Shand v. State
| Decision Date | 01 September 1994 |
| Docket Number | 861,Nos. 860,s. 860 |
| Citation | 653 A.2d 1000,103 Md.App. 465 |
| Parties | , 63 USLW 2591 Leroy Anthony SHAND and Floyd Jackson Bailey v. STATE of Maryland. Kevin Christopher ALLEN v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
David P. Kenney, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.
Submitted before ALPERT, WENNER and HARRELL, JJ.
On 20 May 1994, appellants, Leroy Anthony Shand, Floyd Jackson Bailey, and Kevin Christopher Allen, were convicted by a jury in the Circuit Court for Prince George's County of first degree rape and related charges. Shand was convicted of one count of first degree rape, one count of first degree sexual offense, and one count of assault. Bailey was convicted of one count of first degree rape and one count of assault. Allen was convicted of one count of first degree rape. Appellants were sentenced as follows: Shand--thirty years for the first degree rape count, thirty years concurrent for the first degree sexual offense count, and thirty years concurrent for the assault count; Bailey--twenty years for the first degree rape count and twenty years concurrent for the assault count; Allen--eighteen years for the first degree rape count. Appellants filed timely notices of appeal to this Court, but presented their arguments in a consolidated brief.
We have divided and re-phrased appellants' issues as follows to facilitate our discussion:
I. Did the trial court err by granting the State's motion in limine to exclude evidence that the victim had traded sex for drugs with Shand prior to the alleged rape?
II. Did the trial court err by forbidding appellants from referring to evidence that the victim had agreed with Shand to exchange sex with appellants for the forgiveness of her brother's drug debt at the time of the alleged rape?
III. Were appellants denied certain constitutional rights, including the right to confront and cross-examine their accuser and the right to due process?
IV. Was the evidence insufficient to support appellants' convictions?
Joshua Brooks and his sister, the alleged victim, lived in Apartment 401 of the Forest Creek Apartments, located at 6553 HilMar Drive in Forestville, Maryland. Brooks testified that on 9 October 1993, he had a conversation with Shand regarding money he owed Shand for drugs. Brooks explained that he would pay Shand "the next day by 12 o'clock." According to Brooks, Shand was "mistaken" and returned to Brooks' apartment at 10:30 p.m. that evening with four other men, including Bailey, Allen, and Lamiah Hall 1, to collect payment. Brooks testified that Shand and the four men met him outside of his apartment building and that they discussed the debt for approximately thirty minutes. At the conclusion of their conversation, Brooks, Shand, and the four men went upstairs to Brooks's apartment to ask the victim for money. After the victim explained that she had no money, Shand insisted that Brooks go back outside the apartment. Once outside, Brooks testified that the men circled him and began "patting [his] pocket and ... took [his] stuff out of [his] After making the two telephone calls, Brooks went back to his apartment. He testified that the door was open and that when he entered, he was instructed by Hall to "stand still." Brooks stated that he did not see the victim at that time. Shand then appeared from the bedroom, again requesting his money; Brooks responded that he "was waiting on some money."
pockets," including a pocket knife. 2 According to Brooks, Bailey stated that they "were going to bust [Brooks] up." Brooks was then permitted, from a neighbor's apartment, to telephone his other sister, Judy Brooks, to ask her for money to pay Shand. Brooks then called his brother, Grady Lane, to ask him for the money
Brooks next let McDaniel Alvin Thomas (Alvin), a friend of the victim's, into the apartment. Brooks testified that at the time he opened the door for Alvin, four of the men were in the back while Hall, Brooks, and Alvin remained in the front of the apartment. Brooks then asked Alvin for money to pay Shand; Alvin explained he had no money.
Brooks "decided then that [he] was going to try to go get some help." He left the apartment and went down the stairs. Once outside, he attempted to jump some bushes and injured his right knee. Brooks hobbled to a nearby apartment building basement and remained there until the morning when he was taken by ambulance to Prince George's County Hospital.
The victim testified that at approximately 11:00 p.m. on 9 October 1993, Brooks, appellants, and Lamiah Hall entered her apartment. Shand, from whom the victim admitted buying drugs in the past, explained that Brooks owed him money for drugs. Soon thereafter, all the men, including Brooks, left the apartment. The victim testified that when Shand returned, he threatened her with her brother's pocket knife and led her into the bedroom. According to her, Shand then "put The victim explained that, after what seemed like hours, the men left her apartment. She immediately locked the door behind them. At this time, Alvin was sitting in the living room. The victim testified that she told Alvin that "those guys came in here and raped me because they wanted money from my brother." The victim then took a bath for approximately one-half hour, had a drink, and walked to a nearby pay telephone to call her sister. The victim testified that she told her sister "that some guys came in my house, wanted money, saying Josh owed them money and they raped me."
his penis in [her] mouth and in [her] vagina several times" without her consent. A short time later, four men entered the bedroom, including Bailey and Allen, and Shand told "each one of them what to do, when to go first, when to go second, when to go third, or whatever." The victim testified that, notwithstanding her pleas to stop and that they were hurting her, "[e]ach one of those three put their penis in [her] mouth and in [her] vagina over, and over, and over, and over." 3
Shortly after the victim returned home, she was visited by Grady Lane and several police officers. She explained that she had been raped and gave the police officers descriptions of her attackers. The officers then escorted the victim to the police station. On the way to the station, the victim saw and identified Allen, Hall, and Shand as three of the men who had raped her. All three were arrested and a pocket knife was seized from Shand. Bailey was arrested one month later.
Appellants were subsequently charged with first degree rape and related charges. At the close of the State's case, appellants moved for judgments of acquittal. The circuit court denied the motions as to all counts.
Prior to the close of the defense's case, 4 appellants renewed their motions for judgment of acquittal as to all counts and the circuit court again denied the motions.
Additional facts will be provided as warranted by our discussion.
Appellants contend that "the lower Court erred in ruling that [they] could not present evidence of the drugs for sex trade between Appellant Shand and [the victim] that had taken place two weeks before the alleged rape." The State suggests, however, that the circuit court properly excluded this evidence under Maryland's Rape Shield Law, Md.Code Ann., Art. 27, § 461A (1992 Replacement Volume & 1994. Supp.).
Section 461A(a) of the Rape Shield Law provides:
(a) Evidence relating to a victim's chastity.--Evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree. Evidence of specific instances of the victim's prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is:
(1) Evidence of the victim's past sexual conduct with the defendant; or
(2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or (3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or
(4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim's prior sexual conduct in issue.
To be admissible under this statute, evidence of "specific instances of a victim's prior sexual conduct" must "fit within one of the enumerated exceptions and be found by the trial court to be relevant and material to a fact at issue in the case and to have probative value greater than its inflammatory or prejudicial nature." Johnson v. State, 332 Md. 456, 464, 632 A.2d 152 (1993). Evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity, however, are per se excluded under the Rape Shield Law. As explained in Lucado v. State, 40 Md.App. 25, 32, 389 A.2d 398 (1978):
This part of the statute does two things. The first sentence flatly and unconditionally excludes opinion evidence relating to a victim's "chastity" and evidence relating to the victim's reputation for "chastity." There are no exceptions to this prohibition, which appears to apply whether the evidence is offered by the prosecution or the defense. The balance of the subsection deals with something quite different--specific instances of the victim's "prior sexual conduct"--evidence of which is admissible under certain conditions.
Evidence that neither relates to a victim's reputation for chastity nor is evidence of specific instances of...
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