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
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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.
14
