Sex, Drugs, and ‘Rock’ & Roll

State v. Memoli, 2011 VT 15.

By Andrew Delaney

A divided Court reverses the trial court’s evidentiary ruling regarding the complainant’s drug use in this appeal from an aggravated-sexual-assault-conviction, and defendant gets a do-over. 

On New Year’s Eve 2007, Complainant celebrated with some friends at a Winooski bar.  After catching a “buzz,” she caught a ride to a nearby house party, smoked some marijuana, and drank “a lot” of beer.  Shortly after midnight, her friends were driving her home, but she got into an argument with them over whether she was owed change from the earlier Indiana Ditchweed purchase.  You know how those crazy-you owe-me-for-the cheeba-and-my-initials-are-not-A-T-M arguments can be.  So next thing you know, Complainant is hoofing it down Mallets Bay Avenue while her buds speed away.

As she began to walk home, Defendant pulled up in an SUV.  According to the complainant, Defendant asked Complainant if she was okay.  He introduced himself as “Rico” and his female companion as “Sam.”  Complainant gave a false name too because she suspected they were undercover cops, but accepted Rico’s offer of a ride home.  She also accepted Rico’s offer to stop at his house and have a couple drinks.  When they got to Rico’s house, Rico had Sam grab a big bag of crack and they all went inside—for a crack party.  Sam and Rico went in the bedroom and closed the door while Complainant sat in the living room and drank a beer.  She, quite logically, assumed that Sam and Rico were smoking crack.

A few minutes later, Sam and Rico invited Complainant into the bedroom to be “more comfortable.”  She accepted the invitation, and Sam closed and locked the bedroom door.  Sam blew some crack smoke in the complainant’s mouth, and “at some point” Complainant’s clothes came off, though she couldn’t precisely recall when or how that happened, but you know how crack parties are.  Complainant testified that over the next several hours she was forced to participate in a number of sexual activities.  She also testified that she was crying, asked to leave, and felt sick and scared throughout much of the ordeal.  Eventually, Defendant Rico told her she could leave, called her a cab, and told her to be “a good girl and don’t cry in the cab.”

Complainant got home in the early morning and later told her best friend about the incident.  She also told her mother, who called the police.  An officer found Complainant lying on her bed, crying and hyperventilating.  Complainant was brought to the hospital.  At the hospital, she was unwilling to make a statement.  She had redness and a bruise on her neck, but no other evidence of an assault.  A week later, she made a lengthy statement to the investigating officer.  Defendant was arrested and charged with aggravated sexual assault (based in part on Sam’s involvement—see 13 V.S.A. § 3253(a)(2)).

Sam and Defendant Rico told a much different tale.  Defendant testified that they all smoked crack together in the car, and that when they got to his house, they all went to the bedroom, smoked more crack, and had consensual sex.  Defendant remembered that Complainant asked to take some crack with her when she left (presumably in a crack doggie bag/vial), and when he refused, she “wasn’t pleased.” Sam testified to a similar story.  Both denied that Complainant was forced to smoke crack or have sex.   

A jury found Defendant guilty as charged and he was sentenced to ten to twelve years. 

Before trial, the State moved to exclude evidence of Complainant’s past and subsequent drug use.  The defense argued that the only defense it had was that the complainant traded sex for drugs.  The defense argued that this evidence was relevant to its defense, and to impeach Complainant, who had testified in her deposition that she was not a regular crack user. 

The trial court limited testimony of Complainant’s drug use to the day in question, and in a written order, invoked the rape-shield law, reasoning that “even if [Complainant] previously used or was addicted to crack, that does not mean she consented to sex in the charged incident.”  Defendant moved to file an interlocutory appeal, but that motion was denied and the case proceeded to trial.

By all accounts, the trial was a credibility contest in which the two main issues were whether Complainant smoked crack voluntarily and/or whether she consented to sex with Defendant.  Perhaps—okay, let’s not mince words here—totally taking advantage of the court’s pretrial ruling, the prosecutor used his closing to urge the jury to examine each witness’s motivation to lie.  As to Complainant, he claimed: “‘There is no reason for her lying about the sexual assault.  No one can come up with a reason.’”

I’m sure at this point the defense begged to differ, but it was precluded from doing so.  The SCOV notes this and reasons that the defense in this case was effectively precluded from presenting its most-compelling argument: that Complainant traded sex for drugs.  After taking an arguably well-deserved dig at the dissent’s reasoning, the majority turns to the merits of the appeal.

The SCOV first considers whether evidence of prior drug use is prohibited by the rape-shield law.  We could go through it piece-by-piece, but let’s do this the easy way: smokin’ crack ain’t having sex.  Therefore, no rape-shield issue.

Regarding the relevancy of the evidence, the SCOV finds that Complainant’s ulterior motive for consenting to sex with the defendant is indeed relevant.  The SCOV notes that the prosecution used the lack of court-excluded evidence to create positive inferences to Complainant’s credibility.  That, the SCOV reasons, makes it pretty danged relevant.  Essentially, the State gets the benefit of uncontested testimony by virtue of the court’s order.  That’s not fair. 

The State tried to argue that evidence of drug use was impermissible character evidence.  Not so, says the SCOV—first, it goes to motive; second, it would’ve been offered to impeach.  On the standard 403 balancing test (is the evidence more helpful than outright harmful?), the SCOV reasons that prejudice is more the Defendant’s shield than the state’s sword, and that the proffered evidence was not likely to confuse the issues, mislead the jury, or cause undue delay.  Accordingly, the evidence should have been admitted, the ruling was in error, and defendant gets a new trial.

Defendant also argued that he was entitled to a lesser-included-offense instruction on misdemeanor “lewdness.”  The SCOV analogized to another case in which it held that lewdness under 13 V.S.A. § 2632(a)(8) contains an “open and gross” (read not concealed or hidden) element not contained in lewd and lascivious conduct with a child under 13 V.S.A. § 2602 (which can be charged no matter where it happens).  Applying the same reasoning, the SCOV concludes that “lewdness” is not a lesser-included offense of aggravated sexual assault as defendant was charged here.  No error on that count.

The dissent reasoned that Defendant waived his sex-for-drugs defense because, according to the dissent’s reasoning, there was nothing the trial court’s pretrial ruling that prevented Defendant from raising the sex-for-drugs defense.  Accordingly, Defendant was not—and could not have been—prejudiced by ruling.  The dissent pointed to evidence introduced (I almost said “adduced” there but that would’ve given me away) at trial that would’ve supported Defendant’s theory.

The dissent argues that there is no assertion in evidence that Complainant traded sex for drugs, and that there was plenty of opportunity for the defense to make that assertion.  The dissent reasons that while evidence of other Bolivian marching powder use would have supported a sex-for-drugs defense, it was not essential to such a theory.  The dissent reasoned that the defense’s failure to pursue the sex-for-drugs was a voluntary waiver of the issue and a tactical decision.  Finally, the dissent reasoned that the defense could have revisited the impeachment issue when the complainant testified that the drug use on the night in question made her sick, and that the defense therefore waived the issue of impeachment as well.

The dissent did not touch the rape-shield-law-prevents-introduction-of-drug-use-evidence argument, which I found disappointing as the dissent appeared to be motivated, in part, by a sense that the majority was modifying the broad sweep of these laws to allow one particular Defendant re-try his case against a Complainant with obvious, err, cracks in her story.