State v. DeLawder

OPINION BY: ORTH

On 30 June 1972 Lee Franklin DeLawder was found guilty by a jury in the Circuit Court for Montgomery County of carnal knowledge of a female under the age of 14 years. A 15 year sentence was imposed. The judgment was affirmed on direct appeal.

In affirming the judgment on direct appeal, we held that the trial court did not err in sustaining objections made to questions attempting to show that the prosecuting witness had sexual intercourse with other men on other occasions. The general rule is that because consent is not an issue in a carnal knowledge prosecution, evidence that the prosecutrix had prior intercourse with men other than the accused, or that her reputation for chastity was bad is immaterial when offered as an excuse or justification, and so is inadmissible for that reason.

As Davis, was decided subsequent to our decision, we must determine whether it affects the validity of DeLawder's conviction.

In Davis, the Supreme Court of the United States reviewed the reach of the Confrontation Clause of the Sixth Amendment to the federal Constitution. "The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him.' This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas. Confrontation means more than being allowed to confront the witness physically. 'Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.' "Cross-examination", the Court observed, "is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness's perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness." A witness may be discredited by a general attack on his credibility by introducing evidence of a prior criminal conviction of that witness. "By so doing the cross-examiner intends to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony." A witness may also be discredited by a more particularized attack. This is done by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. "The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.' The Supreme Court has recognized "that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. The denial of effective cross-examination "'would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.'"

Davis was convicted of burglary and grand larceny in a state court at a trial in which the court on motion of the prosecution issued a protective order prohibiting the questioning of Richard Green, a key prosecution witness, n1 concerning Green's adjudication as a juvenile delinquent relating to a burglary and his probation status at the time of the events as to which he was to testify. The motion was granted in reliance on a state rule and statute which preserved the confidentiality of juvenile adjudications of delinquency. The evidence against Davis was entirely circumstantial and the defense wanted to point out to the jury that Green was on probation for robbery, suggesting the possibility that he acted either out of fear or concern for his probationary status. The defense made clear that it did not intend to use Green's juvenile record to impeach his credibility generally, but only as necessary to examine him for any possible bias and prejudice. "Not only might Green have made a hasty and faulty identification of [Davis] to shift suspicion away from himself as one who robbed the Polar Bar, but Green might have been subject to undue pressure from the police and made his identification under fear of possible parole revocation." The trial court rejected even this limited use of Green's adjudication, but defense counsel did his best to expose Green's state of mind at the time he discovered the safe. Green, however, made a flat denial to questions whether he was upset by the fact that the safe was found on his property, whether he felt the authorities might suspect him, and whether he felt uncomfortable about it. Asked, "Did you suspect for a moment that the police might somehow think you were involved in this?", he replied, "I thought they might ask a few questions is all." It was elicited that Green was questioned about the incident by the investigating officers. He was then asked, "Had you ever been questioned like that before by any law enforcement officers?" and answered, "No." The prosecution objected and the court sustained the objection. Thus "[w]hile counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial."

The Alaska Supreme Court refused to reach the issue of whether the State's policy of preserving the anonymity of a juvenile offender denied Davis his Sixth Amendment right of confrontation. It affirmed the conviction on the grounds that the scope of cross-examination allowed was adequate to develop the issue of bias and convey it to the jury. The Supreme Court did not accept this. It said,

"On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a 'rehash' of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness."

It held that disallowance of the defense's attempt to show bias of the prosecution's crucial witness by cross-examination concerning the witness' juvenile record violated Davis's Sixth and Fourteenth Amendment rights.

DeLawder's counsel made clear from the onset of the case that the defense strategy would be to discredit the prosecuting witness by revealing her possible biases, prejudices, or ulterior motives in alleging that DeLawder carnally knew her in the early morning of 20 January 1972. This strategy would be pursued by the tactic of proving that at the time of the alleged incident, she thought she was pregnant by someone else and claimed that DeLawder raped her because she was afraid to tell her mother she voluntarily had sexual intercourse with others. To show that she thought she was pregnant at the time of the alleged encounter with DeLawder, it would be necessary to establish that she had engaged in prior acts of sexual intercourse. The proposed strategy was first disclosed when the State offered a motion in limine immediately before the start of the retrial. The motion was that the defense refrain from any questions or any remarks in opening or closing statement as to the reputation of the prosecutrix for chastity. Defense counsel objected to the grant of the motion:

We cannot speculate, more than the Court could in Davis, as to whether the jury, as the sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to present it fully. But we do conclude, as the Court concluded in Davis, that the jurors were entitled to have the benefit of the defense theory before them so they could make an informed judgment as to the weight to place on the prosecutrix's testimony which provided "a crucial link in the proof . . . of [the accused's] act." The accuracy and truthfulness of the prosecutrix's testimony, perhaps even more so than was the case with the witness in Davis, were key elements in the State's case against DeLawder. In fact, its case depended entirely on her veracity. The claim of bias, prejudice or ulterior motive which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of the prosecutrix's possible fear of her mother. The defense was unable to make a record from which to argue to the jury why the prosecutrix might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. It seems clear to us, in the light of Davis, that defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. By being prevented from so doing DeLawder was denied the right of effective cross-examination, a constitutional error of the first magnitude which no amount of showing of want of prejudice would cure.