McElveen v. State
| Decision Date | 18 May 1982 |
| Docket Number | No. AD-262,AD-262 |
| Citation | 415 So.2d 746 |
| Parties | Jack Andrew McELVEEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
McElveen appeals from judgments and sentences imposed for burglary with assault, and sexual battery by the use of physical force not likely to cause serious personal injury. He urges three points on appeal. We reverse in part as to his first point and affirm the remaining two.
As to Point I, the appellant argues that the trial court erred in excluding the appellant's proffered evidence concerning the victim's prior sexual activities and reputation in the community for unchastity. He contends that this evidence tended to establish a pattern of conduct which was legally relevant to the issue of consent in accordance with Section 794.022(2), Florida Statutes (1979).
The defense's proffered testimony indicated that the victim was an unchaste woman. Most of this evidence revealed that the victim had a reputation for promiscuity. Such evidence consisted of the victim's having adulterous affairs, picking up strange men at bars, and making dates with truck drivers over a C.B. radio. One witness saw the victim leave local bars with strangers. There was additional evidence relating to specific instances of sexual conduct in which one local citizen admitted having a sexual relationship with the victim a year before the alleged crime, and another testified she had seen the victim in bed with her ex-husband on two separate occasions. The trial court declined the admission of the proffered evidence, but permitted testimony revealing that co-defendant Watt, also charged with aiding and abetting the sexual battery, participated in a sexual encounter with the victim the night before the alleged crime.
The appellant's proffer actually involves two types of evidence: hearsay/reputation evidence and evidence of specific sexual conduct. At common law the former type of evidence was admissible into evidence. See Thomas v. State, 249 So.2d 510 (Fla. 3d DCA 1971). Section 794.022(2), Florida Statutes (1979), provides:
Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in prosecutions under S. 794.011; however, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court outside the presence of the jury that such activity shows such a relation to the conduct involved in the case that it tends to establish a pattern of conduct or behavior on the part of the victim which is relevant to the issue of consent.
(e. s.) A commentator has suggested that the omission of hearsay/reputation evidence from the statute requires that the common law be followed. See, Note, Florida's Sexual Battery Statute: Significant Reform But Bias Against the Victim Still Prevails, 30 U.Fla.L.Rev. 419, 432-433 (1978).
The Florida Evidence Code has not changed the law in this respect. Section 90.404(1)(b)(1) provides:
(1) Character evidence generally.--Evidence of a person's character or a trait of his character is inadmissible to prove that he acted in conformity with it on a particular occasion, except:
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(b) Character of the victim.--
(1) Except as provided in s. 794.022, evidence of pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; ....
We therefore conclude that evidence relating to the victim's reputation as to unchaste conduct should have been admitted, and its exclusion constitutes reversible error.
Section 794.022 does, however, bar evidence of specific sexual acts unless that evidence establishes a pattern of conduct relevant to the issue of consent. Hodges v. State, 386 So.2d 888 (Fla. 1st DCA 1980). There, we held that one isolated act of premarital sex did not constitute a "pattern of conduct" within the meaning of Section 794.022(2). Although the proffered testimony in this case does reveal three specific instances of sexual activity, that evidence is not so repetitive or frequent as to establish a "pattern of behavior." Accordingly, we agree that the lower court did not err in refusing to admit such testimony into evidence.
As to Point II, the appellant argues that the trial court erred in allowing the state, over the defense counsel's objection, to introduce prior consistent statements of co-defendant Watt because there was no indication of improper influence, motive, or recent fabrication in Watt's testimony during his cross-examination. We disagree. Although the general rule is that the witness's testimony cannot be corroborated by a prior consistent statement, McRae v. State, 383 So.2d 289, 292 (Fla. 2d DCA 1980), the Florida Evidence Code, following the common law, has recognized exceptions to this rule. The exception pertinent to this issue is provided in Section 90.801(2)(b), Florida Statutes, stating:
(2) A statement is not hearsay if the declarant testifies at the trial or hearing in a subject to cross-examination concerning the statement and the statement is:
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(b) Consistent with his testimony and is offered to rebut an expressed or implied charge against him of improper influence, motive, or recent fabrication ....
The exception involving impeachment by bias or corruption or improper motive is only applicable where the prior consistent statement was made "prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify." Kellam v. Thomas, 287 So.2d 733, 734 (Fla. 4th DCA 1974) (e. s.). Here, the record establishes that defense counsel emphasized that Watt was not sentenced until just before the trial held in February, 1981, thereby suggesting that Watt had an unfair bias and that sentencing was being held off to assure his favorable testimony for the state. The pretrial statements were made, however, prior to his sentencing in August of 1980, and were entirely consistent with his trial testimony, and so fall within the exception to the general rule.
Although this case must be retried, we consider it appropriate, should appellant be once again convicted for the offenses of burglary and sexual battery, to address his third point which contends, relying upon McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980) and Faison v. State, 399 So.2d 19 (Fla. 3d DCA 1981), rev. granted, nos. 60,782 & 60,792 (Fla. orally argued April 13, 1982), that he could not be...
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