State ex rel. Pope v. Superior Court, In and For Mohave County

• Decision Date: 02 February 1976
• Docket Number: No. 12386,12386
• Citation: 545 P.2d 946,113 Ariz. 22
• Parties: , 94 A.L.R.3d 246 STATE of Arizona ex rel. Gary POPE, Mohave County Attorney, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MOHAVE, the Honorable Leonard C. Langford, and Joseph Cary GRIER, Real Party in Interest, Respondents.
• Court: Arizona Supreme Court

Page 946

545 P.2d 946

113 Ariz. 22, 94 A.L.R.3d 246

STATE of Arizona ex rel. Gary POPE, Mohave County Attorney, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MOHAVE, the Honorable Leonard C. Langford, and Joseph Cary GRIER, Real Party in Interest, Respondents.

No. 12386.

Supreme Court of Arizona, In Banc.

Feb. 2, 1976.

Gary R. Pope, Mohave County Atty., Barbara K. Miller, Deputy County Atty., Kingman, for petitioner.

Lee E. Bruno, Kingman, for respondent, Joseph Cary Grier.

GORDON, Justice:

The County Attorney of Mohave County acting on behalf of the State of Arizona brings this special action requesting that this Court reconsider existing law on the admissibility of evidence concerning the unchaste character of a complaining witness in a prosecution for first degree rape under A.R.S. §§ 13--611, 13--612 and 13--614. The respondent, The Honorable Leonard C. Langford, reluctantly denied petitioner's motion in limine to bar the admission of such evidence because of the binding nature of appellate decisions on the subject. The real party in interest, Joseph C. Grier, has been arraigned on one count of kidnapping, three counts of rape, two counts of sodomy and two counts of lewd and lascivious conduct. He opposes any action which would limit his ability to introduce evidence at his upcoming trial which would tend to show the unchaste character of the alleged victim.

In Arizona, as in virtually all jurisdictions, after a witness has testified the adverse party may impeach his character by the testimony of other witnesses that he has a poor reputation for truth and veracity. State v. Harris, 73 Ariz. 138, 238 P.2d 957 (1951); Udall, Arizona Law of Evidence § 66 (1960). This state is in the minority, however, in holding that the use of character evidence to impeach a witness may not extend to the showing of a specific prior bad act for which the person was not convicted of a felony:

'All courts hold that if a witness has been convicted of a felonious crime it is admissible to affect his credibility. Hadley v. State, 25 Ariz. 23, 212 P. 458; Midkiff v. State, 29 Ariz. 523, 243 P. 601; 3 Wigmore Evidence 538, § 980 (3d ed. 1940). * * * The majority of courts will allow on the cross-examination of the witness, specific acts of misconduct not sustained by a conviction to be shown which affect veracity. 3 Wigmore Evidence 550, § 983 (3d ed. 1940). But this court has allied Arizona with the minority of states by holding that on cross-examination specific acts of misconduct cannot be shown unless the witness has been convicted of that crime.

* * *

* * *

'The reason given by the courts for this limitation is that this is a collateral matter and if allowed it would be time-consuming and a confusion of the issues. Another good reason is the protection of the witness. He should not be expected to come prepared to defend every incident of his past life but only to meet those felonious acts of which he has been convicted. If a witness knew that he would have all his alleged misdeeds made public and be open to false accusations as to others, from which he would not be permitted to defend or explain, he would dread the witness box and be reluctant to appear and give testimony freely.' State v. Harris, 73 Ariz. at 142, 238 P.2d at 959. See State v. Ballinger, 110 Ariz. 422, 520 P.2d 294 (1974); Baumgartner v. State, 20 Ariz. 157, 178 P. 30 (1919).

The prejudicial effect the admission of specific bad acts would have on the jury's reliance upon the veracity of the witness would outweigh the benefits impeachment would provide. State v. Johnson, 94 Ariz. 303, 383 P.2d 862 (1963); State v. Albe, 10 Ariz.App. 545, 460 P.2d 651 (1969).

The substantive use of reputation to prove character, from which the jury is asked to infer the existence of a material or ultimate fact in the case, is also generally prohibited. McCormick, Law of Evidence § 187 et seq. (2d ed. 1972). The usual rationale behind the exclusion of such evidence in criminal cases, as expressed in Wigmore's Rules of Auxiliary Probative Policy, is that the testimony is 'too relevant' and prejudicial:

'That such former misconduct is relevant, I.e. has probative value to persuade us of the general trait or disposition, cannot be doubted.

* * *

* * *

'It may almost be said that it is because of this indubitable relevancy of such evidence that it is excluded. It is objectionable, not because it has no appreciable probative value, but because it has too much. The natural and inevitable tendency of the tribunal--whether judge or jury--is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. Moreover, the use of alleged particular acts ranging over the entire period of the defendant's (or witness') life make it impossible for him to be prepared to refute the charge, any or all of which may be mere fabrications.' 1 Wigmore on Evidence §§ 193, 194 (3d ed.)

The major exception to this rule in criminal cases occurs where a defendant offers evidence of his good reputation for the trait involved in the charge. On cross-examination of the defense's character witness or on rebuttal the state may offer testimony tending to show the defendant's bad reputation for that trait. State v. Williams, 111 Ariz. 511, 533 P.2d 1146 (1975); State v. Fierro, 108 Ariz. 268, 496 P.2d 129 (1972).

The substantive use of specific bad acts of a witness is also barred because as a general proposition they have little relevance to the merits of the present action and may be extremely prejudicial. State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973); People v. Norred, 110 Cal.App.2d 492, 243 P.2d 126 (1952); Pennington v. Commonwealth, 310 Ky. 265, 220 S.W.2d 556 (1949). The inflammatory nature of such evidence tends to portray the witness or accused to the jury as a bad or immoral person that habitually commits illegal or improper acts. People v. Sam, 71 Cal.2d 194, 77 Cal.Rptr. 804, 454 P.2d 700 (1969); People v. Liapis, 3 Ill.App.3d 864, 279 N.E.2d 368 (1972); State v. Whalon, 1 Wash.App. 785, 464 P.2d 730 (1970).

As we stated in Guey v. State, 20 Ariz. 363, 181 P. 175 (1919):

'The general rule is that one criminal case cannot be made out by proving another of like character * * *. That a person has committed one crime has no direct tendency to show he has committed another similar crime, which had no connection with the first, and a person charged with one offense cannot be expected to come to court prepared to meet the charge of another. If the doing of one wrongful act shall be deemed evidence to prove the doing of another of a similar character, which has no connection with the first, issues would be multiplied indefinitely, without previous notice to the defendant, and greatly to the distraction of the jury.

"The general rule is that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime is wholly excluded." Guey v. State, 20 Ariz. at 368--69, 181 P. at 177. See State v. Johnson, 94 Ariz. 303, 383 P.2d 862 (1963); State v. Thomas, 71 Ariz. 423, 229 P.2d 246 (1951).

Thus, for example, the prosecution in a rape case is generally precluded from presenting evidence that a defendant had previously raped another woman on the theory that because one woman was raped does not mean that another did not consent. Lovely v. United States, 169 F.2d 386 (4th Cir. 1948); State v. McFarlin, supra.

Almost every jurisdiction permits as an exception to one or more of the general rules of exclusion discussed above the substantive use of evidence concerning the unchastity of a prosecutrix where the defense of consent is raised in a forcible rape prosecution. A majority of states limit the scope of this character evidence to a showing of the general reputation of the complaining witness for unchastity, while a minority in addition allow the presentation to extend to specific prior acts of unchastity. The leading case in Arizona is State v. Wood, 59 Ariz. 48, 122 P.2d 416 (1942), where we adopted the existing rule in California which admitted both types of evidence on the theory that it 'best conforms to logic and the common experience of mankind':

'If consent be a defense to the charge, then certainly any evidence which reasonably tends to show consent is relevant and material, and common experience teaches us that the woman who has once departed from the paths of virtue is far more apt to consent to another lapse than is the one who has never stepped aside from that path.' State v. Wood, 59 Ariz. at 52, 122 P.2d at 418.

The reasoning in Wood has been consistently followed. State v. Kelley, 110 Ariz. 196, 516 P.2d 569 (1973); State v. Martinez, 67 Ariz. 389, 198 P.2d 115 (1948).

The admissibility in Arizona of character evidence concerning unchastity to attack the credibility of the complaining witness in a forcible rape prosecution is less clear. Udall, Arizona Law of Evidence § 68 (1960). Dictum in Wood implies that general reputation for unchastity is admissible for that purpose, while language in Sage v. State, 22 Ariz. 151, 195 P. 533 (1921), seems to imply the opposite. We find the latter result far more compelling. The law does not and should not recognize any necessary connection between a witness' veracity and her sexual immorality. Dewey v. Funk, 211 Kan. 54, 505 P.2d 722 (1973); Riddle v. State, 92 Okl.Cr. 397, 223 P.2d 379 (1950); State v. Thompson, 59 Wash.2d 837, 370 P.2d 964 (1962). For this reason we upheld the trial court's refusal to allow questions in an indecent exposure prosecution directed at the complaining witness' prior adulterous relationship or divorce...