Harding v. State

Decision Date09 October 1968
Docket NumberNo. 367,367
Citation246 A.2d 302,5 Md.App. 230
PartiesJames Milton HARDING v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Ellis H. Goodman, Baltimore and Jerome A. Loughran, Jr., Ellicott City, for appellant.

David T. Mason, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Richard J. Kinlein, State's Atty. for Howard County, Neil Helfrich, Asst. State's Atty. for Howard County and Robert S. Fertitte, Asst. State's Atty. for Baltimore City, on brief, for appellee.



James Milton Harding, the appellant, appeals from convictions for assault with intent to rape and assault with intent to murder in a jury trial in the Criminal Court of Baltimore, Judge James A. Perrott presiding. He was sentenced to a term of 20 years on the assault with intent to rape charge and to a consecutive term of 15 years on the assault with intent to murder charge.

There was evidence from which the jury could find: On Sunday, September 18, 1966, at approximately 5:00 P.M., Harding met Mildred Coley, the prosecuting witness, in a bar in Baltimore City. Subsequently, they joined Barbara Miles and Robert Lee Sanders, and all four of them drank and rode around the city in Sanders' car until approximately 8:30 P.M. when they left to go to Howard County. Mildred Coley was not previously acquainted with any of the other three persons. En route to and in Howard County, they made several stops. Mildred sat in the front seat of the car with Barbara and Sanders, while Harding sat in the back seat alone. Harding became angry and argued with Mildred because of her refusal to sit in the back seat with him and her refusal to have sexual relations with him. Eventually, Harding told Mildred he had a gun and he was going to have sexual relations with her before she left the car. Mildred told Harding that 'If you put your damn hands on me, I'm going to cut you.' After making this statement, Mildred opened her purse to get a face sponge, and when she turned in the direction of Harding, he shot her. She had no weapons. After the shooting Sanders wanted to call the rescue squad or take Mildred to the hospital; however, Harding, with gun in hand, ordered him to drive to Mayfield Avenue, a back road in an isolated area of Howard County. Harding removed Mildred, who was unconscious and presumed dead, and placed her on the side of the road. After returning to the car, Harding directed Sanders to drive to Club Vegas near Fort Meade, and then to Club 1630. At this club Harding met his brother, Charles B. Harding. Barbara, who lived in Baltimore, left the club with some friends, while Sanders and Harding left together. Sanders drove Harding home and was followed by Harding's brother in his station wagon. When Sanders left he observed Harding get into his brother's station wagon.

On Monday, September 19, 1966, at approximately 7:15 A.M., State Trooper William J. Foxwell, in response to a complaint, found Mildred lying four or five feet off the traveled portion of Meadow Ridge Road in Howard County, which was two or three miles from the spot where she had been placed after being shot. She was in a state of shock, wearing only a black dress, with her undergarments beside her. She was taken to St. Agnes Hospital where an emergency operation was performed on her chest. Further examination disclosed spermatozoa in her vagina.

Initially, Mildred was questioned by Trooper William George who testified as follows:

'Q. You said that the first time you interviewed the victim she indicated she had been raped by whom?

'A. She told me three colored males. She had been abducted from Baltimore City at knife point, taken into the County, raped and stabbed.

'Q. Now, the second time you visited her in the hospital you inquired of her again, and what did she tell you?

'A. Essentially-Well, by this time we knew she hadn't been stabbed. In fact, she had been shot. During both of these periods she appeared to be in shock or going into shock. Both of these times wee before she was operated on and only an Emergency Room type investigation of her wounds had been made. On the second occasion, after receiving the description of the car and knowing this person Robert Lee Sanders, a picture of him was taken and shown to her.

'Q. Then what did you do?

'A. After she positively identified this picture, then Robert Lee Sanders was later in the afternoon arrested and taken to the Barricks for investigation.'

'Q. You said then you visited the victim a third time and the third time the situation changed again. What happened there?

'A. At this particular time, which happened to be on 9/21 at two p. m., she was visited in the Intensive Care Unit of St. Agnes Hospital and talked to thoroughly, and it appeared evident that this girl could not remember certain parts of what had happened to her. She would take us all the way up to the point where she had been shot. She would go on to the point where she was put out of the car and then she told me she couldn't remember anything. Her mind had cleared to the point where she knew who had shot her. She knew who was with her and she knew the complete description of the automobile.'

On October 12, 1966, upon being released from the hospital, Mildred was taken to the Waterloo Police Barracks where she was put under hypnosis by Ralph P. Oropolo, Chief Clinical Psychologist at Clifton T. Perkins State Hospital. While under hypnosis, and without prompting, Mildred was able to recall events that had occurred after she was shot. On the witness stand she testified as follows:

'Q. Do you recall anything that was said to you while you were under hypnosis?

'A. Anything was said to me? Yes, when I was, yes-

'Q. When you were hypnotized, you recall what was said to you?

'A. What had really, what had blanked out in my mind all came back to me.'

'Q. Then when you awakened from this sleep they told you what you had said while you were asleep?

'A. No, I told them what happened after I woke up. I was awake.'

'Q. Did anybody talk to you when you awakened from this trance?

'A. Yes.

'Q. Who?

'A. Trooper George.

'Q. What did he say to you?

'A. He asked me how was I feeling. He say 'How does it feel to be hypnotized?', and I told him it was a nice sleep.

'Q. What else did he say?

'A. He asked me questions what happened between Harding and I, and I could answer them then, things I couldn't answer before. It all came back to me.

'Q. Were you told what happened and then it came back to you?

'A. No, I wasn't told what happened and it came back to me. When I was asleep it all came back to me and I told them what happened when I was awake.'

In addition, she identified Harding as the person who shot her, and she also testified that while she was lying on the side of the road, she saw a vehicle approaching which looked like a bread truck or station wagon. The vehicle stopped and Harding picked her up and threw her into the back of the vehicle and drove off. On arrival at another location, he threw her on the ground between an old house and a tree. He then unzippered her dress as she passed out. When she regained consciousness, she noticed that all of her clothes had been removed except her dress, that she tried to stand but was too weak, so she dragged her clothes with her and scrambled to the highway. Mildred also testified that when she regained consciousness, she 'realized that he had sex with me.'

Harding did not testify. His brother admitted that he had a station wagon and was at Club 1630 where he saw Harding on the night in question but denied that Harding used his car.

Harding contends that the testimony of Ralph P. Oropolo, the psychologist, and the testimony of Mildred Coley with respect to the assault with intent to rape were not admissible; and the evidence was insufficient to support the conviction for this crime.

The objection concerning the testimony of Oropolo was as to his qualifications. The record discloses that he has a Master's Degree in Psychology and has pursued work on his doctorate. He is Chief Clinical Psychologist at Clifton T. Perkins State Hospital and a lecturer at the Institute of Correctional Administration, American University, Washington, D.C. He was formerly staff psychologist at Crownsville State Hospital and has been employed as a consulting psychologist by several law enforcement agencies and state's attorneys' offices in Maryland and other states. In addition, he has qualified to testify in court as an expert in the field of psychology in Baltimore City and several counties in Maryland. In his training and education as a psychologist, he was familiarized with hypnosis or hypnotherapy as a form of treatment. The record further disclosed that hypnosis is used as analytical tool and technique by psychologists and the medical profession, as a form of therapy, and as a means of assisting patients to recover lost memory. During the past four years, Oropolo has used the technique of hypnosis, and he has also used hypnosis under circumstances similar to those in the case at bar. Harding's objections to the qualifications are based primarily on the fact that Mr. Oropolo did not graduate from any school of hypnotism. The Court of Appeals in the case of Hewitt v. Maryland State Board of Censors, 243 Md. 574, 221 A.2d 894, held that the admission of expert testimony is primarily a matter for the trial judge to decide. But the opinion makes clear that formal training is unnecessary so long as the record demonstrates that he is possessed 'of any knowledge or information which would elevate his opinion above the level of conjecture or personal reaction,' Hewwitt, supra at 221 A.2d 902. The formal training in hypnosis which was provided in Mr. Oropolo's education as a psychologist and his use of hypnosis for four years indicates to us that the trial judge quite properly admitted his testimony.

The admissibility of Mildred Coley's...

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