United States v. Anthony Damian Azure
845 F.2d 1503, 1988 U.S. App. LEXIS 6052, 1988 WL 41933 (1988)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Evidence of a rape victim's past sexual behavior is inadmissible under Fed.R.Evid. 412 unless it is directly relevant to the source of physical injury, and an out-of-court identification by a child victim, though possibly inadmissible hearsay when offered to prove the abuser's identity, may be deemed harmless error if the victim testifies and is cross-examined, and other strong corroborating evidence exists.
Facts:
- Anthony Damian Azure was in a common-law marriage with Patty Lozensky, and Wendy Lozensky, age 10, was one of Patty's daughters.
- On or about December 8, 1984, while Patty and Azure were out drinking, they had a fight, and Patty went to her mother's house.
- Later that evening, Azure returned alone to Mary Lou Caine's house, where the children were staying, angry and drunk, hit Wendy, and gave her a bloody nose.
- Azure then grabbed Wendy and took her back to their house, attempting to have sexual intercourse with her in his pickup truck and at home, and also forced her to have oral sex.
- The next morning, Wendy called Mary Lou Caine and asked her to pick her up, requesting Bill Berceir, who lived with them, not to tell Azure where she was going.
- In late December 1984, Wendy's father brought her to social services personnel due to suspected physical abuse, and social worker Linda Heilman interviewed Wendy, during which Wendy identified Azure as her abuser.
- On December 31, 1984, Dr. Warren Keene examined Wendy, finding a three-centimeter healing laceration on her vaginal wall, a vaginal opening twice the size anticipated for a child her age, a stretched hymenal ring, and Wendy tested positive for gonorrhea.
- Dr. Keene and Dr. Robert ten Bensel both testified that the laceration indicated recent, painful penetration and force, and Wendy herself testified that her contacts with Azure were painful.
Procedural Posture:
- Anthony Damian Azure was initially convicted by a jury in a district court of carnal knowledge of a female under the age of sixteen.
- Azure appealed his initial conviction to the United States Court of Appeals for the Eighth Circuit.
- The Eighth Circuit reversed Azure's initial conviction, finding the district court had improperly admitted expert opinion testimony on the credibility of the victim (United States v. Azure, 801 F.2d 336, 341 (8th Cir.1986)).
- The case was remanded for retrial in the district court.
- On retrial, a jury again found Azure guilty as charged.
- Azure again appealed his subsequent conviction to the United States Court of Appeals for the Eighth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Did the district court err by (1) excluding evidence of the victim Wendy Lozensky’s past sexual behavior under Fed.R.Evid. 412, (2) admitting Wendy Lozensky’s out-of-court statement to social worker Linda Heilman identifying Anthony Damian Azure as her abuser, and (3) admitting excerpts from Anthony Damian Azure’s prior sworn testimony in rebuttal?
Opinions:
Majority - LARSON, Senior District Judge
No, the district court did not err in excluding evidence of Wendy Lozensky’s past sexual behavior, nor in admitting excerpts of Anthony Damian Azure’s prior sworn testimony, and while it erred in admitting Wendy Lozensky's out-of-court statement to Linda Heilman, this error was harmless. First, the court properly excluded evidence of Wendy's alleged past sexual contact with David Malterre under Fed.R.Evid. 412. While Wendy's vaginal laceration constituted an "injury" that could potentially trigger the exception allowing such evidence (Rule 412(b)(2)(A)), the district court found the evidence irrelevant to the source of that specific injury. Malterre testified that any contact he had with Wendy was consensual and never caused her pain, whereas medical experts (Dr. Keene and Dr. ten Bensel) unequivocally stated that Wendy's laceration was painful and indicative of force. Malterre was also unable to pinpoint the timing of his alleged contacts. Given these factors, the court concluded there was no abuse of discretion in excluding the evidence. Second, the district court erred in admitting social worker Linda Heilman’s testimony about Wendy identifying Azure as her abuser for the purported non-hearsay purpose of explaining the investigation's focus. The only true relevance of this identification was to prove that Azure was, in fact, the abuser, making it hearsay. However, this error was harmless. Wendy herself testified at trial and was subject to cross-examination, largely negating the primary justification for excluding hearsay. Furthermore, Wendy's testimony was corroborated by her sisters' testimony and Dr. Keene's medical records, where Wendy also identified Azure. The government's case was strong, and the jury was explicitly cautioned not to consider Heilman’s testimony as proof of guilt, leading the court to conclude the admission had no substantial influence on the outcome. Third, the district court did not err in admitting excerpts of Azure’s prior sworn testimony from his first trial as rebuttal evidence. Azure chose not to testify at his second trial, but his prior testimony, in which he admitted taking Wendy home alone on the night of December 8th, directly countered defense witness Bill Bercier's testimony, which implied Wendy was not home that night. This was a proper function of rebuttal evidence, which is to "explain, repel, counteract or disprove evidence of the adverse party."
Analysis:
This case reinforces the stringent limitations on the admissibility of a sexual assault victim's past sexual behavior under Federal Rule of Evidence 412, emphasizing that such evidence must be directly relevant to the specific injury or semen source and not merely general character impeachment. It also illustrates the application of the harmless error doctrine to improperly admitted hearsay in child sexual abuse cases, particularly when the declarant testifies and is subject to cross-examination, and strong corroborating evidence exists. The decision provides guidance on the appropriate scope of rebuttal testimony, allowing prior sworn statements to counteract defense evidence even if the defendant does not testify in the current proceeding.
