Tolen v. State

MOYLAN, Judge. As an appellate contention, the claim that evidence was unconstitutionally “suppressed” is enjoying a season in high fashion. This decision, and the Supreme Court opinion upon which it is based, will hopefully reduce that vogue. The appellants, Ira Tolen and Joe Louis Andrews, were convicted by a Prince George’s County jury, presided over by Judge Howard S. Chasanow, of first-degree rape and second-degree rape, respectively.

Upon this joint appeal, both appellants raise the following two contentions: 1) That the State denied them due process of law when it failed to preserve the blood and fluid specimens taken from the body of the prosecutrix; and 2) That the trial judge abused his discretion when he failed to grant a new trial on the basis of newly discovered evidence. The appellant Tolen alone raises two additional contentions: 3) That the trial judge erroneously refused to order a physical examination of the rape victim; and 4) That the trial judge unduly restricted the cross-examination of the rape victim. The appellants do not, and in good conscience could not, claim that the evidence was not legally sufficient to sustain the convictions. The rape victim was 19 years of age.

On December 6, 1982, she was waiting at a bus stop in Washington, D.C., when the two appellants pulled up in an ⁶²⁸ automobile. She recognized the appellant Andrews, who asked her if she wanted a ride. She accepted. The appellant Tolen was “passed out” in the back seat.

Andrews explained to the victim that he was going to take Tolen home. When the three reached an apartment complex in Prince George’s County, the appellants forced the victim from the car into a basement apartment. Inside the apartment, the victim was ordered to disrobe. She was raped by Tolen, with Andrews remaining in the bedroom during the course of the rape.

Moments later, someone knocked on the apartment door. The rape victim agreed to answer the door and to state that she was Tolen’s girlfriend and that the two of them had been arguing. When she answered the door, however, she ran out and “hysterically” reported to the police officer and maintenance man at the door that she had been raped. She was shortly thereafter taken to the Prince George’s General Hospital and examined.

Her story was well corroborated by no less than three neighbors. Bryant Barbee testified that at about 7 p.m. he heard “some beating and noises” in the apartment next door. About 15 minutes later, he saw another neighbor, Mrs. Palmer, come out and threaten to call the police if the noise did not stop. Both Thomas Palmer and Donna Palmer, husband and wife, testified that they called the police when they heard “high pitched” and “stressful” screams “apparently coming from the hallway.” When they stepped in the hallway to investigate, they saw the appellant Tolen struggling with a woman.

In response to the call from the Palmers, the police knocked on the door to Tolen’s apartment at 7:04 p.m. When no one answered, the officer left. He returned later, however, and contacted the maintenance man. When he knocked on the door the second time, at about 8:13 p.m., the rape victim ran out and reported the rape.

The responding officer, James Nowlin, described her as “hysterical” and “nervous” but testified that she did not appear to be intoxicated. Both Mr. and Mrs. Palmer, as ⁶²⁹ well, observed the rape victim rush out of Tolen’s apartment when the officer returned on the second occasion. Dr. Elias Gerth examined the rape victim at 10 p.m. that evening at the Prince George’s General Hospital. Her face was swollen and bruised and there was a small laceration on the right side of her nose.

He, however, found no clear evidence of genital trauma. Dr. Gerth testified that the rape victim’s blood was not tested for the presence of alcohol and that such tests are not normally conducted. Both of the appellants took the stand and acknowledged having been at the apartment with the rape victim. Both appellants testified as to an act of sexual intercourse between the rape victim and Tolen.

Their mutual defense, however, was that the act of intercourse was completely consensual. They testified that the victim had had several drinks. The rape victim, on the other hand, testified that she took only “two swallows” of liquor in the apartment and was “not intoxicated at all.” The maintenance man who went to the door with the policeman testified that the victim smelled of alcohol and that her speech was slurred. One of the neighbors testified that she “looked like she had been drinking” and that her eyes were “blurry.” The two appellants, moreover, testified that after the act of intercourse, the victim asked Tolen for money twice and for drugs two or three times.

The appellants now contend that the routine destruction by the hospital of the victim’s blood specimen denied them due process in that it denied them the opportunity to prove that the victim was either 1) under the influence of alcohol at the time of the alleged rape or 2) a user of drugs. With respect to the blood specimen (it is not even suggested how the preservation of the fluid specimen would have been material), the Rape Crisis Center of the Prince George’s General Hospital is not an arm of the prosecution. It was stipulated that specimens such as those taken in this case are “routinely” destroyed by the hospital staff ten days after they are taken. In ruling on the appellants’ ⁶³⁰ pretrial motion to have the indictment dismissed, Judge Chasanow found as a matter of fact: “[T]he evidence was clearly, it was destroyed as a routine part of the practice of the hospital by an independent, private facility.

Admittedly, the Rape Crisis Center is part of the hospital and there is an intimate contact with the police department. However, I don’t feel the routine destruction of specimens in any way should result in dismissal of the charges.” Under circumstances such as these, even to raise the spectre of unconstitutional suppression betrays either 1) a total failure to comprehend or 2) a stubborn refusal to comprehend the limited applicability of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and its progeny. The heart of the Brady decision was that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” 373 U.S. at 87 , 83 S.Ct. at 1196 . In explicating Brady, Moore v. Illinois, 408 U.S. 786, 794-795 , 92 S.Ct. 2562, 2567-2568 , 33 L.Ed.2d 706, 713 (1972), pointed out the three distinct components, all of which are necessary to the finding of a due process violation: “The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment.

Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence. These are the standards by which the prosecution’s conduct ... is to be measured.” In measuring the situation at bar, against this “tripartite standard stated in Moore,” Tobias v. State, 37 Md.App. 605, 626 , 378 A.2d 698 (1977), the appellants’ contention does not come remotely close to satisfying any one of these criteria, let alone all three. ⁶³¹ Even if we were to characterize the routine nonpreservation of medical specimens as “suppression,” the routine destruction was not at the hands of the prosecution or the police but was an accepted hospital administrative procedure. It is significant, moreover, that the destruction of the specimens did not occur “after a request by the defense” for their preservation or a right to examine them. In a situation far more favorable to the defense than the one here, it was nonetheless noted in Tobias v. State, supra, at 37 Md.App. 629 , 378 A.2d 698 : “It is important to note, however, that, for all practical purposes, the photograph in question may be deemed to have been ‘lost,’ and thus became unavailable, before the request for its production was made.” (Emphasis supplied).

In terms of what is “suppression,” moreover, United States v. Agurs, 427 U.S. 97, 103 , 96 S.Ct. 2392, 2397 , 49 L.Ed.2d 342, 349 (1976), characterized Brady as involving “the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.” What the unanalyzed blood specimen in this case might have revealed was no more known to the State than it was to the defense. There is no remote suggestion that the State feared what the undone analysis might have revealed and, therefore, deliberately chose not to know. Before a finding can be made that there has been an unconstitutional suppression, furthermore, there must be a subfinding as to “the evidence’s favorable character for the defense.” Moore v. Illinois, 408 U.S. at 794-795 , 92 S.Ct. at 2567-2568 . We have no way of knowing whether the unanalyzed blood sample, even in a peripheral way, would have been favorable to the defense or not.

In pointing out that mere uncertainty or speculation as to the quality of the “lost” evidence does not satisfy the rigorous requirements for a finding of unconstitutionality, United States v. Agurs, supra, at 427 U.S. 109 -110, 96 S.Ct. 2400 -2401, pointed out: “The mere possibility that an item of undisclosed information might have helped the defense, or might have affect ⁶³² ed the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” It is also required that the evidence in question be material. Generally speaking, this requires that the evidence be directly exculpatory and not of mere utility for impeachment purposes. As the Court of Appeals pointed out in State v. Giles, 239 Md. 458, 469 , 212 A.2d 101 (1965), vacated on other grounds, 386 U.S. 66 , 87 S.Ct. 793 , 17 L.Ed.2d 737 (1967): “Not only must the evidence withheld be admissible and useful, but it must be such, if it had been offered in evidence, as would be capable of clearing or tending to clear the accused of guilt — i.e., it must be exculpatory.” Even if the blood specimen had been preserved and even if an analysis of that blood specimen had shown that the rape victim was mildly or greatly intoxicated, that fact would not have exculpated the appellants. Interwoven with his findings that the appellants had available other modes of proving the intoxication they posited, were Judge Chasanow’s findings that the lost evidence in question, even if it had been favorable to the appellants, would only have gone to the peripheral issue of impeachment rather than being directly exculpatory: “Certainly, the defense feels the specimens and the exact content might have some value.

However, it is not as if this was again exculpatory. It would be impeachment evidence, and secondly, there is ample other testimony available, including physicians, nurses, other people, police that examined the victim that would be in a position to perhaps almost as accurately as a blood test, disclose whether in fact the victim was suffering from the effects of alcohol or some other intoxicating substance. So again, because it was part of a routine and not totally unreasonable policy of destroying samples by an independent agency, because the evidence is not directly exculpatory, at least according to Tobias , it doesn’t go directly to guilt or innocence, although again it may have something to do with impeachment value.” ⁶³³ Once again, United States v. Agurs, supra, at 427 U.S. 112 -113, 96 S.Ct. 2401 -2402, has provided a clear statement as to this materiality standard, even assuming that the other two necessary conditions for a finding of suppression have been satisfied: “The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt.

It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.” See also Younie v. State, 19 Md.App. 439, 459-461 , 311 A.2d 798 (1973), rev’d on other grounds, 272 Md. 233 , 322 A.2d 211 (1974); Ross v. Warden, 1 Md.App. 46 , 227 A.2d 42 (1967). Fatal, therefore, to the appellant’s claim that there was an unconstitutional suppression of evidence are our conclusions that 1) the State (prosecution or police) did not suppress or destroy anything; 2) nobody destroyed evidence following a defense request for its preservation; 3) there is no way of knowing or even surmising that the evidence would have been favorable to the defense; and 4) even assuming a favorable character to the defense, the evidence would not have been material, in that it had, at best, a peripheral utility for impeachment purposes and was not directly exculpatory.

The narrow issue before us, moreover, is the propriety of Judge Chasanow’s pretrial ruling that the indictments not be dismissed. Nowhere in the growing corpus of suppression cases, even where all of the criteria have been satisfied, is the dismissal of charges called for. At most, the defendant is awarded a new trial at which the exculpatory ⁶³⁴ evidence, earlier suppressed, may be introduced in his defense. As we pointed out in Powell v. State, 16 Md.App. 685, 692 , 299 A.2d 454 (1973): “Although there is authority that an accused who is prejudiced by reason of the suppression of exculpatory evidence can obtain a new trial, we are aware of no authority which says he is entitled to an acquittal.” A pretrial dismissal of charges would certainly be the functional equivalent of an acquittal.

Fortunately, such protracted and