State v. Brown

• Decision Date: 23 August 1982
• Docket Number: No. 63143,63143
• Citation: 636 S.W.2d 929
• Parties: STATE of Missouri, Respondent, v. Precious Lee BROWN, Appellant.
• Court: Missouri Supreme Court

Page 929

636 S.W.2d 929

STATE of Missouri, Respondent, v. Precious Lee BROWN, Appellant.

No. 63143.

Supreme Court of Missouri, En Banc.

Aug. 23, 1982.

Rehearing Denied Sept. 13, 1982.

Terry M. McVey, Welman, Seabaugh, Beaton & Williams, Kennett, for appellant.

John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.

MORGAN, Judge.

Appellant was convicted of three counts of forcible rape and two counts of forcible sodomy and being found to be a persistent offender was sentenced to a term of sixty-five years imprisonment on each count to be served concurrently without probation or parole. Secs. 566.030, 566.060 and 558.018, RSMo, as amended by Laws 1980, pp. 495-497. The appeal therefrom, primarily, revolves around the alleged unconstitutionality of § 491.015, commonly referred to as the "rape shield" statute. We affirm.

There is no dispute between the prosecutrix (herein referred to as the complainant) and the appellant as to whether or not the sexual activity, now reflected in the record, actually did occur. However, appellant submits that the same was consensual while the complainant asserts that it followed "forcible compulsion" upon her. Obviously, the jury believed the latter and we will hereafter recite facts thought sufficient to provide a predicate therefor.

The complainant lived and worked in Kennett, Missouri, and on October 17, 1980, had loaned her automobile to a friend, one Phillip Green, that he could look for a job and then pick her up around 4:30 p. m. Appellant, a black male, testified that early in the afternoon he and another were driven around by Green and that one stop, among others, was at a liquor store. Later they were let out with a promise by Green that he would return after going after complainant at her place of employment. Sometime thereafter he did, and appellant was introduced for the first time to the complainant under a fictitious name. At his request, they drove to a cotton gin south of Kennett where he worked that he might borrow some money. Temporary stops were made at several places prior to Green allegedly becoming ill and requesting that he be let out at the complainant's home. Appellant then asked if she could deliver him to a friend's home not far away. When no one was there, appellant asked that he be taken to a nearby service station. Finding it closed, he asked for a ride outside the city to the residence of another. At this time, insofar as of interest here, the testimony of the complainant and appellant contradicted that of the other. ¹

As noted, appellant's primary issue references the constitutionality of § 491.015; ² which, with certain exceptions, proscribes admission of evidence of prior sexual conduct of the complaining witness. He alleges that his confrontational rights as guaranteed by the sixth amendment to the U. S. Constitution were violated in that: (1) he was denied an opportunity to present evidence of the complainant's reputation in the community for engaging in indiscriminate consensual sexual activity as relevant to the issue of "consent" and (2) he was denied an opportunity to present evidence as to specific sexual relations between the complaining witness and a third party which would have tended to show a motive for her to falsify her testimony and charge of rape.

Prior to enactment of the statute, evidence of a complainant's general reputation for morality and chastity was held admissible as bearing on the issue of consent but not specific acts of alleged misconduct. State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974); State v. Kain, 330 S.W.2d 842 (Mo.1960). The reasoning behind this proposition was that a woman of previous unchaste character was more likely to consent to an act of sexual intercourse than a woman strictly virtuous. Such evidence historically was permissible not only to infer consent but also to attack credibility. ³ We, as have others, declare that chastity is no longer a pertinent character trait upon which credibility must turn. Further, as found in Milenkovic v. State of Wisconsin, 86 Wis.2d 272, 272 N.W.2d 320 (1979), we find the idea that a woman's prior consent is per se relevant to the question of a later consent to be a "tired, insensitive and archaic platitude of yesteryear." 272 N.W.2d at 324. Indeed, the legislative department of our state recognized the same fallacy when it limited the admissibility of prior sexual conduct to those specific exceptions found in § 491.015.1 and the more generalized exception of § 491.015.2.

The thinking behind the enactment of said section undoubtedly was threefold. First, it redressed the faulty premise upon which evidence of prior sexual conduct traditionally had been admitted. Second, it is apparent that in most instances a rape victim's past conduct has no reasonable bearing upon the issue of consent or credibility. Introduction of such evidence serves only to humiliate and embarrass the witness in a public "fishing expedition" which puts the complainant on trial instead of the appellant. Section 491.015, thus, reflects a major public policy decision that "victims" not be subjected to unwarranted psychological and emotional abuse. People v. McKenna, 196 Colo. 367, 585 P.2d 275 (Colo.1978). Lastly, the statute demonstrates a reasonable and proper attempt to aid effective law enforcement by encouraging victims of rape to report and prosecute such crimes without a threat to expose intimate details of past sexual activity, if any, to the public. The significance of the latter factor is apparent when it is accepted that the incidence of rape is ever increasing and there remains a reluctance to report the offenses. ⁴

Nevertheless, when read objectively it is clear that the challenged statute creates only a "presumption" that evidence of a victim's prior sexual conduct is irrelevant. Enumerated exceptions to the general presumption, as listed in § 491.015.1(1)-(5), retain the principle that in limited circumstances prior sexual conduct may be relevant. Further, the "catch-all" in subsection 2 of § 491.015 allows introduction of any evidence "the court finds ... relevant to a material fact or issue." Consistent therewith is the fact that no one suggests that due process requires the admission of irrelevant evidence. Reference the exercise of that duty by the trial court, some discretion must be allowed to forbid the admissibility of evidence which is found to have its probative value, if any, outweighed by its potential for prejudicial impact. ⁵

Thus, an accused is not strictly prohibited from tendering the prior sexual conduct of a prosecuting witness into evidence. In § 491.015.3, may be found the procedural steps to have available evidence heard and evaluated outside the hearing of the jury. Should the trial court find the proffered evidence to be encompassed by an exception to the presumption of irrelevance, or relevant with the probative value outweighing the prejudicial impact thereof, it is to be admitted. Consideration necessarily must be given to the known fact that such evidence tends to detract the jury from the issue it is called upon to resolve.

In this light, the challenged statute suffers no constitutional infirmity and is not violative of any rights of confrontation; ⁶ and is, in our opinion, facially constitutional. ⁷ Of immediate interest, on the same point, is the holding in United States v. Kasto, 584 F.2d 268 (8th Cir. 1978), cited with other cases in fn. 7, wherein the court, pp. 271-72, said: "The fact that a rape victim has engaged in consensual sexual relations with the defendant in the past under similar conditions may have some logical relevance to the question of consent to the act charged, and evidence of prior sexual activity with the defendant under dissimilar circumstances may also have some logical relevance, but '(w)hen both identity of persons and similarity of circumstances are removed * * * probative value all but disappears.' Ordover, Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L.Rev. 90, 106 (1977) * * * We, therefore, conclude that absent circumstances which enhance its probative value (footnote omitted), evidence of a rape victim's unchastity, whether in the form of testimony concerning her general reputation or direct or cross-examination testimony concerning specific acts with persons other than the defendant, is ordinarily insufficiently probative either of her general credibility as a witness (footnote omitted) or of her consent to intercourse with the defendant on the particular occasion charged to outweigh its highly prejudicial effect." Thereafter, the court found a claim to the contrary without merit, and declared that: "The Sixth Amendment right to confrontation and the Fifth Amendment right to due process of law require only that the accused be permitted to introduce all relevant and admissible evidence." A comparable rape shield law was upheld in People v. Cornes, 80 Ill.App.3d 166, 35 Ill.Dec. 818, 825, 399 N.E.2d 1346, 1353 (1980).

Next, we look to the manner in which the statute was applied in the instant case. Appellant asked to introduce evidence of a prior sexual relationship between complainant and the alleged boy friend, Phillip Green, within a few weeks of the commission of the crime charged. The specific request was denied by reason of the dictates of the statute. However, evidence was admitted that complainant was twenty-eight years of age; that she had been married and divorced at least once; that she had known Green since they were kids; that she had not seen him for several years until a few weeks before the offense and that they had "dated" during the recent period. Although evidence of specific sexual activity was excluded, certainly no effort was made to present the complainant as a stranger to past sexual experiences. With at least some appreciation of this obvious fact, appellant by argument...