State v. Jones, 67724

• Decision Date: 16 September 1986
• Docket Number: No. 67724,67724
• Citation: 716 S.W.2d 799
• Parties: STATE of Missouri, Respondent, v. James JONES, Appellant.
• Court: Missouri Supreme Court

Page 799

716 S.W.2d 799

STATE of Missouri, Respondent, v. James JONES, Appellant.

No. 67724.

Supreme Court of Missouri En Banc.

Sept. 16, 1986.

Rehearing Denied Oct. 14, 1986.

Henry Robertson, St. Louis, for appellant.

William L. Webster, Atty. Gen., Lee Bonine, Jennifer H. Fisher, Asst. Attys. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

This case involves the Rape Victim Shield Statute--s 491.015, RSMo 1978. Insofar as pertinent on this appeal, it reads as follows:

1. In prosecutions for the crime of rape, * * * evidence of specific instances of the complaining witness' prior sexual conduct * * * is inadmissible, except where such specific instances are:

(1) Evidence of the sexual conduct of the complaining witness with the defendant to prove consent and the evidence is reasonably contemporaneous with the date of the alleged crime; * * *.

* * *

* * *

2. Evidence of the sexual conduct of the complaining witness offered under this section is admissible to the extent that the court finds the evidence relevant to a material fact or issue.

Appellant, James Jones, was convicted of rape and sodomy by a jury in the Circuit Court of the City of St. Louis and was sentenced to ten years imprisonment. Following rendition of judgment and imposition of sentence, an appeal was perfected to the Eastern District of the Court of Appeals where the judgment of conviction was affirmed. The case was transferred here by order of this Court. Mo. Const. art. V, § 10.

At an in camera hearing as provided in Subsection 3 of § 491.015, appellant proposed to offer evidence on the issue of consent of his having had consensual sexual intercourse with the victim some three and one-half to four and one-half months before October 16, 1983, the date of the offense charged. The offer was denied.

First, appellant urges that such evidence was independently admissible as relevant under Subsection 2 of § 491.015. He relies on the following statement from State v. Ray, 637 S.W.2d 708, 709 (Mo. banc 1982):

We have ruled that the statute creates only a "presumption" that evidence of a victim's prior sexual conduct is irrelevant. State v. Brown, 636 S.W.2d 929, 933 (Mo. banc 1982). The statute enumerates four exceptions to the presumption, § 491.015.1(1)-(4); and, additionally, § 491.015.2 allows the trial court to admit evidence that it "finds ... relevant to a material fact or issue." * * *.

On reexamination, we believe such statement of law is erroneous. Section 491.015 provides that evidence of specific instances of a victim's prior sexual conduct is inadmissible except as provided in (1), (2), (3) and (4). In our view, Subsection 2 is directed only at the exceptions set forth in (1), (2), (3) and (4). Evidence offered under (1), (2), (3) and (4) is admissible only "to the extent that the court finds * * * [it] relevant to a material fact or issue." Insofar as they hold to the contrary, Brown and Ray should no longer be followed. If all "relevant" evidence were admissible, there would be no reason for (1), (2), (3) and (4).

Second, appellant urges that his proposed evidence of prior consensual sexual intercourse "is reasonably contemporaneous with the date of the alleged crime * * *."

In State v. Crisp, 629 S.W.2d 475 (Mo.App.1981), the date of the alleged crime was October 5, 1979. The Court of Appeals held that evidence of the complaining witness' prior sexual conduct with defendant in 1976 was not reasonably contemporaneous with the sexual intercourse on October 5, 1979, and affirmed the conviction.

In State v. Boyd, 643 S.W.2d 825 (Mo.App.1982), the date of the alleged crime was January 11, 1981. The trial court ruled that defendant could inquire into prior sexual relations with defendant that allegedly occurred on January 5 or 6, 1981, but not into sexual relations with defendant that occurred in August and September 1980. The Court of Appeals affirmed.

In Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952), the Court said:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. * * *.

In Chambers v. Mississippi, 410 U.S. 284, 302, 303, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973), the Court addressed an application of the Mississippi hearsay rule, and said:

In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.

We conclude that the exclusion of this critical evidence, coupled with the State's refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process. In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.

In California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984), the Court said:

Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing motions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. * * *.

In Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), the Court cited Chambers and Trombetta with approval and addressed again whether, in the circumstances, accused was deprived of a fair trial.

A definition of "reasonably contemporaneous" is elusive. In Crisp, the Court of Appeals said: "Reasonably means within the bounds of common sense. Contemporaneous means originating, or happening, during the same period of time. It is not common sense to say that events that happened almost three years apart were reasonably contemporaneous." Crisp, 629 S.W.2d at 479.

In our view, the Crisp statement is not off-target. Certainly judicial review by the use of clocks or calendars is not enough. The teaching of Chambers and Crane is that we must decide whether, in the circumstances, accused was deprived of a fair trial.

If this case involved merely a swearing match between the complaining witness and the accused on the issue of consent we would be inclined to reverse and remand for new trial. However, the complaining witness testified that she awoke with "a pair of hands around my---around my neck;" and that the accused told her that "if I say anything, if I make a noise that he would kill me and my children." Dr. Gregory J. Bailey, the emergency room physician at City Hospital the night of October 16, 1983, testified that he examined the complaining witness and found a cervical tear, redness on the side of her neck and bruising on the back of her neck.

In these circumstances, we cannot say that the trial court abused its discretion and that appellant was deprived of a fair trial.

The judgment is affirmed.

HIGGINS, C.J., BILLINGS and RENDLEN, JJ., and GAITAN, Special Judge, concur.

BLACKMAR, J., dissents in separate opinion filed.

WELLIVER, J., dissents and concurs in separate dissenting opinion of BLACKMAR, J.

ROBERTSON, J., not sitting.

BLACKMAR, Judge, dissenting.

I disagree with the principal opinion in two respects, as follows: (1) We should not repudiate the carefully considered holdings of State v. Brown, 636 S.W.2d 929 (Mo. banc 1982) and State v. Ray, 637 S.W.2d 708 (Mo. banc 1982); and (2) the defendant should have been allowed to develop fully his theory of the case, and to introduce evidence of prior voluntary sexual relations between the complaining witness and himself. I would reverse and remand for a new trial.

I.

State v. Brown, supra, sustained a challenge to the facial constitutionality of the "rape shield law," § 491.015, RSMo 1978. It recognized that the primary purpose of this statute was to repudiate the evidentiary proposition that a woman who had engaged in prior extramarital intercourse was more likely to consent to sexual activity than a woman of prior "chaste" character, and to require a demonstration of relevancy before prior acts of intercourse could be shown in evidence. Thus the victim's sexual history is deemed immaterial, except in unusual cases. The opinion noted as a purpose of the statute the elimination of unnecessary embarrassment and harassment of a woman who accused a man of rape.

Brown recognized, however, that there is a serious constitutional problem if a statute deprives a criminal defendant of the opportunity to introduce evidence which is relevant and material in his defense. The cases of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); and Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), recognize the right of a defendant to make a complete defense and to have the benefit of all relevant and material evidence in doing so. See also Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). It is the sense of Brown that a rape defendant should be able to introduce evidence of prior sexual conduct of his accuser if the evidence has a reasonable and proper place in his defense, even though the evidence does not fall within one of the four exceptions in the first subsection of the statute. ¹ The state and federal constitutions undoubtedly require nothing less. If the evidence is relevant and material, the defendant is entitled to it even though the complainant may suffer embarrassment. It is one thing to...