State v. Kelley
| Decision Date | 26 May 1976 |
| Citation | 357 A.2d 890 |
| Parties | STATE of Maine v. Gary L. KELLEY. |
| Court | Maine Supreme Court |
Joseph M. Jabar, Dist. Atty., J. William Batten, Asst. Dist. Atty., Augusta, for plaintiff.
Wathen & Wathen by Jessie H. Briggs, Daniel E. Wathen, Augusta, for defendant.
Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
This is an appeal by the defendant, Gary L. Kelley, from his conviction of the crime of rape 1 by a Kennebec County jury. We deny the appeal.
We will consider severally the five errors asserted by the defendant.
At the close of all the evidence, the defendant moved for a judgment of acquittal, M.R.Crim.P. 29(a), thereby preserving for appellate review the issue of 'whether, in view of all the evidence in the case, there was legally sufficient evidence to support the guilty verdict.' State v. Burnham, Me., 350 A.2d 577, 582 (1976); State v. Westphal, Me., 349 A.2d 168, 169 (1975).
The jury could reasonably have found the following material facts:
Kelley was a regular patron at a nightclub in Lewiston where the victim, a young married woman and mother of one child, was employed as a cocktail waitress. On the Saturday night of October 13, 1973, the defendant spent several hours at this nightclub and talked occasionally with the complainant, among others. During the evening, the defendant asked the complainant, who lived in East Monmouth, to drive him to his mobile home in nearby Winthrop. She reluctantly agreed. When the establishment closed shortly after 1:00 a. m. on October 14, the complainant, accompanied by the defendant, undertook the trip home which, for the victim, became an infamous journey.
Except at one point when the defendant attempted to kiss the victim, the drive from Lewiston to Winthrop was uneventful, until the complainant stopped the car by the side of the road so that Kelley could relieve himself. As the defendant got back into the car, he seized the complainant roughly by her hair and throat and tried to kiss her. Following a brief struggle, the complainant escaped from the car and ran away from the road, but the defendant quickly caught her, threw her to the ground and, after he had 'stomped' on her head several times told her, while dragging her back to the car, to 'shut up or I'll kill you right here.'
Kelley assumed control of the car and, restraining the struggling complainant with one hand, proceeded in the direction of Winthrop. He ordered the complainant to 'strip,' but desisted when she pleaded with him, During the thrashing and struggling, the defendant's glasses were knocked to the near seat of the car. While rummaging in the back seat for the glasses at Kelley's order, the complainant picked up an axe which was lying there and 'swung it three times to the back of his head,' striking blows with the flat side of the axehead, which caused Kelley to stop the car. The complainant once again attempted to flee the vehicle, but the defendant grabbed her arm as she was halfway out of the car and held her inside, saying, 'Get back in this . . . car or you'll die.' Subduing the complainant with his right hand, Kelley drove the remaining distance to his residence.
Upon arriving at Kelley's mobile home, and while he and the complainant were still seated in the car, the defendant confronted his victim with 'two choices,' namely, sexual intercourse or an unspecified sexual act. The complainant, who feared for her life if she resisted any further, responded, 'All right, let's go to your trailer though; not in the car, let's go to your trailer.' The defendant pushed the victim into the mobile home and thence into his bedroom, where he demanded that she remove her clothes. She did so, Kelly also undressed and an act of intercourse ensued. Immediately afterwards, as the complainant hurriedly dressed, the defendant threatened her, '(I)f you tell, I won't come after you . . . I'll kill your baby.' The time was approximately 2:30 a. m. when the complainant left the defendant's trailer and drove to her home.
When she arrived at her residence, the complainant promptly awakened her husband, who drove his wife directly to the police station in Winthrop where she complained against the defendant. Photographs of the victim taken by a police photographer (State's Exhibits 1 through 11) depict cuts and bruises about the victim's face and head, her torn dress and stockings, and her scraped and bloody right knee. The complainant was taken to the office of a physician who examined her and observed bruises on her neck, chest, hips, and knees, as well as a bruise and swelling in her external genital area, all of which led the doctor to the conclusion that the complainant had recently undergone 'forceable sexual intercourse.'
Kelley was arrested and charged with rape later in the day on October 14.
We thus see that there was ample credible evidence of the defendant's criminal conduct to warrant the jury verdict that the defendant compelled the complainant to have sexual intercourse with him by inflicting physical force on her during the trip from Lewiston to Winthrop and by threatening her with further violence unless she succumbed. 2 Although the complainant offered no physical resistance to the act of intercourse itself, it is evident that she was subjected to a series of violent physical attacks made upon her by the defendant, and that she submitted to the defendant's demands only because she feared for her life if she did otherwise. On its facts, this case closely resembles State v. Carlson, Me., 308 A.2d 294 (1973), where we observed that '(T)he evidence permits no other rational conclusion than that the defendant overcame the will of the complainant by violent force and threat of death and compelled her to have sexual intercourse with him,' and held 'These acts are punishable as rape.' Id. at 296.
The defendant appeared on his own behalf and, not unsurprisingly, gave an exculpatory account of the events of the night of October 13 and the early morning of October 14, the basic thrust of which was that the complainant voluntarily engaged in sexual intercourse with him. Kelley denied ever threatening or striking the victim. This Court is ever mindful that 'In judging the sufficiency of the evidence we do not sit to retry the case and substitute our impressions of the facts for those of the jurors.' State v. Worrey, Me., 322 A.2d 73, 77 (1974). It is the province of the trier-of-fact to assess the credibility of witnesses and the weight to be attached to their testimony. State v. Bonney, Me., 351 A.2d 107, 110 (1976); State v. Gogne, Me., 349 A.2d 193, 198 (1975). The jury's verdict indicates that it deemed the defendant's testimony unworthy of belief and, as we have pointed our, there was substantial credible evidence presented which warranted the jury in finding Kelley guilty of rape beyond a reasonable doubt. The motion for a judgment of acquittal was thus correctly denied.
The defendant disputes two evidentiary rulings made by the presiding Justice during the State's direct examination of the complainant.
In the first instance, after the prosecutrix had testified that the defendant had given her 'two choices' and that she had responded by saying 'All right, let's go to your trailer though; not in the car, let's go to your trailer,' the State's attorney asked, 'Now why did you say that?' Over the general objection 3 of the defendant, the complainant was permitted to give the following answer:
There were two reasons. Number one was that perhaps somebody would be awake walking a dog around. Maybe I could get help. Or the other was that maybe if I let him have his way, he'd let me live. It would be very difficult to leave a dead body in your own trailer.
The second ruling contested by the defendant occurred after the complainant testified that, as she was leaving Kelley's trailer, she asked the defendant, who was naked, to walk her to the door, kissed him on the cheek, and said, 'I'll see you Monday night.' The State's attorney then asked, 'Now, this business of suggesting that he walk you to the door and the language that was used; why did you say those things?' Over another general objection by the defendant, the complainant responded,
Well, again, just in case he decided to change his mind and kill me. There were two reasons. Number one, even at a time like that, somebody will think twice before walking out of their house with no clothes on. And number two, if he walked me to the door next to me, he couldn't jump me from behind if he decided to do so.
The defendant argues that the presiding Justice erred by permitting the complainant to so explain her conduct. We disagree. M.R.Crim.P. 51 requires that a party who opposes the admission of certain evidence make known to the court 'his objection to the action of the court and his grounds therefore . . ..' (Emphasis added.) As we have pointed out, the defendant interposed two purely general objections to the testimony of which he now complains, and thereby failed to comply with Rule 51. It is a well-nigh universal principle that 'The overruling of a general objection preserves nothing for review unless it clearly appears that the evidence was inadmissible for any purpose whatsoever.' H. Glassman, 3 Maine Practice 425 (1967). McCormick on Evidence 115 (E. Cleary ed. 1972); 1 Wigmore on Evidence 332 (3d ed 1940); M.R.Ev. 103(a)(1) (effective February 2, 1976). Our task as an appellate court, therefore, is to scrutinize the record to ascertain whether there was any tenable ground for admitting the evidence in question.
We find that the explanatory testimony goven by the complainant regarding her behavior immediately before and immediately after the crime was probative on the crucial issue at trial, namely, whether the act of intercourse was 'against (the) will' o...
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