Bailey v. State

• Decision Date: 10 August 1972
• Docket Number: No. 526,526
• Citation: 294 A.2d 123,16 Md.App. 83
• Parties: Edwin Howard BAILEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 83

16 Md.App. 83

294 A.2d 123

Edwin Howard BAILEY v. STATE of Maryland.

No. 526.

Court of Special Appeals of Maryland.

Aug. 10, 1972.

Karl G. Feissner, Hyattsville, with whom were William L. Kaplan, Thomas P. Smith, Andrew E. Greenwald, Fred R. Joseph, Walter E. Laake, Jr., and Feissner, Kaplan & Smith, Hyattsville, on the brief, for appellant.

James G. Klair, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., and Reginald W. Bours, III, Asst. State's Atty., for Montgomery County, on the brief, for appellee.

Argued before MORTON, MOYLAN and CARTER, JJ.

MOYLAN, Judge.

The perils of the open road became stark reality when three 'hippies' from Canton, Ohio, hitchhiking to a rock festival in Florida, caught a midnight ride in a station wagon occupied by three members of the Pagans motorcycle gang from Pittsburgh. One of the consequences of that bizarre odyssey from the Breezewood interchange of the Pennsylvania Turnpike to the Kenilworth Avenue exit of the Capital Beltway in Prince George's County was the conviction of the appellant, Edwin Howard Bailey, for rape ¹ by Judge Daniel T. Prettyman, sitting without a jury, in the Circuit Court for Worcester County, following the removal of the case ultimately from Montgomery County by way of an intermediate stopover in Talbot County.

The primary thrust, largely by insinuation, of a defense that produced some sixteen hundred pages of testimony was that Barbara Lynn Berkshire, a then unmarried twenty-one-year-old female, by having theretofore used (albeit infrequently) both marijuana and hallucinogenic drugs and by hitchhiking about the country in the unchaperoned company of two male friends, essentially outlawed herself from the protection of the laws proscribing rape.

The astute appraisal of Judge Prettyman reached the conclusion that Miss Berkshire did, indeed, place herself in a compromising predicament:

'. . . she did place herself in a most precarious position. You might say that if you were trying a civil case, she virtually assumed the risk of her position. She sets out, nearly at dark, in the snow, on a cold night from Canton, Ohio with two male companions who, to say the least, did not offer the appearance of a man in a gray flannel suit, and who had, over a period of time, like her, indulged in the use of dangerous or narcotic drugs, and she set out with them, with all of the equipment and all of the trappings, which would sustain them as persons who would live off the land, so to speak, in temporary shelter and, apparently, with the facilities to prepare their own food and without any visible means of support.

'To hitchhike to Washington knowing, of course, that when she offered herself on the highway with her two companions, that invariably, unless a very gratuitous circumstance arose, she would be riding with strangers of all types of dispositions, in all modes of transportation, and without her having any control over the way and manner in which the transportation was operated, the direction that it went, or any detours or by-passes that it might make, and not knowing what kind of equipment, weapons, or like instruments, would be available in the automobile, or not knowing the actual physical condition of the operator.

'Well, they arrived at Breezewood in the car with three drunken men, characterized so by the witnesses, which reeked of the odor of alcohol.

To say the least, again, these did not present themselves as men in gray flannel suits; but, apparently, two of them, from the photographs and the descriptions, were rather heavyset, burley types, and even the Defendant was supporting hair and moustache, and they didn't make him look particularly sensitive and, certainly, the other two looked far more bushy and rough, shall we say, than he did.'

Judge Prettyman, in evaluating the relative gravity of this rape in the spectrum of all rapes, appreciated further that the psychic injury Miss Berkshire suffered was less than might have been suffered by more sensitive and sheltered females just as he grasped that her male companions, Donald Shank and Bruce Malcuit, ² were less than heroic in defending her honor:

'I have reached the considered conclusion that neither Malcuit nor Shank cared a great deal whether Miss Berkshire had intercourse with these men or not, and I have reached the conclusion that they might be just as well satisfied that she did as though she hadn't. There isn't any other way to view the lackadaisical manner in which they approach this entire event. Secondly, I have reached the overall conclusion that this event was not near so serious in its impact upon Miss Berkshire, now Mrs. Malcuit, at the time as her two companions would have had the police authorities believe, or as they would now detail to us, and what I would determine righteous indignation, because I don't believe either one of them are devoted to upholding the law, or to seeing that the enforcement of the criminal law is encouraged or assisted.'

Judge Prettyman's realistic appraisal of the situation was reflected in his imposing a sentence of three years from the date of arrest. On the question of guilt, however, the nub of his decision and the ultimate retort to the broad counterattack of the defense was:

'. . . that no matter how loose the morals of a woman may be, she still enjoys the privilege of bestowing her favors upon those men of her own selection, and not upon others whom she does not select.'

A brief unfolding of the events of the evening and early morning of March 18-19, 1970, is necessary prelude to a consideration of the seven contentions raised by the appellant.

As of the afternoon of March 18, 1970, Malcuit and Shank were planning to hitchhike from their homes in Canton, Ohio, to a rock festival in Daytona Beach, Florida. Actually, they needed only to hitchhike as far as Washington, D. C., whence a friend was to drive them the rest of the way. Miss Berkshire had known both Malcuit and Shank for some months and had a romantic attachment toward Malcuit. That afternoon, the two males spontaneously proposed to her that she accompany them to Florida. Just as spontaneously, she agreed. Within an hour, she had packed a bed roll with a few necessaries and left a note for her parents. The journey began at about 4:00 p. m. with a friend dropping them off at the closest interchange of the Ohio Turnpike. Midnight brought them as far as the Breezewood interchange of the Pennsylvania Turnpike, from where Interstate 70 veered off to the southeastward and Washington.

An Oldsmobile station wagon stopped. The three travelers threw their bed rolls into its rear compartment. Malcuit and Shank climbed in admidships where the ultimate co-defendant Hornichak was seated. Miss Berkshire got in front between the appellant, who was driving, and the co-defendant Clokey. The three occupants had been drinking to some extent and continued to drink from cans of beer. Malcuit and Shank shared a can or two with them. Miss Berkshire did not partake.

The initial atmosphere was civil, if not convivial. The most significant conversation dealt with marijuana smoking. The hosts asked if the guests had any marijuana. They responded that they did not, although Shank was able to offer cigarette papers. Clokey then produced a package of marijuana, but it was too finegrained for rolling. Conversation then centered on improvising a pipe by punching holes in a certain fashion in a beer can. The effort came to naught. During the drive, several brief stops were made for roadside urination. For most of the trip, Miss Berkshire dozed.

Sometime between two and three o'clock, the mood changed abruptly when Clokey announced to the appellant that he had not had 'a train' in a long time. ³ The reference had ominous meaning for Malcuit and Shank, as well as for Miss Berkshire. Clokey then began making sexual advances toward her. She pushed him away. Shank admonished Clokey, 'Cool it. She's a good chick.' Clokey suddenly produced from the glove compartment a .25 calibre automatic pistol and even civility was at an end. He pointed it at Malcuit and Shank and ordered them to 'Keep cool.' He placed it against the head of Miss Berkshire and told her to do as she was told.

Clokey ordered her to the rear compartment of the station wagon. She and he both scrambled to it over the seats and between the rear passengers. Taking her dungarees off one leg, Clokey proceeded to rape her. He then asked Hornichak and the appellant whether they 'wanted any.' Hornichak declined. The appellant did not decline, stopped the station wagon, and exchanged places with Clokey. He then proceeded to rape Miss Berkshire. Almost immediately after he had finished, the station wagon arrived near the Kenilworth avenue exit of the Capital Beltway, stopped, discharged the three passengers and their equipment and drove on.

Miss Berkshire was in tears and distraught. A police call box happened to be nearby. Shank made repeated calls and finally got through to the State Police. Trooper Paul Svoboda got the call at 3:19 a. m. and responded at 3:27 a. m. He took the report of the rape, a description of the three men and their vehicle and the fact that they were eastbound on Route 495 and would probably be proceeding toward Washington via Kenilworth Avenue. He immediately broadcast a lookout to other police in the area.

The Legal Sufficiency of the Evidence

The factual discussion to this point is enough to demonstrate the shallowness of the appellant's contention that the evidence was legally insufficient to sustain the conviction. Whatever other defects might or might not inhere in the State's case, legal insufficiency as such was not one of them. The weight of the evidence and the credibility of the witnesses were for the trial judge. Weaver v. State, 226 Md. 431, 174 A.2d 76; Dunlap v. State, 1 Md.App. 444, 230 A.2d 690. Miss Berkshire, Malcuit and Shank all testified in elaborate detail to...