Lonnie K. Stephens v. Charles B. Miller, Warden, and Attorney General of the State of Indiana

13 F.3d 998, 1994 U.S. App. LEXIS 176, 1994 WL 2534

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 6, 1994
• Docket: 91-1690
• Status: Published

Opinions

BAUER, Circuit Judge.

This ease requires us to decide whether Lonnie K. Stephens was deprived of his constitutional right to testify when an Indiana court applied Indiana’s Rape Shield Statute to exclude at trial certain statements that Stephens claims he made during the events that led to his conviction. Stephens was convicted of attempted rape and the Indiana Supreme Court affirmed his conviction. Stephens v. State, 544 N.E.2d 137 (Ind.1989). Stephens filed a petition for writ of habeas corpus in the federal district court pursuant to 28 U.S.C. § 2254. The district court denied his petition. Stephens v. Morris, 756 F.Supp. 1137 (N.D.Ind.1991). Stephens appeals.

I.

On the night of March 17, 1987, Lonnie Stephens went to Melissa. Wilburn’s trailer. At trial, Stephens and Wilburn told vastly different stories about what happened after Stephens arrived. The , events of that evening began after Stephens and David Stone finished drinking. Stone drove Stephens to Wilburn’s trailer and dropped him off. Stephens and Wilburn knew each other as casual acquaintances. Wilburn was asleep on the couch when Stephens arrived, and her sister and brother-in-law were asleep in the guest room. Wilburn’s son and nephew were asleep in another bedroom.

According to Wilburn, she did not lock the door before she fell asleep. She awoke and found Stephens standing in front of the door inside the trailer. Stephens sat down next to Wilburn and attempted to kiss her. Wilburn told Stephens of the others who were asleep in the trailer and called out for her sister. Stephens hesitated but, after a moment, continued his advances. Wilburn yelled one more time for her sister, but her sister again did not respond. Stephens went to the bathroom and, when he returned, angrily told Wilburn that she lied to him about the others being in the trailer. He threw her down on the couch and covered her mouth with his hand to prevent her from screaming. Stephens pressed his body against Wilburn’s, undid her bra, and tore a button from her shirt. Next, Stephens reached down to undo his pants. Wilburn pushed Stephens off of her and ran screaming into the bedroom occupied by her sister and brother-in-law.

Stephens ran out the door to the nearby home of his friends, Jeff and Lisa Strait. Stephens told the Straits that he had been at a local Pic a Pac Store. Later, Stephens told that same story to the police officer who investigated the incident. Stephens directed Stone to say, if he were asked, that Stone dropped him off at the Pic a Pac. At trial, Stone first repeated the Pic a Pac story, then admitted on cross-examination that he dropped Stephens off at Wilburn’s trailer. Stone also admitted that he told the Pic a Pac story pursuant to directions from Stephens'.

Stephens testified at trial and painted a quite different picture of the evening’s events. He claimed that Wilburn invited him into her trailer after Stone dropped him off. Stephens stated that when he entered the trailer, Wilburn’s son was asleep on the couch. Stephens carried him to one of the bedrooms and Wilburn explained that her sister, brother-in-law, and their child were also asleep in the bedroom. All three slept through Stephens’ visit to the trailer. Stephens and Wilburn talked in the living room, and Wilburn told Stephens he could kiss her. One thing led to another, according to Stephens, until the two of them ended up on the floor as two consenting adults engaged in sexual intercourse.

Stephens stated in an offer of proof that the two of them were “doing it doggy fashion” when he said to her “[d]on’t you like it like this? ... Tim Hall said you did.” Tr. 1278. Stephens also asserted that he said something to Wilburn about “switching partners.” Tr. 1276. The trial court excluded these statements pursuant to the Indiana Rape Shield Statute. Ind.Code § 35-37-4— 4.¹ The court did, however, allow Stephens to testify that he said something to Wilburn that angered her and led her to fabricate the attempted rape charge. Stephens testified that after he made these statements, Wilburn ordered him to stop and leave. Stephens claimed that he did as she asked, got dressed, and left.

The jury returned a guilty verdict against Stephens on the attempted rape charge. The Indiana Supreme Court affirmed his conviction and the district court denied his petition for writ of habeas corpus.

II.

Stephens contends that the Indiana trial court erred when it excluded the proffered testimony. First, he argues that the court misapplied the Indiana Rape Shield Statute. Second, Stephens claims that the court’s application of the Indiana Rape Shield Statute violated his constitutional right to testify in his own defense. Finally, Stephens argues that the excluded testimony should be admissible as the res gestae of the attempted rape.

A. Application of the Indiana Rape Shield Statute under Indiana Law

Stephens’ first contention need not detain us long. He argues that we should grant his petition because the Indiana trial court and the Indiana Supreme Court misapplied the Indiana Rape Shield Statute under Indiana law. That may be, but whether the Indiana courts correctly applied their own law is, by itself, no concern of ours. Federal habeas actions do not lie for mere errors of state laws. Estelle v. McGuire, — U.S. -, -, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); Reed v. Clark, 984 F.2d 209, 210 (7th Cir.1993). We ask only whether Indiana denied Stephens his rights under the Constitution, laws, or treaties of the United States. Estelle, — U.S. at -, 112 S.Ct. at 480; Reed, 984 F.2d at 210. We therefore will not consider the merits of his claim that the Indiana courts misapplied their own law.

B. Constitutionality of the Indiana Rape Shield Statute as Applied Here

Stephens does not challenge the facial constitutionality of the Indiana Rape Shield Statute, and for good reason. In Moore v. Duckworth, 687 F.2d 1063 (7th Cir.1983), we upheld the facial validity of the Indiana Rape Shield Statute. Still, although the principle of rape shield statutes has been held constitutional, both by this court and the Supreme Court in Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991), the constitutionality of the law as applied remains subject to examination on a case by case basis. Sandoval v. Acevedo, 996 F.2d 145, 149 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 307, 126 L.Ed.2d 255 (1993). Stephens claims that Indiana unconstitutionally applied its Rape Shield Statute in this case. His primary argument is that Indiana denied him his constitutional right to testify in his own defense when it did not allow him to tell his version of the events, in their entirety and in his own words, about what happened on March 17, 1987 at Melissa Wilburn’s trailer. Stephens argues that the Indiana court violated the federal constitution when it excluded his statements about “doggy fashion” sexual intercourse and partner switching.

The Supreme Court has interpreted the Constitution to provide a criminal defendant, like Stephens, with an implicit right to testify in his or her own defense. United States v. Dunnigan, — U.S. -, -, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993); Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). For purposes of state criminal proceedings, like this one, the right to testify arises out of the Fourteenth Amendment’s Due Process Clause, which provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law,” U.S. Const. Amend. XIV. The right to testify is also found in the Sixth Amendment’s guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor.” U.S. Const. Amend. VI. It is also a “necessary corollary” of the constitutional guarantee against compelled testimony. Rock, 483 U.S. at 52, 107 S.Ct. at 2709. This “necessary corollary” is derived from the Fifth Amendment’s mandate that “[n]o person ... shall compelled in any criminal case to be a witness against himself.” U.S. Amend. V.

A criminal defendant’s right to testify, however, is not unlimited and may bow to accommodate other legitimate interests in the criminal trial process. Lucas, 500 U.S. at -, 111 S.Ct. at 1746; Rock, 483 U.S. at 55, 107 S.Ct. at 2711. There is, for example, no constitutional right to commit perjury. Dunnigan, — U.S. at -, 113 S.Ct. at 1117. Furthermore, numerous procedural and state evidentiary rules control the presentation of evidence and do not offend a criminal defendant’s right to testify. Rock, 483 U.S. at 55 n. 11, 107 S.Ct. at 2711 n. 11; Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973).

Rape shield statutes fall into the category of procedural and evidentiary rules referred to in Rock and Chambers. Rape shield statutes, like Indiana’s, represent the valid legislative determination that victims of rape and, as here, attempted rape deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy. Lucas, 500 U.S. at -, -, 111 S.Ct. at 1743, 1746. These statutes also protect against surprise to the prosecution. Id Restrictions imposed by rape shield statutes, especially as they relate to a criminal defendant’s right to testify, may not, however, be arbitrary or disproportionate to the purposes they are designed to serve. Id.; Rock, 483 U.S. at 56, 107 S.Ct. at 2711. Rather, the state is required to evaluate whether the interests served by the rule justify the limitation imposed on the criminal defendant’s right to testify. Id

In this ease, Stephens was allowed to give his entire version of the facts, except for the excluded evidence. The Indiana court allowed Stephens to testify in front of the jury that he said something to Wilburn that angered her and caused her to fabricate the attempted rape charge. The court did nothing arbitrary or disproportionate to the purposes the Indiana Rape Shield Statute was designed to serve when it excluded the “doggy fashion” and “partner switching” statements. The Indiana Rape Shield Statute was enacted to prevent just this kind of generalized inquiry into the reputation or past sexual conduct of the victim in order to avoid embarrassing her and subjecting her to possible public denigration. Tague v. Richards, 3 F.3d 1133, 1139 (7th Cir.1993) (citing Kelly v. State, 586 N.E.2d 927, 929 (Ind.App.1992) and Thomas v. State, 471 N.E.2d 681, 683 (Ind.1984)). Its application to exclude references here to “doggy fashion” sexual intercourse and partner switching effectuate its purpose. The Indiana trial court properly balanced Stephens’ right to testify with Indiana’s interests because it allowed him to testify about what happened and that he said something that upset Wilburn. The Constitution requires no more than this. The interests served by the Indiana Rape Shield Statute justify this very minor imposition on Stephens’ right to testify.

We note also that Stephens and Wilburn told drastically different stories of what happened and that Stephens directed David Stone to commit perjury. The jury was enti-tied to credit Wilburn’s story, discount Stephens’ account, and return a guilty verdict. Testimony about Wilburn’s alleged sexual preferences would have served no other purpose than to embarrass and humiliate her. Accordingly, the Indiana trial court properly balanced the state’s interests with Stephens’ right to testify when it excluded the testimony at issue here.

Stephens was not deprived of his constitutional right to testify.

C. Res Gestae

Stephens raises one other argument: that the excluded testimony was evidence concerning the res gestae of the offense and therefore should have been admitted. Literally “the thing done,” the res gestae of a particular offense under Indiana law is admissible and is defined as evidence of happenings near in time and place which complete the story of a crime. Atkinson v. State, 581 N.E.2d 1247, 1249 (Ind.1991); Beatty v. State, 567 N.E.2d 1134, 1136 (Ind.1991). There are two problems with Stephens’ res gestae argument.

First, we do not accept Stephens’ res gestae argument because to do so would effectively gut rape shield statutes and violate the principle established in Lucas. If Stephens’ res gestae argument were correct, as a matter of constitutional law, criminal defendants could always circumvent rape shield statutes by claiming that they said something near in time and place to the alleged rape or attempted rape about the victim’s past sexual history or reputation.

Second, Stephens offers nothing, probably because nothing exists, to support his res gestae argument as a constitutional violation. In fact, the use of the term res gestae, for purposes of federal law, is essentially obsolete. The Federal Rules of Evidence, adopted in 1976, govern evidentiary questions in federal court, and, more significantly given the issue here, no court has ever held that res gestae is a concept with any constitutional significance. Other federal courts have described the phrase res gestae as useless, harmful, and almost inescapable of a definition. Williams v. Melton, 733 F.2d 1492, 1494 (11th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 508 (1984); Wheeler v. United States, 211 F.2d 19, 23 n. 11 (D.C.Cir.1953) (quoting 6 Wigmore § 1767), cert. denied, 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140 (1954). See also State v. Hafford, 410 A.2d 219, 220-21 (Me.1980) (continued use of the term res gestae inappropriate under Maine law). Simply put, as a federal matter, “[t]he old catchall, ‘res ges-tae,’ is no longer part of the law of evidence.” Miller v. Keating, 754 F.2d 507, 509 (3d Cir.1985).

We observe only that for purposes of the Constitution and federal law, the term res gestae is without significance. Indiana and the other states are, of course, free to keep the res gestae concept as part of their law of evidence. But here, as we have said, we ask only whether the Indiana court denied Stephens any right guaranteed to him by the Constitution. It did not.

III.

Nothing in the Constitution prohibited the exclusion of the testimony at issue in this case. The district court’s decision to deny Stephens’ petition for writ of habeas corpus is therefore

Affirmed.

1 . The Indiana Rape Shield Statute provides, in pertinent part:

(а) In a prosecution for a sex crime as defined in IC 35-42-4:

(1) evidence of the victim's past sexual conduct;

(2) evidence of the past sexual conduct of a witness other than the accused;

(3) opinion evidence of the victim's past sexual conduct;

(4) opinion evidence of the past sexual conduct of a witness other than the accused;

(5) reputation evidence of the victim's past sexual conduct; and

(б) reputation evidence of the past sexual conduct of a witness other than the accused; may not be admitted, nor may reference be made to this evidence in the presence of the jury, except as provided in this chapter.

(b) Notwithstanding subsection (a), evidence:

(1) of the victim's or a witness's past sexual conduct with the defendant;

(2) which in a specific instance of sexual activity shows that some person other than the defendant committed the act upon which the prosecution is founded; or

(3) that the victim’s pregnancy at the time of trial was not caused by the defendant;

may be introduced if the judge finds, under the procedure provided in subsection (c) of this section, that it is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. Ind.Code §§ 35-37-4-4(a) and (b).