SHOEMAKER v. STATE
No. 203, September Term, 1961.
Court of Appeals of Maryland
Decided May 1, 1962.
228 Md. 462 | 180 A.2d 682
Because the question of contributory negligence will doubtless be in issue on any new trial, we have gone into that matter quite fully in this opinion.
For the error in the instructions as to the burden of proof on that issue the judgment is reversed.
Judgment reversed, with costs, and case remanded for a new trial.
The cause was argued before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.
James R. Scullen for the appellant.
Thomas W. Jamison, III, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and William L. Kahler, State‘s Attorney for Prince George‘s County, on the brief, for the appellee.
BRUNE, 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
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
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, Evidence (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;
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
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 mother2 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
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 (
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 the jury, stated that a defendant convicted with a recommendation could be pardoned. A second case (State v. Martin, 92 N. J. L. 436, 106 A. 385) produced a
In California in cases tried before a jury where the penalty may be either death or life imprisonment, the jury determines which the penalty shall be. Prior to 1957 reference to parole was permissible in argument or in instructions of the court as relating to the penalty, but not in determining guilt. People v. Barclay, 40 Cal. 2d 146, 252 P. 2d 321; People v. Riser, 47 Cal. 2d 566, 305 P. 2d 1, 11; People v. Linden, 52 Cal. 2d 1, 338 P. 2d 397, 409. (We suppose that such a distinction may have been difficult to make effective in practice.) In 1957 a statute was enacted which provided for separate determination of guilt and of punishment, the former to be made first. (
Provisions by which a jury may limit the punishment so as to prevent the imposition of the death penalty in first degree
In Pennsylvania, which did not have a statute similar to those in Georgia or New Jersey, which influenced the more recent decisions above cited, or similar to the 1957 California Act, the same result has been reached in a first degree murder case, where the trial court, in answer to an inquiry from the jury as to the eligibility of the defendant for parole, stated that there could be no parole, but that a pardon could be granted or a sentence could be reduced by the Pardon Board. This answer was held to be “well calculated to lead the jury to believe that if it resolved a reasonable doubt of defendant‘s guilt against him, the Board of Pardons would make a timely correction * * *.” Comm. v. Mills, 350 Pa. 478, 39 A. 2d 572, 576.
See also Midgett v. State, 216 Md. 26, 37, 139 A. 2d 209, dealing with a communication from the court to the jury with regard to the sentence. And see Annotation on Possible Pardon, 35 A.L.R. 2d 769, dealing with responses by the court to inquiries by the jury.
Because of the peculiar provision of the
In State v. Little, 228 N. C. 417, 45 S. E. 2d 542, a conviction was reversed because of an argument by the prosecutor to the effect that there could be an appeal, that the defendant could also go to the Governor for clemency, and that only sixty per cent of the persons convicted of capital offenses were
Reaching a similar result is Broyles v. Comm., 267 S. W. 2d 73 (Ky. Ct. of Appeals), where a conviction was reversed even though the trial court admonished the jury to disregard remarks of the prosecutor relating to parole. Cf. People v. Sherwood, 271 N. Y. 427, 3 N. E. 2d 581, involving the possibility of application for executive clemency as a means of salving the jury‘s conscience if it convicted the defendant. Cf. also People v. Johnson, 284 N. Y. 182, 30 N. E. 2d 465, where the prosecutor commented on the defendant‘s right of appeal and the state‘s lack thereof, and People v. Esposito, 224 N. Y. 370, 121 N. E. 344, a similar case. To like effect, see Crow v. State, 33 Tex. Crim. Rep. 264, 26 S. W. 209. See also State v. Kaempfer, 342 Mo. 1007, 119 S. W. 2d 294, where reference to parole was held improper, but the error was cured by an admonition from the court.
In the instant case the prosecutor‘s request (to which the jury acceded) that the death penalty be not imposed, for practical purposes (even though not theoretically), took the case out of the class of cases in which the jury had any function in fixing the penalty. In such circumstances we deem the opinion of the Supreme Court of Florida in Blackwell v. State, 76 Fla. 124, 79 So. 731, quite apposite. There reference to possible future action of the pardon board and to the defendant‘s right of appeal were held improper and grounds for reversal. Also holding reference to parole improper are People v. Klapperich, 370 Ill. 588, 19 N. E. 2d 579 (reversible error); and People v. Kircher, 333 Ill. 200, 164 N. E. 150 (error cured by admonition of trial judge). These cases, we believe, accord with the weight of authority referred to at the outset of our consideration of this phase of the case. Many cases may be found through the citations contained in the general works there referred to.
In the present case we think it clear that the argument based upon parole was improper, and that the jurors “were likely to have been * * * influenced to the prejudice of the accused,” (Kellum v. State, 223 Md. 80, at 88, 162 A. 2d 473,
Since the case must be remanded for a new trial, we have already expressed our opinion on the evidence question which is likely to recur, and we shall comment briefly on the other objections to the State‘s Attorney‘s argument, which also might recur.
The reference to the alleged horrors of death in the gas chamber had no place in the argument, nor did the reference to the baby. Both of these seem to have tended to hold out apparent mercy with regard to the death penalty as a means of aiding in securing a conviction without capital punishment. We find no error in the statement with regard to the possible penalty. The appellant relies wholly on
We find no error under our decisions in that portion of the State‘s Attorney‘s argument in which he expressed his belief in the defendant‘s guilt. It appears to have been based upon the evidence in the case and hence was permissible. Riggins v. State, 125 Md. 165, 93 A. 437; Apple v. State, 190 Md. 661, 666-67, 59 A. 2d 509; Cicero v. State, 200 Md. 614, 92 A. 2d 567.
Judgment reversed, the costs to be paid by the County Commissioners for Prince George‘s County; and case remanded for a new trial.
HAMMOND, J., filed the following dissenting opinion.
I dissented from the reversal in this case because to me the probability that there was any prejudice to the defendant in the remarks of the State‘s Attorney as to parole was, on the record, so slight as to be almost nil.
The State‘s Attorney, Blair Smith, said to the jury in the early part of the opening argument, referring to the State: “[W]e carry the burden of proof in every criminal case, and it never shifts. We must prove everything beyond a reasonable
There was then an objection by counsel for the defendant, which was overruled, and the State‘s Attorney continued, telling the jury that after a convicted man has served one-third of his term: “[I]t shall be the duty of the parole board to bring this man up for consideration for parole. So after six and a third years this man must come up for consideration for parole” (emphasis added), and then said: “[I]f you recommend ‘without capital punishment’ the court has no alternative than to give him from eighteen months to twenty years.” This was all that was said on the matter of sentence in the opening argument.
The State‘s Attorney did no more than tell the jury the law of Maryland, a State where the jury is the judge of both the law and the facts, and his statements were neither incorrect nor inaccurate. His suggestion was that there would have to be consideration of parole, not that parole necessarily would be granted.
When the defense counsel made his appeal to the jury, he said that in deciding whether or not the accused had committed the crime, they must consider that he might possibly be executed or “interred in a prison or penitentiary for a good many years, if not the rest of his natural life.” He then said: “But this boy is at the bar of justice. If you find him not guilty you send him home to his wife and child a penitent man who has learned a very bitter lesson * * *. You either want to incarcerate him for a long number of years or you want to send him home to his wife. It is a cute trick for Mr. Smith to say
The closing argument for the State was made by an Assistant State‘s Attorney, Mr. Smith having been excused at the close of his agrument to try another case. The Assistant State‘s Attorney said, after commenting on the defense counsel‘s argument and referring to the facts: “Basically, of course, in considering the guilt or innocence of anyone, you do not consider as an element of the crime as to what his penalty may be. Mr. Smith told you he was not asking the supreme penalty. And I think that is because she was not permanently mutilated physically. * * * and this was not an extremely violent crime. So if I were in your position, when I would come out I would have a finding of guilty, and say ‘without capital punishment,’ because I don‘t think that this is the type of case that merits the death penalty. Even in rape we have different degrees of severity, and that is why the law is so elastic. But primarily, the penalty is not for your consideration. It is all right that you should know what is involved. You can get as little as eighteen months, or you can get up to twenty years.” (Emphasis added.)
It would seem clear that such emotional appeal to the jury on the possible shortness or length of sentence as there was in the opening argument for the State and the argument of the defense counsel offset each other. The closing argument of the State made it crystal clear to the jury that the State‘s contention was that the matter of the penalty was not for the jury to consider, but only the question of guilt or innocence, although it was proper for the jury to know the minimum and maximum sentence that could be imposed.
I can see no prejudice to the defendant in what transpired and would affirm the judgment and sentence appealed from.