Caldwell v. State

• Decision Date: 08 January 1976
• Docket Number: No. 73,73
• Citation: 349 A.2d 623,276 Md. 612
• Parties: Arthur Fee CALDWELL v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 612

276 Md. 612

349 A.2d 623

Arthur Fee CALDWELL v. STATE of Maryland.

No. 73.

Court of Appeals of Maryland.

Jan. 8, 1976.

Stephen A. Tarrant, Asst. Public Defender, Bel Air, for appellant.

Albert Gallatin Warfield, III, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ LEVINE, Judge.

This case raises an important question concerning the admissibility of evidence in a rape case, where consent has been made an issue, of the reputation of the prosecutrix for chastity. We are asked to decide whether a witness may be permitted to testify that the prosecutrix has a reputation for chastity or lack of chastity in a community other than the one in which she resides. The circuit court ruled that evidence of reputation for chastity is limited to evidence of reputation in the neghborhood where the prosecutrix resides and therefore excluded, upon the state's objection, certain evidence offered by appellant. The Court of Special Appeals affirmed in an unreported per curiam opinion. Arthur Fee Caldwell v. State (No. 725, September Term, 1974, filed June 4, 1975). For the reasons stated herein, we hold that in a trial for rape where consent is at issue, the character of the prosecutrix for chastity or lack of chastity may be shown by proof of a general reputation for that trait in any substantial community of people among whom the prosecutrix is well-known.

A jury found appellant, Arthur Fee Caldwell, guilty of rape and assault and battery upon two women, Melody Tetrick and Madlyn Dennison. The evidence showed that on the night in question the two prosecuting witnesses and one Linda Novetski began hitchhiking from the One-Two-Three Club, a private night club at the Aberdeen Proving Ground military base where they had spent the evening, to their homes in Dundalk, about 30 miles distant. The testimony tended to show that the three women accepted a ride in appellant's car which was also occupied by two of his companions, one male and one female.

On the way, the group stopped at the apartment of the boyfriend of the female companion of appellant and all were invited in for a drink. Linda Novetski declined the invitation and hitchhiked home. The prosecuting witnesses, after remaining a short time, also began to leave and were then either forced or persuaded to return to the apartment where several attacks are alleged to have occurred.

I

While denying that he ever had sexual relations with Melody Tetrick, appellant admitted having had intercourse with Madlyn Dennison but denied the use of any force. The sole defense, then, raised by appellant to the charge of raping Madlyn Dennison was her consent to the act.

In support of his claim, appellant offered the testimony of one Douglas Weeks, a U.S. Army sergeant and the night manager of the One-Two-Three Club during the period preceding the alleged attacks, and two other soldiers who had been stationed at Aberdeen and had often visited the club. Had he been permitted to do so, Sergeant Weeks would have testified that the prosecuting witnesses were known to him and that they were well-known at the One-Two-Three Club among the 22 or so members of the staff and among others who frequented the club. He would have further testified that the prosecuting witnesses had been coming to the club for a period of four years and that he was aware of their reputation for chastity among those who knew them by their association with the club. He would have testified that their reputation for chastity was 'bad.' The two other witnesses offered by the appellant would have testified similarly. None of the witnesses knew anything of the prosecuting witnesses' reputations in the community in which they resided.

There are several grounds upon which evidence of particular character traits of a witness may be admitted, that is, where the special probative value of such evidence outweighs its inherently prejudicial nature. Thus, the character of a rape-complainant for chastity or the lack thereof has, in a majority of common law jurisdictions, been held admissible as tending to show that the act of intercourse, if committed at all, was with the consent of the prosecutrix. See 1 J. Wigmore, Evidence § 62 (3d ed. 1940); Annot., 140 A.L.R. 364, 380-82 (1942). So also in Maryland, the character of a rape-complainant for chastity has been held admissible as bearing on the issue of consent. Johnson, Jr. v. State, 232 Md. 199, 207, 192 A.2d 506 (1963); Giles v. State, 229 Md. 370, 379-80, 183 A.2d 359 (1962), appeal dismissed, 372 U.S. 767, 83 S.Ct. 1102, 10 L.Ed.2d 137 (1963); Humphreys v. State, 227 Md. 115, 121-22, 175 A.2d 777 (1961).

The most common method for proving character generally has, at least until now, ¹ been to show the general reputation of the individual in that regard. Wentz v. State, 159 Md. 161, 166, 150 A. 278 (1930); see C. McCormick, Evidence § 44 (2d ed. 1972). At issue here is the traditional restriction placed on such reputation evidence that the testimony must be of the reputation of the person in the community in which he resides. Markley v. State, 173 Md. 309, 320, 196 A. 95 (1938), see Allison v. State, 203 Md. 1, 8, 98 A.2d 273 (1953); Bonaparte v. Thayer, 95 Md. 548, 560, 52 A. 496 (1902); Sloan v. Edwards, 61 Md. 89, 103 (1883); Knight v. House, 29 Md. 194, 198 (1868).

The rule restricting the locality of reputation evidence to the community in which the person resides has received much criticism. The underlying purpose of any rule governing the admissibility of such evidence, of course, should be to assure that the reputation evidence received is that which best indicates the true character of the individual. It seems obvious that the character of a person is best known among those who know him best, those with whom he has had the most frequent and revealing contacts. The restrictive rule finds its origin in the assumption that those who best know the character of a person, indeed the only ones having a valid basis for assessing the character of a person, are those who know him in the community in which he resides. This assumption, however valid in the period preceding the Industrial Revolution when the restrictive rule developed, can hardly be said to have retained its validity in the modern era in light of increasing urbanization and advances in communication and transportation. As Dean Wigmore noted:

'In the type of community where the ordinary persons's home is under the same roof as his store or workshop, or where the stores, workshops, offices, and homes are all collected within a small village or town group, and one's working associates are equally the nighbors of one's home, there is but one community for the purpose of forming public opinion, and there is but a single capacity in which the ordinary person can exhibit his character to the community. In other words, he can there have but one reputation. But in the conditions of life today, especially in large cities, a man may have one reputation in the suburb of his residence and another in the office or the factory at his place of work . . ..' 5 J. Wigmore, Evidence § 1616 (3d ed. 1940).

Because the best evidence is no longer to be found, necessarily, in the reputation one enjoys in the place of residence, a great number of jurisdictions have abandoned the restrictive rule. Annot., 112 A.L.R. 1020, 1022-27 (1938). The New York Court of Appeals, in rejecting the restrictive rule, observed that:

'In large municipalities . . . where people now very largely dwell in tenements and apartment houses, a man may be entirely unknown in the...