fifth Amendment right against self-incrimination. Appellant's argument is that the in camera hearing aids the prosecution by allowing potential discovery of the strength and weakness of his defense. However, pursuant to the Rules of Crim.Proc., Rule 18.3 (Vol. 4A Repl.1977), the appellant must reveal, upon the state's request, the nature of any defense which he intends to establish at trial, and the names and addresses of the witnesses who will testify in support of these defenses. Therefore, at the in camera hearing, it appears that the appellant is not forced to reveal...