State v. Kalamarski, 3349-III-0

• Decision Date: 09 December 1980
• Docket Number: No. 3349-III-0,3349-III-0
• Citation: 620 P.2d 1017,27 Wn.App. 787
• Parties: STATE of Washington, Respondent, v. Steve Delano KALAMARSKI, Appellant.
• Court: Washington Court of Appeals

Page 787

27 Wn.App. 787

620 P.2d 1017

STATE of Washington, Respondent, v. Steve Delano KALAMARSKI, Appellant.

No. 3349-III-0.

Court of Appeals of Washington, Division 3, Panel Four.

Dec. 9, 1980.

Reconsideration Denied Jan. 8, 1981.

Virginia Pickett, Pickett & Pickett, Spokane, for appellant.

Donald C. Brockett, Pros. Atty., Daniel W. Short, Deputy Pros. Atty., Spokane, for respondent.

ROE, Judge.

Steve Kalamarski was charged with second-degree rape of Tina Ortiz. His defense was that it was consensual. Prior to trial, seeking to prove Ortiz was unstable and had a motive for revenge, defendant moved to introduce evidence of previous psychiatric counseling which Ortiz had received. In order to show her consent to the instant act of intercourse, he also sought to introduce evidence of a date between the two 18 months before the alleged rape which he claimed ended in consensual sexual intercourse. The trial court denied the motions in part. It allowed Kalamarski to testify concerning the prior date and consensual intercourse, but allowed only limited cross-examination of Ortiz concerning her marriage and divorce and did not permit cross-examination of her concerning the prior date or consensual sexual intercourse. Kalamarski appeals the court's rulings. We affirm.

RCW 9.79.150 ¹ declares evidence of an alleged victim's past sexual history inadmissible to impeach her credibility. It does, however, allow such evidence to show consent, but only when there has been prior sexual intercourse between the victim and the perpetrator, the prior behavior is material, and the court finds its probative value exceeds its prejudicial effect. Kalamarski contends the statute denies him due process, as it restricts his right to confront the witness against him.

Although the right to cross-examine is basic, it is not absolute. ² State v. Boast, 87 Wash.2d 447, 553 P.2d 1322 (1976). The limitation of cross-examination found in RCW 9.79.150 is not a denial of a defendant's due process rights. State v. Blum, 17 Wash.App. 37, 561 P.2d 226 (1977). The scope of such cross-examination is discretionary with the trial court, whose determination should not be disturbed unless there has been an abuse of discretion. State v. Krausse, 10 Wash.App. 574, 519 P.2d 266 (1974). Thus, in deciding this case, we must examine the trial court's determinations and decide if "no reasonable person would take the view adopted by the trial court." State v. Huelett, 92 Wash.2d 967, 969, 603 P.2d 1258 (1979).

First, Kalamarski urges that the evidence of the prior alleged act of consensual sexual intercourse ipso facto should have been admitted. Although a persuasive case can be made that all evidence of prior sexual intercourse between the victim and the defendant is admissible, the Washington statute does not go so far. The statute allows such evidence only when the trial court determines its probative value outweighs the probability it will create a "substantial danger of undue prejudice," either to the victim or the defendant. No other case in Washington has reached this issue. Although some jurisdictions have allowed all of such evidence, State v. Roberson, 543 S.W.2d 817 (Mo.App. 1976); Hunt v. State, 44 Ala.App. 479, 213 So.2d 664 (1968), others have held it is not always relevant to a defense of consent. People v. Dery, 74 Ill.App.2d 112, 219 N.E.2d 536 (1966); Milenkovic v. State, 86 Wis.2d 272, 272 N.W.2d 320 (1978).

Here, there was alleged one prior act of intercourse occurring approximately 18 months before the act for which Kalamarski was tried. The remoteness in time of the prior act is one factor in determining its relevance. Milenkovic v. State, supra at 325. The trial court considered the 18 months between the first and second encounters of the defendant and Ortiz and ruled that evidence of the prior was inadmissible. Questions of remoteness are matters within the sound discretion of the trial court. State v. Gray, 64 Wash.2d 979, 984, 395 P.2d 490 (1964); State v. Hubbard, 27 Wash.App. 61, 64, 615 P.2d 1325 (1980). This was within its discretion. Although there may be circumstances in which a different decision should be made, we do not find an abuse of discretion here.

Ortiz's testimony on cross-examination might not have been that helpful to Kalamarski. According to the prosecution's offer of proof at the pretrial hearing, Ortiz would have denied the prior consensual intercourse. This would have left it for the jury to choose between the stories of Ortiz and Kalamarski. Without Ortiz's testimony, however, Kalamarski could have argued that his statements regarding the prior activity had gone unrebutted and that the jury had little choice but to believe him. He did not choose to so argue.

Kalamarski also argues evidence of psychiatric counseling which Ortiz had undergone 4 years previously in 1975 should have been admitted to show her motive for accusing him of rape. Such evidence, as it is collateral, must be material and relevant to the matters which are sought to be proved. State v. Jones, 67 Wash.2d 506, 408 P.2d 247 (1965). The extent of cross-examination is left to the trial court's discretion, especially when the matters are collateral to the issue. State v. Goddard, 56 Wash.2d 33, 351 P.2d 159 (1960); State v. Price, 17 Wash.App. 247, 562 P.2d 256 (1977); State v. Battle, 16 Wash.App. 66, 553 P.2d 1367 (1976).

The trial court did not abuse its discretion here. The evidence at trial showed Ortiz was stable enough to satisfactorily hold a job. The counseling she received years before the alleged rape was for a short period of time. Ortiz had seen a psychiatrist because she was depressed over her divorce and hysterectomy which she had. The court considered both the remoteness of the counseling and its nature and ruled the evidence would not bear on the question of her consent. This ruling was proper.

Lastly, Kalamarski argues RCW 9.79.150 shifts the burden of proof to him to show Ortiz did consent to the alleged rape. The prosecutor is under an obligation to prove every element of the charge. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Roberts, 88 Wash.2d 337, 562 P.2d 1259 (1977). Here, Ortiz testified she did not consent to the sexual intercourse. Kalamarski had the opportunity to cross-examine her about the events on the night of the alleged rape and to raise doubts in the jury's mind about her lack of consent. The jury believed Ortiz. The State at all times had the burden of proof on this issue. Kalamarski was found guilty of third-degree rape. There was no shifting of the burden of proof.

The conviction is affirmed.

GREEN, C. J., concurs.

McINTUREF, Justice (dissenting).

I respectfully dissent from my learned brothers. The complainant's prior sexual activity with Mr. Kalamarski presented a difficult evidentiary and constitutional problem. Although the newly enacted law ¹ has a noble purpose, ² we must keep in mind that the law affecting criminal defendants is approached not from the standpoint of the victim, but from that of the accused. The court's ruling that Mr. Kalamarski could not cross-examine the complainant, Ms. Ortiz, regarding prior consensual sexual activity between them was a denial of Mr. Kalamarski's right to confront an adverse witness under the Sixth Amendment. ³ His right to present corroborating evidence of consent to the jury has been infringed. There is no more serious undertaking of the State than accusing a person of a crime, with the concomitant threat of loss of liberty or life. Surely the rights of a defendant charged with rape are no less important or protected than the rights of defendants accused of other crimes who are allowed to corroborate their testimony by cross-examination.

An oft-quoted comment about rape is that of Sir Matthew Hale:

"It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished ... but it must be remembered that it is an accusation easily to be made and hard to be proved and harder to be defended by the party accused, tho never so innocent."

Comment, Ohio's New Rape Law: Does it Protect Complainant at the Expense of the Rights of the Accused?, 9 Akron L.Rev. 337 (1975), citing 1 M. Hale, Pleas of the Crown, 634 (1847). The essence of the issue is the believability of a witness.

"Cross-examination is the principal means by which the believability of a witness and the truth of ... testimony are tested." Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347, 353 (1974). Indeed, cross-examination is the testing ground of a witness' credibility-thus it is fundamental that a defendant be given great latitude in the examination of a complaining witness. State v. Tate, 2 Wash.App. 241, 247, 469 P.2d 999 (1970). As we have noted in State v. Peterson, 2 Wash.App. 464, 466-67, 469 P.2d 980 (1970):

This is especially so in the prosecutions of sex crimes where, owing to natural instincts and laudable sentiments on the part of the jury, the usual circumstances of isolation of the parties involved at the commission of the offense and the understandable lack of objective corroborative evidence, the defendant is often disproportionately at the mercy of the complaining witness' testimony....

(Citations omitted.) Without being given the opportunity to cross-examine the complaining witness regarding her prior sexual activity with Mr. Kalamarski, he was left with nothing to corroborate his testimony. In contradistinction, Ms. Ortiz was able to corroborate her version of the incident. The jury should have been given the cross-examined benefit of both versions.

Although public policy may support exclusion of relevant evidence in some cases, the court's basic obligation to provide a fair trial to the defendant is a prerequisite countervailing consideration. One procedural safeguard to a fair trial is the Sixth Amendment right of the accused to be confronted with witnesses against...