Sessoms v. State, 68

• Decision Date: 11 January 2000
• Docket Number: No. 68,68
• Citation: 357 Md. 274,744 A.2d 9
• Parties: James SESSOMS v. STATE of Maryland.
• Court: Maryland Court of Appeals

744 A.2d 9

357 Md. 274

James SESSOMS v. STATE of Maryland.

No. 68, Sept. Term, 1999.

Court of Appeals of Maryland.

January 11, 2000.

Daniel H. Weiss, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.

CATHELL, Judge.

On April 16-21, 1998, petitioner, James Sessoms, was tried before a jury in the Circuit Court for Baltimore City on a seven-count indictment alleging rape, assault, assault with intent to rape, and sexual offenses. At the close of the State's case, the trial court granted defense counsel's motion for judgment of acquittal as to the charge of assault with intent to rape, but denied it as to the remaining charges. The jury convicted petitioner of a third-degree sexual offense, acquitted him of the remaining charges, and the court imposed a ten-year sentence. Petitioner appealed to the Court of Special Appeals, which affirmed his conviction in an unreported decision. He presents two questions, for which we have granted a writ of certiorari:

1. Does the test for admitting other crimes evidence enunciated in [State v. Faulkner], 314 Md. 630, 552 A.2d 896 (1989), apply when such evidence is not offered against the defendant, but in order to establish a defense?

2. Is a missing witness inference, the basis of which is speculation, properly argued to the jury when no missing witness instruction is generated by the evidence?

I. Facts

The facts in this case are somewhat convoluted. Tracy Dillon testified that at approximately 7:30 p.m. on December 24, 1996, she was walking through an alley en route to a store to purchase a lottery ticket. She emerged from the alley on Baltimore Street where she encountered a man she later identified as petitioner, who attacked her from behind, dragged her into an alley, and raped her twice at knife point. Her assailant then released her and she ran home. Before reaching her house, Tracy Dillon saw her brother, Kelly Dillon and a companion, Antonio Shields, on the corner of Lexington and Amity Streets.

Kelly Dillon testified that when he observed his sister approach he noticed that she was crying and dirty, with leaves in her hair and blood on her hands. After Tracy Dillon told her brother what had happened, she, Kelly Dillon, and Antonio Shields began searching the neighborhood for the perpetrator. Upon locating petitioner on the corner of Fayette and Schroeder Streets, the three of them confronted him. Petitioner allegedly stated, "I didn't do nothing to her," to which Kelly Dillon responded, "[W]e didn't said you did." Tracy Dillon smelled petitioner to confirm that his cologne was the same as her attacker's. Kelly Dillon noticed dirt and debris on petitioner's clothes and then compared the aromas of Tracy Dillon and petitioner. Determining that the scents matched, Kelly Dillon and Antonio Shields then severely beat petitioner into a state of semi-consciousness.

Officer Edward Marshall testified that when he responded to the complaint he found a hysterical Tracy Dillon standing about fifteen feet from petitioner, who was now laying unconscious in the street. By the time he arrived on the scene, Kelly Dillon and Antonio Shields had already fled, apparently because Kelly Dillon believed there was a warrant out for his arrest. Tracy Dillon remained and informed Officer Marshall that petitioner had raped her and that petitioner had just been assaulted by two unknown men. The officers accompanied Tracy Dillon to the scene of the alleged rape and recovered her scarf and money; however, a search conducted to find the knife was unsuccessful. Tracy Dillon was then transported to Mercy Hospital.

Nurse Sharon Will, who was received as an expert in sexual assault forensic examination, testified that she examined Tracy Dillon at Mercy Hospital. She informed the trial court that Tracy Dillon's coat had debris on it, her shirt and pants were stained, her pants soiled and her underwear was stained with blood. A sexual examination was performed and although no semen was found, the exam revealed abrasions on Tracy Dillon's neck and left elbow, and lacerations in her anal-genital region, which Nurse Will stated were consistent with non-consensual sex. Additionally, Tracy Dillon admitted to Nurse Will that she knew who had attacked petitioner, but refused to reveal their names.

At the close of the State's case, defense counsel moved for judgment of acquittal on all counts of the indictment. The trial court granted defense counsel's motion for judgment of acquittal as to the charge of assault with intent to rape, but denied it as to the remaining charges.

Testifying on his own behalf, petitioner denied touching Tracy Dillon in any way. He told the jury that on the evening of December 24, 1996, he was walking down Baltimore Street to purchase two lottery tickets, cigarettes, and vodka. He was approached by two men, one of whom claimed that petitioner had robbed his sister of $40.00. After petitioner denied it, the two men attacked him, beating him until he was unconscious. Petitioner's next memory was of regaining consciousness in University Hospital on December 25, 1996, with his girlfriend, Paulette Alderman, waiting by his hospital bed. Petitioner claims that while she was visiting, he was permitted by police to retrieve several items from the pants he had been wearing the night he was attacked. He planned to give her the contents of the pockets for safekeeping. During this inspection, petitioner noticed that two $5.00 bills and two lottery tickets, which he had in his possession prior to his being attacked, were missing.

Immediately preceding opening statements, the State raised a motion in limine to exclude evidence of an allegation that Kelly Dillon had robbed Tyrone Pitman early in the morning of December 25, 1996, just a few hours after the alleged attack on his sister, Tracy Dillon, and the beating of petitioner, and in the same general vicinity. Defense counsel argued at the hearing on the motion that Tracy Dillon had fabricated the rape charges to cover up the fact that her brother had robbed and beaten petitioner. In support of this theory of the case, defense counsel wanted to introduce evidence that when Officer Francis Shipp was driving Tracy Dillon home at approximately 2:45 a.m. on December 25, 1996, Tracy Dillon saw and identified Kelly Dillon as her brother to the officer. Just moments later, Tyrone Pitman ran up to the police car and informed Officer Shipp that he had just been robbed by "that man," referring to Kelly Dillon.¹ Upon hearing Mr. Pitman's accusation, Tracy Dillon responded, "I ain't saying it is my brother or isn't my brother." Petitioner contends that evidence that Mr. Pitman was robbed by Kelly Dillon within hours of Tracy Dillon's rape and petitioner's beating was relevant, particularly when coupled with Tracy Dillon's inconsistent statements concerning her brother's identity, and petitioner's claim of a robbery and his missing money and lottery tickets. This information was all related to petitioner's defense that he was a victim of a robbery at the hands of Kelly Dillon and that Tracy Dillon had falsely accused him of rape to cover for her brother's involvement in the robbery and assault on petitioner and the robbery of Pitman.

The trial judge ruled to exclude the evidence of the Pitman robbery based on the following rationale:

But I'm not going to allow the very, very prejudicial testimony of some stranger running up to the car saying, that guy robbed me, and the stranger saying, and that guy was the victim's brother, I'm not going to allow that....

....

... [A]s I understand the rules of evidence, I must decide whether that information is more prejudicial than probative. As I would have to make that decision, if this were an allegation of robbery, and if I allow other past allegations of robbery, because if the jury hears that, the jury presumes that he's a robber. Pattern of robbery. I don't think that this is any less prejudicial, the particular point that somebody ran up to the car and said, that guy just robbed me or tried to rob me. Okay. I think its more prejudicial than probative.

As a result, defense counsel was permitted to ask Tracy Dillon only about her initial identification of her brother to Officer Shipp and her subsequent recanting statement, "I ain't saying it is my brother or isn't my brother"; however, defense counsel was precluded from eliciting the context in which these inconsistent statements were made, i.e., in response to Mr. Pitman's complaint that he had just been robbed by Kelly Dillon.

During closing arguments, the State argued, over objection, that petitioner's claim that he was robbed was uncorroborated and untrue. Defense counsel never called petitioner's girlfriend, Paulette Alderman, to testify and the court allowed the State to argue that she was a missing witness and to argue an inference that, because she did not testify, her testimony would have been detrimental to petitioner's case.

The jury convicted petitioner of a third-degree sexual offense and acquitted him of the remaining charges. The court imposed a ten-year sentence immediately following the verdict. Petitioner appealed to the Court of Special Appeals on three issues: (1) whether the trial court erred in excluding evidence of other crimes of a witness; (2) whether the trial court erred in permitting the State to make certain remarks during closing argument; and (3) whether petitioner's conviction was barred by the principles of double jeopardy. The Court of Special Appeals found no error and affirmed the judgments of the circuit court. As we have indicated, we granted a writ of certiorari.

We hold that the test for admitting other crimes evidence in criminal proceedings...