State v. DeLawder

• Decision Date: 23 September 1975
• Docket Number: No. 1134,1134
• Citation: 28 Md.App. 212,344 A.2d 446
• Parties: , 90 A.L.R.3d 1286 STATE of Maryland v. Lee Franklin DeLAWDER.
• Court: Court of Special Appeals of Maryland

Page 212

28 Md.App. 212

344 A.2d 446, 90 A.L.R.3d 1286

STATE of Maryland v. Lee Franklin DeLAWDER.

No. 1134.

Court of Special Appeals of Maryland.

Sept. 23, 1975.

Donald R. Stutman, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., and Jerome C. Schaefer, Asst. State's Atty., for Montgomery County on the brief, for appellant

Michael G. Trainer, Assigned Public Defender, Baltimore, on the brief for appellee.

Argued before ORTH, C. J., MELVIN, J., and EDWARD F. BORGERDING, Special Judge.

ORTH, Chief Judge.

STATEMENT OF THE CASE

On 30 June 1972 Lee Franklin DeLawder was found guilty by a jury in the Circuit Court for Montgomery County of carnal knowledge of a female under the age of 14 years. A 15 year sentence was imposed. The judgment was affirmed on direct appeal. DeLawder v. State, No. 663, September Term, 1972, filed 8 June 1973, unreported, 18 Md.App. 740, cert. denied, 269 Md. 757. He filed a petition on 19 December 1973 attacking the judgment under post conviction procedures. After a plenary hearing, relief was denied by an order of the Circuit Court for Montgomery County issued 14 October 1974. Maryland Rule BK45 a. DeLawder sought leave to appeal. Code, Art. 27, § 645-I; Maryland Rule BK46. We granted the application and ordered the case remanded for compliance with Rule BK45 b requiring that the order of the hearing court shall be accompanied by a short memorandum One of the grounds presented in the post conviction proceeding as reason why the order should be reversed was that the court in the trial of the substantive offense had denied DeLawder his constitutional right to cross-examine the witnesses against him as that right was to be enjoyed in the light of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, decided 27 February 1974. On Remand, the hearing court held that the right had been violated and that Davis was to be given full retroactive application. By order issued 14 January 1975 it vacated the judgment and ordered that DeLawder be given a new trial. The State applied for leave to appeal. We granted the application by our order of 25 February 1975 and directed that the case be transferred to our regular appeal docket. Briefs were duly filed and oral argument received.

which shall include the reasons for the action taken thereon. DeLawder v. Warden, 23 Md.App. 435, 328 A.2d 76.

ISSUES FOR DECISION

1) Whether DeLawder's right of cross-examination was violated under the rule of Davis v. Alaska, supra.

2) If so, whether Davis has retroactive application.

THE LAW

In affirming the judgment on direct appeal, we held that the trial court did not err in sustaining objections made to questions attempting to show that the prosecuting witness had sexual intercourse with other men on other occasions. The general rule is that because consent is not an issue in a carnal knowledge prosecution, evidence that the prosecutrix had prior intercourse with men other than the accused, or that her reputation for chastity was bad is immaterial when offered as an excuse or justification, and so is inadmissible for that reason. Annot., 140 A.L.R. 364, 365; 1 Wharton's Criminal Evidence § 237 at 522 (13th ed.1972). This rule was stated by the Court of Appeals in Rau v. State, 133 Md. 613, 615, 105 A. 867:

'The prosecutrix under the law by reason of her There is an exception to the general rule when it appears that the hymen of the prosecutrix has been ruptured or injured and it is alleged that the trauma was caused by the defendant. To rebut such proof the defendant may introduce evidence of acts of prior unchastity of the prosecutrix as tending to show that another was responsible for the trauma. 140 A.L.R. at 367. Compare Duvall v. State, 151 Md. 38, 42, 133 A. 833. The only acts of intercourse, however, which may be shown are those occurring about the time of the act which, in the nature of things, could have caused the condition. Wharton, supra, at 525.

age was not capable of consenting to sexual intercourse with the traverser and the question of her prior intercourse with another or her chastity was not a material issue and could not reflect upon his guilt or innocence, under the fourth count of the indictment (carnal knowledge).'

The trial judge correctly applied these rules. He restricted the introduction of evidence concerning the unchastity of the prosecutrix on the ground that consent is not an element of the crime of carnal knowledge. He permitted testimony concerning her sexual activity 'within a day or two' of the alleged crime because when she was medically examined about 6 hours after the time the crime was alleged to have been committed, there was bruising and discoloration around the hymen or introitus of the vaginal canal. It was the opinion of the examining physician that the bruising occurred within two or three days prior to the examination. DeLawder, however, contends that in the light of Davis the trial court, by restricting cross-examination, violated his constitutional right to confront his accusers. Our holding on direct appeal did not necessarily finally litigate the contention as presented upon collateral attack. Code, Art. 27, § 645A(d) provides:

'For the purposes of this subtitle and notwithstanding any other provision hereof, no allegation of error shall be deemed to have been finally litigated or waived where, subsequent to any As Davis, was decided subsequent to our decision, we must determine whether it affects the validity of DeLawder's conviction.

decision upon the merits thereof or subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposed upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner's conviction or sentence.'

The Confrontation Clause of the Sixth Amendment

In Davis, at 315, 94 S.Ct. at 1110, the Supreme Court of the United States reviewed the reach of the Confrontation Clause of the Sixth Amendment to the federal Constitution. 'The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him.' This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witness physically. 'Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.' Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, (1076), 13 L.Ed.2d 934 (1965).' 'Cross-examination', the Court observed, at 316, 94 S.Ct. at 1110, 'is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness's perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness.' A witness may be discredited by a general attack on his credibility by introducing evidence of a prior criminal We look to see how these rules were applied in Davis.

conviction of that witness. 'By so doing the cross-examiner intends to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony.' Id. A witness may also be discredited by a more particularized attack. This is done by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. 'The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.' 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev.1970).' Id. The Supreme Court has recognized 'that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, (1413) 13 L.Ed.2d 1377 (1959).' Id., at 316-317, 94 S.Ct. at 1110. The denial of effective cross-examination "would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." Id., at 318, 94 S.Ct. at 1111, quoting Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) as quoted in Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968).

The Davis Ruling

Davis was convicted of burglary and grand larceny in a state court at a trial in which the court on motion of the prosecution issued a protective order prohibiting the questioning of Richard Green, a key prosecution witness, ¹ concerning Green's adjudication as a juvenile delinquent relating to a burglary and his probation status at the time of the events as to which he was to testify. The motion was The Alaska Supreme Court refused to reach the issue of whether the State's policy of preserving the anonymity of a juvenile offender denied Davis his Sixth Amendment right of confrontation. It affirmed the conviction on the grounds 'On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a 'rehash' of prior cross-examination. On these facts it seems clear to us that to make any...