State v. Warren

• Decision Date: 03 June 1998
• Docket Number: Docket No. S
• Citation: 711 A.2d 851,1998 ME 136
• Parties: STATE of Maine v. Samuel L. WARREN, III. agx96x651.
• Court: Maine Supreme Court

Page 851

711 A.2d 851

1998 ME 136

STATE of Maine v. Samuel L. WARREN, III.

Docket No. Sagx96x651.

Supreme Judicial Court of Maine.

Submitted on Briefs Dec. 23, 1997.

Decided June 3, 1998.

Geoffrey Rushlau, District Attorney, Michael P. Turndorf, Asst. Dist. Atty., Bath, for State.

Peter M. Rice, Yarmouth, for defendant.

Before ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ.

LIPEZ, Justice.

¶1 Samuel L. Warren III appeals from the judgment entered in the Superior Court (Sagadohoc County, Atwood, J.) following a jury verdict finding him guilty of gross sexual assault in violation of 17-A M.R.S.A. § 253 (1983 & Supp.1997). ¹ Warren argues, inter alia, that he was deprived of his constitutional right to a fair trial by the court's exclusion of all evidence concerning the child victim's alleged past sexual behavior. ² We agree that the court erred in excluding all of the proffered evidence, and we are unable to conclude beyond a reasonable doubt that the error was harmless. Accordingly, we must vacate the judgment.

I.

¶2 In January 1996 the grand jury returned an indictment charging Samuel L. Warren III with gross sexual assault in violation of 17-A M.R.S.A. § 253. At a two-day jury trial in June 1996, the following evidence was produced.

¶3 On October 31, 1995, Warren visited the home of his sister, Virginia, who lived with her seven year old daughter, the victim in this case; her two sons, ages six and eight; her boyfriend; and several other relatives in Bath. According to the testimony of the victim, who was eight years old at the time of the trial, Warren entered her bedroom after she had gone to sleep that evening, kneeled on the floor next to her bed, and told her that he was returning to his home in New York. After saying goodnight to her, he pulled back her blanket, lifted her nightgown, and pulled down her underwear. The victim testified that Warren then "started licking me on my private spot," which she explained was the place on the front of her body that she uses for going to the bathroom. She recalled that her legs were apart, and that he licked her on "the inside" of her private spot.

¶4 After Warren left her bedroom, the victim immediately reported the incident to her mother, Virginia, who testified that she confronted Warren about her daughter's accusations and that Warren claimed he did not know what she was talking about. ³ Virginia then took her daughter to the hospital emergency room. According to the testimony of the physician who examined the child, there was no physical evidence of sexual abuse. The physician also testified, however, that the type of conduct alleged in this case would be unlikely to produce any detectible physical evidence. Following the medical examination, the victim and her mother went to the Bath Police Department, where they were interviewed by Detective Donald Marsh in the early morning hours of November 1.

¶5 According to the testimony of Detective Marsh, Warren went to the police station at Marsh's request shortly before 3:00 a.m. to be interviewed about the allegations. During the interview, Warren acknowledged that he had entered the victim's bedroom to kiss her goodnight, but claimed that he could not remember whether there had been any sexual contact. The State also introduced through Detective Marsh a written statement prepared by Warren following the interview. In the statement, Warren wrote that he kissed the victim goodnight, left her room and was confronted by Virginia. The statement concluded: "I don't know if it happened but if it did ... I'm sorry you are not to blame I am you are right in tell your mom [sic]."

¶6 As the trial progressed, defense counsel sought to introduce evidence to establish that the victim had been exposed to sexual conduct similar to Warren's alleged conduct on two prior occasions, in part to rebut the jury's natural inference of her sexual naivete. First, according to the police report filed in connection with the charges against Warren, the victim told the investigating officer that when she was two years old a baby sitter's boyfriend kissed her vagina after she (the child) had scratched it while taking a bath. The court excluded the evidence, concluding that the victim had not demonstrated extraordinary sexual knowledge for her age to give rise to an inference of sexual naivete. Second, defense counsel sought to introduce evidence concerning an alleged sexual encounter between the victim and her older brother which occurred in 1993. During a voir dire examination, the victim's great-aunt testified that in 1993 she had personally observed the victim's older brother "rubbing his face" against the victim's vagina while her underwear was pulled down around her knees. ⁴ After noting that the victim had demonstrated no sexual "proclivities" and that there was no evidence to show that she was an "active participant" in the 1993 incident, the court precluded the admission of all evidence regarding the incident, again reasoning that the victim had not displayed extraordinary knowledge of sexual matters for her age:

[F]or the inference [of sexual naivete] to arise there must be a display of extraordinary sexual knowledge, not the child's age [sic]. Here we have none of that and as I indicated yesterday the experience of this child and her testimony certainly does not display extraordinary sexual knowledge for his or her age, and I make that finding based on her demeanor on the witness stand, which was certainly very reluctant, embarrassed, marked by some distress in her voice when describing all this and her use of childish terms to describe her genitals. So based upon all of that the court is going to exclude the description of the event that [the great-aunt] will describe....

¶7 At the conclusion of the trial, the jury returned a verdict of guilty and judgment was entered accordingly. Warren was sentenced to twenty years imprisonment, all but fifteen years suspended, and six years probation. This appeal of the judgment of conviction followed.

II.

¶8 Warren argues that he was deprived of his constitutional right to a fair trial by the court's exclusion of all evidence concerning the child victim's alleged past sexual behavior with her baby sitter's boyfriend in approximately 1990 and with her older brother in 1993. Relying on our decision in State v. Jacques, 558 A.2d 706 (Me.1989), he contends that he was entitled to present evidence concerning the existence of an alternative source of the victim's extraordinary sexual knowledge for the purpose of rebutting the jury's natural presumption of her sexual naivete, notwithstanding M.R. Evid. 412.

¶9 Pursuant to M.R. Evid. 412, a victim's past sexual behavior generally is not admissible at trial. ⁵ This rule protects the State's strong and legitimate interest in preventing a trial from becoming a trial of the victim, rather than of the accused. See Jacques, 558 A.2d at 707. We have recognized, however, that the State's interest in protecting victims of sexual abuse "is neither absolute nor paramount." Id. Rather, the State's interest must be weighed against a defendant's constitutional right, emanating from the right of confrontation and the rights to compulsory process and to due process, to be afforded a meaningful opportunity to present a complete defense. See id. at 708 (citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (state's interest in protecting juvenile offender does not take precedence over defendant's right to effectively cross-examine)). The Advisory Committee Note accompanying Rule 412 reflects this balancing of competing interests with its statement that "evidence constitutionally required to be admitted" falls outside the scope of the text of Rule 412's exclusion. See M.R. Evid. 412 advisory committee's note to 1983 amend., Me. Rptr, 449-458 A.2d LXX; see also Jacques, 558 A.2d at 708.

¶10 As we observed in Jacques, when a prosecutor "opens the door" to evidence otherwise inadmissible pursuant to Rule 412 by affirmatively offering evidence of a victim's sexual inexperience or chastity on direct, the admission of a defendant's evidence to the contrary may be "constitutionally required," subject to the limitations of Rule 403. See id. at 708 (citing FIELD & MURRAY, MAINE EVIDENCE § 412, at 139 (2d ed.1987)). When the victim of a sex crime subject to Rule 412 is a child, however, the child's sexual inexperience may be presumed by the factfinder even in the absence of any affirmative action by the prosecutor:

When the victim is a child, as in this case, the lack of sexual experience is automatically in the case without specific action by the prosecutor. A defendant therefore must be permitted to rebut the inference a jury might otherwise draw that the victim was so naive sexually that she could not have fabricated the charge.

Id.; cf. State v. Davis, 406 A.2d 900, 901-02 (Me.1979) (pre-Rule 412 case observing that defendant was subjected to "grave risk that, not being otherwise informed, the jury might regard a complainant of tender years as too innocent of sexual matters to think up the kind of sexual conduct that she had described unless it was real and she had actually experienced it"). Jacques requires that a jury be informed of the child's past sexual behavior in order to rebut the natural inference of her sexual naivete, notwithstanding Rule 412's prohibition.

¶11 The Jacques exception to Rule 412 remains subject to traditional rules of relevancy. See M.R.Evid. 402 (evidence which is not relevant is not admissible); cf. 2 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 159, at 200 (2d ed.1994) (there is no constitutional right to introduce irrelevant evidence). To be relevant, evidence must be offered to prove some fact of consequence to the proceeding, and must be probative of the fact for which it is offered. See M.R. Evid. 401. When a jury infers that a child is sexually naive and could not...