Gooch v. State

• Decision Date: 30 December 1976
• Docket Number: No. 281,281
• Citation: 34 Md.App. 331,367 A.2d 90
• Parties: Joseph Paul GOOCH v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 331

34 Md.App. 331

367 A.2d 90

Joseph Paul GOOCH v. STATE of Maryland.

No. 281.

Court of Special Appeals of Maryland.

Dec. 30, 1976.

Certiorari Denied April 4, 1977.

Orie Seltzer, Mount Rainier, with whom was Blair H. Smith, Mount Rainier, on the brief, for appellant.

Bruce C. Spizler, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and Stephen Kupferberg, Asst. State's Atty. for Prince George's County on the brief, for appellee.

Argued before LOWE, DAVIDSON and LISS, JJ.

LISS, Judge.

Appellant, Joseph Paul Gooch, was tried and convicted before a jury in the Circuit Court for Prince George's County of rape, perverted practice, and the use of a handgun in the commission of a crime of violence. Judge Robert B. Mathias, the presiding judge, imposed sentence as to each conviction, and it is from these judgments that this appeal was seasonably filed.

This sordid incident began, as so many others before it, in a combination barnightclub (in this case, Jimmy Combers in Takoma Park, Maryland). The prosecutrix, Cheryl Joanne Stewart, testified that she arrived unaccompanied at the premises at about 9:15 in the evening, seated herself at the bar, and for about forty-five minutes engaged in conversation with the bartender, whom she knew. About 10 p. m. the appellant introduced himself and joined her at the bar. They remained there for about two hours, during which time the accused bought her the traditional two beers. At about midnight, after she agreed to a date with the appellant for the following night, they left the bar. Appellant offered to drive her to her car which was some distance away, and she got into his station wagon; but instead of taking her to her car, appellant pulled into the parking lot at the rear of the bar, stopped the car and kissed her, after which she asked to be taken to her car. Prosecutrix stated that appellant then took a black case out of his glove compartment from which he pulled a silver gun; that she started to scream and tried to get out of the car but the accused grabbed her and began choking her; that holding the gun on her, he demanded that she remove all her clothing which she did while he was slowly driving from the lot with one hand on the wheel and the other on her. He forced her to perform fellatio upon him while he was driving to a secluded residential area, the location where he first 'stuck his gun in my vagina' and then raped her. In her testimony, prosecutrix related a number of rapes and perverted practices which were perpetrated upon her during the next several hours.

The appellant testified as a witness in his own behalf and in essence substantiated the prosecutrix's version of the events of the evening up to the point of the sexual relations between them. He admitted the circumstances under which they met, their having left the premises together, and to having sexual relations with her several times that evening in his station wagon. He denied having performed cunnilingus on the prosecutrix but admitted that she engaged in fellatio upon him. He insisted, however, that the prosecutrix was a willing, if not eager, participant in these activities.

The appellant raises four grounds in this appeal, each of which he contends requires a reversal of the jury's verdict and the judgments entered by the court. He contends initially that the trial court erred when it refused to grant an advisory instruction to the jury that evidence of the good character and reputation of the accused may be sufficient to create or raise such a reasonable doubt as to justify his acquittal, regardless of any other evidence presented.

Appellant offered as part of his defense the testimony of three character witnesses: His wife in response to a question concerning his reputation for peace and good order was permitted to testify, without objection, that he was an easy going guy. She was permitted to testify, again without objection, that he was a normal, healthy man, who never forced her to have relations with him. Another witness testified to his good reputation for being a peaceful and orderly citizen; and when asked about the accused's normalcy in sexual matters, he replied, '(I)f you want to know as far as him dating girls or going out with girls, he had a good reputation.' A third witness, when asked about appellant's disposition to violence, said that the accused was 'a pacifist, suave, a gentleman.' As to his reputation for sexual normalcy, she said that he was normal: 'He flirted. Just American boy type.'

This evidence strikes us as being at best marginally relevant, but no objection was made to its admissibility, nor did the State on cross-examination seek to clarify the witnesses' assessment of the sexual normalcy of the accused. It is clear that the accused had the right to have the jury consider this evidence of good character in conjunction with all the other testimony in the case in reaching its conclusion as to guilt or innocence.

When the testimony on both sides had been concluded, the trial judge proceeded to give his advisory instructions to the jury, after which counsel were requested to approach the bench. The record is silent as to the reason for the court's action, but it is obvious that the court afforded counsel an opportunity to comply with Maryland Rule 756 f. which requires counsel to note any objection to the court's charge as given and to request any additional instructions. The following colloquy then took place at the bench:

'MR. MIZEL (the defense counsel): Your Honor, I would have evidence of good character itself can raise, can create a reasonable doubt. Evidence of a good character itself can be enough to raise reasonable doubt.

MR. KUPFERBERG (the prosecuting attorney): I would object to that.

THE COURT: Not at this stage of the proceedings. I conceivably would have given such an instruction if it would have been placed in context. But not after I have completed my instructions.

THE COURT: Do you have any exceptions?

MR. MIZEL: Only the refusal to give the instruction regarding the fact that character evidence alone can create a reasonable doubt.

THE COURT: Can do what?

MR. MIZEL: Can create a reasonable doubt.

THE COURT: That is an out-of-context instruction and I will not give it standing alone at this stage of the proceedings. You have you (sic) exception to that. Because the Court has already given the instructions regarding credibility of witnesses and evaluation of the weight of the evidence. And I don't know of any authority for character witnesses alone, standing alone, is sufficient grounds for reasonable doubt. You have your exception.'

Maryland Rule 756 a. states in part that the court may and at the request of any party shall give such advisory instructions to the jury as may correctly state the applicable law.

This Court in Mumford v. State, 19 Md.App. 640, 641, 313 A.2d 563, 565 (1974), said:

'In Maryland, it is settled that a trial judge must, when timely requested to do so, give advisory instructions which are supported by the evidence. Byrd v. State, 16 Md.App. 391, 400, n. 3, 297 A.2d 312 (1972); Gaskins v. State, 7 Md.App. 99, 105, 253 A.2d 759 (1969), cert. denied, 404 U.S. 1040, 92 S.Ct. 719, 30 L.Ed.2d 732. Failure to give a properly requested instruction constitutes error.'

We had before us a similar case in Braxton v. State, 11 Md.App. 435, 274 A.2d 647 (1971), cert. denied 262 Md. 745 (1971), where in reversing the trial court because of its refusal to grant an appropriate advisory instruction, we held that the accused, having introduced evidence of good character, was entitled to an instruction as to the weight and effect to be given to that evidence. We held that the jury should have been instructed that the character evidence should be taken into consideration by them in conjunction with all the other evidence in the case and, in arriving at their verdict of guilt or innocence, given such weight under all the facts and circumstances of the case-including the credibility, as determined by the jury, of the character witnesses themselves-as they may determine this evidence merits.

The trial court in the case before us gave as one of its reasons for refusing the requested character witness instruction the fact that it was not requested until after the court had completed its advisory instructions. This is not a justifiable reason. In a case exactly on point, Noel v. State, 202 Md. 247, 96 A.2d 7 (1952), the trial court invited objections after its charge was delivered; and at that point-for the first time-a request was made for an instruction as to the weight and effect of character testimony. The trial...