Brooks v. State

• Decision Date: 08 December 1982
• Docket Number: No. 352,352
• Parties: Douglas M. BROOKS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 285

53 Md.App. 285

452 A.2d 1285

Douglas M. BROOKS v. STATE of Maryland.

No. 352.

Court of Special Appeals of Maryland.

Dec. 8, 1982.

Gary W. Christopher, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and M. Sam Brave, Asst. State's Atty. for Baltimore City on the brief, for appellee.

Argued before MORTON, LISS and WILNER, JJ.

LISS, Judge.

On December 9, 1980, Douglas M. Brooks, appellant, was charged by indictment in the Criminal Court of Baltimore with rape in the first and second degrees, robbery, and lesser included counts. He pleaded not guilty and elected a jury trial. On January 20, 1982, after a trial, the jury returned verdicts of guilty of robbery and first degree rape. No verdict was returned on the count charging second degree rape. Sentences were imposed and appellant noted this appeal. He raises the following issues to be determined by this Court:

I. Whether the evidence was sufficient to support appellant's conviction for first degree rape?

II. Whether the trial judge abused his discretion in refusing to instruct the jury as requested by appellant as to the following:

A. Having instructed the jury that the State bore no burden to disprove appellant's alibi, did the court err in refusing to give the alibi instruction requested by appellant?

B. Did the court err in refusing to instruct on the principal of reasonable doubt in the manner requested by appellant?

C. Did the court err in refusing to instruct the jury on the ease of making and the difficulty of defending against the charge of rape?

D. Did the court err in refusing to give appellant's "dual susceptibility" instruction?

The victim in this case testified that at approximately 8:30 p.m. on October 21, 1980, while walking home from classes at Morgan State University in Baltimore City, she encountered a man on Cold Spring Lane whom she later identified as the appellant. She testified that the man approached her, identified himself as a student at Coppin State College, and inquired as to where he might catch the number 64 bus. The victim explained that she "didn't know where it is," and the two of them continued to walk toward her apartment, which was several blocks away. When they arrived, the man asked if he might use the telephone to call a taxicab. She agreed and allowed him in to the kitchen to use the telephone while she hung up her coat. He told her the cab would arrive within a few minutes and she allowed him to wait inside while she talked on the telephone with a friend. The conversation lasted approximately five minutes. After she completed the call, she walked past the man and he touched her thigh. She requested that he leave immediately. The man suddenly hit her with his fist twice in the face and said, "Well, take your clothes off." She complied, but pleaded with him, trying to "talk him out of whatever he had in his mind." He told her to shut up and motioned like he was going to strike her again. He then forced her onto the couch and forced her to have intercourse with him. After several minutes, he asked the victim if she had any money and she gave him five dollars and some change. He then told her to get dressed and she complied. The man then got dressed and forced her to leave the apartment with him. As they walked down the steps, the victim "jumped away from his arm and ran down the steps and started banging on the door at the bottom of the steps." The man fled the scene and the victim returned to her apartment and locked the door. The victim's roommate returned home at approximately midnight and convinced her to call the police. The victim was in a "highly nervous state" with a "red eye" which, as time progressed, became black. A police officer took a description of the assailant from the victim and then transported her to City Hospital, where the examining physician found evidence of recent sexual intercourse.

Sergeant Margaret Waters was assigned to the case and was told by the victim in a telephone conversation on October 27, 1980, that while on her way to visit her dentist on October 25, she observed her assailant working in a liquor store at a nearby shopping center. On November 3, Sergeant Waters went to the liquor store and ascertained that appellant was an employee there. On November 12, she showed the victim an array of seven photographs, and from that array she positively identified appellant's photograph as being a photograph of her assailant. Earlier, on November 3, Sergeant Waters and the victim examined student photographs on file at Coppin State College but were unable to find anyone resembling the assailant. Sometime after the photo identification, the victim was riding home on a bus when she saw her assailant walking down the street.

Appellant was arrested on November 19, 1980. He and his girlfriend, with whom he lived, testified on his behalf. Appellant denied attacking the victim or that he had ever seen her prior to her appearance in court. He had been unable to reconstruct exactly where he had been on October 21, 1980, and his girlfriend had no particular recollection of his activities that day. They both testified, however, that appellant worked every day from 8:00 a.m. until 5:00 p.m., that he returned home regularly no later than 7:00 p.m., and during the time he lived with his girlfriend he never otherwise left the house for more than ten or fifteen minutes.

I.

Maryland Code (1957, 1982 Repl.Vol.) Article 27, § 462(a) defines first degree rape as follows:

(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 or threat of 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.

Appellant initially contends that the evidence was insufficient to support his conviction for first degree rape. He argues that the instant case is factually similar to Mayes v. State, 50 Md.App. 628, 440 A.2d 1093 (1982). In Mayes, the defendant grabbed the victim on a public street in daylight hours, struck her in the face when she screamed, put his arm around her and dragged her about 25 feet into a wooded area where he raped her. No evidence was adduced at trial concerning the state of mind of the victim nor of any specific threats of bodily harm.

In the instant case, the victim was attacked at night in her own apartment after the assailant gained admittance by a ruse. The victim had no opportunity to escape or seek assistance. The victim was a virgin and was obviously helpless and at the mercy of the alleged rapist. The uncontradicted evidence was that she was struck in the face twice by the attacker and that additional blows were threatened if she did not accede to her attacker's wishes. The blows to the face were sufficiently severe to cause substantial bruises. The blows combined with the threats of continued assaults were, we conclude, more than enough to create an actual apprehension of serious and imminent bodily injury. The evidence was sufficient to raise a jury question as to the guilt or innocence of the appellant of the crime of first degree rape.

IIA.

Appellant urges that the trial court erred in refusing to grant the appellant's request for a specific alibi instruction to the jury. Maryland Rule 757 b provides in pertinent part as follows:

The court may, and at the request of any party shall, give those advisory instructions to the jury as correctly state the applicable law.... The court need not grant any requested instruction if the matter is fairly covered by the instructions actually given.

At trial, appellant's defense was that the victim had mistaken him for someone else and that he was not present at the scene of the rape and robbery. In order to establish an alibi, Jacqueline Martin, appellant's girlfriend, was called to testify. According to Ms. Martin, the appellant was living with her at the time of the crime. She testified that although she did not remember the night in question specifically, appellant never, in all the time they had lived together, left the house in the evening for more than ten to fifteen minutes. Appellant offered basically the same testimony.

The trial court gave the following instruction on alibi:

Now, also in this case there is some testimony from the Defendant and his witness, the Defendant's witness, concerning alibi. An alibi is a legitimate, legal and proper defense. An alibi of an accused, proceeding as it does on the idea that he was elsewhere at the time of the commission of the crime does, if believed, preclude the possibility of guilt. But all the evidence of a criminal case is to be considered together and the jury may not merely weigh the evidence relating to the alibi and determine from that alone whether there is reasonable doubt of guilt. An accused is entitled to acquittal if the alibi testimony, when taken into consideration with all the other evidence in the case, raises a reasonable doubt of guilt. The State is not obligated to disprove an alibi.

Counsel for the defendant excepted to the instruction as given and requested the trial judge to give the following additional instruction:

The presence of the Defendant at the time and...