Shand v. State

RODOWSKY, Judge. We granted certiorari in this rape prosecution in order to review an interpretation of the rape shield statute, Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 461A (the Statute), that was placed upon it in Shand v. State, 103 Md.App. 465 , 653 A.2d 1000 (1995). 1 The Court of Special Appeals held “that ‘sexual conduct,’ as that term is used in [the Statute], requires physical contact indicating a willingness to engage in either vaginal intercourse or a sexual act.” Id. at 480-81 , 653 A.2d at 1007-08 (footnotes omitted). As explained below, we shall hold that “sexual conduct” is not so limited. I The Statute generally prohibits reputation and opinion evidence relating to a victim’s chastity in prosecutions for rape or sexual offense in the first or second degree. “Evidence of specific instances of the victim’s prior sexual conduct” is prohibited unless the evidence clears two hurdles for admissibility.

First, the trial court must find at a mandatory, in camera hearing that the evidence is relevant and material and “that its inflammatory or prejudicial nature does not outweigh ⁶⁶⁴ its probative value.” § 461A. Second, the specific instance evidence must fall within at least one of four exceptions to the prohibition against evidence of specific instances of the victim’s prior sexual conduct. § 461A(a). Relevant to the contentions before us are the exceptions for: “(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 “(3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime[.]” 2 Id. The arguments concerning the construction of “sexual conduct” are presented against the background of two decisions by this Court, Johnson v. State, 332 Md. 456 , 632 A.2d 152 ⁶⁶⁵ (1993) and White v. State, 324 Md. 626 , 598 A.2d 187 (1991).

Initially reviewing that background will assist the reader. In White the victim testified that she had been abducted and raped in the back of a van. Id. at 630-31 , 598 A.2d at 189 . Under the defendants’ evidence, there was no sexual intercourse, either voluntary or involuntary.

Id. at 632 , 598 A.2d at 190 . Nor was there any sexual contact, other than provocative moves and a grab by the victim who offered sex for drugs. Under the defendants’ evidence, that offer was declined. Id.

The defendants acknowledged purchasing some drugs for the victim, but they testified that she wanted more drugs. Id. at 631-32 , 598 A.2d at 190 . The theory of the defense was that the victim was angry because of the defendants’ failure or refusal to purchase a sufficient quantity of drugs to satisfy the victim and that this anger motivated the false accusation of rape. Id. at 637 , 598 A.2d at 192 .

Prior to closing their case in White , the defendants called a witness and proffered that “ ‘he’s going to testify that he has previous occasions when he has known that [the victim] has asked people to provide cocaine in return for sex.’ ” Id. at 632 , 598 A.2d at 190 . After objection by the State and in colloquy with the court, the defendants expanded their proffer, stating: “ ‘He’s going to testify that he has had instances when she participated in sex with him for drugs.’ ” Id. at 633 , 598 A.2d at 190 . The trial court excluded the proffered evidence, and this Court affirmed the defendants’ convictions for rape. Inasmuch as the defense in White was that there was no intercourse at all, the proffered evidence of prior sexual conduct was basically irrelevant.

Our analysis did not distinguish the proffer of oral solicitations of drugs in exchange for sex, absent a proffer that the sex was consummated, from the proffer of consummated exchanges of sex for drugs. Speaking through Judge Chasanow, we said in White : “Even adopting the Whites’ contention, it was not their declining [the victim’s] offer of sex that motivated the false charge; it was their declining her request for drugs. Any ⁶⁶⁶ prior sexual acts or prior sexual solicitations by [the victim] could have little, if any, relevance to her alleged anger at the Whites. In addition, the fact that [the victim] may have successfully offered or traded sex for drugs in the past does not tend to show that she would become enraged with the Whites for failing to supply her with drugs and declining her alleged sexual solicitation. [The witness’s] testimony would have dubious relevance to establishing that [the victim] had an ulterior motive to lie, whereas its prejudice to [the victim] and the State would be extreme.” Id. at 637 , 598 A.2d at 192-93 .

In Johnson , the evidence was uncontradicted that sexual intercourse had taken place. The defense was consent. Johnson testified that the victim had agreed with one William Jackson to have sex with Jackson, Johnson and a co-defendant, in exchange for drugs (to “freak for drugs”). Johnson, 332 Md. at 459 , 632 A.2d at 153 .

Johnson further testified that the victim had not been paid after she had fully performed her part of the bargain. Id. The theory of Johnson’s defense was that the victim’s anger over the breach of contract motivated her false accusation of rape. Id. at 459, 462 , 632 A.2d at 153,154-55 .

By a pretrial motion in limine, pursuant to § 461A(b), Johnson sought a ruling permitting him to show, through the victim’s own testimony, that she had freaked for drugs on previous occasions. Id. at 459, 632 A.2d at 153 . At that in camera hearing, Johnson “elicited testimony from the victim that she had been freaking for crack cocaine for approximately six months.... ” Id. at 459-60 , 632 A.2d at 153-54 . “She had freaked for crack cocaine most recently, she said, one week prior to being raped. The victim explained that when she wanted to get high, she would engage in sex for crack cocaine at anytime of the day or night.” Id. at 460 , 632 A.2d at 154 .

The victim denied freaking for drugs on the occasion charged, and she denied any previous sexual relations with Johnson or his co-defendant. Id. ⁶⁶⁷ The trial court ruled that the fact that the victim may have traded sex for drugs in the past did not “ ‘go to the issue of consent.’ ” Id. The victim’s testimony was excluded because “ ‘the prejudicial factor is greater than any probative factor.... ’” Id. at 461 , 632 A.2d at 154 . This Court held that the evidence was improperly excluded, and we reversed Johnson’s judgment of conviction.

Speaking through Judge Bell, we reasoned that, because the controlling issue was whether the victim was raped or freaking for cocaine, evidence that the victim had “freaked for cocaine in the past and, particularly, the very recent past, has special relevance to that issue; such evidence transcends mere evidence of bad character or, in the context of this case, sexual promiscuity.” Id. at 471-72 , 632 A.2d at 159 (footnote omitted). If the jury found that the victim had agreed to provide sex for cocaine and did not receive her drugs, the jury could infer that she had an “ulterior motive” for making a charge of rape. Id. at 472 , 632 A.2d at 159-60 . We noted that in order to introduce evidence to prove ulterior motive there must be a direct relationship between the prior sexual conduct evidence and the ulterior motive, but the connection need not “exclude any other possible interpretation of the evidence, or even ... be the most reasonable one.” Id. at 473 , 632 A.2d at 160 .

Thus, we determined that “[wjhen the [defendant] cross-examined the victim concerning her previously having freaked for cocaine, his purpose was not to show that she was ... a sexually promiscuous person; rather, it was to show that she had the disposition, displayed at some earlier time, to engage in such conduct and from that conduct coupled with her not having been paid, that she falsely accused him of rape. Proof of that particular disposition is relevant and material to the threshold determination whether, on the occasion in question, the victim was, as ... alleged, freaking for cocaine. How relevant and material depends upon the facts and circumstances of the case, including the ⁶⁶⁸ strength of the disposition evidence, e.g., its closeness in point of time to the incident in question.” Id. at 472 , 632 A.2d at 160 (citation omitted). 3 We now turn to the case sub judice. II The victim, a forty-two year old female, testified that she was gang raped by five youths on the night of October 8-9, 1993 in the apartment that she shared with her brother.

The petitioners, Leroy Anthony Shand (Shand), Floyd Jackson Bailey (Bailey), and Kevin Christopher Allen (Allen), were convicted of first degree rape of the victim. Shand was also convicted of a first degree sexual offense against the victim, and Shand and Bailey were convicted of assault against the victim’s brother. At the time Shand and Bailey were fifteen years old; Allen was sixteen. A fourth youth, Lamiah Hall (Hall), was tried with the petitioners and acquitted. 4 As described by the victim in her testimony, Shand and four others came into her apartment on the night of the offense trying to collect a drug debt due to Shand from her brother.

He was unable to pay. Shand’s colleagues pushed the victim’s brother out of the apartment, and they left. Shand, holding an open knife and threatening to “bust up” the victim, led her into her bedroom. He had oral and vaginal sex with her without her permission.

Shand told the victim that he wanted to make her brother see that Shand “wasn’t playing.” After ⁶⁶⁹ Shand had sex with her, the others came into the bedroom. While Shand continued to hold the open knife, he told the others what to do. Each of the others had sex with the victim without her permission. She told them to stop and told them they were hurting her.

The issue concerning the Statute evolved somewhat peculiarly. At a pretrial motions hearing that was not attended by counsel for Shand, counsel for Hall (who was later acquitted) sought a severance because the evidence would likely show that Shand “had engaged in certain drug transactions with the residents of that apartment during periods prior to the alleged incident.” Hall’s counsel proffered that the victim and her brother “had engaged in prior drug transactions with the defendant, Shand, [and] that there had been sexual activity involved in prior drug transactions.” When the State raised the Statute in objection, Hall’s counsel cited to Johnson . The severance was later denied, but the colloquy led the State to file a motion in limine seeking a ruling excluding evidence of the type alluded to by Hall in arguing the severance motion. After the jury had been selected, but prior to opening statements, the court heard the State’s motion in limine.

Counsel for Shand said that 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 ... under the [Statute].” Hall’s counsel “believe[d]” that “the evidence would show that that information was communicated to all of the defendants.” The court determined to hold an in camera hearing and directed that the victim be called to the stand. The State asked her whether, two weeks prior to October 8, 1993, she had offered Shand sex in exchange for drugs. The victim said “no.” She said that Shand “tried to get me to do it, but I would not do it.” Cross-examination developed that the victim was in the company of a man named Rod on that occasion, which was the first time that Shand ever made such an offer to the victim.

Rod had something he wanted to sell in ⁶⁷⁰ order to obtain drugs, and the victim was seeking some drugs herself. Shand did not testify at the in camera hearing. His counsel proffered that Shand would testify, presumably at trial, that the victim initiated the offer, and he argued that the resulting conflict would be for the jury to resolve. The court ruled: “It’s absolutely prevented by the Rape Shield Statute. “State’s motion is granted. “[THE STATE]: Is that in regard to opening arguments? “THE COURT: Yes.” Counsel for Bailey then requested “a ruling on the issue of impeachment of the State’s witness regarding ... [an u]lterior motive to falsify.” He submitted that the court had ruled “[o]nly as to the issue of the victim’s pas[t] sexual conduct with Mr. Shand____” The court responded: “I’ll rule during the course of trial like I rule in any other trial.” When the court inquired whether there was anything else to be taken up, the following transpired: “[THE STATE]: We’d simply ask that since the Court will be ruling on that [ie., impeachment by ulterior motive] as the trial proceeds, that counsel be instructed not to make any reference to that in opening statement. “[COUNSEL FOR SHAND]: We have admonishment from the State.

We have got that down pat. “[COUNSEL FOR HALL]: I don’t intend to mention that. “[COUNSEL FOR BAILEY]: Neither do I.” The record does not reflect an express acquiescence by counsel for Allen. The jury was then brought in, the State made its opening, and counsel for Allen made the initial defense opening. He advised the jury that there was no question that the purpose of the defendants’ having been in the apartment was to collect a drug debt, and that the question would be whether the victim consented. He said: ⁶⁷¹ “And I can sum this whole case up in one word, if I could, and that word is trade. “We believe that the evidence will show that this case is based upon a trade, a trade between [the victim] and Mr. Shand, a trade which included— “[THE STATE]: Objection, your Honor. “THE COURT: Sustained. “[THE STATE]: For reasons already stated. “THE COURT: Sustained.” Shand did not testify at trial.

Allen did not testify at trial. Bailey was the only defendant who testified. He said that, upon returning to the apartment, he found Shand and the victim copulating, apparently with mutual volition. He then graphically described the victim’s orchestrating of the order of succeeding sex partners.

Bailey’s testimony, if believed, would have resulted in a finding of consent. Bailey, however, gave no evidence that the victim agreed to have sex with any one or more of the defendants in exchange for the promise, or present delivery, of drugs by any one or more of the defendants. The jury found the petitioners guilty. Shand was sentenced to thirty years confinement, Bailey to twenty years, and Allen to eighteen years.

The petitioners appealed to the Court of Special Appeals, arguing that the ruling on the motion in limine and the sustaining of the State’s objection to Allen’s opening statement constituted error. In its brief to the Court of Special Appeals the State assumed, but did not concede, that Shand’s proffer fit within the Statute’s exception for “[e]vidence of the victim’s past sexual conduct with the defendant.” Court of Special Appeals, Nos. 860 & 861, September Term, 1994, Brief of Appellee at 4. The State submitted that the proffered evidence was, nevertheless, inadmissible because “its prejudicial and inflammatory nature outweighed its probative value.” Id. at 5. ⁶⁷² The Court of Special Appeals concluded that “[t]he 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.” Shand, 103 Md. App. at 480, 653 A.2d at 1007 . Under that construction of the Statute, Shand’s proffered evidence was not excluded by the prohibition against “[ejvidence of specific instances of the victim’s prior sexual conduct.” § 461A.

The Court of Special Appeals then considered the Statute’s prohibition against reputation or opinion evidence relating to the victim’s chastity. Expanding on Lucado v. State, 40 Md.App. 25 , 389 A.2d 398 (1978), which had explored the meaning of “chastity” in the Statute, and noting that the Statute “was enacted to protect rape victims from embarrassing disclosure of intimate details about their private lives,” the Court of Special Appeals held that “evidence of specific instances not involving physical contact ... can be excluded under the [Statute] as evidence relating to a victim’s chastity.” 103 Md.App. at 482-83 , 653 A.2d at 1008-09 . Consequently, the circuit court had properly excluded the evidence proffered by Shand, and the convictions were affirmed. Id. at 483, 492 , 653 A.2d at 1009, 1013 .

The petitioners sought a writ of certiorari, which this Court issued. They argue that the Court of Special Appeals’ construction of “sexual conduct” is incorrect, and that the proffer should have been allowed. They also argue that the trial court’s sustaining of the objection to Allen’s opening statement prevented the defense from introducing evidence that the alleged victim had agreed to a trade on the night of the offenses charged. In this Court the State argues that the Court of Special Appeals correctly interpreted “sexual conduct,” and, alternatively, that the proffer was irrelevant.

Ill For the reasons to be stated in Part IV, infra, we agree with the petitioners that Shand’s proffer described “sexual conduct.” Nevertheless, we affirm the judgment of the Court of Special Appeals because, on the facts of this case, ⁶⁷³ the proffer was properly excluded under principles of relevancy, applicable pursuant to the general law of evidence and the Statute. The short answer to petitioners’ contention is that there is no evidence that the victim’s consent to sex with five persons was purchased on the night in question by any defendant’s furnishing, or promising to furnish, drugs.