State of West Virginia v. Jack J. ( 2013 )

No. 11-1504 - State v. Jack J.
FILED
April 11, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Davis, J., dissenting:
The majority affirmed the defendant’s convictions for sexual offenses against
his girlfriend’s adolescent daughter. In doing so, the majority’s opinion affirmed the trial
court’s ruling prohibiting the defendant from presenting evidence that the alleged victim
previously had falsely accused at least twelve other people of sexual misconduct toward her.
Because I believe the defendant had a constitutional right, under the facts of this case, to
inform the jury that the alleged victim previously had made numerous, unfounded allegations
of sexual misconduct by other people, I dissent.1
The Defendant’s Constitutional Right to Confront His Accuser Was Violated
“Probably no one, certainly no one experienced in the trial of lawsuits, would
deny the value of cross-examination in exposing falsehood and bringing out the truth in the
trial of a criminal case.” Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068, 13
L. Ed. 2d 923 (1965). Indeed, “[t]he right to confront and to cross-examine witnesses is
1
I wish to be perfectly clear. This case was not about informing the jury that the
alleged victim actually had engaged in sexual relations with others. The sole issue in this
case was informing the jury that the alleged victim previously had made numerous,
unfounded sexual misconduct allegations against others.
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primarily a functional right that promotes reliability in criminal trials.” Lee v. Illinois, 476
U.S. 530, 540, 106 S. Ct. 2056, 2062, 90 L. Ed. 2d 514 (1986). For this reason, the United
States Supreme Court scrupulously has guarded against “restrictions imposed by law or by
the trial court on the scope of cross-examination.” Delaware v. Fensterer, 474 U.S. 15, 18,
106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985). In fact, the Confrontation Clause of the Sixth
Amendment of the United States Constitution guarantees a criminal defendant the right to
be confronted with the witnesses against him or her. Moreover, the Supreme Court has held
that the rights under the Confrontation Clause mean more than merely being allowed to
confront a witness physically. In Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989,
998, 94 L. Ed. 2d 40 (1987), the Court held that “[t]he Confrontation Clause provides two
types of protections for a criminal defendant: the right physically to face those who testify
against him, and the right to conduct cross-examination.” See also Douglas v. Alabama, 380
U.S. 415, 418, 85 S. Ct. 1074, 1076, 13 L. Ed. 2d 934 (1965) (“[A] primary interest secured
by [the Confrontation Clause] is the right of cross-examination.”). The critical importance
of cross-examination has been set out as follows:
Cross-examination 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’ perceptions and memory, but the
cross-examiner has traditionally been allowed to impeach, i.e.,
discredit, the witness. . . . A more particular attack on the
witness’ credibility is effected by means of cross-examination
directed toward revealing possible biases, prejudices, or ulterior
2
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.
Davis v. Alaska, 415 U.S. 308, 315-17, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974)
(internal quotations and citations omitted). See also Maryland v. Craig, 497 U.S. 836, 845,
110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666 (1990) (“The central concern of the Confrontation
Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting
it to rigorous testing in the context of an adversary proceeding before the trier of fact.”);
Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923 (1965) (“There
are few subjects, perhaps, upon which this Court and other courts have been more nearly
unanimous than in their expressions of belief that the right of confrontation and
cross-examination is an essential and fundamental requirement for the kind of fair trial which
is this country’s constitutional goal.”).
The decision in Davis illustrates the problem of denying a defendant the right
to cross-examine a key witness with relevant evidence that attacks the witness’ credibility.
The defendant in Davis was convicted of burglary and grand larceny. During the trial, the
court refused to allow the defendant to cross-examine a key prosecution witness about the
witness’ probation status following an adjudication of juvenile delinquency. The trial court
found that, under the state’s laws, such evidence was not admissible. The Supreme Court
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reversed the conviction upon finding the defendant’s rights under the Confrontation Clause
were violated:
In the instant case, defense counsel sought to show the
existence of possible bias and prejudice of Green, causing him
to make a faulty initial identification of petitioner, which in turn
could have affected his later in-court identification of petitioner.
We cannot speculate as to whether the jury, as sole judge
of the credibility of a witness, would have accepted this line of
reasoning had counsel been permitted to fully present it. But we
do conclude that the jurors were entitled to have the benefit of
the defense theory before them so that they could make an
informed judgment as to the weight to place on Green’s
testimony which provided a crucial link in the proof . . . of
petitioner’s act. The accuracy and truthfulness of Green’s
testimony were key elements in the State’s case against
petitioner. . . .
....
[P]etitioner sought to introduce evidence of Green’s probation
for the purpose of suggesting that Green was biased and,
therefore, that his testimony was either not to be believed in his
identification of petitioner or at least very carefully considered
in that light. Serious damage to the strength of the State’s case
would have been a real possibility had petitioner been allowed
to pursue this line of inquiry. In this setting we conclude that
the right of confrontation is paramount to the State’s policy of
protecting a juvenile offender. Whatever temporary
embarrassment might result to Green or his family by disclosure
of his juvenile record . . . is outweighed by petitioner’s right to
probe into the influence of possible bias in the testimony of a
crucial identification witness.
Davis, 415 U.S. at 317-19, 94 S. Ct. at 1110-12, 39 L. Ed. 2d 347. See Olden v. Kentucky,
488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988) (per curiam) (holding that trial
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court’s refusal to allow defendant to impeach victim’s testimony by cross-examining victim
about possible motive to lie deprived defendant of his right to confrontation); Delaware v.
Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986) (precluding
defendant from questioning witness about State’s dismissal of pending public drunkenness
charge against him and concluding that, “[b]y thus cutting off all questioning about an event
. . . that a jury might reasonably have found furnished the witness a motive for favoring the
prosecution in his testimony,” the trial court’s ruling violated the defendant’s rights under
the Confrontation Clause).
The decision in Davis illustrates the Supreme Court’s general guidelines for
enforcing the Confrontation Clause in the context of limiting cross-examination of a
testifying witness. Federal courts of appeal have addressed the more specific issue of
denying a defendant the right to cross-examine a sexual assault victim regarding her prior
unfounded allegations of sexual misconduct by others. In Redmond v. Kingston, 240 F.3d
590 (7th Cir. 2001), the defendant was convicted by a Wisconsin jury of sexually assaulting
a fifteen-year-old victim. During the trial, the defendant was denied the right to confront the
victim concerning a prior unfounded claim that she had been forcibly raped by another
person. In a habeas corpus appeal to the Seventh Circuit Court of Appeals, the defendant
argued that the trial court’s restrictions on his cross-examination of the victim violated his
rights under the Confrontation Clause. The Seventh Circuit agreed:
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The evidence . . . was not cumulative, or otherwise
peripheral, considering that testimony by [the victim] was
virtually the only evidence of Redmond’s guilt that the
prosecution had. . . . The only evidence that was relevant to her
credibility in Redmond’s case . . . was that within the preceding
year she had made up a story about being forcibly raped.
Whether or not she had had sex with the alleged rapist was
irrelevant, since Redmond was not prepared to try to prove that
she had not. For unexplained reasons the Wisconsin court of
appeals thought that if Redmond’s lawyer had been permitted to
ask [the victim] whether she had ever made a false charge of
forcible sexual assault, the door would have been opened to an
inquiry into whether she had had sex on that occasion at all. We
cannot think of any reason why. . .
And thus the court’s ruling, though ostensibly based on
the rape-shield statute, derives no support from that statute. The
statute protects complaining witnesses in rape cases (including
statutory-rape cases) from being questioned about their sexual
conduct, but a false charge of rape is not sexual conduct. . . . .
The false-charge “exception” to the rape-shield statute is not
really an exception, but rather a reminder of the limited meaning
of “sexual conduct” as defined in the statute. The only basis for
the court’s ruling was the general principle of the law of
evidence . . . that relevant evidence may be excluded if its
probative value is substantially outweighed by its prejudicial
(confusing, or cumulative) effect. When that unexceptionable
rule is applied as it was here to exclude highly probative . . .
evidence tendered by a criminal defendant that is vital to the
central issue in the case ([the victim’s] credibility), the
defendant’s constitutional right of confrontation has been
infringed. . . . .
Redmond, 240 F.3d at 592 (internal citations omitted). See also Sussman v. Jenkins, 636 F.3d
329, 357 (7th Cir. 2011) (applying Redmond and holding: “The jury reasonably could have
concluded that [the victim] was prone to use allegations of sexual abuse against father figures
as a means either of gaining their attention or as a means of punishing them for abandoning
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him.”); Kittelson v. Dretke, 426 F.3d 306, 322-23 (5th Cir. 2005) (following Redmond and
holding: “In a case that turned entirely on the credibility of the complaining witness, the state
courts’ restriction on Kittelson’s ability to challenge that credibility violated his
clearly-established confrontation and due process rights and cannot be considered
harmless.”).
In White v. Coplan, 399 F.3d 18 (1st Cir. 2005), a New Hampshire jury
convicted the defendant of three counts of sexual assault against two young girls. At trial,
the defendant was forbidden to offer evidence that both girls had previously made such
accusations against other persons. In his habeas corpus appeal to the First Circuit Court of
Appeals, the defendant argued that this restriction violated his Confrontation Clause rights.
The First Circuit agreed:
In this case, White’s evidence was not merely “general”
credibility evidence. . . .
The evidence in this case was considerably more
powerful. The past accusations were about sexual assaults, not
lies on other subjects; and while sexual assaults may have some
generic similarity, here the past accusations by the girls bore a
close resemblance to the girls’ present testimony–in one case
markedly so. In this regard the evidence of prior allegations is
unusual.
If the prior accusations were false, it suggests a pattern
and a pattern suggests an underlying motive (although without
pinpointing its precise character). . . . Many jurors would regard
a set of similar past charges by the girls, if shown to be false, as
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very potent proof in White’s favor.
This “if,” of course, is the heart of the matter. If the
witness were [sic] prepared to admit on the stand that a prior
accusation of similar nature was false, it is hard to imagine good
reason for excluding the evidence. Prior admitted lies of the
same kind in similar circumstances could powerfully discredit
the witness. . . .
....
White was accused of serious crimes–witness his
sentence–and virtually everything turned on whether the two
girls were to be believed. White had almost no way to defend
himself except by impeachment. . . . [C]ross-examination to
show prior similar accusations by the girls . . . could easily have
changed the outcome.
Evidence suggesting a motive to lie has long been
regarded as powerful evidence undermining credibility, and its
importance has been stressed in Supreme Court confrontation
cases. . . . In our case the nature of the motive may be unknown;
but if the prior accusations are similar enough to the present
ones and shown to be false, a motive can be inferred and from
it a plausible doubt or disbelief as to the witness’ present
testimony.
White, 399 F.3d at 24-26 (internal citations omitted). But see Jordan v. Warden, Lebanon
Corr. Inst., 675 F.3d 586 (6th Cir. 2012) (finding no constitutional violation); Piscopo v.
Michigan, 479 Fed. App’x. 698 (6th Cir. 2012) (same); Abram v. Gerry, 672 F.3d 45 (1st Cir.
2012) (same); United States v. Frederick, 683 F.3d 913 (8th Cir. 2012) (same); United States
v. Tail, 459 F.3d 854 (8th Cir. 2006) (same); Boggs v. Collins, 226 F.3d 728, 740 (6th Cir.
2000).
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In the instant case, the majority opinion found that the defendant failed to meet
the standard of proof required to introduce evidence that the alleged victim previously had
falsely accused other persons of sexual misconduct against her. The standard of proof
required to introduce such evidence was set out in State v. Quinn, 200 W. Va. 432, 490
S.E.2d 34 (1997). Under Quinn, the defendant had to establish by “strong and substantial
proof . . . the actual falsity of an alleged victim’s other statements[.]” Syl. pt. 2, in part, id.(emphasis added). I believe the defendant met his burden of proof under Quinn. I also
believe that the majority opinion superimposed a higher burden than what is required by
Quinn, and this heightened standard violated the defendant’s rights under the Confrontation
Clause.2
Under the decision in Quinn,
“[a] defendant who wishes to cross-examine an alleged
victim of a sexual offense about or otherwise introduce evidence
2
In determining whether restrictions on cross-examination violate the Confrontation
Clause, courts look at: (1) whether the excluded evidence was relevant; (2) whether there
were other legitimate interests outweighing the defendant’s interest in presenting the
evidence; and (3) whether the exclusion of evidence left the jury with sufficient information
to assess the credibility of the witness. United States v. Larson, 495 F. 3d 1094, 1103 (9th
Cir. 2007). See United States v. Roussel, 705 F.3d 184, 194 (5th Cir. 2013) (“The Sixth
Amendment’s Confrontation Clause is violated if the defendant [can] show that a reasonable
jury might have had a significantly different impression of the witness’s credibility if defense
counsel had been allowed to pursue the questioning.” (internal quotations and citation
omitted)); Ortiz v. Yates, 704 F.3d 1026, 1037 (9th Cir. 2012) (“The whole point of the
effective, permissible cross-examination protected by the Confrontation Clause is to diminish
the witness’ credibility with the jury and thereby render a conviction less likely.”).
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about other statements that the alleged victim has made about
being the victim of sexual misconduct must initially present
evidence regarding the statements to the court out of the
presence of the jury and with fair notice to the prosecution,
which presentation may in the court’s discretion be limited to
proffer, affidavit, or other method[.]
Syl. pt 3, in part, Quinn, 200 W. Va. 432, 490 S.E.2d 34. In the instant case the defendant’s
brief indicated he submitted the following proffer of the falsity of the victim’s prior
allegations against others:
1. The child, . . . , falsely reported that she was subjected
to inappropriate sexual contact by [C.M.], III and [C.M.], IV.
The child has admitted to a mental health professional that the
reports were false claiming that she made the reports because
she was confused by her mother. [D.H.H.R. Assessment dated
3/23/03 at p. 2]. An investigation was conducted by the Ohio
County Sheriffs office and by D.H.H.R. and found these reports
to be unsubstantiated.
2. The child, . . . , falsely reported that she was subjected
to inappropriate sexual contact by both [S.K.] and her husband,
[P.K.], or that she dreamed of inappropriate sexual contact with
[S.K.] and her husband, [P.K.]. The child has admitted to a
mental health professional that the reports were false. An
investigation by D.H.H.R. found the reports to be
unsubstantiated. There are numerous reports by [the child’s
mother] of dream sexual assaults including early reports by [the
victim] that the sexual assaults by Jack [J.] were dreams.
Moreover, the child has reported to [her mother] that she
dreamed that she was sexually assaulted by Lt. [C.] during his
interview of the child. [Taped interview of Jack [J.] by Lt. [C.],
interviews of [the mother], [M. M], and [M. M.]].
A. The Child and Adolescent Needs and
Strengths and Comprehensive Multisystem
Assessment dated 2/28/07 contains the following
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language:
“This placement was disrupted when [the
alleged victim] began to fantasize that her foster
parents were going to have sexual intercourse in
front of her and then involve her in the act. [The
alleged victim] also began to have sexual dreams
where her foster mother was having sex with
numerous men.” (P.3)
B. “Clear evidence of antisocial behavior
including but not limited to lying, stealing,
manipulating others, sexual aggression, violence
towards people, property or animals.” [P. 11].
C. “[The alleged victim] has fantasized that
her former foster parents were going to sexually
abuse her. She most recently was having dreams
that her foster mother was having sex with other
men (like she witnessed her mother doing) and
was going to also include [the alleged victim] in
the act.” (P. 18).
D. “Since [the alleged victim] has been in placement at
Pomegrante, she disclosed that while living in the home of her
biological mother, she sexually assaulted an infant, male cousin
by inserting a coat hanger in his penis. This happened in her
bedroom. When she couldn’t get the hanger out, the baby began
crying and she yanked it out, put his diaper back on, and went
downstairs.” (p.18).
3. The Section II, Designated Individual Case Reviewer report dated
8/7/2007 contains the following language:
A. “[The alleged victim] has fantasized that her former
foster parents were going to sexually abuse her. She most
recently was having dreams that her foster mother was having
sex with other men (like she witnessed her mother doing) and
was going to also include [the alleged victim] in the act.” (p.
13).
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B. The child reports sexually oriented
nightmares at the [K.] residence on pp. 18-19.
C. “According to information obtained
through this reviewer's interview with [S.K.], [the
alleged victim] had been having some bizarre
dreams, thoughts, and behaviors about two weeks
prior to her removal from the [K.] home. [The
alleged victim’s] bizarre behaviors allegedly
started when Mr. and Mrs. [K.] were sitting next
to each other on the couch in the living room with
[the alleged victim] also being in the room with
them. [The alleged victim] reportedly began to get
very nervous and anxious that [Mr. and Mrs. K.]
were going to have sex and make her
watch/participate. Around the same time, [the
alleged victim] began to report having dreams that
involved [S.K.] having sex with numerous men.
[The alleged victim] went to school one day and
told school personnel that she had seen Mr. [K.]
in his underwear. The school called [S.K.] regard
to this. Sally adamantly denied that this could
have happened as her husband is a long-distance
truck driver and is only home on weekends. She
was positive [the alleged victim] had never seen
him dressed inappropriately.” (p. 21).
4. The child, has reported that her cousin, . . . , inserted
a hair brush into her vagina. The report is memorialized in the
medical records of Dr. Romano for 7/18/01 with a report of “no
obvious evidence of genital trauma.” Further details of the
report provided by [relatives of the alleged victim]; report
mentioned in D.H.H.R. Assessment dated 3/23/03 at p. 2.
5. The child, . . . , has falsely reported that she was
sexually abused by [John G.]. [The alleged victim] has admitted
that the report was false. [D.H.H.R. report of September
14,2009 at pages 1 & 5]. An initial recorded interview at
Harmony House resulted in the alleged victim stating that the
report was false. In a later unrecorded interview by Linda
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Reeves, the child reportedly claimed that the report was true.
[J.G.] and an eyewitness both deny that the report is true. In an
agreed upon in camera interview by the Court, [the alleged
victim] stated that the report was true while the eyewitness
denied the truth of the report.
6. The child, . . . , has falsely reported that she was
sexually abused by various men on at least three occasions.
[D.H.H.R. report of September 14, 2009 at pages 3 & 5].
7. The child, . . . , has falsely reported that she was
sexually abused by [P.K.], a grandfather and a principal.
[D.H.H.R. report of September 14, 2009 at page 4).
8. The child has reported that she saw her former foster
sibling . . . naked. The child later denied that she saw [her
former foster sibiling] naked or that she made the report.
[February 9, 2009 report of Solutions Outpatient Services].
9. The alleged victim has reported that she saw [D.B.]
naked. [S.K.’s notes on page 1]. The alleged victim has also
reported that [D.B.] had intercourse with her. [S.K.]’s notes
for Nov. 22, 2006; Pomegrante Report p. 9/33]. The report that
[W.] and [D.B.] had sex with [the alleged victim] touched [sic]
upon in the interview by Linda Reeves. The alleged victim
denied that [D.B.] did anything to her except spanking her in
that interview. [Hogan interview at pp. 10 & 12.].
10. The alleged victim has reported that she has had sex
with her cousin . . . and was caught in the act. [Pomegrante
Report p. 27/33].
(Emphasis added).
The above evidence submitted to the trial court shows that the victim alleged
sexual misconduct against: (1) C.M., III, and C.M., IV, which was found to be
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unsubstantiated by a local sheriff and DHHR; (2) S. K. and P. K., which was found to be
unsubstantiated by DHHR; (3) a cousin, which was found to be medically unsubstantiated;
(4) social worker J.G., which was later retracted, then reaffirmed, then retracted, then
reaffirmed; (5) three unnamed men; (6) a foster sibling W.; (7) D.B.; and (8) a second cousin
In total, the defendant presented evidence that the alleged victim has accused at least twelve
different people of engaging in sexual misconduct with her.
The majority opinion held that the defendant failed to prove that the twelve people did
not engage in sexual misconduct with the alleged victim. Such a finding is disturbing. The
defendant in this case was able to submit credible evidence, that was documented in DHHR
reports, that law enforcement and DHHR had investigated many of the allegations by the
alleged victim and found them unsubstantiated.
To the extent that the defendant’s proffer was insufficient, the only way that
he could satisfy the majority’s interpretation of the “strong and substantial proof”
requirement would be to provide the trial court with judgments of acquittal of the other
persons accused of sexual misconduct by the alleged victim. This heightened standard is
unconscionable and violated the defendant’s constitutional right of confrontation.3 I do not
3
The unconscionability of this heightened standard is found in the fact that the
prosecutor did not bring charges against any of the other persons falsely accused by the
alleged victim–thus it was impossible for the defendant to submit judgments of acquittal.
14
make this assessment lightly. The Fourth Circuit reviewed this Court’s opinion in Quinn in
a habeas corpus proceeding. Although the Fourth Circuit affirmed Quinn, it did so by
expressly noting that it did “not address the broader issue of whether West Virginia’s
standard of strong and substantial proof of falsity is objectively reasonable in light of relevant
Supreme Court precedent.” Quinn v. Haynes, 234 F.3d 837, 847 (4th Cir. 2000). I submit
that the standard of “strong and substantial proof,” as interpreted in this case by the majority
opinion, is not objectively reasonable under the decisions of the United States Supreme
Court. The defendant in this case sought “to expose to the jury the facts from which [the]
jurors . . . could appropriately draw inferences relating to the reliability of the [victim].”
Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986)
(internal quotations and citation omitted). See also Berger v. California, 393 U.S. 314, 315,
89 S. Ct. 540, 541, 21 L. Ed. 2d 508 (1969) (“[O]ne of the important objects of the right of
confrontation was to guarantee that the fact finder had an adequate opportunity to assess the
credibility of witnesses.”). However, because the trial court prohibited cross-examination
of the alleged victim concerning prior unfounded allegations of sexual misconduct by others,
“[t]he jury was essentially misled, by the empty gesture of cross-examination, to believe that
the defense attorney had been permitted to use all the tools at his disposal to expose
weaknesses in [the alleged victim’s] testimony.” Van Arsdall, 475 U.S. at 688, 106 S. Ct.
at 1440, 89 L. Ed. 2d 674.
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In the final analysis, I agree with the dissenting opinion in Abram v. Gerry, 672
F.3d 45(1st Cir. 2012):
The specter of an adult, particularly one in a position of trust . . .,
sexually abusing [a] minor [child] is enough to incense even the most
equanimous person and to wish upon such a miscreant the full retributive
weight of the law. But there lies the catch: the law. We live in an ordered
society, and to keep it ordered for the benefit of the whole of society, we are
bound to apply the law, not just to do what we believe the abominable person
charged may justly deserve.
Abram, 672 F.3d at 53 (Torruella, J., dissenting). In view of the foregoing, I respectfully
dissent.
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