Brooks v. State

Decision Date16 January 1975
Docket NumberNo. 331,331
Citation24 Md.App. 334,330 A.2d 670
PartiesBoyd Raymond BROOKS, Jr. v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland
Stephen A. Tarrant, Assigned Public Defender, Bel Air, on the brief, for appellant

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Edwin H. W. Harlan, Jr., State's Atty. for Harford County, Peter C. Cobb and John A. Goodman, Asst. State's Attys. for Harford County, on the brief, for appellee.

Argued before POWERS, GILBERT and LOWE, JJ.

LOWE, Judge.

The prosecuting witness, a girl of twenty-one years, was ravished by an apparent sadist who entered her automobile at the point of a gun. In the face of a knife brandished by When she awoke she was face down on the ground, in great pain and hardly able to swallow. What clothes there were remaining on her had been cut, ripped and violently disheveled. Her pierced earrings were missing and a pendent she had been wearing was subsequently found tangled in her hair. Her neck, head and body were a mass of bruises, cuts and abrasions. '. . . I lay there on the ground because I couldn't stand up. I felt like somebody had jumped up and down on my back. My whole body ached. I laid there and I was like whining.' She subsequently found that a large 'X' had been carved into her forehead.

him as she drove, she submitted to his instructions. After raping her thrice, he forced her out of the car, bent her over its trunk and committed three acts of sodomy. She was then forced to her knees by his hands on her shoulders and around her throat. She was forced to commit fellatio, whereupon she lapsed into unconsciousness-thankfully, notwithstanding she was choked into that oblivious state.

A jury presided over by Judge Albert P. Close of the Circuit Court for Harford County, convicted Boyd Raymond Brooks, Jr. of rape, kidnapping, assault with intent to maim, and assault and battery. The consecutive sentences imposed by Judge Close totalled 80 years imprisonment. Appellant appealed. We affirm.

EQUAL PROTECTION

Appellant first claims that the rape statute, Md.Code, Art. 27, § 461, denies him equal protection of the law in violation of the Fourteenth Amendment of the Constitution of the United States and abridges his equality of rights because of sex, Article 46 of the Declaration of Rights of the Maryland Constitution.

Although appellant questions the constitutionality of the rape 'statute,' the statute itself simply establishes the penalty for the common law crime of rape. We will nonetheless accept appellant's general proposition that judicial interpretation has treated rape as a masculine crime. Other than as a principal in the second degree, Clark As the Supreme Court pointed out in Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253-254, 30 L.Ed.2d 225, a case dealing with sex discrimination:

and Marshall, Crimes, (7th ed.), § 8.10; cf., Mumford v. State, 19 Md.App. 640, 313 A.2d 563, a female can only be the victim of rape, not the perpetrator. This is true notwithstanding the penalty statute's use of the term 'person' without distinction as to sex. Hazel v. State, 221 Md. 464, 157 A.2d 992.

'. . . this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways . . . (It) does, however, deny . . . the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation . . .." (Citations omitted).

That only females may be raped is nothing short of a physiological reality, and it is equally clear that the object of the statute is to protect them from that eventuality. Like the Wisconsin courts, we

'. . . do not feel called upon to engage in a dissertation of the physiological, medical, sociological and moral problems as they relate to a woman subjected to such a possible pregnancy and those same problems as they relate to a potentially unwanted child.' State v. Ewald, 63 Wis.2d 165, 216 N.E.2d 213.

In our view, protection of females from rape is both a legitimate and essential legislative objective. Since only males can perpetrate that crime as principals in the first degree, the limitation of culpability to males constitutes a rational classification directly related to the objective of the criminal penalty. 'Normally, a legislative classification will not be set aside if any state of facts rationally justifying it is demonstrated to or perceived by the courts.' United States The equality of the sexes expresses a societal goal, not a physical metamorphosis. It would be anomalous indeed if our aspirations toward the ideal of equality under the law caused us to overlook our disparate human vulnerabilities.

v. Maryland S. S. Ins. Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 17-18, 27 L.Ed.2d 4. Surely, the state of facts in a rape situation, most sordidly demonstrated by the case at bar, rationally justify the sex classification at issue. Both the Wisconsin and Arizona courts are in accord, Ewald, supra; State v. Kelly, 111 Ariz. 181, 526 P.2d 720; though we hardly need precedent to resolve so strained an argument.

DECEASED WITNESS'S TESTIMONY

In a preliminary hearing on a pre-trial motion to suppress evidence, appellant received an advisory opinion that if he proffered a transcript and sound record of testimony given at a bond hearing by an alibi witness who was killed before trial, such proffer would be denied.

'THE COURT: Then there is a motion to dismiss the indictment, which is denied.

There is a motion to suppress identification, which is denied.

'There is a motion to suppress certain statements. These are statements not only of the defendant, I believe, but also statements that were made by a deceased person by the name of Elizabeth Zellman, sometimes called Betty Zellman.

MR. TARRANT: I didn't have a written motion. My plan was-

THE COURT: You had an oral motion. At least we heard testimony with regard to that and arguments.

MR. TARRANT: Well, if it please the Court, my plan would be, as part of my case, to proffer the testimony to the Court, outside the jury's presence, and then the Court can rule on it.

THE COURT: Well, we will preliminarily have advised you that I would not permit this testimony MR. TARRANT: And the statement she made to Cpl. Hoopes.

to come in. That involves a statement made by her to Trooper Dahl, and also a transcript of the-of a bail hearing in the District Court.

THE COURT: That is right, with regard to the polygraph examination.' (Emphasis added).

The evidence was not offered during the trial of the case. We think that the appellant waived this proffer by failing to offer it during trial, under the same reasoning we applied in Townsend v. State, 11 Md.App. 487, 275 A.2d 191, cert. denied, 262 Md. 750; and Jones v. State, 9 Md.App. 455, 265 A.2d 271, cert. denied, 258 Md. 728. In those cases motions were made before trial to exclude evidence and denied after an evidentiary hearing. In those cases when the evidence was offered at trial it was received without objection. There we held that the question of admissibility of the evidence was not before us. We reach the same conclusion here under Md.Rule 1085. The judge's phraseology indicated that he was treating the ruling on the proffered motion as advisory only. In no way did it preclude appellant from preserving his proffer by properly submitting it during trial. 1 It should not pass without notice that counsel himself spoke in terms of indefinite future intentions, '. . . my plan would be, as part of my case, to proffer the testimony to the Court, outside the jury's presence, and then the Court can rule on it.' (Emphasis added). There is nothing to indicate that appellant was restricted from making the proffer, nor does the record show that understanding by appellant.

THEOLOGICAL UPLIFT

During cross-examination the court permitted a minister to sit near the prosecuting witness who had, shortly before 'MR. TARRANT: Well, I move for a mistrial, if your Honor please, on two grounds. First of all, because of the fact that the prosecuting witness almost fainted in the presence of the jury. I think it has been prejudicial to the defendant and I think that he is thereby unable to receive a fair trial from the jurors. The second ground for the motion is that the court has permitted or is permitting the Reverend Jennings to lend assistance to the witness while she is on the witness stand. And I know of no rule which allows the Court to permit such assistance from a third person.

luncheon recess 'virtually fainted after being removed from the courtroom.' Following an afternoon recurrence, the court permitted the family minister who had been 'counseling her since the date of this incident' to sit near her. Appellant moved for a mistrial which was denied by the court:

THE COURT: Well, let me just say this in connection with that, with that objection. I am-

MR. TARRANT: Motion for mistrial.

THE COURT: Motion for mistrial. With regard to the second ground, this person is not by any stretch of the imagination authorized to give any assistance in testimony of this witness. He is there in the event she again becomes physically impaired, perhaps in the sense that she begins to faint, and is really there to hopefully encourage her by his presence only, to keep her strength. With regard to the mistrial, because, this person virtually fainted in front of the jury, there is no guarantee that she will, in the presence of some other jury, not have this certain same condition occur, and it is unfortunate, but the Court will deny the request for a mistrial.'

At the conclusion of the victim's testimony the court, sua sponte delivered a cautionary instruction...

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