Lucado v. State

• Citation: 40 Md.App. 25,389 A.2d 398
• Decision Date: 13 July 1978
• Docket Number: No. 1075,1075
• Parties: Daniel Joseph LUCADO v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 25

40 Md.App. 25

389 A.2d 398

Daniel Joseph LUCADO v. STATE of Maryland.

No. 1075.

Court of Special Appeals of Maryland.

July 13, 1978.

George E. Burns, Jr., Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Wehland, State's Atty. for Howard County and Ronald L. Spahn, Deputy State's Atty. for Howard County on the brief, for appellee.

Argued before THOMPSON, LISS and WILNER, JJ.

WILNER, Judge.

Appellant and a co-defendant were charged with a first-degree sexual offense, robbery, kidnapping, and a number of related offenses. A jury in the Circuit Court for Howard County convicted appellant of a sexual offense in the first degree, robbery, and battery, for which he was sentenced to four years' imprisonment. ¹

All of this emanated from an incident occurring in the early morning hours of August 22, 1976, involving one K.D., then 18-years of age. Mr. D testified that, at about 1:00 a.m., he was on "the Block" (for the uninitiated, this is an "adult entertainment" strip of several blocks along East Baltimore Street in Baltimore City), waiting for two friends whom he had arranged to meet. He had expectations of starting a new job promising a substantial increase in income, and wanted to celebrate. While strolling down the street, appellant approached him and engaged him in conversation "started talking about the Block and whores and buying them, and things like that." Suddenly, appellant grabbed his arm, forced him into a car, pushed his head down, and threatened him with what Mr. D claimed was a knife. The co-defendant, Charles Linton, was sitting in the driver's seat, and immediately drove off.

According to Mr. D, they drove into the country and stopped at a church: "(W) hen we stopped, they kept telling me we were going to a whorehouse, and they pointed to a big church, and they said it was a whorehouse, that's where I was going to die that night." D fled from the car, but was captured and forced to return, whereupon they drove to another spot. At this point, appellant forced D to remove his pants and to perform fellatio, at the conclusion of which appellant and Linton changed places, and D was forced to perform the same act on Linton. During this ordeal, D was periodically struck by the assailants, and his wallet, containing over $150, and a watch were taken. Appellant, in addition, attempted to have anal intercourse with D. When all of this had ended, D was forced from the car and nearly killed when appellant swung at him with a tire iron. Linton persuaded appellant to desist in this effort, at which point, D was placed back in the car, driven around for a while and finally let go. As the assailants drove off, D noticed part of the license number, which he gave to the police.

During cross-examination of D, both defense counsel intimated, through their questioning, that D was a homosexual, that he initiated the sexual activity, and that he enjoyed what happened to him. D unequivocally denied such suggestions. That this would be the principal line of defense became clear when appellant testified on his own behalf. He admitted being on "the Block" with Linton on the evening in question, but claimed that D initiated the conversation, voluntarily got into the car, and initiated the sexual contact first with Linton and then with appellant. All allegations of force, coercion, and brutality were denied, as were the explicit acts testified to by D. Appellant claimed that D had grabbed him "started messing around with me, and I pushed him away." The clear, unmistakable import of appellant's testimony was that D was homosexual and had initiated everything that occurred in the car. Linton, who also testified, gave essentially the same story; he also charged D with initiating all of the episodes of fellatio and attempted anal intercourse.

At the close of the case for the defense, the State advised the court (and defense counsel) that it had one rebuttal witness Mr. D's uncle, who would testify as to "the non-homosexuality of Mr. (D)." The legal theory for admitting such testimony, according to the State, was that, "where consent is made a part of the defense . . . the State has the right, in rebuttal, to prove that he is not, there was not consent, that this was not the kind of person that consented. The question of homosexuality they've accused him of being a homosexual." Appellant's counsel objected on the ground that "the uncle is not competent to prove that homosexuality or lack thereof . . .". The objection was overruled, and the State then produced Police Sergeant Luberecki, D's uncle. Sergeant Luberecki testified, without further objection, that he had known D all of his (D's) life, that he had no reputation for being a homosexual, that Luberecki knew of no instances of homosexual activity on D's part, and that D had never before been accused of being a homosexual. Both defense counsel briefly cross-examined Luberecki. No motion to strike any of the testimony was made.

In this appeal, appellant raises one question: Did the trial judge err in permitting testimony as to the victim's alleged lack of reputation as a homosexual? He contends, of course, that there was error, and grounds his assertion on Md.Annot.Code art. 27, § 461A, the pertinent part of which provides that "(e)vidence 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 rape or sexual offense in the first or second degree." The thrust of appellant's argument, of course, is that Sgt. Luberecki's testimony to the effect that D was not homosexual and had no reputation for being so amounted to evidence relating to D's "chastity", and was thus precluded under the statute.

Unfortunately, before considering the question of statutory Interpretation whether "evidence relating to a victim's chastity" includes evidence relating to a victim's non-homosexuality we must address the question of statutory Application. This is made necessary because the particular language in the statute upon which appellant must, of necessity, rely was not the law at the time of his trial. It became effective later.

The legislative history of § 461A brings both questions application and interpretation more clearly into focus. This section was originally enacted by Laws of Md., 1976, ch. 574 (House Bill 715), one of two bills emanating from a Special Legislative Committee on Rape and Related Offenses that were passed by the General Assembly in 1976. The other bill (Senate Bill 358) was enacted as Chapter 573.

As originally introduced, House Bill 715 made evidence as to a victim's reputation for chastity inadmissible in "any prosecution for commission of a rape or sexual offense." The use of the phrase "sexual offense" had clear reference to the provisions of the companion bill Senate Bill 358 which, in its first reader form, repealed the common law crime of rape and the statutory reference to it in art. 27, § 461, and substituted instead four degrees of "sexual offense". Had the Senate Bill been enacted in its introductory form, there would have been no crime of rape only the four degrees of "sexual offense".

During the legislative process, substantial amendments were made to both bills by the House of Delegates. The main bill Senate Bill 358 was amended to put back into the bill (and therefore the law) the crime of rape. What are now §§ 462 and 463 were added to the bill, defining and making criminal first and second degree rape, and "vaginal intercourse" was excluded from the definition of "sexual act", which was the basis for the newly created "sexual offenses". The clear and unmistakable intent of these amendments was to reinstate rape, in its two degrees, as a crime separate and apart from the new sexual offenses. Corresponding amendments were made to House Bill 715. Whereas, as noted, the bill originally excluded evidence pertaining to chastity in prosecutions for a "sexual offense", as amended, the words "sexual offense" were stricken, and the word "rape" substituted.

When the bill passed over to the Senate, an attempt was made to restore it nearly to its original form. Amendments were added that would have made the bill, and thus the exclusionary rule, applicable to both rape and sexual offenses; however, a day later, the bill was reconsidered and all of those Senate amendments were withdrawn. ² The bill then passed, and was signed into law, with the limiting amendments placed on it by the House of Delegates.

As enacted, a deliberate change had been made in the bill. Fully aware of the amendments made to the companion Senate Bill 358 making (or keeping) criminal both rape and the other sexual offenses, the General Assembly explicitly limited the scope of the House Bill's exclusionary rule to prosecutions for rape. Both bills took effect July 1, 1976.

In its 1977 session, the General Assembly enacted Laws of Md., 1977, ch. 294, which expressly made § 461A applicable to prosecutions for sexual offenses in the first or second degree. However, that bill did not take effect until July 1, 1977. Appellant was tried in May, 1977, when only the provisions of the 1976 enactment were in effect. ³ Appellant having been charged with a sexual offense, and not with rape, it is apparent that, even if § 461A were to be construed in the manner desired by appellant, it would not have precluded the admission of Sgt. Luberecki's testimony at the time it was offered; and, had appellant objected to the testimony on that basis, the objection would have been properly overruled.

Since the 1977 amendment is in effect now, however, the question is whether we must apply it retrospectively. The Court of Appeals has told us that we must do exactly that. In Janda v. General Motors, 237 Md. 161, at page 169, 205 A.2d 228, at page 233...