White v. State

CHASANOW, Judge. Richard Junior White and his cousin, Adrian Raymond White (the Whites), were charged with kidnapping a woman in Anne Arundel County, raping her in a van, and robbing her of four dollars she had in her purse. At the trial, the Whites wanted to put on the witness stand a man who they said would testify that the victim had previously offered or exchanged sex for drugs. The trial court refused, saying that such testimony would violate Maryland’s rape shield statute, Maryland Code (1957, 1987 Repl.Vol.), Article 27, § 461A.

The statute reads: “(a) Evidence relating to 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 ⁶³⁰ 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 (8) 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. (b) In camera hearing.—Any evidence described in subsection (a) of this section, may not be referred to in any statements to a jury nor introduced at trial without the court holding a prior in camera hearing to determine the admissibility of the evidence. If new information is discovered during the course of the trial that may make the evidence described in subsection (a) admissible, the court may order an in camera hearing to determine the admissibility of the proposed evidence under subsection (a).” In an unreported opinion, the Court of Special Appeals affirmed the Whites’ convictions.

We granted the Whites’ petition for certiorari to consider whether the trial court correctly applied the rape shield law in excluding the proffered testimony. We believe that the trial court properly exercised its discretion and, therefore, affirm the judgments below. At trial, the victim, whom we shall identify only as “Nicole,” testified that on the evening of December 19, 1988 she was at the home she shared with her fiancé and their son. At about midnight, when the rest of the household was asleep, she went to a local phone booth at the side of the street to make some calls.

While she was at the phone, a white van drove by, and one of its occupants asked her if ⁶³¹ she knew where any crack cocaine could be found. Nicole told them she did not “do” drugs, and the van drove off. A short distance away, the van made a U-turn and came back. This time, according to Nicole, the men jumped out and pulled her into the vehicle so harshly that she dropped the beer she was drinking, lost one of her shoes, and urinated in her pants.

The pair told her they would not kill her if she kept quiet. After the van stopped, the men, for one to two hours, repeatedly raped her on the vehicle’s back seat. The men also took four dollars they found in her purse and released her near the spot where they had grabbed her. Nicole returned home and banged on the door.

She told her fiancé that she had been raped by two men. Police later found Nicole’s shoe in the street near the phone. The Whites admit that they were in a van with Nicole that night, but their version of what happened differs dramatically from hers. Richard White testified that he picked up his cousin, Adrian, and drove to the Pioneer City area in Anne Arundel County to buy a video game from a friend of Adrian’s.

He dropped Adrian off at the friend’s house and drove away, planning to return to his home in Baltimore City. According to Richard, Nicole, whom he did not know, approached the van and asked for a ride to Freetown, another county neighborhood a few miles to the east. After he told her he couldn’t take her there, Nicole asked to be driven to Meade Village, a community next to Pioneer City; Richard agreed. As they approached Meade Village, Nicole asked Richard for some cocaine.

She then ducked down in the back of the van, telling Richard that her boyfriend’s brother lived in the area. Nicole then made “suggestive moves” and offered her body to Richard if he would buy her some cocaine. He declined the offer, saying he had a fiancée, two children, and a fear of AIDS. Eventually, Richard said, he bought about $35 worth of cocaine from two men, using some of his money and some ⁶³² that Nicole had put toward the purchase.

He made the drug buy, he claimed, because he felt sorry for Nicole. She consumed the cocaine, and he asked her if she still wanted to go to Freetown. Now she wanted to go back to Pioneer City. Nicole said she wanted more cocaine, and she resumed making “suggestive moves” and grabbed Richard’s penis.

This time, Richard got excited but told her he wasn’t going to engage in any sex because he didn’t “bring any protection.” Again, Richard said, they came across the two men who had sold him the drugs earlier. This time Adrian was there arguing with the men. Adrian got in, and the van pulled away. They drove for about five or ten minutes and stopped in a wooded area.

They never found any more cocaine, and eventually Nicole asked to be let out at a school near Pioneer Village. There was no sexual activity other than Nicole’s “suggestive moves” and the grab at his penis, according to Richard. He said Nicole was mad about not getting any additional drugs and told them that her boyfriend would be angry if he knew that she was using cocaine. Eventually Nicole got out near a school close to the spot where she had been picked up.

Adrian White testified that, after he swapped the video game he had just acquired for what he thought was cocaine but turned out to be ground macadamia nuts, he began arguing with the fraudulent vendors. During the argument, the white van driven by Richard returned. He got in, he said, and saw Nicole. Adrian described her as “more hyper than upset”; she said she wanted cocaine, but they could not give her any.

They dropped her off at a school. Defense counsel wanted to put a final witness on the stand, a man named Luther Moore. According to the proffer, “He is a witness who is familiar with [Nicole and the area], and he’s going to testify that he has previous occasions when he has known that [Nicole] has asked people to provide cocaine in return for sex.” When the State objected, citing the rape shield law, defense counsel told the court that the evidence was being offered under the excep ⁶³³ tion covering evidence supporting a claim that the victim has an ulterior motive in accusing the defendant of a crime. Defense counsel observed that the testimony’s relation to sexual activity was “only peripheral in that she was going to provide her body in return for drugs.” When the trial judge then asked whether Nicole had offered sex to Luther Moore, defense counsel expanded his proffer: “He’s going to testify that he has had instances when she participated in sex with him for drugs.” The judge sustained the prosecutor’s objection.

The case was submitted to the jury, which found the Whites guilty of first and second degree rape, assault with intent to rape, assault, kidnapping, and theft. The trial court sentenced each of the Whites to life imprisonment for rape, one year consecutive for theft, and ten years consecutive for kidnapping. Convictions for the remaining charges were merged into the first degree rape convictions at sentencing. A three-judge panel later amended the sentences to make the ten years for kidnapping to run concurrently with the life sentences.

The sole issue before us is the propriety of the trial court’s refusal to admit the proffered defense testimony of Luther Moore. Rape shield statutes have been enacted in a number of states throughout the country. One purpose of the statute is to protect rape victims from unscrupulous defense attorneys who try to shift the focus away from their clients and onto the victims. 1 See Stephens v. Morris, 756 F.Supp. 1137, 1142 (N.D.Ind.1991) (“The principal reason for the rape shield statutes is to shield victims of sex crimes from ⁶³⁴ general inquiry into their past sexual conduct and to keep these victims from feeling that they are on trial.”); Lucado v. State, 40 Md.App. 25, 35-39 , 389 A.2d 398, 404-06 (1978); Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn. L.Rev. 763, 791-98 (1986); McCormick on Evidence, § 193 at 573-74 (E. Cleary 3d ed. 1984); 5 L. McClain, Maryland Evidence, § 412.1 at 449-50 (1987).

Another reason to protect rape victims from harassment on the witness stand has been to encourage more victims to report the crimes and help bring rapists to justice. In analyzing its rape shield law, Mississippi’s Supreme Court recently observed that the rule’s purpose is “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.” Goodson v. State, 566 So.2d 1142, 1149-50 (Miss.1990).

See also State v. Patnaude, 140 Vt. 361 , 438 A.2d 402, 407 (1981) (“The restrictions on the admissibility of certain evidence imposed by the rape victim shield law will encourage reluctant rape victims to come forward and report the crime, encourage these same victims to testify in court against their assailant, and produce more prosecutions and convictions, and thus be a greater deterrent.”); People v. Khan, 80 Mich.App. 605 , 264 N.W.2d 360, 364 (1978) (Before the enactment of Michigan’s rape shield statute, “countless victims, already scarred by the emotional (and often physical) trauma of rape, refused to report the crime or testify for fear that the trial proceedings would veer from an impartial examination of the accused’s conduct on the date in question and instead take on aspects of an inquisition in which complainant would be required to acknowledge and ⁶³⁵ justify her sexual past.”); Johnson v. State, 146 Ga.App. 277 , 246 S.E.2d 363, 365 (1978) (“[R]ape shield laws are intended generally to protect the complaining witness, thereby encouraging the reporting and prosecution of rapes____”); Finney v. State, 179 Ind.App. 316 , 385 N.E.2d 477, 480 (1979) (A legitimate state policy for rape shield laws “is that they will aid in crime prevention because victims, knowing that the statute protects them from the embarrassment of the introduction of evidence of previous sexual activity, will be encouraged to report rape offenses.”); V. Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Col.L.Rev. 1, 54 (1977) (In addition to protecting the victim’s privacy and sparing her undue harassment, rape shield laws “encourage the victim to report the assault and assist in bringing the offender to justice by testifying against him in court. Insofar as the laws in fact increase the number of prosecutions, they support the government’s aim of deterring would-be rapists as well as its interest in going after actual suspects.” (Footnote omitted)). In 1978 Congress enacted Fed.R.Evid. 412, which was intended to accomplish the same purposes as its state counterparts, particularly “to protect rape victims from the degrading and embarrassing disclosure of intimate details about their private lives.” Statement of Representative Mann, quoted in 2 J. Weinstein and M. Berger, Weinstein’s