State v. DeLawder

Orth, C. J., delivered the opinion of the Court. STATEMENT OF THE CASE On 30 June 1972 Lee Franklin DeLawder was found guilty by a jury in the Circuit Court for Montgomery County of carnal knowledge of a female under the age of 14 years. A 15 year sentence was imposed. The judgment was affirmed on direct appeal.

DeLawder v. State, No. 663, September Term, 1972, filed 8 June 1973, unreported, 18 Md. App. 740 , cert. denied, 269 Md. 757 . He filed a petition on 19 December 1973 attacking the judgment under post conviction procedures. After a plenary hearing, relief was denied by an order of the Circuit Court for Montgomery County issued 14 October 1974. Maryland Rule BK45 a.

DeLawder sought leave to appeal. Code, Art. 27, § 645-1; Maryland Rule BK46. We granted the application and ordered the case remanded for compliance with Rule BK45 b requiring that the order of the hearing court shall be accompanied by a short memorandum ²¹⁴ which shall include the reasons for the action taken thereon. DeLawder v. Warden, 23 Md. App. 435 .

One of the grounds presented in the post conviction proceeding as reason why the order should be reversed was that the court in the trial of the substantive offense had denied DeLawder his constitutional right to cross-examine the witnesses against him as that right was to be enjoyed in the light of Davis v. Alaska, 415 U. S. 308 , decided 27 February 1974. On remand, the hearing court held that the right had been violated and that Davis was to be given full retroactive application. By order issued 14 January 1975 it vacated the judgment and ordered that DeLawder be given a new trial. The State applied for leave to appeal.

We granted the application by our order of 25 February 1975 and directed that the case be transferred to our regular appeal docket. Briefs were duly filed and oral argument received. ISSUES FOR DECISION 1) Whether DeL'awder’s right of cross-examination was violated under the rule of Davis v. Alaska, ■ supra. 2) E so, whether Davis has retroactive application. THE LAW In affirming the judgment on direct appeal, we held that the trial court did not err in sustaining objections made to questions attempting to show that the prosecuting witness had sexual intercourse with other men on other occasions.

The general rule is that because consent is not an issue in a carnal knowledge prosecution, evidence that the prosecutrix had prior intercourse with men other than the accused, or that her reputation for chastity was bad is immaterial when offered as an excuse or justification, and so is inadmissible for that reason. Annot., 140 A.L.R. 364 , 365; 1 Wharton’s Criminal Evidence § 237 at 522 (13th ed. 1972). This rule was stated by the Court of Appeals in Rau v. State, 133 Md. 613 , 615: “The prosecutrix under the law by reason of her ²¹⁵ age was not capable of consenting to sexual intercourse with the traverser and the question of her prior intercourse with another or her chastity was not a material issue and could not reflect upon his guilt or innocence, under the fourth count of the indictment [carnal knowledge].” There is an exception to the general rule when it appears that the hymen of the prosecutrix has been ruptured or injured and it is alleged that the trauma was caused by the defendant. To rebut such proof the defendant may introduce evidence of acts of prior unchastity of the prosecutrix as tending to show that another was responsible for the trauma. 140 A.L.R. at 367.

Compare Duvall v. State, 151 Md. 38, 42 . The only acts of intercourse, however, which may be shown are those occurring about the time of the act which, in the nature of things, could have caused the condition. Wharton, supra, at 525. The trial judge correctly applied these rules.

He restricted the introduction of evidence concerning the unchastity of the prosecutrix on the ground that consent is not an element of the crime of carnal knowledge. He permitted testimony concerning her sexual activity “within a day or two” of the alleged crime because when she was medically examined about 6 hours after the time the crime was alleged to have been committed, there was bruising and discoloration around the hymen or introitus of the vaginal canal. It was the opinion of the examining physician that the bruising occurred within two or three days prior to the examination. DeLawder, however, contends that in the light of Davis the trial court, by restricting cross-examination, violated his constitutional right to confront his accusers.

Our holding on direct appeal did not necessarily finally litigate the contention as presented upon collateral attack. Code, Art. 27, § 645A (d) provides: “For the purposes of this subtitle and notwithstanding any other provision hereof, no allegation of error shall be deemed to have been finally litigated or waived where, subsequent to any ²¹⁶ decision upon the merits thereof or subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposed upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.” As Davis , was decided subsequent to our decision, we must determine whether it affects the validity of DeLawder’s conviction. The Confrontation Clause of the Sixth Amendment In Davis , at 315, the Supreme Court of the United States reviewed the reach of the Confrontation Clause of the Sixth Amendment to the federal Constitution. “The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U. S. 400 (1965). Confrontation means more than being allowed to confront the witness physically.. ‘Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.’ Douglas v. Alabama, 380 U. S. 415, 418 (1965).” “Cross-examination”, the Court observed, at 316, “is the principal means by which the believability of a witness and the truth of his testimony are tested.

Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’s perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” A witness may be discredited by a general attack on his credibility by introducing evidence of a prior criminal ²¹⁷ conviction of that witness. “By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony.” Id. A witness may also be discredited by a more particularized attack. This is done by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. “The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970).” Id. The Supreme Court has recognized “that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.

Greene v. McElroy, 360 U. S. 474, 496 (1959).” Id., at 316-317. The denial of effective cross-examination “ ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ ” Id., at 318, quoting Brookhart v. Janis, 384 U. S. 1, 3 (1966) as quoted in Smith v. Illinois, 390 U. S. 129, 131 (1968). We look to see how these rules were applied in Davis . The Davis Ruling Davis was convicted of burglary and grand larceny in a state court at a trial in which the court on motion of the prosecution issued a protective order prohibiting the questioning of Richard Green, a key prosecution witness, 1 concerning Green’s adjudication as a juvenile delinquent relating to a burglary and his probation status at the time of the events as to which he wa§ to testify.

The motion was ²¹⁸ granted in reliance on a state rule and statute which preserved the confidentiality of juvenile adjudications of delinquency. The evidence against Davis was entirely circumstantial and the defense wanted to point out to the jury that Green was on probation for robbery, suggesting the possibility that he acted either out of .fear or concern for his probationary status. The defense made clear that it did not intend to use Green’s juvenile record to impeach his credibility generally, but only as necessary to examine him for any possible bias and prejudice. “Not only might Green have made a hasty and faulty identification of [Davis] to shift suspicion away from himself as one who robbed the Polar Bar, but Green might have been subject to undue pressure from the police and made his identification under fear of possible parole revocation.” 415 U. S. at 311 . See 43 U. Cin.

L. Rev. 647 (1974). The trial court rejected even this limited use of Green’s adjudication, but defense counsel did his best to expose Green’s state of mind at the time he discovered the safe. Green, however, made a flat denial to questions whether he was upset by the fact that the safe was found on his property, whether he felt the authorities might suspect him, and whether he felt uncomfortable about it. Asked, “Did you suspect for a moment that the police might somehow think you were involved in this?”, he replied, “I thought they might ask a few questions is all.” It was elicited that Green was questioned about the incident by the investigating officers.

He was then asked, “Had you ever been questioned like that before by any law enforcement officers?” and answered, “No.” The prosecution objected and the court sustained the objection. Davis , at 312-313. Thus “[w]hile counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial.” Davis , at 318. The Alaska Supreme Court refused to reach the issue of whether the State’s policy of preserving the anonymity of a juvenile offender denied Davis his Sixth Amendment right of confrontation.

It affirmed the conviction on the grounds ²¹⁹ that the scope of cross-examination allowed was adequate to develop the issue of bias and convey it to the jury. Id., at 315 ; Davis v. State, 499 P. 2d 1025, 1036 . The Supreme Court did not accept this. It said, at 318: “On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor’s objection put it, a ‘rehash’ of prior cross-examination.

On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” It held that disallowance of the defense’s attempt to show bias of the prosecution’s crucial witness by cross-examination concerning the witness’ juvenile record violated Davis’s Sixth and Fourteenth Amendment rights. Id. 2 It is clear that Davis turned on the correctness of the ²²⁰ Alaska court’s evaluation of the “adequacy” of the scope of the cross-examination permitted. The ■ Supreme Court reversed because it disagreed with the Alaska court’s interpretation .of the Confrontation Clause. Id., at 315.

The view of the Supreme Court was that the matter-suppressed was necessary, in the case in order “to show-the existence of possible bias and prejudice... Id., at 317. 3 THE INSTANT CASE DeLawder’s counsel made clear from the onset of the case that the defense strategy would be to discredit the prosecuting witness by revealing her possible biases, prejudices, or ulterior motives in alleging that DeLawder •carnally knew her in the early morning of 20 January 1972. This strategy would be pursued by the tactic of proving that at the time of the alleged incident, she thought she was pregnant by someone else and claimed that DeLawder raped her because she was afraid to tell her mother she voluntarily had sexual intercourse with others. 4 To show that she thought she was pregnant at the time of the alleged encounter with DeLawder, it would be necessary to establish that she had engaged in prior acts of sexual intercourse. The ²²¹ proposed strategy was first disclosed when the State offered a motion in limine immediately before the start of the retrial.

The motion was that the defense refrain from any questions or any remarks in opening or closing statement as to the reputation of the prosecutrix for chastity. Defense counsel objected to the grant of the motion: “In regard to the first motion made by the State, we proffer that there are two witnesses, one which will testify that he had a conversation with this young lady two days after this incident allegedly occurred, at which time she told him she was pregnant by another man. Her mother, there will be testimony to the effect that her mother is very strict, not the type of person that a girl could come home and tell her mother she was pregnant. We have testimony from the girl’s best friend that this girl, [the prosecutrix], told the best friend that she was pregnant, and that either Stanley Hicks or Darrell McDonald was the father.

This supposedly occurred prior to the time this alleged rape took place.” The strategy was iterated and reiterated during vain attempts to pursue the point on cross-examination of the prosecutrix. On appeal, DeLawder puts it this way: “The Appellee [DeLawder] readily admits that in the case of statutory rape, consent is not an element of the crime and, therefore, the question of the chastity of the prosecutrix is entirely immaterial and evidence related thereto should be excluded. Rau v. State, 133 Md. 613 (1919). However, at the trial of this case Appellee was not offering evidence to show consent or chastity of the prosecutrix, but was attempting to adduce evidence directly relating to the prosecutrix’ credibility and the veracity of her testimony.

The attempts by defense counsel to cross-examine the prosecutrix in ²²² this case and his proffers to the Court throughout the course of the trial indicate that evidence of her prior conduct was not introduced ‘to show prior acts of sexual intercourse . . . (but) to show motive on the part of (the prosecutrix), and that she lies about these things,’ . . . and that she had made prior accusations of statutory rape against other individuals. . . . While this type of evidence necessarily involves the prior sexual conduct and chastity of the prosecutrix, its purpose goes beyond this issue to the issue of the credibility of