Battle v. State
| Decision Date | 06 June 1980 |
| Docket Number | No. 159,159 |
| Citation | 287 Md. 675,414 A.2d 1266 |
| Parties | John BATTLE v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Michael R. Malloy, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.
Diane G. Goldsmith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.
Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
Prior to consideration of this case by the Court of Special Appeals, we granted the writ of certiorari on our own motion in order that we might address the issue of whether a trial judge improperly allowed a jury to separate after its deliberations had begun. 1 However, because we find that a confusing answer was given to an unclear question propounded by the jury, we shall be obliged to reverse and remand for a new trial without reaching this interesting question.
John Battle was charged with first degree rape, assault with intent to rape, and lesser included counts. He was convicted of assault with intent to rape by a Baltimore City jury.
On May 25, 1978, the victim, a forty-four year old grandmother employed by the Department of Social Services, visited an alcoholism clinic at Sinai Hospital. From there she proceeded to Pimlico Race Track. She parked her automobile at a nearby closed service station where appellant, John Battle, was in charge of parking. When she returned to her vehicle after the races she found that Battle had washed it. She informed him she did not have any money to pay him since the previous day (a Wednesday) was payday and she had not picked up her check. He suggested that she "drive (him) past home," informing her where he lived. When she told him she did not have enough gasoline, he provided a couple of dollars for that purpose. She said that enroute to his home there was discussion relative to "a radio that he had bought that he wanted to sell because he was never at home to listen to the radio . . . and he said he would let (the victim) have the radio at a reasonable price." She stated that she accepted his invitation to examine the radio.
Upon arrival at Battle's home she accompanied him upstairs to "his room . . . to see the radio," saying she trusted him because "he looked like a nice old man." Once upstairs, however, she claimed that the situation changed. She stated that he struck her, after which the record reflects:
He said, "I said, 'Sit down.' " I sat down. All of a sudden he got nasty; I sat down and he said, "Pull your clothes off," and I said, "You got to be kidding." He reached his hand in his pocket and pulled out a screwdriver with a black handle. I thought it was an ice pick, at that time it was very small, and he put it up against my head and told me to pull my clothes off; he said he would kill me because he killed one time and he said he would kill again.
She said because she was scared she took her clothes off and got in bed with him. From her testimony it is apparent that he effected penetration but that he did not ejaculate.
The victim testified that while she and Battle were thus engaged a persistent knocking came at the downstairs door. He went to answer it. She said that she went to a room across the hall where she poked her head out a window, called for help, and asked that the police be called. She stated:
I was getting ready to get out of the window on the roof and he came in and caught me and pulled me back in and hit me. He grabbed a keen stick and hit me across the back and butt.
After he had dragged her back into the bed, again disrobed and disrobed her, another alarm came at the door. While he was engaged in answering it she was able to throw something out a window to attract the attention of some nearby children. The police then came to her rescue.
Battle said the victim invited him to have sexual intercourse with her. He stated that he found her disrobed in his bedroom. He denied any sexual contact.
In the course of our discussion we shall develop such other facts as may be relevant to the points raised.
After a period of deliberation the jury addressed a written question to the trial judge. It read:
When a possible consensual sexual relationship becomes non-consensual for some reason, during the course of the action can the act then be considered rape?
(The word "possible" in the question was interlined.) The trial judge said she was not certain she understood the question. She added, " . . . but as interpreted it is where the original act of sex is by consent whether is it then possible the circumstances could change because of the victim's lack of consent after the original situation began as a consensual one . . . ". She inquired whether this was correct. The jury replied in the affirmative. The trial judge then said, "I will answer your question by saying, 'Yes, that it is possible for a situation to start out as consensual and then become a non-consensual one in the course of the event.' " She then went on to quote from Hazel v. State, 221 Md. 464, 157 A.2d 922 (1960), where Judge Horney said for the Court:
With respect to the presence or absence of the element of consent, it is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character. There is, however, a wide difference between consent and a submission to the act. Consent may involve submission, but submission does not necessarily imply consent. Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent. (Id. at 469, 157 A.2d at 925.)
She added:
It is not altogether clear as to what degree of resistance is necessary to establish the absence of consent; that is a question that you ladies and gentlemen would have to determine on the basis of the evidence that you have heard during the course of the trial.
Additional instructions were given relative to fear and resistance.
Counsel were asked whether they had any objection to the court's instruction. Although the response of defense counsel was not as specific an objection as one might prefer, we believe the sum total of his statement was to specify that the question and answer were unclear. He said:
In the question you related to during the course of the action you interpreted during the course of the answer you interpreted it from the question, during the course of the action as you interpreted it during the course of the intercourse, and the Court did not allude to that. I kind of speculate what the jury thought in their minds, I thought that it was wrong. The question, during the course of the action, I would say during the course of the action, one, a person is having intercourse, then during the intercourse of the action the person cannot claim and start screaming rape.
The State suggested that by the term "action" one did not know whether the jury was "talking about the whole chain of events, from the time the victim got to the parking lot" or whether the reference was to a time after the parties "got in the bedroom or maybe after they had sex."
Code Art. 27, § 462 at the time relevant to this event read in pertinent part:
(a) What constitutes. A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person and:
(1) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or
(2) Inflicts suffocation, strangulation, disfigurement, or serious physical injury upon the other person or upon anyone else in the course of committing the offense; or
(3) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or
(4) The person commits the offense aided and abetted by one or more other persons. ((Emphasis added.)) 2
Rape was a common law crime in Maryland prior to the enactment of this section by Chapter 573 of the Acts of 1976 pertaining to sexual offenses. Thus, it was the common law crime of rape which was before the Court in Hazel. However the present statutory requirement of "vaginal intercourse with another person by force against the will and without the consent of the other person" is an outgrowth of the definitions of rape at common law as set forth in Hazel. For example, 2 J. Bishop, Criminal Law § 1113 (8th ed. 1892) states, "Rape is the having of unlawful carnal knowledge, by a man of a woman, forcibly and against her will." Professor Bishop refers by footnote to statements on this subject by such learned authors as East, Coke, Hale, Hawkins, Blackstone, and Russell.
The authorities are unanimous in the view that consent subsequent to the act of intercourse will not prevent its being rape. For instance, 2 J. Bishop, op. cit. § 1122, states:
We have intimations that a consent given during any part of the intercourse will prevent its being rape. And certainly a consent after the assault, before the penetration, will have this effect. But as to the other question, the true view is believed to be that when the offense has been made complete by penetration, no remission by the woman or consent from her, however quickly following, can avail the man. And the Statute of Westm. 2 is express, that the liability to punishment shall remain "although she consent after." (Id. at 649.)
To like effect see, e. g., F. Bailey and H. Rothblatt, Crimes of Violence: Rape and Other Sex Crimes § 433 at 279 (1973); 2 W. Burdick, The Law of Crime § 484 at 235-36 (1946)("(I)n any case there can be no consent after the act, and the crime cannot be condoned by excusing or forgiving it."); ...
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