State v. Hudlow
| Decision Date | 24 February 1983 |
| Docket Number | No. 48351-5,48351-5 |
| Citation | 99 Wn.2d 1,659 P.2d 514 |
| Parties | STATE of Washington, Petitioner, v. Allen Dale HUDLOW, Respondent. STATE of Washington, Petitioner, v. Douglas B. HARPER, Respondent. |
| Court | Washington Supreme Court |
C. Danny Clem, Kitsap County Prosecutor, Patricia A. Toth, Deputy Pros. Atty., Port Orchard, for petitioner.
Ronald D. Ness, Port Orchard, Robert J. Banghart, Bremerton, for respondent.
Allen Dale Hudlow was convicted of two counts of first degree rape, two counts of first degree kidnapping, and one count of second degree assault. In the same trial, Douglas B. Harper was convicted of one count of first degree rape and two counts of first degree kidnapping. In a separate proceeding, Hudlow was found to be a habitual criminal under the provisions of RCW 9.92.090. Both Hudlow and Harper appealed. The Court of Appeals, Division Two, held the trial court abused its discretion in excluding evidence of the two victims' prior sexual behavior and reversed the convictions. State v. Hudlow, 30 Wash.App. 503, 635 P.2d 1096 (1981). The State now appeals that decision. For the reasons stated herein, we reverse the Court of Appeals and reinstate the convictions.
The two complaining witnesses in this case were referred to by the Court of Appeals as Tammy Smith and Ellen Strong to protect their true identities. We shall do likewise. In a footnote, the court noted that "[a]t trial it developed the women were known locally as Sunshine and Moonshine." Hudlow, at 504 n. 1, 635 P.2d 1096. Apparently, the two women introduced themselves to Hudlow and Harper by these nicknames.
According to the two victims' testimony, when hitchhiking in Bremerton early on the morning of April 15, 1978, they accepted a ride from Hudlow and Harper. Hudlow allegedly threatened them with a knife and drove the two women to an isolated location outside Bremerton. There, Harper had sexual intercourse with Ms. Strong in the back seat of the car while Hudlow compelled Ms. Smith to perform oral sex on him in the front seat. Ms. Smith testified that after a few seconds of performing oral-genital intercourse on Hudlow, she gagged and vomited outside the passenger door. Hudlow then made the women change places. Hudlow forced Ms. Strong to finish performing oral sex on him, then he had sexual intercourse with her. The women testified that during all the sexual activity, Hudlow was armed with a 6-inch knife and that they submitted to the sexual activity to prevent injury to themselves.
According to the testimony of Hudlow and Harper, the two women agreed to be driven to the isolated spot and, in fact, gave directions to that location. Both women allegedly agreed to consume some beer and a mixture consisting of cola and rum, and all four allegedly shared some marijuana cigarettes. Once there, Ms. Strong was said to have agreed to sexual intercourse with Harper in the back seat. At the same time, Ms. Smith refused to have sexual intercourse with Hudlow because she was menstruating, but allegedly offered to perform oral sex on Hudlow instead. When she did so, however, she began to gag but did not vomit. At this point, Ms. Strong suggested switching places with Ms. Smith. Ms. Strong then performed oral sex on Hudlow and thereafter had consensual sexual intercourse with him. Afterwards, Hudlow discovered that Ms. Strong had stolen his wallet, but he recovered it after an argument. Hudlow testified that during the sexual activity, he had with him only a small penknife which he did not remove from his pocket during the evening. No other knife was found by the police.
Hudlow and Harper drove the two women back to Bremerton where they were released. Shortly thereafter, the two women contacted the police who transported them to the hospital. Witnesses who saw Ms. Smith and Ms. Strong after the incident testified the women were extremely upset and frightened. A physician who examined Ms. Smith observed a mark on her abdomen similar to a bruise. The physician testified the mark was consistent with her claim of having been struck in the abdomen by Hudlow.
At a closed hearing outside the presence of the jury Hudlow and Harper made an offer of proof regarding the prior sexual behavior of Tammy Smith and Ellen Strong, pursuant to the procedures set out in former RCW 9.79.150(3), now codified as RCW 9A.44.020(3). The offer of proof consisted of the testimony of a sailor named Harry Proctor, who shared a house with six other sailors in Bremerton. Proctor testified that he had engaged in oral sex with both women on a number of occasions, and had had sexual intercourse with Ms. Smith at least twice and with Ms. Strong more often, but not on a regular basis. He testified that he had been involved in and witnessed Smith and Strong having "group sex" with one or two men at a time. In addition, Proctor related several hearsay statements of other men who professed to have had sexual relations with the complaining witnesses. He also claimed Ellen Strong admitted to sexual intercourse with numerous other sailors. Proctor testified that he discussed the two women's respective skills at oral sex with his roommates and that together, they formed a rating system to evaluate their respective performances in oral-genital sex, rating Ms. Strong the better of the two. Proctor had been told that Ms. Strong, knowing of the rating system, tutored Ms. Smith in oral sex. Proctor also related a number of other hearsay statements about the past sexual behavior of the complaining witnesses. Proctor concluded by describing the reputation for chastity of Tammy Smith and Ellen Strong as "loose" and stated that he and his roommates simply referred to them as "the whores".
The trial court determined Proctor's testimony was relevant on the issue of consent, but ruled the probative value of the evidence was outweighed by its potentially prejudicial effect on the jury, the complaining witnesses, and the State. In making its ruling, the court considered the testimony of Proctor insofar as he testified from his own personal knowledge and did not consider any of the inadmissible hearsay testimony. The court concluded that the lifestyle of the women "would be so offensive to a substantial number of the members of the jury that the prejudice would get in the way of a fair trial". Report of Proceedings, at 40. The court therefore refused to permit introduction of the evidence either on direct or cross-examination, although the trial judge later permitted limited cross-examination on sexual matters when initiated by the prosecution. Subsequently, the jury returned verdicts of guilty on all counts.
The Court of Appeals characterized the dispositive issue in this case as whether the trial court abused its discretion under the "rape shield" statute when it determined the probative value of evidence of the victims' past sexual behavior was substantially outweighed by the danger of undue prejudice. The court thereby avoided the issue of whether respondents' rights of confrontation were violated under the sixth amendment to the United States Constitution and Const. art. 1, § 22. 1 We shall address both issues in regard to respondents' rights to present evidence in their defense and to confront and cross-examine adverse witnesses.
This case is governed by the former "rape shield" statute, RCW 9.79.150(3) (now recodified as RCW 9A.44.020(3)), which provides in part:
In any prosecution for the crime of rape ... evidence of the victim's past sexual behavior ... is not admissible if offered to attack the credibility of the victim and is admissible on the issue of consent only pursuant to the following procedure:
(a) A written pretrial motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the past sexual behavior of the victim proposed to be presented and its relevancy on the issue of the consent of the victim.
* * *
(c) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and the hearing shall be closed ....
(d) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered by the defendant regarding the past sexual behavior of the victim is relevant to the issue of the victim's consent; is not inadmissible because its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice; and that its exclusion would result in denial of substantial justice to the defendant; the court shall make an order stating what evidence may be introduced by the defendant ...
We have had occasion to construe the rape shield statute only once before in a case quite dissimilar in its facts. See State v. Demos, 94 Wash.2d 733, 619 P.2d 968 (1980) (). The Washington Courts of Appeal have addressed the applicability of the statute on several occasions, and thus provide the only existing authority so far in this state.
Former RCW 9.79.150(3) makes evidence of the victim's past sexual behavior admissible on the issue of consent only if: (1) it is relevant; (2) its probative value substantially outweighs the probability that its admission will create a substantial danger of undue prejudice; and (3) its exclusion will result in denial of substantial justice to the defendant. Since all three factors must be satisfied before evidence of a victim's past sexual behavior may be admitted to show consent, we will examine each of those factors at some length.
According to ER 401, relevant evidence is defined as follows:
"Relevant evidence" means evidence having any tendency to make the existence of...
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