MARLON TERRANCE MURPHY v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: May 5, 2021
• Docket: 20-0477
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 5, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-0477 Lower Tribunal No. F17-11054 ________________

Marlon Terrance Murphy, Appellant,

vs.

The State of Florida, Appellee.

An appeal from the Circuit Court for Miami-Dade County, Andrea R. Wolfson, Judge.

Rier Jordan, P.A., and Jonathan E. Jordan, for appellant.

Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.

Before EMAS, C.J., and FERNANDEZ, and MILLER, JJ.

MILLER, J. In all criminal prosecutions, the accused enjoys the Sixth Amendment

right “to be confronted with the witnesses against him” or her. Maryland v.

Craig, 497 U.S. 836, 844, 110 S. Ct. 3157, 3162, 111 L. Ed. 2d 666 (1990).

However, in sexual crimes cases, this right must be balanced against the

interest of the State in protecting the privacy of the complaining witness.

Here, appellant, Marlon Terrance Murphy, contends the trial court

unconstitutionally infringed upon his right of confrontation by prohibiting him

from introducing evidence of prior sexual assault allegations by the

complainant.1 Discerning no error, we affirm.

BACKGROUND

Murphy was accused of forcibly penetrating an acquaintance while the

two were viewing a movie in a bedroom of his home. The State charged him

with a single count of sexual battery, in violation of section 794.011(5),

Florida Statutes. Prior to trial, the State and defense filed dueling motions in

limine directed at the admissibility of a prior report of sexual assault by the

1 We summarily reject the claim of error arising out of the prosecutor’s closing argument. See Davis v. State, 136 So. 3d 1169, 1205 (Fla. 2014) (“Closing argument is an opportunity . . . to ‘explicate those inferences which may reasonably be drawn from the evidence.’”) (citation omitted); Austin v. State, 700 So. 2d 1233, 1235 (Fla. 4th DCA 1997) (“The prosecution could lawfully respond that the defense argument is not what the evidence shows, by reminding the jury that all of the testimony was to the contrary.”).

2 alleged victim. Both parties relied upon the deposition testimony of the victim

in support of their respective positions.

In her deposition, the victim recounted that, when she was thirteen

years old, she became involved in a sexual relationship with a cafeteria

worker at her middle school. One evening, a law enforcement officer

discovered the pair together in a park and escorted them to the victim’s

home. Upon arrival, the officer informed her father of the circumstances.

After the officer left, the father became enraged and beat the victim.

Seeking refuge, the victim ran to a nearby laundromat, where she was

purportedly approached by an unknown man. After she explained her

predicament, he offered to conceal her from her father. Instead, he brought

her to a nearby gas station bathroom and forced her to sit on his lap while

he fondled her. The victim extricated herself and eventually returned home.

The following day, the victim’s father informed school administrators of

her relationship with the cafeteria worker. Law enforcement officers

responded to the school to investigate. The victim was interrogated and

sought to deflect the focus of the inquiry by disclosing the gas station assault.

As a result, a police report was generated and physical evidence was

collected, but the assailant was never identified.

3 Murphy proffered to the trial court he intended to establish the victim

fabricated the gas station incident in order to evade discipline at the hands

of her father. In support of his position, he suggested that the victim initially

reported she had been penetrated in the gas station restroom, but later

claimed she had only been inappropriately touched. He contended the

purported fabrication was relevant to his theory of defense, which was that

the victim had consensual sex with him and then manufactured rape charges

to avoid possible repercussions from her boyfriend.

The State argued the prior incident was barred from admission by

Florida’s rape shield statute, and, alternatively, because the victim had not

been convicted of filing a false police report and the previous event was both

remote in time and factually dissimilar, it constituted prohibited, unduly

prejudicial character evidence. See § 794.022(2), Fla. Stat.; § 90.404, Fla.

Stat.; § 90.402, Fla. Stat.; § 90.610, Fla. Stat.

The lower tribunal excluded the evidence and the case proceeded to

trial. After the jury found Murphy guilty as charged, the court adjudicated him

and sentenced him to fifteen years in prison. The instant appeal ensued.

STANDARD OF REVIEW

Although a trial court is afforded wide latitude when ruling upon the

admissibility of evidence, this discretion “is constrained by the rules of

4 evidence . . . and by recognition of a criminal defendant's Sixth Amendment

rights.” McDuffie v. State, 970 So. 2d 312, 324 (Fla. 2007) (citation omitted).

Accordingly, when reviewing “a trial court's ruling on admissibility of evidence

over an objection based on the Confrontation Clause, [the] standard of

review is de novo.” Milton v. State, 993 So. 2d 1047, 1048 (Fla. 1st DCA

2008) (citation omitted).

LEGAL ANALYSIS

Prior to the advent of rape shield laws, evidence of the past sexual

conduct and promiscuity of a complainant was admissible in criminal

proceedings on various theories of relevance. See Clifford S. Fishman,

Consent, Credibility, and the Constitution: Evidence Relating to a Sex

Offense Complainant's Past Sexual Behavior, 44 Cath. U. L. Rev. 709, 714-

15 (1995). In cases where consent was at issue, the admission of such

evidence allowed the factfinder to draw the conclusion that “it [was] more

probable that an unchaste woman would assent . . . than a virtuous woman.”

Vivian Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the

Courtroom, 77 Colum. L. Rev. 1, 15 (1977) (second alteration in original)

(quoting People v. Collins, 186 N.E.2d 30, 33 (Ill. 1962)). This resulted in

jury verdicts premised wholly on “inferences that ha[d] no direct correlation

5 to either the alleged sexual assault in question or a material issue in the

case.” People ex rel. K.N., 977 P.2d 868, 874 (Colo. 1999).

Understandably, these evidentiary norms served as deterrents to the

reporting and prosecution of sexual crimes. Harriett R. Galvin, Shielding

Rape Victims in the State and Federal Courts: A Proposal for the Second

Decade, 70 Minn. L. Rev. 763, 795 (1986). Thus, by the early 1970s, in an

effort to abate the ordeal of complainants, curtail the undue influence of

inflammatory evidence, and increase the reporting of rape, state legislatures

began enacting rape shield laws designed to protect the privacy of sexual

crime victims. See Elizabeth J. Kramer, When Men are Victims: Applying

Rape Shield Laws to Male Same-Sex Rape, 73 N.Y.U. L. Rev. 293, 303

(1998).

First enacted in 1974, Florida’s rape shield statute provides, in relevant

part: “[s]pecific instances of prior consensual sexual activity between the

victim and any person other than the offender may not be admitted into

evidence in a [sexual crimes] prosecution.” § 794.022(2), Fla. Stat. To

account for relevancy concerns, the statute sets forth an exception in those

instances where such evidence is relevant to proving “the defendant was not

the source of the semen, pregnancy, injury, or disease; or, when consent by

the victim is at issue.” Id. However, the exception only applies where a

6 “pattern of conduct or behavior on the part of the victim which is so similar to

the conduct or behavior in the case that it is relevant to the issue of consent”

is established. Id.

By its plain language, the law narrowly applies to the admission of

“consensual sexual activity with a person other than the accused.” Thorne

v. State, 271 So. 3d 177, 184 (Fla. 1st DCA 2019) (quoting Gomez v. State,

245 So. 3d 950, 953 (Fla. 4th DCA 2018)); see McLean v. State, 754 So. 2d

176, 182 (Fla. 2d DCA 2000) (“The Rape Shield Statute, section 794.022,

Florida Statues, . . . prohibits evidence of specific instances of prior

consensual activity between the victim and any person other than the

offender in sexual battery cases.”) (emphasis added). However, relying

upon general evidentiary principles, our courts have embraced the broader

proposition that evidence of any sexual activity, consensual or not, by the

complainant with “one other than the accused is generally irrelevant for

determining the guilt of the accused.” Lewis v. State, 591 So. 2d 922, 924

(Fla. 1991) (citing Marr v. State, 494 So. 2d 1139, 1142 (Fla. 1986)).

Here, Murphy sought permission to argue the victim fabricated a false

report of sexual assault to protect herself from further abuse by her father.

This theory was impossible to present to the jury without reference to the fact

that the victim engaged in a sexual relationship with an adult school

7 employee. Such evidence was barred from admission, as it constituted a

specific instance of prior sexual activity between the victim and another and

failed to qualify for any statutory exception. See § 794.022(2), Fla. Stat.

This does not, however, end our analysis, as Murphy contends the rote

application of the statutory prohibition violated his confrontation rights. The

battle waged between the Sixth Amendment right to confront witnesses and

rape shield laws is by now a familiar one, but not always easy to resolve.

Although the right to cross-examine is not limitless, “[t]o the extent that a

defendant in a rape case is categorically prevented from offering types of

evidence that other criminal defendants may offer, his [or her] sixth

amendment rights are violated.” J. Alexander Tanford & Anthony J.

Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. Pa.

L. Rev. 544, 545 (1980). In such circumstances, the law, as with any

statutory enactment, must yield to the constitutional right. See Roberts v.

State, 510 So. 2d 885, 892 (Fla. 1987) (“[I]f application of Florida's Rape

Shield Law interfered with [the defendant’s] confrontation rights or otherwise

operated to preclude [the defendant] from presenting a full and fair defense,

the statute would have to give way to these constitutional rights.”) (citation

omitted).

8 Thus, notwithstanding the implication of rape shield laws, where a

defendant raises a confrontation challenge, the court must independently

determine whether evidence of past sexual activity is relevant, and, if so,

weigh “the probative value of the evidence against the unfair prejudice to the

victim and the [S]tate's case to determine if it should be admitted.” Robinson

v. State, 575 So. 2d 699, 703 (Fla. 1st DCA 1991).

Here, Murphy primarily relies upon Lewis v. State, 591 So. 2d 922 (Fla.

1991) as authority the proffered evidence was admissible. In Lewis, the

defendant, accused of sexual battery, “sought to develop as a defense theory

that the victim, his stepdaughter, fabricated the charges against him in order

to prevent her mother and [him] from discovering . . . that she was sexually

active with her boyfriend.” Id. at 923. The proffered evidence established

the victim had been placed on restriction because Lewis and her mother

found some letters, containing sexually explicit language and desires, she

had written to her boyfriend. Id. Her mother and Lewis then scheduled the

victim for an appointment to see a gynecologist. Id. Seven days prior to the

consultation, she accused Lewis of rape. Id.

Lewis asserted the victim manufactured the accusation to conceal she

was involved in a consensual sexual relationship with her boyfriend. Id.

Thus, he argued, her prior sexual activity with her boyfriend had to be

9 admitted under the Sixth Amendment right to confrontation through full and

fair cross-examination. Id. Finding that where the application of the general

rule of relevancy “interferes with confrontation rights, or otherwise precludes

a defendant from presenting a full and fair defense, the rule must give way

to the defendant's constitutional rights,” the Florida Supreme Court agreed.

Id. at 925 (citations omitted).

The holding in Lewis, however, cannot be viewed in isolation. In a later

decision, Pantoja v. State, 59 So. 3d 1092 (Fla. 2011), the court addressed

the admissibility of evidence of a prior false accusation in a sexual battery

prosecution. There, relying upon a false reporting exception to the criminal

conviction requirement in section 90.610, Florida Statutes and the

Confrontation Clause, Pantoja sought to elicit testimony the alleged victim

had previously falsely accused her uncle of molesting her. Pantoja, 59 So.

3d at 1096; see § 90.610(1)(b), Fla. Stat. (“A party may attack the credibility

of any witness . . . by evidence that the witness has been convicted of a

crime . . . involv[ing] dishonesty or a false statement . . . Evidence of juvenile

adjudications are inadmissible under this subsection.”) (emphasis added).

The victim denied recanting or fabricating the earlier incident and had not

been charged with filing a false police report. Pantoja, 59 So. 3d at 1095. A

plurality of the court determined section 90.610 “does not permit an

10 exception to the conviction requirement for prior false accusations” and “[t]he

only proper inquiry,” in such circumstances “goes to the witness’s reputation

for truth and veracity.” Id. at 1096-97 (citation omitted).

The court then examined whether the exclusion of the proffered

evidence gave rise to a Confrontation Clause violation. Id. at 1098. Citing

an excerpt from the lower court opinion referencing Davis v. Alaska, 415 U.S.

308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974) and its progeny, a

plurality distinguished between general attacks on credibility, such as the

introduction of a prior crime, and particular attacks on credibility designed to

reveal “possible biases, prejudices, or ulterior motives of the witness as they

may relate directly to issues or personalities in the case at hand.” Id. at 1099.

Concluding evidence of a false prior accusation constitutes a general attack

on credibility, the court found where such evidence has minimal probative

value, it may be excluded without running afoul of the Confrontation Clause.

Id.

More recently, in McPhee v. State, 117 So. 3d 1137 (Fla. 3d DCA

2012), our court considered whether the trial court erred in disallowing

evidence of the alleged victim’s prior false allegations of prior sexual abuse

in a sexual crime case. Citing Pantoja and section 90.405(2), Florida

Statutes, the court held “the victim’s character was not an essential element

11 of the defense or charge,” thus, exclusion of the specific act evidence was

proper. McPhee, 117 So. 3d at 1139. Against this jurisprudential

background, we examine the contention of error in the instant case.

We first observe the evidentiary proffer below is not fully supported by

the scant record before us. Although Murphy contended the victim changed

her statement to law enforcement after her initial report, in her deposition,

she steadfastly maintained the prior assault had indeed occurred. Further,

she was neither charged with, nor convicted of, filing a false police report.

Extrinsic impeachment evidence was not adduced at the deposition or

otherwise placed in the record.

Consequently, as in Pantoja, conspicuously missing from this

quagmire was any confirmatory proof the victim fabricated or recanted the

previous incident. Because the record was further devoid of any showing

the victim had a boyfriend at the time of this incident, the proffered theory

necessarily required a pyramiding of inferences.2

Even accepting the proffer as capable of proof, contrary to the facts in

Lewis, here, there was no nexus or similarity between the two reported

crimes. Instead, as in Pantoja, the two allegations involved different men

2 The victim testified at trial she broke up with her boyfriend a month or two before the sexual battery.

12 and disparate circumstances, temporally separated from one another. In the

former allegation, the victim accused a stranger of groping her in a public

restroom. In contrast, the evidence at trial in the instant case established

that an acquaintance vaginally penetrated her in a private residence. The

victim was thirteen years old when she filed the initial report and nineteen at

time of the instant rape.

Given these marked dissimilarities and lack of logical connection, the

only value in admitting the proffered evidence would have been to establish

that because the victim lied previously, she was more likely to have lied in

the instant case. Because her “character was not an essential element of

the defense or charge,” this type of specific act character evidence has been

soundly condemned by bedrock evidentiary principles. McPhee, 117 So. 3d

at 1139; see § 90.404(1), Fla. Stat. (“Evidence of a person's character or a

trait of character is inadmissible to prove action in conformity with it on a

particular occasion.”); Fernandez v. State, 730 So. 2d 277, 282 (Fla. 1999)

(“[E]vidence of particular acts of ethical misconduct cannot be introduced to

impeach the credibility of a witness. The only proper inquiry into a witness's

character for impeachment purposes goes to the witness's reputation for

truth and veracity.”) (citation omitted).

13 Finally, here, unlike in Lewis, Murphy was free to cross-examine the

victim with the object of revealing any possible ulterior motive or bias or to

further adduce reputation evidence. 3 Hence, he was not precluded from

developing his theory the victim inculpated him in a sexual crime in order to

conceal a consensual act of intimacy from her boyfriend.

Under these circumstances, we conclude the probative force of the

proffered evidence was attenuated and the risk of undue prejudice high.

Consequently, the ruling below was properly tailored to prevent the

“sideshow” from “tak[ing] over the circus,” Robert P. Mosteller, et al.,

McCormick on Evidence, § 39 (8th ed. 2020), and Murphy was not

“categorically prevented from offering types of evidence that other criminal

defendants may offer.” Tanford & Bocchino, supra at 545. Thus, the

exclusion of the prior incident did not give rise to a Confrontation Clause

violation, and we affirm.

Affirmed.

3 At trial, Murphy pursued a different theory of defense. He argued the victim invented the rape because she grew envious after learning he was in a committed relationship with another woman.