Johnson v. State

• Decision Date: 01 September 1992
• Docket Number: No. 141,141
• Citation: 632 A.2d 152,332 Md. 456
• Parties: Donald Warren JOHNSON v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 456

332 Md. 456

632 A.2d 152

Donald Warren JOHNSON v. STATE of Maryland.

No. 141, Sept. Term, 1992.

Court of Appeals of Maryland.

Oct. 29, 1993.

Mark Colvin, Asst. Public Defender (Stephen E. Harris, Public Defender), Baltimore, on brief, for petitioner.

David P. Kennedy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., of MD), Baltimore, MD, on brief, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

The issue this case presents is whether, when the defense to a charge of rape is that the victim was exchanging sex for drugs, the rape victim's admission to having previously engaged in such conduct is inadmissible pursuant to Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 461A ("the rape shield statute"). ¹ The Circuit Court for Anne Arundel County ruled that it is inadmissible and the Court of Special Appeals affirmed. Johnson v. State, 93 Md.App. 522, 613 A.2d 450 (1992). For the reasons hereinafter stated, we shall reverse.

I.

The victim, who was addicted to crack cocaine, accused the petitioner and Robert Galloway, ² inter alia, of raping her on the morning of March 9, 1991. According to the victim's testimony, her being raped was the culmination of an evening and night of drug use, which consumed all, or virtually all, of the victim's previous week's wages. Indeed, according to the victim's testimony, the rape occurred while she was attempting to make yet another purchase of cocaine, with funds obtained from a friend.

The petitioner's defense was that the sexual relations with the victim occurred while the victim was "freaking" for drugs, i.e. exchanging sex for drugs. He testified that one William Jackson promised the victim crack cocaine if she would engage in sexual relations, that offer being explicitly made to apply to sexual relations with both the petitioner and his co-defendant, as well as Jackson. The "sex in exchange for drugs agreement" was confirmed by co-defendant Galloway. When Jackson did not "pay" the victim, she accused the petitioner and his co-defendant of rape. In corroboration of his defense, the petitioner proffered that the victim had freaked for drugs in the quite recent past. He proposed to prove that fact through the cross-examination of the victim with regard to her prior sexual conduct. By filing a motion in limine, he sought a pre-trial ruling as to the propriety of doing so. See Rainville v. State, 328 Md. 398, 404-405, 614 A.2d 949, 952 (1992); Prout v. State, 311 Md. 348, 355-356, 535 A.2d 445, 448-449 (1988); Watson v. State, 311 Md. 370, 372, 535 A.2d 455 457 (1988); Thomas v. State, 301 Md. 294, 316, 483 A.2d 6, 17-18 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985).

At an in-camera hearing, held to resolve the issue, see Article 27, § 461A(b), ³ the petitioner elicited testimony from the victim that she had been freaking for crack cocaine for approximately six months, usually in Pioneer City, across the street from Meade Village, where the alleged rape occurred. She had freaked for crack cocaine most recently, she said, one week prior to being raped. The victim explained that when she wanted to get high, she would engage in sex for crack cocaine at anytime of the day or night. She specifically denied freaking for cocaine on this occasion or having previously engaged in sexual relations with either the petitioner or his co-defendant.

The trial court ruled that the rape shield statute rendered the evidence inadmissible. It reasoned:

Then we're coming down that, three, that it supports a claim that the victim has an ulterior motive in accusing the Defendant; or four, it's offered for the purpose of impeachment. And what we find here is the defense is consent, and the defense wishes to put in prior sexual conduct of exchanging sex for drugs. None of these have occurred with the Defendants. So that rules them out on an issue of consent.

Then we have to look then what is--assuming that it's relevant--which I'm not making that assumption yet, and assuming its material, we have to weigh its inflammatory versus prejudicial nature [sic]. The fact that she may have done it before--well, cases say that if one is a prostitute, that does not go to the issue of consent. Here just because she may have done it in the past, doesn't show me any ulterior motive or it's going to make it safe for her in the community. ⁴ That I just do not accept. I have to believe that the prejudicial factor is greater than any probative factor as to that.

Now, what I was waiting for, curiously, if she would have denied this, and you had testimony to the fact to prove this, then it would have come in for impeachment purposes. And that--but she has admitted to it. So once she's admitted to it, it's not in for impeachment purposes. And based on that just to let it in that she may have done this on other occasions, that is exchange sex for drugs over a six month period, I think does not qualify to let it become admissible. So I am going to deny the motion.

The jury convicted the petitioner of first and second degree rape, first and second degree sexual offense, perverted practices and battery. The court sentenced him to a total of twelve years imprisonment.

Affirming, the Court of Special Appeals held that the trial court did not abuse its discretion in weighing the prejudicial impact of the proffered evidence against its probative value

in view of the great potential that the jury would have viewed the victim simply as a fallen woman and not focused on whether they believed her testimony that she was prepared to pay for the drugs as opposed to the testimony of appellant and Jackson that the understanding was that sex would be exchanged for drugs.

93 Md.App. at 538, 613 A.2d at 458. The court further opined:

Whether the jury may have been more inclined to believe that the victim had consented on this occasion if it had been provided with the evidence that she had exchanged sex for drugs in the past is problematic, ⁵ since she made clear that she had never engaged in sexual relations for drugs with the participants in this case. The net effect of admitting the evidence of prior sexual conduct would have been that the proceedings could have been refocused on an inquiry into prior sexual encounters with other partners.

Id. at 537-38, 613 A.2d at 458.

II.

The petitioner asserts that the proffered testimony that the victim habitually freaked for crack cocaine is highly probative; it is relevant, and material, to whether, on the night in question, she actually was freaking for crack cocaine, but became angry when she did not receive the promised consideration. This, he submits, "supports a claim that the victim had an ulterior motive in accusing the defendant of the crime." § 461A(a)(3). ⁶ The petitioner also posits that if, notwithstanding its relevance, materiality, and high probative value, the proffered testimony is nevertheless inadmissible because it does not fit within an enumerated exception, then the rape shield statute is unconstitutional as conflicting with his rights of confrontation, to present a defense, and to due process.

Citing White v. State, 324 Md. 626, 598 A.2d 187 (1991), the State maintains that the trial court did not abuse its discretion when it decided that the evidence that the victim's past sexual activity was not sufficiently linked to the facts of the case to be relevant to the victim's alleged motive to falsify the rape charge. Moreover, it asserts that the trial court exercised sound discretion in concluding that the prejudicial impact of the evidence of the victim's past sexual activity far outweighed its probative value. Finally, the State contends that the constitutional issue is not preserved for review. If preserved, however, the State says that the petitioner's argument is without merit because the proffered evidence is irrelevant; there is no constitutional right to the admission of irrelevant evidence.

III.

The rape shield statute provides, in pertinent part:

(a) Evidence relating to victim's chastity.--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. Evidence of specific instances of the victim's prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is:

(1) Evidence of the victim's past sexual conduct with the defendant; or

(2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or

(3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or

(4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim's prior sexual conduct in issue.

Maryland Code (1957, 1992 Repl.Vol.) Article 27, § 461(a). To be admissible, evidence of specific instances of a victim's past sexual conduct must fit within one of the enumerated exceptions and be found by the trial court to be relevant and material to a fact at issue in the case and to have probative value greater than its inflammatory or prejudicial nature. Section 461A(a)(3), pertaining to a rape victim's ulterior motive for making a false accusation, is statutory recognition of the defendant's right to inquire into the bias or prejudice of the victim. That right of inquiry is conditioned, as are the other exceptions, at the threshold, however, on the prior sexual conduct evidence having special relevance to a material issue in the case, and its probative value being greater than its prejudicial impact. The latter requirement reflects the legislative intent to exclude...