Parker v. State

• Decision Date: 08 April 2004
• Docket Number: No. 1726,1726
• Citation: 156 Md. App. 252,846 A.2d 485
• Parties: Elijah Sadik PARKER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

846 A.2d 485

156 Md. App. 252

Elijah Sadik PARKER v. STATE of Maryland.

No. 1726, Sept. Term, 2002.

Court of Special Appeals of Maryland.

April 8, 2004.

Mark Colvin (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.

Diane E. Keller (J. Joseph Curran, Jr., Attorney General on the brief), Baltimore, for appellee.

Argued before SALMON, BARBERA and SHARER, JJ.

SALMON, Judge.

Elijah Parker ("Parker") was convicted by a Frederick County jury of second degree rape and second degree assault. After sentencing, Parker noted this appeal and, inter alia, raises two novel questions, viz:

1. Under Maryland Rule 5-802.1(d), which sets forth a hearsay exception allowing the court to admit "a statement that is one of prompt complaint of sexually assaultive behavior to which the declarant was subjected if the statement is consistent with the declarant's testimony ...," may the court allow the testimony as to only one such prompt complaint?

2. Under Maryland law, can the trial court, in the exercise of its discretion, appropriately allow testimony concerning the victim's demeanor and behavior in the weeks and months after the [alleged] rape to rebut a contention that the sex was consensual?

I.

A. The State's Evidence

Elijah Parker (age seventeen) and Latissa F. ("Latissa") (age sixteen) lived in Frederick, Maryland, and dated between December 25, 2000, and the end of February 2001.¹ After their breakup, they remained friendly.

On Easter Sunday, April 15, 2001, Parker called Latissa and invited her to have dinner with him. She accepted. Parker picked up Latissa that evening at her house at approximately 6:00 p.m. Parker was accompanied by a friend named "George." Shortly thereafter, George was dropped off. Parker and Latissa drove around while they decided where to have dinner. Eventually Parker drove to the parking lot of the Burlington Coat Factory, stopped his car, and asked Latissa to get into the backseat to retrieve his book bag, which he said was under the front seat. Latissa did as requested, whereupon Parker joined her in the backseat and began kissing her. Latissa told him to stop, but he did not. She then tried to push him away, which angered Parker. He pushed back and began to curse. Parker then pinned Latissa down, pulled off her jeans and underwear, and had non-consensual vaginal intercourse with her.

After the rape, Latissa opened the car door and fell onto the pavement. Parker pulled her back into the automobile, got into the driver's seat, and started driving. Latissa dressed, as Parker drove. He warned her not to tell anyone what had occurred and said that he would hurt her again if she revealed what he had done. When Parker stopped at a traffic light, Latissa jumped out of the car and ran to a nearby Chinese restaurant, where she called the police.

At approximately 7:00 p.m., Frederick City Police Officer Heather Richter responded to Latissa's 911 call. When Officer Richter arrived at the restaurant, Latissa was crying, and her entire body was shaking.

Latissa immediately told Officer Richter that Parker had raped her. During questioning, Latissa was "very scared" and "continually" crying. This made it difficult for the officer to obtain further details. Nevertheless, Officer Richter learned from Latissa that the rape had occurred in the parking lot of the Burlington Coat Factory and that Parker had scratched her during the incident.

Officer Richter observed blood on Latissa's white tank top, above her breast. She

also saw a scratch on the upper part of Latissa's left arm, which was bleeding.

Officer Richter stayed with Latissa for several hours. As the evening wore on, she noticed that additional scratches started to appear on Latissa's left arm "from her shoulder down to her wrist." In Officer Richter's words, "They became red and puffy as if scratched by fingernails."

Latissa was taken to the Frederick Memorial Hospital where she was seen by Kim Day, a registered nurse. Ms. Day collected Latissa's clothing, including her underwear. According to Nurse Day's testimony, the underwear was "torn on the side at the elastic." The clothing was placed in a bag, sealed, and later turned over to Officer Richter.

Latissa's grandmother, Dorothy Worrell, visited Latissa at the hospital at approximately 12:30 a.m. on April 16, 2001. During the visit, Latissa grabbed Ms. Worrell and said, "Granny, Granny, Elijah raped me." Ms. Worrell observed that Latissa's face was "bruised," and her arm was bleeding and appeared to have been scratched. Additionally, there were "red marks" on Latissa's breasts and the back of her shoulder, according to Ms. Worrell's testimony.

Latissa lived with Ms. Worrell for several weeks following the attack. In that period, her behavior changed markedly from what it had been before the Easter incident—according to Ms. Worrell. Latissa was no longer the carefree sixteen-year-old she had been previously; after Easter, she never wanted to be left alone and insisted on sleeping in Ms. Worrell's bed. Moreover, post-rape, Latissa had to be taken out of school because of her fear of Parker. Due to these problems, Latissa was taken to the local rape crisis center. She also received counseling from her family doctor. Because she no longer felt safe in Frederick, Latissa moved to Hagerstown to stay with an aunt and then traveled to Nebraska, where she stayed with an uncle.

Some of Ms. Worrell's testimony as to Latissa's post-rape behavior also corroborated what Latissa had testified to, i.e., that after the rape, but prior to moving away, Latissa did not go back to school but instead stayed home and occupied herself by playing on the computer and watching movies.

B. The Defense Case

Although Parker did not testify, his counsel presented a consent defense. His principal witness was George Pacheco, who testified that one afternoon "around Easter" in 2001, he and Parker picked up Latissa in Parker's car. Also in the car were two other friends of Parker. After driving around for about ten minutes, Parker dropped off two of the friends; Parker, Pacheco, and Latissa then went to Parker's house. According to Pacheco, Parker and Latissa went upstairs to Parker's bedroom while Pacheco stayed in the living room. After about an hour, Pacheco saw Parker and Latissa arguing as they descended the stairs.

Parker, Latissa, and Pacheco got into Parker's car at approximately 5:00 p.m. and headed toward Latissa's house to drop her off. During the trip, Parker and Latissa continued to argue, and Latissa kept opening the car door and attempting to jump out. When the car stopped at a red light near the Fredericktowne Mall, Latissa got out of the car and walked away.

Another friend of appellant's, Larry Pryor, testified that on the afternoon of April 15, 2001, he rode in a car driven by Parker for about an hour and a half. With him in the car were Latissa, Pacheco, and one Roger Childs. Eventually Parker dropped off Pryor and Childs at the apartment where Pryor's sister lived.

The defense also called Officer Richter, who testified that Latissa told her that she was walking home from a friend's house when Parker pulled up next to her about 5:30 p.m. on April 15. Latissa also told Officer Richter that she and appellant drove around in Parker's car for about an hour and a half, and that Latissa said nothing about anyone else having been in the car.

II. DISCUSSION

A.

Appellant first claims that the trial court abused its discretion in permitting Ms. Worrell, Latissa's grandmother, to testify that Latissa had told her that appellant had raped her. He maintains that Latissa's hearsay statement to Ms. Worrell was inadmissible as a prompt complaint of sexual assault because evidence had already been presented that Latissa had promptly reported the alleged rape to Officer Richter.

Appellant contends that the sole purpose of admitting testimony about a prompt complaint of sexual assault is to negate any inference that might be drawn from the victim's failure to complain immediately. Because Officer Richter's testimony served that purpose, evidence of a second prompt complaint should not have been admitted, according to appellant.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Md. Rule 5-801. Generally, hearsay is inadmissible. Md. Rule 5-802. A hearsay statement may be admissible, however, under certain recognized exceptions to the rule if "circumstances provide the `requisite indicia of trustworthiness concerning the truthfulness of the statement.'" State v. Harrell, 348 Md. 69, 76, 702 A.2d 723 (1997) (quoting Ali v. State, 314 Md. 295, 304-05, 550 A.2d 925 (1988)); see Cassidy v. State, 74 Md.App. 1, 8-9, 536 A.2d 666 (1988)

(to be admissible, statement must fall under one of the recognized exceptions to the rule against hearsay).

A hearsay exception² set forth in Maryland Rule 5-802.1(d) reads:

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 declarant was subjected if the statement is consistent with the declarant's testimony.

"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...." State v. Werner, 302 Md. 550, 563, 489 A.2d 1119 (1985); see also Cole v. State, 83 Md.App. 279, 287, 574 A.2d 326 (1990)

("[A] victim's timely complaint of a sexual attack is admissible as part of the State's case-in-chief."). "[I]f the prosecutrix has testified to a violent assault, the fact of the making of complaint within a...