Sunday, June 3, 2012
Indiana Rule of Evidence 412(a)(1) contains an exception to Indiana's rape shield rule for "evidence of the victim’s or of a witness’s past sexual conduct with the defendant...." That said, pursuant to Indiana Rule of Evidence 412(b)(1), If a party proposes to offer evidence under this rule, "A written motion must be filed at least ten days before trial describing the evidence. For good cause, a party may file such motion less than ten days before trial." It was this latter provision that was fatal to part of the defendant's appeal in Rogers v. State, 2012 WL 1944826 (Ind.App. 2012).
In Rogers, Mitchell Lee Rogers appealed from the denial of his petition for post-conviction relief following his conviction for sexual battery as a class D felony, and criminal deviate conduct and battery, both as class B felonies. One of the grounds for his appeal was that appellate counsel rendered ineffective assistance in failing to challenge the trial court's exclusion of evidence of Rogers' prior sexual relationship with his victim.
This evidence would have revealed that Rogers had "a consensual one-night stand" with the alleged victim ten years before the alleged crime charged. Specifically,
The day before trial was to commence, Rogers submitted a motion to present evidence of what Rogers refers to on post-conviction relief as "a consensual one-night stand" that occurred ten years before these events transpired....The trial court denied that motion on grounds that the event was too remote in time to be admissible. Defense counsel did not seek to present the evidence at trial. Appellate counsel did not challenge the exclusion of this evidence on direct appeal. Appellate counsel testified that he did not challenge the preliminary ruling because he, too, believed the evidence was too remote to be admissible and therefore that the trial court's ruling was correct.
In rejcting this portion of Rogers' appeal, the Court of Appeals of Indiana noted that pursuant to Indiana Rule of Evidence 412(b)(1),
a party must give written notice ten days before trial of his or her intention to present evidence governed by this rule. Moreover, we have determined that this ten-day notice requirement applies "to both the general rule prohibiting the admission of past sexual conduct and the exceptions listed thereafter."... The evidence Rogers sought to present fits within the exception set out in subsection (a)(1). Thus, even had appellate counsel appealed this ruling on direct appeal, he would not have prevailed. As a result, Rogers cannot demonstrate the requisite prejudice.
Of course, what this really means is that Rogers should have claimed that his trial counsel rendered ineffective assistance for failing to timely move for the admission of the subject evidence. But I doubt that such an argument would have been successful because a single one night stand ten years in the past has very little probative value on the issue of whether the alleged victim consented to sexual acts with the defendant a decade later. Thus, the trial court likely would have excluded the subject evidence even if the issue were timely raised.