Saldiveri v. State

HoRisrEY, J., delivered the opinion of the Court. This is an appeal from the Circuit Court for Charles County by Joseph Saldiveri (the defendant) from a conviction for an unnatural and perverted sexual practice upon an eight-year old girl. The girl, a hospital patient, was confined to her bed with a fractured leg. On Sunday afternoon, June 23, 1957, she was visited by her mother.

At about five-thirty the mother went to a restaurant for supper. When she returned to the hospital about a half hour later, the daughter, who had previously been quite happy and contented, was very frightened, her eyes were bulging, her leg was throbbing, and she was crying. After calming down, the girl told her mother that the defendant had entered her room, kissed her, put his finger in her vagina and his penis in her mouth. When he heard nurses approaching, he left the room for a few minutes, but returned and repeated the same acts.

A doctor, who examined the girl soon afterwards, found that the area around the child’s vagina was red and irritated. He was not certain as to the cause of the irritation and admitted it could have been caused by “tight pants.” The girl, however, was wearing only loose pajamas. The defendant, a fifty-nine year old grandfather, was employed as a bartender and had been drinking heavily for several days before the offense. On the day referred to he was very drunk and, after a brief incarceration in jail, was taken to the same hospital in which the girl was a patient.

He was admitted at about three o’clock in the afternoon, and was placed in the room adjoining that of the girl. In order to quiet him, he was given three and three-quarter grains of ⁴¹⁶ sodium amytal, (the trade mark for a sedative, commonly known as a “truth serum,” hereinafter referred to as amytal”). For a while, he remained quietly in his room, although on one occasion he grabbed the hand of a nurse who went into his room. The defendant testified that the only thing he remembered was waking up in jail on Monday morning.

He also said that he had no recollection of having been in the hospital on Sunday. However, while he was still in the hospital he carried on an intelligent conversation with the sheriff. And, after he had been removed from the hospital back to the jail, he told the sheriff and some of the deputies that he had been in the girl’s room and talked to her, but denied that he had molested her. Several witnesses, who removed the defendant to another part of the hospital, prior to his transfer to jail, testified that he appeared to understand and comprehend the situation and his surroundings despite the fact that his breath was reeking with the odor of alcohol.

Wherever it is appropriate, other pertinent facts concerning this case will be referred to in connection with the subsequent discussions of the points or questions of law posed by. this appeal. The defendant in his brief and at the oral argument assigned numerous reasons why his conviction should be reversed. All of the pertinent reasons assigned, depending on the substance thereof, have been assembled into five principal categories, but the questions stated will be considered separately when it appears to be expedient. (i) The trial court did not err when it permitted the mother to testify concerning the details of the child’s complaint to her.

The defendant contends that his objection to the testimony of the State’s first witness—the mother—concerning the particulars of the girl’s complaint, should have been sustained. He relies only on Williams v. State, 214 Md. 143 , 132 A. 2d 605 (1957), and the cases therein cited to support his contention. The State in its brief also relied on the Williams case, which, at p. 153, stated that: “In trials before the trial judge, ⁴¹⁷ sitting without a jury, the order of proof is not important.” The State also undertook to review the Maryland cases on the subject, citing Parker v. State, 67 Md. 329 , 10 A. 219 (1887); Legore v. State, 87 Md. 735 , 41 A. 60 (1898); Blake v. State, 157 Md. 75 , 145 A. 185 (1929); Green v. State, 161 Md. 75 , 155 A. 164 (1931) ; and Murphy v. State, 184 Md. 70 , 40 A. 2d 239 (1944). In the Parker case, the fact that a complaint had been made was held admissible, but the details and circumstances were not.

In the Legore case, where the prosecutrix had delayed making complaint until she could make it to her husband, the issue was whether the evidence had been properly admitted and submitted to the jury. In the Murphy case, where the evidence amounted to no more than the making of a complaint by the prosecutrix that she had been raped, without stating any of the details of the assault, the question was the admissibility of such evidence. In the Blake case, supra, we held that on a prosecution for rape, not only may it be shown that the prosecutrix made a complaint shortly after the commission of the offense, but the nature of the complaint may also be stated for the purpose of showing the character of the act complained of. In rejecting the older practice of restricting the answer of the witnesses to the general fact that a complaint had been made, we said at p. 79: “It has not been the practice in this state to restrict the testimony of a complaint to a mere yes or no answer.

Some statement of the nature of the complaint has been regarded as admissible, at least for the purpose of showing the character of the act complained of, and we think this is a proper application of the rule. And it seems clear that the line of distinction beyond that cannot be one rigidly fixed, because of the variations in cases and their details.” The Green case, supra, involved the admissibility of the nature of an assault as stated in a complaint, and there is a ⁴¹⁸ thorough discussion therein of the whole subject now under consideration. At p. 82, we said: “There is great conflict and confusion of cases and authority, but the better rule, and the one more in conformity with our practice and decisions, is that, if 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; and if her testimony of the commission of the alleged crime be impeached by witnesses or by a cross-examination based on the defence that she consented or that her evidence is false, the terms and details of the complaint are admissible, preferably in rebuttal (a), as corroborative evidence, if made recently (b) after the commission of the alleged crime.” (Emphasis added.) The Green case, though not otherwise in point here, laid down the rule that, if the testimony of the prosecuting witness is impeached on cross-examination or by other witnesses, the details of a complaint to another person are admissible, preferably on rebuttal. In the instant case the defendant cross-examined the prosecuting witness extensively in an effort to impeach her, so, under the ruling in the Green case, supra, the mother could have been recalled in any event to give the details of the complaint in rebuttal.

For this reason, we think there was no prejudicial error when the trial court permitted the mother, who was the first witness, to testify in chief as to the details of the complaint. However, although it is true that in a trial before a court instead of a jury the order of proof is generally not important (Williams v. State, supra), it is, nevertheless, the better practice, whenever possible, to introduce evidence, either before a jury or a court, in the customary order generally followed so as to safeguard against the likelihood of confusion as well as prejudice. ⁴¹⁹ (ü) The State was under no obligation in this case to show the capacity of the prosecuting witness to testify. The defendant insists that the State was required to show that the girl, who was nine years old when she testified, understood the significance of taking an oath, and that the fact of capacity could not be presumed when the girl was under fourteen years of age. tie cited 2 Wigmore, Evidence (3d ed. 1940) § 508. But in § 507 Wigmore states that the question of competency is one that is within the discretion of the trial court.

In Maryland the question of the capacity of children to testify is ordinarily within the discretion of the trial court. Ereeny v. Freeny, 80 Md. 406 , 31 A. 304 (1895). See also 2 Wigmore, ibid., (1957 Supplement) § 507, pp. 159-60, citing many recent sex offense cases in which the testimony of children ranging in age from four to eleven was admitted in evidence under the discretion rule. Even if we assume, without deciding, that the State had the burden of showing the competency of the prosecuting witness, this burden was met when the defendant qualified the girl by asking her on cross-examination: “Do you know what the meaning of taking an oath is?”, and she replied, “Yes.” There is nothing in the record to show that the defendant objected to the girl’s capacity to testify.

Ordinarily, this Court will not decide any point or question of law which was not raised and decided: by the lower court. Maryland Rule 885; Kares v. State, 215 Md. 396 , 137 A. 2d 712 (1958); Jackson v. State, 214 Md. 454 , 135 A. 2d 638 (1957); Basoff v. State, 208 Md. 643 , 119 A. 2d 917 (1956). Furthermore, the question of the capacity of a witness must be raised before the testimony is received into evidence. 3 Wharton, Criminal Evidence (12th ed. 1955) §§ 741, 763; 1 Underhill, Criminal Evidence (5th ed. 1956) § 250. The defendant also contends that it was error for the lower court to refuse to let Dr. Truitt, who had had extensive experience with children, to state his opinion as to whether children of eight years are subject to suggestion.

Obviously, this was an attempt to show the incapacity of the prosecuting witness to testify by the use of an expert opinion of a doctor- ⁴²⁰ who had not even examined her. The law recognizes the capacity of children generally to testify. Once a child’s testimony is admitted, which, as previously stated, is a matter within the discretion of the trial judge, the weight to be given to the child’s evidence is a matter for the trier of fact to decide. See 2 Wigmore, ibid., §§ 505-509; 1 Underhill, ibid., § 257.

It was not improper for the trial court to deny the defendant’s psychiatrist an opportunity to state his opinion as to the susceptibility to suggestion of children generally. (iü) Although the State did so in some respects, it was not necessary to corroborate the testimony of the prosecuting witness. The defendant contends that the prosecuting witness encouraged the defendant when she neither cried out nor complained during the initial act, nor when he left the room the first time, and that she was therefore an accomplice, and her testimony should have been corroborated. There is no merit to either of these contentions.

Under the circumstances in this case, the prosecutrix was a victim and not an accomplice. See Lusby v. State, 217 Md. 191 , 141 A. 2d 893