U.S. v. Platero
| Decision Date | 21 December 1995 |
| Docket Number | No. 95-2026,95-2026 |
| Citation | 72 F.3d 806 |
| Parties | 43 Fed. R. Evid. Serv. 245 UNITED STATES of America, Plaintiff-Appellee, v. Ferlin PLATERO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Teresa E. Storch, Assistant Federal Public Defender, Albuquerque, New Mexico, for defendant-appellant.
Robert J. Gorence, First Assistant U.S. Attorney, Albuquerque, New Mexico (John J. Kelly, United States Attorney, Albuquerque, New Mexico, with him on the brief), for plaintiff-appellee.
Before EBEL and HOLLOWAY, Circuit Judges, and BROWN, * District Judge.
Defendant-Appellant Ferlin Platero appeals from an order of the district court, on remand, upholding his conviction on three counts of aggravated sexual assault in violation of 18 U.S.C. Sec. 2241(a). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.
There was evidence presented by the government showing the following:
After work on September 1, 1992, Susan Francis drove her co-worker Vernon Laughlin to the Sports Page Lounge in Gallup, New Mexico. She then drove home. After her husband left for a class, Francis called Laughlin at the bar. Laughlin offered to buy dinner for Francis. After her husband returned, Francis joined Laughlin at the bar. Laughlin and Francis had a drink at the bar and then went to a restaurant and ate. They returned to the Sports Page Lounge around 10:30 p.m. and stayed until around 12:30 a.m. Francis and Laughlin then left the bar and headed out of Gallup. Laughlin was driving.
Francis testified that she was reclined in her seat, "ready to fall asleep," when Laughlin told her that they were being pulled over. She looked back and saw flashing lights. They pulled onto a dirt road. Platero, a security guard employed by Gallup Security Service, approached and said that Laughlin had been weaving all over the road. Platero asked more questions and asked for Laughlin's driver's license. Laughlin told Platero that he did not have a driver's license. Laughlin testified that he thought Platero was a police officer.
Platero told Laughlin to step out of the car. At some point, according to Laughlin, Platero threatened to arrest him for DWI. Laughlin testified that Platero went to the driver's side and asked Francis questions. Platero asked for Francis's driver's license, and she gave it to him. Platero then went back to his car. When he returned he told Laughlin Laughlin said that after he walked about 10 or 15 yards, Platero came up to him and told him he was going to arrest Francis for being uncooperative.
Francis testified that Platero took her driver's license back to his car. She said he returned a few minutes later and told her to get out of her car and stand next to it. Platero told Francis that he was taking her in. Francis said that when she first got into Platero's car she thought he was just going to take her home. However, he told her that he was taking her in for DWI. When she complained that she hadn't been driving, Platero got angry and said: "If you're not going to cooperate, I'm going to have to put these handcuffs on you." Platero told Francis that he would add on more charges if she said any more. He then handcuffed her. Laughlin testified that he saw Platero's car leave and returned to Francis's car. He got in and fell asleep.
Platero drove the car north away from Gallup for about ten minutes and then turned onto a dirt road. He parked and removed Francis's handcuffs. She testified that Platero then raped her twice in the front seat of the car and forced her to have oral sex.
Afterwards Platero drove Francis back to her car. She was still buttoning her blouse when Platero drove up to her car. She opened the door to her car and saw Laughlin. Laughlin said that Francis was still trying to fix her clothes and button her blouse. According to Laughlin, Platero said he brought Francis back because she was being uncooperative and that "she was still in the same condition."
Laughlin and Francis then drove off, and Francis started crying. Laughlin asked if Platero had raped her. She told him he had, and Laughlin drove her to the Gallup Indian Medical Center, arriving there at around 6 or 7 in the morning.
Platero denied pulling Francis and Laughlin over and said that the car was stopped when he encountered it. He admitted having sex with Francis, but asserted it was consensual. On cross-examination Platero admitted that on the way back to Francis's car he told her that he "hadn't done anything to her, that she had done it to herself."
Platero was charged by an indictment with three counts of aggravated sexual assault on the Navajo Reservation on September 2, 1992, under 18 U.S.C. Sec. 2241(a), arising out of this incident (Counts I, II and III), and other offenses not relevant here. The theory of defense to the charges involved here was that Francis had consented to sex with Platero and had fabricated her sexual assault allegations against Platero in order to protect her relationship with Laughlin.
Platero filed a motion under Fed.R.Evid. 412(b)(1) seeking to introduce evidence of Francis's alleged "past sexual behavior" under the rule which was generally said to be her involvement in a "romantic relationship" with Laughlin at the time of the alleged rape. I R. doc. 44 at 1. This was offered in order to show that Francis had a motive to fabricate the rape allegations against Platero. At the Rule 412 hearing, Laughlin and Francis testified that their relationship turned from friendship to intimacy after the rape. (They were living together at the time of trial.) Anna Mike, Laughlin's former girlfriend, testified that she believed that Francis and Laughlin were having an affair as early as 1990. The district court excluded the evidence regarding Francis's and Laughlin's relationship, finding the facts distinguishable from Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (per curiam), which held such evidence admissible in similar circumstances.
As noted in Platero's first appeal in this case, the only difference between Olden and the instant case is the uncertainty as to the existence of a relationship between Laughlin and Francis at the time of the rape. United States v. Platero, No. 93-2317, slip op. at 3, 1994 WL 645339 (10th Cir. Nov. 16, 1994) (Platero I ). In Platero I, we remanded to the district court, stating that "[t]he application of the Olden principle is dependant [sic] upon the existence of a relationship between Francis and Laughlin." Id. We concluded that Id. We affirmed in part, 1 and remanded in part "for a determination of the factual issue addressed in this order and judgment." We also directed that "[f]ollowing that determination, the district court shall proceed with a disposition appropriate to its finding and the thoughts expressed here."
On remand, the district judge found that the testimony of Anna Mike was not credible and the testimony of the other witnesses was credible. On the basis of his own credibility determinations, the judge concluded that no sexual relationship existed between Laughlin and Francis at the time of the sexual assault. Finding no factual predicate for allowing cross-examination regarding the relationship between Francis and Laughlin, the judge let stand the conviction for aggravated sexual assault.
Platero urges two principal grounds for reversal of his convictions on Counts I, II and III for sexual assault, arguing that (1) he was denied his right to trial by jury by the refusal to submit to the jury the question whether an extramarital relationship existed between Laughlin and Francis at the time of the offenses and by the determination of that issue by the trial judge alone; and (2) he consequently was denied his right under the Confrontation Clause of the Sixth Amendment to confront and cross-examine Francis on that issue. We now turn to these questions.
In contending he was denied his right to trial by jury and confrontation, Platero more specifically contends that he was deprived of such constitutional rights because the district judge himself made the credibility determinations and concluded there was no "extramarital affair" between Francis and Laughlin. Appellant's Brief in Chief at 19. Platero says that on remand the government argued that this court had directed the trial judge to make a factual finding on the existence of such a relationship. Id. at 21. The government argues to us that on remand the trial judge did "exactly what this court required of it," and followed the mandate. Brief of Appellee at 17 (emphasis in original). The contentions made thus bring into play the doctrine of the law of the case and what was decided and required by our Platero I decision and mandate.
Our order and judgment in Platero I stated:
In this case, the foundation upon which the Olden paradigm is built, while evident in the testimony, has not been resolved on the record. The application of the Olden principle is dependant [sic] upon the existence of a relationship between Francis and Laughlin. There was testimony concerning the fact of the relationship, but it was rebutted. Unfortunately, while the district court appeared to have disbelieved Laughlin's former girlfriend, the court did not resolve the discrepancy in the testimony.
At this juncture, the proper outcome hangs in the balance. If there had been an existing relationship between Francis and Laughlin at the time of the alleged crime, defendant should have been allowed to cross-examine Francis, as required by Olden. Obviously, if there was no relationship, the entire logic behind the defendant's quest evaporates.
....
AFFIRMED IN PART...
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