Rodgers v. State

• Decision Date: 21 June 1968
• Docket Number: No. 146,146
• Citation: 4 Md.App. 407,243 A.2d 28
• Parties: Robert Jasper RODGERS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 407

4 Md.App. 407

243 A.2d 28

Robert Jasper RODGERS v. STATE of Maryland.

No. 146.

Court of Special Appeals of Maryland.

June 21, 1968.

Morris Lee Kaplan, Baltimore, for appellant.

William E. Brannan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Alfred J. O'Ferrall, III, Asst. Atty. Gen., Charles E. Moylan, Jr., and Howard L. Cardin, State's Atty. and Asst. State's Atty. for Baltimore City respectively, on brief, for appellee.

Before MURPHY, C. J., and MORTON, ORTH, THOMPSON, JJ.

MORTON, Judge.

The Appellant was convicted of rape and common law assault by a jury in the Criminal Court of Baltimore and sentenced to twenty years imprisonment on the rape conviction and the sentence was suspended on the assault conviction.

Janice, the victim of the rape, was eleven years old and a student in the fifth grade. She testified that on October 7, 1966, at approximately 5:30 P.M. she was playing near a young friend's house. Peggy, the young friend, asked her to come into her house and there she saw the Appellant sitting in the living room. He then left the house and Janice departed a few minutes later to return to her home. She was immediately accosted by the Appellant who was standing by his car which was parked in front of the house. He forced her into the car and, according to Janice, drove first to a parking lot near Park Heights Avenue and Druid Hill Drive and then to Cahill Park where, as she stated, 'he pulled up my skirt, and then he pulled my underwear over to the side, and he stuck his penis in my vagina.' As a preliminary to the attack, he placed a four inch razor near her neck and told her he had already 'killed two little girls.' She stated that the Appellant was wearing a uniform with the words 'Park Circle written on it * * *.' She described the car he was driving as a blue and white, four door sedan and she unsuccessfully attempted to take down the license tag number by writing it on her leg. She gave the police two possible numbers but both were to vehicles owned by individuals who could not have been involved. She identified the Appellant in a police lineup; was unable to identify him at a preliminary hearing; and identified him at the trial, after extensive cross examination, where she said, 'I'm sure it's the man.'

Peggy testified that the Appellant came to her home in the late afternoon of the day in question and when told that her father was not at home, he asked if he could wait for him. Shortly thereafter the Appellant grabbed her, put a knife to her throat and ordered her to bring Janice into the house. After Janice came into her house, the Appellant immediately left, saying to Peggy, 'tell your father that Mr. John-No, Mr. Johnson was here.' Shortly thereafter Janice left and was told by Peggy to be careful. Peggy then saw the Appellant 'waiting outside with his car door open, and he grabbed Janice.' Peggy testified that she had seen the Appellant before since he had worked on her father's car but she did not know his name. She failed to identify the Appellant at the lineup. When asked, 'why?' she stated: 'Because I was afraid of him.' Likewise, she did not identify him at the preliminary hearing. However, she positively identified him at the trial and replied in the affirmative when asked if the Appellant was the man in her house who held a knife to her throat and who had forced Janice into his car.

The Appellant testified that he did work for Park, Circle Motors; that he owned a white 1958 Cadillac; that he left work on the day in question at 5:05 P.M. in the company of several fellow employees; stopped and had some drinks and was home by 6:20 P.M. where he remained with his wife and six foster children, the remainder of the evening. His wife corroborated his testimony in this regard.

A representative of Park Circle Motors testified that the uniform worn by the employees displayed the Chevrolet emblem and name and the name of the employee, but not the name Park Circle Motors.

In this appeal, it is first contended that the lower court erred in refusing to submit the following question on voir dire: 'Do you believe that the members of the Negro race have a greater inclination to commit sex crimes than members of other races?' We find this contention to be without merit. The lower court did propound the following question to the prospective jurors:

'Do any of you have any prejudices against members of the Negro race, which would prohibit your rendering a fair, just, and I will add, impartial decision in the case now being called which involves a member of the Negro race?'

The nature and extent of the voir dire examination rest in the sound determination of the trial court. Culver v. State, 1 Md.App. 406, 417, 230 A.2d 361. Its purpose is to ascertain whether the prospective jurors are free from bias or prejudice and capable of making objective and impartial findings. McIntyre and Davis v. State, 1 Md.App. 586, 232 A.2d 279. In view of the question propounded by the lower court, we find no abuse of its discretion in refusing to submit the question proposed by the Appellant.

Likewise, we find no merit in the Appellant's contention that two members should have been eliminated from the jury for cause since they had proveiously served on a past grand jury. They were not members of the grand jury which returned the indictment of the Appellant and they were asked whether an indictment by the grand jury raised a presumption of guilt in their minds or amounted to evidence of guilt. The Appellant cites no authority, and we are unaware of any, which supports the view that these jurors, under the circumstances, should have been disqualified for cause. For the same reason, we find no merit in his contention that a third member of the jury should have been disqualified because he was related to a police officer (who had no connection with the Appellant's case). Borman v. State, 1 Md.App. 276, 229 A.2d 440.

The Appellant next contends that Janice, the eleven year old rape victim, was not properly qualified to testify. The record indicates that upon inquiry by the State's Attorney, she testified that she was taught in church 'not to tell a lie'; that people who tell lies 'get punished'; that she was going to tell the truth; and when asked on cross examination by defense counsel what the State's Attorney had told her, she replied, 'he told me just to tell the truth.' The legal capacity of children to testify is within the sound discretion of the trial court. Horsey v State, 225 Md. 80, 169 A.2d 457; Robert v. State, 220 Md. 159, 151 A.2d 737; Saldiveri v. State, 217 Md. 412, 143 A.2d 70; Reckard v. State, 2 Md.App. 312, 234 A.2d 630. We see no abuse of discretion by the trial judge in his finding that the victim was qualified to testify.

The Appellant also contends that the lower court erred in overruling his objection to testimony relative to Janice's statement at the time of the lineup. He is evidently referring to Peggy's statement since there is nothing in the record relative to a statement by Janice at the lineup. Over Appellant's objection, the State was permitted to ask a police officer what Peggy stated when she was asked by the police why she didn't pick the Appellant out of the lineup. The officer was permitted to answer: 'She said 'cause I was scared'.' It is urged that this was hearsay evidence and therefore inadmissible.

The victim, Peggy, had not been asked by the State's Attorney on direct examination anything relating to the lineup at which she failed to identify the Appellant. However, on cross examination by defense counsel she was asked whether she attended a lineup containing the Appellant and had been able to identify him. She answered: 'No, I was scared.' Later in the trial the defense called Sergeant Flynn of the Baltimore City Police Department and interrogated him regarding a lineup containing a...