Davenport v. State
| Decision Date | 01 September 1991 |
| Docket Number | No. 93,93 |
| Citation | 89 Md.App. 517,598 A.2d 827 |
| Parties | Roosevelt DAVENPORT, Jr. v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Jose Felipe Anderson, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.
Tarra DeShields-Minnis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County of Upper Marlboro, on the brief), for appellee.
Argued before MOYLAN, ROBERT M. BELL and DAVIS, JJ.
In enacting what is popularly known as the "Rape Shield Statute" by Laws of Maryland, 1976, ch. 574 and in extending its application to trials for a first or second-degree sexual offense by Laws of Maryland, 1977, ch. 294, the General Assembly, we herein conclude, did not intend to enact a nullity. The shield law is now codified as Art. 27, § 461A and reads, in pertinent part:
"Evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree."
To effectuate its salutary purpose, 1 a shield law, when properly invoked with respect to charges addressed by the statute, must control the presentation of evidence even with respect to lesser, included charges not expressly addressed by the statute.
The appellant, Roosevelt Davenport, was convicted by a Prince George's County jury, presided over by Judge Darlene O. Perry, of a fourth-degree sexual offense and of assault and battery. Upon this appeal, he raises the following two contentions:
1. That the exclusionary provision of the shield law did not apply to the two offenses of which he was convicted and, therefore, its broad-scale application erroneously prevented him from offering relevant evidence to support his defense of consent; and
2. That Judge Perry erroneously failed to permit him to recall defense witness Tammy Jones.
The appellant was indicted under a four-count indictment, charging 1) first-degree rape, 2) second-degree rape, 3) a fourth-degree sexual offense, and 4) assault and battery. At the outset of the trial, the State nolle prossed the count charging rape in the first degree. The trial proceeded on the remaining three counts. Although the appellant was ultimately acquitted by the jury of second-degree rape, that charge properly survived motions for judgments of acquittal and was a legitimate issue for jury consideration. There was evidence that the appellant overpowered his victim, twice striking her in the jaw, and had sexual intercourse with her against her will.
Whether the appellant committed rape was the dominant question throughout the entire course of the trial. Indisputably, the shield law controlled the presentation of evidence with respect to the trial of that issue. On that issue, however, the appellant was acquitted; the convictions were only for a fourth-degree sexual offense 2 and for assault and battery.
As the appellant quite accurately points out, the exclusionary provision of § 461A, by its express terms, applies only to prosecutions for rape or for a sexual offense in the first or second degree. From that premise, the appellant urges the conclusion that evidence as to the victim's chastity which might have been admissible prior to the enactment of the shield law is still admissible on charges not covered by the shield law.
Assuming without deciding that the somewhat inartfully proffered evidence of sexual background in this case might have passed muster before the enactment of the shield law, 3 we are faced with the issue of whether a specific rule of evidence applicable to the trial of a greater count does or does not "trump" a general rule of evidence otherwise applicable to the trial of a lesser count. The question before us is not whether the proffered evidence might have been admissible if the appellant had been on trial only for a fourth-degree sexual offense and for assault and battery. That is another issue for another day.
In terms of the indictment as it stood when the appellant went to trial and which was ultimately submitted to the jury, the "flagship count" was indisputably the highest remaining count (second), charging rape in the second degree. The third and fourth counts were simply attendant upon it, generally available in case the proof should somehow fail on the greater charge.
When the Legislature determined, as part of a broad national trend, that victims of rape and of the more serious sexual offenses should not be further victimized by embarrassing and demeaning probes into their sexual histories and propensities of marginal, if any, materiality, 4 it is inconceivable that they intended their purpose to be totally thwarted by the inevitable presence of lesser included and other lesser, related charges. It would be, for instance, an exceedingly rare commission of a rape, little more than a law school hypothetical, that would not embrace such lesser crimes as 1) assault with intent to rape, 2) attempted rape, 3) an instance of sexual contact involving a sexual offense of...
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