State v. Patnaude

• Decision Date: 03 November 1981
• Docket Number: Nos. 230-80,231-80,s. 230-80
• Parties: STATE of Vermont v. Jeffrey PATNAUDE. STATE of Vermont v. Ellwin POQUETTE.
• Court: Vermont Supreme Court

Page 402

438 A.2d 402

140 Vt. 361

STATE of Vermont v. Jeffrey PATNAUDE.

STATE of Vermont v. Ellwin POQUETTE.

Nos. 230-80, 231-80.

Supreme Court of Vermont.

Nov. 3, 1981.

Mark J. Keller, Chittenden County State's Atty. and Susan R. Via, Chief Deputy State's Atty., Burlington, for plaintiff.

William A. Nelson, Acting Defender Gen. and Ruth Ann Wishik, Law Clerk (on the brief), Montpelier, for defendant.

Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.

UNDERWOOD, Justice.

The two defendants and three other men were accused by two women of repeated sexual assaults upon them in a late-night gang rape at a secluded cabin in Williston. Following combined trials, a jury found both defendants guilty of sexual assault, 13 V.S.A. § 3252(1)(A), upon each of the women.

The defendants moved for acquittals, notwithstanding the verdicts, and for new trials on the ground that the trial judge's evidentiary rulings deprived them of a fair trial. These motions were denied and judgments of conviction entered. It is from these judgments that defendants appeal.

On the evening of November 5, 1979, the two prosecuting witnesses hitchhiked from their Waterbury homes to Burlington. After playing foosball in a Main Street ice cream parlor, one of the women recognized the defendants standing out front on the sidewalk with two other men. After a short conversation, the men agreed to give the women a ride home to Waterbury. A girl friend of the two women joined them.

The three women entered the car and the four men drove to get some beer. They then started making passes at the women and tried to convince them to "party." All three resisted these overtures. The men then agreed to take them directly home. Instead, they dropped one off at Battery Park and then drove the other two to a remote cabin in Williston near the Winooski River. Another man was already at the cabin when they arrived.

The two defendants and the other three men forcibly ripped the clothes from the women and forced each to engage in repeated sexual intercourse, fellatio and cunnilingus. At one point, defendant Patnaude pulled a hunting knife from its sheath and threatened to cut off one of the women's breasts if she did not comply with all the demands of all of the men. Her companion finally escaped. She ran down a bank and waded across the river to refuge at the first house she came upon. She was shaking, crying and hysterical, and told the occupants she had been raped.

Fear of defendant Patnaude's hunting knife kept the other woman at the cabin. Eventually she was driven from the cabin by car and dropped off at the edge of the Interstate Highway. A truck driver gave her a ride to her home in Waterbury. She did not tell the truck driver she had been raped. Both women, however, gave detailed reports of the incident to police.

Defendants admit participating in genital and oral sex with the two women that evening. Their defense is that the women consented. To support their theory, the defendants offered to produce witnesses and sought permission to cross-examine the State's witnesses, about prior sexual conduct between the two women and third persons. The trial judge excluded this evidence, relying on 13 V.S.A. § 3255(a)(3). The defendants' brief three claims that the judge's decision constituted reversible error.

I.

Defendants' first claim of reversible error is that 13 V.S.A. § 3255(a)(3), the rape-victim shield provision of the sexual assault act, 13 V.S.A. Chapter 72, is overbroad and therefore facially unconstitutional. That section provides:

Evidence of prior sexual conduct of the complaining witness shall not be admitted; provided, however, where it bears on the credibility of the complaining witness or it is material to a fact at issue and its probative value outweighs its private character, the court may admit:

(A) Evidence of the complaining witness' past sexual conduct with the defendant;

(B) Evidence of specific instances of the complaining witness' sexual conduct showing the source of origin of semen, pregnancy or disease;

(C) Evidence of specific instances of the complaining witness' past false allegations of violations of this chapter.

13 V.S.A. § 3255(a)(3).

Defendants claim to have discovered a category of evidence of the complaining witness' past sexual conduct with third persons which is legally relevant, but excluded by 13 V.S.A. § 3255(a)(3). A proper weighing of the State's interests in excluding such evidence and the defendant's Sixth Amendment rights in having it admitted, would, they say, require that the evidence be admitted. Since the statute categorically bars all prior sexual conduct evidence which does not fall within one of its three exceptions, thereby excluding evidence which the defendants are constitutionally entitled to introduce, they contend that it is overbroad and thus unconstitutional on its face.

Defendants raise the issue of facial constitutionality for the first time in this Court. In fact, at the pretrial in camera hearing, held pursuant to 13 V.S.A. § 3255(b), to determine the admissibility of ten separate items of defense evidence, defense counsel specifically assured the trial judge that they were not seeking to have 13 V.S.A. § 3255(a)(3) stricken as unconstitutional. Rather, they told the judge that if, as he weighed the probative value of the evidence against its "private character," he found a conflict between the State's interests in the rape victim shield law and the defendants' Sixth Amendment rights to introduce legally relevant information, the statute, in this particular case, must yield.

Notwithstanding that the statute is supported by a presumption of constitutionality, State v. Shop & Save Food Markets, Inc., 138 Vt. 332, 334, 415 A.2d 235, 236 (1980), we have repeatedly held that constitutional issues which were not raised in the trial court will not be considered here. State v. Prue, 138 Vt. 331, 331-32, 415 A.2d 234 (1980). Further, even though constitutional issues have been argued and briefed, they will not be considered by this Court unless disposition of the case requires it. In re Wildlife Wonderland, Inc., 133 Vt. 507, 520, 346 A.2d 645, 653 (1975). Defendants' assertion of unconstitutionality depends on two assumptions: (1) that the category of evidence they offer is legally relevant; and (2) that 13 V.S.A. § 3255(a)(3)'s standard for admissibility differs from the traditional tests for legal relevance. Given our holdings below that evidence of a complaining witness' past sexual conduct with third persons is not legally relevant for defendants' purposes, and that 13 V.S.A. § 3255(a)(3) calls for the application of the traditional test for legal relevance, we need not reach the issue of facial unconstitutionality to dispose of this appeal.

II.

Defendants further claim that the trial judge applied the rape victim shield provisions of the sexual assault act in an unconstitutional manner. More specifically, they insist that the Sixth Amendment gives them the right to introduce all legally relevant evidence. The judge excluded evidence of the victims' past sexual conduct with third persons by weighing its probative value, or logical relevancy, against its "private character" as required by 13 V.S.A. § 3255(a)(3). Defendants say he should have used the traditional standard for legal relevancy which weighs probative value against "the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403; State v. Gardner, 139 Vt. 456, 459, 433 A.2d 249, 251 (1981); Quazzo v. Quazzo, 136 Vt. 107, 110, 386 A.2d 638, 640 (1978); State v. Davis, 132 Vt. 290, 293, 318 A.2d 664, 665-66 (1974). Since the "private character" standard of 13 V.S.A. § 3255(a)(3) excludes evidence which is legally relevant under the traditional standard embodied in the Federal Rules of Evidence and Vermont cases, defendants say, the law was unconstitutional as applied.

It is hornbook law that the Sixth Amendment, which is applicable to the states through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), guarantees the rights of an accused in a criminal prosecution "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favour." U.S.Const.Amend. VI. Defendants concede these rights are not absolute, but contend that in a face-off, the interest of the State and victim in excluding certain evidence of a "private character" must yield to the defendants' constitutional right of confrontation. They rely heavily upon Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), to support their position.

Those cases, however, do not help the defendants. In both cases, the evidence excluded was legally relevant, and the Supreme Court emphasized its importance to the defendants' cases. Further, both cases make clear that even legally relevant evidence is not automatically admissible without regard to the State's interest. In Chambers, supra, 410 U.S. at 295, 93 S.Ct. at 1046, the Court stressed:

Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.

And in Davis, the Court balanced the State's interests against the interests of the criminal defendant and found, on the facts of that case, that the State's policy of protecting juvenile offenders from public exposure was "outweighed by petitioner's right to probe into the influence of possible bias in the testimony of a crucial identification witness." Davis, supra, 415 U.S. at 319, 94 S.Ct. at 1112.

It is readily apparent from a reading of these and other cases relied upon by the defendants that the Supreme Court,...