Avery v. State
| Decision Date | 30 June 1972 |
| Docket Number | No. 537,537 |
| Citation | 292 A.2d 728,15 Md.App. 520 |
| Parties | John L. AVERY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and William T. Wood, Asst. State's Atty. for Montgomery County, on the brief, for appellee.
Argued before ANDERSON, MORTON and CARTER, JJ.
The appellant John Lawrence Avery, M. D., was convicted by a jury in the Circuit Court for Montgomery County of assault and battery upon Eileen K. Hall and sentenced to five years in prison by Judge Joseph M. Mathias. The last three and one-half years of the sentence were suspended. He appeals from this judgment contending that the trial court committed numerous prejudicial errors as hereafter related. The indictment consisted of four counts charging the appellant with attempted rape, assault with intent to rape, assault and battery, and assault, respectively.
The evidence adduced by the State showed that the victim was a twenty-year-old single girl who had been a patient of the appellant for about two years prior to the incident. On January 16, 1971, the appellant conducted part of a physical examination of Miss Hall in his office. Rather than have her come back, he suggested that he After the appellant left, she called a male acquaintance who lived in the same apartment house and informed him what had occurred. She and her friend then went for a ride and dinner. During the evening she decided to have a blood test made to determine the contents of the injection and about 1:30 a. m. went to the Holy Cross Hospital for that purpose. While at the hospital, she related the incident to two policemen who were there in connection with another case. They advised her to report the matter to the Detective Bureau in Montgomery County, which she did later that same day. In reporting the incident, Miss Hall protested to Lieutenant Robertson that no one would take her word against that of a doctor. The Lieutenant instructed her to keep up her contacts with the Upon receipt of this information, Robertson made arrangements to have a closed-circuit television camera concealed in a shoe box in Miss Hall's apartment, number 202, and a monitor installed in the adjoining apartment, number 203. The purpose of the installation was to conduct a police surveillance of the appellant's contemplated visit to Miss Hall's apartment. This purpose was fully understood and agreed to by both Miss Hall and her neighbor. The appellant arrived at Miss Hall's apartment at 8:02 p. m. on February 25. At that time the television equipment was operating with Lieutenant Robertson, Corporal Miller, Detective Gibson (a woman), Dr. Reap, an Assistant Medical Examiner for Montgomery County and the neighbor all looking at the monitor.
could stop by her apartment on his way to a medical meeting and complete the examination. On the afternoon of January [292 A.2d 735] 25, he telephone her and stated he would stop at her apartment that evening and requested that she have her bed pulled out and have on her bed attire so he could finish the examination. When he arrived, they sat at a table in the living-dining room of her efficiency apartment. During the course of his examination, he inquired how she was sleeping and she replied not too well. When he asked if she would like something to help her sleep, she did not object and while they were still seated at the table, he gave her an injection in her arm. Immediately, she lost consciousness. When she awakened she was lying on her sofa-bed with the appellant lying beside her. Her clothing from her waist down had all been removed except her underpants which were around her ankle. When she realized the appellant was sexually molesting her, she was shocked and frightened but kept her eyes closed so as not to indicate to him that she was conscious for fear he might seriously harm her. At that time the phone rang whereupon the appellant arose from the sofa-bed and said to her, 'Your phone is ringing.' She then sat up and replaced her clothing. He said to her, 'You really had a bad dream,' advised her he had finished his examination, and departed doctor and advise him of all future developments. Later that day the appellant telephoned her and requested that she call him in two weeks concerning the effect of the medication he had given her. She advised Lieutenant Robertson of this call and was instructed to call the appellant as the appellant had suggested. Accordingly, she did so on February 8 and 22. On February 22 the appellant prescribed additional medication and advised her he could give her some of the tablets in his office or he could phone the prescription in to the drugstore, whichever she preferred. She replied whatever was easiest for him would be satisfactory to her. He then suggested that since he was going by her apartment that week on his way to the hospital, he could deliver the medicine to her apartment and inquired what night would be convenient. They agreed on February 25 at 8:00 p. m. Promptly after this arrangement had been made, Miss Hall called Lieutenant Robertson and advised him of the development.
When the appellant arrived, he sat on the couch beside Miss Hall. He then brought out a small package of pills and gave her some instructions as to their use. He advised her that the pills might disturb her sleep and inquired how she was sleeping. She said not too well. He opened his bag, brought out a hypodermic needle and asked her about giving her something to help her sleep.
(This was the same question he had posed to her on January 25.) She indicated that whatever he determined was best would be agreeable to her. The appellant then gave her an intravenous injection in her arm and almost immediately she lost consciousness. The five persons who witnessed the event on television all testified to substantially the same facts. Their testimony showed that a few seconds after the injection, Miss Hall's head began nodding back and forth and she fell against the appellant. Thereupon the appellant placed his arm around her, pulled her to him, and put his hand on her breast. When she had entirely stopped moving, he leaned her back against the couch, stood up, removed his coat, and sat back down on the couch. He then pulled her onto his lap and placed his left hand between her legs in the area of her genitalia. He then removed her clothing from the waist down. At this point Lieutenant Robertson and Corporal Miller left the monitor and upon a signal from Dr. Reap went to apartment 202 and entered with a key which Miss Hall had previously given them. Upon entering the apartment they observed Miss Hall in an unconscious condition on her back on the couch with the appellant on top of her. Lieutenant Robertson identified himself and placed the appellant under arrest. Thereafter Dr. Reap and Detective Gibson entered apartment 202, assisted Miss Hall in dressing, and Dr. Reap took a blood sample from her arm for testing.
The appellant did not testify. He offered the medical records of Holy Cross Hospital which showed that a complete vaginal examination of Miss Hall was conducted at that institution at about 12:30 a. m. on January 26. This examination disclosed no evidence that sexual intercourse had occurred in the immediate past. He also produced an expert television engineer who testified that placing the television camera in question in a shoe box and operating it for several hours prior to 8:00 p. m. on February 25, as was done in this case, would tend to diminish the clarity of the picture. He further stated that the picture produced by the television equipment used in
this instance was inferior to the commercial type of television used in homes. The appellant also produced a number of friends and neighbors who testified to his good character and reputation.
Since both contentions 1 and 2 concern pre-indictment publicity, they will be considered together. The appellant's first contention is that the court erred in denying his pre-trial motion to dismiss the indictment because the pre-indictment publicity was so great as to preclude the grand jurors from making an independent decision and therefore deprived him of due process. His second contention is that the court erred in denying his motion for production of the grand jury minutes concerning the return of the indictment. He alleged he was entitled to these minutes in order to ascertain if there was any voir dire examination of the grand jurors to determine whether they were disposed to indict the appellant, irrespective of the evidence produced before them, because of the pre-indictment publicity.
The evidence showed that subsequent to a preliminary hearing on March 17, 1971 and prior to the indictment on March 29, 1971, articles concerning the appellant's conduct, as charged in the indictment, appeared in several newspapers having a general circulation in Montgomery County. The articles in substance recited the facts shown by the State's evidence concerning the crime charged, as heretofore related, and made a brief reference to an incident between Miss Hall and the appellant that occurred prior to February 25. Reference was also made to a trial in 1966 where the appellant had been acquitted of charges of abortion and assault on a patient. There is no showing that any of the grand jurors who returned the indictment against appellant were apprised of the information contained in the newspaper articles. Even assuming they were so informed, the contention is without merit. In Coblentz v. State, 164 Md. 558, at page 570, 166 A. 45, at page 50, 1 the Court of Appeals said:
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