People v. McKenna

• Decision Date: 10 October 1978
• Docket Number: No. 27681,27681
• Citation: 196 Colo. 367,1 A.L.R.4th 273,585 P.2d 275
• Parties: , 1 A.L.R.4th 273 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Thomas McKENNA, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 275

585 P.2d 275

196 Colo. 367, 1 A.L.R.4th 273

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Thomas McKENNA, Defendant-Appellant.

No. 27681.

Supreme Court of Colorado, En Banc.

Oct. 10, 1978.

Rehearing Denied Oct. 30, 1978.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Mary J. Mullarkey, First Asst. Atty. Gen., Denver, for plaintiff-appellee.

Dally & Dehncke, Richard L. Dally, Denver, for defendant-appellant.

CARRIGAN, Justice.

The appellant was convicted by a jury of first-degree sexual assault. ¹ He appeals, raising four principal issues. We affirm.

A detailed factual discussion of this sexual attack would serve no useful

purpose. Only those facts necessary to our decision will be

discussed. I. Constitutionality of Section

18-3-407, C.R.S. 1973 (1977 Supp.).

The appellant first questions the constitutionality of Colorado's "rape shield" statute, section 18-3-407, C.R.S. 1973 (1977 Supp.). ² That statute provides that, except in certain instances not pertinent here, in rape and sexual assault cases, evidence of the victim's prior or subsequent sexual conduct is presumed to be irrelevant. The statute further prescribes a pretrial screening procedure, much like the In camera hearing conducted on a motion in limine, to review proposed evidence on such matters for relevancy before it can be presented publicly at the trial. Appellant contends that the statute amounts to a legislative attempt to create rules of procedure for the courts and therefore violates the separation of powers doctrine by invading this court's constitutional rulemaking power. He further contends that the statute violates due process and denies him the right fully to confront and cross-examine the complainant. We do not agree with any of these contentions.

A. Separation of Powers and Court's Rulemaking Power.

The concept of separation of powers is well-established in Colorado. The Colorado Constitution, in Article III, generally provides that the executive, legislative, and judicial departments each shall exercise only its own powers. In addition, Colo. Const., Art. VI, sec. 21, expressly recognizes this court's rulemaking power "The supreme court shall make and promulgate rules governing the administration of all courts and shall make and promulgate rules governing Practice and procedure in civil and criminal cases, except that the general assembly shall have the power to provide simplified procedures in county courts for claims not exceeding five hundred dollars and for the trial of misdemeanors." (Emphasis added.)

Before adoption, in 1962, of the above-quoted constitutional provision, this court's rulemaking authority was acknowledged as an inherent power essential for the administration of the court system. See, e. g., Kolkman v. People, 89 Colo. 8, 32-33, 300 P. 575, 584 (1931); Walton v. Walton, 86 Colo. 1, 278 P. 780 (1929); Cf. Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963). In this case, the question is whether section 18-3-407, Supra, represents a legislative usurpation of powers belonging exclusively to the supreme court. We hold that it does not.

Even in states such as Colorado, in which the constitution expressly grants to the supreme court the power to promulgate rules governing court procedure, the question remains whether a particular rule or statute is "procedural" or "substantive." See, e. g., People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973). Although numerous tests have been proposed to assist in making such a determination, none has been uniformly accepted. See Peterson, Rule Making in Colorado: An Unheralded Crisis in Procedural Reform, 38 U.Colo.L.Rev. 137 (1965) (hereinafter referred to as Peterson ). See also Joiner & Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich.L.Rev. 623 (1957) (hereinafter referred to as Joiner & Miller ); Levin and Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U.Pa.L.Rev. 1 (1958).

One basic and widely-recognized test for distinguishing procedural from substantive matters has been stated as follows:

"If the purpose of (a rule's) . . . promulgation is to permit a court to function and function efficiently, the rule-making power is inherent unless its impact is such as to conflict with other validly enacted legislative or constitutional policy involving matters other than the orderly dispatch of business." Joiner & Miller, supra, at 629-630.

Even under such a test, however, the characterization of any particular rule or statute can be subjected to substantial disagreement, and the characterization may vary depending on the application of the rule or statute to the facts of a particular case. Peterson, supra at 162-63. See People v. Smith, supra.

The statute here at issue cannot be characterized as either purely substantive and thus entirely within the legislature's power, or purely procedural and thus subject solely to this court's rulemaking power. Rather it is "mixed" in nature. Obviously, to a certain extent it regulates the judicial function of designating the method for determining the relevance, and thus the admissibility, of evidence. In so doing it changes established rules governing admissibility of the kind of evidence with which it deals.

Prior to the enactment of this statute, defense counsel in a rape case was accorded wide latitude in cross-examining the prosecutrix. Since her credibility was placed in issue when she testified, her prior sexual conduct was considered admissible to undermine her credibility. See Struna v. People, 121 Colo. 348, 353, 215 P.2d 905 (1950) (dictum); 3A J. Wigmore, Evidence § 929a (Chadbourn rev.ed. 1970). Moreover, where consent was a defense, as it frequently was, it was thought that the fact that she had consented to sexual relations with others on other occasions might justify a factfinder in concluding that she probably had consented to the sexual act giving rise to the prosecution. 1 J. Wigmore, Evidence § 62 (3d Ed. 1940). Little or no analysis was applied to attempting to discern whether her sexual habits actually had any logical connection with her credibility or whether her prior consent to intercourse with another at a different time had any logical bearing on whether she had consented to sexual relations with the particular man on trial at the time charged.

As critical thought and analysis have been brought to bear on these issues, it has become apparent that in many instances a rape victim's past sexual conduct may have no bearing at all on either her credibility or the issue of consent. In fact in many cases, cross-examination probing her sexual history has served only to put her on trial instead of the defendant.

The basic purpose of section 18-3-407, therefore, is one of Public policy : to provide rape and sexual assault victims greater protection from humiliating and embarrassing public "fishing expeditions" into their past sexual conduct, without a preliminary showing that evidence thus elicited will be relevant to some issue in the pending case. The statute represents one means chosen by the general assembly to overcome the reluctance of victims of sex crimes to report them for prosecution. Thus it reflects a major public policy decision by the general assembly regarding sexual assault cases. In effect the legislature has declared the state's policy to be that victims of sexual assaults should not be subjected to psychological or emotional abuse in court as the price of their cooperation in prosecuting sex offenders.

This statute represents the Colorado General Assembly's response to a national trend which began in 1974 to reform procedures governing state prosecutions of various sexual assaults. ³ These reforms constitute legislative recognition of the changing perception of rape as, not primarily a sex offense, and certainly not a crime of passion, but rather a hostile crime of violence and domination "calculated to humiliate, injure and degrade the female." ⁴ Moreover, these statutes are a response to statistics indicating that, while the incidence of rape is increasing, both the percentage of rapes committed which are prosecuted, and the percentage of prosecutions resulting in convictions, remain very low when contrasted with comparable statistics for other serious crimes. ⁵

Seen in the light of the policy it embodies, the statute represents far more than merely a legislative attempt to regulate the day-to-day procedural operation of the courts. Undoubtedly it would have been well within this court's rulemaking power to have adopted by rule the procedure set forth in the statute. But we have not adopted such a rule, nor have we promulgated any rule in conflict with the statute. We must decide whether our duty to uphold the state constitution, and our rulemaking power there granted, compel us to invalidate this statute and thus not only undo its procedural provisions but also frustrate the policy changes it represents.

As Chief Justice Marshall declared:

"No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of legislative acts. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other grounds, a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed." ⁶

Although certain aspects of the instant statute necessarily touch upon judicial matters, we recognize that legislative policy and judicial rulemaking powers may overlap to some extent so long as there is no substantial conflict between statute and rule. Peterson, supra, at 162. While the three branches of our government are separate, equal and coordinate, they are nevertheless branches of one government, and they cannot operate in mutually exclusive, watertight compartments....