Shoemaker v. State

Bruñe, C. J., delivered the opinion of the Court. The defendant-appellant was indicted for rape and was tried in 1957 before a jury in the Circuit Court for Prince George’s County. The jury returned a verdict of guilty, without capital punishment, and the court sentenced the defendant to twenty years’ imprisonment. Upon an application under the Post Conviction Procedure Act he was granted a delayed appeal after a hearing before Judge Digges, and this Court denied the State’s application for leave to appeal.

State v. Shoemaker, 225 Md. 639 , 171 A. 2d 468 . He urges two grounds for reversal: first, the admission of testimony relating to a complaint made ⁴⁶⁵ by the prosecuting witness to a third person, not in the presence of the defendant, within a period which cannot be exactly determined from the record, but which appears to have been within approximately an hour after the alleged attack; and second, allegedly improper remarks by the State’s Attorney in his argument to the jury. In brief, the prosecuting witness, a young woman then about twenty-four years old, accepted an automobile ride from a stranger, the defendant, at about ten o’clock on the night of January 8, 1957, approximately two blocks from a bus terminal in Mt. Ranier, Maryland, where she expected to board a bus to take her to her home.

At first the defendant was to take her only to the bus terminal, then she accepted a ride home. After some delay along the route the defendant drove out into an isolated area at Cheverly, Maryland. There, according to the prosecuting witness, he attacked and raped her in the automobile, despite her resistance and despite her efforts to summon help by blowing the automobile horn. The defendant did not deny intercourse, but rested his defense upon the claim that it had been with consent.

After leaving the isolated spot at Cheverly, the defendant drove to a tavern at Seabrook, Maryland. The prosecutrix had told him that she wanted a drink (although she testified that she did not drink) in order to get away from the defendant. She urged him to stop at this tavern and he did so. He offered her his comb “to straighten up,” which she attempted to do.

He entered the tavern, she got out of the car and looked at the license number, but did not succeed in memorizing it in full. She walked around to the back of the tavern and then entered its front door. As she did so, she was followed by the defendant, who said he had just put the drinks in the car. There was evidence indicating that this was about twenty or thirty minutes after the defendant and the prosecutrix had arrived at the parking lot outside the tavern.

Immediately upon entering the prosecutrix asked the waitress who was then on duty at the bar to call a cab for her. The waitress described the prosecutrix’ condition as “very hysterical.” The waitress was then busy and said, “Yes, just a moment.” The owner of the tavern came over in a few minutes ⁴⁶⁶ and the prosecutrix repeated to him her request to call a cab. He noticed that her condition was hysterical and nervous, inquired if someone was “bothering” her, then noticed that her hair and clothing were “messed up” and finally asked her point blank, “Were you raped?” She answered, “Yes.” His is the testimony to which the defendant objected and which he claims was improperly admitted. Both sides have argued the admissibility of this evidence on the basis of whether or not the prosecutrix’ statement constituted a part of the res gestae.

Some courts have treated the admissibility of such testimony on that basis. See Wigmore, Bvidence (3rd Ed.), § 1139. That is not, however, the rule which usually controls the matter in this State. The question is discussed fully in Wigmore, op. cit. supra, §§ 1134-40.

In addition to the res gestae theory upon which such testimony may be admissible, there are two others, as Wigmore points out. The first of these is that the failure of the woman to make any complaint at the time could be offered in evidence as a virtual contradiction discrediting her present testimony, and hence the prosecution could forestall such an assumption by showing the fact of a complaint. Under this rule as stated by Wigmore only the fact of a complaint is admissible and no details thereof. 1 The second theory stated by Wigmore allows the admission of more than the mere fact of the complaint, if the woman has testified and her testimony has been impeached as false whether by cross-examination or by a defense based upon consent. Evidence of the victim’s complaint made while the alleged injury was recent is admissible in this State.

Murphy v. State, 184 Md. 70, 76 , 40 A. 2d 239 . And the limitation of testimony under the first of the above rules stated by Wigmore merely to the fact of complaint, which was applied in Parker v. State, 67 Md. 329, 10 A. 219 , is not the present law of Maryland. See Legore v. State, 87 Md. 735 , 41 A. 60 , and comment thereon in Green v. State, 161 Md. 75, 79-80 , 155 A. 164 ; ⁴⁶⁷ Blake v. State, 157 Md. 75, 81-82 , 145 A. 185 ; Green v. State, just cited; Saldiveri v. State, 217 Md. 412, 417 , 143 A. 2d 70 (an unnatural sexual practices case). In Green v. State, supra ( 161 Md. at 82 ), the court made the following statement which is applicable to cases falling within the first of Wigmore’s rules above stated and also to cases within the second of those rules.

Judge Parke there said: “[T]he 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.” The conditions for the admission of the testimony of the tavern owner had been fully met. The woman had testified, and though the printed appendix does not show it, the record does show that her testimony had been attacked by cross-examination on the theory of consent. Under Green and Saldiveri , there was no error in admitting the tavern owner’s testimony. The other contentions made by the defendant relate to comments or statements made by the State’s Attorney in his argument to the jury.

The impropriety of only one of the statements complained of appears to have been duly raised at the trial. The State’s Attorney virtually invited objection to that one, which related to parole, before making the comment. The objection was promptly made and overruled. We think it was not necessary, in order to preserve the point for review, to renew the objection by motion to strike or for a mistrial when the State’s Attorney proceeded to make the argument which ⁴⁶⁸ the court had just allowed him to make.

Since this particular objection derives additional color from some of the other statements which the appellant seeks to object to on appeal, we shall now state the general nature of all of them. They are: (i) a reference to the alleged horrors of death in the gas chamber; (ii) that the State’s Attorney was perhaps influenced by seeing a little baby that came into the courtroom with its mother 2 in deciding not to seek the death penalty; (iii) statements relating to the possible penalty—a minimum of eighteen months’ and a maximum of twenty years’ imprisonment—in case of a verdict of guilty without capital punishment; (iv) possible release on parole after, or perhaps even before, the defendant, if convicted, should have served one-third of whatever term of imprisonment might be imposed and the obligation of the Parole Board to consider his eligibility for parole after he had served one-third of the term; and (v) an expression of the prosecutor’s belief in the defendant’s guilt. , The statements with regard to parole in the context in which they were made here, we think, exceeded the limits of permissible comment by the prosecutor. This Court has never had occasion, as far as we are informed, to consider the question whether remarks relating to possible parole, or similar remarks, constituted reversible error. Of course, each case depends a good deal on its own facts, even where the remarks may fall into the same general classification.

References by a prosecutor to the right of appeal, the possibility of executive clemency and parole of a defendant have, however, been considered by many other courts. Although there are decisions each way, we think that the better reasoning and the weight of authority are against the propriety of such arguments. See Annotation, 132 A.L.R. 679 (1941); 53 Am. Jur.

Trial § 466 and cases cited; 23A C.J.S., Criminal Law, § 1107, and cases cited. One reason in support of what we think is the better rule is that arguments should be based upon the evidence (Toomer v. State, 112 Md. 285 , 76 A. 118 ), but the principal ⁴⁶⁹ objection to arguments of this type goes even deeper and is exemplified, we think, in the present case. The chief vice of the reference in this case to the possibility of parole is that it suggested to the jury that it might in part shift its responsibility for a finding of the defendant’s guilt to some other body. Here the prosecutor specifically told the jury that he was not asking for the death penalty, so that, assuming that the jurors would follow his suggestion (which they did) that they find the defendant guilty “without capital punishment”, they would have no function in determining the length of the sentence of imprisonment within the statutory limits, that being the problem of the judge.

In the context of the prosecutor’s request for mercy by asking the jury to spare the defendant from capital punishment, the natural tendency and effect of the statements about parole was to suggest to the members of the jury that they might resolve any question about the defendant’s guilt beyond a reasonable doubt with the thought that, even if they made a mistake, no great harm would be done since he might soon be paroled. A number of the cases in which an argument relating to parole, executive clemency or the like has been held permissible have been cases in which, under applicable law, the jury has a function (sometimes to the exclusion of the judge) in fixing the penalty. See McLendon v. State, 205 Ga. 55, 63 , 52 S. E. 2d 294 , and Sullivan v. State, 47 Ariz. 224 , 55 P. 2d 312 , as examples of such cases. In the latter case the prosecutor argued that the average “life” sentence was terminated after a few years by a pardon or parole, and was evidently contending for the maximum penalty, death, and not for the penalty of life imprisonment.

Clearly, this involved no effort to have the jury shift responsibility in case of doubt to someone else. Authorities from several other states — Alabama, California, Colorado and Washington—are cited in support of the court’s conclusion. In Georgia, a distinction was for a time drawn between comments relating to parole or the like made by the trial judge and similar comments made by the prosecuting attorney, the former being held to amount to reversible error (Thompson v. State, 203 Ga. 416 , 47 S. E. 2d 54 ) and the latter not to (Mc- ⁴⁷⁰ Lendon v. State, supra; Strickland v. State, 209 Ga. 675 , 75 S. E. 2d 6 ). In Bland v. State, 211 Ga. 178 , 84 S. E. 2d 369 (1954) a sharply divided court applied the McLendon rule to comments by the trial judge.

This was followed by a 1955 statute prohibiting any attorney from arguing to a jury in a criminal case that the defendant, if convicted, might not be required to suffer the full penalty imposed by the court or jury because pardon, parole or executive clemency might be granted. Following the enactment of this statute, McGruder v. State, 213 Ga. 259 , 98 S. E. 2d 564 came before the Supreme Court of Georgia. In that case the jury inquired whether, if the defendant should be found guilty “in the first degree” of robbery by force, the jury could be assured he would serve “the minimum amount that the jury could give him.” The trial judge replied that that was a question of administration resting with the prison board and the Governor, with which the courts had nothing to do, and added “so whatever punishment you fix it will be that unless and until it is disturbed by the parole or pardon board, and that is as far as I can go with you, gentlemen.” 98 S. E. 2d at 568-69 . The Supreme Court in an able opinion by Justice Head held that the inclusion of the statement “unless and until it is disturbed by the parole or pardon board” constituted reversible error.

In reaching this conclusion the court relied on the statute above referred to as establishing “the policy of the law that the jury should not be influenced in a criminal case in the rendition of their verdict by a consideration of the fact that the penalty imposed by them might be commuted by the State Board of Pardons and Paroles.” ( 98 S. E. 2d at 569 .) A somewhat similar result has been reached in New Jersey, where also a statute was involved. There a 1916 statute fixed death as the penalty for first degree murder unless the jury should recommend life imprisonment. In State v. Rombolo, 89 N. J. L. 565, 99 A. 434 (Ct. of Errors and Appeals, 1916), a conviction was affirmed, where the trial court in response to a question from