State v. Oliver

• Decision Date: 04 August 1988
• Docket Number: Nos. CR-87-0060-P,CR-87-0130-PR,s. CR-87-0060-P
• Citation: 158 Ariz. 22,760 P.2d 1071
• Parties: STATE of Arizona, Appellee, v. Joseph Land OLIVER and David Edward Cordone, Appellants.
• Court: Arizona Supreme Court

Page 1071

760 P.2d 1071

158 Ariz. 22

STATE of Arizona, Appellee, v. Joseph Land OLIVER and David Edward Cordone, Appellants.

Nos. CR-87-0060-PR, CR-87-0130-PR.

Supreme Court of Arizona, In Banc.

Aug. 4, 1988.

Dardis & Hippert, P.C. by Frederic J. Dardis, Harold Higgins, Pima County Public Defender, Wayne E. Yehling, Deputy Pima County Public Defender, Tucson, for appellant Oliver.

Baker Sipe and Campoy by Barry J. Baker Sipe, Tucson, for appellant Cordone.

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Criminal Div., Diane M. Ramsey, Asst. Atty. Gen., Crane

[158 Ariz. 25] McClennen, Asst. Chief Counsel, Phoenix, for appellee.

GORDON, Chief Justice.

We have consolidated the appeals of Joseph L. Oliver and David E. Cordone (Appellants). Both men have been convicted of molestation of a child in violation of A.R.S. §§ 13-1410, 13-701, 13-702, 13-801, and 13-803. In unpublished memorandum decisions, the court of appeals confirmed the convictions of both Oliver and Cordone.

We granted review to consider whether Appellants should receive new trials because they were precluded from introducing evidence of the victims' prior sexual experiences with persons other than the Appellants. Appellants sought introduction of this evidence to dispel any inference that the victims' ability to vividly and accurately describe the alleged sexual molestations could result only from experiences with the Appellants.

FACTS

Although we ultimately dispose of this case largely on what transpired during the respective trials, we believe that a brief review of the underlying facts is informative. The facts of each case are presented separately, beginning with the Oliver matter.

Oliver. At approximately 5:00 p.m. on March 4, 1985, Oliver's nine-year-old daughter, Jackie, told their next-door neighbor that Oliver had touched Jackie's vagina, and that she wanted to use the telephone to call the police. The City of Tucson Police Department dispatched Officer Brenda Woolridge to the neighbor's apartment. Jackie told Woolridge that, the previous night, Oliver had asked Jackie and her brother to sleep in Oliver's bed. Sometime during the night, Jackie stated she awoke to find Oliver on top of her with his hands on her "private parts." Jackie said that when she tried to scream, Oliver covered her mouth and told her to go to sleep. The next morning, Jackie claimed that Oliver made her shower because he wanted her to wash off the "white stuff from sex." Woolridge then served Oliver with temporary custody orders and removed Jackie and her brother, James, from Oliver's custody.

At trial, Oliver's counsel announced his intention to question Jackie with respect to her prior sexual history. Oliver's theory was that Jackie had been the victim of prior sexual abuse, and on the basis of her experience she was able to fabricate the charges against him. The State moved to suppress this evidence.

Pursuant to State ex rel. Pope v. Superior Court, 113 Ariz. 22, 545 P.2d 946 (1976), and State v. Lindsey, 149 Ariz. 493, 720 P.2d 94 (App.1985), aff'd in part, vacated in part, 149 Ariz. 472, 720 P.2d 73 (1986), the trial court refused to admit evidence of Jackie's prior sexual history. To enable Oliver to buttress his theory of fabrication, though, the trial court permitted the introduction of evidence that Jackie had independent knowledge of seminal fluids and ejaculation from experiences with someone other than Oliver.

Cordone. The State charged Cordone with eight counts of child molestation involving two boys under the age of 15, John and Jeremy. ¹ At trial, John testified that Cordone performed fellatio on him on three separate occasions, including July 4, 1981, when Cordone performed oral sex on both John and Jeremy. Jeremy confirmed the July 4, 1981 incident, and he also testified that Cordone performed fellatio on him on several occasions.

Cordone wanted to cross-examine Jeremy and John concerning their prior sexual histories. In addition to maintaining that such evidence would support his fabrication defense, Cordone also argued that the evidence shed light on the victims' credibility, indicated that John had a tendency to exaggerate, and established that the victims had a motive for falsely accusing him. The State moved in limine to exclude any evidence

[158 Ariz. 26] of the victims' prior sexual histories. The trial court granted the State's motion over Cordone's objection.

DECISION OF THE COURT OF APPEALS

Oliver. The court of appeals found that Oliver's in camera offer of proof of the alleged prior molestations of Jackie was insufficient, and, accordingly, the court found that, under Pope, the trial court properly excluded evidence of Jackie's prior sexual history. Moreover, the court held that the trial court's decision to permit evidence of Jackie's prior knowledge of semen, from experiences with someone other than Oliver, allowed him to sufficiently present his fabrication defense.

Cordone. Relying on Pope, the court of appeals found no error in the trial court's decision to limit cross-examination of the victims concerning sexual activities unrelated to the conduct in issue. Noting that in the absence of a showing of abuse of discretion it would not substitute its judgment for the trial court's, the court of appeals found no abuse of discretion because it believed the evidence of John and Jeremy's prior sexual experiences had little relevance and was extremely prejudicial.

The threshold issue in these consolidated cases is whether the Pope "rape shield" should apply in child molestation cases. If we find that Pope is applicable in such cases, a subsidiary issue is whether there should be an exception in those child molestation cases in which defendants attempt to bolster fabrication defenses by offering evidence of minor victims' prior sexual histories to rebut the inference that the only reason minor victims are able to graphically describe alleged sexual molestations is because the defendants did, in fact, molest the victims.

DOES ARIZONA'S RAPE SHIELD CASE LAW EXTEND TO CHILD MOLESTATION CASES?

In deciding whether to grant new trials to Oliver and Cordone, we must first determine whether the "rape shield" rule announced in Pope, 113 Ariz. at 29, 545 P.2d at 953, extends to child molestation cases.

Prior to this court's ruling in Pope, evidence concerning the prior sexual history of a victim was admissible where the accused raised consent as a defense in a prosecution for forcible rape. See State v. Kelley, 110 Ariz. 196, 516 P.2d 569 (1973); State v. Martinez, 67 Ariz. 389, 198 P.2d 115 (1948); State v. Wood, 59 Ariz. 48, 122 P.2d 416 (1942). Arizona courts tolerated the introduction of such evidence under the misguided assumption that "common experience teaches us that the woman who has once departed from the paths of virtue is far more apt to consent to another lapse than is the one who has never stepped aside from that path." Wood, 59 Ariz. at 52, 122 P.2d at 418. In Pope, however, we held that evidence of the victim's prior sexual history with men other than the accused is inadmissible on the issue of consent. Pope, 113 Ariz. at 28, 545 P.2d at 952. In reaching this conclusion, we noted that the fact that a victim consented to sexual intercourse on one occasion is not substantial evidence that she consented on another, and that such evidence diverts the jury's attention from the real matter in issue. Id. Moreover, we concluded that victims should not be expected to come prepared to defend every incident of their pasts. Id. Finally, because such activity has no relevance to a witness's truth or veracity, we held that a victim's credibility cannot be impeached by evidence of prior sexual activities. Id. at 29, 545 P.2d at 953.

A number of other jurisdictions have extended their rape shield laws to cases involving child molestation victims. State v. Rossignol, 490 A.2d 673 (Me.1985); Commonwealth v. Baldwin, 502 A.2d 253 (Pa.Super.Ct.1985), disapproved on other grounds, Commonwealth v. Davis, 541 A.2d 315 (Pa.1988); State v. Freeman, 447 So.2d 600 (La.Ct.App.1984); Fields v. State, 281 Ark. 43, 661 S.W.2d 359 (1983); State v. Peyatt, 315 S.E.2d 574 (W.Va.1983); Lewis v. State, 451 N.E.2d 50 (Ind.1983); People v. Arenda, 416 Mich. 1, 330 N.W.2d 814 (1982); State v. Padilla, 110 Wis.2d 414, 329 N.W.2d 263 (App.1982); Two of the policies underpinning Pope --that requiring sex crime victims to defend every incident in their pasts will discourage prosecution and that the introduction of sexual histories might confuse the jury--are just as valid in a child molestation case as in a rape prosecution. In fact, child molestation victims may be even more adversely affected by unwarranted and unreasonable inquiry into largely collateral and irrelevant evidence than victims in rape cases. People v. Arenda, 416 Mich. 1, 13, 330 N.W.2d 814, 818 (1982). Accordingly, we now extend Arizona's rape shield to child molestation cases.

                [158 Ariz. 27]  State v. Howard, 121 N.H. 53, 426 A.2d 457 (1981).  In fact, the Arizona Court of Appeals has applied Pope to a case involving a minor victimized by sex crimes.   State v. Lindsey, 149 Ariz. 493, 497-98, 720 P.2d 94, 98-99 (App.1985), aff'd in part, vacated in part on other grounds, 149 Ariz. 472, 720 P.2d 73 (1986).  In Lindsey, the court cited Pope to support its holding that, absent evidence that the victim had intercourse with anyone except the defendant during the time of conception, it was proper to preclude evidence that the victim allegedly had intercourse with others several weeks or months after her pregnancy, or long before.  Id. at 498, 720 P.2d at 99
                

IS THERE AN EXCEPTION TO ARIZONA'S RAPE SHIELD WHEN FABRICATION IS RAISED AS A DEFENSE IN A CHILD MOLESTATION CASE?

Because they were not offering the precluded evidence to place the victims' moral virtue on trial, but merely to demonstrate to the jury that it was possible for the victims to have the knowledge...