Testerman v. State, 382

• Decision Date: 01 September 1984
• Docket Number: No. 382,382
• Citation: 486 A.2d 233,61 Md.App. 257
• Parties: Herbert Mack TESTERMAN, Sr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 257

61 Md.App. 257

486 A.2d 233

Herbert Mack TESTERMAN, Sr. v. STATE of Maryland.

No. 382, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Jan. 9, 1985.

Isaac S. Kershner, Assigned Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Joseph I. Cassilly, State's Atty. for Harford County and Jay E. Robinson, Asst. State's Atty. for Harford County, Bel Air, on brief), for appellee.

Argued before ADKINS, ALPERT and ROSALYN B. BELL, JJ.

ALPERT, Judge.

In this appeal we are called upon to decide, among other things, what evidence Maryland's Rape Shield statute ¹ excludes. The statute provides, in relevant part:

(a) Evidence relating to victim's chastity.--Evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree. Evidence of specific instances of the victim's prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is:

(1) Evidence of the victim's past sexual conduct with the defendant....

In the case sub judice the appellant Herbert Mack Testerman, Sr. was convicted by a Harford County jury of second degree rape, fourth degree sexual offense and false imprisonment. The appellant does not deny that he had intercourse with the victim on February 5, 1983. He contends, however, that the intercourse was consensual.

Appellant and the victim had been acquainted with each other for approximately fifteen years. On February 5, 1983, appellant met the victim unexpectedly at the White Horse Bar in Cecil County. They had a drink with the victim's niece and a friend at that bar and decided to go elsewhere. The niece and friend left the victim with the appellant and his son; they were to meet at the Hideaway Lounge in Harford County. Appellant testified that when he, his son and the victim arrived at the second bar, the niece and friend were not there. In the meantime, the victim had been, according to appellant's testimony, drinking heavily and appeared to be getting sick. Appellant's son got out of the car as soon as the victim got sick on the parking lot of the Hideaway Lounge. Appellant asserted that he drove the victim around with the expectation that the fresh air would make her feel better and when she professed to be tired, they drove to the Tuck-A-Way Motel. When they got to the motel, appellant avows that they got undressed and were having consensual intercourse when the victim suddenly stopped and declared that "she was not on the pill anymore" and might get pregnant. According to appellant, they left the motel, picked up his son at the Hideaway Lounge and drove the victim home around 1:30 a.m.

The victim, on the other hand, while acknowledging she and appellant had known each other for some fifteen years, testified that when they left the White Horse Bar they dropped appellant's son off somewhere enroute to the Hideaway Lounge. She claims the appellant then stopped the car on Stepney Road in Harford County and forcibly detained her. The appellant then, allegedly, struck her and forced her to engage in fellatio and sexual intercourse.

The appellant, seeking reversal of his conviction, contends that:

I. The trial court erred in excluding any evidence of prior sexual conduct between himself and the victim;

II. He should have been found not guilty of second degree rape because the jury's verdict on that count was non-unanimous;

III. The trial court erred in excluding portions of a conversation between appellant and the victim's boyfriend;

IV. The trial court improperly limited the scope of cross-examination with regard to the victim's psychiatric condition;

V. The trial court improperly admitted a hospital report indicating that the victim had had a hysterectomy sometime prior to February 5, 1983; and

VI. The false imprisonment conviction should have been merged with the rape conviction.

We agree with appellant as to the first of these alleged errors and reverse. We will, however, address those issues which may surface upon remand.

I. Maryland's Rape Shield Statute

Appellant claims that he and the victim have had a series of one night stands over a period of several years. He sought to introduce evidence of this through: (1) the testimony of several witnesses who inadvertently caught appellant and the victim in compromising situations; (2) his own testimony; and (3) the cross-examination of the victim.

Appellant's counsel proffered that the evidence was relevant to show consent and could be used to impeach the victim since she testified that they had never even dated without another couple, let alone had any prior sexual relationship. The trial judge, however, relying on Maryland's Rape Shield Statute, excluded the evidence of prior sexual contact because he deemed it irrelevant. At the conclusion of an in camera hearing conducted pursuant to Art. 27, Sec. 461A(b), the court stated:

I do not think there's any relevance on its face. The fact there may have been past consent has nothing whatever to do with whether there was consent at the time, and I think the only thing to do is just wait and see how the cards fall.

Now, I'm not--it may come in by way of impeachment, but--and that's in a very limited fashion. The shield law was originally--was the statutory response to the problem of rape cases where the victim's character gets dragged through the mud, which has no legal significance as to whether or not the victim gave consent at the time in question, but certain exceptions were made where the--the key words in the statute are relevant and material, and just because they had sex in the past doesn't make it relevant and material in this case.

So that's going to be my ruling, so let's go in there.

During cross-examination appellant's counsel attempted to question the victim about her prior sexual experience with appellant. The court sustained the prosecutor's objection and said:

Well, I'm going to sustain the objection. I do not see the relevance.

The issue is consensual intercourse, and the fact consent was given some time in the past, whether it was the day before, a minute before or two years before, it doesn't logically follow consent was given at the time in question, and I believe the shield statute requires that I make a finding as to relevance and materiality in the case. Consequently, I will sustain the objection.

We disagree.

The test for admissibility under the Rape Shield Statute is first, one of relevancy. Second, the evidence must be material to a fact in issue and, lastly, its probative value must not be outweighed by its inflammatory prejudicial nature. In the instant appeal the victim's consent was put at issue. The defense made the victim's alleged prior sexual encounters with appellant material in that, if believed, they may "tend to influence the trier of fact because of [their] legal connection with the issue." Breedon v. Md. Dept. of Ed., 45 Md.App. 73, 84 n.15, 411 A.2d 1073 (1980). The issue was her consent on the 5th of February, 1983.

We specifically reject any notion that once consensual sex has been shown, any subsequent sexual activity, ipso facto, implies consent. The sensitive question of the relevancy of the victim's past sexual conduct with the defendant must be decided on an ad hoc basis. Under the facts and circumstances of this case, where the appellant contends that he and the victim engaged in a series of amicable and amorous encounters over a period of years, the relevancy of this evidence is, we believe, beyond question. Evidence is relevant if it "tend[s] to either establish or disprove [issues]." Kennedy v. Crouch, 191 Md. 580, 585, 62 A.2d 582 (1948). If the evidence is intended to and does describe or explain the facts and circumstances of the case, it is admissible. Id.

We repeat, the issue here is one of consent; evidence of the victim's prior sexual contact would tend to prove appellant's explanation of the events as being of a consensual nature. See Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979) (evidence of prior relations with the accused was admissible); Bobo and Forrest v. State, 267 Ark. 1, 589 S.W.2d 5 (1979) (evidence that the parties had had prior relations over a period of eighteen months held to be admissible); Brown v. State, 264 Ark. 944, 581 S.W.2d 549 (1979) (evidence that the parties had had prior relations once or twice maybe three years ago held to be admissible); Annot., Rape--Complainant's Prior Sexual Acts, 94 A.L.R.3d 257, 287. But see People v. Hastings, 72 Ill.App.3d 816, 28 Ill.Dec. 683, 390 N.E.2d 1273 (1979); State v. Boyd, 643 S.W.2d 825 (Mo.App.1982). In states where Rape Shield Statutes have been enacted, evidence of the victim's prior sexual contact with the accused is admissible subject to the restrictions of the particular statute. See Wooten v. State, 361 So.2d 1192 (Ala.Cr.App.1978); State v. Small, 276 Ark. 26, 631 S.W.2d 616 (1982); State v. Domangue, 50 So.2d 599 (La.1977); Commonwealth v. Grieco, 386 Mass. 484, 436 N.E.2d 167 (1982); People v. Williams, 95 Mich.App. 1, 289 N.W.2d 863 (1980); State v. Boyd, 643 S.W.2d 825 (Mo.App.1982) (reasonable contemporaneousness required); State v. Crisp, 629 S.W.2d 475 (Mo.App.1981) (same); State v. Graham, 58 Ohio St.2d 350, 390 N.E.2d 805 (1979); Commonwealth v. Majorana, 299 Pa.Super. 211, 445 A.2d 529 (1982). Even where no statute exists, case law in many jurisdictions permits this evidence. See United States v. Kasto, 584 F.2d 268 (8th Cir.1978); Smiloff v. State, 439 P.2d 772 (Alaska 1968); State ex rel. Pope v. Superior Court, 113 Ariz. 22, 545 P.2d 946 (1976); McLean...