Nance v. State

KARWACKI, Judge. A Baltimore City jury convicted Thomas Nance, the appellant, of first degree rape, burglary, first degree sexual offense, and of carrying a deadly weapon openly with intent ²⁶¹ to injure a person. Judge Arrie W. Davis, who presided at appellant’s trial, sentenced him to consecutive terms of life imprisonment for the rape and sexual offense. Additionally, he imposed concurrent sentences of 20 years imprisonment for the burglary and three years incarceration for the deadly weapon violation.

The jury was presented with legally sufficient evidence that in the early morning hours of July 11, 1987, appellant broke into the home of Michelle Johnson. Threatening her with a knife, he forced her to engage in vaginal intercourse and to perform fellatio upon him. Appellant poses these questions for our review: 1. Did the trial court err when it recalled, sua sponte, the alleged victim to provide the jury with further testimony about the incident in question? 2.

Should appellant’s sentence for unlawfully wearing and carrying a deadly weapon be merged? 1. Appellant’s first contention concerns the trial judge’s participation in eliciting testimony from the prosecuting witness. In response to direct and cross-examination, Ms. Johnson described the violence accompanying appellant’s attack upon her in some detail but only referred to the sexual activity in which she was forced to engage as “oral sex” and “intercourse.” After the Assistant State’s Attorney announced that she had no further questions on redirect examination, the following took place: THE COURT: Miss Johnson, I hate to do it to you because I know it is very unpleasant, but the State’s Attorney has asked you certain questions. Some of the questions related to what happened after the defendant made overtures.

I am going to have to ask you, as much as I don’t want to do this, to ask you to specifically tell us what he did. MR. HEDGEPETH [Defense Counsel]: Your Honor, may we approach the bench? ²⁶² THE COURT: Yes. (Whereupon, counsel and the defendant approached the bench.) MR.

HEDGEPETH: Your Honor, I would have to object to the Court’s attempts to fill a deficiency in the State’s case. THE COURT: Ms. Bruning, we had testimony that the defendant had oral sex with the victim. I am not sure what the Court of Special Appeals is going to make out of that. Oral sex can be a whole lot of things.

Excuse me for being flip about it, but it could be having one’s mouth on one’s big toe. That could be oral sex. MS. BRUNING [Assistant State’s Attorney]: The Court can take judicial notice— THE COURT: It is not me.

It is the Court of Special Appeals. MS. BRUNING: I would ask permission to reopen the case and clarify that. MR.

HEDGEPETH: I would object. She had a prompt from the Court. It would seem to me if there is a deficiency in the State’s case, it is not the Court’s duty to repair it. THE COURT: I won’t repair it.

I will permit the State to reopen it. MR. HEDGEPETH: I’d object. THE COURT: Very well.

(End of bench conference.) BY MS. BRUNING: Q Miss Johnson, just a few more questions. You said the defendant had vaginal intercourse with you. What did you mean exactly?

What did he do with you? MR. HEDGEPETH: Objection. THE COURT: Overruled.

THE WITNESS: He got me down on the bed and climbed on top of me. BY MS. BRUNING: ²⁶³ Q When he climbed on top of you, what did he do then? MR.

HEDGEPETH: I would object. THE COURT: Overruled. THE WITNESS: He had sex with me. BY MS.

BRUNING: Q What do you mean had sex? MR. HEDGEPETH: I would object. THE COURT: Overruled.

BY MS. BRUNING: Q Refer to the specific parts of the body and any part you had contact with. A He fondled my body and inserted his penis into my vaginal area. Q Did he penetrate your vagina?

MR. HEDGEPETH: Objection. THE COURT: I sustain the objection as to the form. Where if anywhere did he put his penis?

THE WITNESS: In my vagina. THE COURT: Ms. Bruning? BY MS. BRUNING: Q After that, you said both before and after the vaginal intercourse, that he had oral sex with you.

What do you mean by that? MR. HEDGEPETH: I would object. THE COURT: Objection is noted for the record.

Overruled. THE WITNESS: In other words, we had sex by my mouth on his penis. He placed his penis in my mouth. While the presiding judge in a jury trial must exercise restraint in participating in the interrogation of witnesses at trial lest he compromise his or her role as an impartial arbitrator in the eyes of the jury, it is well settled that the judge may question the witnesses to insure that the facts in the case are fully developed.

Cardin v. State, 73 Md.App. 200, 229 , 533 A.2d 928 (1987); Lane v. State, 60 Md.App. ²⁶⁴ 412, 429-30, 483 A.2d 369 (1984); Bell v. State, 48 Md.App. 669, 678 , 429 A.2d 300 (1981). Judge Davis did not abuse the discretion vested in him in this regard in the instant case. He recognized a potential ambiguity in the testimony of the only witness to the corpus delicti of the crimes with which the appellant was charged. His actions aimed at clarifying that testimony did not manifest any opinion adverse to appellant.

The interrogation was not protracted. There is no allegation that his demeanor or the inflection of his voice in any way prejudiced the appellant. In sum, his inquiries were appropriate and undoubtedly aided the jurors in performing their duty to apply the applicable law to the evidence in determining appellant’s guilt vel non of the crimes with which he was charged. 2. Appellant contends that his conviction of carrying a weapon openly with intent to injure should merge with his conviction of first degree rape and first degree sexual offense.

We reject that proposition. The Fifth Amendment’s guarantee to a criminal defendant that he or she will not twice be placed in jeopardy for the same offense, which is applicable to the states by virtue of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), prohibits multiple punishment for the same offense. United States v. Wilson, 420 U.S. 332, 342-43 , 95 S.Ct. 1013, 1021 , 43 L.Ed.2d 232 (1975); Newton v. State, 280 Md. 260, 263 , 373 A.2d 262 (1977). Where a defendant is convicted of more than one crime as a result of one criminal escapade, we determine whether he may be punished for each crime by application of the “required evidence” or “Blockburger”