Nelson v. State

MOYLAN, Judge. In evidentiary terms, how does one classify a victim’s reporting or recounting of a sexual attack when that report is offered at trial through the testimony of the person who heard it? Perplexingly, it may be many things, each -with its own qualifying rules and each with its own evidentiary significance. It may sometimes be a prior consistent statement, admissible only in rebuttal and only after the victim has testified, offered to rehabilitate the victim’s impeached testimonial credibility.

In that capacity, it is non-hearsay. Cole v. State, 83 Md.App. 279, 296-302 , 574 A.2d 326 , cert. denied, 321 Md. 68 , 580 A.2d 1077 (1990). It may sometimes, on the other hand, be an “excited utterance,” an exception to the Rule Against Hearsay, admissible as substantive evidence whether the victim testifies or not. In that capacity, it is hearsay, an out-of-court assertion received in court for the truth of the thing asserted. 83 Md.App. at 302-05 , 574 A.2d 326 ; Cassidy v. State, 74 Md.App. 1, 16-23 , 536 A.2d 666 , cert. denied, 312 Md. 602 , 541 A.2d 965 (1988).

It may on some occasions be a “statement to a treating physician,” another exception to the Rule Against Hearsay, also admissible as substantive evidence whether the victim testifies or not. In that capacity, it is also hearsay, albeit admissible hearsay. Cassidy v. State, 74 Md.App. at 23-50 , 536 A.2d 666 . It may also be, as were several reports made by the victim in this case, a “prompt complaint” of a sexual attack, admissible only if the victim testifies.

In that capacity, it straddles an increasingly blurred line between hearsay and non-hearsay, 1 but it is admissible in either event. ⁴⁰⁷ In this opinion, as we deal, in turn, with each of three out-of-court reports by the victim, we will make every effort not to wander across doctrinal boundary lines and to keep each examination of deceptively similar but legally dissimilar sub-issues analytically distinct. The Case Before Us The appellant, Drexel Devoe Nelson, was convicted by a Prince George’s County jury, presided over by Judge Michele D. Hotten, of 1) second-degree rape, 2) a second-degree sexual offense, and 3) child abuse. On this appeal he complains that three separate out-of-court declarations the victim made to three separate witnesses were erroneously admitted into evidence in ostensible violation of the Rule Against Hearsay. The Factual Background The appellant and Marcia P. had had, as of March 28, 1999, an “on again-off again” sexual relationship for eight or nine years.

He spent the night of Saturday-Sunday, March 27 28, at her apartment in Prince George’s County. He was still in bed when she left the apartment at about 8:00 A.M. to fill in for an usher at her church. Ms. P. also had her two daughters living in the apartment with her: Aisha, who was then thirteen years old, and Amaris, who was eleven. Aisha, the sexual assault victim in the case, testified that at approximately 9:45 A.M. that Sunday morning, the appellant came into her bedroom, awakened her, and led her into her ⁴⁰⁸ mother’s bedroom.

He lay down on the bed and rubbed her back as she, clad in a knee-length night shirt, sat on the bed. He asked her to lie down beside him and she acquiesced. He first hugged her and put his hand under her shirt. He then “went under the cover,” removed her underpants, and “began to lick my vagina.” As she “just laid there ... he came up and stuck his penis in my vagina.” She complained that he was hurting her and told him to “take it out.” After hesitating for approximately one minute, he ultimately did so.

It was as the appellant was “getting off of me” that eleven-year-old Amaris walked into the room. She said, “Excuse me,” and left. The appellant testified and denied engaging in either cunnilingus or sexual intercourse with Aisha. He acknowledged, however, that she had climbed into bed with him because she was not feeling well.

To comfort her he “gave her a hug and kissed her on the forehead, in a fatherly manner.” It was at that point that Amaris came into the bedroom. Three Out-of-Court Statements The tripartite “hearsay” issue (an admissibility issue, in any event) is before us because three State’s witnesses testified that Aisha reported to them about having been raped. Aisha’s first account (a complaint) was to her sister, Amaris. It was made immediately after the appellant left the apartment shortly after the rape.

The second account (also a complaint) was made the next day at school when Aisha talked to her school counselor. The third account was made as a result of the school counselor’s having notified Aisha’s mother about the attack and the mother’s taking of Aisha to the Sexual Assault Examiner at the Prince George’s County Hospital. Out-of-Court Declaration No. 1: The Victim’s Prompt Complaint Made to Her Little Sister The appellant at least has preserved for appellate review his challenge to the little sister’s recounting of the complaint made to her by Aisha shortly after the appellant left the apartment. Immediately after the rape, Aisha showered and ⁴⁰⁹ got dressed.

As soon as the appellant left the apartment, Aisha called Amaris into the bedroom. Amaris told Aisha that “she smelled.” Aisha showered again. Although the thirteen-year-old victim and her eleven-year-old sister were extensively probed about the details of their conversation one full year after it occurred, they both firmly maintained that a conversation concerning the sexual attack took place between them shortly after the appellant left the apartment. Aisha testified that she had “a conversation” with Amaris.

The direct examination immediately went on to other issues and she was never asked what it was that she had told Amaris. She acknowledged, however, that she told the police that she had informed Amaris of “what really happened.” On direct examination, Amaris, in her turn, was asked whether she had “ever talked” with Aisha and was asked what Aisha had told her. There was an immediate objection. The objection was overruled and Amaris answered that Aisha had told her that “she was raped.” The very cursory examination of Amaris on that point then concluded and it was never made clear whether the word “rape” was a direct quotation from Aisha or was Amaris’s summary of the event reported by Aisha.

In either event, it was a prompt complaint about a sexual attack. The Admissibility of a Prompt Complaint As Substantive Evidence It has been the settled law of Maryland for over one hundred years that “a victim’s timely complaint of a sexual attack is admissible as part of the State’s case-in-chief.” Cole v. State, 83 Md.App. at 287 , 574 A.2d 326 . As Judge Eldridge stated for the Court of Appeals in State v. Werner, 302 Md. 550, 563 , 489 A.2d 1119 (1985): “In prosecutions for sex offenses, evidence of the victim’s complaint, coupled with the circumstances of the complaint, is admissible as part of the prosecution’s case if the complaint was made in a recent period of time after the offense.” ⁴¹⁰ See also Leek v. State, 229 Md. 526, 527 , 184 A.2d 808 (1962); Shoemaker v. State, 228 Md. 462, 466-67 , 180 A.2d 682 (1962); Saldiveri v. State, 217 Md. 412, 416-18 , 143 A.2d 70 (1958); Murphy v. State, 184 Md. 70, 76 , 40 A.2d 239 (1944); Green v. State, 161 Md. 75, 79-82 , 155 A. 164 (1931); Blake v. State, 157 Md. 75, 80-82 , 145 A. 185 (1929); Legore v. State, 87 Md. 735, 736-38 , 41 A. 60 (1898). See also Corbett v. State, 130 Md.App. 408, 420-21 , 746 A.2d 954 , cert. denied, 359 Md. 31 , 753 A.2d 3 (2000); Harmony v. State, 88 Md.App. 306, 321 , 594 A.2d 1182 (1991); Guardino v. State, 50 Md.App. 695, 705-06 , 440 A.2d 1101 (1982); Cantrell v. State, 50 Md.App. 331, 336-38 , 437 A.2d 696 (1981); Estep v. State, 14 Md.App. 53, 67-69 , 286 A.2d 187 (1972); Smith v. State, 6 Md.App. 581, 586-87 , 252 A.2d 277 (1969); Price v. State, 5 Md.App. 127, 131 , 245 A.2d 600 (1968); Hubbard v. State, 2 Md.App. 364, 369-70 , 234 A.2d 775 (1967); Culver v. State, 1 Md.App. 406, 413-14 , 230 A.2d 361 (1967). 6 Lynn McLain, Maryland Evidence (1987), Sect. 613.2 at 170-71, observes: “In a few special situations, prior consistent statements are admissible even when the witness has not been impeached.

Prior identifications of the criminal defendant by the witness may be so proved, as may timely complaints of rape.” (Footnotes omitted) (Emphasis supplied.) In this same regard, McCormick on Evidence (E. Cleary 3d ed.1984), Sect. 297, points out, at 859: “In rape cases traditionally, and increasingly in cases of sex offenses generally, evidence has been held admissible that the victim made complaint. The only time requirement is that the complaint have been made without a delay which is unexplained or is inconsistent with the occurrence of the offense, in general a less demanding time aspect than with the typical excited utterance situation.” (Footnotes omitted). See also Joseph F. Murphy, Jr., Maryland Evidence Handbook, (1991 Cumulative Supplement), Sect. 801(D), at 87-88. ⁴¹¹ That principle of law is now embodied in Maryland Rule 5 802.1(d): The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (d) A statement that is one of prompt complaint of sexually assaultive behavior to which the declarant was subjected if the statement is consistent with the declarant’s testimony. ... The only arguable change that the rule made to pre-existing Maryland common law was in providing that this particular exemption from the Rule Against Hearsay would apply in civil, as well as criminal, cases.

All of the prior case law had dealt only with criminal cases. See Lynn McLain, Maryland Rules of Evidence (1994), Sect. 2.802.1(2)(d), at 223. In Cole v. State, 83 Md.App. at 289 , 574 A.2d 326 , this Court listed the necessary preconditions for admitting a prompt complaint of a sexual attack into evidence: [I]t is subject to limitations such as 1) the requirement that the victim actually testify; 2) the timeliness of the complaint; and 3) the extent to which the references may be restricted to the fact that the complaint was made, the circumstances under which it was made, and the identification of the culprit, rather than recounting the substance of the complaint in full detail. The appellant argues that Aisha’s earlier out-of-court declarations were used by the State “to reinforce Aisha’s story” on the witness stand.

We agree. That, of course, is precisely what the introduction of a prompt complaint of a sexual attack is intended to do. In what the appellant describes as a one-on-one credibility battle between the defendant and the victim, the legally sanctioned function of the prompt complaint of a sexual attack is to give added weight to the credibility of the victim. Apparently the evidentiary principle worked in this case exactly as it was intended to work. ⁴¹² By way of satisfying Rule 5-803(b)(4)’s applicability requirements, there is no disputing that Aisha, the out-of-court declarant, testified at the trial.

There is no disputing that Asha’s Sunday morning conversation with her sister qualified as a “prompt” complaint of sexually assaultive behavior. There is also no disputing that the basic complaint made by Asha to Amaris was not encumbered by unnecessary narrative detail. The sole thrust of the appellant’s argument is that Asha’s “prompt complaint of sexually assaultive behavior” made to her sister was not “consistent with [Asha’s trial] testimony.” Maryland Rule 5-802.1(d) requires that the “statement ... of prompt complaint” be “consistent with the declarant’s testimony.” The appellant confects an “inconsistency” out of almost ethereal ingredients. On her cross-examination, Asha was asked about the first words of her conversation with Amaris when Asha asked Amaris “what she saw” in the bedroom.

The alleged “inconsistency” then emerged from the following fleeting exchange: Q: And did you tell your sister what happened at that point? A: No. Q: You didn’t? A: No. (Emphasis supplied). The cross-examination went on immediately to other subjects.

There was no explanation of to what extent the question was narrowed by the adverbial modifier “at that point.” There was no explanation of what this thirteen-year-old witness took “at that point” to mean. She was never asked whether she had told her sister about the sexual attack “at any point” on that Sunday morning. Her statement to the police had been that she “told her [Amaris] what really happened.” The appellant is trying to construct a disqualifying “inconsistency” out of hopelessly skimpy and unilluminating fragments. ⁴¹³ The Required Consistency Between Account A and Account B It is unnecessary to anguish further over this insubstantiality, however, for the inconsistency condemned by the rule is qualitatively of a very different sort than the inconsistency now being conjured up by the appellant. We hold that the required consistency between the declarant’s “statement ... of prompt complaint” and “the declarant’s testimony” contemplates a substantive consistency between 1) the content itself of the out-of-court statement and 2) the content of the trial testimony.

Are the two stories 2 themselves compatible? The concern is not with whether the victim can now, as a witness, accurately recall the details of precisely when and where and to whom her earlier declaration was made. It is ⁴¹⁴ the hearsay auditor (Amaris) who must, on the witness stand, vouch for those circumstances. The required consistency is between 1) the story told by the victim on the witness stand and 2) the story heard and reported by the hearsay auditor.

It is the victim who testifies directly as to her version of the crime story. It is the hearsay auditor who testifies indirectly as to the victim’s earlier version of that same story. Our focus is on whether what the victim says now is compatible with what the victim said then. Our required witness to what the victim said then is not the victim herself, but someone else who heard the victim say it.

It is not required that the victim, as a witness, even recall having made the earlier out-of-court declaration, let alone recall the surrounding circumstances or the precise content of that earlier complaint. It is the hearsay auditor, not the declarant, who is the necessary witness to the actual uttering of the out-of-court declaration. The making of the prompt complaint is a fact that must be proved like any other fact. The jury must assess the credibility of the hearsay auditor (Amaris) and determine whether the complaint was ever, in fact, made.

The judge, by contrast, must assume the actual uttering of the complaint and then decide, in order to rule on admissibility, whether the content of that complaint, assuming it to have been made, is consistent with the victim’s trial testimony. In this case, Aisha testified that she had been raped by the appellant. Amaris testified that shortly after the appellant left the apartment, Aisha complained to her that she had been raped by the appellant. The content of the victim’s out-of-court complaint and the content of the victim’s trial testimony were completely consistent and Rule 5-802.1(d) was in that respect fully satisfied.

The doctrinal reasons undergirding the admissibility of prompt complaints of sexual attacks as substantive evidence fully support our holding as to the appropriate subject matter of the consistency requirement. In Cole v. State, 83 Md.App. at 288-93 , 574 A.2d 326 , this Court analyzed at length the rationale of the rule. It is the conventional wisdom that an ⁴¹⁵ outraged victim of a sexual attack will raise the hue and cry as soon as it is feasible to do so. The failure of a victim to make a prompt complaint, therefore, may encourage a juror to look with skepticism at the victim’s trial testimony.

Unexplained earlier silence may be deemed inconsistent with that trial testimony. It is precisely to forestall such skepticism that the fact of a prompt complaint is admissible as substantive evidence. In Cole, 83 Md.App. at 289-90 , 574 A.2d 326 , we explained: [T]he timely complaint has evolved as a hybrid form of anticipatory rehabilitation, as something that does not wait to respond to impeachment but instead forestalls it. The unusual anticipatory or forestalling character of such evidence was discussed by 4 Wiymore on Evidence (Chadbourn rev.1972), § 1135, “Complaint or rape (continued): (A) First theory: Explanation of an inconsistency; fact of complaint is admissible,” at 298-300: “So, where nothing appears on the trial as to the making of such a complaint, the jury might naturally assume that none was made, and counsel for the accused might be entitled to argue upon that assumption.

As a peculiarity, therefore, of this kind of evidence, it is only just that the prosecution should be allowed to forestall this natural assumption by showing that the woman was not silent, i.e., that a complaint was in fact made. This apparently irregular process of negativing evidence not yet formally introduced by the opponent is regular enough in reality, because the impression upon the tribunal would otherwise be there as if the opponent had really offered evidence of the woman’s silence. Thus the essence of the process consists in the showing that the woman did not in fact behave with a silence inconsistent with her present story. The courts have fully sanctioned this analysis of the situation.” (Footnote omitted) (Emphasis in original).

After pointing out that “| w]hat the fact of a timely complaint forestalls or counteracts is frequently a defense based upon consent,” 83 Md.App. at 290 , 574 A.2d 326 , we went on to point ⁴¹⁶ out that the salutary forestalling effect is not limited to cases where consent is asserted as a defense but also serves to forestall challenges to the very occurrence of the sexual event itself. 4 Wigmore, supra, § 1135, at 298, not only concurs as to the provenance of the rule but points out that the relevance of either a timely complaint and the absence of a complaint is not limited to the situation where the defense is one of consent: “Now, when a woman charges a man with a rape, and testifies to the details, and the accused denies the act itself, its very commission thus coming into issue, the circumstance that at the time of the alleged rape the woman said nothing about it to anybody constitutes in effect a self-contradiction of the above sort. It was entirely natural, after becoming the victim of an assault against her will that