Grady v. State

• Decision Date: 20 December 1974
• Docket Number: No. 329,329
• Citation: 329 A.2d 726,24 Md.App. 85
• Parties: John Joseph GRADY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 85

24 Md.App. 85

329 A.2d 726

John Joseph GRADY v. STATE of Maryland.

No. 329.

Court of Special Appeals of Maryland.

Dec. 20, 1974.

Joseph A. DePaul and James E. Kenkel, College Park, with whom were DePaul, Willoner & Kenkel, P. A., College Park, on the brief, for appellant.

George A. Eichhorn, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and Elias Silverstein, Asst. State's Atty. for Prince George's County on the brief, for appellee.

Argued before POWERS, GILBERT and LOWE, JJ.

GILBERT, Judge.

John Joseph Grady, appellant, was charged in Prince George's County, under a criminal information with three counts of perverted practices, Md.Ann.Code art. 27, § 554. Each of the three counts alleged appellant's involvement with separate female victims, two of whom were age seven and one age nine. The information additionally charged three separate counts of assault and battery. Appellant was convicted by a jury on all six counts, and he was sentenced to three ten-year concurrent terms of imprisonment for the perverted practices charges. ¹ The sentences were suspended and appellant was placed on probation for a period of five years.

The Court of Appeals in Kucharczyk v. State, 235 Md. 334, at 337, 201 A.2d 683 (1964), announced what has become known as the 'Kucharczyk Doctrine'. Kucharczyk involved a conviction for an unnatural and perverted sex act and assault and battery. The prosecuting witness was a sixteen year old boy who had a full scale I.Q. of 56, and was characterized as 'mentally deficient'. On cross examination the young man testified contradictorily to the version that he had stated on direct examination. Judge Sybert, writing for the Court of Appeals in Kucharczyk adopted from civil cases the rule that if a witness's testimony is so self-contradictory as to lack probative force, the trier of fact may not be allowed to speculate as to which of the versions is true. See Balto. Tr. Co. v. Presberry, 233 Md. 303, 196 A.2d 717 (1964); Kaufman v. Baltimore Transit Co., 197 Md. 141, 78 A.2d 464 (1951); Slacum v. Jolley, 153 Md. 343, 138 A. 244 (1927). In Slacum the Court said:

'When a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is too inconclusive, contradictory, and uncertain to be the basis of a legal conclusion.'

See also Eisenhower v. Balto. Transit Co., 190 Md. 528, 59 A.2d 313 (1948). Judge Sybert noted that while Kucharczyk involved a criminal case, nevertheless, the rationale of Kaufman, Presberry, Slacum and Eisenhower was apposite. Thus Kucharczyk's conviction was reversed because of the glaring inconsistencies in the prosecuting witness's testimony.

This Court, in Bailey v. State, 16 Md.App. 83, at 95-97, 294 A.2d 123, at 130 (1972), speaking through Judge Moylan, said:

'Despite the limited utility of the doctrine, the life of Kucharczyk has been amazing for the number of occasions on which and the number of situations in which it has been invoked in vain. Kucharczyk does not apply simply because a witness's trial testimony is contradicted by other statements which the witness has given out of court or, indeed, in some other trial. Brooks v. Daley, 242 Md. 185, 191-192, 218 A.2d 184; Edwardsen v. State, 243 Md. 131, 137-138, 220 A.2d 547; Wilson v. State, 261 Md. 551, 556-558, 276 A.2d 214; Alexander v. State, 4 Md.App. 214, 218, 242 A.2d 180; Moore v. State, 7 Md.App. 495, 502, 256 A.2d 337; Jones v. State, 10 Md.App. 420, 428, 270 A.2d 827; Tumminello v. State, 10 Md.App. 612, 616, 272 A.2d 77; Sun Cab Company v. Carter, 14 Md.App. 395, 407, 287 A.2d 73. Nor does Kucharczyk apply where a witness's trial testimony contradicts itself as to minor or peripheral details but not as to the core issues of the very occurrence of the corpus delicti or of the criminal agency of the defendant. Bell v. State, 2 Md.App. 471, 472, 235 A.2d 307; Poff v. State, 3 Md.App. 289, 292-293, 239 A.2d 121; Chesley v. State, 3 Md.App. 588, 596, 240 A.2d 342; Eley v. State, 4 Md.App. 230, 234, 242 A.2d 175; Rasnick v. State, 7 Md.App. 564, 568, 256 A.2d 543; Lindsay v. State, 8 Md.App. 100, 103, 258 A.2d 760; Gardner v. State, 8 Md.App. 694, 700-701, 261 A.2d 799; Dorsey v. State, 9 Md.App. 80, 87, 262 A.2d 591; Pinkney v. State, 9 Md.App. 283, 295, 263 A.2d 871; Hunt v. State, 12 Md.App. 286, 292, 278 A.2d 637; Crenshaw v. State, 13 Md.App. 361, 372, 283 A.2d 423. Nor does Kucharczyk apply where the testimony of a witness is 'equivocal, doubtful and enigmatical' as to surrounding detail. Thompson v. State, 5 Md.App. 191, 196-197, 245 A.2d 903. Nor does Kucharczyk apply where a witness is forgetful as to even major details or testifies as to what may seem improbable conduct. Gunther v. State, 4 Md.App 181, 184-185, 241 A.2d 907. Nor does Kucharczyk apply where a witness is initially hesitant about giving inculpatory testimony but subsequently does inculpate a defendant. Wilkins v. State, 239 Md. 692, 693, 211 A.2d 308. Nor does Kucharczyk apply where a witness appears initially to have contradicted himself but later explains or resolves the apparent contradiction. Wilson (, Valantine and Nutter) v. State, 8 Md.App. 653, 674, 262 A.2d 91. Nor does Kucharczyk apply where a State's witness is contradicted by other State's witnesses. Scott v. State, 2 Md.App. 709, 713-715, 237 A.2d 61; Tillery v. State, 3 Md.App. 142, 148, 238 A.2d 125; Gunther v. State, supra; Hunt v. State, supra. Nor does Kucharczyk apply where a State's witness is contradicted by defense witnesses. Johnson v. State, 3 Md.App. 219, 222, 238 A.2d 295. Nor does Kucharczyk apply where a witness does contradict himself upon a critical issue but where there is independent corroboration of the inculpatory version. Tucker v. State, 237 Md. 422, 424, 206 A.2d 691; Chesley v. State, supra, 3 Md.App. 596, 240 A.2d 342. In each of those situations, our system of jurisprudence places reliance in the fact finder to take contradictions or equivocations properly into account and then to make informed judgment in assessing a witness's credibility and in weighing that witness's testimony. Even in a pure Kucharczyk situation, the ultimate resolution is solely in terms of measuring the legal sufficiency of the State's total case and not in terms of the exclusion of the contradictory witness's testimony.'

A review of the testimony reveals that one of the prosecuting witnesses was extremely reluctant, and in the final analysis said nothing. The other two juvenile witnesses did make glaring, inconsistent statements in that each affirmed and denied that she had touched the appellant's penis. The message comes through, however, loud, clear and consistently that each had performed fellatio upon the appellant.

The testimony, viewed in the light of Kucharczyk as explicated by Bailey, does not reveal a pure Kucharczyk situation. Although there is present in the instant case some self-contradiction on the part of the witnesses and some ambiguity as to whether Mr. Grady's penis was between his legs or 'in front of him', the two girls testified unambiguously and clearly to performing acts of fellatio on appellant on one or more occasions. We think the testimony of the two children is not devoid of probative force and that the trial judge properly declined to grant a motion for judgment of acquittal. The evidence as to fellatio, if believed, was legally sufficient to sustain the conviction.

Notwithstanding the non-application of Kucharczyk, we must reverse all convictions. ²

The trial judge instructed the jury:

'Now, there is evidence in this case, or been offered in this case, or introduced, the defendant was not present at the time and the place where the offenses allegedly were committed. This may be referred to as a defense of alibi. The Court tells you that a defense of alibi is a legitimate, legal and proper defense. The defendant may not be convicted of the offense with which he is charged unless the government proves beyond a reasonable doubt that the defendant was present at the time when, and at the place where, the offenses were committed.

If, after a full and fair consideration of all the facts and circumstances in evidence, you find that the government has failed to prove beyond a reasonable doubt that the defendant was present at the time when, and the place where, the offense charged was allegedly committed, you must find the defendant not guilty.

With reference to alibi, a defendant may be entitled to acquittal if you believe the alibi testimony as his not being present at a time and place of the alleged offense, by taking into consideration this testimony with all the other evidence raising a reasonable doubt of guilt, but in order to prove an alibi conclusively the testimony must cover the whole time in which the crime by any possibility might have been committed, and should be subjected to rigid scrutiny.' (Emphasis supplied).

The word 'conclusively' is defined in the American Heritage Dictionary of the English Language (1970) to mean:

'Serving to put an end to doubt or question; Decisive; Final.'

Similar definitions are found in Webster's New International Dictionary of the English Language (2d ed. unabridged, 1947) and Funk and Wagnalls Standard College Dictionary (Text ed. 1963).

An analysis of the judge's instructions discloses the following: The State must prove its charges against the defendant beyond a reasonable doubt, but a defendant is required to prove his alibi conclusively. As we read the charge, the defendant is held to establish an alibi by a degree of proof that is above and beyond that required to determine his guilt. The State, the jury was also told, must show guilt beyond a reasonable doubt which, of course, does not mean to a mathematical certainty or beyond any doubt, while the defendant (appellant here) would seem to be required to establish his alibi beyond any doubt. This...