Baby v. State

• Decision Date: 09 February 2007
• Docket Number: No. 225, Sept. Term, 2005.,225, Sept. Term, 2005.
• Citation: 916 A.2d 410,172 Md. App. 588
• Parties: Maouloud BABY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

916 A.2d 410

172 Md. App. 588

Maouloud BABY v. STATE of Maryland.

No. 225, Sept. Term, 2005.

Court of Special Appeals of Maryland.

February 9, 2007.

Michael R. Malloy (Nancy S. Forster, Public Defender, on brief), for appellant.

Sarah Page Pritzlaff (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel DAVIS, KENNEY and CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

DAVIS, J.

The initial trial of appellant, Maouloud Baby, on charges of first-degree rape and related offenses, held in the Circuit Court for Montgomery County on August 23-27 and 30-31 and September 1, 2004, ended in a mistrial due to a hung jury. At a retrial in the Circuit Court for Montgomery County (Scrivener, J.), held on December 13-17 and 20-21, 2004, he was convicted of first-degree rape, first-degree sexual offense and two counts of third-degree sexual offense. On February 17, 2005, Baby was sentenced to a term of fifteen years imprisonment, with all but five years suspended and five years probation upon his release. From the convictions and sentences, appellant files this appeal presenting the following three issues for our review:

I. Whether the circuit court erred by refusing appellant's request to instruct the jury that it should return a verdict of not guilty of rape if it was persuaded by the evidence that the complaining witness consented to sexual intercourse, but withdrew her consent after penetration;

II. Whether the circuit court erred by denying appellant's request to remove a juror who indicated that he had read a newspaper article about the case; and

III. Whether the circuit court erred in denying appellant's motion in limine to exclude expert testimony in reference to "rape trauma syndrome."

For the reasons set forth, infra, we shall reverse the judgments of conviction and remand for further proceedings.

FACTUAL BACKGROUND

At trial, the complaining witness, J.L., testified that, at the time of the incident at issue, she was an eighteen-year-old student at Montgomery College. On the night of December 13, 2003, accompanied by her best friend, Lacey, she went to the McDonald's Restaurant located in Montgomery Village. Appellant, Lacey's younger brother and her boyfriend at the time were all friends.

When J.L. and Lacey were about to leave, appellant, who was sixteen years old at the time, prevailed upon J.L. to give him and a friend, Mike, a ride in her Chevrolet Cavalier, which she had owned for approximately seven months. Mike and another person identified as an "Hispanic boy" were passengers in the back seat of the car. When the group arrived at its destination, a community center believed by them to be the site of a party, they discovered there was no party. The Hispanic boy alighted from the vehicle and left the group.

During the return trip to McDonald's Restaurant, the complainant complied with appellant's request to park briefly near an apartment complex, thereafter proceeding back to the restaurant. The complainant complied with appellant's second request to stop at another location in a townhouse development near the McDonald's Restaurant, where all of the passengers alighted from J.L.'s car and proceeded toward a clearing between two townhouses. As appellant and Mike smoked marijuana, they discussed the possibility of getting a hotel room, noting that the boys were too young, but the girls could get a room.

Upon their arrival at McDonald's, Lacey left the group to join a friend, after which the complainant agreed to drive appellant and Mike to a residential neighborhood where she parked her car. The complainant complied with the request of appellant and Mike to sit between them on the back seat of her car. Mike put her hand down in his pants and asked her "to lick it." Appellant then asked her to expose her breasts; when she did not comply, he fondled her breast with his hand.

After J.L. acquiesced to the boys' insistence that they stay ten more minutes, she found herself on her back with appellant removing her jeans and Mike sitting on her chest, attempting to place his penis in her mouth. After she told them to stop, the pair moved her around so that her body was up in appellant's lap as he held her arms and Mike tried to insert his penis in her, but briefly inserted it into her rectum by mistake. After Mike again tried to insert his penis in the complainant's vagina, appellant inserted his fingers in her vagina. After appellant exited the car, Mike inserted his fingers, then his penis into her vagina.

Mike then got out of the car and appellant got in. Appellant told J.L. that it was his turn and, according to the complainant, the following transpired:

Q. [ASSISTANT STATE'S ATTORNEY]: And what else did he say?

A. He, after that we sat there for a couple seconds and he was like so are you going to let me hit it and I didn't really say anything and he was like I don't want to rape you.

* * *

Q. So when [appellant] said I don't want to rape you, did you respond?

A. Yes. I said that as long as he stops when I tell him to, then —

Q. Now, that he could?

A. Yes.

* * *

Q. Did you feel like you had a choice?

A. Not really. I don't know. Something just clicked off and I just did whatever they said.

* * *

Q. Now when you told [appellant] if I say stop, something like that, you have to stop. What did he do after you spoke those words?

A. Well he got on top of me and he tried to put it in and it hurt. So I said stop and that's when he kept pushing it in and I was pushing his knees to get off me.

Q. You were on your back and he was on top of you?

A. Yes.

Q. Did he stop pushing his penis into your vagina?

A. Not right away.

Q. About how long did he continue to put his penis into your vagina?

A. About five or so seconds.

Q. And then what happened?

A. And that's when he just got off me and that's when Mike got in the car . . . .

J.L. testified that appellant continued for five or ten seconds, but she did not believe that he had ejaculated. She testified that, as the trio proceeded back to McDonald's, appellant asked her to "jack him off," but, although she refused, she did give him her telephone number. After obtaining Lacey's cell telephone number from appellant, J.L. called her and said she was okay and would be there (at McDonald's) in a couple of seconds. Mike parked the car across the street from McDonald's and hugged J.L. before he and appellant departed.

Thereafter, the complainant drove Lacey to Shoppers Food Warehouse, where they met J.L.'s mother and then proceeded to Lacey's house after helping J.L.'s mother to shop. Upon arriving at Lacey's house, the complainant responded in the negative to inquiries about what was wrong from Lacey's brother, but related what had happened to Lacey's mother. After the police were called, J.L. went to the hospital to be examined.

Testifying on behalf of the State was Boston College Professor of Nursing Ann Burgess, whose expert testimony was offered to explicate to the jury the rape trauma syndrome, a condition associated with post-traumatic stress disorder. Appellant had filed a motion in limine to exclude her testimony.

The following hypothetical was presented to Burgess by the prosecutor:

Here's the hypothetical. Please, Doctor, assume that you have a young woman who was socializing with her best friend and she met two male acquaintances through other social contacts and she thought both of these people were harmless.

Assume now that she found herself alone in a parked car with these two young men. Assume please that she was tricked into going into the backseat of the car, supposedly to have a conversation, look at a book or a magazine. However, assume that instead of having that conversation, the two men grabbed her, held her down and forced her to submit to multiple sexual acts, including sexual intercourse.

Dr. Burgess attributed complainant's failure to resist and failure to immediately report the incident and giving her home telephone number to her assailant to behavior consistent with the rape trauma syndrome.

Lacie S. testified that she and J.L. dismissed the suggestion by appellant and Mike that they get a hotel room as "normal teen talk" and that J.L. had said that she told them to stop and they did not.

Forensic nurse examiner Tracey Eichelberger testified that her examination of the complainant on the morning after the alleged rape revealed a small laceration in the vaginal and in the anal area. Dr. Julia Lojoie, upon examination of medical photographs, described one of the lacerations as a centimeter long and the other as one and one half centimeters. Karolyn Tomarksky found no semen or sperm on vaginal and anal swabs taken from the complainant.

Appellant's testimony, although at variance in material respects from that of complainant, was surprisingly consistent. He was sixteen years old and a student in the eleventh grade at the time of the incident. The complainant agreed to drive appellant, Mike and a Spanish boy to a party. After the Spanish boy left them, they discovered there was no party. On their return trip, the complainant parked her car in a residential neighborhood and they all got out. Appellant and Mike smoked marijuana and suggested getting a hotel room, given that the girls were old enough to rent a room. When they began discussing sex, appellant produced three condoms. Lacey told the others that she did not want to accompany them.

After driving Lacey back to the McDonald's Restaurant, the complainant drove to a residential area and parked her car. J.L. climbed into the back seat between appellant and Mike, whereupon the latter put the complainant's hand in his pants. After the complainant refused appellant's request to expose her breasts, Mike asked appellant for a condom and told him to get out of the car. After waiting outside of the car for approximately fifteen or twenty minutes, Mike emerged from the car and said that he "just hit that," an expression connoting that he had...