
    Ex parte State of Alabama. (Re Penny PEEPLES v. STATE).
    1930966.
    Supreme Court of Alabama.
    Dec. 1, 1995.
    Rehearing Denied Feb. 9, 1996.
    
      James H. Evans and Jeff Sessions, Attys. Gen., and Tracy M. Daniel, Asst. Atty. Gen., for Petitioner.
    Collins Pettaway, Jr. of Chestnut, Sanders, Sanders & Pettaway, P.C., Selma, for Respondent.
   On Application for Rehearing

COOK, Justice.

The opinion of February 3, 1995, is withdrawn and the following is substituted therefor.

We granted the State’s petition for certio-rari review of a judgment of the Court of Criminal Appeals reversing Penny Peeples’s criminal conviction. We affirm.

Peeples was tried and convicted for a violation of Ala.Code 1975, § 13A-6-66, that is, the first-degree sexual abuse of a female under the age of 12 years. During an in limine hearing, the State sought to prevent Peeples from asking J.S., the alleged victim, any questions regarding a sexual-abuse allegation she had made against another individual. In response, Peeples made an offer of proof suggesting the following facts:

At a time before the trial of this case, J.S. had alleged that J.R., her stepbrother — in an incident unrelated to the one forming the basis of Peeples’s prosecution — had “pulled her panties down and ... tr[ied] to have sex with her.” This allegation was reported, apparently, by J.S.’s school counselor to the Alabama Department of Human Resources (“DHR”). J.R. denied the allegation, and, more significantly, J.S., during an investigation begun by DHR, recanted the allegation against J.R. in an interview with a representative of DHR. Specifically, J.S., in her interview with the DHR representative, stated that “no one had bothered [her] but Mr. Peeples,” and denied that “a boy was coming into the home pulling down [her] panties and trying to have sex with [her].” The trial court sustained the State’s objection to this evidence.

Citing Ex parte Loyd, 580 So.2d 1374 (Ala.1991), and Phillips v. State, 545 So.2d 221 (Ala.Crim.App.1989), the Court of Criminal Appeals reversed Peeples’s conviction, concluding that the “court erred in granting the state’s motion ... to exclude evidence of J.S.’s statements concerning the alleged sexual abuse by her stepbrother.” Peeples v. State, 681 So.2d 235 (Ala.Crim.App.1994). We granted certiorari review to consider whether the facts of this ease differ in any material respect from those in Loyd, and, consequently, whether the judgment is, as the State contends, inconsistent with Loyd.

Loyd held that in the trial of a defendant accused of sexual abuse “evidence of the victim’s prior false allegations and threats of false allegations of sexual misconduct by persons other than the defendant may be introduced to show a ‘common plan, scheme, design or system’ by the victim.” Loyd, 580 So.2d at 1375. At the trial of Walter Loyd on the charge of first-degree sexual abuse, Loyd sought to offer evidence that the alleged victim had — by her own admission— “on prior occasions, falsely accused some men of sexual misconduct and had threatened others with like false accusations.” Id. (emphasis added). The State attempted to exclude the evidence, insisting that its introduction would, among other things, represent “an attempt to impeach the victim based on her prior bad acts.” Id. at 1376 (emphasis added).

The trial court excluded the evidence, and the defendant was convicted. The Court of Criminal Appeals affirmed. On certiorari review this Court, rejecting the arguments advanced by the State for excluding the evidence, reversed Loyd’s conviction. It explained:

“McElroy’s Alabama Evidence states the general rule that ‘a witness may not be cross-examined for impeachment as to specific acts of misconduct by him which have no relevancy except as tending to show that he is a person of bad character as a whole or with respect to truth and veracity.’ C. Gamble, McElroy’s Alabama Evidence, § 140.01(10) (3d ed. 1977). This general exclusion operates only to prevent impeaching the witness’s character. In the present case, however, Loyd sought to cross-examine the victim on her prior bad acts, threats, and false allegations of sexual misconduct, which are relevant to the issue of whether Loyd committed the crime [of] which he is accused or whether the victim was merely continuing her habit of making threats and false accusations to manipulate persons around her. This does not amount to an attempt to impeach the victim’s character based on her prior bad acts and is, therefore, admissible.”

580 So.2d at 1376 (emphasis added).

The historical background of this rule and the rationale for it were thoroughly discussed in Phillips v. State, 545 So.2d 221 (Ala.Crim.App.1989) (concluding that the defendant may introduce evidence that the victim had accused other persons of sexual abuse, subject to a showing that the allegations were false; but that the mere showing that a nolle prosqui had been entered as to the collateral allegations did not establish falsity). More specifically, the Court of Criminal Appeals stated:

“Wigmore concludes that ‘conduct indicating a disposition or habit or general scheme to make false charges or claims ’ should be admissible because it ‘may indicate a state of mind which partakes of the nature of corruption and of bias.’ 3A Wig-more on Evidence § 963 at 808 (Chadbourn rev. 1970) (emphasis in original). ‘There ought to be no doubt that such facts [indicating a specific corrupt intention for the ease in hand] could be freely inquired into, ... and even the character-rule does not forbid them on cross-examination.’ Id. at 810.”

545 So.2d at 222. See also W. Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala.L.Rev. 241, 269 (1984) (“The defendant may also admit evidence that the victim had falsely accused others in the past”).

As articulated in Loyd and Phillips, demonstrated falsity is the sine qua non of admissibility of this species of evidence. The State attempts to distinguish the facts of this case from those in Loyd, arguing that “the defense made no showing that [J.S.’s] allegations against [her] stepbrother were false.” Brief in Support of Petition for Writ of Certiorari, at 8. We disagree with the State’s characterization of J.S.’s testimony.

J.S.’s statements to the DHR representative that “no one had bothered [her] but Mr. Peeples,” and that no “boy was coming into the home pulling down [her] panties and trying to have sex with her,” expressly refute her earlier allegation, namely, that her stepbrother had “pulled her panties down and ... tr[ied] to have sex with her.” These statements were, in fact, mutually exclusive. In other words, given that J.S. had made allegations of sexual abuse, the denials communicated to the DHR representative were tantamount to admissions that the allegation of sexual abuse was false. J.S.’s denials of the allegation against her stepbrother bring this case, therefore, squarely within the operation of the rule articulated in Ex parte Loyd, 580 So.2d 1374 (Ala.1991).

Because the allegation against J.R. was demonstrably false, the trial court erred in excluding reference to it in Peeples’s trial. The judgment of the Court of Criminal Appeals so holding was consistent with Ex parte Loyd. For these reasons, that judgment is affirmed.

APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; JUDGMENT AFFIRMED.

ALMON, SHORES, HOUSTON, . KENNEDY, and BUTTS, JJ., concur.

HOOPER, C.J., and MADDOX and INGRAM, JJ., dissent.

MADDOX, Justice

(dissenting).

I wrote the majority opinion on original deliverance; therefore, I must respectfully dissent from this Court’s decision to grant the defendant’s application for rehearing, to withdraw that opinion, and to reach a different conclusion.

At issue here is whether a defendant in a rape or sexual abuse case involving a child may introduce into evidence the fact that the child prosecutrix had made inconsistent statements regarding another alleged instance of sexual abuse by a third party, on the grounds that the inconsistency of these statements regarding third parties will shed some light on the prosecutrix’s overall credibility and propensity to tell the truth.

The trial court refused to admit the statements about the third party. The Court of Criminal Appeals, in Peeples v. State, 681 So.2d 235 (Ala.Crim.App.1994), reversed the defendant’s conviction and remanded, stating, “It is not necessary that [Peeples] show J.S.’s accusations that her stepbrother had sexually abused her were false. It made no difference whether the accusations were true or false. What was at issue was J.S.’s credibility. The conflicting statements were offered to show that J.S. had, in some way, lied about another instance of sexual abuse.” 681 So.2d at 236.

I believe that this Court’s affirmance of the judgment of the Court of Criminal Appeals, which allowed the statements to be admitted without regard to their truthfulness or falsity, contravenes current Alabama law and will needlessly cloud the issues at trial in future rape and sexual abuse cases.

At the heart of this case are the two statements made by the 9-year-old prosecutrix, J.S., regarding an allegation of sexual abuse by her 12-year-old stepbrother. During an interview with a Department of Human Resources worker, J.S. told the worker that no one had bothered her and her sister except for the defendant, and she denied that at the time of that interview a boy was coming into her home and trying to pull her panties down and have sex with her. The DHR worker later talked with J.S.’s school counselor, who stated that J.S. had told her that her stepbrother, J.R., had tried to have sex with her at home, and that J.S. had not mentioned Peeples. In a subsequent interview, J.S. told the DHR worker that her stepbrother had once pulled her panties down and tried to have sex with her with his finger. She stated that this had happened a long time before, and said that he was not bothering her at the time of the interview. The stepbrother denied the allegations. The school counselor thought that J.S. might be making up the allegations about the stepbrother, but J.S.’s father stated that he felt there might be something to J.S.’s story and that he would keep a closer eye on the children. The DHR worker was unable to conclusively prove or disprove the incident, or when it might have taken place, but noted in her report that there was “reason to suspect.”

The end result of these interviews, after everything else has been stripped away, is that we have two statements, made by the prosecutrix, which on their faces seem inconsistent: a statement by the prosecutrix in one interview that Peeples was the only person who had bothered her, and a statement made in two other interviews indicating that her stepbrother had once tried to abuse her.

It appears to me that this Court and the Court of Criminal Appeals do not address the fact that it is very likely that J.S.’s two statements were not inconsistent. When J.S. initially told the social worker that no one had bothered her except Peeples (a grown man), she also stated at that time that at present no boy was coming into her home and trying to pull her panties down and have sex with her — which is the abusive act that she had previously described to a school counselor that had involved her stepbrother. It seems evident that in the initial interview J.S. could very well have been referring to two different instances of abuse.

Thus, it is entirely possible that J.S., who was nine years old at the time of the interview, could have answered the social worker’s initial questions under one of two different assumptions: either that what Peeples had done to her recently was different from what her stepbrother had done long before, and thus at the present time no one else was bothering her in the same way that Peeples had, or that the stepbrother’s abuse had happened long before and that at the present time the only person abusing her at all was Peeples. It is also significant to note that when the social worker asked about the stepbrother in a follow-up interview, J.S. did not deny that the stepbrother had abused her; she explained what had happened and then stated that it had happened a long time before, and that her stepbrother was not bothering her then. Thus, it is entirely possible that J.S.’s statements were in fact consistent. For the Court of Criminal Appeals and this Court to treat this nine-year-old child witness as if she were an adult and to apply the same rules of law to her as would be applied to an adult is wrong, but even assuming that J.S.’s statements were inconsistent, and assuming further that they directly contradict one another, there is still a problem with the holding of the majority.

Even assuming that both statements made by the child could not be true, that does not completely resolve the problem; there is no way to tell in this ease which statement was true and which was false. The majority states that this is the very reason to admit the statements, but I must disagree with that. The law in Alabama, which this decision will overrule, is clearly that a prosecutrix’s prior charges of sexual misconduct are relevant and may be introduced to impugn her credibility only if they have been conclusively proven to be false. See Phillips v. State, 545 So.2d 221, 223 (Ala.Crim.App.1989), and Ex Parte Loyd, 580 So.2d 1374 (Ala.1991). The holding by the majority will also, by implication, overrule, or throw into uncertainty, the general rule that a prosecutrix in a rape case may not be questioned about reports of rape against persons other than the defendant. Hollis v. State, 380 So.2d 409, 411 (Ala.Crim.App.1980); Webb v. State, 455 So.2d 223, 224 (Ala.Crim.App.1984).

The reasoning of the majority is as follows: In this case we have two inconsistent statements, one tending to suggest that J.S.’s stepbrother abused her, and the other — by implication, because J.S. never actually denied accusing her stepbrother — tending to suggest that he did not. This emphasis on the inconsistency alone, without regard to which of the statements is true, can lend itself to much abuse. First, as shown above, it is possible that the prior statements are not actually inconsistent. Additionally, the holding’s sole emphasis on inconsistency does not take into account the fact that there can be degrees of inconsistency.

The holding by the Court could have serious ramifications. Many victims of sexual abuse or rape are very young, and victims are traumatized by their ordeal; they may not possess the ability to articulate their stories in a clear and concise narrative, and sometimes their accounts of what happened can give rise to inconsistencies.

It appears to me that the holding also fails to take into account that sexual abuse victims may initially deny that the abuse occurred, or even retract their statements under pressure from family members if the abuser is a relative.

What if, for example, a rape or sexual abuse prosecutrix has had another instance of abuse in her past, by some third party, and initially denied, on that earlier occasion, that she was being abused, but, when questioned further and confronted with physical evidence, admitted that she was, in fact, being abused? It is true, under the reasoning of the majority, that these statements are inconsistent; either the prosecutrix was abused or she was not, and not both; therefore, the statements regarding the third-party incident should be admissible in the later case, on the grounds that the prosecutrix was lying about the past incident, and this admission would shed some light on the prosecutrix’s ability to tell the truth. But should this initial denial be admitted as conclusive evidence that the prosecutrix lied about the entire prior incident without regard to whether the incident actually took place? Should it be admissible in terms of questioning the prosecutrix’s credibility and equated with the statements of another prosecutrix, who freely admits that she made false charges against others in regard to a third-party incident in order to manipulate that third party? Under the rationale of the majority, the answer to both questions apparently would be in the affirmative.

The law in Alabama is clear: Proof of bad acts by defendants and witnesses, which do not have a direct bearing on the issues in the case, has no place in a criminal trial. A criminal defendant’s uncharged bad acts may not be put into evidence for the mere purpose of showing a propensity to commit a crime or to commit a particular kind of crime. Such conduct may be shown only if it is relevant to the instant charge, i.e., if such conduct is part of the res gestae or tends to prove a relevant fact. The same is true of witnesses; specific misconduct by witnesses may not be proven, unless it is relevant to the issues of the case, e.g., showing bias against a party. See C. Gamble, McElroy’s Alabama Evidence, § 69.01 and § 140.0(8)-(10) (4th ed. 1991).

More specifically, a prosecutrix in a rape case may not be questioned about reports of rape made against other persons other than the defendant. Hollis v. State, 380 So.2d 409, 411 (Ala.Crim.App.1980); Webb v. State, 455 So.2d 223, 224 (Ala.Crim.App.1984).

A similar rule provides that false reports against third persons by a witness may be proven, in the sound discretion of the trial judge, only if the trial judge determines in a hearing out of the presence of the jury that the false reports against the others are sufficiently similar in pattern to the report or testimony in the instant case to justify presenting evidence of them to the jury. Fuller v. State, 269 Ala. 312, 337-39, 113 So.2d 153, 175-77 (1959), cert. denied, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960).

In today’s opinion, the majority has incorrectly extended the holding of Phillips v. State, 545 So.2d 221 (Ala.Crim.App.1989).

In Ex Parte Loyd, 580 So.2d 1374 (Ala.1991), this Court cited the Phillips rule and held that in a rape case prior false charges against third parties were also admissible to show a common scheme, plan, design, or system by the prosecutrix. This Court reversed the Loyd defendant’s conviction for sodomy, and remanded, noting that the prior charges that the defendant wanted to introduce had been conclusively proved to be false, by the victim’s own admission.

The rule under Phillips and Loyd is fundamentally sound, because it provides a balance between the rights of a prosecutrix in a rape or sexual abuse case and the rights of a defendant. If the prior charges against a third party have been shown to be false, the defendant should rightly be able to introduce evidence of them, to shed some light on the credibility and veracity of the prosecutrix; if the charges cannot be conclusively proven false, then the prosecutrix should be protected from the ordeal of discussing and defending her statements about another instance of abuse that is not relevant to the instant ease.

The majority opinion here effectively destroys this balance, and the end result of its holding is that the persons most in need of the protection of the Phillips and Loyd rule — those unfortunate children or other persons who have been raped or abused on more than one occasion or by more than one person — will now have every sentence of their past stories combed for inconsistencies in order that they may be attacked at trial on the basis of their prior statements, regardless of whether the past incidents and statements were proven to be truthful or false. This emphasis on any inconsistency will give a defendant a powerful weapon to attack or destroy the prosecutrix’s credibility, without any need for proving the truthfulness or the relevance of the past charges.

Peeples argues that the current rule under Phillips and Loyd requires him, in effect, to try two eases at once in regard to the victim’s truthfulness. The majority’s ruling in this case incorrectly relieves the defendant of this “burden.” A defendant now may merely allege a past inconsistency regarding a statement about a third party, in order to attack a prosecutrix’s credibility, without proof of truthfulness. The purpose of rules of evidence is to ensure that only evidence that tends to be truthful is admitted; this holding serves to weaken those rules with its indifference to the truthfulness of the allegations about a third party. Furthermore, it weakens the trial judge’s discretion to exclude such evidence. Where will this ruling take us?

The position I take, I believe, has support from other jurisdictions. In People v. Hurlburt, 166 Cal.App.2d 334, 343, 333 P.2d 82, 88 (Dist.Ct.App.1958):

“In stating that the courts should be liberal in this field, a word of warning is called for. Because of the fear that a grave injustice to the defendant may occur, the courts should not forget the rights of the People. There are men who do commit the sort of acts here involved. Such men are a danger to society, and should be kept out of circulation. The State has a duty and a real interest in protecting its young people from such detestable and criminal behavior. The courts should protect this interest. While it frequently has been recognized that charges of this type are easy to make and hard to disprove, it should also be noted that charges that the child prosecutrix has lied about such matters in the past can also easily be made. The courts should be vigilant in seeing to it that the privilege of cross-examination here approved should not be abused.”

Because I must agree with the State that the defendant has not made the showing required by Loyd and Phillips — that J.S.’s statements regarding her stepbrother were false — and because I believe the statements were properly excluded and because I believe that the trial judge did not abuse his discretion in excluding the statements, I must respectfully dissent.

HOOPER, C.J., and INGRAM, J., concur. 
      
      . In this connection, the Loyd rule is not to be confused with the rule governing the admissibility of prior inconsistent statements, which rule may be summarized as follows:
      “It is generally agreed that, when a witness is called to testify to a material issue in the case, the party against whom the 'witness is called may impeach his credibility by proving that he has previously made statements that are inconsistent with his present testimony. These prior statements of self-contradiction can be introduced either through the cross-examination of the witness or ... by introducing other witnesses who will testify to the inconsistent statement.”
      C. Gamble, McElroy’s Alabama Evidence, § 155.0(1) (4th ed. 1991) (emphasis added).
      This rule is not involved here. The dispute arose out of a motion in limine, that is, before J.S. testified. As a consequence of the trial court’s ruling, which prevented any inquiry into the collateral allegation, it cannot be contended that her trial testimony was inconsistent with any prior statement.
     
      
      . In Phillips, the defendant was convicted of rape, and argued that the trial court erred by not allowing him to introduce evidence that the child victim had brought prior unfounded charges of rape against three other persons. The defendant contended that he offered the evidence to show the victim’s lack of credibility, not to show a lack of chastity. 545 So.2d at 222. The Court of Criminal Appeals held that admitting evidence that the complaining witness had brought prior false charges of sexual assault against others did not violate the rape shield statute and did not highlight the victim's past sexual conduct; instead, it exposed a corrupt state of mind. Id. at 223. The court held that when it has been shown that the charges are false, the fact that they were made is admissible. In Phillips, the Court of Criminal Appeals ruled that the fact that the prior charges had been nol-prossed did not demonstrate conclusively that the charges were false, and thus they were properly excluded.
     