State v. Romero , 94 N.M. 22 ( 1980 )

OPINION

ANDREWS, Judge.

Defendant was convicted of criminal sexual penetration (CSP) in the second degree in violation of § 30-9-ll(B), N.M.S.A.1978, and appeals, raising four issues: (1) whether the trial court erred in refusing to dismiss the indictment under which he was convicted in view of the fact that another indictment charging the same offense had been issued earlier; (2) whether the trial court erred in refusing to instruct the jury on the elements of the lesser included offense of CSP in the third degree; (3) whether the trial court erred in refusing to allow the prosecuting witness to be questioned as to her prior sexual behavior; and (4) whether the trial court erred in refusing to admit evidence of the psychological condition of the prosecuting witness and in refusing to order her to submit to a psychiatric examination. Although some delicate and novel questions of law are presented by the case, we find that the trial court correctly decided each issue and therefore affirm the conviction.¹

It is undisputed that defendant had sexual intercourse with the victim. At trial, defendant attempted to show that the victim had consented to the intercourse while the victim maintained that he had forced her to comply by threatening her with a knife.

Reindictment of the Defendant on the Same Charges

Defendant, relying on dictum in State v. Dehler, 257 Minn. 549, 102 N.W.2d 696 (1960), asserts that the trial court erred in refusing to dismiss an indictment on the grounds that he had already been indicted for the same crime on the same facts. We decline to follow Dehler.

The better (and more common) rule was stated by Judge Learned Hand in United States v. Strewl, 99 F.2d 474 (2d Cir. 1938), cert. denied, 306 U.S. 638, 59 S.Ct. 489, 83 L.Ed. 1039 (1939), where it was concluded that either of two indictments charging the same offense could serve as the basis for a conviction:

The error did not affect Strewl’s “substantial rights” in the slightest degree; it was the merest formality whether the proceedings should be carried on under one document or the other, or on which paper the formal entries should be made. (Id. at 477.)

Hand was dealing with a case in which the indictment under which the defendant was formally tried was legally defective; and so, with greater reason, we may allow a conviction to stand where the defendant was found guilty under one of two legally sufficient indictments.

As noted in Strewl, where more than one indictment charging a crime has issued against a defendant, care must be taken in order to prevent the defendant from being exposed to double' jeopardy; but Strewl contended that this was most properly done by quashing the first indictment. In the case at hand, where the State entered a nolle prosequi of the first indictment before jeopardy had attached on either, there can be no question of double jeopardy, and the defendant was not prejudiced in any way.

Failure to Instruct on Lesser Included Offense

Defendant’s second point is that the court erred when it refused to instruct the jury on CSP in the third degree, a lesser included offense which is distinguished from second degree CSP by the absence of any of the five aggravating factors listed in § 30-9 — 11(B), in this case § 30-9-ll(B)(5), the perpetrator being armed with a deadly weapon.

No instruction should be given where there is no evidence to suggest that the lesser offense was the highest degree of the crime committed. State v. Vigil, 86 N.M. 388, 524 P.2d 1004 (Ct.App.), cert. denied, 86 N.M. 372, 524 P.2d 988 (1974); State v. Alderete, 91 N.M. 373, 574 P.2d 592 (Ct.App.1977), cert. denied, 91 N.M. 491, 576 P.2d 297 (1978). In this case, there is no view of the evidence adduced which would support the jury in finding the defendant guilty of third degree CSP which would not also require- the jury to find him guilty of second degree CSP; thus the requested instruction was properly refused.

The prosecution’s theory of the case was that the victim was compelled to submit to the defendant when he threatened to use the knife on her — no evidence was presented which suggests that the victim was coerced in any other manner. The jury could not have concluded that third degree CSP had been committed without speculating as to the existence of a fact not in evidence, the presence of an alternative means of coercion, and such a conviction would have to be overturned. Smith v. State, 89 N.M. 770, 558 P.2d 39 (1976).

Evidence as to Prior Sexual Behavior of the Victim

Defendant, by proper motion pursuant to § 30-9-16(B), sought the court’s permission to present evidence to the effect that the victim had been sleeping with her boyfriend prior to the incident with defendant and had been engaging in prostitution at the same time. The trial court properly refused to allow such evidence to be presented.

In 1975, the New Mexico legislature enacted § 30-9-16, N.M.S.A.1978, which severely limits the opportunity of a defendant charged with certain sexual offenses to impeach the prosecutrix’ testimony by presenting evidence as to her prior sexual behavior:

A. As a matter of substantive right, evidence of the victim’s past sexual conduct, opinion evidence thereof or of reputation for past sexual conduct, shall not be admitted unless, and only to the extent that the court finds, that evidence of the victim’s past sexual conduct is material to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

In State v. Herrera, 92 N.M. 7, 582 P.2d 384 (Ct.App.), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978), this Court upheld the statute and ruled that prior sexual activity did not, of itself, bear on the consent of the prosecutrix. Since the defendant made no showing that the victim’s past sexual contact with her boyfriend had any bearing on the consent issue, we need only determine whether such a connection may be inferred if the defendant’s claim that the victim was a prostitute was supportable.

As in Herrera, we find no reason to suppose that this factor is probative on the issue of consent; at first blush it would seem to indicate that the victim was one whose calling would tend to expose her to an unusually high risk of being raped. Such information might well be relevant if it were contended that the intercourse with the defendant was itself an act of prostitution, but here it is entirely irrelevant.

The probative value of such evidence must be weighed against its prejudicial effect, and it is clear that its prejudicial effect is great. It is not the province of the jury to pass moral judgment on the victim, and the court should remove the temptation to do so wherever possible.

In addition to its effect in insulating the jury from prejudicial material, § 30-9-16 serves another important purpose, that of protecting the victim of the crime against unwarranted invasions of her privacy. While there is little in the public record to show the intention of the New Mexico legislature in enacting the section, it is clear from the scholarly commentary on similar bills in other jurisdictions that § 30-9-16 was intended to encourage the reporting of rapes by minimizing intrusive inquiry into the personal affairs of the victim. See, e. g., note, California Rape Evidence Reform: An Analysis of Senate Bill 1687, 26 Hastings L.J. 1551 (1975).

Evidence as to the Psychological Condition of the Victim

Finally, defendant contends that the trial court erred in refusing to admit evidence which, it is claimed, would have tended to show that the fact that the victim was hysterical when she was found by police after the incident was due to her prior mental condition rather than any assault by defendant, and in refusing to order the prosecutrix to undergo a psychiatric examination. We think that the trial court acted properly because the introduction of the evidence and the examination of the victim would have unnecessarily invaded the victim’s right to privacy.

The defendant was allowed to introduce uncontroverted evidence which tended to establish several facts bearing on the mental condition of the victim; that she had recently been cast off by a boyfriend; that she had recently undergone voluntary treatment for alcohol abuse; and that she had been very depressed and occasionally suicidal prior to the incident. This questioning covered a period of a year prior to the incident.

Defendant first objects to the trial court’s refusal to hear testimony of a psychologist who had treated the victim for various emotional problems and whose reports on the victim had already been introduced into evidence. The exclusion of this testimony needs no justification other than to note that the court is empowered by Rule 403 of the New Mexico Rules of Evidence to exclude material which is merely cumulative.

A more difficult question is raised by defendant’s second point, that the court should have permitted defendant to subject the victim to a psychiatric examination. Under Rule 29 of the New Mexico Rules of Criminal Procedure, a criminal defendant has the right of access to material which has a bearing on the offense charged or on a defense thereto. It must be noted, however, that this right to discovery exists only “[u]nless otherwise limited by order of the court”. N.M.R.Crim.P. 29(b). As was shown in State v. Herrera, supra, such an order may issue under the power given to the court by Rule 31 to:

[M]ake any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, undue burden . . . . The order may in-' elude one or more of the following restrictions: (1) that a deposition requested not be taken.

We cannot agree that the trial court acted improperly in refusing to require the victim to undergo a psychiatric examination. While some authorities have taken the position that psychological examinations should be routinely ordered in rape cases, see, e. g., McCormick, Handbook on the Law of Evidence, § 45, at 95-96 (2d Ed. 1972), we feel that this rule is based on outmoded notions of the instability and duplicity of women in general and, as such, should be discarded altogether. See O’Neale, Court Ordered Psychiatric Examination of a Rape Victim in a Criminal Rape Prosecution — or How Many Times Must a Woman be Raped?, 18 Santa Clara L.Rev. 119 (1978).

By enacting § 30-9-16, the New Mexico legislature has shown that it is the strong public policy in this state to prevent unwarranted intrusions into the private affairs of the victims of sex crimes. It would be inconsistent for this Court to uphold this policy as regards inquiry into the prior sexual behavior of the prosecutrix but to refuse to protect her from a more profoundly intrusive probing of her psyche. The anomaly of such a result is clear when one considers that a reasonably thorough psychiatric examination would necessarily entail inquiry into the sexual feelings and experiences of the victim. Insofar as a psychiatric examination probes the past sexual behavior of the victim, it is within the terms of § 30-9-16. If the psychiatric evaluation does not make such inquiry, it is presumptively invalid — the defendant bears a heavy burden in establishing that any reliable indication of the prosecutrix’ veracity concerning or behavior during a sexual contact could be obtained without such questioning.

We conclude, therefore, that while court ordered psychiatric examination of the prosecuting witness in a sex crime may occasionally be proper,, such an order may not issue unless it is shown that the probative value of the evidence reasonably likely to be obtained from the examination outweighs the prejudicial effect of such evidence and the prosecutrix’ right of privacy. Such a showing could not be less than that required for the admission of evidence as to past sexual behavior under § 30-9-16 and State v. Herrera, supra.

In the instant case, the probative iTalue of such evidence is small. The salient features of the victim’s psychological condition were shown by other evidence, and the State did not attempt to adduce any evidence which called that evidence into question. We certainly cannot hold as a matter of law that defendant was entitled to conduct the examination.

Since we find no error, the judgment of the trial court is affirmed.

IT IS SO ORDERED.

HERNANDEZ, J., concurs. SUTIN, J., concurs in part and dissents in part.

1 . In this appeal, defendant fails to make reference to the facts on the tapes on which he relies for the argument on appeal. Although N.M.Crim.App. 501(a)(4) requires citation to the part of the transcript relied on if an issue is to be considered on appeal, State v. Reese, 91 N.M. 76, 570 P.2d 614 (Ct.App.1977), inasmuch as this rule violation as to all issues would result in this defendant not having the merits of his appeal heard, we will consider the appeal. Olguin v. State, 90 N.M. 303, 563 P.2d 97 (1977).