State v. Worrey

• Decision Date: 28 June 1974
• Citation: 322 A.2d 73
• Parties: STATE of Maine v. Herbert L. WORREY, Jr.
• Court: Maine Supreme Court

Page 73

322 A.2d 73

STATE of Maine v. Herbert L. WORREY, Jr.

Supreme Judicial Court of Maine.

June 28, 1974.

William S. Broderick, Asst. County Atty., Alfred, Robert Moore, Third Year law student on the brief, for State.

Franklin F. Stearns, Jr., Portland, Dwight A. Fifield, Portland, on the brief, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

WEATHERBEE, Justice.

In the fall of 1972 the Defendant was indicted by a York County grand jury for a violation of 17 M.R.S.A. § 3151. ¹ In late October of that year a jury sitting in Superior Court found the Defendant to be guilty of statutory rape. ² From that judgment the Defendant has appealed to this Court. We deny his appeal.

The Defendant's brief raises three issues for our consideration, each of which will be mentioned in turn.

1. The sufficiency of the evidence to support the conviction

Initially, the Defendant asserts that the verdict of guilty is not supported by sufficient evidence to allow it to stand. This ground on appeal has been correctly preserved by the Defendant's motion for judgment of acquittal at the close of all the evidence. M.R.Crim.P., Rule 29(a); e.g., State v. Sawyer, Me., 314 A.2d 830, 832 (1974). However, Me., 314 A.2d 830, 832 dence demonstrates there is no basis to the Defendant's claim.

The jury heard testimony to the effect that the Defendant, although divorced from his first wife, Mrs. Betty Worrey, was living with her sporadically in the spring of 1972. On a Friday evening in late May, 1972 Julie Worrey, the 13-year-old daughter of the Defendant and Betty Worrey, attended a concert with a girl friend. The two girls came home and went to bed in separate beds in Julie's bedroom. Meanwhile Julie's parents had gone to a friend's house where extensive drinking took place. They arrived home very early on Saturday morning.

Julie's mother testified that as soon as she went to bed in her bedroom the Defendant seized her and said he was going to have sexual intercourse with Julie. He threatened to kill the mother if she interfered. Mr. Worrey, physically much larger than his ex-wife, forced her to go into Julie's bedroom. He woke up his daughter and told her to come into the other room. The girl's mother told Julie to run, but she stumbled and fell and could not get away. The Defendant took both mother and daughter back to the mother's bedroom forcibly.

She said he told both females to lie on the bed and threatened them with death if they disobeyed. The Defendant, now nude, placed himself on top of his daughter with his arm around her mother's neck. Julie testified that her father 'forced himself' into her as he held down her mother. Both females were crying and trying to escape. According to Julie, her father performed two acts of sexual intercourse during this episode. When the father finally left the scene, the girl's mother noted that she saw blood and semen on the bed sheet.

The father then announced that he was going to run and leave the state. Julie went back to her room and put on her clothes. Still crying, she then heard a loud bang. Her mother yelled to Julie and her friend and told them to 'get out the window onto the roof'.

Mrs. Worrey testified that she pulled a loaded gun from her drawer in her room and shot the Defendant in the back as he combed his hair. He fell to his knees, and his ex-wife tried to shoot again, but the gun would not fire. She said the Defendant then arose and pursued her, getting as far as the kitchen where he collapsed near the refrigerator. Mrs. Worrey then proceeded to call the police.

Mrs. Worrey said the rape was not reported to the police until about two months had passed because of her reluctance to bring the sordid incident to the public's attention. However, due to Julie's complaints about vaginal bleeding, Mrs. Worrey sent her daughter to a doctor two days after the incident. He testified that his examination indicated that Julie had displayed 'black and blue' marks and small tears of the posterior half of the hymenal ring.

Julie's girl friend testified that Mr. and Mrs. Worrey woke the girls and asked Julie to leave her bedroom. The friend heard Julie screaming 'No, don't, daddy, don't' and said that Julie was crying when she came back into the room where the two girls were staying.

The Defendant testified at the trial and denied all aspects of the alleged rape incident. He explicitly denied ever going into Julie's bedroom that night and having sexual intercourse with his daughter. He said that the shooting took place in the kitchen, not in the bedroom, and that Mrs. Worrey had shot him after they had quarrelled because he had announced his intention to leave her and return to his present wife.

The Wells police chief testified for the prosecution in rebuttal. He came to the scene of the shooting at about 4 a. m. and found a small pool of blood near the refrigerator, a large pool on the bedroom floor, and a spent .22 cal. cartridge on that floor. No other bullets were found, either used or unused, in the entire apartment. Mrs. Worrey had a .22 cal. derringer in her hand and admitted shooting Worrey, the Chief testified. Betty Worrey was arrested for the shooting of Mr. Worrey but the charges were not prosecuted by the State.

The defense suggests that the entire prosecution story is incredible and concocted because two months elapsed before any word of the rape was reported to the authorities. The defense also claims that the rape allegation emerged only when Mrs. Worrey needed a defense to her charge of shooting Mr. Worrey. The prosecution asserts that embarrassment, social stigma, and other unpleasant factors could easily account for the delay.

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. Rather, we must determine if the jury was warranted in finding for the State in this case. E. g., State v. northup, Me., 318 A.2d 489 (1974). Leaving the resolving of weight and credibility of witnesses to the jury, we must ascertain if there was sufficient evidence presented to justify the verdict of guilty. We are fully satisfied that there was.

The mere fact that two months passed by before any mention of the rape reached the police does not negate the jury's verdict. Of course, that fact was proper for the jury's consideration of weight and credibility. We take judicial notice of the fact that many rapes go unreported due to the social stigma attached to the victim of such a crime. Much of the testimony of the Defendant contradicted that of the alleged victim, her girl friend, and mother. The prosecution presented evidence which, if believed, would sustain a conviction for statutory rape. The jurors obviously believed the prosecution witnesses and not the Defendant.

The Defendant relies in his brief on State v. Field, 157 Me. 71, 170 A.2d 167 (1961). The rape conviction in Field was overturned because the uncorroborated testimony of the victim failed to disclose that force was used upon her as required under the forcible rape statute. In contrast, the present case contains believable, corroborating evidence of the victim's assertions, including medical testimony. ³ Furthermore, force is not an element in statutory rape and thus field has no persuasive bearing on this case.

2. The refusal of the presiding Justice to strike certain testimony as requested by the Defendant

Second, the Defendant argues that the Justice at trial erroneously refused to strike certain responses which were elicited by the Defendant's counsel on cross-examination of a prosecution witness. That witness was Betty Worrey.

During his examination of Mrs. Worrey, Defendant's counsel previously asked her questions concerning the incident and then inquired about Mr. Worrey's possible prior tendencies. The exchange proceeded as follows:

'Q And he never did any grievous bodily harm to you before, had he?

A No.

Q Or to his daughters before, either daughter, bodily harm?

A He did molest Julie once before when we lived in Florida. I wasn't there. But the children told me about it.

MR. STEARNS: Now, your Honor.

THE WITNESS: I took her to a priest.

MR. STEARNS: I would like to have that stricken from the record as not responsive.

THE WITNESS: Well, you asked me if he had.

THE COURT: Just a moment, Mrs. Worrey. The motion to strike will be denied.'

A motion to strike is properly made when a witness expounds an answer which is not responsive to the question asked and is also not admissible. 1 J. Wigmore, Evidence § 18 (1940). Even if relevant, a piece of evidence may be deemed inadmissible if it contains a high degree of prejudice thought to outweigh its evidentiary value. The action of a Justice at trial grantiong or denying a motion to strike certain testimony is reviewable only on the grounds that an abuse of discretion may have occurred.

We treat the motion to strike as referring to the four sentence answer of the witness, commencing with 'He did molest Julie . . .' and concluding 'I took her to a priest.' ⁴

The Justice was correct in refusing to grant the motion as to the first three sentences of Mrs. Worrey's answer. The question asked by Defendant's counsel inquired about the possibility that the Defendant had previously harmed either of Mrs. Worrey's daughters. The tenor of this and other questions asked indicates that the defense hoped to show that Mrs. Worrey and Julie had no reason to fear Mr. Worrey. This in turn would discredit her story and cast some doubt on the rape incident itself.

In asking about the Defendant's prior conduct, the Defendant's attorney did not specifically refer only to conduct which the witness herself had seen. Counsel may not ask a far-reaching question and then seek to repudiate the answer when it is unfavorable. Greater leeway is generally allowed by trial justices on cross-examination concerning questions and answers.

We feel...