Cole v. State

MOYLAN, Judge. The appellant, Paul Martin Cole, was convicted by a Carroll County jury of a sexual offense in the second degree. Upon this appeal, he raises the following three contentions: ²⁸⁴ 1. That the evidence was not legally sufficient to sustain the conviction; 2.

That the trial judge erroneously admitted as rebuttal evidence prior consistent statements made by the ten-year-old victim; and 3. That the trial judge erroneously denied the appellant’s motion for a new trial after the discovery of allegedly exculpatory evidence. On Saturday, October 29, 1988, the appellant was living with Barbara Stoffa, 1 the mother of ten-year-old Amy Stoffa. Amy testified that shortly after her mother left for work that day, she went into the bedroom to take the appellant a cup of coffee.

The appellant told her to undress, got Vaseline from under the bed, put it on his penis and her anus, and engaged in anal intercourse. There was corroborative testimony as well. Barbara Stoffa testified that on Tuesday, November 1, three days after the attack, her daughter complained to her of having been sexually assaulted. On the following morning, Barbara Stoffa took her daughter to a pediatrician, Dr. Anthony Vazzano.

Dr. Vazzano testified that Amy related the incident to him in a way consistent with her testimony at trial. He further testified to discovering an anal cut consistent with the sexual abuse charged. After Dr. Vazzano reported the incident to the Department of Social Services, Mr. Charles Bosley, a Child Protective Services Worker at the Department of Social Services, conducted an investigation. On Thursday morning, November 3, he and Maryland State Trooper Carol Dorn interviewed Amy in the presence of her mother.

Trooper Dorn testified that Amy described the offense that; had occurred on the previous Saturday. Mr. Bosley also ■ testified to the fact of Amy’s complaint. ²⁸⁵ In terms of legal sufficiency, there was abundant evidence of the appellant’s guilt to justify the trial judge’s submitting the case to the jury. A legally sufficient, prima facie case, however, is not necessarily the same as an ultimately persuasive case. Except for the observation of the anal tear by the pediatrician, all of the evidence of the appellant’s guilt emanated from Amy herself, either through her trial testimony or through her versions of the incident given to 1) her mother; 2) Dr. Yazzano, the pediatrician; 3) Mr. Bosley, the social worker; 4) Trooper Dorn; and 5) Peggy Rock, her baby-sitter.

The appellant took the stand in his own defense and denied totally any sexual involvement with Amy. With the key issue before the jury clearly being a credibility battle between Amy and the appellant, the appellant sought to erode Amy’s credibility by calling the social worker, Charles Bosley, as a defense witness. Mr. Bosley testified that Amy is mildly retarded and has a tendency to exaggerate in order to get attention. He testified further that he had been called upon on two other occasions to interview Amy about allegations that two other persons had sexually abused her.

In the course of one of those other interviews, Mr. Bosley noted that Amy was not always to be believed and that one of the other alleged incidents was probably a dream. The critical issue on this appeal revolves about the State’s effort to rehabilitate the arguably impeached credibility of Amy. Four witnesses were called in rebuttal: 1) Barbara Stoffa, 2) Trooper Dorn, 3) Mr. Bosley, and 4) Peggy Rock, the baby-sitter. The appellant alleges that all four of these rebuttal witnesses were permitted to testify to prior consistent statements given them by Amy.

Although it is not fatal to the appellant’s cause, he does exaggerate the number of incidents of alleged misuse of prior consistent statements. Barbara Stoffa’s rebuttal testimony did not relate to the prior complaints made to her by Amy. She simply rebutted the appellant’s assertion that ²⁸⁶ the Vaseline jar used during the sexual abuse episode had been used by the appellant and Barbara Stoffa and placed under the bed for that purpose. The rebuttal testimony of Charles Bosley, moreover, consisted simply of Mr. Bosley’s observation that, notwithstanding Amy’s occasional tendency to “exaggerate,” there had been factual support for one of her other complaints of sexual abuse.

As we approach consideration of the critical issue, therefore, the instances of allegedly erroneous use of rehabilitative testimony are reduced from four to two. That, however, does not compromise the forcefulness of the appellant’s argument. The appellant urges that the prejudice is self-evident when one party’s version of an incident is allowed to be repeated again and again. He argues that the repetitive retelling of the same story adds to its weight in the minds of its auditors.

We agree that that is the probable impact. Before being called upon to resolve the credibility battle between two diametrically opposed versions of the critical event in this case, the jury heard the appellant’s version, denying complicity, one time. The jury heard Amy’s version, charging complicity, seven times; 1) through Amy’s testimony on the witness stand, 2) through Amy’s complaint to her mother, recounted in the State’s case-in-chief, 3) through Amy’s complaint to Dr. Vazzano, recounted in the State’s case-in-chief, 4) through Amy’s complaint to Mr. Bosley, recounted in the State’s case-in-chief, 5) through Amy’s complaint to Trooper Dorn, recounted in the State's case-in-chief, 6) through Amy’s complaint to Trooper Dorn, recounted for a second time in rebuttal, and 7) through Amy’s complaint to Peggy Rock, recounted in rebuttal. There could, of course, be no legitimate complaint as to Amy’s version told upon the witness stand.

The appellant has not, moreover, mounted a challenge to the four repetitions of Amy’s earlier complaints delivered in the course of the State’s case-in-chief. The appellant’s argument is that the sixth and seventh repetitions, under the false guise of rehabilitative testimony, were the straws that broke the ²⁸⁷ camel’s back. They were doubly prejudicial, he argues, not only because of their drum-like repetitive cadence, but because they also allowed the State the undeserved debater’s “edge” of getting in the last word. We agree.

If we find error, it will not be harmless. Newman v. State, 65 Md. App. 85, 98 , 499 A.2d 492 (1985). In both brief and oral argument, the State defends the admissibility of the challenged testimony on two separate grounds. It argues that evidence of Amy’s prior consistent statements rehabilitated her impeached credibility and was, therefore, proper rebuttal.

We will turn to this argument after considering the State’s alternative rationale. Alternatively, the State argues that “in the special situation of sex offenses, the trial judge in his discretion may admit evidence of a timely complaint of the offense even where the two prerequisites [for rebuttal use] have not been satisfied.” We turn first to this argument. The Timely Complaint of Rape or Other Sexual Offense 2 It is true that a victim’s timely complaint of a sexual attack is admissible as part of the State’s case-in-chief. As was pointed out in State v. Werner, 302 Md. 550, 563 , 489 A.2d 1119 (1985): “In prosecutions for sex offenses, evidence of the victim’s complaint, coupled with the circumstances of the complaint, is admissible as part of the prosecution’s case if the complaint was made in a recent period of time after the offense.” See also Leek v. State, 229 Md. 526, 527 , 184 A.2d 808 (1962); Shoemaker v. State, 228 Md. 462, 466 , 180 A.2d 682 (1962); Murphy v. State, 184 Md. 70, 76 , 40 A.2d 239 (1944). ²⁸⁸ 6 L. McLain Maryland Evidence (1987), § 613.2, at 170-171, observes: “In a few special situations, prior consistent statements are admissible even when the witness has not been impeached.

Prior identifications of the criminal defendant by the witness may be so proved, as may timely complaints of rape.” (Footnotes omitted) (Emphasis supplied). In this same regard, McCormick on Evidence § 297 (E. Cleary 3d ed. 1984) points out, at 859: “In rape cases traditionally, and increasingly in cases of sex offenses generally, evidence has been held admissible that the victim made complaint. The only time requirement is,that the complaint have been made without a delay which is unexplained or is inconsistent with the occurrence of the offense, in general a less demanding time aspect than with the typical excited utterance situation.” (Footnotes omitted). That a victim’s timely complaint about a sexual attack is admissible is sure.

Why it is admissible is far from sure. 3 The phenomenon of the timely complaint is a kind of evidentiary amphibian, possessing both lungs and gills. It is neither purely aquatic rebuttal evidence nor yet ²⁸⁹ solidly land-based substantive evidence, but it has strong attributes of both. It is not merely rebuttal evidence, because 1) it may be offered in the State’s case-in-chief, 2) it is not hedged in by limiting instructions, and 3) its admissibility is not contingent upon the defendant’s doing something first. On the other hand, it is not fully autonomous substantive evidence, because it is subject to limitations such as 1) the requirement that the victim actually testify; 2) the timeliness of the complaint; and 3) the extent to which the references may be restricted to the fact that the complaint was made, the circumstances under which it was made, and the identification of the culprit, rather than recounting the substance of the complaint in full detail.

These are limitations of a type that ordinarily are associated with rebuttal evidence. Yet, it is substantive to the extent that it corroborates the existence of the corpus delicti, notwithstanding the fact that it cannot, standing alone, establish the corpus delicti. 4 It appears that the timely complaint has evolved as a hybrid form of anticipatory rehabilitation, as something that does not wait to respond to impeachment but instead forestalls it. The unusual anticipatory or forestalling character of such evidence was discussed by 4 Wigmore on Evidence (Chadbourn rev. 1972), § 1135, “Complaint of rape (continued): (A) First theory: Explanation of an inconsistency; fact of complaint is admissible,” at 298-300: “So, where nothing appears on the trial as to the making of such a complaint, the jury might naturally assume that none was made, and counsel for the accused might be entitled to argue upon that assumption. As a peculiarity, therefore, of this kind of evidence, it is only ²⁹⁰ just that the prosecution should be allowed to forestall this natural assumption by showing that the woman was not silent, i.e., that a complaint was in fact made.

This apparently irregular process of negativing evidence not yet formally introduced by the opponent is regular enough in reality, because the impression upon the tribunal would otherwise be there as if the opponent had really offered evidence of the woman’s silence. Thus the essence of the process consists in the showing that the woman did not in fact behave with a silence inconsistent with her present story. The courts have fully sanctioned this analysis of the situation.” (Footnote omitted) (Emphasis in original). What the fact of a timely complaint forestalls or counteracts is frequently a defense based upon consent.

Although some of the analysis and much of the language of the early case law seems decidedly “dated” when judged by the modern attitude toward sexual crime, it nonetheless helps to explain how this evidentiary species evolved. The 1931 decision of the Court of Appeals in Green v. State, 161 Md. 75 , 155 A. 164 (1931), discusses what it perceived to be the significance of the absence of a complaint and, therefore, the pertinence of the complaint, if made. It observed, at 161 Md. 80 , 155 A. 164 : “The crime of rape is accomplished by force, and is so frightful and shocking to the physical and nervous system of the victim that it is generally manifested by disordered and torn clothing, bruises and wounds, outcry, and as prompt a disclosure to family, relatives, or intimate friends as the circumstances admit. Should any of these corroborative indicia of the crime be not established, it would commonly be a just basis for the contention that the woman consented.

So, if it should appear in any case that the prosecutrix had not made complaint, the failure would weigh heavily against the State and in-favor of the accused, unless satisfactorily explained. There seems no question that the defense may prove an absence of complaint at the time of the crime and, so, it is ²⁹¹ but just to allow the prosecutrix to be corroborated by the proof of her complaint recently made.” In a sexual attack case where the defense is consent, the issue will almost always reduce itself to one of the credibility of the victim versus the credibility of the attacker. In this regard, the Court of Appeals pointed out, at 161 Md. 80 -81, 155 A. 164 : “As secrecy and isolation are usually the conditions under which the crime is committed, and the testimony of the man and the woman are in conflict on the vital issue of whether or not force has been employed, some corroboration of the woman is important in the proof of the crime____ So, of necessity the complaint of the victim, if recently made after the alleged outrage, is admissible.” As recently as 1985, State v. Werner, supra, relied upon Green and referred to these reasons behind the evidentiary rule, stating at 302 Md. 565 , 489 A.2d 1119 : “As indicated in Green v. State, supra, 161 Md. at 80 [ 155 A. 164 ] the failure of a sex offense victim to complain at the time of the crime or shortly thereafter is a matter ‘that the defense may prove’ and ‘would weigh heavily against the state.’ It is an impeaching circumstance which, if elicited by the defense, can then be explained by the State.” 4 Wigmore, supra, § 1135, at 298, not only concurs as to the provenance of the rule but points out that the relevance of either a timely complaint and the absence of a complaint is not limited to the situation where the defense is one of consent: “Now, when a woman charges a man with a rape, and testifies to the details, and the accused denies the act itself, its very commission thus coming into issue, the circumstance that at the time of the alleged rape the woman said nothing about it to anybody constitutes in effect a self-contradiction of the above sort. It was entirely natural, after becoming the victim of an assault against her will that she should have spoken out.

That ²⁹² she did not, that she went about as if nothing had happened, was in effect an assertion that nothing violent had been done. Thus, the failure of the woman, at the time of an alleged rape, to make any complaint could be offered in evidence (as all concede) as a virtual self-contradiction discrediting her present testimony.” (Footnote omitted) (Emphasis in original). McCormick on Evidence, supra, § 297, at 859, refers as well to this historic evolution: “In its origin, the theory of admissibility was to repel any inference that because the victim did not complain no outrage had in fact transpired.” When a timely complaint of a sexual attack is introduced by the State as part of its case-in-chief, the theory for its admissibility is this anticipatory forestalling of any self-contradiction implicitly arising out of the victim’s failure to complain. Under this theory, there are both preconditions for the admissibility of the complaint and limitations upon what may be said about the complaint.

The obvious and logical precondition is that the victim of the sex crime must, indeed, be a witness. It was of this that 4 Wigmore on Evidence (Chadbourn rev. 1972), § 1136, “Complaint of rape: (A) First theory: Explanation of an inconsistency (continued): Consequences of this theory; details not admitted; complainant must be a witness,” at 307-310, spoke: “Since the only object of the evidence is to repel the supposed inconsistency between the woman’s present testimony and her former silence, it is obvious that if she has not testified at all, there is no inconsistency to repel, and therefore the evidence is irrelevant.” (Footnote omitted). McCormick on Evidence, supra, § 297, at 859, is in accord: “Accordingly, if the victim did not testify, evidence of complaint was not admissible.” ²⁹³ This precondition upon the reception of evidence of complaint is a settled part of Maryland law. It was of this that Green v. State, supra, spoke, at 161 Md. 82 , 155 A. 164 : “There is great conflict and confusion of cases and authority, but the better rule, and the one more in conformity with our practice and decisions, is that, if the prosecutrix has testified to a violent assault, the fact of the making of complaint within a reasonable time under the circumstances is original evidence, and may be shown to prevent the inference that the woman did in fact maintain a silence inconsistent with her narrative at trial.” (Emphasis supplied).

And see 6 L. McLain Maryland Evidence (1987), § 801(2).l, at 297: “In rape cases, however, proof that the victim made a prompt report of rape is admissible during the state’s case in chief, as well as during rebuttal, to corroborate the victim’s testimony, as long as the victim is present in court and available for cross-examination.” (Footnote omitted). Also under this theory and when the complaint is offered initially as a part of the State’s case-in-chief, there are limitations upon the fullness with which the complaint may be narrated. Both the timeliness of the complaint and the circumstances under which it is made are, of course, circumstantial guarantees of its logical relevance (and also of its trustworthiness; the two criteria here go hand in hand). Although the earlier case law admitted only the bare fact that the complaint had been made, the restraints have been loosened at least to the point of admitting as well the essential nature of the crime complained of and the identity of the assailant. 4 Wigmore, supra, § 1136, at 307, discusses this limitation: “The purpose is to negative the supposed inconsistency of silence by showing that there was not silence.

Thus the gist of the evidential circumstances is merely nonsilence, i.e., the fact of a complaint, but the fact only. That she complained of a rape, or an attempt at rape, is all that ²⁹⁴ principle permits; the further terms of her utterance (except So far as to identify the time and place with that of the one charged) are not only immaterial for the purpose, but practically turn the statement into a hearsay assertion, and as such it is inadmissible (except on the third theory).” (Footnote omitted) (Emphasis in original). In terms of the admissible contents of the complaint, Guardino v. State, 50 Md.App. 695, 706 , 440 A.2d 1101 (1982), has catalogued them: “[I]t is established in Maryland that a complaint by a rape victim may be admitted as original evidence primarily to support the testimony of the victim as to the time, place, crime, and name of the wrongdoer.” And see Blake v. State, 157 Md. 75, 78-80 , 145 A. 185 (1929); Murphy v. State, 184 Md. 70, 76 , 40 A.2d 239 (1944); Cantrell v. State, 50 Md.App. 331, 336-338 , 437 A.2d 696 (1981). When a timely complaint of a sexual attack is offered, therefore, in the State’s case-in-chief and for this anticipatory, forestalling purpose, it is clear that the more narrative details of the complaint are not admissible.

When more than the skeletal details are admissible, it is under Wigmore’s second principle for receiving such evidence and then only by way of genuine rehabilitation and rebuttal. When the victim’s credibility has been impeached, either on cross-examination or through defense witnesses, then the prior complaint, if otherwise qualified, may come in in full detail as a prior consistent statement. It is only in this second capacity that full detail is admissible. In this regard, Green v. State, supra, pointed out at 161 Md. 82 , 155 A. 164 : “[I]f her testimony of the commission of the alleged crime be impeached by witnesses or by a cross-examination based on the defence that she consented or that her evidence is false, the terms and details of the complaint are admissible, preferably in rebuttal____” (Emphasis supplied). ²⁹⁵ Rice v. State, 9 Md.App. 552, 568-569 , 267 A.2d 261 (1970), also discussed this necessary precondition for the admissibility of the full details of the complaint: “It has been held that evidence of a victim’s immediate complaint to another person about an alleged rape is admissible____ It has also been held the details of the complaint are admissible if the victim has been impeached by other witnesses, or cross-examined as to consent or on the basis that her evidence is false.

Since in this case the prosecutrix was cross-examined as to her consent, as well as impeached by other witnesses, the details of the report were admissible.” (Citations omitted). (Emphasis supplied). This second principle of admissibility of a complaint of sexual attack, one grounded in true rehabilitation and rebuttal theory, will be discussed hereinafter as we consider the State’s primary argument as to admissibility. For purposes of disposing of the State’s alternative ground, however, it is clear that the rebuttal testimony of Trooper Dorn and of the baby-sitter did not qualify.

If the State is to justify admissibility, it must be under traditional rehabilitation analysis and not under a “timely complaint of sexual offense” short-cut or alternative. In the first place, the two testimonial narrations in issue were not offered in the State’s case-in-chief but came only in rebuttal. In the second place, there is not in the case of the child victim the same implicit self-contradiction that may arise from the lack of timely complaint by an adult victim. In the third place, in a case such as this where there is no defense of consent available, there is not the same necessity to forestall the possibility that such a defense will be raised.

In the fourth place, the State had already exhaustively established the fact of a timely complaint by showing three such complaints made to four different testifying witness ²⁹⁶ es. 5 In the fifth place, the use of Trooper Dorn for such a purpose in rebuttal did no more than repeat the similar testimony of the same Trooper Dorn already offered at an earlier stage of the case. The Use of the Complaint in Rebuttal As A Prior Consistent Statement Just as a victim’s complaint about a sexual attack may be offered as a part of the State’s case-in-chief, it may also be offered in rebuttal. In this second capacity, however, under what Wigmore referred to as the second principle of law undergirding the admissibility of such complaints, the substantive and procedural incidents of the evidentiary use are not necessarily the same as when the complaint is offered as part of the State’s case-in-chief. As 4 Wigmore on Evidence (Chadbourn