State v. Baby
| Decision Date | 16 April 2008 |
| Docket Number | No. 14, Sept. Term, 2007.,14, Sept. Term, 2007. |
| Citation | 400 Md. 220,946 A.2d 463 |
| Parties | STATE of Maryland v. Maouloud BABY. |
| Court | Court of Special Appeals of Maryland |
Sarah Page Pritzlaff, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen.), on brief, for petitioner/cross-respondent.
Michael R. Malloy, Asst. Public Defender (Nancy S. Forster, Public Defender), on brief, for respondent/cross-petitioner.
Lisae C. Jordan, Sexual Assault Legal Institute, Maryland Coalition Against Sexual Assault, Silver Spring, L. Tracy Brown, Danielle R. Cover, Women's Law Center of Maryland, Towson, for petitioner/cross-respondent.
Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER, (Retired, specially assigned) and DALE R. CATHELL, (Retired, specially assigned), JJ.
Opinion by BATTAGLIA, J., which GREENE and CATHELL, JJ., join; HARRELL, J., joins Part I; BELL, C.J., joins Part II.
The case sub judice presents this Court principally with the task of determining whether it was error for a trial court, during a rape trial, to respond to jury questions concerning the effect of post-penetration withdrawal of consent by referring the jury to previously provided instructions on the elements of first degree rape, without further clarification. The second issue we address is whether, regardless of any error by the trial court in instructing the jury as to the elements of first degree rape, Appellee's, Maouloud Baby's, convictions for first degree and third degree sexual offense, based on his conduct as principal in the second degree to the criminal, sexual conduct of his friend, should be reversed. Additionally, we have been asked to determine whether it is error for a trial court to fail to conduct an inquiry into the reliability and validity of expert testimony on "rape trauma syndrome" under the standard articulated in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978).
In Part I of this Court's opinion, joined by Judges Harrell, Greene and Cathell, we conclude that the trial court did err by failing to more specifically instruct the jury on post-penetration withdrawal of consent, and that the crime of first degree rape includes post-penetration vaginal intercourse accomplished through force or threat of force and without the consent of the victim, even if the victim consented to the initial penetration. In a concurrence, Judge Raker, joined by Chief Judge Bell and Judge Wilner, explains why they join only in the judgment on this issue. In Part II, joined by Chief Judge Bell and Judges Greene and Cathell, we determine that the convictions for first degree and third degree sexual offense should be reversed. A dissent by Judge Raker, joined by Judges Harrell and Wilner, reveals why they are unable to subscribe to Part II of the Court's opinion. Additionally, this Court is unanimous in suggesting, for guidance at the new trial, that "rape trauma syndrome" evidence should first be subjected to Frye-Reed analysis, were an appropriate objection interposed.
Facts and Procedural History
In December 2003, Appellee, Maouloud Baby, was indicted for first degree rape,1 first degree sexual offense,2 attempted first degree sexual offense,3 conspiracy to commit first degree rape, and third degree sexual offense.4 Baby was initially tried in the Circuit Court for Montgomery County in 2004, but a mistrial was declared because of a hung jury. Baby was retried on December 13-17 and 20-21, 2004 before a jury on two counts of first degree rape, one count of attempted first degree rape, one count of first degree sexual assault, one count of attempted first degree sexual offense, one count of conspiracy to commit first degree rape, and two counts of third degree sexual offense. He was convicted of one count of first degree rape, one count of first degree sexual offense, and two counts of third degree sexual offense.
At trial, the complaining witness ("J.L.")5 testified that on the night of December 13, 2003, she and her best friend, Lacey, went to Best Buy and purchased CDs and then drove in J.L.'s car to the McDonald's restaurant in Montgomery Village. Inside the McDonald's, they encountered some of Lacey's brother's friends, including Baby and Mike. J.L. recognized Baby from high school but did not otherwise know him.
J.L. further testified that she and Lacey left the McDonald's, went outside, and entered J.L.'s car, at which time Mike asked J.L. if she could give him and Baby a ride to a party. J.L. agreed, and allowed Baby, Mike, and an unidentified "Hispanic boy," to ride in the back seat of the car. On the way to the party, Baby instructed J.L. to stop at a gas station, which she did, where Baby and the Hispanic boy got out of the car. Although Baby returned to the car approximately one minute later, the Hispanic boy did not return.
J.L. said that the remaining four continued to drive to the party, which took approximately ten to fifteen minutes. Baby and Mike decided not to attend the party. J.L. stated that she drove back to the McDonald's, planning to drop Baby and Mike off there. During the trip back to the restaurant, Baby told J.L. to turn into a residential development and directed her to a parking spot. All four alighted from the vehicle and walked towards a clearing between two end townhouses. Baby and Mike smoked marijuana and engaged J.L. and Lacey in conversation. Baby and Mike discussed getting a hotel room, noting that J.L. and Lacey were both 18 and old enough to do so. Neither J.L. nor Lacey expressed interest.
J.L. further testified that, after the four returned to the McDonald's, Lacey left the group, but Baby and Mike stated that they did not want to leave the car. Lacey gave J.L. her cell phone, which she placed on the passenger seat. J.L. agreed to drive Baby and Mike to a residential neighborhood. Upon their arrival, she parked her car, whereupon Baby and Mike asked J.L. to sit between them in the back seat so they could talk. J.L. climbed into the back seat and sat between the two. She removed her jacket because she was warm. Baby then put his hand between her legs and Mike tried to put J.L.'s hand down his pants. Baby told J.L. to "flash him" and Mike told her to "just lick it." When J.L. did not comply with their requests, Baby began to fondle her breast with his hand.
J.L. also testified that she told Baby and Mike that they had to return to the McDonald's, but they asked to stay ten more minutes. J.L. then "somehow ended up on [her] back," at which point Baby attempted to remove her pants and Mike tried to place his penis in her mouth. J.L. told them to stop, but Baby and Mike moved her around so that her body was against Baby. Baby then held her arms as Mike attempted to have intercourse, briefly inserting his penis mistakenly into her rectum. Mike again unsuccessfully attempted intercourse, and Baby inserted his fingers into J.L.'s vagina.
J.L. further testified that Baby then got out of the car. Mike inserted his fingers and then his penis into J.L.'s vagina. Mike then left the automobile and Baby got into the car. J.L. testified that Baby told her "it's my turn now." According to J.L., the following then transpired:
Q. [ASSISTANT STATE'S ATTORNEY]: And what else did he say?
A. He, after that we sat there for a couple seconds and he was like so are you going to let me hit it and I didn't really say anything and he was like I don't want to rape you.
Q. And what did you say?
A.... [W]ell first of all they told me that ... I wouldn't be able to leave until I was done ...
Q. They had told you that?
A. Huh?
Q. They had told you that you would not be able to leave?
A. Yes, earlier. They were just, they were like you can leave as soon as we're done.
Q. And by that you assumed what or that you understood that to mean what?
A. That as soon as I finished whatever they told me to do, I could leave.
Q. So when [Baby] said I don't want to rape you, did you respond?
A. Yes. I said that as long as he stops when I tell him to, then
—
Q. Now, that he could?
A. Yes.
Q. Now, [J.L.], at the time that [Baby] got back in the car, how were you feeling?
A. I don't know.
Q. Did you feel like you had a choice?
A. Not really. I don't know. Something just clicked off and I just did whatever they said.
Q. Were you tired?
A. Yes.
Q. Did you want to go home?
A. I just wanted to go home.
Q. Now when you told [Baby] if I say stop, something like that, you have to stop. What did he do after you spoke those words?
A. Well he got on top of me and he tried to put it in and it hurt. So I said stop and that's when he kept pushing it in and I was pushing his knees to get off me.
Q. You were on your back and he was on top of you?
A. Yes.
Q. Did he stop pushing his penis into your vagina?
A. Not right away.
Q. About how long did he continue to push his penis into your vagina?
A. About five or so seconds.
Q. And then what happened?
A. And that's when he just got off me and that's when Mike got in the car and —
Q. Let me stop you for a minute. When he was, he put himself in you and you said, ow, it hurts, stop —
A. Yeah.
Q. — did he stop?
A. No.
Q. How many times did you tell him to stop?
A. I, well I yelled stop, that it hurt, and I was pushing him off me.
Q. And he didn't stop —
A. No.
Q. — until at some point he did?
A. Yes.
J.L. also stated that Mike, without her permission, then drove the car to a neighborhood across the street from the McDonald's. During the drive, Baby asked J.L. to "jack him off" and she declined. She did give Baby her phone number when he requested it. Baby returned Lacey's cell phone to J.L., which he or Mike had taken from her previously, and J.L. used it to call Lacey. The two women spoke briefly. Mike parked the car across from the McDonald's and hugged J.L. before he and Baby departed.
J.L. then drove to the McDonald's to pick up Lacey. They then drove to Shoppers Food Warehouse, where they met J.L.'s mother to shop for groceries. After the grocery shopping, J.L. and Lacey...
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