Cox v. State

• Decision Date: 06 April 1982
• Docket Number: No. 928,928
• Citation: 443 A.2d 607,51 Md.App. 271
• Parties: Thomas Wayne COX v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 271

51 Md.App. 271

443 A.2d 607

Thomas Wayne COX v. STATE of Maryland.

No. 928.

Court of Special Appeals of Maryland.

April 6, 1982.

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

Diane G. Goldsmith, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County and Dana M. Levitz, Asst. State Atty. for Baltimore County, on the brief, for appellee.

Argued before LOWE and WILNER, JJ., and CHARLES E. ORTH, Jr., Special Judge.

CHARLES E. ORTH, Jr., Special Judge.

I

Her alleged assailant had been released from prison that day. His assault on the 18 year old girl was barbaric. He forced her to engage in two acts of vaginal sexual intercourse, in sodomy and in fellatio. The duress he employed was a vicious physical beating about her face, head and body, leaving her bowed, bruised, bloody and battered. His excuse to her for his brutal conduct was, "I ain't had a woman in six months." As soon as she was able to drag herself the three blocks to her home, and while still suffering acute physical pain and under the severe emotional stress caused by her experience, she told her mother what had occurred and informed the police of the incident shortly thereafter upon their prompt response to a call to them. Her assailant was not unknown to her (he was an habituee of the neighborhood), and she identified him as Thomas Wayne Cox. Cox was arrested forthwith at the locale of the crime, which she pointed out on the way to the hospital. The ground at the scene appeared to be "disarranged," and it was there that the police recovered her underpants, which had been stripped from her during the rape, and articles from her pocketbook. At the time of Cox's arrest his clothes were dusty and "had a lot of loose dirt ... like he just got down and rolled around on the ground." There were grass stains on his jacket at the elbows and on his pants at the knees, and four "newly made" abrasions or scratches on his arm.

Cox was tried before a jury in the Circuit Court for Baltimore County. He was found guilty of rape in the first degree, a sexual offense in the first degree and common law assault. Under the concurrent sentences imposed he is to spend the remainder of his natural life in prison.

II

At his trial Cox did not dispute the testimonial and physical evidence establishing the corpus delicti of the crimes. He did, however, attempt to cast a reasonable doubt on the proof presented by the State to show that he was the criminal agent. He produced a parade of witnesses to establish an alibi. They placed him in the locality of the scene of the crime before, during and after the time the crimes were alleged to have been committed, but they attempted to account for his activities during the critical period so as to indicate that he could not have been the perpetrator. It is manifest that the jury discounted the testimony of the alibi witnesses, at least to the extent that it found that Cox had the opportunity to and did commit the criminal acts ascribed to him. We note that there was no evidence offered by Cox concerning the fresh scratches on his arm or to explain the condition of his clothing. Nor was there any evidence as to an unworthy motive which may have prompted the victim's designation of Cox as her attacker.

Beyond question, the evidence that went before the jury was legally sufficient for it to find that the crimes charged were committed and that Cox committed them. See Williams v. State, 5 Md.App. 450, 452-460, 247 A.2d 731 (1968), cert. den., 252 Md. 734 (1969). On appeal, Cox makes no suggestion to the contrary. Rather, he points to five errors that he alleges the court made during the course of the trial, any one of which, he urges, requires reversal.

The first alleged error arose during cross-examination of the victim. Defense counsel elicited that she used to go with one Donald Vrhovac. The defense asked:

"Did you ever make an allegation, a criminal charge against a Mr. Vrhovac claiming an assault on you?"

The State's objection was sustained. A bench conference ensued. Defense counsel addressed the court:

"I think I should proffer in this fashion. I have information that the witness made a criminal charge against this Vrhovac of assault on her. And then subsequent during the course of the trial admitted that she did not tell the truth, that it was not an assault on her. And that he was, as a result of her recanting statement, found not guilty."

The State asked how that was relevant, and defense counsel answered, "Credibility." He characterized it as "false testimony that was recanted.... She first came into court and said that he did commit an assault, and then on cross-examination the information I have is that she then recanted it." The court thought it was "an independent matter. And if it were more than one, but one isolated instance I don't think it's relevant to this, so I will sustain the objection." The initial question is whether the court erred in sustaining the objection.

It is apparent from the comment and proffer of defense counsel that he was attempting to place the testimony of the adverse witness in its proper setting to impeach her. Impeachment is an attack on credibility, and it once was the way in which such an attack could be pursued was under the common law principle which, for ease of expression, is hereinafter referred to as the "veracity rule." It declared that

"(a) witness may be impeached by evidence impugning his character or reputation for truth and veracity. Evidence of particular acts or of particular facts, though tending to show untruthfulness, is not admissible for this purpose. But rather, the inquiry should relate to the witness' general reputation for truth and veracity in the community in which he lives at the time of trial." 2 Wharton's Criminal Evidence, § 471 (13th ed. 1972) (footnotes omitted).

This was usually done through another witness. Hochheimer, The Law of Crimes and Criminal Procedure § 322 (1st ed. 1897). See 2 Wharton, supra, § 472. It was long ago well settled in this State that the general rule was "that in order to impeach the credit or veracity of a witness the examination must be confined to his general reputation and not permitted as to particular facts." Rau v. State, 133 Md. 613, 616, 105 A. 867 (1919). The rationale of this policy was that evidence of specific acts tends to confuse the issues and unfairly surprise the witness. 3A Wigmore Evidence § 979 (Chadbourn rev. 1970). See Richardson v. State, 103 Md. 112, 118, 63 A. 317 (1906); Wise v. Ackerman, 76 Md. 375, 392, 25 A. 424 (1892). ¹

From the comments of the trial judge in sustaining the objection, it is manifest that he was guided by the common law veracity rule. His reliance on that rule was ill conceived for two reasons. First, clearly the defense was not seeking to impeach the prosecutrix by attempting to establish, pursuant to the veracity rule, that her reputation for truth and veracity, in the community in which she resides, was bad. Second, it seems that the common law veracity rule became defunct in this State upon the passage of ch. 760, Acts 1971 now § 9-115 of the Courts and Judicial Proceedings Article (Md. Code 1974, 1980 Repl. Vol.), subtitle, "Character witness." ² Whether the statute served to modify the rule, as the Court of Appeals stated in Durkin v. State, 284 Md. 445, 449, 397 A.2d 600 (1979), or to abrogate it, as the Court later said in Kelley v. State, 288 Md. 298, 302, 418 A.2d 217 (1980), the declared purpose of the General Assembly as set out in the title to the Act was "to change the prior rule." Kelley stated that "(t)he statute permits the admission of a broad range of testimony which may aid the jury in assessing the credibility of a witness...." 288 Md. at 302, 418 A.2d 217. In any event, neither the common law veracity rule, whether abrogated or modified, nor the statute, governs the admissibility of the challenged question in the circumstances here.

The rule that in our opinion does govern the admissibility of the challenged question also comes from the common law. It is hereinafter referred to as the "credibility rule." It applies upon cross-examination of the witness sought to be impeached; one of the main functions of cross-examination is "to shed light on the credibility of the direct testimony." McCormick, Handbook of the Law of Evidence § 29 (Hornbook Series, 2 ed. 1972). In this context, "the test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony." Id. The credibility rule is firmly established in Maryland and consistently followed. Characterized as "a fundamental concept in our system of jurisprudence" by the present Chief Judge of the Court of Appeals of Maryland then speaking for this Court in DeLilly v. State, 11 Md.App. 676, 681, 276 A.2d 417 (1971), it declares:

"A witness generally may be cross-examined on any matter relevant to the issues, and the witness's credibility is always relevant. Therefore, a witness, whether a party to the action or not, may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relation to the parties or the cause, his bias, or the like." Smith v. State, 273 Md. 152, 157, 328 A.2d 274 (1974).

DeLilly explicates the rule:

"And cross-examination to impeach, diminish, or impair the credit of a witness is not confined to matters brought out on direct examination; it may include collateral matters not embraced in the direct examination to test credibility and veracity, it being proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or...