Parker v. State

SALMON, Judge. Elijah Parker (“Parker”) was convicted by a Frederick County jury of second degree rape and second degree assault. After sentencing, Parker noted this appeal and, inter alia, raises two novel questions, viz: 1. Under Maryland Rule 5—802.1(d), which sets forth a hearsay exception allowing the court to admit “a statement that is one of prompt complaint of sexually assaul-tive behavior to which the declarant was subjected if the statement is consistent with the declarant’s testimony ...,” may the court allow the testimony as to only one such prompt complaint? 2.

Under Maryland law, can the trial court, in the exercise of its discretion, appropriately allow testimony concerning the victim’s demeanor and behavior in the weeks and months after the [alleged] rape to rebut a contention that the sex was consensual? ²⁵⁶ I. A. The State’s Evidence Elijah Parker (age seventeen) and Latissa F. (“Latissa”) (age sixteen) lived in Frederick, Maryland, and dated between December 25, 2000, and the end of February 2001. 1 After their breakup, they remained friendly. On Easter Sunday, April 15, 2001, Parker called Latissa and invited her to have dinner with him. She accepted.

Parker picked up Latissa that evening at her house at approximately 6:00 p.m. Parker was accompanied by a friend named “George.” Shortly thereafter, George was dropped off. Parker and Latissa drove around while they decided where to have dinner. Eventually Parker drove to the parking lot of the Burlington Coat Factory, stopped his car, and asked Latissa to get into the backseat to retrieve his book bag, which he said was under the front seat.

Latissa did as requested, whereupon Parker joined her in the backseat and began kissing her. Latissa told him to stop, but he did not. She then tried to push him away, which angered Parker. He pushed back and began to curse.

Parker then pinned Latissa down, pulled off her jeans and underwear, and had non-consensual vaginal intercourse with her. After the rape, Latissa opened the car door and fell onto the pavement. Parker pulled her back into the automobile, got into the driver’s seat, and started driving. Latissa dressed, as Parker drove.

He warned her not to tell anyone what had occurred and said that he would hurt her again if she revealed what he had done. When Parker stopped at a traffic light, Latissa jumped out of the car and ran to a nearby Chinese restaurant, where she called the police. At approximately 7:00 p.m., Frederick City Police Officer Heather Richter responded to Latissa’s 911 call. When Officer Richter arrived at the restaurant, Latissa was crying, and her entire body was shaking. ²⁵⁷ Latissa immediately told Officer Richter that Parker had raped her.

During questioning, Latissa was “very scared” and “continually” crying. This made it difficult for the officer to obtain further details. Nevertheless, Officer Richter learned from Latissa that the rape had occurred in the parking lot of the Burlington Coat Factory and that Parker had scratched her during the incident. Officer Richter observed blood on Latissa’s white tank top, above her breast.

She also saw a scratch on the upper part of Latissa’s left arm, which was bleeding. Officer Richter stayed with Latissa for several hours. As the evening wore on, she noticed that additional scratches started to appear on Latissa’s left arm “from her shoulder down to her wrist.” In Officer Richter’s words, “They became red and puffy as if scratched by fingernails.” Latissa was taken to the Frederick Memorial Hospital where she was seen by Kim Day, a registered nurse. Ms. Day collected Latissa’s clothing, including her underwear.

According to Nurse Day’s testimony, the underwear was “torn on the side at the elastic.” The clothing was placed in a bag, sealed, and later turned over to Officer Richter. Latissa’s grandmother, Dorothy Worrell, visited Latissa at the hospital at approximately 12:30 a.m. on April 16, 2001. During the visit, Latissa grabbed Ms. Worrell and said, “Granny, Granny, Elijah raped me.” Ms. Worrell observed that Latissa’s face was “bruised,” and her arm was bleeding and appeared to have been scratched. Additionally, there were “red marks” on Latissa’s breasts and the back of her shoulder, according to Ms. Worrell’s testimony.

Latissa lived with Ms. Worrell for several weeks following the attack. In that period, her behavior changed markedly from what it had been before the Easter incident—according to Ms. Worrell. Latissa was no longer the carefree sixteen-year-old she had been previously; after Easter, she never wanted to be left alone and insisted on sleeping in Ms. Won-ell’s bed. Moreover, post-rape, Latissa had to be taken out of school because of her fear of Parker.

Due to these ²⁵⁸ problems, Latissa was taken to the local rape crisis center. She also received counseling from her family doctor. Because she no longer felt safe in Frederick, Latissa moved to Hagers-town to stay with an aunt and then traveled to Nebraska, where she stayed with an uncle. Some of Ms. Worrell’s testimony as to Latissa’s post-rape behavior also corroborated what Latissa had testified to, i.e., that after the rape, but prior to moving away, Latissa did not go back to school but instead stayed home and occupied herself by playing on the computer and watching movies.

B. The Defense Case Although Parker did not testify, his counsel presented a consent defense. His principal witness was George Pacheco, who testified that one afternoon “around Easter” in 2001, he and Parker picked up Latissa in Parker’s car. Also in the car were two other friends of Parker. After driving around for about ten minutes, Parker dropped off two of the friends; Parker, Pacheco, and Latissa then went to Parker’s house.

According to Pacheco, Parker and Latissa went upstairs to Parker’s bedroom while Pacheco stayed in the living room. After about an hour, Pacheco saw Parker and Latissa arguing as they descended the stairs. Parker, Latissa, and Pacheco got into Parker’s car at approximately 5:00 p.m. and headed toward Latissa’s house to drop her off. During the trip, Parker and Latissa continued to argue, and Latissa kept opening the car door and attempting to jump out.

When the car stopped at a red light near the Fredericktowne Mall, Latissa got out of the car and walked away. Another friend of appellant’s, Larry Pryor, testified that on the afternoon of April 15, 2001, he rode in a car driven by Parker for about an hour and a half. With him in the car were Latissa, Pacheco, and one Roger Childs. Eventually Parker dropped off Pryor and Childs at the apartment where Pryor’s sister lived. ²⁵⁹ The defense also called Officer Richter, who testified that Latissa told her that she was walking home from a friend’s house when Parker pulled up next to her about 5:30 p.m. on April 15.

Latissa also told Officer Richter that she and appellant drove around in Parker’s car for about an hour and a half, and that Latissa said nothing about anyone else having been in the car.

II

DISCUSSION A. Appellant first claims that the trial court abused its discretion in permitting Ms. Worrell, Latissa’s grandmother, to testify that Latissa had told her that appellant had raped her. He maintains that Latissa’s hearsay statement to Ms. Worrell was inadmissible as a prompt complaint of sexual assault because evidence had already been presented that Latissa had promptly reported the alleged rape to Officer Richter. Appellant contends that the sole purpose of admitting testimony about a prompt complaint of sexual assault is to negate any inference that might be drawn from the victim’s failure to complain immediately. Because Officer Richter’s testimony served that purpose, evidence of a second prompt complaint should not have been admitted, according to appellant.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801. Generally, hearsay is inadmissible. Md. Rule 5-802. A hearsay statement may be admissible, however, under certain recognized exceptions to the rule if “circumstances provide the ‘requisite indicia of trustworthiness concerning the truthfulness of the statement.’ ” State v. Harrell, 348 Md. 69, 76 , 702 A.2d 723 (1997) (quoting Ali v. State, 314 Md. 295, 304-05 , 550 A.2d 925 (1988)); see Cassidy v. State, 74 Md.App. 1, 8-9 , 536 A.2d 666 (1988) (to be admissible, state ²⁶⁰ ment must fall under one of the recognized exceptions to the rule against hearsay).

A hearsay exception 2 set forth in Maryland Rule 5-802.1(d) reads: 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. “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.... ” State v. Werner, 302 Md. 550, 563 , 489 A.2d ²⁶¹ 1119 (1985); see also Cole v. State, 83 Md.App. 279, 287 , 574 A.2d 326 (1990) (“[A] victim’s timely complaint of a sexual attack is admissible as part of the State’s case-in-chief.”). “[I]f the prosecutrix has testified to a violent assault, the fact of the making of complaint within a reasonable time under the circumstances is original evidence and may be shown to prevent the inference that the woman did in fact maintain a silence inconsistent with her narrative at the trial.... ” Green v. State, 161 Md. 75, 82 , 155 A. 164 (1931); see also Kenneth S. Brown, et ah., 2 McCormick on Evidence § 272.1, at 223 (John W. Strong ed., 4th ed. 1992) (“In its origin, the theory of admissibility was to rebut any inference that, because the victim did not immediately complain, no crime had in fact occurred.”). “ ‘[TJhe 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.’ ” Nelson v. State, 137 Md.App. 402, 415 , 768 A.2d 738 (2001) (quoting Cole, 83 Md.App. at 289-90 , 574 A.2d 326 ). There are limitations, however, on what portion of the victim’s prompt complaint may be repeated in front of the jury. “Although the earlier case law admitted only the bare fact that the complaint had been made, the restraints have been loosened at least to the point of admitting as well the essential nature of the crime complained of and the identity of the assailant.” Cole, 83 Md.App. at 293 , 574 A.2d 326 . In Guardino v. State, 50 Md.App. 695, 706 , 440 A.2d 1101 (1982), we said: “[IJt is established in Maryland that a complaint by a rape victim may be admitted as original evidence primarily to support the testimony of the victim as to the time, place, crime, and name of the wrongdoer.” We later concluded in Cole that “[w]hen a timely complaint of a sexual attack is offered ... in the State’s case-in-chief ... it is clear that the more narrative details of the complaint are not admissible.” 83 Md.App. at 294 , 574 A.2d 326 . Accordingly, a prompt complaint of sexual assault is subject to limitations such as 1) the requirement that the victim actually testify; 2) the timeliness of the complaint; 3) ²⁶² the extent to which the reference 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.

Nelson, 137 Md.App. at 411 , 768 A.2d 738 . Rule 5-802.1(d), at least if read literally, would indisputably justify the trial court’s ruling in this case because the statement “Granny, Elijah raped me,” was made promptly after the (alleged) assaultive act and was entirely consistent with the declarant’s (Latissa’s) trial testimony. The question then becomes: Should Rule 5-802.1(d) be read to impliedly require the court to allow testimony as to only the first prompt complaint of the sexual assault? The actions of the trial judge in the case at hand closely imitate those of the trial judge in Guardino v. State, supra.

In Guardino , a fifteen-year-old high school student complained that she was raped, robbed, and battered by Guardino. Following the attack, the prosecutrix told her mother, brother, and a police officer that Guardino had raped her and threatened her with harm if she went to the police. All the complaints were made within one hour of the rape. Guardino was convicted of rape, robbery, and battery.

On appeal, he claimed that the trial court erred in allowing “testimony respecting what the prosecutrix said to others after the alleged rape and robbery.” We held that the trial court did not abuse its discretion in admitting into evidence what the victim said to the three witnesses. The Guardino Court held that the evidence was admissible as a prompt complaint of a sexual assault. Guardino, 50 Md.App. at 706 , 440 A.2d 1101 . Guar-dino, however, is distinguishable from this case because it was decided prior to the effective date of Rule 5-802.1(d) and because, in Guardino , the appellant did not concede, as appellant does, that the initial prompt complaint of sexually assaul-tive behavior was admissible.

More recently, in Nelson, supra, we discussed Rule 5-802.1(d) in the context of a case where the defendant was ²⁶³ convicted of second degree rape, second degree sexual offense, and child abuse of his girlfriend’s thirteen-year-old daughter. 137 Md.App. at 407 , 768 A.2d 738 . The assaultive conduct was alleged to have occurred on a Sunday morning while the victim’s mother was at church. Id. Following the rape, the defendant left the scene of the crime (his girlfriend’s residence), and shortly thereafter, the victim informed her eleven-year-old sister that the defendant had raped her.

Id. at 408 , 768 A.2d 738 . We concluded that the evidence concerning what the victim said to her sister was admissible as a prompt complaint of sexual assault. Id. at 414 , 768 A.2d 738 . Appellant argues that allowing admission of Latissa’s second complaint unfairly bolstered Latissa’s testimony.

What was said in Nelson (as to a first complaint of sexual assault), bears repeating: The appellant argues that [the victim’s] earlier out-of-court declarations were used by the State “to reinforce [the victim’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. Id. at 411 , 768 A.2d 738 . In Nelson , the victim also made a second report of the rape the next day at school. Id. at 417-18 , 768 A.2d 738 .

The admissibility of this statement to a school counselor was not properly preserved for appellate review, however. Nonetheless, Judge Moylan said in dicta: If the admissibility of that out-of-court declaration were properly before us, it seems overwhelmingly likely that we would hold it to have been admissible as a prompt complaint of a sexual attack, under precisely the same reasoning that we used to affirm the admission of [the victim’s] earlier ²⁶⁴ complaint to her sister.... The only arguable difference might have been with respect to the promptness of the complaint. The additional 24-28 hours would almost certainly, however, have no adverse effect on the admissibility of a prompt complaint of a sexual attack, whereas it might well be fatal to an excited utterance.

The window of admissibility of the latter is circumscribed by the continuation of a state of excitement in the body and in the psyche of the victim. There is a glandular component. The window of admissibility of the former, by contrast, is measured by the expectation of what a reasonable victim, considering age and family involvement and other circumstances, would probably do by way of complaining once it became safe and feasible to do so. Reasonable time frames would vary with circumstances.

An emotion-driven complaint to a close friend or relative, for instance, might well precede a more deliberate report to police or to medical attendants. Id. at 418 , 768 A.2d 738 . The thirteen-year-old victim in Nelson, supra, also made a third complaint regarding the assaultive behavior, this time to a sexual assault examiner, who was a registered nurse. Id. at 420 , 768 A.2d 738 .

The defense did not object to the examiner’s testimony, but Judge Moylan nevertheless discussed the admissibility of the third complaint: Although it seems clear that this out-of-court declaration, just as those to [her sister] and to the school counselor, could have qualified as a prompt complaint of a sexual attack ... the appellant and the State have chosen to pitch the battle on a different field. They cast the issue of admissibility in terms of the firmly rooted exception to the Rule Against Hearsay classically referred to as a statement to a treating physician. ... [A]s a prompt complaint ... the out-of-court utterance would come in as substantive evidence. The signifi- ²⁶⁵ canee of the prompt complaint would consist largely of the fact that it was made. Id. at 422 , 768 A.2d 738 .

Although dicta, Nelson is well-reasoned and convinces us that the trial judge did not misinterpret Rule 5-802.1(d). In so concluding, we cannot ignore the fact that Rule 5—802.1(d) contains no express limitation on the number of complaints made by the victim that may be admitted at trial, and we see no valid basis to engraft such an implied limitation onto the rule. The out-of-state cases to which appellant refers us include Nitz v. State, 720 P.2d 55 (Alaska Ct.App.1986). In Nitz , the defendant was convicted of a series of sexual assaults against his step-daughter.

Id. at 58 . The victim’s first complaint was made to her mother. Id. The victim subsequently made similar reports of defendant’s conduct to a police officer, a social worker, and a physician.

Id. at 58-59 . At trial, evidence regarding all of the victim’s statements were admitted. Id. at 59 . The Court of Appeals of Alaska held that, under that State’s first complaint doctrine, which allows for the admission of the initial complaint, only the victim’s complaint to her mother was admissible at trial.

Id. at 62-63 . Nitz is inapposite because the Court was not interpreting a rule or statute—it was simply expressing its view concerning the common law of Alaska. In contrast, Maryland Rule 5-802.1(d) contains no limitation similar to that contained in Alaska’s common law rule. In State v. Samuels, 75 Conn.App. 671 , 817 A.2d 719, 723 (2003), cert. granted, 263 Conn. 923 , 823 A.2d 1216 (2003), 3 evidence was presented that, after the victim had reported a sexual assault to the police, she reported it to two teachers, and to her therapist.

Connecticut has what is known as a “constancy of accusation doctrine,” which allows for admission ²⁶⁶ of complaints of sexual assault made prior to the time the victim lodges a formal complaint. Id. at 729. Under this doctrine, the timing of the complaint, as long as it was made before an official complaint, affects the weight of the evidence but not the admissibility. Id.

The Appellate Court of Connecticut explained: [T]he point of allowing the testimony of witnesses, whose sole function is to corroborate the testimony of the victim that a complaint was made, is to act preemptively to rebut a jury’s potential residual prejudice against the failure of a victim to complain promptly. State v. Troupe, 237 Conn. [284,] 296, 677 A.2d 917 [(1996)]. The constancy of accusation doctrine was originally meant, and has continued to serve, as a method of counterbalancing a supposed societal bias against late complaining assault victims. Practically speaking, it provided a means to verify complaints made between the time of the assault and the time of the official complaint.

Id. at 728. In concluding that the complaints made after the victim reported the assault to the police were not admissible, the Appellate Court of Connecticut relied on State v. Troupe, 237 Conn. 284 , 677 A.2d 917 (1996), and said: Troupe had the effect of narrowing the scope of the constancy of accusation doctrine as used in Connecticut. Most notably, it restricted the use of constancy testimony, allowing it for the sole purpose of corroborating the victim’s testimony that a complaint had been made. [Troupe,] 677 A.2d [at 929.] The court also narrowed the reasoning behind the doctrine, rationalizing that it now serves only to counteract a lingering, false assumption. “[T]he scope of our current doctrine is broader than necessary to protect against the unwarranted, but nonetheless persistent, view that a sexual assault victim who does not report the crime cannot be trusted to testify truthfully about the incident.” Id., at [928]. If the purpose of the doctrine is to combat stereotypes held by jurors regarding nonreporting victims, once a victim has officially reported the crime to the police, ²⁶⁷ we do not believe any reasonable function can be further served by the admission of post charge constancy testimony.

Samuels, 817 A.2d at 729 . Unlike Connecticut, under Maryland’s common law of evidence, the admissibility of complaint of sexual assault has never depended on whether the victim had made a prior complaint to the police. More important, there is simply no such requirement contained in Maryland Rule 5-802.1(d). As explained earlier, the purpose of the exception in Maryland is to corroborate the victim’s testimony, and not simply to “combat stereotypes held by jurors regarding nonreporting victims.” We hold that the trial court did not abuse its discretion in allowing Ms. Worrell to offer testimony concerning Latissa’s complaint to her of appellant’s sexual assault, even though Officer Richter had already offered testimony concerning a similar (and earlier) complaint made by Latissa.

B. Appellant next claims that the trial court abused its discretion in permitting the State to present Ms. Worrell’s testimony concerning Latissa’s behavior in the weeks following the incident in question. According to appellant, such testimony was too ambiguous to be relevant. Appellant relies on several cases holding that evidence of a defendant’s behavior following the charged offense was too ambiguous and equivocal to be relevant. He contends that the reasoning employed in those cases is equally applicable to the evidence of Latissa’s conduct because, in appellant’s view, it is not unusual for a sixteen-year-old girl to experience radical mood swings evidenced by the teen’s less carefree deportment or isolation, with a focus on activities such as watching movies and playing computer games.

Appellant argues: It is apparent from the opinions in Hutton [v. State, 339 Md. 480 , 663 A.2d 1289 (1995),] and [State v.] Allewalt [, 308 ²⁶⁸ Md. 89, 517 A.2d 741 (1986),] that: (1) the symptoms of PTSD [post traumatic stress disorder] are not reliable identifiers of the specific cause of the disorder, and (2) PTSD is not within the common knowledge and understanding of laypersons. If “a diagnosis of PTSD does not reliably prove the nature of the stressor,” Hutton v. State, supra, at 493, 663 A.2d 1289 , evidence of individual symptoms, such as those involved here, surely does not. Moreover, just as the causal relationship between a stressor such as rape and the coalescence of symptoms known as PTSD is beyond the understanding of laypersons without expert testimony, so too is an understanding of the causal relationship between a stressor such as rape and the individual symptoms. For these