Culver v. State

• Decision Date: 07 June 1967
• Docket Number: No. 220,220
• Citation: 230 A.2d 361,1 Md.App. 406
• Parties: Clarence J. CULVER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 406

1 Md.App. 406

230 A.2d 361

Clarence J. CULVER v. STATE of Maryland.

No. 220.

Court of Special Appeals of Maryland.

June 7, 1967.

Michael Lee Kaplan, Baltimore, Morris Lee Kaplan, Baltimore, on the brief, for appellant.

Frank A. DeCosta, Jr., Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Frank A. DeCosta, Jr., Asst. Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, John H. Lewin, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and O'DONNELL, Special Judge.

PER CURIAM.

On June 29, 1966 appellant was convicted of rape by a jury in the Criminal Court of Baltimore, Judge Joseph L. Carter, presiding. He was sentenced to imprisonment for the balance of his natural life.

Appellant raises five contentions on this appeal:

1) The court erred in refusing to grant motions for judgment of acquittal.

2) The verdict was against the weight of the evidence.

3) The court erred in admitting in evidence certain testimony and a photograph.

4) The court erred in its instructions to the jury.

5) The court erred in its voir dire examination of the jury.

(1) and (2)

Appellant's first and second contentions are considered together. At the close of the evidence offered by the State, the appellant moved for a judgment of acquittal which was not granted. Thereafter appellant offered evidence and by so doing withdrew his motion. Maryland Rule, 755 b. Appellant moved again for a judgment of acquittal at the close of all the evidence and the motion was not granted. When a case is tried by a jury, and the point is properly raised, as it was here by the latter motion, this Court determines the sufficiency of the evidence to take the case to the jury, but does not weigh the evidence presented to the jury. Ramsey v. State, 239 Md. 561, 212 A.2d 319 (1965). In order for us to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence it is necessary to show that there was no legally sufficient evidence, or inferences drawable therefrom, on which the jury could find a defendant guilty beyond a reasonable doubt. Royal v. State, 236 Md. 443, 204 A.2d 500 (1964). So the scope of our review is not to determine whether the State has proved its case beyond a reasonable doubt, but whether there was any relevant evidence properly before the jury which would sustain the conviction. Tull v. State, 230 Md. 596, 188 A.2d 150 (1963); Fowler v. State, 237 Md. 508, 206 A.2d 802 (1965).

Joan Cobbs, age 16 years, testified that about 2:00 P. M. on November 17, 1965 she was waiting outside the Royal Theatre on Pennsylvania Avenue in Baltimore City for her mother who was to bring her money to go to the show. Two men, about 20 years of age, walked up to her and asked if they could buy her a soda. One was tall, light complexioned and 'had a lot of bumps on his face, and he had wide eyes.' The other was short and light complexioned. At first she refused but then went with them into a store a few doors from the theatre because it was cold outside. The store was the Royal Grill. She identified the appellant, who owned the store, as being there when they went in. The men bought her a soda and she drank some of it. The tall man asked her if she wanted to go in the back room and she said no. He said he wanted to talk to her about something and when she still refused, he grabbed her and took her into the back room with the help of the short man. Appellant was behind the counter while this was done. They threw her on a 'sofa-like thing.' Appellant came into the room and watched while the tall man pulled her dress up and took off her girdle. She screamed and resisted and the short man threatened to hit her if she did not keep quiet. The short man and the appellant held her legs, spreading them apart, while the tall man had sexual intercourse with her. When she continued to scream the short man put his hand over her mouth. Then the short man had sexual intercourse with her, threatening her, for although she was 'tired and everything' she was still trying to get away. Then the appellant had sexual intercourse with her. She was still trying to get away but was exhausted and could not do so. She tried to scream and he told her to be quiet. The tall man and the short man left while the appellant was raping her. She pleaded with the appellant to let her rest, and when he did so, she put on her shoes, grabbed her girdle and ran out. She saw a policeman across the street and asked him to please help her, that she had just been raped. The policeman asked her where and by whom and she pointed out the Royal Grill and described the men. When the policeman went to the door of the store it was locked and the lights were out. The appellant apparently had fled and a warrant was obtained for his arrest. He was apprehended on December 15, 1965 at 821 Pennsylvania Avenue in Baltimore City and was identified in a lineup by the prosecutrix. The Royal Grill was not open after November 17, 1965.

The medical testimony was that examination disclosed the victim's hymen was freshly torn, that the outlet was apparently virginal before the episode, that her vagina contained blood and seminal fluid and that a slide made was positive for spermatozoa. While her body showed no signs of injury, the things showed traces of blood near the vulva. At the time of the examination she was agitated and nervous. The diagnosis was evidence of forcible rupture of the hymen. The policeman verified that she told him she had been raped.

The trial judge was clearly correct in denying appellant's motion for a judgment of acquittal and we find that there was relevant evidence properly before the jury which would sustain the conviction.

(3)

We find no reversible error in the admission by the court of the evidence as set forth in appellant's third contention.

a) Generally speaking, to preserve an issue on appeal in regard to the admissibility of evidence, there must be an objection made to the question eliciting the allegedly objectionable answer. If counsel desires to preserve an objection to a line of testimony, this must be stated to the trial court and a continuing objection indicated. Rose v. State, 240 Md. 65, 212 A.2d 742 (1965); Maryland Rules, 522 b, d 2; 1085. Counsel for appellant did not preserve an objection to the line of questioning here alleged to have been admitted in error. The prosecuting witness was requested to tell what some of her interests were and when she said, 'Well, I like dancing and-' an objection was made and overruled. She then continued her testimony by saying she liked dancing and singing and swimming and, in answer to further questions, that she liked church singing, and rock and roll and that she was 'in a choir at the church.' The answers to the latter questions were given without objection. In any event, the admission of irrelevant evidence will not require reversal if it appears that the evidence was not prejudicial. Hopkins v. State, 193 Md. 489, 69 A.2d 456 (1949). It does not appear to us that the testimony was prejudicial under the circumstances.

b) The objection to a photograph of the room where the offense took place was based on the fact that it was taken some nine days after the crime. Counsel did not question that the photograph correctly depicted the room at the time the photograph was taken. The prosecuting witness testified that the room at the time of the crime was 'Just as it is in this photograph.' The Court of Appeals said in Corens v. State, 185 Md. 561 at page 570, 45 A.2d 340, at page 346 (1946):

'It is an unquestioned rule that photographs may be introduced in evidence, either in a civil or criminal proceeding, to illustrate the description of a person, place, or object so as to explain or apply the evidence. Snowden v. State, 133 Md. 624, 631, 106 A. 5. Whether a photograph is of any practical value in a particular case is a preliminary question for the trial court, and the court's exercise of discretion in determining the question is not open to review unless plainly arbitrary. Of course, photographs offered as exhibits should be correct representations of the person, place or object which they purport to represent at the time when the appearance of such person, place or object is relevant to the inquiry in connection with which the photographs are offered.'

We do not think that the court's exercise of discretion in admitting the photograph in evidence was plainly arbitrary. See Pearson v. State, 182 Md. 1, 31 A.2d 624, (1943).

c) Appellant alleges that the question, 'Did either man have difficulty performing a sexual act on you?', was leading, that it called for a conclusion and that it involved an act for which he was not charged. The question was asked before the witness testified that the appellant had raped her but after her testimony as to the conduct of the other two men. Assuming, arguendo, that the question was leading, the trial court may permit leading questions in its sound discretion. Wolf v. State, 143 Md. 489, 122 A. 641 (1923). The court does not appear to have abused its discretion with regard to this question. Other jurisdictions have held that leading questions are permissible to arrive at facts when modesty or delicacy prevents full answers to general interrogations and that rape cases, involving inquiry into delicate subjects of a sexual nature, constitute an exception to the general rule against leading questions. In such cases, the permitting of leading questions of the prosecutrix, particularly if she is of tender years, is a matter of sound discretion of the trial court. State v. Pearson, 258 N.C. 188, 128 S.E.2d 251 (1962); Commonwealth v. McGuiness, 204 Pa.Super. 75, 203 A.2d 326 (1964); State v. Bennett, 158 Me. 109, 179 A.2d 812 (1962). After the witness answered that both of the men had difficulty performing the sexual act on her, the record discloses the following questions by the...