People v. Murphy

Decision Date10 June 1996
Docket NumberNo. 95SC163,95SC163
Citation919 P.2d 191
PartiesThe PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Michael Mark MURPHY, Respondent/Cross-Petitioner.
CourtColorado Supreme Court

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Laurie A. Booras, Assistant Attorney General, Criminal Enforcement Section, Denver, for Petitioner/Cross-Respondent.

David F. Vela, Colorado State Public Defender, Thomas R. Williamson, Deputy State Public Defender, Denver, for Respondent/Cross-Petitioner.

Chief Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to review the court of appeals' decision in People v. Murphy, 899 P.2d 294 (Colo.App.1994), in which the court of appeals reversed the respondent's conviction. The court of appeals held that although evidence of a rape victim's homosexual orientation is barred by section 18-3-407, 8B C.R.S. (1986 & 1995 Supp.) ("the Rape Shield Statute"), the trial court erred in refusing to allow the defense to introduce evidence of the victim's sexual orientation because the prosecution had opened the door to such evidence. The court of appeals also held that on remand, the defense would be entitled to introduce expert testimony about the behavior of homosexual men with sexual identity conflict if the prosecution opens the door to such evidence. We affirm in part and reverse in part, and remand with directions.

I.

The forty-two-year-old respondent, Michael Murphy, met D.Z., a twenty-six-year-old male, at a grocery store where D.Z. worked as a produce clerk. When Murphy was at the store as a customer, he and D.Z. often conversed. D.Z. and Murphy learned that they lived in the same apartment complex, and they encountered each other outside the complex on the evening of August 30, 1990. At that time, Murphy asked D.Z. if he would like to go to Murphy's apartment for a beer, and D.Z. accepted the invitation. While drinking their beers, Murphy asked D.Z. if he could take D.Z.'s measurements because Murphy had some clothes he wanted to give to D.Z. After taking his measurements, Murphy put a handcuff on D.Z.'s wrist. According to D.Z.'s testimony at trial, Murphy then perpetrated sadistic homosexual acts against D.Z. without D.Z.'s consent.

Murphy was charged with two counts of first degree sexual assault, one count of third degree assault, and one count of false imprisonment. Murphy's defense was that his encounter with D.Z. was consensual. Prior to trial Murphy filed a motion pursuant to section 18-3-407, seeking permission to cross-examine D.Z. on issues "relating to [D.Z.'s] sexual orientation" and to ask questions "pertaining to previous homosexual contacts with persons other than Murphy." The motion contained the following statement:

Evidence of [D.Z.'s] sexual orientation, including previous homosexual acts, is relevant and material to issues to be determined at trial. The fact that [D.Z.] is of a homosexual orientation, and in fact that [D.Z.] has had previous homosexual encounters, tends to make Mr. Murphy's defense of consent more probable.

At a pretrial hearing on the motion, Murphy argued that D.Z. denied being a homosexual, that through discovery Murphy learned that D.Z. had "initiated a sexual contact between himself and a 17-year-old neighbor," and that D.Z.'s prior homosexual act and homosexual proclivity were relevant to the defense of consent under CRE 401. 1 The motion judge denied Murphy's motion, concluding that Murphy could not introduce evidence of D.Z.'s prior sexual conduct at trial. However, the motion judge determined that she would leave for the trial judge the issue of whether Murphy could introduce evidence of D.Z.'s sexual orientation at trial.

At trial, the prosecutor informed the jury in his opening statement that D.Z. had a common-law wife and a daughter. D.Z. testified to those facts and stated that his encounter with Murphy was "sick and abnormal." When the prosecutor asked D.Z. why he was not aroused by the encounter with Murphy, D.Z. responded "I'm not that kind."

Prior to cross-examining D.Z., Murphy verbally moved for permission to ask D.Z. about D.Z.'s homosexual tendencies and D.Z.'s prior sexual contact with another young man, 2 arguing that the prosecutor's opening statement and D.Z.'s testimony had opened the door to such cross-examination. The trial court denied Murphy's motion, concluding that the issue of sexual orientation was not relevant.

Murphy testified at trial that in an earlier conversation, D.Z. had indicated to Murphy that D.Z. might be homosexual. Murphy further testified that he and D.Z. had discussed Murphy's interest in "rough sex" and that D.Z. had agreed to try some bondage activities. Murphy asserted at trial that D.Z. consented to the bondage activities that occurred between them. Furthermore, Murphy denied D.Z.'s allegations that Murphy forced D.Z. to submit to other sadistic acts. Murphy also called Michael Holtby, a psychotherapist, as a defense witness. Holtby testified as an expert in psychotherapy with a specialty in homosexuality. He testified, inter alia, that some of his clients who are homosexuals are married and have children, and that some persons seek to deny their homosexual tendencies by denouncing homosexuals and by getting married. When Murphy sought to ask Holtby on redirect examination about persons who react tearfully after engaging in consensual homosexual acts, the trial court sustained the prosecution's objection to such a line of questioning.

A jury found Murphy not guilty of one count of first degree sexual assault and guilty of the other count of first degree sexual assault. The jury also found him guilty of third degree assault and false imprisonment. Murphy was subsequently sentenced to consecutive sentences of sixteen years imprisonment for first degree sexual assault, twenty-four months in county jail for third degree assault, and twelve months in county jail for false imprisonment.

The court of appeals reversed Murphy's conviction, holding that although the Rape Shield Statute bars evidence of a rape victim's prior sexual conduct, the trial court erred by refusing to allow Murphy to cross-examine D.Z. about his sexual orientation and to present expert testimony about the behavior of homosexual men with sexual identity conflicts who engage in homosexual contact.

II.

The first issue before us is whether the court of appeals properly held that the Rape Shield Statute bars evidence of a rape victim's sexual orientation. The issue of the Rape Shield Statute's applicability to sexual orientation is one of first impression in Colorado. In interpreting a statute, our primary task is to give effect to the intent of the legislature. People v. Davis, 794 P.2d 159, 180 (Colo.1990). To discern such intent, we must look to the language of the statute according to its plain and ordinary meaning. Id. If the language is ambiguous, we must consider its legislative history, the state of the law prior to enactment, the problem addressed, and the statutory remedy. Id.

Colorado's Rape Shield Statute bars evidence of a rape victim's past sexual conduct:

(1) Evidence of specific instances of the victim's prior or subsequent sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall be presumed to be irrelevant except:

(a) Evidence of the victim's prior or subsequent sexual conduct with the actor;

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant.

(2) In any criminal prosecution under sections 18-3-402 to 18-3-405, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, or for attempt or conspiracy to commit any crime under sections 18-3-402 to 18-3-405, 18-6-302, 18-6-403, and 18-6-404, if evidence, which is not excepted under subsection (1) of this section, of specific instances of the victim's prior or subsequent sexual conduct, or opinion evidence of the victim's sexual conduct, or reputation evidence of the victim's sexual conduct, or evidence that the victim has a history of false reporting of sexual assaults is to be offered at trial, the following procedure shall be followed:

(a) A written motion shall be made at least thirty days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof of the relevancy and materiality of evidence of specific instances of the victim's prior or subsequent sexual conduct, or opinion evidence of the victim's sexual conduct, or reputation evidence of the victim's sexual conduct, or evidence that the victim has a history of false reporting of sexual assaults which is proposed to be presented.

(b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.

(c) If the court finds that the offer of proof is sufficient, the court shall notify the other party of such and set a hearing to be held in camera prior to trial. In such hearing, the court shall allow the questioning of the victim regarding the offer of proof made by the moving party and shall otherwise allow a full presentation of the offer of proof including, but not limited, the presentation of witnesses.

(d) An in camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown.

(e) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered regarding the sexual conduct of the victim is relevant to a material issue to the case, the court shall order...

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