Dove v. State

Thompson, J., delivered the opinion of the Court. The appellant, James R. Dove, Sr., was convicted by a jury in the Circuit Court for Anne Arundel County, Judge Matthew S. Evans presiding, of rape and sentenced to seven years. On this appeal Dove raises five issues: 1) The trial court unduly restricted the scope of cross-examination; 2) The trial court incorrectly disqualified a character witness; 3) The trial court improperly restricted appellant’s direct examination of several witnesses by sustaining objections on the grounds that the questions were leading; 4) The evidence was insufficient in regard to lack of consent on the part of the victim; 5) The trial court committed reversible error when it gave an “Allen” charge to the jury. Margaret (Meg) Welles, the then fifteen year old prosecutrix, testified that at a few minutes before midnight on July 24, 1975, she was walking home near Mayo Beach.

A ear driven by the appellant passed, stopped, and the passenger, Mark Dove, called her name. Meg walked up to the automobile and inquired as to the whereabouts of her boyfriend, Rusty. She was told that he had last been seen near her house. She then accepted an offer to drive her home.

After getting into the car, the three drove to a bar called Captain Seaweed’s. They conversed with a man by the name of George for several minutes in the parking lot and then drove to Beach Three in Woodland Beach. Mark Dove exited the car and the prosecutrix attempted to get out, since she lived “right around the corner,” but her arm was grabbed by the appellant. The door closed and the appellant drove to a school yard on Mayo Road.

The appellant began ⁶⁰⁴ kissing the prosecutrix and she “halfway kissed him back once.” She then tried to push him away and open the car door, which she found to be locked. While she was attempting to open the door, the appellant ripped her blouse, unzipped her pants, and tried to pull them down. At this point the prosecutrix asked to be let out of the car to go to the bathroom. The appellant stated that he would agree to this only if she took her pants off, which she refused.

He then crossed over the seat, opened the door on the driver’s side, got out of the car, and pulled the prosecutrix across the seat and out of the car, so they were standing together. The girl broke free and began to run but tripped and fell. She began to scream. The appellant fell on top of her and cupped his hand over her mouth.

She pulled his hand from her mouth and continued to scream. Finally, he cupped her nose and mouth so she could not breathe and told her not to make any more noise. To this she replied, “Okay. Okay.” He then held her hands over her head, undressed them both, and had intercourse with her.

At the conclusion of this the prosecutrix was allowed to walk to the end of the nearby pier. The appellant got into his automobile and left. The prosecutrix began to walk home. On the way she saw Jean and Sue Brady.

She told them she had been raped and they took her home. After she could calm herself enough to tell her grandmother what had happened she was taken to the police station where she filed a complaint. As a result of this incident the prosecutrix received a scrape on one of her elbows and on the small of her back. Elsie L. Behlke testified that shortly after 1:00 a.m. on the night in question she was lying in bed in her home when she heard very loud crying coming from the area of the Edgewater School.

It was the voice of a young lady or woman, and it sounded “like she was pleading.” This continued for approximately twenty minutes so Mrs. Behlke called the police. After the call to the police, the crying ceased and the witness heard a car door slam and a motor start. It was stipulated that a doctor’s report of an examination of the prosecutrix offered into evidence showed the presence ⁶⁰⁵ of spermatozoa but no evidence of trauma, swelling or bruising anywhere on her body. The appellant testified that following the championship victory of his softball team, he went to a celebration at the tavern of his team’s sponsor, Captain Seaweed’s.

After consuming a number of beers, he and Mark Dove left the tavern and drove around the neighborhood. On Londontowne Road they observed the prosecutrix waving so they stopped. The prosecutrix got into the car between the two men. They drove to Captain Seaweed’s where the appellant asked the prosecutrix to go parking.

She agreed. The appellant drove to Beach Three where he let Mark Dove and another companion who had gotten into the car at Captain Seaweed’s out of the automobile. In response to a question from Mark Dove concerning whether she was getting out of the car the prosecutrix replied that she was staying. They then drove to Pine Whiff Beach.

Upon arriving at the beach the appellant got out of the car to go to the bathroom. He got back in the car and began kissing the prosecutrix. In order to attain a more comfortable setting they got out of the car. The prosecutrix voluntarily laid on the ground and took her pants off.

The appellant had intercourse with her to which there was no objection. No force was used. At the culmination of this he informed her that he had to go home because his wife would be worried. At this point the prosecutrix became angry, walked down the pier, and refused an offer for a ride home.

The appellant left. 1 Cro ss-Examination The appellant cites three areas in which his cross-examination of the prosecutrix was limited by the trial court and contends that this denied him a fair and impartial trial. During the course of cross-examination the prosecutrix was asked twice whether prior to meeting the appellant and ⁶⁰⁶ Mark Dove on the night in question she had been in the presence of anyone who was smoking marijuana. Objections to these questions were sustained by the trial court. Generally, cross-examination is restricted to those points on which the witness had testified on direct examination.

Caldwell v. State, 276 Md. 612 , 349 A. 2d 623 (1976). This rule is not applied to limit cross-examination of the witness to specific details brought out on direct examination “but permits full inquiry of the subject matter.” Williams v. Graff, 194 Md. 516, 522 , 71 A. 2d 450 (1950). Furthermore, it is proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility. DeLilly v. State, 11 Md. App. 676, 681 , 276 A. 2d 417 (1971).

Seemingly therefore, a witness may be questioned regarding whether he was sober, intoxicated, or under the influence of drugs at the time of the event in question. 2 Wharton’s Criminal Evidence § 434. The appellant alleges in his brief that these questions were not a mere fishing expedition since he had a basis for believing that the witness used marijuana and possibly used it on the night in question. The basis for this belief was not conveyed to the trial judge. We are not persuaded that the trial judge abused his discretion by restricting cross-examination in this situation where it appears totally immaterial whether anyone in the prosecutrix’s presence was smoking marijuana.

If there were a legitimate basis for this line of questioning counsel should have preliminarily satisfied the trial judge’s doubts. See Mulligan v. State, 18 Md. App. 588, 597 , 308 A. 2d 418 (1973). Secondly, the appellant contends that he was wrongfully excluded from cross-examining the prosecutrix in reference to prior inconsistent statements made by her to the examining doctor, the detective, the polygraph examiner, and her neighbor. On cross-examination the witness was asked the following: “Q. Now, after this occasion, were you ever examined by a doctor? ⁶⁰⁷ A. Yes.

That night. Q. That night? Mr. Anders: Objection. That wasn’t covered on direct.

Court: Sustained. Mr. Weidemeyer: I’ll strike it.” “Q. Now, what did you tell the doctor when you were examined? Mr. Anders: Objection. Court: Sustained.

Q. Did you talk to a Detective? A. Yes. Q. When did you talk to a Detective? A. I was taken to the Police Station and that’s where Detective Marshall was called.

When I got to the hospital, Detective Marshall was there. Q. Well, what did you tell him? Mr. Anders: Objection. Court: Sustained.

Mr. Weidemeyer: I have no further questions. Mr. Anders: I have no further questions.” As we have noted before the appellant had the right to discredit the testimony given by the witness through the use of prior inconsistent statements. DeLilly v. State, supra. Under certain circumstances it is not necessary for the appellant to proffer what the alleged inconsistent statements contain in order to present them into evidence.

Yowell v. State, 28 Md. App. 279, 283 , 344 A. 2d 442 (1975). In the case at bar, however, there was not even a suggestion that the appellant was attempting to impeach by the use of a prior inconsistent statement. Under direct examination the witness testified to the circumstances of the confrontation. Her statements to the police and the examining physician were not discussed in any detail.

With the facts before him ⁶⁰⁸ at the time of the cross-examination we find that the trial judge did not abuse his discretion by sustaining objections on the grounds that appellant’s questions went beyond the scope of direct examination. It was necessary for the appellant to lay some foundation in order to impeach the witness by the use of her prior statements. White v. State, 23 Md. App. 151, 162 , 326 A. 2d 219 (1974). We further note that the appellant introduced the doctor’s report for identification and the investigating officer was called to the stand to testify.

The appellant had ample opportunity to pursue the inconsistencies at those times. The third alleged error concerning the restriction of cross-examination deals with the appellant’s right to question the witness in regard to a sexual act with her boyfriend occurring two nights before the night in question. At the outset of the trial, the State made an oral motion in limine to exclude testimony concerning prior acts of intercourse between the victim and third persons. The following transpired: “I think that if a doctor’s report shows upon examination sperm, it’s entirely proper to go into the question of when and with whom, other persons, the complaining witness may have had intercourse.

So I think that under those circumstances, we would be entirely justified in investigating on that point as well as to attempt to bring in evidence of such. Mr. Anders: Well, I don’t quite understand that argument, but it’s still my understanding of Maryland law that prior acts of intercourse with anyone other than the defendant is inadmissible Court: Well, that’s correct. Mr. Anders:. . . at a trial, and so I would request that that question not be asked. Court: Well, don’t ask the question, but at the time you want to ask it, approach the bench and I ⁶⁰⁹ will hear what you have to say and then either permit you to ask it or not.” No questions were asked at trial concerning the prior sex acts.

In the absence of such questions we decline to decide this point initially on appeal. Md. Rule 1085. At the sentence hearing the appellant made a motion for a new trial. One of the grounds for this motion was that Deinhardt v. State, 29 Md. App. 391 , 348 A. 2d 286 (1975) and State v. DeLawder, 28 Md. App. 212 , 344 A. 2d 446 (1975), stand for the proposition that the appellant should have been allowed to introduce testimony concerning a prior sex act of the prosecutrix because it was the rejection from that act plus the rejection of love from the appellant which motivated her to fabricate the rape charge.

We agree that these cases stand for the proposition that questions designed to develop bias, prejudice, or ulterior motive are admissible. Again we point out, however, that the trial judge did not prevent the defense from raising these questions on cross-examination but stated that he would decide the point when it arose. The issue never arose. Character Witness During the presentation of his defense the appellant called Rosemarie Paddy to the stand.

She stated that she had known Meg Welles for about five years and knew other people in the community in which she and Meg lived who also knew Meg. She stated that she had “been to a lot of parties where she’s (Meg) been, and she doesn’t have a very good reputation.” When asked whether other people who knew Meg felt the same way, however, the witness replied, “I don’t know, really. I can’t say that. I don’t know.” On cross-examination she stated that the basis for her opinion was that she had heard a lot of guys talk about Meg and had seen Meg at parties with different guys.

She admitted that the boys say a lot of things that are untrue in this regard and she did not always believe what was said. The trial judge ruled that she was not qualified. In Caldwell v. State, supra at 614, 615, it was reiterated ⁶¹⁰ that the general reputation in a particular community of a rape complainant for chastity is admissible where consent is an issue. The common law rule does not permit the witness to express her own independent opinion even though it may be based on acquaintance, observations or actual knowledge.

Taylor v. State, 28 Md. App. 560 , 568 n.6, 346 A. 2d 718 (1975), aff'd, 278 Md. 150 , 360 A. 2d 430 (1976). The witness stated that she was only testifying as to her own opinion of Meg’s reputation and did not know what her general reputation was. For this reason she could not qualify as a character witness under the common law. The common law rule appears to have been modified by Courts and Judicial Proceedings Article § 9-115 which provides: “Where character evidence is otherwise relevant to the proceeding, no person offered as a character witness who has an adequate basis for forming an opinion as to another person’s character shall hereafter be excluded from giving evidence based on personal opinion to prove character, either in person or by deposition, in any suit, action or proceeding, civil or criminal, in any court or before any judge, or jury of the State.” As a result of this enactment if the witness had an adequate basis for her testimony it should have been admitted.

The basis for her testimony was that she had seen Meg with “a couple of different guys at a couple of different parties.” There were always numerous boys and girls at these parties. The witness had never observed Meg doing anything immoral or improper. She had heard boys talk about Meg, but a lot of the things they said about the girls were unfair. The underlying purpose of the rules governing the admissibility of evidence is to assure that the reputation evidence received is that which indicates the true character of the individual.

It is in the discretion of the trial judge to determine whether the reputation sought to be proved meets this standard. While we recognize that the witness had known the prosecutrix for five years we cannot say that the ⁶¹¹ trial judge abused his discretion when the basis of the witness’s testimony was the statements of boys’ sexual conquests when she recognized that in many cases they were exaggerated. Leading Questions The appellant cites three areas in which objections to his questions on direct examination were sustained and contends that these rulings were erroneous and