Hurst v. State

SALMON, Judge. Appellant, Richard David Hurst, was convicted by a jury sitting in the Circuit Court for Frederick County of first-degree rape, second-degree rape, first-degree sexual offense, ²²⁶ second-degree sexual offense, kidnapping, and false imprisonment. He was sentenced to life imprisonment, without the possibility of parole, for the first-degree rape; life imprisonment, with the possibility of parole, for the first-degree sexual offense; and thirty years’ imprisonment for the kidnapping. The remaining convictions were merged for purposes of sentencing.

All sentences were to run concurrently. Appellant noted a timely appeal and presents two questions for our review: I. Did the trial court abuse its discretion in admitting other crimes evidence?

II

Did the trial court abuse its discretion in denying appellant’s request for a postponement? I. FACTS A. Uncontroverted Facts On the evening of May 16, 2002, appellant had vaginal intercourse with Gertrude P., and on the same date, Ms. P. performed fellatio on appellant. Ms. P. testified that appellant forced her to have sex with him. Appellant testified that the sex was consensual.

In May 2002, Ms. P., forty, lived on one side of a duplex in Hagerstown; her brother, John, lived on the other side. She was mentally challenged, yet for the most part, she was able to live independently. On May 16, 2002, she spent most of the day obtaining job applications at various fast-food restaurants in the Valley Mall located in Hagerstown. It was dark when she finished, and because she believed she had missed the last bus to her home, she began walking on Wessel Boulevard in the direction of her home.

B. Ms. P’s Testimony As she walked along Wessel Boulevard, Ms. P. noticed a truck on the opposite side of the roadway. Appellant, whom she did not know, was the truck driver. Appellant asked Ms. ²²⁷ P. for directions to Frederick. Ms. P. told appellant that she was “not very good at giving directions” and asked appellant to “please go to the gas station and ask the cashier to give ... directions.” Appellant drove off, but returned shortly thereafter.

This time, his truck was on the same side of the road as Ms. P. Ms. P. approached the truck, and appellant again asked for directions to Frederick. Ms. P. attempted to give appellant directions, but he suggested that she show him how to get to that destination. She obliged by getting into the truck with appellant. After Ms. P. was seated, appellant identified himself as “Christopher Cane” and locked the doors of his vehicle.

As appellant drove, Ms. P. gave appellant directions to Frederick. Eventually, however, he stopped following those directions. This caused her to feel “very uncomfortable.” As the two drove along Route 40, she saw a Sheetz Store and asked appellant to pull into the parking lot of the store because she had to use the bathroom. Appellant refused to stop, and thereafter the truck passed a “welcome to Frederick” sign.

During the trip, appellant brought up the topic of having sex. Ms. P. did not want to talk about that subject so that conversational gambit reached a dead end. Appellant eventually turned his truck off Route 40 onto Hollow Road and then into a wooded area. After appellant stopped the truck, he unlocked the doors and told Ms. P. to get out.

She complied. Appellant then walked to her side of the vehicle and told Ms. P. that he would not hurt her, but that he had a knife and, if she struggled, he would hurt her. Appellant placed one hand around Ms. P.’s shoulder and neck and the other behind her back. Appellant then started “dragging” her down a hill.

She fell and struck her back on sticks that were laying on the ground. At the bottom of the hill, appellant told Ms. P. to get on the ground, “spread her legs a little,” and pull down her pants and underwear. Ms. P. complied because appellant told her that if ²²⁸ she did not do what he said, he would hurt her. While restraining Ms. P., appellant forced Ms. P. to perform fellatio.

Appellant next engaged in non-consensual vaginal intercourse with Ms. P. During these sexual acts, appellant placed his hand over Ms. P.’s mouth so that she could not scream. After the rape, appellant told Ms. P. to get dressed and to get into the truck. She dressed, and appellant offered to take her to the Sheetz Store. At that point Ms. P. did not know where she was and was afraid of appellant so she got back in the truck.

Appellant then drove back toward Hagerstown. As they approached the Sheetz store, appellant gave Ms. P. a $20.00 bill, saying the money was “for sex.” He also said, “Don’t tell no one about this.” Ms. P. did not ask for or want the money. Ms. P. nevertheless took the money, got out of the truck, and went into the Sheetz Store. One of the cashiers then noticed that she was crying, found out why, and called the police.

C. Testimony of Cindy Wagner Cindy Wagner was working at the Sheetz Store when she observed Ms. P. enter. According to Ms. Wagner, Ms. P. “was standing there all excited looking, and I noticed she [had] messed up hair and her clothes were wrinkled and dirty ... so I went up and asked her if I could help her.” Wagner added: “Well she was so hyper, and I knew she, there must have been something wrong with her mentally because she acted like a child ten- or eleven-years old, and she had tears in her eyes.” After Ms. P. explained what had happened, Ms. Wagner asked her if she would like her to call the police. Ms. P. responded in the affirmative. Ms. P. told Ms. Wagner that she was getting ready to go home from the store when a man offered her a ride home.

The man did not take her home but, instead, drove to the woods by Hollow Road and “made her do things she didn’t want to do.” Ms. P. told Wagner that she repeatedly told the ²²⁹ man “No,” but that he nevertheless “grabbed her head and put it down there, put her mouth down there.” D. Testimony of Police Officers Deputy Brian Miller, who was employed by the Washington County Sheriffs Office in May of 2002, 1 talked to Ms. P. on the night of the alleged sexual assault. During his interview, the deputy noticed that Ms. P. had “slightly red marks all around ... the front of her neck.” The deputy transported Ms. P. over the Frederick County line where they met with a deputy from Frederick County because Ms. P. said that the assault occurred in Frederick County. Deputy First Class Paul Collantuno of the Frederick County Sheriffs Office met Deputy Miller and Ms. P. at the Washington County/Frederick County line. To Deputy Collantuno, Ms. P. appeared to have “a mental deficiency.” He added that her speech was “very labored,” she “stuttered a lot,” and she had “facial ticks.” Nonetheless, Ms. P. was able to tell the deputy that she had been on foot in the Hagerstown area when a brand new pick-up truck passed her by, circled around, and that the driver of the pick-up asked for directions to Frederick County.

The driver told Ms. P. he was forty-seven-years old and that his name was Christopher Cane. He also told her that he would give her $20 or $30 if she showed him how to get to Frederick County. Ms. P. agreed to do so and got into the truck. Once she was in the truck, Ms. P. told the driver to get onto Interstate 70, but he did not do so.

They then drove past the Sheetz Store on Route 40. Ms. P. asked the driver to stop at the store, but he refused. Ms. P. told Deputy Collantuno that she recalled seeing a “Welcome to Frederick” sign and later a sign for Hollow Road and that the pick-up truck stopped a short distance later in a grassy area. Ms. P. reported that the driver then told her “to do what she was told to do or else she’d get hurt.” After they got out of the truck, the driver forced her to perform oral sex ²³⁰ on him even though she told him that she did not want to do it and did not like it.

The driver then forced her to the ground and had vaginal intercourse with her. She told the driver to stop and that it hurt. Ms. P. also reported that she believed that the driver had a knife. She did not, however, say that she saw the knife, just that she believed he had one.

Ms. P. also reported to Deputy Collantuno that, following the assault, she and the driver got back into the pick-up truck, and she was driven to the Sheetz Store where she got out of the truck. The driver gave Ms. P. $20 for a taxi ride. After giving her statement, Ms. P. was transported to Frederick Memorial Hospital. D. Testimony of Kim Day, R.N. Kim Day, a registered nurse employed at Frederick Memorial Hospital, was qualified as an expert witness.

On May 17, 2002, at 2:50 a.m., she came in contact with Ms. P. at the hospital emergency room. Ms. P. was “childlike,” “apprehensive, frightened” and appeared to be a person who did not understand a lot of the terminology she (Ms. Day) used. Ms. P. informed Day that she had driven with Christopher Cane from Hagerstown to Frederick County and then to a wooded area on Hollow Road, where “Cane” “[d]id something to me that I didn’t ask for.” Ms. P. also indicated that Cane told her that he had a pocket knife, but that he did not attack her with the knife. When they were in a field, Cane told Ms. P. that if she did not cooperate, he would hurt her.

Cane then told her to put her mouth on his penis. Ms. P. told Cane that she was “against it” and that she “didn’t like that.” Cane also pulled her pants down. He told her that if she tried to scream he would put his hand over her mouth. At one point, cars drove by which caused Cane to put his hand over her mouth so she could not scream.

She told Cane during intercourse that it hurt, and he stopped. Afterward, “Cane” gave Ms. P. $20.00 for a ride home and dropped her off at Sheetz. Upon Day’s examination of Ms. P., the nurse observed leaves and sticks on Ms. P.’s clothing. Day also noticed ²³¹ several injuries, including an abrasion or scratch under her left breast and “[r]ed, raised[,] ... linear pattern injuries” on the inside of her left wrist.

On Ms. P.’s right flank, there were two linear pattern injuries of five and eight centimeters in length that were red and raised. Day opined that the injuries were consistent with a scrape to the back. Ms. P. also had multiple “punctate lesions” on her buttocks, as if she had been lying on something sharp. Day opined that the linear patterns appeared to have been caused by Ms. P. lying on something “like a twig or something like that.... ” There was also a bruise to the back of Ms. P.’s leg.

All the injuries were “fresh.” Ms. P. complained of pain in the vaginal area. Upon conducting a genital exam, Day noticed that there was bleeding from the vagina and that there were two broken blood vessels in the vaginal area. Day opined that the ruptured blood vessels were “consistent with her [Ms. P.’s] history of the event.” Oral and vaginal swabs were collected from Ms. P. E. Testimony of Corporal Buyers Corporal Eric Buyers of the Frederick County Sheriffs Office testified that he responded to the hospital and interviewed Ms. P. He noted that she was “very withdrawn,” “very meek,” and that “she was of limited mental capacity.” Ms. P. related to Corporal Buyers her version of what occurred. This version was, in all material respects, the same as what Ms. P. told Nurse Day.

F. DNA Test In November of 2003, the police developed appellant as a suspect in the rape of Ms. P. A search warrant was executed, and oral swabs were obtained from him. Regarding the DNA analysis performed on those swabs and the swabs obtained from Ms. P.’s vaginal area, the State and the defense agreed to the following stipulation, which was read to the jury: The ... DNA profile obtained from semen identified on the first vaginal swab matches the DNA profile obtained ²³² from the known standard of Richard David Hurst. Therefore, within reasonable degree of scientific certainty Richard David Hurst is a contributor to the DNA profile obtained on the first vaginal swab.

The probabilities of selecting an unrelated individual at random having a DNA profile matching the DNA profile obtained from the first vaginal swab are one and 470.0 quadrillion using U.S. Caucasian population database.

II

APPELLANT’S TESTIMONY Appellant testified that he lived with his fiancé in Boonsboro and that, on the evening of May 16, 2002, he was driving in the area of Valley Mall when he saw Ms. P. walking alongside the road heading toward Hagerstown. She was walking “real slow” and would stop to play with leaves and branches on the trees and then would start walking again. He made a U-turn, which put him on the same side of the road as Ms. P. He again saw her playing with the leaves and branches, which made him uncertain as to whether she was “trying to get picked up.... ” Appellant, who had previously seen prostitutes in the area, pulled up beside Ms. P. and said, “Excuse me, ma’am, do you know where Frederick is?” Ms. P. told appellant that he had to head back in the other direction. Appellant responded that he did not know where Frederick was because he was from the Baltimore area.

He used this verbal ploy because he “was trying to ... get her to talk to me, you know what I mean, a fast pickup is what I was doing.” Although appellant knew the area, he pretended ignorance because he “was trying to use a pickup line____” Ms. P. then told appellant to go to a gas station down the road to obtain directions. At that point, appellant “thought [Ms. P.] wanted to be picked up” based on the way she was acting and because, in the past six years, he had picked up four to six prostitutes in the area. Appellant then asked Ms. P. to show him how to get to Frederick. Ms. P. said that she would be willing to do so except for the fact that she was on her way home.

Appellant responded by saying that he would give her a ride home. The ²³³ two then agreed that Ms. P. would show him how to get to Frederick as long as he later drove her to her home. Ms. P. then got in his truck. He did not lock the doors.

Appellant followed Ms. P.’s directions to Frederick, and as they traveled, they talked. 2 Ms. P. told appellant about her brother and said that she did not have any money for the bus. She added that she had been out collecting job applications that day. Appellant continued to follow her directions, and Ms. P. volunteered that she was not married. Appellant told Ms. P. that his name was David.

This was his middle name and also the name he had given to the prostitutes in the past. Appellant next asked Ms. P. if she and her boyfriend ever “messed around” or if she was a virgin. Ms. P. said that she was not a virgin. She also said that her boyfriend had abused her.

Eventually, they came to the Route 70 exit sign. Ms. P. told appellant that, if he was going to Frederick, that was his turnoff. Appellant thanked her for the directions and told her he would like to stop so that he could urinate. Ms. P. told him that she did not mind.

At that point, they saw a Sheetz Store, and Ms. P. said that he could use the store’s bathroom. Appellant responded that he was “very particular” about which public restrooms he used and that he did not want to use the facilities provided by Sheetz. Appellant continued to drive, and eventually he saw a “Welcome to Frederick County” sign. After they crossed the county line, appellant took the first right onto a road.

He then traveled approximately 100 yards down the road until he saw a field with a walkway. Appellant pulled the truck over ²³⁴ to the side of the walkway, got out, and urinated while Ms. P. remained seated. Appellant got back into the truck, lit a cigarette, and asked Ms. P. if she would like to make some money. Ms. P. asked how.

Appellant responded: “Just fooling around a little bit.” When Ms. P. said that she had “never done that before,” appellant confided that he was “just trying to have a little bit of sex, do a little something.” Ms. P. then got out of the truck and appeared angry “because it was like she ... wanted to get home or something.” Ms. P. started walking away, saying that she was going home. Appellant then persuaded her to come back to the truck because she did not know where she was. They both got back in the truck. Appellant lit another cigarette, they talked again, and Ms. P. again said that she wanted to go home.

Appellant then offered Ms. P. $20 if she would “fool around a little bit.” After hearing this offer, Ms. P. agreed to engage in sexual intercourse with him as long as he took her back home afterward. The two walked down a path. When Ms. P. asked what time it was, appellant lied and said that it was earlier than it was, which relaxed Ms. P. because the lie convinced her that she was not already late getting home. As they walked, Ms. P. got caught in a rosebush.

Appellant helped free her, and they continued walking along the path until Ms. P. slipped and fell down a slope. Eventually, they came to a creek where they stopped. Ms. P. got on her knees, appellant pulled his zipper down, and took out his penis, and Ms. P. performed fellatio on him. After 30 to 60 seconds, appellant “pushed her off.” He then asked her to place his penis inside of her.

According to appellant, “[s]he didn’t say no and she didn’t say yes. She just more or less did it.” Appellant proceeded to have consensual intercourse with Ms. P. Initially, she was “okay,” but when he started to ejaculate, she “freaked out on me” and began “to push and tug” at him. Appellant grabbed Ms. P. and “[tjhat’s where ²³⁵ the marks came from ... the marks that she had.” Appellant conceded that at one point he had placed his hand over Ms. P.’s mouth “for a couple seconds.” He did so because he “was afraid ... she was turning it into something that [it] wasn’t.” Appellant added that during intercourse he knew “that something was wrong” but did not think “she wanted me to stop until ... at the end where she just ... freaked out.” He did not know why Ms. P. “freaked out.” According to appellant, when Ms. P. asked him to stop, he did so immediately. Appellant next helped Ms. P. dress.

At that point, Ms. P. said that she needed to get home and was worried about her brother’s reaction to her being out late. They walked back to appellant’s truck, and appellant gave her $20, which Ms. P. accepted. Nevertheless, Ms. P. was upset. Appellant told Ms. P. that he was taking her home.

As they approached the Sheetz Store, Ms. P. asked him to drop her off there. Appellant pulled into the Sheetz parking lot. Ms. P. said that she would take a cab home and got out of the truck. Appellant then drove away.

Appellant denied ever threatening Ms. P. or saying that he would hurt her if she did not do what he told her to do. He also denied telling her that he had a knife or holding her against her will. Additionally, he testified that all sexual relations he had with Ms. P. were completely consensual.

III

REBUTTAL EVIDENCE A. Testimony of Jacqueline Yu E. Jacqueline Yu E. testified that, during the late evening to early morning hours of February 2, 1981, she was returning home and parked her car in the area of Guilford Avenue in Baltimore City. While she stood next to her car, she was approached by a strange man, later identified as appellant. Appellant told Ms. E. that he needed directions to Washington Street and University Avenue because he was going there to visit a friend. Ms. E. told appellant that she did not know where those streets were, but appellant replied that he just ²³⁶ wanted to see his Mend and that the address was close by.

According to Ms. E., appellant then moved toward her and indicated that he had a knife in his pocket. He did not, however, show Ms. E. the knife. Appellant next forced Ms. E. to get into her car; he then forced his way into the car and had her roll up all the windows and lock all the doors. He then told her that “all he wanted was a lift to his Mend’s apartment” and counseled her to “relax [and] that everything was going to be okay.” After driving for several hours, they stopped in a secluded residential area.

Appellant had Ms. E. turn off the lights and the engine. Appellant said that he wanted one more thing and that he would then leave. That one thing was “a blow job.” Ms. E. told appellant that she did not know what that was so he “forced [her] down ... on to him.” After appellant forced Ms. E. to perform oral sex, he then forced her to engage in vaginal intercourse with him. After the rape, appellant allowed Ms. E. to dress and had her drive him to a location where he got out of her car.

Ms. E. then drove away. 3 B. Testimony of Corporal David Deweiss Corporal David Deweiss of the Frederick County Sheriffs Office testified that, on November 26, 2003, he interviewed appellant at the Frederick County Law Enforcement Center. Also present during the interview was Maryland State Trooper First Class Rick Bachtel. After the corporal advised appellant of his Miranda rights, appellant said that he understood those rights and agreed to speak with the officers without an attorney being present. In the course of the ensuing interview, appellant admitted that he typically brings prostitutes to a secluded area near where he had picked them up.

At first, appellant could not explain why he drove to another county with Ms. P., but later he said that it was “[b]eeause she was talking,” i.e., she talked continuously about looking for jobs and putting in applications. Her talkativeness ²³⁷ caused appellant to become agitated because “he had picked her up for sex.” Corporal Deweiss also testified that, when questioned by Trooper Bachtel, appellant denied placing his hand over Ms. P.’s mouth. Later in the interview, in reply to the corporal’s question, appellant once again “adamantly denied” covering Ms. P.’s mouth with his hands. When the corporal inquired if appellant might have inadvertently placed a hand over her mouth, appellant again stated that he had not done so.

After Corporal Deweiss informed appellant that Ms. P. had said that he had placed his hand over her mouth, appellant admitted that he had done so “for a couple of seconds” during intercourse because she continued to talk about job hunting and putting in applications. According to Corporal Deweiss, appellant also recalled during questioning by the corporal that he and Ms. P. had argued over when she was to be paid. Ms. P. wanted to be paid before the sexual acts, but appellant wanted to pay her afterward.

IV

DISCUSSION A. Prior to calling Ms. E. as a rebuttal witness, the prosecutor proffered that Ms. E. would testify that in 1981 she was approached by the defendant in Baltimore ... and asked for directions. She was standing next to her vehicle, that he forced her, that he told her that he had a knife in his pocket and threatened to harm her. He told her everything would be all right if she did what he said. And he forced her in ... her car that she’s standing next to and abducted her.

He forced her to perform oral sex, and then he forced sexual intercourse on her. And after he was finished he ... essentially let her go. The prosecutor argued that Maryland Rule 5-404(b) permit ²³⁸ ted evidence of other crimes under the mimic exception. 4 The prosecutor also maintained that the other crimes evidence was admissible to rebut the defense of consent, as permitted by Stevenson v. State, 94 Md.App. 715 , 619 A.2d 155 (1993). Defense counsel responded that the details of the offense were not so unusual as to distinguish it from a typical sex offense case.

In this regard, counsel argues that there were “not enough distinctive common details” to allow for admission of the prior offense. The trial court found that the other crimes evidence was admissible both to rebut the defense of consent and under the common scheme or plan exception. In this appeal, appellant contends that the trial court erred in admitting Ms. E.’s testimony because (purportedly) it was offered simply to show appellant’s propensity to commit crime or his character as a criminal. Appellant asserts that, in order for the other crimes evidence to be admissible to disprove consent, the prior criminal activity must qualify as a “signature” crime.

Appellant refers us to out-of-state cases, primarily those cited in Stevenson, supra, in support of his position that, in order for “other crimes” to be admissible to prove lack of consent, the prior rape must qualify as a signature crime, the relevancy of which has not been diminished by the passage of time. Appellant further asserts that the prior rape and sexual assault did not have the attributes of a signature, which would make them relevant to the allegations in the present case. In addition, appellant maintains that the passage of more than twenty years between the two events makes the first crime even less relevant to the consent issue. To further support his argument, appellant refers us to Maryland Rule 5-609(b), which does not permit impeachment by use of a prior conviction more than fifteen-years old.

Appellant also argues that the prejudicial effect of the evidence presented by Ms. E. was demonstrated by the prose ²³⁹ cutor’s heavy reliance on that testimony during closing argument. 5 Generally, “evidence of a defendant’s prior criminal acts may not be introduced to prove guilt of the offense for which the defendant is on trial.” Ayers v. State, 335 Md. 602, 630 , 645 A.2d 22 (1994) (citations omitted). Prior criminal acts are excluded to avoid confusing the jurors, prejudicing their minds against the defendant, and predisposing them to a belief that the defendant is guilty. Terry v. State, 332 Md. 329, 334 , 631 A.2d 424 (1993). The rule excluding “other crimes” reflects a “fear that jurors will conclude from evidence of other bad acts that the defendant is a ‘bad person’ and should therefore be convicted, or deserves punishment for other bad conduct and so may be convicted even though the evidence is lacking....” Harris v. State, 324 Md. 490, 496 , 597 A.2d 956 (1991). “Evidence of other crimes may be admitted, however, if it is substantially relevant to some contested issue in the case and if not offered to prove the defendant’s guilt based on a propensity to commit crime or his character as a criminal.” State v. Faulkner, 314 Md. 630, 634 , 552 A.2d 896 (1989) (citations omitted).

Accordingly, Maryland Rule 5-404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for ²⁴⁰ other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. These “recognized ‘exceptions’ to the exclusionary rule are not exclusive.” Harris, 324 Md. at 501 , 597 A.2d 956 . “Before other crimes evidence is admitted, a three-part determination must be made by the trial court.” Sifrit v. State, 383 Md. 116, 133 , 857 A.2d 88 (2004). See also Skrivanek v. State, 356 Md. 270, 291-92 , 739 A.2d 12 (1999), Streater v. State, 352 Md. 800, 806 , 724 A.2d 111 (1999); and Wynn v. State, 351 Md. 307, 324-25 , 718 A.2d 588 (1998).

First, the trial court must determine whether the evidence fits within one of the exceptions. Faulkner, 314 Md. at 634-35 , 552 A.2d 896 . This is a legal determination that does not involve any discretion. Faulkner, 314 Md. at 634 , 552 A.2d 896 ; see also Oesby v. State, 142 Md.App. 144, 159 , 788 A.2d 662 (2002).

Second, if the prior offense fits within one of the exceptions, then the trial court must determine “whether the accused’s involvement in the other crimes is established by clear and convincing evidence.” 6 Faulkner, 314 Md. at 634 , 552 A.2d 896 (citations omitted). Third, the trial court must carefully balance the necessity for and probative value of the other crimes evidence against any undue prejudice likely to result from its admission. Id. at 635 , 552 A.2d 896 . This is a discretionary determination on the part of the trial court.

Id.) see also Oesby, 142 Md.App. at 167-68 , 788 A.2d 662 (“This final balancing between probative value and unfair prejudice is something that is entrusted to the wide discretion of the trial judge---- Reversal should be reserved for those rare and bizarre exercises of discretion that are, in the judgment of the appellate court, not only wrong but flagrantly and outrageously so.”). In Stevenson v. State, 94 Md.App. 715 , 619 A.2d 155 (1993), the defendant was charged with the rape of his estranged ²⁴¹ wife. The State’s evidence demonstrated that Mr. Stevenson broke into his wife’s home, demanded that she have sex with him, and raped her when she refused. The defense was that of consent.

At trial, the defendant’s wife was allowed to testify about an incident that occurred ten months prior to the alleged rape. In the prior incident, the defendant broke into his wife’s home, asked her to make love to him, and when she refused, attacked her with a butcher knife and cut off her shoulder-length hair. Prior