Rice v. State

Thompson, J., delivered the opinion of the Court. George Edward Rice, the appellant, was tried in the Criminal Court of Baltimore before Judge Albert L. Sklar, without a jury. He was found guilty of kidnap ⁵⁵⁵ ping (Indictment No. 6473); of rape (Indictment No. 6470); of unnatural and perverted sexual practice (Indictment No. 6472); of burglary (Indictment No. 6474); and of unlawfully and knowingly photographing obscene matter (Indictment No. 6475). He was given varying concurrent sentences, the two longest being fifteen years.

The prosecutrix, a 5' 8", 135 pound, 22 year old art student, resided alone in Baltimore in one of two third floor apartments at 1500 Mt. Royal Avenue. Appellant, Rice, 6' 4", 215 pounds, lived at 607 Resevoir Street, about six blocks from the prosecutrix’s apartment. Rice testified that while coming home at about 1:45 a.m. on October 13, 1968, from a dance he stopped to buy a six-pack of beer, after which he was approached by a man “dressed like a hippie” who asked him for a match and then asked if he was looking for any “happening”.

This man told the appellant that he had “a couple of girls working for him.” Rice testified that since he was “going home to an empty bed anyway. . . he said okay to the man”, and that they walked to 1500 Mt. Royal Avenue. On the second floor, the man asked appellant to “let me see your bread [money].” Rice put his beer down beside a duffel bag that was there, gave the man ten dollars, was told to go to the third floor and tell the girl “Bobby” sent him. According to the prosecutrix, she was sleeping in the nude on her mattress on the floor (she had no bed) when she was awakened by a knock on the door at approximately 2:00 a.m.

She picked up her fur coat which she kept on the floor next to her mattress and used as a bed for her cats. The coat came almost to her knees but since it did not have buttons, she wrapped it around her. “I was asleep in my apartment and somebody knocked on the door. And I went to answer the door and I opened the door a little bit to see who it was and then I realized it was this man I had never seen before. So then I tried to close the door again, but then he was putting pressure to the other side of the door and broke in. . . .

Well as he entered, when I realized he was going to enter the ⁵⁵⁶ apartment because I couldn’t close him out, I started screaming. . . . Then he put his hand over my mouth and put pressure on me. I was on the floor and he was rendering me incapable of moving.” She testified that Rice then said “Why did you scream?” The prosecutrix did not remember answering the question but recalled appellant asking her if she “knew this certain man.” She did not recall the name suggested. Apparently Rice had only briefly held her because she testified he then said “that he wanted to go to the bathroom.

But then he went into the bedroom instead which is my living room.” She continued, “So then when he was walking ahead of me I thought, knowing my chance to try to get out, so I ran to the door but then he ran up and closed the door so I couldn’t get out.” She further testified, “so then he started putting me on the bed” and “he just either took my coat off or said to me to take my coat off.” Either way, her coat was removed, and Rice got on top of her. She testified, before anything happened, the phone rang and she answered it. It was Mr. Kay, a neighbor who, having heard her scream, called to inquire if there was trouble. She said that she answered affirmatively and that she answered affirmatively to his question of whether she wanted the police called. 1 When she hung up, Rice asked her to find his shoes while “he put his clothes on.” After the victim donned only the fur coat and a pair of tennis shoes, Rice opened the apartment door and they proceeded to his apartment, according to Miss Wilkinson, walking side by side with his hand looped around her shoulder and the back of her neck.

About three blocks from Miss Wilkinson’s apartment, the parties were seen by Stephen Kieth, who was about 50 feet away. Miss Wilkinson testified that at this point she made an attempt to signal Kieth for help beckoning to him with her hand. Kieth testified that when he approached them, they began going up the alley at a faster rate and he picked up ⁵⁵⁷ a rock and gestured to throw it at Rice. By this time Miss Wilkinson and Rice had begun to run and she fell to the pavement, skinning herself.

Kieth didn’t know how she fell, but he said that Rice helped her up after throwing a rock at Kieth. Miss Wilkinson testified that then Rice dragged her up the alley by the hair, causing her to lose her tennis shoes in the alley. At his apartment, Miss Wilkinson asked for a drink of water, but Rice was busy asking her why she had screamed outside; she testified that instead of giving her a drink of water, he said, “before I give you a drink why don’t you drink this stuff here” which she said was a “bottle of booze”. When she had taken some liquor, Rice gave her a glass of water.

After this, appellant told her to take her coat off, leaving her nude. Rice then took her into the bedroom. She testified that the appellant then took from his dresser what looked like a movie camera with a bright light on it and told her to “walk back and forth in front of the camera and smile,” and to open some drawers in the dresser. Then Rice asked her to sit on the bed and open her legs and to masturbate.

She testified that next “he came along side of me while I was sitting on the bed and told me to suck his thing.” She complied with his requests without visible objection but testified she was “real scared.” Afterwards she had sexual relations with the appellant on his bed explaining, “It was just an ordinary intercourse.” She later testified that she was not a virgin. She said, “Well, he kept repeating, it was a pattern. First it was showing the movies while I was sucking his thing, then he’d have sex. At the same time he was playing this music on the radio.” She said that she had intercourse with him “roughly four times or five or six or seven”, and that she performed fellatio upon him “every time before sex.” She explained that in her view, resistance “would have taken me a longer time to get out of the situation because violence intimidates me”, and that she thought “the best way to get out of this was to start to pretend that I was his friend.” She testified that at one point she heard a knock on ⁵⁵⁸ the door but continued, “I don’t remember whether I had intercourse with him before the knock came on the door or not.” Appellant went to the door without leaving her sight but she could not hear the conversation.

When appellant returned to the bed after a few minutes, she asked “who it was and he said ‘it was your hippie friends, coming to rescue you and the police,’ ” after which she testified as follows: “Q. Then what did he say? “A. Then he said ‘The police can’t come in because they don’t have a search warrant’. “Q. After he told you that, what was your mental state upon hearing that? “A. Well I was really disgusted. I was really, felt like nothing could get me out of that situation. Then I was scared at the same time. “Q. Did you see any police at this time ? “A. Well the only thing I saw was, you know, police cars had this light on top of their car. “Q. Uh huh. “A. Well I saw that light going around out the window. “Q. At that time did you scream at all ? “A. No. “Q. Why did you not scream? “A. Because I thought even if I screamed they still couldn’t get in because they didn’t have the search warrant. I wasn’t familiar with the law if they heard me scream then they’d be allowed to come in. “Q. Now you saw the lights.

When did you see the lights, before or after the defendant came back from the door? “A. After.” After the police had gone, they apparently had intercourse several times. After giving her a drink of water, Rice set his alarm clock for 6:00 a.m. The couple then went to bed and Rice fell asleep. Miss Wilkinson testi ⁵⁵⁹ fied that after a few minutes, she got up to go to the bathroom but when Rice woke up, she went back to the bed and sat there next to Rice while he slept until the alarm went off, at which time she turned off the alarm and asked him if she could go.

Rice then provided her with clothes and walked her home. As they were climbing the stairs to her apartment, they passed a soldier sitting on the steps next to a duffel bag. The soldier testified that Miss Wilkinson and Rice “were conversing in a friendly manner, you know, as if they had known each other”, and in a few minutes he saw Rice leaving her apartment and say to her, “Take it easy.” Rice, coming downstairs, saw his beer on the soldier’s duffel bag and told the soldier that it belonged to Mm. The soldier let Rice have the beer.

Miss Wilkinson testified that a few minutes after returning home with Rice and after he had gone, she changed her clothes and went next door to tell her neighbor, Jerry Kay, and his wife about what happened. Kay, a medical student, treated her abraded knee and wrist. She called the police on the advice of her friends but upon being told that the police could not control the context of the newspaper report of the incident, she directed them not to pursue the complaint. She testified she did not want her parents to know about it because her father had Hodgkin’s disease.

About five hours after the incident, Miss Wilkinson changed her mind and decided to report the incident to the police. George Rice was subsequently arrested and his house searched under authorization of a search warrant directing the seizure of “movie cameras, lights, pornographic film, processed and unprocessed.” During the course of the search, police removed from a storage space under the couch an envelope bearing the name George Rice and containing 28 color and black and wMte snapshots of Rice and an unidentified girl either separate or together in various nude poses. The pictures were admitted into evidence without objection. There were no pictures showing the prosecutrix.

The several contentions will be set out separately. ⁵⁶⁰ “Given the conduct of the prosecutrix and the absence of any force, violence or threats by George Edward Rice in having intercourse with the prosecutrix, the rape conviction was erroneous as a matter of law.” The State relies on Hazel v. State, 221 Md. 464 , 157 A. 2d 922 which we recently reviewed with some care in Walter v. State, 9 Md. App. 385 , 264 A. 2d 882 . In Hazel the contention was made the victim did not resist at the actual time of the intercourse, but after citing the difference between submission and consent, the Court found there were sufficient threats of violence prior thereto to justify the trial court’s finding that rape had occurred. In Walter we found the victim’s fear of policemen was sufficient, under the circumstances, to support the trial court’s finding that the victim submitted to the intercourse only through fear. The appellant relies on several Illinois cases, People v. DeFrates, 33 Ill. 2d 190 , 210 N.E.2d 467 ; People v. Qualls. 21 Ill. 2d 252 , 171 N.E.2d 612 ; People v. Helton, 245 N.E.2d 1 which, while recognizing the rule a woman need not resist an unwanted sexual relationship if she is reasonably in fear of her safety, apply the rule most strictly and, in our opinion, are thus too narrow in requiring physical resistance by the victim.

We do not think sound public policy requires a woman to resist to the extent that she runs a substantial risk of grievous bodily harm. The sounder test is whether the act was performed with or without the consent of the prosecuting witness. Where, as here, a woman submits to a stranger who has forced his way into her home and manhandled her, we do not look upon the case with the same eye as when intercourse occurs after an initially friendly encounter. This will distinguish other cases relied on by the appellant.

State v. Dill, 40 A. 2d 443 (Del. 1944) ; State v. Hoffman, 280 N. W. 357 (Wis. 1938) ; Selvage v. State, 27 N.W.2d 636 (Neb. 1947). Nor do we think Farrar v: United ⁵⁶¹ States, 275 F. 2d 868 (CADC 1959) particularly in point because in Farrar, conflicts on important matters within the prosecuting witness’s testimony precluded reliance by the fact finder on her testimony. When there is evidence of a disposition to use force and the apparent ability to so do, the question of the amount of force required becomes a matter for the trier of the facts; this is the primary teaching of two other cases cited by appellant, Deffenbaugh v. State, 257 P. 27 (Ariz. 1927) and State v. Thompson, 40 S.E.2d 620 (N.C. 1946). Maryland Rule 1086 directs this Court to affirm unless a trial judge’s findings of facts are clearly erroneous.

Williams v. State, 6 Md. App. 511 , 252 A. 2d 262 . After carefully reviewing each witness’s testimony, Judge Sklar found: “It is not necessary in a rape case to have any corroboration for conviction if the story is believed by the Court or jury hearing it. In this case, however, there are many items of significant corroboration. Mr. Kay, who lives on the third floor was awakened by scuffling and a loud scream.

He called by telephone Miss Wilkinson asking her if she was in trouble and did she need assistance. She indicated yes or affirmatively. And he called the police. That corroborates Miss Wilkinson’s story about his forceful entry into her home.

If the exit from the apartment was done in a friendly fashion, from Miss Wilkinson’s apartment, that natural thing for Mr. Rice to have done was pick up his six pack of beer on the way