Johnson v. State

ROBERT M. BELL, Judge. The issue this case presents is whether, when the defense to a charge of rape is that the victim was exchanging sex for drugs, the rape victim’s admission to having previously engaged in such conduct is inadmissible pursuant to Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 461A (“the rape shield statute”). 1 The Circuit Court for Anne Arundel County ruled that it is inadmissible and the Court of Special Appeals affirmed. Johnson v. State, 93 Md.App. 522 , 613 A.2d 450 (1992). For the reasons hereinafter stated, we shall reverse. ⁴⁵⁹ I. The victim, who was addicted to crack cocaine, accused the petitioner and Robert Galloway, 2 inter alia, of raping her on the morning of March 9, 1991.

According to the victim’s testimony, her being raped was the culmination of an evening and night of drug use, which consumed all, or virtually all, of the victim’s previous week’s wages. Indeed, according to the victim’s testimony, the rape occurred while she was attempting to make yet another purchase of cocaine, with funds obtained from a friend. The petitioner’s defense was that the sexual relations with the victim occurred while the victim was “freaking” for drugs, ie. exchanging sex for drugs. He testified that one William Jackson promised the victim crack cocaine if she would engage in sexual relations, that offer being explicitly made to apply to sexual relations with both the petitioner and his co-defendant, as well as Jackson.

The “sex in exchange for drugs agreement” was confirmed by co-defendant Galloway. When Jackson did not “pay” the victim, she accused the petitioner and his co-defendant of rape. In corroboration of his defense, the petitioner proffered that the victim had freaked for drugs in the quite recent past. He proposed to prove that fact through the cross-examination of the victim with regard to her prior sexual conduct.

By filing a motion in limine, he sought a pretrial ruling as to the propriety of doing so. See Rainville v. State, 328 Md. 398, 404-405 , 614 A.2d 949, 952 (1992); Prout v. State, 311 Md. 348, 355-356 , 535 A.2d 445, 448-449 (1988); Watson v. State, 311 Md. 370, 372 , 535 A.2d 455 457 (1988); Thomas v. State, 301 Md. 294, 316 , 483 A.2d 6, 17-18 (1984), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1856 , 85 L.Ed.2d 153 (1985). At an in-camera hearing, held to resolve the issue, see Article 27, § 461A(b), 3 the petitioner elicited testimony from ⁴⁶⁰ the victim that she had been freaking for crack cocaine for approximately six months, usually in Pioneer City, across the street from Meade Village, where the alleged rape occurred. She had freaked for crack cocaine most recently, she said, one week prior to being raped.

The victim explained that when she wanted to get high, she would engage in sex for crack cocaine at anytime of the day or night. She specifically denied freaking for cocaine on this occasion or having previously engaged in sexual relations with either the petitioner or his co-defendant. The trial court ruled that the rape shield statute rendered the evidence inadmissible. It reasoned: Then we’re coming down that, three, that it supports a claim that the victim has an ulterior motive in accusing the Defendant; or four, it’s offered for the purpose of impeachment.

And what we find here is the defense is consent, and the defense wishes to put in prior sexual conduct of exchanging sex for drugs. None of these have occurred with the Defendants. So that rules them out on an issue of consent. Then we have to look then what is — assuming that it’s relevant — which I’m not making that assumption yet, and assuming its material, we have to weigh its inflammatory versus prejudicial nature [sic].

The fact that she may have done it before — well, cases say that if one is a prostitute, that does not go to the issue of consent. Here just because she may have done it in the past, doesn’t show me any ulterior motive or it’s going to make it safe for her in the ⁴⁶¹ community.[ 4 ] That I just do not accept. I have to believe that the prejudicial factor is greater than any probative factor as to that. Now, what I was waiting for, curiously, if she would have denied this, and you had testimony to the fact to prove this, then it would have come in for impeachment purposes.

And that — but she has admitted to it. So once she’s admitted to it, it’s not in for impeachment purposes. And based on that just to let it in that she may have done this on other occasions, that is exchange sex for drugs over a six month period, I think does not qualify to let it become admissible. So I am going to deny the motion.

The jury convicted the petitioner of first and second degree rape, first and second degree sexual offense, perverted practices and battery. The court sentenced him to a total of twelve years imprisonment. Affirming, the Court of Special Appeals held that the trial court did not abuse its discretion in weighing the prejudicial impact of the proffered evidence against its probative value in view of the great potential that the jury would have viewed the victim simply as a fallen woman and not focused on whether they believed her testimony that she was prepared to pay for the drugs as opposed to the testimony of appellant and Jackson that the understanding was that sex would be exchanged for drugs. 93 Md.App. at 538 , 613 A.2d at 458 . The court further opined: Whether the jury may have been more inclined to believe that the victim had consented on this occasion if it had been provided with the evidence that she had exchanged sex for drugs in the past is problematic,[ 5 ] since she made clear that ⁴⁶² she had never engaged in sexual relations for drugs with the participants in this case.

The net effect of admitting the evidence of prior sexual conduct would have been that the proceedings could have been refocused on an inquiry into prior sexual encounters with other partners. Id. at 537-38 , 613 A.2d at 458 .

II

The petitioner asserts that the proffered testimony that the victim habitually freaked for crack cocaine is highly probative; it is relevant, and material, to whether, on the night in question, she actually was freaking for crack cocaine, but became angry when she did not receive the promised consideration. This, he submits, “supports a claim that the victim had an ulterior motive in accusing the defendant of the crime.” § 461A(a)(3). 6 The petitioner also posits that if, notwithstanding its relevance, materiality, and high probative value, the proffered testimony is nevertheless inadmissible because it does not fit within an enumerated exception, then the rape shield statute is unconstitutional as conflicting with his rights of confrontation, to present a defense, and to due process. Citing White v. State, 324 Md. 626 , 598 A.2d 187 (1991), the State maintains that the trial court did not abuse its discretion when it decided that the evidence that the victim’s past sexual ⁴⁶³ activity was not sufficiently linked to the facts of the case to be relevant to the victim’s alleged motive to falsify the rape charge. Moreover, it asserts that the trial court exercised sound discretion in concluding that the prejudicial impact of the evidence of the victim’s past sexual activity far outweighed its probative value.

Finally, the State contends that the constitutional issue is not preserved for review. If preserved, however, the State says that the petitioner’s argument is without merit because the proffered evidence is irrelevant; there is no constitutional right to the admission of irrelevant evidence.

III

The rape shield statute provides, in pertinent part: (a) Evidence relating to victim’s chastity. — Evidence relating to a victim’s reputation for chastity and opinion evidence relating to a victim’s chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree. Evidence of specific instances of the victim’s prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is: (1) Evidence of the victim’s past sexual conduct with the defendant; or (2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or (3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or (4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim’s prior sexual conduct in issue. Maryland Code (1957,1992 Repl.Vol.) Article 27, § 461(a). To be admissible, evidence of specific instances of a victim’s past ⁴⁶⁴ sexual conduct must fit within one of the enumerated exceptions and be found by the trial court to be relevant and material to a fact at issue in the case and to have probative value greater than its inflammatory or prejudicial nature.

Section 461A(a)(3), pertaining to a rape victim’s ulterior motive for making a false accusation, is statutory recognition of the defendant’s right to inquire into the bias or prejudice of the victim. That right of inquiry is conditioned, as are the other exceptions, at the threshold, however, on the prior sexual conduct evidence having special relevance to a material issue in the case, and its probative value being greater than its prejudicial impact. The latter requirement reflects the legislative intent to exclude evidence whose only relevance is to prove the victim’s reputation for chastity. This is consistent with the purpose this Court has attributed to the weighing process required to be conducted when prior bad acts evidence is sought to be admitted against a defendant.

See Harris v. State, 324 Md. 490, 498 , 597 A.2d 956, 960 (1991); Howard v. State, 324 Md. 505, 514 , 597 A.2d 964, 968 (1991). A trial court’s ruling on the admissibility of specific instances of a victim’s past sexual conduct is subject to review on an abuse of discretion standard. White, 324 Md. at 637 , 598 A.2d at 192 . See Thomas, 301 Md. at 317 , 483 A.2d at 18 .

See also State v. Allewalt, 308 Md. 89, 101-02 , 517 A.2d 741, 747 (1986). The rape shield statute was enacted in response to trial courts admitting, as a matter of course, in rape cases, evidence of the victim’s chastity or lack of chastity whenever the defense of consent was raised. See Giles v. State, 229 Md. 370, 397-80 , 183 A.2d 359, 363 (1962), vacated and remanded on other grounds, 386 U.S. 66 , 87 S.Ct. 793 , 17 L.Ed.2d 737 (1967); Humphries v. State, 227 Md. 115, 121 , 175 A.2d 777, 780 (1961). It was enacted, therefore, “ ‘to prevent defense counsel from putting the victim ‘on trial,’ from unfairly invading the victim’s privacy, and from deflecting the jury’s attention from the true issue.

The rule reflects recognition that the trial process at best is traumatic to the victim of sexual abuse. If she had reason to ⁴⁶⁵ believe that the most intimate details of her life are going to be bandied about the court room, many victims will decide that the game is not worth the candle and decline to file a complaint.’ ” White, 324 Md. at 634 , 598 A.2d at 634 , quoting Goodson v. State, 566 So.2d 1142, 1149-50 (Miss.1990). Although anticipating an increase in the number of reported rapes, the legislative intention was not to prevent a defendant from being able to present a defense to a rape charge or to hamstring him or her unduly in his or her effort to do so: “[The committee] took cognizance of the broad based support of the concept of limiting evidence relating to prior sexual conduct of a rape victim and that such a limitation would probably result in an increase in the, percentage of rapes reported; that a statutory response to the inherent sensitivities of a traumatized victim could accommodate the constitutionally mandated rights and protections properly afforded a defendant in our criminal justice system; and that the weighing of inflammatory nature versus the probative value of specific instances of prior sexual conduct precludes possible admission of highly prejudicial evidence of limited probative value. Presently, it is the practice of some courts to admit evidence of any probative value irrespective of its inflammatory nature.” Report of Senate Judicial Proceedings Committee on Senate Bill No. 399 at 4; See also White, 324 Md. at 636 , 598 A.2d at 192 .

IV

The petitioner seeks to prove that not only are the victim’s prior “freaking” activities relevant, material and non-prejudicial, but that her rape allegation is but a vindictive response to not receiving drugs for the sexual relations she engaged in with the petitioner. It is this frame of mind that the petitioner alleges supports his claim that she had an ulterior motive in falsely accusing him of rape. He posits that from proof that she was freaking for cocaine but was not “paid” the agreed consideration, a trier of fact could infer her frame of mind, ⁴⁶⁶ from which it could then infer and, thus, conclude that the victim’s testimony was infected with bias and prejudice against the defendants. Smallwood v. State, 320 Md. 300, 302 , 577 A.2d 356, 356 (1990), involved the extent to which cross-examination to uncover a witness’s prejudice and bias is permitted.

The defendant was charged with robbing a retail store, The Gap, by taking boxes of clothing. Tracing the license tag of the car in which the robber effected his getaway led to the defendant’s ex-girlfriend, who, on the day she spoke to the police, had broken up with the defendant and had filed assault charges against him. Testifying for the State, she said that she regularly loaned her car to the defendant and that, on one particular Thursday in April, the defendant both failed to pick her up from work and gave her some clothing which bore price tags from The Gap. Contending that it went to the witness’s bias, interest, or motive to lie, the defendant sought to cross-examine his ex-girlfriend concerning the outcome of assault charges she had previously brought against him.

The court refused to allow it. 320 Md. at 302-03 , 577 A.2d at 357 . Urging that the ruling was prejudicial error, 320 Md. at 304 , 577 A.2d at 357 , the defendant argued that the witness’ failure to obtain convictions in the previous cases was evidence of her vindictiveness, which he should have been allowed to demonstrate to the jury so that they would be able adequately to assess the witness’ testimony. Id. Having reviewed pertinent Supreme Court cases, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 678-79 , 106 S.Ct. 1431, 1435 , 89 L.Ed.2d 674, 682-83 (1986); Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974) and Maryland appellate decisions, in particular, Cumberland and Western Port Transit Company v. Metz, 158 Md. 424 , 149 A. 4 , reargument denied, 158 Md. 424 , 149 A. 565 , appealed dismissed sub nom., American Oil Company v. Metz, 282 U.S. 801 , 51 S.Ct. 40 , 75 L.Ed. 720 (1930) (cross-examination should be allowed in order to determine the reasons for acts or statements referred to on direct examination), we concluded in Smallwood : ⁴⁶⁷ A judge must allow a defendant wide latitude to cross-examine a witness as to bias or prejudice, Bruce [v. State ], 318 Md. [706], 727, 569 A.2d [1254], 1265 [ (1990) ], but the questioning must not be allowed to stray into collateral matters which would obscure the trial issues and lead to the factfinder’s confusion. [State v. ] Cox, 298 Md. [173,] 178, 468 A.2d [319,] 321 [ (1983) ]. 320 Md. at 307-08 , 577 A.2d at 359 .

We rejected the trial court’s conclusion that the proffered evidence was irrelevant to the defendant’s guilt or innocence and would have led to the jurors being confused about, or disregarding, what they were to decide. Id. at 309 , 577 Md. at 360. We also said: [F]or purposes of cross-examination of a prosecution witness in order to show bias or motive, “[T]he crux of the inquiry insofar as its relevance is concerned, is the witness’ state of mind. What is essential to the preservation of the right to cross-examine is that the interrogator be permitted to probe into whether the witness is acting under a hope or belief of leniency or reward,” or out of spite or vindictiveness.

(Emphasis in original). Smallwood, 320 Md. at 309-310 , 577 A.2d at 360 , quoting with approval, Brown v. State, 74 Md.App. 414, 420-21 , 538 A.2d 317, 320 (1988), quoting Fletcher v. State, 50 Md.App. 349, 359 , 437 A.2d 901, 906 (1981). The inquiry sought to be made in Smallwood , we were convinced, had substantial probative force and there was no indication that defense counsel was harassing the witness by asking an unfounded question or seeking primarily to embarrass the witness, Id., 320 Md. at 310 , 577 A.2d at 360-361 , quoting Cox, 298 Md. at 184, 468 A.2d at 324, and “went to the Very heart’ of [the witness’s] bias.’ ” Id. The Court of Special Appeals reached a similar result in a statutory rape case, decided prior to enactment of the rape shield statute.

In State v. DeLawder, 28 Md.App. 212 , 344 A.2d 446 (1975), that court held that evidence of bias or motive to lie is relevant when the defendant denies having carnal ⁴⁶⁸ knowledge of the victim and, therefore, is admissible pursuant to the constitutionally-based right of effective cross-examination. Id. at 226-27 , 344 A.2d at 454-55 , relying on Davis, 415 U.S. at 315-317, 320, 356 , 94 S.Ct. at 1110, 1112 , 39 L.Ed.2d at 353-354 . In DeLawder , “the defense strategy [was] to discredit the prosecuting witness by revealing her possible biases, prejudices, or ulterior motives.” Id., 28 Md.App. at 220 , 344 A.2d at 451 . He proposed to do so by proving that, when she accused him, the victim thought she was pregnant by someone else and, therefore, accused the defendant of raping her, “because she was afraid to tell her mother she voluntarily had sexual intercourse with others.” Id.

That strategy then required the defendant to establish the victim’s prior acts of sexual intercourse as a predicate to establishing her ulterior motive. Id. The issue in White was quite different. There, the defendants admitted that the rape victim had been in their van, but denied that they engaged in sexual relations with her.

They contended that the victim had falsely accused them of rape. In support of that defense, they proffered that a witness would testify that the victim had engaged in sex for drugs with him. They also alleged that the false accusation was prompted by the victim’s desire to avoid the certain wrath of her flaneé were he to learn that she had been out smoking cocaine with two men. 324 Md. at 637, 598 A.2d at 193 . The Court rejected both rationales, noting that the “[p]roffered evidence of past sexual conduct must contain a direct link to the facts at issue in a particular case before it can be admitted.” Id. at 638 , 598 A.2d at 193 .

We opined: The Whites proffered that Luther Moore’s testimony would establish Nicole’s motives to make a false complaint of rape. Their first contention is that Nicole may have falsely accused them of rape because she was angry that they had not obtained more cocaine for her. Her anger was the result of their failure to procure drugs, not their failure to trade drugs for sex. Even adopting the Whites’ contention, it was not their declining of Nicole’s offer of sex that motivated the false charge; it was their declining her re ⁴⁶⁹ quest for drugs.

Any prior sexual acts or prior sexual solicitations by Nicole could have little, if any, relevance to her alleged anger at the Whites. In addition, the fact that Nicole may have successfully offered or traded