Summitt v. State

697 P.2d 1374, 101 Nev. 159, 1985 Nev. LEXIS 385
CourtNevada Supreme Court
DecidedMarch 26, 1985
Docket14022
StatusPublished
Cited by65 cases

This text of 697 P.2d 1374 (Summitt v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Summitt v. State, 697 P.2d 1374, 101 Nev. 159, 1985 Nev. LEXIS 385 (Neb. 1985).

Opinions

[160]*160OPINION

By the Court,

Mowbray, J.:

A jury found appellant Vernon Summitt guilty of two counts of sexual assault. He seeks reversal of his judgment of conviction asserting several assignments of error, only one of which we find to have merit; that the district judge erred in excluding testimony centered about a prior similar sexual experience of the victim. Accordingly, we reverse and remand the case for a new trial.

A grand jury indicted Summitt for three counts of sexual assault committed on a six year old child. A count charging sexual intercourse was dismissed before the trial because of the state’s failure to preserve evidence. Summitt was tried and convicted of the remaining counts of cunnilingus and fellatio.

At the jury trial Summitt sought to introduce evidence of a prior sexual experience of the victim which included intercourse, fellatio and the fondling of the victim’s genitalia. The prior assault had occurred two years before the crime in issue, in the same trailer park, and involved the same victim and her nine year old girl friend, who was also a witness in the instant case. Summitt offered the testimony to show that the young victim had had prior independent knowledge of similar acts which constituted the basis for the present charge.

The district judge denied Summitt’s offer on the ground that the “rape victim shield law,” Nevada Revised Statute section 50.0901, barred the admission of such evidence. We turn to the construction of the statute.

[161]*161In 1977 Nevada joined forty-five states and the federal government in passing a “rape shield” statute, limiting inquiry into the sexual history of a complaining witness in a rape or sexual assault case. See J. A. Tanford and A. J. Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544, 544 (1980).

Such laws have generally been designed to reverse the common law rule applicable in rape cases, that use of evidence of a female complainant’s general reputation for morality and chastity was admissible to infer consent and also to attack credibility generally. Thus, for example, it had been held: “It is a matter of common knowledge that the bad character of a man for chastity does not even in the remotest degree affect his character for truth, when based upon that alone, while it does that of a woman.” State v. Sibley, 33 S.W. 167, 171 (Mo. 1895), quoted in State v. Brown, 636 S.W.2d 929, 933 n. 3 (Mo. 1982), cert. denied sub nom., Brown v. Missouri, 103 S.Ct. 1207 (1983). Such statutes as Nevada’s have been described as “directed at the misuse of prior sexual conduct evidence based on this antiquated and obviously illogical premise.” State v. Hudlow, 659 P.2d 514, 519 (Wash. 1983). See also People v. McKenna, 585 P.2d 275, 278 (Colo. 1978). An additional purpose of such statutes is “ ‘to protect rape victims from degrading and embarrassing disclosure of intimate details about their private lives.’ ” 124 Cong. Rec. at H 11945 (1978), quoted in Doe v. United States, 666 F.2d 43, 45 (4th Cir. 1981). Finally, “[t]he restrictions placed on the admissibility of certain evidence by the rape-shield laws will, it was hoped, encourage rape victims to come forward and report the crimes and testify in court protected from unnecessary indignities and needless probing into their respective sexual histories.” State v. Lemon, 456 A.2d 261, 264 (R.I. 1983).

In construing Nevada’s “shield law,” we must be mindful of these legislative purposes. Equally important is the rule that “[a] statute should, if it reasonably can, be so construed as to avoid any conflict with the constitution.” State v. Woodbury, 17 Nev. 337, 356, 30 P. 1006, 1012 (1883). See also Anaya v. State, 96 Nev. 119, 606 P.2d 156 (1980); Milchem, Inc. v. District Court, 84 Nev. 541, 445 P.2d 148 (1968).2

[162]*162A defendant’s rights to present witnesses in his own behalf, to confront and to cross-examine the witnesses against him are fundamental rights, secured by the Sixth Amendment, and applicable to the states through the Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967); Pointer v. Texas, 380 U.S. 400 (1965). The United States Supreme Court has held that the right to confront and cross-examine witnesses may, in appropriate cases, bow to “accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. at 295. But, the Court has cautioned, “its denial or significant diminution calls into question the ultimate ‘integrity of the fact-finding process’ and requires that the competing interest be closely examined.” Id.

Thus in Davis v. Alaska, 415 U.S. 308, 320 (1974), the court held that the legitimate interest of the state in protecting from public scrutiny the juvenile record of a prosecution witness could not “require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.” The court examined the particular interests of the state and the defendant, noting that defense counsel made it clear that he would not introduce the juvenile record as a “general impeachment of [the witness’s] character as a truthful person,” but rather to show specifically that the witness was on probation for a similar crime, which may have provided a motive for shifting blame to the defendant. Id. at 311. Similarly in this case, we have a defendant who seeks to introduce evidence which it is the general policy of the state to protect, but which the defendant seeks to use for the sole and limited purpose of challenging the witness’s credibility by dispelling an inference which the jury may well draw otherwise from the circumstances, that a six year old child would be unable to describe the occurrences in her testimony unless they had in fact taken place.

Other courts confronted with the necessity of accommodating the competing interests of complaining witnesses and defendants in such cases have concluded that rape shield statutes should be construed and applied so as to uphold the constitutional rights of defendants, while creating the least possible interference with the legislative purpose reflected in the statutes. See, esp., Bell v. Harrison, 670 F.2d 656 (6th Cir. 1982) (Tennessee statute); State v. Blue, 592 P.2d 897 (Kan. 1979); Commonwealth v. Joyce, 415 N.E.2d 181 (Mass. 1981); State v. Howard, 426 A.2d 457 (N.H. 1981); State v. Jalo, 557 P.2d 1359 (Or.App. 1976); Shockley v.

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Cite This Page — Counsel Stack

Bluebook (online)
697 P.2d 1374, 101 Nev. 159, 1985 Nev. LEXIS 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summitt-v-state-nev-1985.