State v. Colbath

540 A.2d 1212 (1988)

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Nature of the Case

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Facts

During the noon hour of June 28, 1985, D went with some companions to a tavern where he became acquainted with the complainant. She directed sexually provocative attention toward several men in the bar, with whom she associated during the ensuing afternoon. D was among them. He testified that he had engaged in 'feeling the complainant's breasts and bottom and that she had been rubbing his crotch' before the two of them eventually left the tavern and went to D's trailer. Sexual intercourse occurred. The two of them were joined unexpectedly by a young woman who lived with D, who came home at an unusual hour suspecting that D was indulging in faithless behavior. The roommate became enraged, kicked the trailer door open and went for the complainant, whom she assaulted violently and dragged outside by the hair. It took the intervention of D and a third woman to bring the melee to an end. The complainant returned to town and accused D of rape. Candice Lepene, the daughter of the tavern's owner, told the police that she had seen the complainant leave the tavern with D during the afternoon. In a subsequent written statement, she said that she did not know whether the complainant had left with a companion or alone, but she described the complainant prior to her departure as 'a girl with dark hair hanging all over everyone and making out with D and a few others.' The police did not disclose this statement to the defense prior to trial, although defense counsel knew that Lepene had given a statement and subpoenaed her to testify at trial. The focus was on the defense of consent, which D addressed by his own testimony about the complainant's behavior with him at the bar and at the trailer, and by seeking to elicit exculpatory evidence that the complainant had appeared to invite sexual advances from other men as well as from himself in the hours preceding the incident. Some of this evidence was excluded and some admitted. The judge instructed the jury that evidence of the complainant's behavior with other men was irrelevant to the issues before them. D objected and was convicted. D appealed.