Cole v. State

Decision Date01 September 1989
Docket NumberNo. 1493,1493
Citation574 A.2d 326,83 Md.App. 279
PartiesPaul Martin COLE v. STATE of Maryland
CourtCourt of Special Appeals of Maryland

Ned Greenberg, Assigned Public Defender (Robert D. Dinerstein and Richard J. Wilson, Assigned Public Defenders of Washington, D.C., on the brief), for appellant.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both of Baltimore, and Thomas E. Hickman, State's Atty. for Carroll County, of Westminster, on the brief), for appellee.

Argued before GILBERT, C.J., and MOYLAN and ROBERT M. BELL, JJ.

MOYLAN, Judge.

The appellant, Paul Martin Cole, was convicted by a Carroll County jury of a sexual offense in the second degree. Upon this appeal, he raises the following three contentions:

1. That the evidence was not legally sufficient to sustain the conviction;

2. That the trial judge erroneously admitted as rebuttal evidence prior consistent statements made by the ten-year-old victim; and

3. That the trial judge erroneously denied the appellant's motion for a new trial after the discovery of allegedly exculpatory evidence.

On Saturday, October 29, 1988, the appellant was living with Barbara Stoffa, 1 the mother of ten-year-old Amy Stoffa. Amy testified that shortly after her mother left for work that day, she went into the bedroom to take the appellant a cup of coffee. The appellant told her to undress, got Vaseline from under the bed, put it on his penis and her anus, and engaged in anal intercourse.

There was corroborative testimony as well. Barbara Stoffa testified that on Tuesday, November 1, three days after the attack, her daughter complained to her of having been sexually assaulted. On the following morning, Barbara Stoffa took her daughter to a pediatrician, Dr. Anthony Vazzano. Dr. Vazzano testified that Amy related the incident to him in a way consistent with her testimony at trial. He further testified to discovering an anal cut consistent with the sexual abuse charged. After Dr. Vazzano reported the incident to the Department of Social Services, Mr. Charles Bosley, a Child Protective Services Worker at the Department of Social Services, conducted an investigation. On Thursday morning, November 3, he and Maryland State Trooper Carol Dorn interviewed Amy in the presence of her mother. Trooper Dorn testified that Amy described the offense that had occurred on the previous Saturday. Mr. Bosley also testified to the fact of Amy's complaint.

In terms of legal sufficiency, there was abundant evidence of the appellant's guilt to justify the trial judge's submitting the case to the jury.

A legally sufficient, prima facie case, however, is not necessarily the same as an ultimately persuasive case. Except for the observation of the anal tear by the pediatrician, all of the evidence of the appellant's guilt emanated from Amy herself, either through her trial testimony or through her versions of the incident given to 1) her mother; 2) Dr. Vazzano, the pediatrician; 3) Mr. Bosley, the social worker; 4) Trooper Dorn; and 5) Peggy Rock, her baby-sitter. The appellant took the stand in his own defense and denied totally any sexual involvement with Amy.

With the key issue before the jury clearly being a credibility battle between Amy and the appellant, the appellant sought to erode Amy's credibility by calling the social worker, Charles Bosley, as a defense witness. Mr. Bosley testified that Amy is mildly retarded and has a tendency to exaggerate in order to get attention. He testified further that he had been called upon on two other occasions to interview Amy about allegations that two other persons had sexually abused her. In the course of one of those other interviews, Mr. Bosley noted that Amy was not always to be believed and that one of the other alleged incidents was probably a dream.

The critical issue on this appeal revolves about the State's effort to rehabilitate the arguably impeached credibility of Amy. Four witnesses were called in rebuttal: 1) Barbara Stoffa, 2) Trooper Dorn, 3) Mr. Bosley, and 4) Peggy Rock, the baby-sitter. The appellant alleges that all four of these rebuttal witnesses were permitted to testify to prior consistent statements given them by Amy.

Although it is not fatal to the appellant's cause, he does exaggerate the number of incidents of alleged misuse of prior consistent statements. Barbara Stoffa's rebuttal testimony did not relate to the prior complaints made to her by Amy. She simply rebutted the appellant's assertion that the Vaseline jar used during the sexual abuse episode had been used by the appellant and Barbara Stoffa and placed under the bed for that purpose. The rebuttal testimony of Charles Bosley, moreover, consisted simply of Mr. Bosley's observation that, notwithstanding Amy's occasional tendency to "exaggerate," there had been factual support for one of her other complaints of sexual abuse.

As we approach consideration of the critical issue, therefore, the instances of allegedly erroneous use of rehabilitative testimony are reduced from four to two. That, however, does not compromise the forcefulness of the appellant's argument. The appellant urges that the prejudice is self-evident when one party's version of an incident is allowed to be repeated again and again. He argues that the repetitive retelling of the same story adds to its weight in the minds of its auditors. We agree that that is the probable impact.

Before being called upon to resolve the credibility battle between two diametrically opposed versions of the critical event in this case, the jury heard the appellant's version, denying complicity, one time. The jury heard Amy's version, charging complicity, seven times; 1) through Amy's testimony on the witness stand, 2) through Amy's complaint to her mother, recounted in the State's case-in-chief, 3) through Amy's complaint to Dr. Vazzano, recounted in the State's case-in-chief, 4) through Amy's complaint to Mr. Bosley, recounted in the State's case-in-chief, 5) through Amy's complaint to Trooper Dorn, recounted in the State's case-in-chief, 6) through Amy's complaint to Trooper Dorn, recounted for a second time in rebuttal, and 7) through Amy's complaint to Peggy Rock, recounted in rebuttal.

There could, of course, be no legitimate complaint as to Amy's version told upon the witness stand. The appellant has not, moreover, mounted a challenge to the four repetitions of Amy's earlier complaints delivered in the course of the State's case-in-chief. The appellant's argument is that the sixth and seventh repetitions, under the false guise of rehabilitative testimony, were the straws that broke the camel's back. They were doubly prejudicial, he argues, not only because of their drum-like repetitive cadence, but because they also allowed the State the undeserved debater's "edge" of getting in the last word. We agree. If we find error, it will not be harmless. Newman v. State, 65 Md.App. 85, 98, 499 A.2d 492 (1985).

In both brief and oral argument, the State defends the admissibility of the challenged testimony on two separate grounds. It argues that evidence of Amy's prior consistent statements rehabilitated her impeached credibility and was, therefore, proper rebuttal. We will turn to this argument after considering the State's alternative rationale. Alternatively, the State argues that "in the special situation of sex offenses, the trial judge in his discretion may admit evidence of a timely complaint of the offense even where the two prerequisites [for rebuttal use] have not been satisfied." We turn first to this argument.

The Timely Complaint of Rape or Other Sexual Offense
2

It is true that a victim's timely complaint of a sexual attack is admissible as part of the State's case-in-chief. As was pointed out in State v. Werner, 302 Md. 550, 563, 489 A.2d 1119 (1985):

"In prosecutions for sex offenses, evidence of the victim's complaint, coupled with the circumstances of the complaint, is admissible as part of the prosecution's case if the complaint was made in a recent period of time after the offense."

See also Leek v. State, 229 Md. 526, 527, 184 A.2d 808 (1962); Shoemaker v. State, 228 Md. 462, 466, 180 A.2d 682 (1962); Murphy v. State, 184 Md. 70, 76, 40 A.2d 239 (1944). 6 L. McLain Maryland Evidence (1987), § 613.2, at 170-171, observes:

"In a few special situations, prior consistent statements are admissible even when the witness has not been impeached. Prior identifications of the criminal defendant by the witness may be so proved, as may timely complaints of rape." (Footnotes omitted) (Emphasis supplied).

In this same regard, McCormick on Evidence § 297 (E. Cleary 3d ed. 1984) points out, at 859:

"In rape cases traditionally, and increasingly in cases of sex offenses generally, evidence has been held admissible that the victim made complaint. The only time requirement is that the complaint have been made without a delay which is unexplained or is inconsistent with the occurrence of the offense, in general a less demanding time aspect than with the typical excited utterance situation." (Footnotes omitted).

That a victim's timely complaint about a sexual attack is admissible is sure. Why it is admissible is far from sure. 3 The phenomenon of the timely complaint is a kind of evidentiary amphibian, possessing both lungs and gills. It is neither purely aquatic rebuttal evidence nor yet solidly land-based substantive evidence, but it has strong attributes of both.

It is not merely rebuttal evidence, because 1) it may be offered in the State's case-in-chief, 2) it is not hedged in by limiting instructions, and 3) its admissibility is not contingent upon the defendant's doing something first. On the other hand, it is not fully autonomous substantive evidence, because it is subject to limitations such as 1) the requirement that the victim actually testify; 2) the timeliness of the complaint; and 3) the extent to which the references may be restricted...

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