Johnson v. State

DAVIS, Judge. Donald Warren Johnson, appellant, was convicted by a jury in the Circuit Court for Anne Arundel County, the Honorable Martin A. Wolff presiding, of first degree rape, first degree sexual offense, and lesser included offenses. He was sentenced on November 8,1991 to a term of twelve years imprisonment for first degree rape and to a concurrent twelve year term for first degree sexual offense. In this appeal, he asks: ⁵²⁴ 1.

Did the trial court err in excluding evidence that the prosecutrix “freaked” for crack cocaine? 2. Is the evidence insufficient to sustain the convictions of first and second degree rape, first and second degree sexual offense, and battery?[ 1 ] FACTUAL BACKGROUND In the early morning hours of March 9,1991, according to the 23-year-old prosecutrix, she was raped by appellant and co-defendant Robert Galloway. She had known Galloway and appellant from high school. According to her testimony, she purchased crack cocaine from one of the “regular drug dealers” in Pioneer City on three occasions between the hours of 7 p.m. to midnight on the day in question.

She had received $200 in wages from her job at Hardee’s Restaurant and had paid her mother $50, using the remaining $150 to purchase crack cocaine. The victim testified that she and her friends drove to Meade Village to obtain more crack cocaine after she had consumed the cocaine purchased earlier in the evening. After purchasing a “twenty” from Robert Galloway, they drove to a trailer in the country, smoking the cocaine en route to the trailer, and smoking more of the cocaine from the time they arrived until approximately 3:00 a.m. The victim was driven to the home of a friend, Jack Dailey, in Pioneer City sometime after 3:00 a.m.

She obtained $19 from Dailey to obtain more crack cocaine, and he drove her to Meade Village where the victim met a tall, light-skinned man and asked if he knew “where anything was.” The victim followed the light-skinned man first to an apartment building, where he knocked on the door to an apartment, and then to the building next door where they met Galloway outside. The victim advised that she wanted ⁵²⁵ a “twenty” and followed the tall, light-skinned man and Galloway upstairs to a vacant apartment. The victim testified that, once in the apartment, she was forced into the bedroom by the light-skinned man and told by Galloway to get down “on all fours.” She objected that she was not there to “freak” for the crack and had money to pay for it. Galloway “snatched” her pants from her when she objected, then squeezed her wrist until she was forced to her knees.

The victim was then forced to perform fellatio on the tall, light-skinned male, while Galloway had vaginal intercourse with her from behind. The two men then switched their positions. The prosecutrix then testified that she heard a lot of laughing and smelled fumes from the drugs as a third, unidentified man penetrated her vagina while she continued to perform fellatio on Galloway. During these sexual acts, appellant entered the room, pushed Galloway out of the way, and placed his penis in her mouth.

Shortly thereafter, he penetrated her vagina from the rear position. As Galloway left the apartment, he offered the victim a bag of crack cocaine that was on the floor and told her that if she went to the police they would tell the police that she was “freaking for crack.” The victim retreated to a nearby laundromat, where she was discovered by Barbara Jackson, the leasing manager of a Pioneer City town house development. Jackson telephoned 911, and the victim was examined that morning at North Arundel Hospital, where no evidence of general or gynecological trauma was found. The hospital records further revealed that her clothing was not found to be damaged, and her emotional state was described as calm.

Appellant gave the police a statement as follows: I was walking past the building and this guy comes out the building and tells me this girl is freaking. I went in the building and she was naked. She was having sex and I watched and waited for my turn that was it. The first thing she did was she had oral sex with me and while she ⁵²⁶ was doing that another party was having sex with her.

Then I had sex with her and then I left. Her and this guy were fussing about something. She asked me about some drugs and I let her know that I don’t [know] what kind of deal they made but I didn’t tell her I was going to give her anything. They were discussing it and I left.

Q. Was [the victim] being forced to have sex with anyone? A. No. Q. Did [the victim] receive any drugs from you or anyone else? A. She didn’t get none from me I don’t know about anyone else. Q. If she came in the room late how do you know she wasn’t being forced?

A. Because about what she had said about taking care of all of us. She gave me a can to put some holes in it to smoke some crack but I told her I don’t get high I told her I was going to leave. Q. Did you at any time threaten [the victim] or use force to have sex with her? A. No. Q. Why is she saying you raped her?

A. I figure because the other guy didn’t give her, her rock. Galloway told the police: I was up the street in Meade Village I was walking home and I went the back way I seen this fellow. He and [the victim] were on a step in the back of the house and she was giving him head. He called to me and said hey man where you going and I said I was going home they jumped and stopped doing what they were doing.

I kept on going down the street and they followed me. I asked him what she was doing and he said she was trying to do something. I said what she want to do something with I don’t got nothing he said don’t worry about it I got it. ⁵²⁷ We went down towards the apartments and went in the apartment and she just started giving head and taking her clothes off nobody forced her. Then she just started freaking.

The reason she started freaking was because she thought she had something coming. First it was both of us backthere [sic]. It went on for a little while about five or ten minutes. Then she said where is her peice [sic] at.

The guy said don’t worry about it I got it and she said ok. She said about five more minutes I’m going to stop bevcause [sic] I want mine. She wasn't really doing nothing for me so I said I was finished. I left and then this dude was out side he asked me what was going on and I said this girl was freaking.

I left and went home. Q. Whey [sic] is [the victim] saying you raped her? A. The only thing I can say is the reason why is because we didn’t give her something. Q. What was she looking for?

A. She said she was going to freak for some caine. Q. Have you ever had sex with [the victim] before? A. No. Q. Did you force [the victim] to perform fellatio on you? A. No I didn’t.

William Jackson, who was called as a witness for appellant, testified that the victim had asked him if he knew where to get some “rock” when they met on the street. Jackson asserted that the victim told him that she did not have any money but asked him if he wanted some “head” or “p — y.” He further asserted that the prosecutrix was performing fellatio on him when Galloway walked past. The victim then followed Jackson to a nearby apartment, where she completed the act of fellatio on Jackson at which time Galloway came into the apartment and “asked can he get his d — k sucked.” The victim responded that it would cost a little more rock, whereupon Jackson said that he would take care of everything. The victim then performed ⁵²⁸ fellatio on Galloway while Jackson penetrated her vagina from the rear.

Jackson could not maintain an erection and left. On his way out, Jackson met appellant and told him that there was “a bitch up there freaking.” Appellant then went into the apartment building and, despite Jackson’s promise to the victim that “everything was taken care of,” he left without giving the victim any crack cocaine. Galloway was walking home, according to his testimony, when he saw the victim giving Jackson “head” behind a house. When Galloway said that he did not have any drugs, Jackson responded that it was “taken care of.” According to Galloway’s testimony, Jackson and the victim then entered a nearby apartment building where Galloway walked into the apartment a short time later and found the victim on her hands and knees and Jackson penetrating her vagina from the rear.

When Galloway asked if he could “get on,” the victim told him that it would cost a little more, and Jackson said that he would take care of it. Thereafter, the victim performed fellatio on Galloway, and then appellant entered the apartment and she performed fellatio on him. After Galloway repeated his sexual acts with the victim, he left the apartment and went outside where the victim approached him and asked for her crack cocaine. When they told her that they had not promised to give her anything, the prosecutrix called Galloway a “common bitch” and grabbed a plastic baggie out of his hand.

Galloway testified that he had not sold any drugs to the victim or used any force to have sex. Appellant testified that, on the day in question, he was proceeding down the street when he saw Jackson, Galloway, and the victim. The victim and Jackson entered an apartment building whereupon Galloway said that he was going in to see what was going on. Approximately fifteen minutes later, Jackson came out of the building and told appellant that there was a girl in the building “freaking.” WHhen appellant asked “what’s up,” Jackson told him, “Don’t worry about it.

It’s taken care of. Just go ahead up.” When appellant entered the apartment, he found the ⁵²⁹ victim performing fellatio on Galloway and asked if he could “get on.” The victim told him not to worry and that she would “take care of all of you-all.” After the victim performed fellatio on Galloway, she performed fellatio on appellant, then appellant had vaginal intercourse with her from the rear. Galloway then left the apartment, and appellant and the victim had “regular sex” and also left the apartment. When the victim asked where the crack cocaine was and where Jackson had gone, Galloway said that he did not know where Jackson had gone, whereupon the victim grabbed a package from Galloway’s hands and appellant walked away.

LEGAL ANALYSIS Admissibility of Evidence of Past Sexual Acts Appellant sought a pretrial ruling on the admissibility of evidence that the prosecutrix “habitually” freaked for cocaine — that is, that she agreed to have sex in exchange for crack cocaine. Testifying out of the presence of the jury, the prosecuting witness admitted that she had “freaked” for crack cocaine for approximately six months, usually in Pioneer City, across the street from Meade Village where the alleged rape occurred. This practice had most recently occurred approximately one week before the incident in question. She further testified that she would engage in sex for crack cocaine at any time of the day or night when she wanted to get high.

She had not, however, engaged in sex with appellant or Galloway prior to March 9, 1991, the day of the incident in question. The lower court ruled that the evidence of the victim’s freaking for crack cocaine was inadmissible under the Rape Shield Statute, Md.Ann.Code (1957, 1992 RepLVol.) art. 27, § 461A. The court reiterated its ruling before and during the cross-examination of the victim. Maryland’s Rape Shield Statute states, in pertinent part, the following: ⁵³⁰ (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. (Emphasis added). In sum, evidence of specific instances of the accuser’s sexual history may be admitted only when three conditions are met: (1) if one of the above four enumerated exceptions applies; (2) if the court deems the evidence relevant and material; and (3) if the evidence’s probative value outweighs its prejudicial nature.

A trial court’s ruling on the admissibility of such evidence will be overturned on appeal only if appellant can show an abuse of discretion. Thomas v. State, 301 Md. 294, 317 , 483 A.2d 6 (1984), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1856 , 85 L.Ed.2d 153 (1985). See also State v. Allewalt, 308 Md. 89, 101-02 , 517 A.2d 741 (1986); Testerman v. State, 61 Md.App. 257, 265 , 486 A.2d 233 (1985). Several Maryland cases deal with broad applications of the rape shield statute; however, the narrower question ⁵³¹ of the admissibility of evidence that the accuser previously had offered sex in exchange for drugs has been addressed less frequently by Maryland Courts.

In White v. State, 324 Md. 626 , 598 A.2d 187 (1991), two men were charged with kidnapping, raping, and robbing a woman. The woman claimed that the men drove past as she used a pay phone and asked if she knew where any crack cocaine could be found. When she responded “no,” the men drove off but returned, at which time they jumped out, pulled her into the van, and forced her to engage repeatedly in sex. The defendants claimed that they never engaged in sexual acts with the woman and that she filed a false rape complaint in anger because they would not procure more cocaine for her.

The Court of Appeals held that proffered defense testimony that the victim previously had engaged in sex in exchange for drugs was inadmissible under the rape shield statute because it was irrelevant as well as overly prejudicial. At trial, when the lower court refused to admit the testimony, defense counsel proffered that one of its witnesses would have testified that he knew of “ ‘previous occasions when he has known that [the accuser] has asked people to provide cocaine in return for sex,’ ” id. at 632 , 598 A.2d 187 , and that “ ‘he has had instances when she participated in sex with him for drugs.’ ” Id. at 633 , 598 A.2d 187 . The defendants contended that their witness’s testimony that the woman had a history of trading sex for drugs would fit the third exception to the rape shield statute, which allows evidence of prior sexual conduct if it “supports a claim that the victim has an ulterior motive in accusing the defendant of the crime.” The Court held that the lower court properly excluded the proffered evidence because it was irrelevant. 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 [the accuser’s] offer of sex that motivated the false charge; it was their declining her request for drugs. ⁵³² Any prior sexual acts or prior sexual solicitations by [the accuser] could have little, if any, relevance to her alleged anger at the Whites. In addition, the fact that [the accuser] may have successfully offered or traded sex for drugs in the past does not tend to show that she would become enraged with the Whites for failing to supply her with drugs and declining her alleged sexual solicitation. Luther Moore’s testimony would have dubious relevance to establishing that [the accused] had an ulterior motive to lie____ Id. at 637 , 598 A.2d 187 (emphasis added). The Court further held that, even if the testimony was relevant, admission of the evidence would violate a key aspect of the rape shield statute because the inflammatory nature of the testimony would be such that its prejudicial effect would outweigh its probative value.

What Luther Moore’s testimony would do is paint