Goldberg v. State, 186
| Decision Date | 10 January 1979 |
| Docket Number | No. 186,186 |
| Citation | 41 Md.App. 58,395 A.2d 1213 |
| Parties | Randy Jay GOLDBERG v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Alan H. Murrell, Public Defender, and Bradford C. Peabody, Asst. Public Defender, for appellant.
Francis Bill Burch, Atty. Gen., Diane G. Goldsmith, Asst. Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County, and Thomas Morrow, Asst. State's Atty. for Baltimore County, for appellee.
Submitted to GILBERT, C. J., and MELVIN and COUCH, JJ.
On October 18, 1977, Randy Jay Goldberg, the appellant, was found guilty by a jury in the Circuit Court for Baltimore County, of rape in the second degree (Art. 27, Section 463(a)- (1)). The appellant was sentenced to a five year term, of which the first two years were to be served in a work release program at the jail and the remaining three years on probation.
On appeal the appellant contends that:
1. the evidence was insufficient to sustain his conviction;
2. the court erred by not, Sua sponte, declaring a mistrial;
3. the court erred in denying a motion to suppress an oral statement made by appellant at the time of his arrest.
The eighteen year old prosecuting witness was a high school senior who worked part-time as a sales clerk in the Merry-Go-Round clothing store at Towson Plaza. Around 1:00 P.M., on August 10, 1977, she was at work when the appellant, aged twenty-five, entered the store. The prosecuting witness started out trying to sell the appellant clothing but ended up being sold a story by the appellant that he was a free-lance agent and thought she was an excellent prospect to become a successful model. They arranged to meet at 5 o'clock when she got off from work.
When the appellant returned for her at 5:00 P.M., she asked him for "any ID to show me if you are who you say you are". He showed her his driving license with his picture on it. This satisfied her: . Despite some cautioning from her employer she drove off with the appellant at 5:10 P.M. in a silver-grey Cadillac Eldorado. The appellant was actually a student at Catonsville Community College and the car belonged to his mother. Appellant told her he was taking her to "a temporary studio" in the Pikesville area. When the "studio" was found to be closed, they drove to a condominium building on Slade Avenue. Upon arrival there she stayed in the car while appellant went inside. Shortly, he returned to the car and told her he had contacted a friend who said they could use his house for his "studio". When they arrived at the friend's house, she helped appellant find a door that was open. The door led to the kitchen which she described as "very dirty" and she "didn't, you know, understand why we were coming here". From the kitchen they walked into the bedroom which by contrast she described as being "really made up really nice" with "a queen sized bed, real big bed, with a red velvet bedspread, and a big backboard on the back." She was "pretty impressed by the room".
Soon after they entered the bedroom, appellant "motioned" her to sit beside him on the bed. Instead, she sat on a chair at the foot of the bed. Appellant then said it was hot in the room and took his shirt off. When asked her reaction to appellant's removing his shirt she responded: "He told me he was hot, so I figured so I figured he was hot". She then stood up and appellant . She pulled her blouse together and said "no". Asked to describe what happened next she said:
(Emphasis added.)
She said she removed her clothes because she "was really scared of him". "There was nothing I could do". When asked what caused her fright she said: . On cross-examination she said she was "afraid" she was "going to be killed".
After her clothes were removed, the appellant "pushed" her down on the bed and tried "to move (her legs) in different ways, and (she) kept pulling them together, and telling him that (she) didn't want to do it, and just wanted to go home". He kept telling her that he wouldn't hurt her "and just to relax". But she was "just really scared" and she was "shaking and my voice was really shaking" and she "kept on telling him (she) wanted to go home, and that "(she) didn't want to do this"; that she . When asked, "And what was his reaction?", she testified as follows:
"A. He was just he was just really cool about the whole thing, telling me not to worry, and he wouldn't hurt me, and to relax.
Q. All right. Now, after you were on the bed, and he was moving your legs around, what, if anything, occurred next?
A. Well, he kept on trying to make me get in different positions, and kept on telling me to look sexual or something like that. I don't know what the word was.
Q. All right. And what, if anything, occurred after he said that?
A. He laid me down and placed his hands on my vagina and told me he was doing that to make me relax. I told him that it didn't make me relax.
Q. All right. Then what happened after he placed his hands on your vagina?
A. He went into the other room, and I couldn't see him. He wasn't facing me, and had his back to me, and his hands down by his belt buckle. And I realized what he was doing, and I jumped up and grabbed my clothes and started putting them on.
Then he came in and pulled them away from me and said no Q. What did he say?
A. He said don't worry. What are you doing that for. I am not going to hurt you, and he kept telling me just to relax, and not to be nervous. And he laid me down on the bed and tried to get me to that stuff again, and I told him I didn't want to do that.
Q. What happened then?
A. And then he put his arms up on my stomach and his torso was in between my legs. He said just take your time; take a deep breath. And then he moved up on me and placed his penis in my vagina.
Q. What were you doing when this occurred?
A. I squeezed my legs together and got really tense, and I just started crying real hard. And I told him not to do that to me.
Q. And what was his response?
A. He didn't say anything. Just stayed there. And then I felt him move.
Q. How long was he on top of you?
A. Not very long.
Q. How long was he moving?
A. I guess for about two minutes, and then I felt him. Just for about two minutes.
Q. Did the Defendant ejaculate to your knowledge?
A. Yes, I think he did.
Q. Now, what, if anything, occurred after the Defendant ejaculated?
A. He got up and he said that if I can't enjoy it, then he can't enjoy it."
The appellant then asked her to go to dinner with him but she declined and he drove her to her home where she lived with her parents. On the way home, the appellant gave her his telephone number which she wrote down on a piece of paper. At his request she gave him her telephone number by writing it on a piece of paper with her lipstick. Although she told him she "would never see him again", she said she gave him her correct telephone number because she "didn't want to get him suspicious of me". They had a "general conversation about sex" in which he told her that "girls act like they don't want to, but they really do". She told him that he "had the wrong impression of (her)"; that she "didn't want him to do that". She further testified, somewhat inconsistently as follows:
(Emphasis supplied).
The appellant let her off at her home at 6:25 P.M., 11/4 hours after she left her place of employment with him at 5:10 P.M. Before the appellant drove off she told him to "drive home safely . . . I guess I was being more sarcastic than anything". She estimated that they had been at the house where the alleged rape took place for 30 minutes.
When she arrived inside her house she "walked straight pass my parents" to her upstairs room. She said nothing to them because she was . After cleaning herself and using a contraceptive, she called her boyfriend on the telephone and talked to him for "about three minutes". She did not tell him "what happened" because she "didn't know how he would take it". She then called her girlfriend and told her that she "had a problem, and that I was raped today . . .." She did not relate the details of the "rape". She told her girlfriend not to tell anybody and not to tell her girlfriend's boyfriend, "but she told him anyways". She contemplated calling the police but said she "didn't know who to call," so she called her girlfriend back and asked what she should do. Shortly thereafter the girlfriend and the girlfriend's boyfriend came to her house and after picking up...
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