Marr v. State, No. AU-499

CourtCourt of Appeal of Florida (US)
Writing for the CourtERVIN; Before ERVIN; BOOTH; SMITH; ERVIN, C.J., dissents with written opinion, in which ZEHMER, J., concurs and SMITH; SMITH; ERVIN
Citation10 Fla. L. Weekly 1505,470 So.2d 703
Parties10 Fla. L. Weekly 1505, 10 Fla. L. Weekly 263 Paul Allen MARR, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. AU-499
Decision Date29 January 1985

Page 703

470 So.2d 703
10 Fla. L. Weekly 1505, 10 Fla. L. Weekly 263
Paul Allen MARR, Appellant,
v.
STATE of Florida, Appellee.
No. AU-499.
District Court of Appeal of Florida,
First District.
Jan. 29, 1985.
Rehearing Denied Feb. 27, 1985.
On Rehearing En Banc
June 14, 1985.

Page 704

Silas R. Eubanks and T. Whitney Strickland, Jr., Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Gregory G. Costas and Raymond L. Marky, Asst. Attys. Gen., Tallahassee, for appellee.

ERVIN, Chief Judge.

Marr appeals from a judgment and sentence imposed for the offense of sexual battery. He raises several issues on appeal, only two require discussion. First, that the trial court erred in holding Section 794.022(2), Florida Statutes, constitutional in that it denied appellant his Sixth Amendment right to confront witnesses by a full and fair cross-examination. Second, that the trial court erred in denying the defendant's requested jury instruction, asking that the testimony of the prosecutrix be rigidly scrutinized, in that the prosecutrix was the sole witness to the alleged act. We affirm as to the constitutional point raised, but reverse and remand as to the second issue.

On March 11, 1982, appellant was charged with the December 25, 1981 sexual battery of K.R. by oral penetration under Section 794.011(3), Florida Statutes (1983). 1 The prosecutrix, a 36-year-old cerebral palsy victim and mother of three children, testified that on December 25, 1981, between 2:00 and 3:00 p.m., while she was at the home of an elderly friend for the purpose of taking her to a Christmas dinner, appellant came from a neighboring house, which he was renting from the elderly friend, and told the prosecutrix that her friend was then in his house having a cup of coffee. The victim related that after she had gone inside the house, appellant grabbed her and stated, "Merry Christmas. Santa Claus didn't come to my house last night, so you are going to be my Christmas present." Appellant and the victim struggled for a while but appellant, brandishing a knife, was able to force her to undress. The victim recounted that she told appellant she did not want to engage in sexual intercourse because she was then having her menstrual period. Appellant replied, "Well, there are other ways ...", and then forced her to perform oral sex with him. After a short while, the victim bit appellant's penis, grabbed his testicles and was able to make her escape, proceeding immediately to her church where she met her boyfriend. The victim told him that the elderly friend was not at home, but did not then advise him about the incident which occurred at appellant's house. She testified that she had not planned to report the incident, but, during the days that followed, she received several threatening telephone calls from an unidentified person who reported to her details concerning the sexual battery. Finally, on January 2, 1982, an unidentified person assaulted and threatened her outside of her home. After the last incident, the victim notified the police of the sexual battery.

Appellant admitted at trial that he had seen the victim at his home on December 25, 1981, but denied sexually battering her, as well as the subsequent assault and harassing telephone calls. The defense also presented several witnesses, including appellant's wife, who stated that nothing unusual occurred at appellant's home on the day in question. The prosecution introduced no physical evidence, such as laboratory tests or fingerprints which would have established the contrary. In fact, there was no other evidence corroborating the victim's account of the incident.

Appellant first contends that the trial judge erred in holding constitutional section 794.022(2), because it denied appellant

Page 705

his constitutional right of a full and fair cross-examination of the prosecutrix, as guaranteed to him by the Sixth Amendment of the United States Constitution. Section 794.022(2) provides in part that specific instances of prior consensual sexual activity between the victim and any person other than the offender is afforded admissibility: (1) when such evidence may prove that the defendant was not the source of semen, pregnancy, injury, or disease; or (2) when such evidence tends to establish a pattern of conduct or behavior on the part of the victim and only when it is relevant to the issue of consent. These two exceptions to the inadmissibility of prior consensual sexual acts of the victim are clearly inapplicable to the case at bar.

Appellant, in an effort to establish that the victim had fabricated the sexual assault, proffered evidence outside the presence of the jury relating to sexual intimacy between the victim and her boyfriend. The purpose of the proposed line of questioning was to demonstrate bias on the part of the state's only key witness. Although the trial judge ruled that this line of questioning was inadmissible, because it was barred by section 794.022(2), he permitted appellant to inquire generally about the victim and her loved one's close relationship, barring, however, references to specific sexual acts. Upon cross-examination in the presence of the jury, the victim admitted that her relationship with her companion was very close; that she was very much in love and respected his judgment. The friend in turn testified that he knew the appellant, and also knew that appellant had contacted the state attorney, and had reported information regarding the commission by him of an alleged criminal offense, which had precipitated an investigation. Even so, he stated that he did not harbor any animosity towards appellant.

We disagree that appellant was prejudiced by the limited inquiry. The general rule of law regarding cross-examination of witnesses is as follows:

All witnesses are subject to cross examination for the purpose of discrediting them by showing bias, prejudice or interest, and this is particularly so where a key witness is being cross-examined....

The sixth amendment right to confrontation of witnesses requires that a defendant in a state criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination to show bias. Denial of effective cross-examination in such circumstances is constitutional error.

Hannah v. State, 432 So.2d 631, 632 (Fla. 3d DCA 1983) (e.s.). See also Watts v. State, 450 So.2d 265 (Fla. 2d DCA 1984). Our research in this area has revealed only one Florida case directly interpreting the interrelationship between the Florida rape shield statute--restricting the admissibility of prior consensual sexual acts of the victim--with the defendant's right to a full and fair cross-examination, as guaranteed by the Sixth Amendment for the purpose of establishing bias on the part of a key witness. In Kaplan v. State, 451 So.2d 1386, 1387 (Fla. 4th DCA 1984), the court cautioned: "We recognize, however, that the defendant's right to full and fair cross-examination, guaranteed by the Sixth Amendment, may limit the statute's application when evidence of the victim's prior sexual conduct is relevant to show bias or motive to lie."

A review of recent Massachusetts case law, interpreting a similar rape-shield statute, is instructive. 2 In Commonwealth v.

Page 706

Joyce, 382 Mass. 222, 415 N.E.2d 181, 185 (1981), the Supreme Judicial Court of Massachusetts stated:

We do not believe that the prohibition in the rape-shield statute sweeps so broadly as to render inadmissible evidence of specific instances of a complainant's sexual conduct in situations when that evidence is relevant to show the complainant's bias.

(e.s.) In Joyce, the defendant, as here, had claimed that the trial judge erred in excluding evidence of the complainant's prior sexual acts, which was relevant to the issue of bias, thereby denying him his right to confront witnesses. The Supreme Judicial Court of Massachusetts, although avoiding the defendant's constitutional contention by holding that the judge misapplied the Massachusetts rape-shield statute, conceded that serious constitutional doubts are raised when such a statute is construed as excluding any evidence relevant to a rape complainant's bias.

Our case is analogous to a later Massachusetts case, Commonwealth v. Elder, 389 Mass. 743, 452 N.E.2d 1104 (1983), in which the court, while recognizing the broad scope of examination guaranteed by the confrontation clause, concluded that the trial judge had properly excluded evidence of prior sexual conduct of the victim and her boyfriend, offered for the purpose of establishing an escalating hostility towards the defendant. There the defendant sought to introduce evidence disclosing that the complainant had fabricated rape charges against him in order to prevent him from interfering with her intimate relations with her boyfriend. "At trial, the judge permitted the defendant to introduce [some] evidence of hostility between the complainant and the defendant", without introducing complainant's prior sexual history. Commonwealth v. Elder, 452 N.E.2d at 1109. The reviewing court concluded that "[s]ince the defendant was able to establish bias without the proffered evidence, ... [t]he judge properly limited the scope of the evidence after adequate exposure on the issue of bias, and he gave proper attention to 'the important policies underlying the rape-shield statute' as well as the confrontation clause." 452 N.E.2d at 1109, 1110.

In the case at bar, the trial judge allowed testimony relating to the facts that the prosecutrix and her friend were in love, as well as the closeness of their relationship. We consider that under the circumstances he struck a proper balance between the policies undergirding the statute, and those of the confrontation clause, by allowing evidence as to the bias of the prosecutrix, without permitting specific references to sexual intimacies. In so doing, the lower court did not completely foreclose the defendant's right to...

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13 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 2 Febrero 2006
    ...1st DCA 1988) (propriety of trial court order directing child sexual battery witnesses to submit to physical examination); Marr v. State, 470 So.2d 703 (Fla. 1st DCA 1985) (on reh'g en banc) (giving of requested jury instruction that the testimony of the prosecutrix in a case involving sexu......
  • Shrader v. State, Case No. 2D13-2712
    • United States
    • Court of Appeal of Florida (US)
    • 23 Agosto 2019
    ...panel's result. See, e.g., State v. Georgoudiou , 560 So. 2d 1241, 1247–48 (Fla. 5th DCA 1990) (Cowart, J., dissenting); Marr v. State , 470 So. 2d 703, 712 (Fla. 1st DCA 1985) (Smith, J., specially concurring); id. at 715–17 (Ervin, C.J., dissenting).The bottom line is that there is no per......
  • Williams v. State, No. BH-245
    • United States
    • Court of Appeal of Florida (US)
    • 27 Agosto 1986
    ...jury instructions could possibly have been construed as judicial comment on the credibility of the witnesses. See Marr v. State, 470 So.2d 703, 712 (Fla. 1st DCA), petition for review dismissed, 475 So.2d 696 (Fla.1985). However, we need not reach that point as the standard instructions suf......
  • Wagner v. State, No. 5D03-756.
    • United States
    • Court of Appeal of Florida (US)
    • 4 Febrero 2005
    ...patterned after Federal Rule of Civil Procedure 4(j). Therefore, the federal decisions under that rule are pertinent."); Marr v. State, 470 So.2d 703, 715-16 (Fla. 1st DCA 1985) ("The law is clear that if a state rule is designed after the language of its federal counterpart, the rule will ......
  • Request a trial to view additional results
13 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 2 Febrero 2006
    ...1st DCA 1988) (propriety of trial court order directing child sexual battery witnesses to submit to physical examination); Marr v. State, 470 So.2d 703 (Fla. 1st DCA 1985) (on reh'g en banc) (giving of requested jury instruction that the testimony of the prosecutrix in a case involving sexu......
  • Shrader v. State, Case No. 2D13-2712
    • United States
    • Court of Appeal of Florida (US)
    • 23 Agosto 2019
    ...panel's result. See, e.g., State v. Georgoudiou , 560 So. 2d 1241, 1247–48 (Fla. 5th DCA 1990) (Cowart, J., dissenting); Marr v. State , 470 So. 2d 703, 712 (Fla. 1st DCA 1985) (Smith, J., specially concurring); id. at 715–17 (Ervin, C.J., dissenting).The bottom line is that there is no per......
  • Williams v. State, No. BH-245
    • United States
    • Court of Appeal of Florida (US)
    • 27 Agosto 1986
    ...jury instructions could possibly have been construed as judicial comment on the credibility of the witnesses. See Marr v. State, 470 So.2d 703, 712 (Fla. 1st DCA), petition for review dismissed, 475 So.2d 696 (Fla.1985). However, we need not reach that point as the standard instructions suf......
  • Wagner v. State, No. 5D03-756.
    • United States
    • Court of Appeal of Florida (US)
    • 4 Febrero 2005
    ...patterned after Federal Rule of Civil Procedure 4(j). Therefore, the federal decisions under that rule are pertinent."); Marr v. State, 470 So.2d 703, 715-16 (Fla. 1st DCA 1985) ("The law is clear that if a state rule is designed after the language of its federal counterpart, the rule will ......
  • Request a trial to view additional results

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