State v. True

Decision Date17 December 1981
Citation438 A.2d 460
PartiesSTATE of Maine v. Robert C. TRUE III.
CourtMaine Supreme Court

Henry N. Berry III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., Martha Casey, Law Student Intern (orally), Portland, for plaintiff.

Kettle & Carter, Edward W. Klein (orally), Portland, for defendant.


McKUSICK, Chief Justice.

After a jury trial in Superior Court, Cumberland County, defendant Robert C. True III was convicted of three counts of rape. 17-A M.R.S.A. § 252(1). 1 On his appeal, defendant raises several hearsay objections and challenges the sufficiency of the evidence. We affirm his convictions on Counts II and III and vacate his conviction on Count I.

The three prosecutrices are sisters of defendant. His sister Ruth testified as follows: On June 4, 1978, she accompanied defendant and his wife to the couple's home in South Portland. Ruth, who was sixteen years old at the time, admitted that she and defendant, then aged twenty, had engaged in sexual intercourse many times during the previous three years. After defendant's wife went upstairs, defendant began making sexual advances toward Ruth in the living room. When she attempted to leave the apartment, defendant pushed her down onto the couch, removed her pants, and put his hand over her mouth. As he engaged in sexual intercourse with Ruth, she tried to push herself away.

Alexena, the younger sister, testified that about five weeks later, on July 10, 1978, defendant appeared at their parents' home in Cumberland. Alexena, too, admitted that she and defendant had been engaging in sexual activities over the past several years. The parents were out of town on that date and Alexena, then thirteen years old, was home alone in her bathing suit watching television. Defendant approached her, attempted to remove the top portion of her bathing suit, then removed the bottom portion, and when Alexena fell to the floor, had sexual intercourse with her.

Alexena first told Nancy Perry, her school guidance counselor, of the incident in February 1979. Perry then referred Alexena to Karen Reinnert of the Maine Department of Human Services, to whom Alexena related the same story. Perry testified that Alexena told her that defendant "had sexually harassed her (Alexena) for a long time and that on that date (July 10, 1978) he had forced her into intercourse." Reinnert testified that Alexena told her that on July 10, 1978, "there was forcible intercourse ... between her brother, Robert, and herself."

Detective Joseph Madore of the Cumberland County Sheriff's Department, who interrogated defendant on June 4 and 5, 1980, testified that defendant admitted he had engaged in sexual intercourse with Alexena, although defendant also said that he had not had intercourse with her for at least five years.

The oldest sister, Lona, testified that late in the evening of June 1, 1980, she was reading in bed at her home in Yarmouth when defendant entered her bedroom. Defendant then began taking off his clothes, slapped Lona several times, got on top of her, moved the telephone out of her reach, and warned her not to struggle. Defendant wore a condom during intercourse, and after he bit Lona she stopped resisting. Two or three hours after the incident, Lona telephoned Gail Baker, a volunteer at the Portland Rape Crisis Center.

Baker testified that Lona told her, "... my brother was here, he raped, he forced himself on me." Baker then arranged for Lona to see her regular gynecologist, Dr. Harry Bennert, the following morning. Dr. Bennert testified that his examination revealed no evidence of intercourse, a result he explained was consistent with the use of a condom. He also stated that he "... had received a phone call from a person by the name of Gail who indicated that Lona had told her that she had had a sexual experience with her brother, forcible, during the night." During his medical examination of Lona, she told him "that she had gone to bed at about 10:00 p. m., that sometime after that ... her brother appeared in her room ... and sexual intercourse occurred."

Defendant testified and denied that any of the three incidents had occurred. He admitted, however, that he had engaged in sexual intercourse with his sisters Ruth and Lona at earlier times over a period of years, but on the stand denied he had ever done so with Alexena. Three witnesses testified on defendant's behalf, placing him in South Portland until approximately 11:00 or 11:30 p. m. on the night of June 1, 1980, and defendant had told Detective Madore, when interrogated by him, that he had not left South Portland that night.

Lona went to the Cumberland County Sheriff's Department in the evening of June 2, 1980, and two days later the grand jury returned the instant indictment charging defendant with the rape of his sisters, Ruth, Alexena, and Lona on June 4 and July 10, 1978 and June 1, 1980, respectively.

I. Hearsay Challenges

Defendant asserts that it was error to admit the hearsay testimony of Gail Baker describing the statements Lona made in her telephone call, the hearsay testimony of Dr. Bennert who examined Lona, and the hearsay testimony of Nancy Perry and Karen Reinnert describing the complaint Alexena made to them. We find that the trial court committed reversible error in admitting the hearsay testimony of Baker and Dr. Bennert relating to the alleged rape of Lona, but we find no reversible error in the admission of the testimony of Perry and Reinnert relating to the alleged rape of Alexena.

The extrajudicial statements of the prosecutrices are potentially admissible on three distinct grounds. The bare fact that a complaint has been made is admissible as part of the State's case in chief to forestall the natural assumption that in the absence of a complaint, nothing violent had occurred. The details of the complaint are not, however, admissible under this rule. State v. King, 123 Me. 256, 122 A. 578 (1923); accord State v. Walton, Me. 432 A.2d 1275, 1277 (1981); State v. Ranger, 149 Me. 52, 59, 98 A.2d 652, 655 (1953); State v. Mulkern, 85 Me. 106, 26 A. 1017 (1892). See 4 J. Wigmore, Evidence § 1135 (J. Chadbourn ed. 1972). Alternatively, a statement, including its details, may in appropriate circumstances be admissible under the "excited utterance" exception to the hearsay rule, M.R.Evid. 803(2). 2 Finally, a statement may be admissible under M.R.Evid. 801(d)(1) 3 for the limited purpose of rebutting an express or implied charge against the prosecutrix of recent fabrication or improper influence or motive.

For the fact of a complaint to be admissible under the rule of State v. King, supra, the complaint must have been made within a reasonable time after the alleged rape and the prosecutrix must take the stand at trial. See also 75 C.J.S. Rape § 53 (1952). Such evidence is admissible for the purpose of corroborating the victim's testimony, but not as proof that the crime was in fact committed. See State v. King, supra at 258, 122 A. at 579. Under that rule evidence that the complaint was of rape, State v. Bragg, 141 Me. 157, 161, 40 A.2d 1, 3 (1944), or attempted rape, 4 J. Wigmore, Evidence § 1136 (J. Chadbourn ed. 1972), and evidence of the time and place of the alleged rape, id., are admissible in order to identify the complaint as being relevant to the charge on which the accused is being tried. However, further details, such as the identity of the perpetrator, are not admissible. See State v. Galloway, Me., 247 A.2d 104, 106 (1968).

We recently articulated in State v. Walton, supra, the findings the trial court must make before admitting a hearsay statement under the excited utterance exception. These are 1) that a startling event had occurred; 2) that the hearsay statement related to the startling event; and 3) that the hearsay statement was made while the declarant was under the stress of excitement caused by that event. M.R.Evid. 803(2). A statement given under the stress of anything other than the excitement caused by the startling event is not admissible. State v. Walton, supra.

For a rape victim's utterances to be admissible under M.R.Evid. 801(d)(1), the victim's trial testimony must have been subjected to an express or implied charge of recent fabrication or improper influence or motive. Cross-examination of a witness need not elicit evidence of self-contradiction before there arises an express or implied charge of fabrication. An assertion or suggestion of fabrication may be sufficient to bring M.R.Evid. 801(d)(1) into operation. See State v. Galloway, supra at 105-06. See also United States v. Herring, 582 F.2d 535, 541 (10th Cir. 1978); United States v. Majors, 584 F.2d 110, 111 (5th Cir. 1978); Slater v. Baker, 301 N.W.2d 315, 319 (Minn.1981). 4 Once the charge of fabrication has been made, only prior consistent statements that tend to rebut the charge, i.e., those made prior to the time that the supposed motive to falsify arose, are admissible under M.R.Evid. 801(d)(1). See United States v. Quinto, 582 F.2d 224, 234 (2d Cir.1978). See also State v. Rolls, Me., 389 A.2d 824, 828 (1978); Field & Murray, Maine Evidence § 801.4 at 192 (1976). The scope of admissible pretrial statements "turns upon the nature and extent of the impeachment efforts, and must be measured by the trial court's discretion." State v. Lizotte, Me., 249 A.2d 874, 880 (1969).

A. Testimony of Gail Baker and Dr. Bennert Reporting Statements of Lona

The presiding justice admitted Gail Baker's testimony describing Lona's complaint on the basis of his understanding that the complaint was made "within a ... relatively short period of time" after the alleged rape. Thus, the court established a basis for admission, under the King principle, of the fact that Lona had made a complaint. Baker was permitted to testify, however, not only that Lona's complaint was of rape, but...

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