Bonds v. State

• Decision Date: 03 March 1982
• Docket Number: No. 686,686
• Citation: 442 A.2d 572,51 Md.App. 102
• Parties: Rodney BONDS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 102

51 Md.App. 102

442 A.2d 572

Rodney BONDS v. STATE of Maryland.

No. 686.

Court of Special Appeals of Maryland.

March 3, 1982.

Michael R. Braudes, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on the brief, for appellant.

Stephen Rosenbaum, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., of Maryland, William A. Swisher, State's Atty. for Baltimore City, and Edwin O. Wenck, Asst. State's Atty., for Baltimore City on the brief, for appellee.

Argued before LISS, COUCH ^* and BISHOP, JJ.

COUCH, Judge.

Rodney Bonds, the appellant, was convicted, in a bench trial in the Criminal Court of Baltimore City, of second and third degree sexual offenses and unnatural and perverted practices against an 11-year-old female victim. On appeal he presents the following questions:

1. Was appellant denied a fair opportunity to defend against the charges?

2. Was the evidence sufficient to support the conviction?

3. Did the trial court err in admitting into evidence four issues of Penthouse magazine?

4. Did the trial court err in ruling that (the victim) was competent to testify?

The acts upon which the indictment was based were alleged to have occurred continually during the period July 1, 1979 through March 10, 1980 at Bonds's home during weekday evenings and weekends. Thereafter, Bonds moved the court to order the State to furnish him with a bill of particulars, pursuant to Md.Rule 730, specifying the dates and times of the alleged acts. The court did so. However, the State's bill of particulars merely named three dates that "(stood) out in the complainant's memory as dates she visited the Defendant." The State's position was that it was unable to specify other dates because it did not have such information.

At trial the prosecutrix testified that the acts occurred continually from July, 1979 to March, 1980. However, the State produced no evidence that the acts occurred on any particular day except for the testimony of the prosecutrix that the last act occurred on Saturday, March 1, 1980. Her testimony was that she had been dropping hints to her mother about Bonds's alleged activities, "but she never really picked them up." On Sunday, March 2, 1980, she asked her mother "how you have babies and stuff" and her mother testified that she "told her about the sperm and the egg, and whatever." Then on Monday, March 3, she asked her mother, "Do I have to tell you everything that ever happens ....?" As a result of this conversation, the prosecutrix first made the allegations that Bonds engaged in the acts for which he was charged. The prosecutrix's mother then asked when was the last time such an act occurred. The prosecutrix answered that such occurred the preceding Saturday.

In defending against these charges, Bonds denied that such acts ever took place and attempted to prove his whereabouts on the three days the State specified in its answer to his bill of particulars. On the specific date that the prosecutrix testified that such acts took place, around dinnertime on March 1, 1980, Bonds testified that he was in Hagerstown for most of the day, then returned home around 4 p. m. Both he and his wife testified that they were at home alone after that time. Bonds attempted to prove his whereabouts for the other two days specified by the State but could not be so specific as he was about the March 1 date.

I

Was the appellant denied a fair opportunity to defend?

The appellant argues that he was denied a fair opportunity to defend the charges against him. He bases this contention on the principle that an accused has the constitutional right to be informed of the accusation against him to prepare his defense. The law in this area is clear. Article 21 of the Declaration of Rights states, "That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence ...." In State v. Canova, 278 Md. 483, 498-99, 365 A.2d 988, 997-98 (1976), the Court of Appeals stated:

"It was early noted by this Court that '(c)ertainty to a reasonable extent, is an essential attribute of all pleadings, both civil and criminal, but is more especially necessary in the latter, where conviction is followed by penal consequences.' ... In State v. Lassotovitch, 162 Md. 147, 156, 159 A. 362, 366 (1932), we explained:

'Every charge or accusation, whether at common law or under statute, must include at least two elements: First, the characterization of the crime; and second, such description of the particular act alleged to have been committed by the accused as will enable him to properly defend against the accusation. In statutory crimes, where the statute includes the elements necessary to constitute a crime, the first of these requirements is gratified by characterizing the offense in the words of the statute; the second requires such definite and specific allegations as reasonably to put the accused on notice of the particular act charged, to enable him to prepare a defense and plead the judgment in any subsequent attempted prosecution.'

Even if the charging document employs the statutory words, this does not mean that 'it is unnecessary to allege such facts in connection with the commission of the offense as will certainly put the accused on full notice of what he is called upon to defend, and establish such a record as will effectually bar a subsequent prosecution for that identical offense... However, it is clear that an indictment which charges the accused with the act prohibited by the statutory language, and nothing more, would be fatally defective in failing to allege such other facts as would enable the accused to prepare his defense.' Id. at 150, 159 A. at 363. The rule regarding the description of the statutory offense in the language of the statute 'has reference simply to the definition and characterization in legal terms of the criminal offense to be alleged in the indictment. It does not affect the requirement that the indictment should sufficiently identify the specific charge intended to be preferred.' Id. at 154, 159 A.2d at 365." (Footnote omitted.)

Although a description of the acts for which the appellant was charged does not appear in the indictment, he was made aware of them prior to trial and no objection on this basis was made below, nor does he raise it here. Therefore, this issue is not before us. Md.Rule 1085.

The question before us is simply whether the appellant was sufficiently apprised of the charge against him so that he had a fair chance to defend himself. Neither the indictment nor the bill of particulars limited the accusation to any particular date. There is no Maryland case law which requires, and the applicable statute, Md.Ann.Code art. 27, § 461 et seq., does not require, that in such a case as this the State must plead and prove that the offense occurred on a specific date at a specific time. We refuse to impose any such requirement.

The only authority appellant cites in support of the proposition that the State must plead and prove the exact time of the alleged sexual offense is People v. McCullough, 38 Cal.App.2d 387, 101 P.2d 531 (1940). In that case, the appellate court ordered a new trial because it found that there were uncertainties or inconsistencies in the victim's testimony and it was undisputed that the victim was told what to say by her mother. Id. at 389, 101 P.2d at 533. The court also stated that, "Such exactness might not be necessary if the story told by the prosecutrix found corroboration in other facts or circumstances, but such is not the case here." Id. In the case at bar, the victim's testimony was neither inconsistent nor was it alleged that she was told what to say by her mother. Her testimony that she had been in the appellant's home alone with him was corroborated by his own testimony. In any event, even assuming, arguendo, that McCullough held what the appellant argues it held, but see People v. Stangler, 18 Cal.2d 688, 692, 117 P.2d 321, 323 (1941); People v. Ridout, 154 Cal.App.2d 669, 674, 316 P.2d 396, 400 (1957); People v. Schultz, 49 Cal.App.2d 38, 43, 120 P.2d 893, 895 (1942), we do not find it persuasive and our research has not found any other courts that have been persuaded by it either.

We recognize there are many times when it is impossible for the State to determine the exact date and time that any crime was committed. Therefore, sometimes specificity as to the exact time and date of the crime alleged is impossible to establish. To establish a rule that would allow a criminal defendant to demand such specificity by raising an alibi defense would thwart justice and, in our view, is not required by either the Maryland or United States Constitutions. See U.S.Const., amend. V and XIV.

Maryland Rule 711 a provides, in part, "A charging document shall contain a concise and definite statement of the essential facts of the offense with which the defendant is charged, and as particularly as possible, the time and place the offenses occurred." (Emphasis added.) Thus, the State is required to be as precise "as possible;" if it is impossible to be precise as to the exact date and time, it is not therefore foreclosed from prosecution. To give any other meaning to Rule 711 a would render the words "as possible" nugatory. A well-known canon of statutory construction dictates that a statute should be construed so as to not make any of its words meaningless. Baltimore Building and Construction Trades Council, AFL-CIO v. Barnes, 290 Md. 9, 15, 427 A.2d 979, 982 (1981).

The defendant who is charged with committing a crime, although the State cannot specify its exact date, is still protected by the requirement that the trier of fact must find him guilty beyond a reasonable doubt. We think that in many cases the trier of fact's determination of whether the defendant is guilty beyond a reasonable...