People v. Murph

919 P.2d 191 (1996)

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Nature of the Case

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Facts

D was 42 and met D.Z., a twenty-six-year-old male, at a grocery store where D.Z. worked as a produce clerk. D learned that they lived in the same apartment complex, and they encountered each other outside the complex. D invited D.Z. for a beer and D.Z. accepted. D asked D.Z. if he could take D.Z.'s measurements because D had some clothes he wanted to give to D.Z. After taking his measurements, D put a handcuff on D.Z.'s wrist. According to D.Z.'s testimony at trial, Murphy then perpetrated sadistic homosexual acts against D.Z. without D.Z.'s consent. D claimed that the encounter with D.Z. was consensual. D filed a motion seeking permission to cross-examine D.Z. on issues 'relating to [D.Z.'s] sexual orientation' and to ask questions 'pertaining to previous homosexual contacts with persons other than D.' D argued that D.Z. denied being a homosexual, that through discovery D learned that D.Z. had 'initiated a sexual contact between himself and a 17-year-old neighbor,' and that D.Z.'s prior homosexual act and homosexual proclivity were relevant to the defense of consent under CRE 401. The motion was denied. At trial, the prosecutor informed the jury in his opening statement that D.Z. had a common-law wife and a daughter. D.Z. testified to those facts and stated that his encounter with Murphy was 'sick and abnormal.' When the prosecutor asked D.Z. why he was not aroused by the encounter with Murphy, D.Z. responded, 'I'm not that kind.' D moved again to ask D.Z. about D.Z.'s homosexual tendencies and D.Z.'s prior sexual contact with another young man. The argument was that the prosecutor's opening statement and D.Z.'s testimony had opened the door to such cross-examination. The trial court denied Murphy's motion, concluding that the issue of sexual orientation was not relevant. The jury found D not guilty of one count of first-degree sexual assault and guilty of the other count of first-degree sexual assault. The jury also found him guilty of third-degree assault and false imprisonment. D was sentenced to consecutive sentences of sixteen years imprisonment for first-degree sexual assault, twenty-four months in county jail for third-degree assault, and twelve months in county jail for false imprisonment. The court of appeals reversed holding that although the Rape Shield Statute bars evidence of a rape victim's prior sexual conduct, the trial court erred by refusing to allow D to cross-examine D.Z. about his sexual orientation and to present expert testimony about the behavior of homosexual men with sexual identity conflicts who engage in homosexual contact. P appealed.