Appeal from Superior Court of King County. Docket No: 93-1-07922-9. Date filed: 04/04/94. Judge signing: Hon. Deborah D. Fleck.
Authored by Ann L. Ellington. Concurring: Faye C. Kennedy, William W. Baker
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Larry Williams was convicted of rape in the second degree. On appeal, he argues that the court erred in excluding evidence that victim EM had consensual intercourse with her boyfriend approximately two hours after the alleged rape. Williams also claims ineffective assistance because counsel failed to subpoena a doctor who examined EM and found no physical evidence of rape, and instead proposed a missing witness instruction for the doctor, which was denied. Because the evidence of subsequent sexual contact was properly refused, and Williams fails to establish ineffective assistance, we affirm.
The State charged Williams with rape by forcible compulsion against EM. EM testified that Williams forced her to have vaginal, anal, and oral sex and then threatened to kill her and her boyfriend if she told anyone.
Williams maintained that the intercourse had been consensual.
Williams sought to admit evidence that EM had consensual intercourse with her boyfriend less than two hours after the rape, arguing that the evidence was relevant to show consent, bias, and veracity. The court excluded the evidence, finding that what little relevance the post-rape intercourse had was outweighed by prejudice to the truth-finding process, and noting that exclusion was consistent with the rape shield statute.
Dr. Benton examined EM but found no signs of forced penetration or physical injury. Defense counsel was aware of these findings but did not call Benton as a witness. Counsel did, however, request a missing witness instruction because the State did not call Benton. The court ruled that Williams was not entitled to a missing witness instruction, noting that Benton was available to the defense and that the lack of physical injury was not dispositive of whether a rape had occurred. This ruling is not challenged on appeal.
Williams contends that the court erred by relying on the rape shield statute to exclude evidence of post-rape intercourse because Williams was not impugning EM's character generally, but was only citing to a specific instance of conduct that bolstered his consent theory. Williams also contends that the limitation on use of "past sexual behavior" in the rape shield statute applies only to pre-incident sexual behaviors and not pre-trial sexual behaviors. *fn1
But even if we agreed that the statute applies only to pre-incident conduct (which we do not), the analysis under ER 403 is essentially the same. We first note that the trial court based its ruling on relevance and prejudice, observing that exclusion was "consistent" with the rape shield statute. As to the balancing of probative value versus prejudice, we agree with the trial court, which categorized any relevance of the proffered evidence as "exceedingly small" and "if relevant, it is so marginally relevant that in the weighing of it[,] I would not admit it." Moreover, regardless of whether the rape shield statute explicitly applies, the court may rely on the policies underlying the statute when exercising its discretion under ER 403. Cf. State v. Hudlow, 99 Wash. 2d 1, 16, 659 P.2d 514 (1983) (policy to prevent acquittals based on prejudice against victim's sexual practices).
Admission of evidence is reviewed for an abuse of discretion. State v. Summers, 70 Wash. App. 424, 435, 853 P.2d 953, rev. denied, 122 Wash. 2d 1026, 866 P.2d 40 (1993) (rape shield statute); State v. Luvene, 127 Wash. 2d 690, 706-07, 903 P.2d 960 (1995) (ER 401, 403). Discretion is abused only if exercised on untenable grounds or for untenable reasons. Coggle v. Snow, 56 Wash. App. 499, 507, 784 P.2d 554 (1990). The court did not abuse its discretion here because admission could have impaired the truth finding process. See Hudlow, 99 Wash. 2d at 13-14.
In State v. Black, 109 Wash. 2d 336, 342-48, 745 P.2d 12 (1987), the court held scientific evidence of rape trauma syndrome inadmissible, noting that there was no typical response to a rape and that some rape victims displayed no visible symptoms. Any marginal relevance of post-rape sexual conduct would be similarly outweighed by the prejudice of stereotypes and misconceptions about "typical" reactions to rape, and by the distraction of the nature of EM's relationship with her boyfriend. While in some circumstances such evidence might be relevant, here Williams sought only to speculate--to argue that EM's conduct was improbable. Since what is "probable" in such circumstances is not within the common understanding of juries, the court correctly concluded the potential prejudice outweighed any marginal relevance.
Moreover, because Williams could argue his fabrication theory without reference to the post-incident relations, the exclusion did not deprive him of a fair trial. Cf. Hudlow, 99 Wash. 2d at 18 (exclusion did not prevent defendants from testifying to their version of events). ...