Nelson v. State

• Decision Date: 09 March 2001
• Docket Number: No. 1069,1069
• Citation: 768 A.2d 738,137 Md. App. 402
• Parties: Drexel Devoe NELSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

768 A.2d 738

137 Md. App. 402

Drexel Devoe NELSON v. STATE of Maryland.

No. 1069, Sept. Term, 2000.

Court of Special Appeals of Maryland.

March 9, 2001.

Jennifer P. Lyman, Assigned Public Defender of Washington, D.C. (Stephen E. Harris, Public Defender of Baltimore, on the brief), for appellant.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Jack Johnson, State's Atty. for Prince George's County of Upper Marlboro, on the brief), for appellee.

Argued before MURPHY, C.J., and CHARLES E. MOYLAN, Jr.(Retired, specially assigned), and DANIEL M. LONG, (specially assigned), JJ MOYLAN, Judge.

In evidentiary terms, how does one classify a victim's reporting or recounting of a sexual attack when that report is offered at trial through the testimony of the person who heard it? Perplexingly, it may be many things, each with its own qualifying rules and each with its own evidentiary significance.

It may sometimes be a prior consistent statement, admissible only in rebuttal and only after the victim has testified, offered to rehabilitate the victim's impeached testimonial credibility. In that capacity, it is non-hearsay. Cole v. State, 83 Md.App. 279, 296-302, 574 A.2d 326, cert. denied, 321 Md. 68, 580 A.2d 1077 (1990). It may sometimes, on the other hand, be an "excited utterance," an exception to the Rule Against Hearsay, admissible as substantive evidence whether the victim testifies or not. In that capacity, it is hearsay, an out-of-court assertion received in court for the truth of the thing asserted. 83 Md. App. at 302-05, 574 A.2d 326; Cassidy v. State, 74 Md.App. 1, 16-23, 536 A.2d 666, cert. denied, 312 Md. 602, 541 A.2d 965 (1988). It may on some occasions be a "statement to a treating physician," another exception to the Rule Against Hearsay, also admissible as substantive evidence whether the victim testifies or not. In that capacity, it is also hearsay, albeit admissible hearsay. Cassidy v. State, 74 Md. App. at 23-50, 536 A.2d 666. It may also be, as were several reports made by the victim in this case, a "prompt complaint" of a sexual attack, admissible only if the victim testifies. In that capacity, it straddles an increasingly blurred line between hearsay and non-hearsay,¹ but it is admissible in either event. In this opinion, as we deal, in turn, with each of three out-of-court reports by the victim, we will make every effort not to wander across doctrinal boundary lines and to keep each examination of deceptively similar but legally dissimilar sub-issues analytically distinct.

The Case Before Us

The appellant, Drexel Devoe Nelson, was convicted by a Prince George's County jury, presided over by Judge Michele D. Hotten, of 1) second-degree rape, 2) a second-degree sexual offense, and 3) child abuse. On this appeal he complains that three separate out-of-court declarations the victim made to three separate witnesses were erroneously admitted into evidence in ostensible violation of the Rule Against Hearsay.

The Factual Background

The appellant and Marcia P. had had, as of March 28, 1999, an "on again-off again" sexual relationship for eight or nine years. He spent the night of Saturday-Sunday, March 27 28, at her apartment in Prince George's County. He was still in bed when she left the apartment at about 8:00 A.M. to fill in for an usher at her church. Ms. P. also had her two daughters living in the apartment with her: Aisha, who was then thirteen years old, and Amaris, who was eleven.

Aisha, the sexual assault victim in the case, testified that at approximately 9:45 A.M. that Sunday morning, the appellant came into her bedroom, awakened her, and led her into her mother's bedroom. He lay down on the bed and rubbed her back as she, clad in a knee-length night shirt, sat on the bed. He asked her to lie down beside him and she acquiesced. He first hugged her and put his hand under her shirt. He then "went under the cover," removed her underpants, and "began to lick my vagina." As she "just laid there... he came up and stuck his penis in my vagina." She complained that he was hurting her and told him to "take it out." After hesitating for approximately one minute, he ultimately did so. It was as the appellant was "getting off of me" that eleven-year-old Amaris walked into the room. She said, "Excuse me," and left.

The appellant testified and denied engaging in either cunnilingus or sexual intercourse with Aisha. He acknowledged, however, that she had climbed into bed with him because she was not feeling well. To comfort her he "gave her a hug and kissed her on the forehead, in a fatherly manner." It was at that point that Amaris came into the bedroom.

Three Out-of-Court Statements

The tripartite "hearsay" issue (an admissibility issue, in any event) is before us because three State's witnesses testified that Aisha reported to them about having been raped. Aisha's first account (a complaint) was to her sister, Amaris. It was made immediately after the appellant left the apartment shortly after the rape. The second account (also a complaint) was made the next day at school when Aisha talked to her school counselor. The third account was made as a result of the school counselor's having notified Aisha's mother about the attack and the mother's taking of Aisha to the Sexual Assault Examiner at the Prince George's County Hospital.

Out-of-Court Declaration No. 1: The Victim's Prompt Complaint Made to Her Little Sister

The appellant at least has preserved for appellate review his challenge to the little sister's recounting of the complaint made to her by Aisha shortly after the appellant left the apartment. Immediately after the rape, Aisha showered and got dressed. As soon as the appellant left the apartment, Aisha called Amaris into the bedroom. Amaris told Aisha that "she smelled." Aisha showered again.

Although the thirteen-year-old victim and her eleven-year-old sister were extensively probed about the details of their conversation one full year after it occurred, they both firmly maintained that a conversation concerning the sexual attack took place between them shortly after the appellant left the apartment. Aisha testified that she had "a conversation" with Amaris. The direct examination immediately went on to other issues and she was never asked what it was that she had told Amaris. She acknowledged, however, that she told the police that she had informed Amaris of "what really happened."

On direct examination, Amaris, in her turn, was asked whether she had "ever talked" with Aisha and was asked what Aisha had told her. There was an immediate objection. The objection was overruled and Amaris answered that Aisha had told her that "she was raped." The very cursory examination of Amaris on that point then concluded and it was never made clear whether the word "rape" was a direct quotation from Aisha or was Amaris's summary of the event reported by Aisha. In either event, it was a prompt complaint about a sexual attack.

The Admissibility of a Prompt Complaint As Substantive Evidence

It has been the settled law of Maryland for over one hundred years that "a victim's timely complaint of a sexual attack is admissible as part of the State's case-in-chief." Cole v. State, 83 Md.App. at 287, 574 A.2d 326. As Judge Eldridge stated for the Court of Appeals in State v. Werner, 302 Md. 550, 563, 489 A.2d 1119 (1985):

"In prosecutions for sex offenses, evidence of the victim's complaint, coupled with the circumstances of the complaint, is admissible as part of the prosecution's case if the complaint was made in a recent period of time after the offense."

See also Leek v. State, 229 Md. 526, 527, 184 A.2d 808 (1962); Shoemaker v. State, 228 Md. 462, 466-67, 180 A.2d 682 (1962); Saldiveri v. State, 217 Md. 412, 416-18, 143 A.2d 70 (1958); Murphy v. State, 184 Md. 70, 76, 40 A.2d 239 (1944); Green v. State, 161 Md. 75, 79-82, 155 A. 164 (1931); Blake v. State, 157 Md. 75, 80-82, 145 A. 185 (1929); Legore v. State, 87 Md. 735, 736-38, 41 A. 60 (1898). See also Corbett v. State, 130 Md.App. 408, 420-21, 746 A.2d 954, cert. denied, 359 Md. 31, 753 A.2d 3 (2000); Harmony v. State, 88 Md. App. 306, 321, 594 A.2d 1182 (1991); Guardino v. State, 50 Md.App. 695, 705-06, 440 A.2d 1101 (1982); Cantrell v. State, 50 Md.App. 331, 336-38, 437 A.2d 696 (1981); Estep v. State, 14 Md.App. 53, 67-69, 286 A.2d 187 (1972); Smith v. State, 6 Md.App. 581, 586-87, 252 A.2d 277 (1969); Price v. State, 5 Md.App. 127, 131, 245 A.2d 600 (1968); Hubbard v. State, 2 Md.App. 364, 369-70, 234 A.2d 775 (1967); Culver v. State, 1 Md.App. 406, 413-14, 230 A.2d 361 (1967).

6 Lynn McLain, Maryland Evidence (1987), Sect. 613.2 at 170-71, observes:

"In a few special situations, prior consistent statements are admissible even when the witness has not been impeached. Prior identifications of the criminal defendant by the witness may be so proved, as may timely complaints of rape." (Footnotes omitted) (Emphasis supplied.)

In this same regard, McCormick on Evidence (E. Cleary 3d ed.1984), Sect. 297, points out, at 859:

"In rape cases traditionally, and increasingly in cases of sex offenses generally, evidence has been held admissible that the victim made complaint. The only time requirement is that the complaint have been made without a delay which is unexplained or is inconsistent with the occurrence of the offense, in general a less demanding time aspect than with the typical excited utterance situation." (Footnotes omitted).

See also Joseph F. Murphy, Jr., Maryland Evidence Handbook, (1991 Cumulative Supplement), Sect. 801(D), at 87-88.

That principle of law is now embodied in Maryland Rule 5 802.1(d):

The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule:

....

(d) A statement that is one of prompt complaint of sexually assaultive behavior to which the

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