Lancaster v. State

BLOOM, Judge. Appellant, Harry Whinna Lancaster, was convicted by a jury sitting in the Circuit Court for Allegany County (Sharer, J.) of an unnatural or perverted sexual practice under Md.Ann.Code, art. 27, § 554, and for that offense received the maximum penalty: 10 years imprisonment and a fine of $1,000. Five years of the prison term were then suspended in favor of 5 years probation. Appellant was also convicted of a fourth degree sexual offense (Md.Ann.Code, art. 27, § 464C(a)(2)) for which the court likewise imposed the maximum penalty: one year imprisonment and a $1,000 fine, with the term of imprisonment to run concurrently with the term imposed for the violation of § 554.

Facts The victim, Louis W., was 15 years old in July 1988 when he met appellant, a 53-year-old who suffered from severe asthma and carried an oxygen machine with him. According to the victim, at their first meeting appellant bought him food at McDonald’s and paid for an evening of skating. On another occasion, the boy visited appellant’s home, where he was shown several guns. ⁷⁸ Several days later, Louis visited appellant’s home again, and he and appellant watched an X-rated video tape, after which appellant performed fellatio on him. According to the victim this routine recurred every Monday, Wednesday, and Friday evening until 23 January 1989, when he went to the police.

Appellant presented contradictory evidence. Grant Van Pelt, who rented a room in appellant’s home from April until August 1988, testified that thé victim came to appellant’s home four days at most, and that he, Van Pelt, had never seen the boy in the home during the week. Van Pelt also testified that for three weeks in October 1988 appellant was stricken with the flu and asthma. During this time, Van Pelt, who had moved back into appellant’s home in order to care for him, never saw the victim.

Even after appellant recovered, Van Pelt, who continued to eat his evening meal at appellant’s home, never saw the victim in appellant’s home. Additionally, John Williams testified that he rented a room in appellant’s home for approximately one month from August until September 1988 and that he was unaware of any visits by a young man on Mondays, Wednesdays and Fridays. Before trial, the court granted appellant access to the victim’s juvenile records wherein it was revealed that the boy had been adjudicated a delinquent child, based upon unauthorized use of an automobile and rape and sexual offense upon an eight-year-old child. Relying upon Md.Ann.Code (1989 Repl.Vol.) Cts. & Jud.

Proc. Art., § 3-824(b,c), the trial judge forbade any reference at trial to any aspect of the juvenile adjudication or disposition. Furthermore, because the victim refused to waive his psychotherapist-patient privilege, counsel was not allowed to impeach him with statements he had made to psychologists. The court also sustained the State’s objection to the testimony of two of the boy’s doctors pertaining ⁷⁹ to their conversations with him, as well as one doctor’s expert psychological opinion. 1 Appellant alleged, during the suppression hearing, that a certain inculpatory statement he made to the police, concerning his relationship with the victim, had been improperly induced.

The trial court found that the statement was made freely and without promise of reward and denied appellant’s motion. Finally, the trial court overruled appellant’s objection to the State being allowed to impeach him with a prior conviction for distribution of marijuana. Appellant alleges that because of this ruling he decided not to take the stand on his own behalf. Appellant noted this timely appeal, wherein he asserts: 1.

The conviction and sentence for perverted sexual practice must be merged into the conviction and sentence for fourth degree sexual offense. 2. The trial judge erred by refusing to permit appellant to ask the complainant on cross-examination whether he was a “sexual virgin” or had had “sexual encounters” before meeting plaintiff. 3. The trial judge’s restrictions on cross-examination of the complainant effectively denied appellant his right to impeach his accuser. 4. The trial judge’s exclusion of relevant testimony effectively denied appellant his right to impeach his accuser. 5.

The trial judge erred by denying appellant’s motion to suppress an improperly induced statement. 6. The trial judge erred in ruling that the State could impeach appellant with a prior conviction for distribution of marijuana, thereby coercing a waiver of his right to testify in his own behalf. ⁸⁰ We agree with appellant’s first contention and vacate the sentence for perverted sexual practice because the conviction for that offense merges into the conviction for fourth degree sexual offense. We find no reversible error with respect to the other contentions; consequently, we shall affirm the conviction and sentence for fourth degree sex offense. We shall deal with each of appellant’s arguments, but not in the exact order in which he presented them.

Further facts will be set forth in the discussion that follows. I Appellant contends that he should not have been convicted separately and sentenced separately for both the unnatural or perverted sexual practices and the fourth degree sexual offense because his conviction for perverted sexual practices (for which he received a 10 year sentence with 5 years suspended) must merge into his conviction for fourth degree sexual offense (which resulted in a one-year concurrent sentence). We agree. We begin our analysis by noting that “the prohibition against double jeopardy, both under the Fifth Amendment and at common law, bars not only successive trials but also multiple punishment for the same offense.” Slye v. State, 42 Md.App. 520, 524 , 401 A.2d 195 (1979) (citations omitted).

In the case sub judice we are asked to determine whether the two offenses, arising from the same criminal act, are the same for the purposes of double jeopardy and, if so, which offense merges into the other. Appellant directs our attention to State v. Jenkins, 307 Md. 501, 517 , 515 A.2d 465 (1986), wherein the Court of Appeals held that “if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter.” The “greater” offense, therefore, is not necessarily the offense for which the greater penalty is provided; it is ⁸¹ the offense with the additional element or elements, and the “lesser” offense is the offense which is an “essential ingredient” of or is included within the other. Slye v. State, 42 Md.App. 520, 526 , 401 A.2d 195 ; see also Simms v. State, 288 Md. 712, 723 , 421 A.2d 957 (1980); Johnson v. State, 283 Md. 196 , 388 A.2d 926 (1978). The established test for determining whether two offenses merge is the “required evidence” test.

In Newton v. State, 280 Md. 260, 268 , 373 A.2d 262 (1977), Judge Eldridge, writing for the Court of Appeals, stated: Thus, under both federal double jeopardy principles and Maryland merger law, the test for determining the identity of offenses is the required evidence test. If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge. However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited. Md.Code Ann., art. 27, § 554, titled Unnatural or perverted sexual practices, provides, in pertinent part: Every person who is convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00) or be imprisoned in jail or in the house of correction or in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the court.

With respect to this case, the pertinent language of the statute that defines a fourth degree sexual offense, Md. Ann.Code art. 27, § 464C, reads as follows: A person is guilty of a sexual offense in the fourth degree if the person engages ... in a sexual act with ⁸² another person who is fourteen or fifteen years of age and the person performing the sexual act is four or more years older than the other person____ Any person violating the provisions of this section is guilty of a misdemeanor and upon conviction is subject to imprisonment for a period of not more than one year, or a fine of not more than $1,000, or both fine and imprisonment. The definition of a “sexual act” is set forth in art. 27, § 461(e): “Sexual act” means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse ____ The State strenuously objects to the merger of § 464C and § 554, relying on Schochet v. State, 320 Md. 714 , 580 A.2d 176 (1990), for the proposition that in addition to proving that an unnatural or perverted practice occurred, the State must also prove that it was either nonconsensual, commercial, homosexual, involved a juvenile or not performed in private. Schochet involved a sex act between two heterosexual, consenting adults in the privacy of one’s home. Contrary to the State’s premise, Schochet does not require the State to prove additional facts.

What Schochet holds is that the statute was not intended to apply to, and therefore does not criminalize, consensual heterosexual conduct in private between competent adults. The holding in Schochet is inapposite to any issue in the case sub judice. In applying the required evidence test to the two offenses involved here, it is manifest that § 464C requires proof of two facts that § 554 does not, namely that the victim is 14 or 15 years of age and that the accused is at least four years older. In Ross v. State, 59 Md.App. 251, 269 , 475 A.2d 481 (1984), this Court said that, with respect to those two statutory offenses (but in the context of limitations or penalties rather than merger), that the additional element required in a fourth degree sexual offense that the victim be “fourteen or fifteen years of ⁸³ age” determined that crime as the “greater offense” even though the penalty for committing the “lesser included” offense was far greater.

Under art. 27, § 464C, a fourth degree sex offense can be committed in several ways that do not involve the same conduct that is proscribed in § 554. Nevertheless, since the manner in which appellant is alleged to have committed a fourth degree sex offense (a sexual act — fellatio—with a person fourteen or fifteen years of age by a person four or more years order) is the exact same unnatural and perverted sexual practice for which the State sought to punish him under § 554, the two offenses are the same. In Nightingale v. State, 312 Md. 699 , 542 A.2d 373 (1988), the Court of Appeals dealt with two separate cases which involved the issue of whether separate convictions and sentences for both child abuse and either second, third, or fourth degree sexual offense were improper where the State relied on and proved the sexual offense to sustain the child abuse conviction. The appellants argued that for double jeopardy purposes their convictions and sentences for child abuse and sexual offenses could not stand because the crimes were the same under the required evidence test.

The Court held that each statute encompassed elements that the other did not, but that “when a multi-purpose criminal statute is involved, we refine it by looking at the alternative elements relevant to the case at hand.” Id. at 705 , 542 A.2d 373 . Judge Adkins, writing for the Court, explained: When, as here, a multi-purpose criminal statute is involved, the court must construct from the alternative elements within the statute the particular formulation that applies to the case at hand. It should rid the statute of alternative elements that do not apply. It must, in other words, treat a multi-purpose statute written in the alternative as it would treat separate statutes.

The theory behind the analysis is that a criminal statute written in the alternative creates a separate offense for each alter ⁸⁴ native and should therefore be treated for double jeopardy purposes as separate statutes would. Nightingale, 312 Md. at 706-07 , 542 A.2d 373 [citing Pandelli v. United States, 635 F.2d 533, 537 (6th Cir.1980) ]. Although child abuse may be based on physical harm or cruel physical treatment, at both trials the State’s theory, as presented in opening statement, closing argument, and the court’s instructions, involved sexual child abuse. Thus, the jury in each case could have found the defendant guilty of child abuse based solely on evidence of a sexual offense in some degree.

Id. 312 Md. at 708 , 542 A.2d 373 . In the case sub judice, the trial court’s instructions, as well as the State’s closing argument, made it clear that fellatio was the sexual act alleged under both the fourth degree sexual offense charge and the perverted sexual practice charge. We hold, therefore, that under the facts of this case appellant’s conviction and sentence under § 554, unnatural or perverted sexual practices, merged into his conviction and sentence for the greater offense, fourth degree sexual offense under § 464C. II Appellant next asserts that it was error for the trial court to refuse to permit him to cross-examine the victim with respect to the victim’s past sexual encounters. 2 We stated in Tipton v. State, 39 Md.App. 578, 586 , 387 A.2d 628 (1978), that “... the balancing of the intangibles — probative value against probable dangers — is essentially a discretionary matter to be determined by the trial judge and in the absence of an abuse of that discretion it will not be disturbed on review.” ⁸⁵ Upon a motion for judgment of acquittal, appellant argued that Louis’s testimony established that, as a matter of law, he was an accomplice, whose testimony required corroboration.

Since Louis’s testimony tended to show that he was not a willing partner but acquiesced because he was afraid, the court correctly ruled that the question of whether the boy was a victim or accomplice was a question of fact for the jury. Appellant now argues that in order to prove that Louis was an accomplice and not a victim, evidence corroborating appellant’s testimony showing valid consent to appellant’s behavior was necessary. Appellant further argues that Louis’s consent was a material issue in the case and that makes the fact of his prior sexual conduct relevant. Appellant argues on appeal that he was only seeking to elicit a “Yes” or “No” answer as to whether the victim had experienced any other sexual encounters, rather than evidence as to specific prior sexual encounters.

In Giles v. State, 229 Md. 370 , 183 A.2d 359 (1961), the trial court refused to permit the defendant to cross-examine the victim, who claimed she had been raped, about whether she had ever had venereal disease or whether her parents allowed her to go out late at night, for the purpose of proving consent. The Court of Appeals held that the questions as framed did not go to her general character or reputation for chastity. Id. at 380 , 183 A.2d 359 . According to the Court: The first question (relating to a venereal disease) would certainly have also permitted a probing into specific acts, and, even if it had been answered in the affirmative, it would have had no probative value on the issue of consent.

If in fact the prosecutrix had a venereal disease, she could have contracted it from the defendants____ Id. In the instant case the probative value of the victim’s prior sexual conduct for the purpose of proving consent to the alleged homosexual conduct was minimal. Even if he ⁸⁶ answered the question as to past sexual experience in the affirmative, that answer would not tend to establish that he consented to and was a willing participant in the homosexual activity that was the crux of this case. Finding no abuse of discretion, we hold that the trial court properly refused to permit such inquiry.

III In his third and fourth assertions of error, appellant complains that the trial court unduly restricted defense counsel in his efforts to impeach the victim’s testimony by using information from the youth’s juvenile records and from statements the victim made to his psychologists. The trial court invoked the rule of juvenile confidentiality, § 3-824(b), (c), of the Courts Article, to bar the impeachment use of Louis’s recent delinquency adjudication. Because the victim declined to waive the psychotherapist-patient privilege (§ 9-109 of the Cts. & Jud.Proc.. Article of the Maryland Code), the trial court barred the use of the boy’s statements to psychologists as well.

We shall first deal with the use of Louis’s juvenile records before turning our attention to the statements made to his psychologists. a. The law is perfectly clear that it is “impermissible to attack the credibility of a witness by asking him about his past record of juvenile offenses, directly Braun v. State, 230 Md. 82 [ 185 A.2d 905 (1962) ], or indirectly, Westfall v. State, 243 Md. 413 [ 221 A.2d 646 (1966)].” Johnson v. State, 3 Md.App. 105, 115 , 238 A.2d 286 (1967). Indeed, any inquiry, “whether by record or by cross-examination, of determinations of prior juvenile delinquency is impermissible in any adjudicatory hearing.” Matter of Alexander, 16 Md.App. 416, 420 , 297 A.2d 301 (1972) (emphasis in original). Adjudication of delinquency is not a criminal conviction and cannot be used as such for impeachment.

For a discussion of the philosophy of juvenile court enactments ⁸⁷ see In re Dwayne H., 290 Md. 401 , 430 A.2d 76 (1981); In re Appeal Misc. No. 32, 29 Md.App. 701 , 351 A.2d 164 (1976); In re Davis, 17 Md.App. 98 , 299 A.2d 856 (1973); Jackson v. State, 17 Md.App. 167 , 300 A.2d 430 (1973). Despite the unambiguous holdings of Braun, Westfall, etc., appellant insists that he should have the right to cross-examine the victim about his juvenile record in order to attack his credibility. He relies on Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974), for the proposition that cross-examination should be permitted to show bias or ulterior motive notwithstanding a statutory provision that would ordinarily keep the impeaching matter confidential.

We agree with Professor McCormick’s statement that [T]he trial judge ... has wide discretionary control over the extent of cross-examination upon particular topics, but the denial of cross-examination altogether, or its arbitrary curtailment upon a proper subject will be grounds for reversal. (Emphasis in original.) McCormick on Evidence, 3rd ed. p. 50. In Davis v. Alaska, 415 U.S. 308, 316-17 , 94 S.Ct. 1105, 1110-11 , 39 L.Ed.2d 347 (1974), the Supreme Court stated: The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.

The partiality of a witness is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.” 3A J. Wigmore Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. ⁸⁸ It is important to note that such