Paz v. State

PAUL E. ALPERT, Judge, Ret., Specially Assigned. Alvaro Leonardo Garay Paz, the appellant, was charged with attempted first-degree rape, kidnapping, second degree assault, and false imprisonment. Prior to trial, he filed a motion to suppress a statement he had made to the police. The motion was heard by the Honorable Louise G. Scrivener.

Judge Scrivener denied the motion. Appellant was convicted at a bench trial in the Circuit Court for Montgomery County (Hon. Michael D. Mason), of all four charges. Judge Mason sentenced appellant to a term of fifteen years incarceration for the attempted rape conviction, with all but four years suspended, and to a term of fifteen years incarceration with all but four years suspended for the kidnapping conviction.

For sentencing purposes, the assault conviction was merged into the attempted rape conviction and the false imprisonment conviction was merged into the kidnapping conviction. Appellant presents three questions on appeal: I. Was the evidence insufficient to sustain his convictions for attempted first-degree rape, kidnapping and false imprisonment?

II

Did Judge Scrivener err in denying his motion to suppress his statement to the police?

III

Did the trial court err by failing to merge his kidnapping conviction into his conviction for attempted first-degree rape? We hold that the evidence was sufficient to sustain appellant’s convictions for attempted first degree rape and false ⁷³⁴ imprisonment. The evidence was insufficient to sustain the kidnapping conviction. We further hold that Judge Scrivener did not err in denying appellant’s motion to suppress.

FACTS During the early morning hours of December 8, 1996, Officers Kyle Cochran and John Marr of the Montgomery County Police Department were conducting a surveillance operation in a parking lot at the intersection of Piney Branch Road and Flower Avenue in Silver Spring. The officers were in plain clothes and were in an unmarked police car. They were assigned to that location because of an increase in street robberies there. At approximately 1:40 a.m., Officer Cochran saw a woman approach a group of telephones “in a kind of courtyard area at a strip mall.” The telephones were approximately 120 to 180 feet from the officers’ location, on the other side of Flower Avenue.

Officer Cochran also saw appellant standing near the telephones and looking at the woman. Appellant watched the woman while she was talking on the telephone. The woman hung up the phone and began to walk toward the officers’ location. Appellant approached the woman and spoke to her.

The woman shook her head. She crossed Piney Branch Road, walking toward the officers. As she got nearer to the officers, they could hear her say “no” and could see her shake her head. As the woman got nearer to the officers, they heard her say, “no, no.” She continued to shake her head.

The woman and appellant passed the officers’ vehicle, but on the opposite side of Flower Avenue. When appellant and the woman were between ten and fifteen feet past the officers’ ear, appellant grabbed the woman around the neck and began to drag her across Flower Avenue. When he did so, she screamed, “no” and “help” and “stop” over and over again. He dragged her between twenty and twenty-five feet, into “a dark kind of alley like area.” According to Officer Cochran, “there was a fence and the lighting was much lower ⁷³⁵ there.” During the incident, appellant did not attempt to take the victim’s purse, her jacket, or anything else from her.

The officers “jumped out of the car to approach them to prevent ... what was happening from going on any further.” They approached appellant and the woman. When Officer Cochran got closer to appellant, he saw that appellant was holding a small knife to the woman’s neck and face. According to Officer Cochran, the woman was “very upset, almost hysterical____ She was crying uncontrollably.” Officer Marr testified that she was “extremely hysterical, crying, screaming.” She was trying to get away from appellant but was not able to do so. The officers identified themselves as Montgomery County police officers and arrested appellant.

When Officer Cochran arrested appellant, the officer smelled alcohol on him. After his arrest, appellant was taken to the Silver Spring District Police Station. He was interviewed in the processing room at the station. Officer Cochran sat three or four feet away from appellant, across a table from him.

The officer did not smell any alcohol on him at that time. Officer Cochran filled out the top of the Montgomery County Police Advice of Rights form. The officer asked appellant whether he had been drinking. Appellant’ replied, “yes, a few drinks.” Appellant, however, had not stumbled or fallen while he was being transported to the police station, and he was able to move around without any problems.

He was able to walk a straight line and was able to sit down without any problem. He spoke clearly, without slurring. Appellant told the officer that he spoke Spanish. The officer reported, however, that appellant “gave no indication that [appellant] didn’t understand what [he] was saying to him in English.” Although appellant spoke with a Spanish accent, Officer Cochran had no problem understanding appellant’s English.

The officer then read appellant his Miranda rights. 1 Appellant then made a ⁷³⁶ statement to Officer Cochran. Officer Cochran wrote the statement in appellant’s words, and appellant signed it. The statement was: I just left the club and saw a girl that I thought I knew walking alone on Piney Branch Road. When I saw her, I thought that we would fool around and maybe even have sex.

I went to talk to her and she said leave me alone.Shut up. Then she started to run away from me and I ran after her. I tried to grab her from behind and - did not realize that I had my knife in my hand at her neck. I remember her screaming no and help.

Neither appellant nor the victim testified at trial. DISCUSSION I. Appellant’s first contention is that the evidence is insufficient to sustain his convictions for attempted first-degree rape, kidnapping, and false imprisonment. The standard of our review of the sufficiency of the evidence to support a criminal conviction is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Wiggins v. State, 324 Md. 551, 567 , 597 A.2d 1359 (citing Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)), cert. denied, 503 U.S. 1007 , 112 S.Ct. 1765 , 118 L.Ed.2d 427 (1992). Under Maryland Rule 8-131(c), we defer to the factual findings of the trial judge in a non-jury trial, unless clearly erroneous, and give due regard to the opportunity of the trial judge to observe the demeanor of the witnesses and to assess their credibility.

State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336 (1994); Wiggins, 324 Md. at 567 , 597 A.2d 1359 . A. Attempted First Degree Rape: Appellant sets out two reasons for his contention that the evidence is insufficient to sustain his conviction for attempted ⁷³⁷ first degree rape. First, he points out that his statement said only that he thought the victim was someone that he knew and that he “thought we would fool around and maybe even have sex.” Appellant contends that there was no indication in the statement that appellant intended to have non-consensual forcibly sexual intercourse. Second, appellant contends that there was insufficient coiroborative evidence of the attempted rape.

We disagree with both arguments. In order to prove attempted rape, the State must establish both an existing intent to commit the substantive crime and conduct beyond mere preparation in furtherance of that intent. Lane v. State, 348 Md. 272, 294 , 703 A.2d 180 (1997). In the present case, Officers Cochran and Marr testified that the woman shook her head and said “no” to appellant.

The officers testified that appellant grabbed the woman around the neck and dragged her into an alley holding a knife to her neck and face. The officers testified that she tried to get away from appellant but was unable to do so. Under the circumstances, there was ample evidence to support the trial court’s conclusion that appellant’s intent to have sex with the victim was in no way dependent upon her consent. Furthermore, we believe that the trial court correctly concluded that “have sex” generally connotes sexual intercourse, and that there was sufficient evidence for him to conclude beyond a reasonable doubt that appellant’s intention was to have forcible sexual intercourse with the victim.

There was also ample corroboration of appellant’s statement that he intended to have sex with the victim. [ I]t is, of course, well settled that an extrajudicial confession of guilt by a person accused of crime, unsupported by other evidence, is not sufficient to warrant a conviction. Woods v. State, 315 Md. 591, 615 , 556 A.2d 236 (1989) (quoting Bradbury v. State, 233 Md. 421, 424 , 197 A.2d 126 (1964)). As the Court of Appeals explained in Woods , ⁷³⁸ the extrajudicial confession must be supported by evidence, independent of the confession, which relates to and tends to establish the corpus delicti, i. e., the facts that are necessary to show that a crime has been committed. 315 Md. at 616-17 , 556 A.2d 236 . Nevertheless, it is not necessary’ that the evidence independent of the confession be full and complete or that it establish the truth of the corpus delicti beyond a reasonable doubt or by a preponderance of proof. 315 Md. at 616 , 556 A.2d 236 (quoting Cooper v. State, 220 Md. 183, 190 , 152 A.2d 120 (1959)).

The supporting evidence “may be small in amount and is sufficient to establish the corpus delicti if when considered in connection with the confession or admission, it satisfies the trier of fact beyond a reasonable doubt that the offense charged was committed and that the accused committed it.” 315 Md. at 616 , 556 A.2d 236 (quoting Bradbury v. State, 233 Md. at 424-25 , 197 A.2d 126 ). The testimony of the officers corroborated appellant’s statement that he saw the victim, that he spoke to her, that she rebuffed him, and that she tried to get away. As noted above, the testimony of the officers amply established that appellant was forcibly dragging the victim into an alley. In addition, Officer Cochran testified that appellant did not attempt to take the victim’s purse, her jacket, or anything else from her, which indicated that his purpose was not robbery.

The officers’ testimony also corroborated appellant’s admission that he had a knife. This evidence was sufficient corroboration of appellant’s statement to satisfy the trier of fact beyond a reasonable doubt that appellant intended forcibly to rape the victim and that he grabbed her and dragged her into the alley as part of his intent. Accordingly, appellant’s statement was sufficiently corroborated to render the evidence sufficient to support his conviction for attempted first-degree rape. ⁷³⁹ B. Kidnapping and false imprisonment: Common law false imprisonment is the unlawful detention of a person against his will. Midgett v. State, 216 Md. 26, 38-39 , 139 A.2d 209 (1958).

Kidnapping adds the requirement of “carrying the victim to some other place.” Johnson v. State, 292 Md. 405, 432 , 439 A.2d 542 (1982). False imprisonment is a lesser included offense of kidnapping. Tate v. State, 32 Md.App. 613, 615 , 363 A.2d 622 , cert. denied, 278 Md. 736 (1976). If kidnapping is proved, false imprisonment is also proved.

Appellant urges that this court adopt the reasoning of the New York Court of Appeals in People v. Levy, 15 N.Y.2d 159 , 256 N.Y.S.2d 793 , 204 N.E.2d 842 , cert. denied, 381 U.S. 938 , 85 S.Ct. 1770 , 14 L.Ed.2d 701 (1965), and hold that the kidnapping and detention of the victim were incidental to the attempted