Shand v. State

HARRELL, Judge. On 20 May 1994, appellants, Leroy Anthony Shand, Floyd Jackson Bailey, and Kevin Christopher Allen, were convicted by a jury in the Circuit Court for Prince George’s County of first degree rape and related charges. Shand was convicted of one count of first degree rape, one count of first degree sexual offense, and one count of assault. Bailey was convicted of one count of first degree rape and one count of assault.

Allen was convicted of one count of first degree rape. Appellants were sentenced as follows: Shand—thirty years for the first degree rape, count, thirty years concurrent for the first degree sexual offense count, and thirty years concurrent for the assault count; Bailey—twenty years for the first degree rape count and twenty years concurrent for the assault count; Allen— eighteen years for the first degree rape count. Appellants filed timely notices of appeal to this Court, but presented their arguments in a consolidated brief. ISSUES We have divided and re-phrased appellants’ issues as follows to facilitate our discussion: ⁴⁷¹ I. Did the trial court err by granting the State’s motion in limine to exclude evidence that the victim had traded sex for drugs with Shand prior to the alleged rape?

II

Did the trial court err by forbidding appellants from referring to evidence that the victim had agreed with Shand to exchange sex with appellants for the forgiveness of her brother’s drug debt at the time of the alleged rape?

III

Were appellants denied certain constitutional rights, including the right to confront and cross-examine their accuser and the right to due process?

IV

Was the evidence insufficient to support appellants’ convictions? FACTS Joshua Brooks and his sister, the alleged victim, lived in Apartment 401 of the Forest Creek Apartments, located at 6553 HilMar Drive in Forestville, Maryland. Brooks testified that on 9 October 1993, he had a conversation with Shand regarding money he owed Shand for drugs. Brooks explained that he would pay Shand “the next day by 12 o’clock.” According to Brooks, Shand was “mistaken” and returned to Brooks’ apartment at 10:30 p.m. that evening with four other men, including Bailey, Allen, and Lamiah Hall 1 , to collect payment.

Brooks testified that Shand and the four men met him outside of his apartment building and that they discussed the debt for approximately thirty minutes. At the conclusion of their conversation, Brooks, Shand, and the four men went upstairs to Brooks’s apartment to ask the victim for money. After the victim explained that she had no money, Shand insisted that Brooks go back outside the apartment. Once outside, Brooks testified that the men circled him and began “patting [his] pocket and ... took [his] stuff out of [his] ⁴⁷² pockets,” including a pocket knife. 2 According to Brooks, Bailey stated that they “were going to bust [Brooks] up.” Brooks was then permitted, from a neighbor’s apartment, to telephone his other sister, Judy Brooks, to ask her for money to pay Shand.

Brooks then called his brother, Grady Lane, to ask him for the money. After making the two telephone calls, Brooks went back to his apartment. He testified that the door was open and that when he entered, he was instructed by Hall to “stand still.” Brooks stated that he did not see the victim at that time. Shand then appeared from the bedroom, again requesting his money; Brooks responded that he “was waiting on some money.” Brooks next let McDaniel Alvin Thomas (Alvin), a friend of the victim’s, into the apartment.

Brooks testified that at the time he opened the door for Alvin, four of the men were in the back while Hall, Brooks, and Alvin remained in the front of the apartment. Brooks then asked Alvin for money to pay Shand; Alvin explained he had no money. Brooks “decided then that [he] was going to try to go' get some help.” He left the apartment and went down the stairs. Once outside, he attempted to jump some bushes and injured his right knee.

Brooks hobbled to a nearby apartment building basement and remained there until the morning when he was taken by ambulance to Prince George’s County Hospital. The victim testified that at approximately 11:00 p.m. on 9 October 1993, Brooks, appellants, and Lamiah Hall entered her apartment. Shand, from whom the victim admitted buying drugs in the past, explained that Brooks owed him money for drugs. Soon thereafter, all the men, including Brooks, left the apartment.

The victim testified that when Shand returned, he threatened her with her brother’s pocket knife and led her into the bedroom. According to her, Shand then “put ⁴⁷³ his penis in [her] mouth and in [her] vagina several times” without her consent. A short time later, four men entered the bedroom, including Bailey and Allen, and Shand told “each one of them what to do, when to go first, when to go second, when to go third, or whatever.” The victim testified that, notwithstanding her pleas to stop and that they were hurting her, “[e]ach one of those three put their penis in [her] mouth and in [her] vagina over, and over, and over, and over.” 3 The victim explained that, after what seemed like hours, the men left her apartment. She immediately locked the door behind them.

At this time, Alvin was sitting in the living room. The victim testified that she told Alvin that “those guys came in here and raped me because they wanted money from my brother.” The victim then took a bath for approximately one-half hour, had a drink, and walked to a nearby pay telephone to call her sister. The victim testified that she told her sister “that some guys came in my house, wanted money, saying Josh owed them money and they raped me.” Shortly after the victim returned home, she was visited by Grady Lane and several police officers. She explained that she had been raped and gave the police officers descriptions of her attackers.

The officers then escorted the victim to the police station. On the way to the station, the victim saw and identified Allen, Hall, and Shand as three of the men who had raped her. All three were arrested and a pocket knife was seized from Shand. Bailey was arrested one month later.

Appellants were subsequently charged with first degree rape and related charges. At the close of the State’s case, appellants moved for judgments of acquittal. The circuit court denied the motions as to all counts. ⁴⁷⁴ Prior to the close of the defense’s case, 4 appellants renewed their motions for judgment of acquittal as to all counts and the circuit court again denied the motions. Additional facts will be provided as warranted by our discussion.

DISCUSSION I. Appellants contend that “the lower Court erred in ruling that [they] could not present evidence of the drugs for sex trade between Appellant Shand and [the victim] that had taken place two weeks before the alleged rape.” The State suggests, however, that the circuit court properly excluded this evidence under Maryland’s Rape Shield Law, Md.Code Ann., Art. 27, § 461A (1992 Replacement Volume & 1994. Supp.). Section 461A(a) of the Rape Shield Law provides: (a) Evidence relating to a victim’s chastity.—Evidence relating to a victim’s reputation for chastity and opinion evidence relating to a victim’s chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree. Evidence of specific instances of the victim’s prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is: (1) Evidence of the victim’s past sexual conduct with the defendant; or (2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or ⁴⁷⁵ (3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or (4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim’s prior sexual conduct in issue.

To be admissible under this statute, evidence of “specific instances of a victim’s prior sexual conduct” must “fit within one of the enumerated exceptions and be found by the trial court to be relevant and material to a fact at issue in the case and to have probative value greater than its inflammatory or prejudicial nature.” Johnson v. State, 332 Md. 456, 464 , 632 A.2d 152 (1993). Evidence relating to a victim’s reputation for chastity and opinion evidence relating to a victim’s chastity, however, are per se excluded under the Rape Shield Law. As explained in Lucado v. State, 40 Md.App. 25, 32 , 389 A.2d 398 (1978): This part of the statute does two things. The first sentence flatly and unconditionally excludes opinion evidence relating to a victim’s “chastity” and evidence relating to the victim’s reputation for “chastity.” There are no exceptions to this prohibition, which appears to apply whether the evidence is offered by the prosecution or the defense.

The balance of the subsection deals with something quite different—specific instances of the victim’s “pri- or sexual conduct”—evidence of which is admissible under certain conditions. Evidence that neither relates to a victim’s reputation for chastity nor is evidence of specific instances of prior sexual conduct is not governed by the Rape Shield Law, and is subject to the traditional rules of evidence. 5 See Md.Rules 5-101 et seq. ⁴⁷⁶ The Rape Shield Law was enacted to shield victims of rape and first and second degree sexual offense from general inquiry at trial into their chastity or lack of chastity and prior sexual conduct whenever the defense of consent was raised. Johnson, 332 Md. at 464 , 632 A.2d 152 . “Another reason to protect rape victims from harassment on the witness stand has been to encourage more victims to report crimes and help bring rapists to justice.” White v. State, 324 Md. 626, 634 , 598 A.2d 187 (1991). It follows that the Rape Shield Law was enacted “to prevent defense counsel from putting the victim ‘on trial,’ from unfairly invading the victim’s privacy and from deflecting the jury’s attention from the true issue.

The rule reflects recognition that the trial process at best is traumatic to the victim of sexual abuse. If she has reason to believe the most intimate details of her life are going to be bandied about the courtroom, many victims will decide the game is not worth the candle and decline to file a complaint.” Id. (quoting Goodson v. State, 566 So.2d 1142, 1149-50 (Miss. 1990)). See also Johnson, 332 Md. at 464-65 , 632 A.2d 152 .

Notwithstanding these concerns, the statute is not inflexible. White, 324 Md. at 636 , 598 A.2d 187 . Indeed, “the legislative intention was not to prevent a defendant from being able to present a defense to a rape charge or to hamstring him or her unduly in his or her effort to do so.” Johnson, 332 Md. at 465 , 632 A.2d 152 . “The exceptions written into the law provide ways for a defendant to bring up the victim’s conduct when necessary to the defense.” White, 324 Md. at 636 , 598 A.2d 187 . In fact, the Senate Judicial Proceedings Committee stated that it “took cognizance of the broad based support of the concept of limiting evidence relating to prior sexual conduct of a rape victim and that such a limitation would probably result in an increase in the percentage of rapes reported; that a statutory response to the inherent sensitivities of a traumatized victim could accommodate the constitutionally mandated rights and protections properly afforded a defendant in ⁴⁷⁷ our criminal justice system; and that the weighing of inflammatory nature versus the probative value of evidence of specific instances of prior sexual conduct precludes possible admission of highly prejudicial evidence of limited probative value.

Presently, it is the practice of some courts to admit evidence of any probative value irrespective of its inflammatory nature.” Id. (quoting Report of Senate Judicial Proceedings Committee on Senate Bill No. 399, at 4). See also Johnson, 332 Md. at 465 , 632 A.2d 152 . In the case sub judice, the State moved in limine under the Rape Shield Law to exclude evidence of any alleged prior offer by the victim to exchange sex for drugs with Shand.

Counsel for Shand made the following proffer: Your Honor, my client, Mr. Shand, would testify that he first met this lady about two weeks prior to this occurring, and the nature of that meeting was that she offered to him, personally, sex for drugs. I think that’s an exception of specific exclusion under the rape shield statute. As directed by section 461A(b) 6 of the Rape Shield Law, the circuit court conducted an in camera hearing at which the victim testified that, two weeks prior to the incident in question, she and a friend named Rod approached Shand to purchase drugs. According to the victim, Shand offered her drugs in exchange for sex, to which she “told him no, [she] didn’t want to.” Shand did not testify in support of his proffer.

There were no other witnesses who testified at the in camera proceeding. During arguments to the court, counsel for Shand explained that [t]he only variation of the testimony was she was saying Mr. Shand asked her, whereas I’d proffer to the Court that Mr. ⁴⁷⁸ Shand would say it’s the other way around. And I believe its sufficient for the jury to determine. It comes within the rape shield conduct.

The circuit court, however, concluded simply that it was “absolutely prevented by the Rape Shield Statute,” and granted the State’s in limine motion. Because the trial judge failed to particularize her reasons for excluding Shand’s proffer under the Rape Shield Law, we must decide, under the analysis set forth supra, whether such evidence was properly excluded. 7 As a threshold determination, because the proffer suggests on its face a specific prior incident, we must decide whether Shand’s proffer constitutes a specific instance of the victim’s prior sexual conduct. To answer that question, we are put to the task of defining the term “sexual conduct,” or at least determining what the General Assembly meant when it used that term in section 461A. The rule which we apply in making that determination was stated in Maryland Medical Serv., Inc. v. Carver, 238 Md. 466 , 209 A.2d 582 (1965): In construing the words used in the statute, this Court will consider them in their natural and ordinary signification; if, however, the words used in the statute are of doubtful meaning, this Court in determining the legislative intent, will consider not only their usual and literal meaning, but their meaning and effect considered in the light of the objectives and purposes of the enactment and the consequences resulting from one meaning rather than another ⁴⁷⁹ meaning, with the real legislative intent prevailing over the intent indicated by the literal meaning of the words.

See also Fairchild Indus. v. Maritime Air Serv., Ltd., 274 Md. 181, 185-86 , 333 A.2d 313 (1975); Truitt v. Board of Public Works, 243 Md. 375, 394 , 221 A.2d 370 (1966). In pursuing our quest for the true meaning of “sexual conduct,” we start with a brief survey of Maryland case law involving the admissibility of evidence of a victim’s “prior sexual conduct” under the Rape Shield Law. Those cases suggest that “sexual conduct,” as used in the statute, requires some type of physical sexual contact. See, e.g., Johnson v. State, 332 Md. 456 , 632 A.2d 152 (1993) (evidence that victim had sexual intercourse with defendant); Miles v. State, 88 Md.App. 248 , 594 A.2d 634 (evidence that victim had prior sexual relationship with defendant), cert. denied, 325 Md. 95 , 599 A.2d 447 (1991); Testerman v. State, 61 Md.App. 257 , 486 A.2d 233 (1985) (evidence that victim had engaged in a series of amicable and amorous encounters with defendant over a period of years); Joyce v. State, 59 Md.App. 237 , 474 A.2d 1369 (1984) (evidence that victim had group sex with defendant and others); Cantrell v. State, 50 Md.App. 331 , 437 A.2d 696 (1981) (evidence that victim was into “kinky-type sex” with defendant).

A New York appellate court, interpreting a similar provision regarding the admissibility of evidence of a rape victim’s past sexual conduct, 8 held that “[e]vidence of a victim’s sexual conduct is inadmissible unless, inter alia, it relates to specific instances of prior sexual contact with the accused.” People v. ⁴⁸⁰ Hauver, 129 A.D.2d 889 , 514 N.Y.S.2d 814, 815 (1987) (emphasis added). But see People v. Franklin, 25 Cal.App.4th 328 , 30 Cal.Rptr.2d 376, 380 (1994) (“sexual conduct ... encompasses any behavior that reflects the actor’s or speaker’s willingness to engage in sexual activity”); People v. Casas, 181 Cal.App.3d 889 , 226 Cal.Rptr. 285, 289 (statement that victim offered to have sexual intercourse for money “reflects the speaker’s willingness to engage in sexual intercourse,” and was therefore deemed “sexual conduct”), cert. denied 479 U.S. 1010 , 107 S.Ct 652 , 93 L.Ed.2d 707 (1986); cf. Wood v. Alaska, 957 F.2d 1544, 1551 (9th Cir.1992) (victim’s communications with defendant may be considered “sexual conduct”). The legislative intent and purpose of section 461A indicates that “sexual conduct” must not only involve physical contact, but the physical contact must evidence the victim’s willingness to engage in either vaginal intercourse or a sexual act. The Rape Shield Law permits the admission of “specific instances of a victim’s prior sexual conduct” in “any prosecution for commission of a rape or sexual offense in the first or second degree” where such conduct has special relevance to the defense of consent.

White, 324 Md. at 636 , 598 A.2d 187 . Rape is defined as “vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person.” Md.Code Ann., Art. 27, §§ 462 & 463 (1992 Replacement Volume & 1994 Supp.). Sexual offense is defined as a sexual act with another person by force or threat of force against the will and without the consent of the other person. Id. § 464.

Therefore, the only “sexual conduct” of the victim that could be relevant to the defense of consent in a prosecution for rape or first or second degree sexual offense is physical contact that would indicate a willingness to engage in the type of sexual activity included in those offenses, i.e., vaginal intercourse or a sexual act. Therefore, we hold that “sexual conduct,” as that term is used in Maryland’s Rape Shield Law, requires physical contact indicating a willingness to engage in either vaginal inter ⁴⁸¹ course 9 or a sexual act. 10 It follows that where evidence proffered by a defendant in a rape or covered sexual offense trial does not allege physical contact with the victim indicating a willingness to engage in such activity, that evidence is not admissible under the Rape Shield Law under the specific instance exception to the exclusionary intent of that law. We caution, however, that not all such evidence of physical contact is admissible under the statute. For example, proffered evidence of physical contact with the victim evidencing a willingness to engage in a sexual act, i.e., something other than vaginal intercourse, might well be excluded at a rape trial on the grounds that such evidence is not relevant to the issue of consent because it involves a lesser degree of sexual activity than that charged, i.e., vaginal intercourse.

Such evidence also might be deemed immaterial, inflammatory, or otherwise excludable under section 461A. In the case sub judice, it is clear from the record that Shand’s proffer alleged merely an unaccepted and unconsummated verbal offer to trade sex in exchange for drugs. There was no allegation of any physical contact on behalf of the victim indicating her willingness to engage in vaginal intercourse or a covered sexual act. Shand’s proffer, therefore, cannot be considered “prior sexual conduct” under the Rape ⁴⁸² Shield Law, and is consequently not admissible under the specific instance exception of section 461A.

This does not, however, conclude our inquiry. The trial judge indicated that Shand’s proffer was “absolutely prevented by the Rape Shield Statute.” As we already have determined that the evidence is not prior sexual conduct of the victim, the only other explanation for excluding such evidence under the Rape Shield Law is that it is evidence relating to the victim’s reputation for chastity or opinion evidence relating to the victim’s reputation for chastity. In Lucado v. State, 40 Md.App. 25 , 389 A.2d 398 (1978), this Court explored the definition of the term “chastity” as it is used in section 461A. After quoting five somewhat varying definitions of the term “chastity” from Webster’s New Twentieth Century Dictionary (Unabridged), this Court concluded that “it does not appear that there is a single ‘natural and ordinary signification’ of the word.” Id. at 34 , 389 A.2d 398 .

We agree and therefore are forced, as was this Court in Lucado , to rely on the legislative intent of the Rape Shield Law in order to determine whether chastity encompasses or refers to evidence of an unconsummated and unaccepted oral offer to trade sex in exchange for drugs. In Lucado , this Court seems to indicate that there are two exclusive classifications of evidence within the purview of the Rape Shield Law—evidence relating to the victim’s chastity and evidence of specific instances of sexual conduct. Id. at 39 , 389 A.2d 398 . Implicit in this distinction is the notion that evidence relating to a victim’s chastity is general in nature, and does not include evidence as to “specific instances.” We perceive that, lurking beneath the surface of this Court’s discussion and analysis in Lucado , is the conviction that although evidence of specific instances could not be considered evidence of reputation for chastity, such evidence would necessarily be considered “prior sexual conduct,” and therefore fall within the ambit of the Rape Shield Law.

The proffered evidence of a specific instance in the case sub judice, however, did not involve, as