State v. Johnson

Page 770

908 P.2d 770

121 N.M. 77

STATE of New Mexico, Plaintiff-Appellee, v. Richard Leonard JOHNSON, Defendant-Appellant.

No. 15710.

Court of Appeals of New Mexico.

Oct. 4, 1995.

[121 N.M. 79] Tom Udall, Attorney General and Patricia A. Gandert, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Sammy J. Quintana, Chief Public Defender and Darryl A. Bouchard, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

FLORES, Judge.

1. Defendant appeals his convictions of false imprisonment and two counts each of aggravated assault and second degree criminal sexual penetration. Defendant raises four issues on appeal: (1) the trial court erred in not allowing Defendant to introduce evidence, other than his own testimony, to support his contention that the complaining witnesses, T.A. and T.S., were prostitutes who accused him of rape in retaliation for his refusal to pay for consensual sex; (2) Defendant was denied his right to a fair trial due to misconduct by the prosecutor; (3) the trial court erred in allowing the prosecutor to mention a third victim when the State indicated they had been unable to locate the complaining witness; and (4) Defendant was denied his right to a fair trial due to cumulative error. We reverse on issue one. Accordingly, we find it unnecessary to address Defendant's other issues, including his suggestion that our rape shield law, NMSA 1978, § 30-9-16 (Repl.Pamp.1994), is unconstitutional as applied in this case.

BACKGROUND

2. The charges against Defendant arise from several incidents of alleged rapes. More specifically, the State alleged that Defendant picked up women on Central Avenue in Albuquerque by deceiving them into believing he was a police officer, took them to secluded areas, and forced them to have sex with him at knifepoint. Defendant's defense was that the women were prostitutes who engaged in consensual sex with him.

DISCUSSION

3. Prior to trial, Defendant and the State made opposing motions regarding the introduction of evidence of the complaining witnesses' sexual conduct. Defendant sought to present evidence of the women's prior sexual conduct, and the State opposed mention of or reference to their sexual conduct with any person other than Defendant or to any illicit sexual activity in which they may have engaged. The trial court ultimately denied Defendant's request and granted the State's motion. We review the trial court's ruling for an abuse of discretion. See State v. Ramos, 115 N.M. 718, 724, 858 P.2d 94, 100 (Ct.App.), cert. denied, 115 N.M. 602, 856 P.2d 250 (1993).

4. At the in camera hearing held pursuant to SCRA 1986, 11-413(B) (Repl.1994), Detective Arbogast testified that T.A. told him that she had not been working as a prostitute on the night of the alleged assault, but that she had done so on past occasions. During argument on the opposing motions, the prosecutor acknowledged that T.S. had been arrested for prostitution subsequent to the encounter between her and Defendant. It appears that Defendant was prepared to introduce evidence that T.S. had been arrested after she got in a car with an undercover officer on Central Avenue.

5. The State argues that Defendant did not preserve his claim that exclusion of the evidence deprived him of his right to effectively cross-examine the witnesses against him. We disagree. Defendant's written motion specified his desire to introduce evidence of the complaining witnesses' prior sexual conduct. It is clear from argument of the parties' counsel that they and the trial court were debating and considering the admissibility of any evidence, aside from Defendant's testimony, that T.A. and T.S. worked as prostitutes before, during, or after the nights on which they were allegedly sexually assaulted by Defendant. Defendant specifically sought, and the trial court refused, permission to question the women about their experiences with prostitution and to introduce extrinsic evidence, other than Defendant's testimony, tending to prove they were prostitutes. The effect of the trial court's ruling was that Defendant was unable to challenge the women with respect to their explanations for being out on Central Avenue when they encountered him. Defendant was further prohibited from even mentioning the word "prostitution" during his cross-examination of Detective Arbogast. This, in turn, adversely affected Defendant's defense theory and his constitutional right to confront the witnesses against him.

6. The heart of Defendant's defense theory was that Defendant and the complaining witnesses agreed to trade money for sex and that the women had negative reactions when Defendant refused to pay them. Defendant testified to this effect, and his counsel argued at closing that T.A. "got more action and less money than she thought." Defendant's defense was structured around the premise that his admitted acts of intercourse with the victims were consensual. Additionally, Defendant argues that, when he failed to pay the victims for engaging in sex as prostitutes, they retaliated, accusing him of rape when they did not receive remuneration for their respective sexual favors. Defendant's argument is essentially that the victims had a motive or reason to fabricate their rapes. Admittedly, defense counsel did not use the phrase "motive to lie" when he argued to the trial court in favor of admission of corroborating evidence that the women were prostitutes. However, we believe that his arguments that the participants had a difference of opinion as to remuneration for the sexual services performed pursuant to their "contract" were adequate to alert the trial court to the basis for Defendant's proffer. Cf. United States v. Nez, 661 F.2d 1203, 1206 (10th Cir.1981) ("motive to fabricate" theory of admissibility was not proffered to the trial court and tendered argument and testimony did not clearly relate to such a theory).

7. The State makes several arguments in support of the trial court's ruling. We are not persuaded by these arguments. The State first argues that Defendant offered only opinion evidence that the complaining witnesses were prostitutes. As we stated above, Defendant proffered evidence to the effect that T.A. admitted to the investigating detective that she had engaged in prostitution in the past and that T.S. had been arrested for prostitution after she got into a car with an undercover officer. The State has not established that the underlying evidentiary facts were not based on personal knowledge or that they otherwise constituted inadmissible opinion testimony. Cf. Martinez v. Metzgar, 97 N.M. 173, 175, 637 P.2d 1228, 1230 (1981) (statements of belief or opinion by lay witness not based on personal knowledge are not admissible evidence); SCRA 1986, 11-701 (Repl.1994) (limitations on lay witness opinion testimony). Thus, we reject the State's contention that the refused testimony was inadmissible opinion evidence.

8. Next, the State argues that Defendant made statements to the effect that the complaining witnesses were not acting as prostitutes when the incidents occurred. Defendant's statements as reflected in the record do not support the State's suggestion that Defendant acknowledged that T.A. and T.S. were not prostitutes. Instead, the record suggests the opposite. Defendant told Detective Arbogast that he believed T.A. had been forced out on the street by her pimps. He further told Detective Webb that T.S. told Defendant on the night of the incident that she was out prostituting. Also, Defendant testified at trial that both T.A. and T.S. agreed to perform sex acts with him for money.

9. The State further argues that under SCRA 1986, 11-413(A) (Repl.1994), evidence of the women's prior sexual behavior and their propensity for engaging in sexual relations is not relevant to their later consent. State v. Fish, 101 N.M. 329, 333, 681 P.2d 1106, 1110 (1984), cited by the State, does indeed support the proposition that evidence of a complaining witness's prior sexual activity does not of itself bear on the issue of her subsequent consent to engage in sexual activity. However, we have recognized that evidence that a rape victim previously engaged in prostitution "might well be relevant if it were contended that the intercourse with the defendant was itself an act of prostitution." State v. Romero, 94 N.M. 22, 26, 606 P.2d 1116, 1120 (Ct.App.1980). This is precisely the contention here. In any event, this point begs the question of whether evidence that T.A. and T.S. were prostitutes was material and relevant to an issue other than consent. See SCRA 11-413(A) (trial court to consider whether evidence of victim's past sexual conduct is material and relevant to the case). In this case, Defendant's proffer of evidence went beyond an attempt to show that the sexual acts were consensual. The proffer went to the issue of whether the victims had reason to fabricate the rape to avenge Defendant's failure or refusal to pay them.

10. The State also argues that evidence that T.A. and T.S. were prostitutes is not probative of their motive to lie about the alleged rapes. However, we believe this evidence would have tended to support Defendant's claim that the women agreed to engage in sexual activity with him for money and later alleged that Defendant raped them because he refused to pay. See Commonwealth v. Davis, 438 Pa.Super. 425, 652 A.2d 885, 889 & n. 3 (1995) (evidence of victim's convictions for prostitution would have strengthened defense that victim brought rape charges in retaliation for defendant's refusal to pay for agreed-upon act of prostitution); Johnson v. State, 332 Md. 456, 632 A.2d 152, 156-60 (1993) (evidence that in past victim exchanged sex for drugs would have supported defendant's argument that victim's rape allegation was vindictive response when defendant did not give bargained-for drugs following sex with defendant). We recognize that proof of the women's vocation is...