Brown v. State

Rose, J.,

dissenting,

with whom Springer, J., agrees:

I believe the cumulative events that occurred in this case and the rulings of the district court have prevented the appellant Stanley Brown (Brown) from receiving a fair trial. At trial, Brown was not permitted to present evidence of the complaining witness’s propensity to make false accusations of sexual assault. At the Miller hearing subsequent to trial, the district court found that the allegations of sexual assault by others were not proven to be false and denied Brown a new trial. From the evidence presented, this finding was erroneous and a new trial should have been granted.

The complaining witness was Brown’s niece, Janet Rains. However, there was no blood relationship between the victim and appellant because Brown had been adopted by Rains’ grandparents. At the time of the alleged sexual assaults, Brown was 21 and Rains was five years younger.

The victim’s account of the two sexual assaults and one attempted assault are unusual. Rains testified that on November 21, 1986, Brown asked her to accompany him to a movie and dinner. After Rains’ mother agreed, the pair left Rains’ house. Rains claimed that instead of going to a movie, Brown took her to a party and sexually assaulted her thereafter. Brown denies this charge. Rains returned to her home without any visible signs of having been assaulted and made no mention of the alleged incident.

On November 26, 1986, Rains claims that Brown entered her home, proceeded to her bedroom and began to threaten her with an unloaded shotgun. She claims that Brown pushed her around with the butt of the gun and then ordered her to pull her pants down. In response, she pulled her pants down to her knees. At *170that moment, the phone rang and Rains’ mother came home. Brown ran out of Rains’ room, Rains pulled up her pants and her mother came into the house. Brown also denied this allegation and no complaint was made by Rains at the time.

On the night of December 4, 1986, Rains testified that she was in her bedroom asleep. She was awakened by a knock on her window and discovered it was Brown, who apparently needed some clothes. Rains let Brown in the house and then she claims that he sexually assaulted her. She claims that she tried to scream, but couldn’t. She testified, “whenever I would go to scream, I can’t scream. I don’t have that voice when I am scared.” Rains maintained that Brown threatened to injure her if she told anyone. Brown also denied this charge and no immediate complaint was made by Rains.

About a month later, Rains told her mother about the assaults. She claimed that she waited that long because she was not sure how her mother would react.

At trial, Brown’s attorney wanted to present numerous witnesses to establish that Rains had made many false accusations of sexual assault against other men. Rather than cross-examine Rains about these incidents, Brown’s attorney attempted to call witnesses to testify to these other false accusations. The district court precluded Brown from introducing these witnesses based on NRS 50.085(3), the rape shield law. Brown was permitted to call five witnesses who testified that Rains’ reputation for truth and veracity was bad. The jury found Brown guilty of the two sexual assaults and one attempted sexual assault and the court then sentenced Brown to the maximum possible sentence, two life sentences on the sexual assaults and ten years on the attempted sexual assault, all to run consecutive.

When appealed to this court, we remanded the case back to district court for a hearing to determine whether Rains had made prior false sexual assault and molestation accusations. In doing this, we stated:

Given Miller and the facts and circumstances of this case, we are concerned that the result below may be unreliable and that Brown may have been denied a fair trial. Therefore, we elect to vacate the judgment below and remand this case to the district court for further consideration. Specifically, on remand, the district court shall hold a Miller hearing to determine, by a preponderance of the evidence, whether the complaining witness made prior false sexual assault and molestation accusations. In the event that fabrication is established, the district court shall grant Brown a new trial. Assuming falsity is not shown, the original judgment shall be reinstated.

*171On remand, the district court held a Miller hearing as we had directed, but refused to hear any witnesses Brown had not tried to offer at trial. This precluded five witnesses who were present and prepared to testify. Such a restriction was not imposed by this court and I see no good reason why these additional witnesses should have been precluded from testifying at a hearing premised on a search for truth.

At the Miller hearing, Brown was permitted to call three witnesses who testified about Rains making false allegations of sexual assault. The testimony of these witnesses was compelling and there is no question in my mind that they established that Rains had made such false statements. The first witness was a Mr. Sperlak who currently lives in Denver but had met Rains when he was serving in the Navy near Fallon. He dated her for about one month. Sperlak testified that Rains told him that her father had raped her and that he used to beat her. She also accused her ex-boyfriend of having raped her. To establish the falsity of these two charges, Sperlak testified that he met Rains’ former boyfriend the following day and was told by him that no such rape had occurred. Sperlak confronted Rains with this fact and she “just looked at the ground like she — like she was caught in a lie.” Sperlak also described confronting Rains about the allegations made against her father when he observed her writing a letter to him. Again, Rains said nothing and again reacted as if she had been caught in a lie.

Brown also called a Ms. Sprinkle. She testified that she lived in Fallon for approximately seven years and had attended school with Rains. Sprinkle stated that Rains told her that she had been raped by both Brown and by Darren Summerville. Sprinkle testified that Rains did not seem at all upset about the alleged rape by Mr. Summerville and that she did not believe her because Rains had repeatedly lied to her about other matters. Sprinkle also testified that Rains lied when she said she had had sexual relations with a Johnny Pereira and had had a baby resulting from that activity. However, Sprinkle asked Pereira about this and he responded that he had never even had sex with her.

Another witness called by Brown was Frankie Sue Aja Jones. Ms. Jones testified that Rains accused her fiance, Roger Gobel, of raping her. However, Jones said that Rains did not seem to be at all upset about this supposed rape, and that when she came home the evening of the alleged event, she was happy and made no mention of the alleged sexual assault. The prosecution moved to strike Ms. Jones’ testimony relative to Roger Gobel because Rains made these accusations after Brown’s trial. The district court granted his motion.

*172At the conclusion of the Miller hearing, the district court confirmed Brown’s convictions, finding that it was not established that Rains had made false accusations. With regard to the testimony of Mr. Sperlak and Ms. Sprinkle, the court found that neither established that the accusations were false. However, I believe the only reasonable inference that can be drawn from the witnesses’ testimony and the reaction of Rains is that the allegations were shown to be false by a preponderance of the evidence. It is also reasonable to assumé that Rains’ father, Summervile, Pereira, and Gobel would not admit to sexually assaulting Rains if called to the stand. Since Brown would receive no benefit of the doubt from the district court, Brown’s counsel should have attempted to call these additional witnesses, to make certain that falsity was proved. However, even without their testimony, every reasonable inference is that all of Rains’ accusations of sexual assault or illicit sex were false.

This was a close case that hinged upon the credibility of the complaining witness and Brown. The facts of the alleged assault are not compelling. At trial, a number of witnesses testified that Rains had a poor reputation for truth and veracity. If the jury had also heard that she had falsely accused many other men of sexual assault, the result may have been in Brown’s favor.

It was also error for the district court, at the Miller hearing, to preclude additional witnesses from testifying about allegations of sexual assault which Rains fabricated after the trial here in question. While our order of remand did direct the district court to hear evidence concerning the prior false allegations, we were not aware of any others. The evidence of false accusations is not admitted to establish anything about the complaining witness’s sexual conduct, but rather to attack her truth and veracity by showing her propensity to make false accusations of sexual assault. Evidence of a poor reputation for truth and veracity does not become more or less prejudicial because the events which imparted this knowledge to the testifying witness happened after the alleged criminal conduct. See 81 AmJur.2d Witnesses to Worker’s Compensation, § 565 (1976); Fisher v. Conway, 21 Kan. 18 (1878). Therefore, the district court should have permitted witnesses to describe false accusations of sexual assault which Rains made after the trial. This evidence should have been received at the Miller hearing whether it came from newly discovered witnesses, or from a trial witness like Ms. Jones who had new probative information.

Brown established that Rains had made false accusations of sexual assault and illicit sex against a number of men and this should have mandated a new trial so that this evidence could be presented to a jury. The district court consistently and assertively *173ruled against Brown, first at the trial by prohibiting the testimony of false accusations, then refusing to find that the false accusations were established by a preponderance of the evidence at the Miller hearing, and finally, in sentencing Brown to a very lengthy penalty. In reviewing this case in its totality, I consider the jury verdicts unreliable because the jury did not hear all of the relevant evidence. Therefore, I would reverse and remand for a new trial.