Mayes v. State
| Decision Date | 04 February 1982 |
| Docket Number | No. 78,78 |
| Citation | 50 Md.App. 628,440 A.2d 1093 |
| Parties | James Alexander MAYES v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Bradford C. Peabody, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on the brief, for appellant.
Stephen Rosenbaum, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Richard Berger, Asst. State's Atty., for Baltimore City on the brief, for appellee.
Submitted before MASON, LISS and WILNER, JJ.
James Alexander Mayes, appellant, was convicted at a bench trial in the Criminal Court of Baltimore of first degree rape. He was committed to the custody of the Division of Correction for thirty years. On appeal he contends:
1. That the court erred in failing to comply with the provisions of Maryland Rule 735 d. 1 regarding waiver of a jury trial.
2. That the evidence was insufficient to sustain his conviction of first degree rape.
Regarding Maryland Rule 735 d., the following colloquy occurred prior to trial:
MR. ELLIS (Counsel for appellant): Yes, Mr. Mayes you understand that as the Judge explained to you you do have a right to a jury trial.
THE COURT: Mr. Ellis I have explained it to him. I am satisfied that Mr. Mayes understood what I just told him. I am also satisfied that his very competent counsel yourself, has discussed this matter with him at great length.
Relying on Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979) and State v. Ricketts, 290 Md. 287, 429 A.2d 1025 (1981), appellant argues that Maryland Rule 735 d. was not complied with because he was not advised that the jury's verdict had to be unanimous. In holding that the record must show that the defendant has a basic understanding of the nature of a jury trial, the Court of Appeals in Countess said:
We think that this understanding is generally satisfied when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of twelve persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 jurors must agree that he is so guilty but in a court trial the judge may so find. Id. at 455, 408 A.2d 1302.
In the instant case appellant was advised, among other things, that a jury consisted of twelve persons and "those twelve jurors would have to decide beyond a reasonable doubt whether you are in fact guilty of committing the crime with which you are charged." We find no difference in the meaning of what the trial court advised appellant and what was said in Countess, i.e., "that in a jury trial all twelve jurors must agree that he is so guilty." Inasmuch as a verbatim recital of the language contained in Countess is neither required nor necessary to convey to a defendant that a jury's verdict of guilty must be unanimous, we think the language used by the lower court was in compliance with Maryland Rule 735 d. as interpreted by Ricketts and Countess.
As to appellant's argument that the evidence was insufficient to support his conviction of first degree rape, a review of the record discloses the following facts:
At approximately 7:00 a. m., on 18 September 1978 the victim, a thirty-three year old mother of three children, was grabbed from behind by appellant while she was walking to work on Reisterstown Road. When the victim screamed, appellant smacked her in the face and told her to shut up. He then put his arm around her and dragged her to a wooded area where a discarded box spring was located. At this point appellant told the victim to take off her clothes. According to the victim:
After cross-examination of the victim, the following colloquy occurred between the court and the victim regarding the offense:
THE COURT: Now, do I understand his way of making you submit to him was just using, grabbing you? Did he display any kind of weapon at any time?
A. No, he didn't show a weapon.
A. Yes.
The statutory elements of first degree rape as set forth in Maryland Annotated Code (1957, 1976 Repl.Vol., 1981 Cum.Supp.) Article 27, section 462, are as follows:
Section 462. First degree rape.
(a) What constitutes.-A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person and:
(1) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or
(2) Inflicts suffocation, strangulation, disfigurement, or serious physical injury upon the other person or upon anyone else in the course of committing the offense; or
(3) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or
(4) The person commits the offense aided and abetted by one or more other persons. The only sub-section of the first degree rape statute which is conceivably relevant to the facts in this case is sub-section 462(a)(3). Appellant concedes, as he must, that there was sufficient evidence to establish that the rape was accomplished by force against the will and without the consent of the victim. He argues, however, that in order to elevate a forceable rape to first degree rape one of the specific aggravating circumstances enumerated in section 462 must be established. Therefore, according to appellant:
It is not enough to be merely apprehensive or fearful in general, for the statute specifies that the appellant must 'place' the victim in fear of 'death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping....' Section 462(a)(3) (emphasis added). Fear of a 'smack' in the face with the hand, or fear of a bloody lip would hardly suffice under the terms of the statute.
The State, on the other hand, argues that appellant's striking the victim, under the circumstances in which it occurred, was reasonably calculated to create in the victim's mind a real apprehension of imminent and serious physical injury. Thus, according to the State, the evidence was sufficient to constitute rape in the first degree.
Under the statutory scheme of things the legislature divided the common law crime of rape into first and second degree. An accused is guilty of rape in the second degree if "he engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person...." Maryland Annotated Code (1981 Cum.Supp.) Article 27, section 463(a)(1). See State v. Rusk, 289 Md. 230, 424 A.2d 720 (1981). Unlike second degree rape, in order to find an accused guilty of first degree rape not only must it be established that he had...
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...sufficiently conveyed the requirement of jury unanimity to the appellant. Id. at 291, 449 A.2d 424; see also Mayes v. State, 50 Md.App. 628, 629-31, 440 A.2d 1093 (1982) (finding advisement sufficient to convey unanimity More recently, in Tibbs, the Court of Appeals considered a defendant's......
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