State v. Williams, No. 49617

• Court: United States State Supreme Court of Kansas
• Writing for the Court: McFARLAND
• Citation: 580 P.2d 1341,224 Kan. 468
• Decision Date: 15 July 1978
• Docket Number: No. 49617
• Parties: STATE of Kansas, Appellee, v. Love T. WILLIAMS, Appellant.

Page 1341

580 P.2d 1341 224 Kan. 468 STATE of Kansas, Appellee,
v.
Love T. WILLIAMS, Appellant. No. 49617. Supreme Court of Kansas. July 15, 1978. Syllabus by the Court

1. In a prosecution for rape, the limitations on admission into evidence of previous sexual conduct of the complaining witness set forth in K.S.A. 60-447a contain sufficient safeguards and are not constitutionally impermissible as denying due process.

2. Evidence that showed the penetration of the defendant's male organ beyond the lips of the complaining witness, although further penetration was prevented by her clenched teeth, was sufficient to constitute the crime of sodomy.

3. In convictions for aggravated kidnapping, aggravated sodomy, and rape, the record is examined and it is Held : (1) the trial court did not err in sustaining the state's motion In limine or in sentencing the defendant, and (2) the evidence was sufficient to sustain the convictions of aggravated kidnapping and aggravated sodomy.

Oneil Davis, Wichita, argued the cause and was on brief, for appellant.

Page 1342

Robert J. Sandilos, Asst. Dist. Atty., argued the cause and Curt T. Schneider, Atty. Gen. and Vern Miller, Dist. Atty., were with him, on brief, for appellee.

McFARLAND, Justice:

This is a direct appeal from convictions of aggravated kidnapping (K.S.A. 21-3421), aggravated sodomy (K.S.A. 21-3506), and rape (K.S.A. 21-3502).

Issue No. 1

DID THE TRIAL COURT ERR IN SUSTAINING THE PROSECUTOR'S MOTION IN LIMINE ; IS K.S.A. 60-447a UNCONSTITUTIONAL FOR LACK OF RECIPROCAL DUTY BY PROSECUTOR TO GIVE SEVEN DAYS' NOTICE?

On the day of trial the state filed a motion In limine requesting that the trial court limit inquiry into past sexual conduct of Brenda King, the complaining witness, pursuant to K.S.A. 60-447a. No motion had been filed by the defendant pursuant to K.S.A. 60-447a to admit such evidence. K.S.A. 60-447a provides:

"(1) Except as otherwise provided in subsection (2), in any prosecution for the crime of rape, as defined by K.S.A. 21-3502, or for aggravated assault with intent to commit rape, as provided in K.S.A. 21-3410, or for an attempt to commit rape, as [224 Kan. 469] provided in K.S.A. 21-3301, or for conspiracy to commit rape, as provided in K.S.A. 21-3302, evidence of the complaining witness' previous sexual conduct with any person including the defendant shall not be admissible, nor shall any reference be made thereto in the presence of the jury, except under the following conditions: A written motion by the defendant shall be made at least seven days before the commencement of the trial to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The seven-day notice required herein may be waived by the court. The motion shall state the nature of such evidence or testimony and the relevancy thereof, and shall be accompanied by an affidavit in which an offer of proof of such previous sexual conduct of the complaining witness is stated. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.

(2) In any prosecution for a crime designated in subsection (1), the prosecuting attorney may introduce evidence concerning any previous sexual conduct of the complaining witness, and the complaining witness may testify as to any such previous sexual conduct. If such evidence or testimony is introduced, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence or testimony introduced by the prosecutor or given by the complaining witness.

"(3) As used in this section, 'complaining witness' means the alleged victim of any crime designated in subsection (1), the prosecution of which is subject to this section."

The defendant objected to the state's motion as he desired to establish Ms. King was estranged from her husband and living with another man (not the defendant). The defendant further challenged the constitutionality of K.S.A. 60-447a. The state's motion was sustained. Evidence of the fact Ms. King was separated from her husband was introduced through the testimony of the husband who was called by the state as a rebuttal witness. Although arguing that "his hands were tied" by the ruling, defense counsel does not show any new areas that he was precluded from exploring. The trial court specifically authorized the defendant to inquire into any areas opened

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up by the state. There is no showing of any abuse of discretion by the trial court.

The defendant challenges the constitutionality of K.S.A. 60-447a. In so doing he likens the statute to the "alibi" statute (K.S.A. 22-3218) which was held to be unconstitutional in Talley v. State, 222 Kan. 289, 564 P.2d 504 (1977). In Talley we held that due process forbade enforcement of a statute requiring...