Hubbard v. State

³⁶⁷ Morton, J., delivered the opinion of the Court. The Appellant, Richard Allen Hubbard, was convicted of rape, without capital punishment, by a jury in the Criminal Court of Baltimore, and sentenced to serve twenty years in the Maryland Penitentiary. According to the twenty year old prosecuting witness, she was standing on a street corner at approximately 8:3Q p.m. on April 7, 1965, after attending night school, awaiting bus transportation to her home when Hubbard “grabbed” her, placed what she thought, and he said, was a gun at her waist, and asserted that he would kill her if she made an outcry or refused to accompany him. After being required to walk several blocks, during which, on two occasions she had screamed at the top of her voice in an unsuccessful effort to attract help, they arrived at the rear of an unlighted alley.

She testified that Hubbard continued his threats to kill her; forced her to completely disrobe and after completely disrobing himself, “he attempted it [intercourse] four times and succeeded once.” From time to time, during this period of fifteen to thirty minutes, “he got me around the neck and he was going to choke me, and just told me to do it or he would kill me.” In an effort to extricate herself from the situation, she decided, as a ruse, to invite him to her apartment to spend the night and he readily agreed. After putting their clothes on, they hailed a cab and proceeded to the apartment where she lived with her parents. The apartment was over a pharmacy owned and operated by her father. As they alighted from the cab after reaching their destination, the prosecuting witness encountered a friend whom she immediately asked to “get the pharmacist.” Two pharmacists quickly came out of the pharmacy and apprehended Hubbard as he was forcing her to walk around the corner.

They held him until the police arrived and took him into custody. Both pharmacists were permitted, over objection, to testify that, as they approached Hubbard and the prosecuting witness, she was endeavoring to elude his grasp and that she said, “He raped me.” One of the pharmacists was also permitted, over objection, to testify that Hubbard, while being held for the police, “said that he knew he had done wrong.” ³⁶⁸ In this appeal, the Appellant raises multiple issues. He contends that the lower court erred in refusing to order stricken the answers to a number of leading questions propounded by the State’s Attorney to the prosecuting witness and in not granting the Appellant’s motion for mistrial because of the leading questions. We have carefully examined the entire transcript of the testimony and it would appear, as the trial judge conceded, that the State was permitted a certain latitude in posing leading questions.

However, we agree with the trial judge that they were not of such a nature or permitted under such circumstances as to result in prejudice or unfairness to the Appellant. It is, of course, elementary that leading questions on direct examination should ordinarily be avoided. 3 Wigmore on Evidence, Third Edition, Section 769. On the other hand, the permissibility of leading questions is primarily within the sound discretion of the trial judge, and his judgment in this respect will not be overturned on appeal unless there has been such an abuse of his discretion as to prejudice the rights of the accused to a fair trial. As this Court said in Culver v. State, 1 Md. App. 406 (at p. 412) : “* * * leading questions are permissible to arrive at facts when modesty or delicacy prevents full answers to general interrogations and * * * rape cases, involving inquiry into delicate subjects of a sexual nature, constitute an exception to the general rule against leading questions.

In such cases, the permitting of leading questions of the prosecutrix, particularly if she is of tender years, is a matter of sound discretion of the trial court,” The Appellant also complains that his motion for a mistrial should have been granted because of a reference by the State to the Appellant’s prior trial which had been set aside on the basis of Schowgurow v. State, 240 Md. 121 . It is apparent from the record that the reference to the prior trial was a result of asking the prosecuting witness on cross-examination by the Appellant to explain a discrepancy between her testimony at the first and second trial. In any event, there was clearly no prejudice ³⁶⁹ to the Appellant and we find the contention to be without merit. The Appellant next complains that there was error in permitting the physician who examined the prosecuting witness to describe certain stains which he found upon her neck, face and back.

Specifically, he said: “I would say they were linear blurs, as if this black greasy stain had been drawn across the area with fingers or some such — ■” We find no error or prejudice to the Appellant in allowing the