Bailey v. State

Moylan, J., delivered the opinion of the Court. The perils of the open road became stark reality when three “hippies” from Canton, Ohio, hitchhiking to a rock festival in Florida, caught a midnight ride in a station wagon occupied by three members of the Pagans motorcycle gang from Pittsburgh. One of the consequences of that bizarre odyssey from the Breezewood interchange of the Pennsylvania Turnpike to the Kenilworth Avenue exit of the Capital Beltway in Prince George’s County was the conviction of the appellant, Edwin Howard Bailey, for rape 1 by Judge Daniel T. Prettyman, sitting without a jury, in the Circuit Court for Worcester County, following the removal of the case ultimately from Montgomery County by way of an intermediate stopover in Talbot County. The primary thrust, largely by insinuation, of a defense that produced some sixteen hundred pages of testimony was that Barbara Lynn Berkshire, a then unmarried twenty-one-year-old female, by having theretofore used (albeit infrequently) both marijuana and hallucinogenic drugs and by hitchhiking about the country in the unchaperoned company of two male friends, essentially ⁸⁷ outlawed herself from the protection of the laws proscribing rape.

The astute appraisal of Judge Prettyman reached the conclusion that Miss Berkshire did, indeed, place herself in a compromising predicament: “. . . she did place herself in a most precarious position. You might say that if you were trying a civil case, she virtually assumed the risk of her position. She sets out, nearly at dark, in the snow, on a cold night from Canton, Ohio with two male companions who, to say the least, did not offer the appearance of a man in a gray flannel suit, and who had, over a period of time, like her, indulged in the use of dangerous or narcotic drugs, and she set out with them, with all of the equipment and all of the trappings, which would sustain them as persons who would live off the land, so to speak, in temporary shelter and, apparently, with the facilities to prepare their own food and without any visible means of support. “To hitchhike to Washington knowing, of course, that when she offered herself on the highway with her two companions, that invariably, unless a very gratuitous circumstance arose, she would be riding with strangers of all types of dispositions, in all modes of transportation, and without her having any control over the way and manner in which the transportation was operated, the direction that it went, or any detours or by-passes that it might make, and not knowing what kind of equipment, weapons, or like instruments, would be available in the automobile, or not knowing the actual physical condition of the operator. “Well, they arrived at Breezewood in the car with three drunken men, characterized so by the witnesses, which reeked of the odor of al ⁸⁸ cohol. To say the least, again, these did not present themselves as men in gray flannel suits; but, apparently, two of them, from the photographs and the descriptions, were rather heavyset, burley types, and even the Defendant was supporting hair and moustache, and they didn’t make him look particularly sensitive and, certainly, the other two looked far more bushy and rough, shall we say, than he did.” Judge Prettyman, in evaluating the relative gravity of this rape in the spectrum of all rapes, appreciated further that the psychic injury Miss Berkshire suffered was less than might have been suffered by more sensitive and sheltered females just as he grasped that her male companions, Donald Shank and Bruce Malcuit, 2 were less, than heroic in defending her honor: “I have reached the considered conclusion that neither Malcuit nor Shank cared a great deal whether Miss Berkshire had intercourse with these men or not, and I have reached the conclusion that they might be just as well satisfied that she did as though she hadn’t.

There isn’t any other way to view the lackadaisical manner in which they approach this entire event. Secondly, I have reached the overall conclusion that this event was not near so serious in its impact upon Miss Berkshire, now Mrs. Malcuit, at the time as her two companions would have had the police authorities believe, or as they would now detail to us, and what I would determine righteous indignation, because I don’t believe either one of them are devoted to upholding the law, or to seeing that the enforcement of the criminal law is encouraged or assisted.” Judge Prettyman’s realistic appraisal of the situation ⁸⁹ was reflected in his imposing a sentence of three years from the date of arrest. On the question of guilt, however, the nub of his decision and the ultimate retort to the broad counterattack of the defense was: “. . . that no matter how loose the morals of a woman may be, she still enjoys the privilege of bestowing her favors upon those men of her own selection, and not upon others whom she does not select.” A brief unfolding of the events of the evening and early morning of March 18-19, 1970, is necessary prelude to a consideration of the seven contentions raised by the appellant. As of the afternoon of March 18, 1970, Malcuit and Shank were planning to hitchhike from their homes in Canton, Ohio, to a rock festival in Daytona Beach, Florida.

Actually, they needed only to hitchhike as far as Washington, D.C., whence a friend was to drive them the rest of the way. Miss Berkshire had known both Malcuit and Shank for some months and had a romantic attachment toward Malcuit. That afternoon, the two males spontaneously proposed to her that she accompany them to Florida. Just as spontaneously, she agreed.

Within an hour, she had packed a bed roll with a few necessaries and left a note for her parents. The journey began at about 4:00 p.m. with a friend dropping them off at the closest interchange of the Ohio Turnpike. Midnight brought them as far as the Breezewood interchange of the Pennsylvania Turnpike, from where Interstate 70 veered off to the southeastward and Washington. An Oldsmobile station wagon stopped.

The three travelers threw their bed rolls into its rear compartment. Malcuit and Shank climbed in amidships where the ultimate co-defendant Hornichak was seated. Miss Berkshire got in front between the appellant, who was driving, and the co-defendant Clokey. The three occupants had been drinking to some extent and continued to drink from cans of beer.

Malcuit and Shank shared a can or two with them. Miss Berkshire did not partake. ⁹⁰ The initial atmosphere was civil, if not convivial. The most significant conversation dealt with marijuana smoking. The hosts asked if the guests had any marijuana.

They responded that they did not, although Shank was able to offer cigarette papers. Clokey then produced a package of marijuana, but it was too fine-grained for rolling. Conversation then centered on improvising a pipe by punching holes in a certain fashion in a beer can. The effort came to naught.

During the drive, several brief stops were made for roadside urination. For most of the trip, Miss Berkshire dozed. Sometime between two and three o’clock, the mood changed abruptly when Clokey announced to the appellant that he had not had “a train” in a long time. 3 The reference had ominous meaning for Malcuit and Shank, as well as for Miss Berkshire. Clokey then began making sexual advances toward her.

She pushed him away. Shank admonished Clokey, “Cool it. She’s a good chick.” Clokey suddenly produced from the glove compartment a .25 calibre automatic pistol and even civility was at an end. He pointed it at Malcuit and Shank and ordered them to “Keep cool.” He placed it against the head of Miss Berkshire and told her to do as she was told.

Clokey ordered her to the rear compartment of the station wagon. She and he both scrambled to it over the seats and between the rear passengers. Taking her dungarees off one leg, Clokey proceeded to rape her. He then asked Hornichak and the appellant whether they “wanted any.” Hornichak declined.

The appellant did not decline, stopped the station wagon, and exchanged places with Clokey. He then proceeded to rape Miss Berkshire. Almost immediately after he had finished, the station wagon arrived near the Kenilworth Avenue exit of the Capital Beltway, stopped, discharged the three passengers and their equipment and drove on. ⁹¹ Miss Berkshire was in tears and distraught. A police call box happened to be nearby.

Shank made repeated calls and finally got through to the State Police. Trooper Paul Svoboda got the call at 3:19 a.m. and responded at 3:27 a.m. He took the report of the rape, a description of the three men and their vehicle and the fact that they were eastbound on Route 495 and would probably be proceeding toward Washington via Kenilworth Avenue. He immediately broadcast a lookout to other police in the area.

The Legal Sufficiency of the Evidence The factual discussion to this point is enough to demonstrate the shallowness of the appellant’s contention that the evidence was legally insufficient to sustain the conviction. Whatever other defects might or might not inhere in the State’s case, legal insufficiency as such was not one of them. The weight of the evidence and the credibility of the witnesses were for the trial judge. Weaver v. State, 226 Md. 431 ; Dunlap v. State, 1 Md. App. 444 .

Miss Berkshire, Malcuit and Shank all testified in elaborate detail to the entire three and one-half hour ride, culminating in the rapes. Her testimony alone would have been sufficient. Jones v. State, 5 Md. App. 489 ; Coward v. State, 10 Md. App. 127, 130 . Trooper Svoboda testified to the immediate complaint of rape.

There was no question as to the identity of the appellant, Clokey or Hornichak, who were arrested within fifteen minutes of the complaint (as will be discussed more fully hereinafter in dealing with the constitutionality of the search). The glove compartment of the station wagon produced a .25 calibre automatic pistol matching the description given by the three key State’s witnesses. A vaginal examination of Miss Berkshire at 5:11 a.m. revealed sperm, non-motile but with tails still intact, indicating intercourse no earlier than 5:11 p.m. on May 18 and no later than 4:41 a.m. on May 19. Miss Berkshire had testified that, aside from the rapes, she had had no intercourse within the previous seventy-two hours.

Sperm was found on the trousers of ⁹² the appellant. The appellant neither testified nor produced witnesses to testify for him. Giving due regard to the opportunity of the lower court to observe the demeanor and to judge the credibility of the witnesses under Maryland Rule 1086, we hold that the evidence showed directly facts from which he, as trier of the facts, could fairly be convinced beyond a reasonable doubt that the appellant was guilty of rape. His judgment was, therefore, not clearly in error.

Williams v. State, 5 Md. App. 450, 458 ; Metz v. State, 9 Md. App. 15, 23 . The Non-Motility of the Sperm Cells A comment is in order about one of the appellant’s subcontentions on the question of legal sufficiency. He bases his argument that the testimony of the examining physician, Dr. Fahrney, disproved the State’s theory of the case on a subtle but misleading twist he gives to the import of that testimony. The fact that the tails had not yet separated from the bodies of the sperm cells established the earlier limit of the range within which intercourse took place.

The later limit of that range was established'by the fact that the sperm cells were no longer motile. Dr. Fahrney clearly testified on both direct and cross-examination that sperm cells, inside a vagina, lose their motility at some time no less than thirty minutes nor more than six hours after ejaculation. The examination was at 5:11 a.m. The only opinion as to the later limit beyond which ejaculation, with reasonable medical certainty, did not occur was, therefore, 4:41 a.m.

The appellant argues that Dr. Fahrney really placed that later limit at a much earlier time, a time which would exculpate any of the Pagans. The appellant asked Dr. Fahrney a question based upon a hypothetical opposite to the actual factual premise at bar. He asked the doctor to assume that the sperm cells he examined had been motile instead of non-motile. In that eventuality, would not the doctor have to agree, taking the range of thirty minutes to six hours for the ⁹³ loss of motility, that intercourse did not occur more than six hours earlier, to wit, not earlier than 11:11 p.m.

Dr. Fahrney responded, “Yes.” Then, by a clever but invalid exercise of logic, the appellant assiduously sought, before the trial court and before us, to identify the earlier limit of the motile hypothetical with the later limit of the non-motile actuality. He urges the deceptively persuasive but invalid proposition that if motility establishes that ejaculation did not occur before 11:11 p.m., then non-motility establishes that ejaculation did not occur after 11:11 p.m. He chooses to ignore that between 11:11 p.m. and 4:41 a.m., the two ranges overlap and that that area of overlap is consistent with both motility and non-motility. The trial judge did not buy the appellant’s logic; nor do we. 4 The Kucharczyk Doctrine The appellant next seeks to discount utterly the testimony of Miss Berkshire and to argue that it should have been excluded by invoking once again the rule of Kucharczyk v. State, 235 Md. 334 .

Once again, that rule, the single manifestation of which in a criminal setting was sui generis, is not controlling. Trial testimony frequently is replete with contradictions and inconsistencies, major and minor. It is the quintessential approach of the Anglo-American trial system to rely fundamentally upon cross-examination, upon the introduction of prior inconsistent statements, upon impeachment devices generally, upon sequestration, upon oral argument to ferret out and to highlight such contradictions if and when they exist. It is then at the very core of the common law trial by jury (and its counter ⁹⁴ part of a court sitting as a jury) to trust in its fact finders, after full disclosure to them, to assess the credibility of the witnesses and to weigh the impact of their testimony.

The extreme and peculiar facts of Kucharczyk produced a limited departure from that fundamental approach. Some appreciation of the limited utility of the so-called Kucharczyk doctrine may be gathered from the fact that it was never applied pr^-Kucharczyk in a criminal appeal and it has never been applied post-Kucharczyk in a criminal appeal. The conviction in Kucharczyk for an unnatural and perverted sex act was based exclusively upon the testimony of the sixteen-year-old victim of the crime. That sixteen-year-old had a full scale I.Q. of only 56.

A defense psychologist testified that the boy “did not have the ability to testify.” On direct examination, he twice denied the very occurrence of the corpus delicti but later did testify as to its occurrence. On cross-examination, he again denied the occurrence of the corpus delicti. The Court of Appeals said, at 337-338: “Our conclusion flows from the fact that the testimony of the prosecuting witness, who was the only person that testified as to any overt act on the part of the appellant, was so contradictory that it lacked probative force and was thus insufficient to support a finding beyond a reasonable doubt of the facts required to be proven. On direct examination the boy twice testified that nothing happened in the public lavatory after the appellant gave him two drinks.

On cross examination, he testified that nothing happened in the garage. Thus there were unqualified statements by the prosecuting witness that the crime for which the appellant was convicted never in fact occurred.” On those extreme facts, the Court of Appeals applied a rule applicable in civil cases that “. . . if any witness’s testimony is itself so contradictory that it has no proba ⁹⁵ tive force, a jury cannot be invited to speculate about it or to select one or another contradictory statement as the basis of a verdict.” Kaufman v. Baltimore Transit Co., 197 Md. 141, 145 . Indeed, the four cases cited by Kucharczyk as authority well define the limits of the doctrine. Three concern themselves with whether there was sufficient evidence of negligence to take a case to the jury in the face of motions for a directed verdict or motions n.o.v. Kaufman v. Baltimore Transit Co., supra; Baltimore Transit Co. v. Presberry, 233 Md. 303 ; and Eisenhower v. Baltimore Transit Co., 190 Md. 528 .

The fourth dealt with the sufficiency of the testimony to establish the cause of death in a Workmen’s Compensation case. Slacum v. Jolley, 153 Md. 343 . In Slacum , a medical expert at one point testified that heat prostration had caused death but later testified that he could not state positively what had caused death. In ruling this testimony, which was all the plaintiff had, legally insufficient, the Court said, “When a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is too inconclusive, contradictory, and uncertain, to be the basis of a legal conclusion.” In each of the three negligence cases, it was held that the evidence of negligence was legally insufficient where it hinged upon the testimony of a single witness whose trial testimony contradicted itself as to the very happening of the supposedly negligent act.

Not only is the doctrine confined to unresolved contradictions within a single witness’s trial testimony as to the central issue of the case, but it is further a gauge for measuring legal sufficiency of evidence and is not, as the appellant here would have it, an exclusionary device. Despite the limited utility of the doctrine, the life of Kucharczyk has been amazing for the number of occasions on which and the number of situations in which it has been invoked in vain. Kucharczyk does not apply simply because a witness’s trial testimony is contradicted by other statements which the witness has given out of court or, indeed, in some other trial. Brooks v. Daley, ⁹⁶ 242 Md. 185, 191-192 ; Edwardsen v. State, 243 Md. 131, 137-138 ; Wilson v. State, 261 Md. 551, 556-558 ; Alexander v. State, 4 Md. App. 214, 218; Moore v. State, 7 Md. App. 495, 502 ; Jones v. State, 10 Md. App. 420, 428 ; Tumminello v. State, 10 Md. App. 612, 616 ; Sun Cab Company v. Carter, 14 Md. App. 395, 407 .

Nor does Kueharczyk apply where a witness’s trial testimony contradicts itself as to minor or peripheral details but not as to the core issues of the very occurrence of the corpus delicti or of the criminal agency of the defendant. Bell v. State, 2 Md. App. 471, 472 ; Poff v. State, 3 Md. App. 289, 292-293 ; Chesley v. State, 3 Md. App. 588, 596 ; Eley v. State, 4 Md. App. 230, 234; Rasnick v. State, 7 Md. App. 564, 568 ; Lindsay v. State, 8 Md. App. 100, 103 ; Gardner v. State, 8 Md. App. 694, 700-701 ; Dorsey v. State, 9 Md. App. 80, 87 ; Pinkney v. State, 9 Md. App. 283, 295 ; Hunt v. State, 12 Md. App. 286, 292 ; Crenshaw v. State, 13 Md. App. 361, 372 . Nor does Kueharczyk apply where the testimony of a witness is “equivocal, doubtful and enigmatical” as to surrounding detail. Thompson v. State, 5 Md. App. 191, 196-197 .

Nor does Kucharczyk apply where a witness is forgetful as to even major details or testifies as to what may seem improbable conduct. Gunther v. State, 4 Md. App. 181, 184-185. Nor does Kucharczyk apply where a witness is initially hesitant about giving inculpatory testimony but subsequently does inculpate a defendant. Wilkins v. State, 239 Md. 692, 693 .

Nor does Kueharczyk apply where a witness appears initially to have contradicted himself but later explains or resolves the apparent contradiction. Wilson, Valentine and Nutter v. State, 8 Md. App. 653, 674 . Nor does Kucharczyk apply where a State’s witness is contradicted by other State’s witnesses. Scott v. State, 2 Md. App. 709, 713-715 ; Tillery v. State, 3 Md. App. 142, 148 ; Gunther v. State, supra; Hunt v. State, supra.

Nor does Kueharczyk apply where a State’s witness is contradicted by defense witnesses. Johnson v. State, 3 Md. App. 219, 222 . Nor does Kucharczyk apply where a witness does contradict himself upon a critical issue but where there ⁹⁷ is independent corroboration of the inculpatory version. Tucker v. State, 237 Md. 422, 424 ; Chesley v. State, supra, 596.

In each of those situations, our system of jurisprudence places reliance in the fact finder to take contradictions or equivocations properly into account and then to make informed judgment in assessing a witness’s credibility and in weighing that witness’s testimony. Even in a pure Kucharczyk situation, the ultimate resolution is solely in terms of measuring the legal sufficiency of the State’s total case and not in terms of the exclusion of the contradictory witness’s testimony. Kucharczyk Inapplicable The situation at bar does not remotely invoke Krucharszyk. Out of several hundred pages of Miss Berkshire’s testimony, the appellant has culled three instances where the trial testimony was allegedly self-contradictory and three instances where it was allegedly contradictory to earlier out-of-court statements.

The three alleged inconsistencies in the trial testimony do not simply relate to merely minor and peripheral detail but turn out, upon a close reading of the record, to be actual misrepresentations of the evidence by the appellant, arrived at by taking partial responses out of their proper contexts. 1. He asserts that Miss Berkshire on direct examination placed Hornichak’s assurance to his colleagues that he would “take care of” Malcuit and Shank “if they tried anything” at the time when Clokey and Miss Berkshire were first climbing into the rear compartment. He asserts that on cross-examination Miss Berkshire squarely contradicted herself by placing that assurance at a later time when Clokey and the appellant were changing places. The full context was as follows: “THE COURT: During this time of this changing back and forth, did you see the gun?

THE WITNESS: No. THE COURT: During this period of time, what, if anything, did Shank and Malcuit do? ⁹⁸ THE WITNESS: Well, wasn’t really too much. Wasn’t too much of anything that either one of them could do. THE COURT: What did they do? I am not asking you what they might have done.

I just want to know, what did they do? THE WITNESS: They didn’t do anything. They sat there. That is when Mr. Hornichak said that he’d watch them to make sure that they didn’t do anything.

THE COURT: You mean he said this while Clokey and Bailey were changing places? THE WITNESS: No, that was when Mr. Clokey and I were getting in the back.” 2. He asserts that on direct examination, Miss Berkshire testified that Clokey pulled his levis part way down in order to have intercourse. He asserts that on cross-examination, she contradicted herself by testifying that Clokey took his trousers completely off.

The full context was as follows: “BY MR. FEISSNER: Q. This morning you told the Court that Mr. Clokey had taken off his pants — trousers—excuse me — to accommodate his deed, is that correct? A. Yes. Q. You also told the Court that Mr. Bailey had taken off his trousers, or had taken them down, to accommodate his deed.

A. Yes. Q. Did Bailey step out of his trousers? A. I don’t remember if he did or not. I don’t think so.

Q. You don’t remember? A. I wasn’t .... Q. You would concede that it is rather difficult circumstances to be in to have a pair of trousers around your knees, in the back of a station ⁹⁹ wagon, with three packs there, and you, would it not, ma’am? A. There was room.

Q. I see. But you do remember his trousers were around his knees, or were they off? A. I don’t remember. Q. Which way?

Were down, were they not? A. Yes, they were. Q. And Mr. Clokey had taken his off? A. I don’t remember whether he had taken them completely off.

They were down, also.” 3. He asserts that on cross-examination, Miss Berkshire testified that she had stopped using drugs in January or February of 1970. He asserts that this was contradictory to her earlier testimony on direct examination that she stopped using drugs the night before she got married in July of 1970. The full context of that earlier examination was as follows: “Q. Now, Barbara, it has been some time since you have used drugs, is that right?

A. Yes. Q. Why did you stop using drugs? MR. FEISSNER: Objection.

THE COURT: Overruled. THE WITNESS: I stopped, well, the night before Bruce and I got married. Neither of us liked to do it anymore. We didn’t like the effects and so we both quit.

Q. Your husband, Bruce, has stopped, also? A. Yes. THE COURT: When was it that you were married? July?

THE WITNESS: July. THE COURT: Uh-huh. BY MR. BOURS: Q. Have you had any drugs recently prior to March 18th or 19th of 1970? ¹⁰⁰ A. No. Q. And following the 18th of March or 19th of March, 1970, and up until the time of your marriage, did you have any drugs?

A. No.” The true facts are simply not as the appellant alleges them to be. One of the three alleged contradictions between trial testimony and earlier out-of-court statements clearly appears to be either a misunderstanding by Miss Berkshire in the course of her testimony or a misrepresentation or misunderstanding of Miss Berkshire’s testimony. A statement given by Miss Berkshire to the police at 8:55 a.m. on the morning of the rape indicated that she complied with Clokey’s order to place his penis in her vagina. At trial, she testified that it simply didn’t happen that way and that she does not believe that she had told the police that it happened that way.

Nevertheless, the alleged contradiction to that police statement was her testimony on direct examination that she “did not help him in any way.” The full context permits readily the interpretation that “help” referred simply to the act of disrobing: “A. Yes, he was taking my levis off. Q. Did you help him? A. No. Q. Tell the Court just what happened after that. A. Well, he took my levis, my one boot, just out of one leg, and, then, he pulled his levis down partway, then, he had intercourse with me.

Q. Now, did you help him in any way, or assist him in any way of doing that? A. No.” Nor do the other two alleged contradictions necessarily establish that Miss Berkshire ever contradicted herself even by earlier out-of-court statements. Her trial testimony, of course, was that she was raped ¹⁰¹ by both Clokey and the appellant. The letter from Dr. Fahrney to the State Police reporting on his early morning examination of Miss Berkshire recited, apparently on the basis of the history furnished by her, that she had been assaulted by “one white male.” Dr. Fahrney, at trial, had no recollection of what Miss Berkshire had told him.

He had a clear recollection, however, that she was lucid and sincere and gave no appearance whatsoever of being on any sort of drugs. The notes taken by Dr. Fahrney at the time of the actual examination, on the basis of which he later dictated the letter, simply recite by way of history, “Patient states she was forced to submit to sexual relations at gunpoint.” The reference in the letter could well have been an erroneous assumption on the part of Dr. Fahrney on what was a peripheral matter for his purposes. The final contradiction relied upon by the appellant is that at trial, Miss Berkshire testified that Clokey made the reference about not having had “a train” in a long time, whereas in her statement to the police, Miss Berkshire said that she didn’t think he said anything. The flimsy predicate for this allegation was the thumbnail sketch given at 8:55 a.m. on March 19th in which she summed up the entire three-hour trip in a brief paragraph : “We were walking along down near Breeze-wood and three guys pulled over and picked up us.

We didn’t thumb, they just stopped and Bruce and Don got in the back and I got up front. We were driving along and talking about different motorcycle gangs. Really we didn’t talk much at all. All I remember is I was more or less half asleep and the guy on the passenger’s side I don’t think he said anything he just started messing around with me and Bruce and Don said something to him to leave me alone.

He got out a gun from the glove compartment and turned around and said to them for them ¹⁰² to keep quiet, then he put it against my head and asked me if I understood? He had me climb into the back and he raped me there and then they pulled over and the driver came in the back and he went up and drove the car. After that they let us out.” Even if these three alleged contradictions between Miss Berkshire’s trial testimony and her earlier out-of-court statements were real and substantial, they would not make Kucharczyk applicable. We have grave doubts, moreover, about either their reality or their substantiality.

The “Automobile Exception” The First Warrantless Search All of the circumstances surrounding the arrests of the appellant and his two co-defendants and