State v Brown
| Decision Date | 24 January 2000 |
| Docket Number | 95-00017 |
| Parties | STATE OF TENNESSEE, Appellee, v. HOWARD BROWN, Appellant. NO. E1995-00017-IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE FILED: |
| Court | Tennessee Supreme Court |
KNOX COUNTY
For Appellee:
JOHN KNOX WALKUP, Attorney General and Reporter
MICHAEL E. MOORE, Solicitor General
TODD R. KELLEY, Assistant Attorney General, Nashville, TN
RANDALL E. NICHOLS, District Attorney General
CHARME P. JOHNSON KNIGHT, Asst. District Attorney General
GREG HARRISON, Asst. District Attorney General, Knoxville, TN
For Appellant:
SUSAN E. SHIPLEY, Knoxville, TN
FOR PUBLICATION
REVERSED AND REMANDED
The issue here presented is whether the trial court correctly applied the rape shield rule1 in excluding testimony about a rape complainant's prior sexual behavior with a person other than the defendant. The trial court excluded the proffered evidence upon a finding that the defendant did not describe the evidence in detail sufficient to satisfy the requirement of Tenn. R. Evid. 412(d)(1)(iii).2 In contrast, the Court of Criminal Appeals found no issue in the application of Rule 412(d)(1)(iii); however, it held that the proffered evidence was properly excluded because it constituted inadmissible hearsay.
We accepted review to address and clarify the overlapping application of the rape shield rule, the rule against hearsay,3 and the defendant's constitutional right to present a defense.
We conclude that the proffered evidence was proper evidence under the rape shield rule as evidence which tends to "rebut or explain scientific or medical evidence." Tenn. R. Evid. 412(c)(4)(i). Although we agree with the Court of Criminal Appeals that the proffered evidence transgresses the rule against the introduction of hearsay evidence, we conclude that the evidence should have been admitted to satisfy the defendant's constitutional right to present a defense. Accordingly, we reverse the judgment of the Court of Criminal Appeals, vacate the defendant's conviction, and remand this case for a new trial.
In February 1992, Howard Brown, the defendant, was indicted upon four counts of sexual abuse of an eleven-year-old family member. The complainant testified that Brown kept her home from school on several occasions in September and October 1991 under the guise that she was ill. While they were alone, he sexually abused her. She reported this abuse to her maternal aunt on December 9, 1991. The aunt then related the abuse allegations to the complainant's mother, who immediately took her daughter to the University of Tennessee Medical Center.
Robert Kelly Dickson, M.D., examined the complainant in the emergency room at the University of Tennessee Medical Center on December 9, 1991. His examination revealed a large, healed tear of the complainant's hymen. He testified that this tear was consistent with forced vaginal penetration. Dickson opined that the tear must have occurred several weeks prior to his examination; he found this condition consistent with the medical history related to him by the complainant.
Prior to trial, Brown filed a motion pursuant to Tenn. R. Evid. 412(d)(1) requesting permission to introduce evidence regarding the complainant's prior sexual behavior with another male. As stated, Dickson observed a tear in the complainant's hymen which he attributed to forced penetration. Brown sought to use evidence of prior sexual behavior to provide the jury with an alternative explanation for the complainant's medical condition.4 This evidence would have tended to rebut the inference that Brown was the perpetrator.
The trial court held a hearing on Brown's Rule 412 motion and determined that the motion failed to specify the proffered evidence in sufficient detail as required by Tenn. R. Evid. 412(d)(1)(iii). Thus, the trial court ruled that the evidence of the complainant's prior sexual behavior was inadmissible.
Based on the evidence presented, the jury convicted Brown of one count of aggravated rape.5 Brown appealed the conviction. The Court of Criminal Appeals held that the trial court erred in finding the Rule 412 notice insufficient because the State's response to the notice (that both the complainant and her alleged partner denied a sexual relationship in 1991) shows that the State had sufficient notice of the specific evidence sought to be admitted. However, the court affirmed the exclusion of the evidence on the ground that it constituted inadmissible hearsay evidence.
Tennessee's rape shield rule is embodied in Tenn. R. Evid. 412.6 The law was enacted to reflect the general view that evidence of prior sexual behavior is irrelevant or, if relevant, has little probative value compared to its prejudicial effect, unless the evidence is within one of the enumerated exceptions. When evidence does fall within one of the enumerated exceptions, it is generally viewed as probative of a material issue without being overly prejudicial. The comment to Rule 412 notes that ". . . this rule strikes a balance between the paramount interests of the accused in a fair trial and the important interests of the sexual assault victim in avoiding an unnecessary, degrading, and embarrassing invasion of sexual privacy." Tenn. R. Evid. 412 advisory comm'n cmts (1991).
Thus, as we stated in State v. Sheline, 955 S.W.2d 42, 44-45 (Tenn. 1997), Rule 412 is designed to recognize that intrusions into the irrelevant sexual history of a complaining witness are not only prejudicial and embarrassing but also discourage many complainants from reporting sexual crimes. We also noted in Sheline that such evidence can "result in two rape trials at the same time--the trial of the defendant and the trial of the rape victim based on her past sexual conduct." Id. at 44.
Rule 412, by its provisions, also "recognizes that[,] despite the embarrassing nature of the proof, sometimes the accused can only have a fair trial if permitted to introduce evidence of the alleged victim's sexual history." Tenn. R. Evid. 412 advisory comm'n cmts (1991). Thus, Rule 412 is a rule of relevance and is written as a rule of exclusion. Its purpose is to exclude all evidence regarding the complainant's prior sexual behavior unless the procedural protocol is followed and the evidence conforms to the specifications of the Rule.
The provisions of Rule 412 applicable to the evidence proffered in this case state in pertinent part:
(c)Evidence of specific instances of a victim's sexual behavior is inadmissible unless . . . the evidence is:
(1) Required by the Tennessee or United States Constitution, or
. . .
(4) If the sexual behavior was with persons other than the defendant, [and is offered]
(i) to rebut or explain scientific or medical evidence, or
(ii) to prove or explain the source of semen, injury, disease, or knowledge of sexual matters . . . .
In pertinent part, Brown's Rule 412 motion sought admission of the following evidence:
(1)"[T]he testimony of A. L. and E. G. and others that the complainant had a sexual relationship with a minor named W. S.7 in 1991 at the time the allegations arose"; and
(2)"[I]mpeachment of the complainant with evidence that she engaged in sexual behavior in South Carolina in 1991."8
It is evident from the above offer of proof, and from our thorough review of the record, that Brown sought only to admit the hearsay statements of A. L. and E. G. regarding the complainant's sexual history. It has long been held that the Confrontation Clause of the Sixth Amendment9 and art. I, 9 of the Tennessee Constitution10 provide two protections for criminal defendants: the right to physically face witnesses and the right to cross-examine witnesses. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998, 94 L. Ed. 2d 40, 53 (1987); State v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992). However, Brown never requested that the trial court, by oral or written motion, allow cross-examination of the complainant regarding her alleged prior sexual behavior with W. S. Accordingly, we find that the confrontation clause issues involving cross-examination of the complainant are deemed waived, and they are beyond the reach of this opinion. Tenn. R. App. P. 36(a).
Another right essential to due process is the right "to call witnesses in one's own behalf." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1048, 35 L. Ed. 2d 297, 308 (1973); State v. Sheline, 955 S.W.2d at 47. Although we find the confrontation clause issue to be waived, Brown has nevertheless properly preserved the issue of whether he was inappropriately denied the right to present the testimony of certain witnesses. This issue addresses the interaction between the rape shield rule, the rule against hearsay, and the constitutional right to present a defense. As previously stated, the only physical evidence indicating that the complaining witness had had intercourse was supplied by Dickson, an expert witness who testified on behalf of the State. He described a large, healed tear of her hymen which without exception was the result of penetrating trauma to the vagina.
Brown sought to introduce the testimony of A. L. and E. G. The trial court heard the testimony of both witnesses out of the jury's presence. A. L., age eighteen at trial, testified that she observed W. S., an adolescent male, and the complainant engaging in kissing and fondling. E. G., age fifteen at trial, testified that she also observed W. S. and the complainant kissing and fondling. Additionally, E. G. stated that the complainant had mentioned to her "a couple of times" that she had been having sex with W. S.
Brown, in testimony given later, denied that he had any sexual contact with the complainant; he sought to show through these two witnesses that a person other than he was responsible for the complainant's physical condition. This intended purpose for the admission of the evidence comports precisely with Tenn. R. Evid. 412(c)(4)(i). Its probative...
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