Shoemaker v. State, 203

• Decision Date: 01 May 1962
• Docket Number: No. 203,203
• Citation: 180 A.2d 682,228 Md. 462
• Parties: Homer Allen SHOEMAKER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 462

228 Md. 462

180 A.2d 682

Homer Allen SHOEMAKER v. STATE of Maryland.

No. 203.

Court of Appeals of Maryland.

May 1, 1962.

James R. Scullen, Silver Spring, for appellant.

Thomas W. Jamison, III, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and William L. Kahler, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.

BRUNE, Chief Judge.

The defendant-appellant was indicted for rape and was tried in 1957 before a jury in the Circuit Court for Prince George's County. The jury returned a verdict of guilty, without capital punishment, and the court sentenced the defendant to twenty years' imprisonment. Upon an application under the Post Conviction Procedure Act he was granted a delayed appeal after a hearing before Judge Digges, and this Court denied the State's application for leave to appeal. State v. Shoemaker, 225 Md. 639, 171 A.2d 468. He urges two grounds for reversal: first, the admission of testimony relating to a complaint made by the prosecuting witness to a third person, not in the presence of the defendant, within a period which cannot be exactly determined from the record, but which appears to have been within approximately an hour after the alleged attack; and second, allegedly improper remarks by the State's Attorney in his argument to the jury.

In brief, the prosecuting witness, a young woman then about twenty-four years old, accepted an automobile ride from a stranger, the defendant, at about ten o'clock on the night of January 8, 1957, approximately two blocks from a bus terminal in Mt. Ranier, Maryland, where she expected to board a bus to take her to her home. At first the defendant was to take her only to the bus terminal, then she accepted a ride home. After some delay along the route the defendant drove out into an isolated area at Cheverly, Maryland. There, according to the prosecuting witness, he attacked and raped her in the automobile, despite her resistance and despite her efforts to summon help by blowing the automobile horn. The defendant did not deny intercourse, but rested his defense upon the claim that it had been with consent.

After leaving the isolated spot at Cheverly, the defendant drove to a tavern at Seabrook, Maryland. The prosecutrix had told him that she wanted a drink (although she testified that she did not drink) in order to get away from the defendant. She urged him to stop at this tavern and he did so. He offered her his comb 'to straighten up,' which she attempted to do. He entered the tavern, she got out of the car and looked at the license number, but did not succeed in memorizing it in full. She walked around to the back of the tavern and then entered its front door. As she did so, she was followed by the defendant, who said he had just put the drinks in the car. There was evidence indicating that this was about twenty or thirty minutes after the defendant and the prosecutrix had arrived at the parking lot outside the tavern.

Immediately upon entering the prosecutrix asked the waitress who was then on duty at the bar to call a cab for her. The waitress described the prosecutrix' condition as 'very hysterical.' The waitress was then busy and said, 'Yes, just a moment.' The owner of the tavern came over in a few minutes and the prosecutrix repeated to him her request to call a cab. He noticed that her condition was hysterical and nervous, inquired if someone was 'bothering' her, then noticed that her hair and clothing were 'messed up' and finally asked her point blank, 'Were you raped?' She answered, 'Yes.' His is the testimony to which the defendant objected and which he claims was improperly admitted.

Both sides have argued the admissibility of this evidence on the basis of whether or not the prosecutrix' statement constituted a part of the res gestae. Some courts have treated the admissibility of such testimony on that basis. See Wigmore, Evidence (3rd Ed.), § 1139. That is not, however, the rule which usually controls the matter in this State. The question is discussed fully in Wigmore, op. cit. supra, §§ 1134-40. In addition to the res gestae theory upon which such testimony may be admissible, there are two others, as Wigmore points out. The first of these is that the failure of the woman to make any complaint at the time could be offered in evidence as a virtual contradiction discrediting her present testimony, and hence the prosecution could forestall such an assumption by showing the fact of a complaint. Under this rule as stated by Wigmore only the fact of a complaint is admissible and no details thereof. ¹ The second theory stated by Wigmore allows the admission of more than the mere fact of the complaint, if the woman has testified and her testimony has been impeached as false whether by cross-examination or by a defense based upon consent.

Evidence of the victim's complaint made while the alleged injury was recent is admissible in this State. Murphy v. State, 184 Md. 70, 76, 40 A.2d 239. And the limitation of testimony under the first of the above rules stated by Wigmore merely to the fact of complaint, which was applied in Parker v. State, 67 Md. 329, 10 A. 219, is not the present law of Maryland. See Legore v. State, 87 Md. 735, 41 A. 60, and comment thereon in Green v. State, 161 Md. 75, 79-80, 155 A. 164; Blake v. State, 157 Md. 75, 81-82, 145 A. 185; Green v. State, just cited; Saldiveri v. State, 217 Md. 412, 417, 143 A.2d 70 (an unnatural sexual practices case).

In Green v. State, supra (161 Md. at 82, 155 A. at 167), the court made the following statement which is applicable to cases falling within the first of Wigmore's rules above stated and also to cases within the second of those rules. Judge Parke there said:

'[T]he better rule, and the one more in conformity with our practice and decisions, is that if the prosecutrix has testified to a violent assault the fact of the making of complaint within a reasonable time under the circumstances is original evidence and may be shown to prevent the inference that the woman did in fact maintain a silence inconsistent with her narrative at the trial; and if her testimony of the commission of the alleged crime be impeached by witnesses or by a cross-examination based on the defence that she consented or that her evidence is false, the terms and details of the complaint are admissible, preferably in rebuttal (a), as corroborative evidence, if made recently (b), after the commission of the alleged crime.'

The conditions for the admission of the testimony of the tavern owner had been fully met. The woman had testified, and though the printed appendix does not show it, the record does show that her testimony had been attacked by cross-examination on the theory of consent. Under Green and Saldiveri, there was no error in admitting the tavern owner's testimony.

The other contentions made by the defendant relate to comments or statements made by the State's Attorney in his argument to the jury. The impropriety of only one of the statements complained of appears to have been duly raised at the trial. The State's Attorney virtually invited objection to that one, which related to parole, before making the comment. The objection was promptly made and overruled. We think it was not necessary, in order to preserve the point for review, to renew the objection by motion to strike or for a mistrial when the State's Attorney proceeded to make the argument which the court had just allowed him to make. Since this particular objection derives additional color from some of the other statements which the appellant seeks to object to on appeal, we shall now state the general nature of all of them.

They are: (i) a reference to the alleged horrors of death in the gas chamber; (ii) that the State's Attorney was perhaps influenced by seeing a little baby that came into the courtroom with its mother ² in deciding not to seek the death penalty; (iii) statements relating to the possible penalty--a minimum of eighteen months' and a maximum of twenty years' imprisonment--in case of a verdict of guilty without capital punishment; (iv) possible release on parole after, or perhaps even before, the defendant, if convicted, should have served one-third of whatever term of imprisonment might be imposed and the obligation of the Parole Board to consider his eligibility for parole after he had served one-third of the term; and (v) an expression of the prosecutor's belief in the defendant's guilt.

The statements with regard to parole in the context in which they were made here, we think, exceeded the limits of permissible comment by the prosecutor. This Court has never had occasion, as far as we are informed, to consider the question whether remarks relating to possible parole, or similar remarks, constituted reversible error. Of course, each case depends a good deal on its own facts, even where the remarks may fall into the same general classification. References by a prosecutor to the right of appeal, the possibility of executive clemency and parole of a defendant have, however, been considered by many other courts. Although there are decisions each way, we think that the better reasoning and the weight of authority are against the propriety of such arguments. See Annotation, 132 A.L.R. 679 (1941); 53 Am.Jur. Trial § 466 and cases cited; 23A C.J.S. Criminal Law § 1107, and cases cited. One reason in support of what we think is the better rule is that arguments should be based upon the evidence (Toomer v. State, 112 Md. 285, 76 A. 118), but the principal objection to arguments of this type goes even deeper and is exemplified, we think, in the present case.

The chief vice of the reference in this case to the possibility of parole is that it suggested to the jury that it might in part shift its responsibility for a finding of the defendant's guilt to some other body. Here the prosecutor specifically...