Walter v. State, 245

• Decision Date: 29 April 1970
• Docket Number: No. 245,245
• Parties: Leslie Wayne WALTER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 385

9 Md.App. 385

264 A.2d 882

Leslie Wayne WALTER v. STATE of Maryland.

No. 245.

Court of Special Appeals of Maryland.

April 29, 1970.

Certiorari Denied July 6, 1970.

Alan Hamilton Murrell, Baltimore, for appellant.

William E. Brannan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty. for Baltimore County, Charles E. Moylan, Jr., State's Atty. for Baltimore City, Michael E. Kaminkow and I. Seymour Orlinsky, Asst. State's Attys. for Baltimore City, on brief, for appellee.

Argued before MURPHY, C. J., and MORTON, ORTH and THOMPSON, JJ.

THOMPSON, Judge.

Leslie Wayne Walter, the appellant, was convicted of rape by Judge Kenneth C. Proctor presiding without a jury in the Circuit Court for Baltimore County to which court the case had been removed from the Criminal Court of Baltimore. The sentence was to a term of 12 years. The sole question on appeal concerns the sufficiency of the evidence to support the verdict.

There was evidence from which the trial judge could find: At about 1:30 A.M. on August 17, 1968, Margaret Propst, the 39 year old victim, and her friend, John Oliphant, both negroes were parked in his automobile in Druid Hill Park in Baltimore. After being there only a short while, a police car approached and two officers got out. The white appellant, Officer Leslie Wayne Walter, walked over to their car and asked for identification which was given. Officer Walter then told the couple it was after hours and that they could be locked up. He then stated he was going to take Miss Propst to the stationhouse; John Oliphant was told to remain there with Officer Myers until he and Miss Propst returned. After a short drive, the defendant stopped the car behind the reptile house near the entrance to the park, and demanded that she have sexual relations with him. He then moved from his position under the wheel to the middle of the seat, unloosened his belt, pulled his pants and shorts down and then pulled Propst over on him. The victim became hysterical, knowing he had a gun, and being afraid because of his abrupt tone of voice, she obeyed his command. She then removed her pants and straddled him. Whereupon he completed the sex act. He then took a handkerchief from his pocket, cleaned himself, and gave it to Propst who threw it onto the ground. (The handkerchief was later recovered). On the way back to where Officer Myers and John Oliphant were waiting, the appellant told the victim to say they had been to the stationhouse.

Upon their return, Miss Propst got out of the police car and Officer Myers got in, and the appellant drove away at a high rate of speed. According to John Oliphant, the victim was hysterical. Oliphant was unsuccessful in getting her to tell him what had happened other than she watned to get away from there because she was afraid the appellant was 'going to hurt me (John Oliphant) * * * he's got a gun * * *' Oliphant noted the license number of the police car and went to the Northern Police Station. Miss Propst stayed in the car, but after some persuading by an officer, she went into the stationhouse where both the victim and Oliphant made statements as to the crime.

A more exact statement of the case can be gleaned from some of the prosecuting witness's testimony:

'Q. What was Officer Walter talking to you about?

'A. He said, 'Do you know that I could lock you up for being out here,' and then he said that he knew a captain at the station house to talk to this captain; and I asked him if Johnny was going and he said no. I asked him why Johnny couldn't go, and he said Johnny stays here until we come back and we'll go to the station house. And then that's when he began to talk loud and said, 'Come on, let's go, come on,' and so I got in the police car and went with him.'

'Q. And when he stopped there, what, if anything, did he say?

'He said, 'Come on, do with me what you was going to do with your boy friend.' And I asked him, 'What was I going to do with my boy friend,' and he began to yell loud and telling me to hurry up and come on. So at that point I began to start crying and got hysterical, and I just didn't know what he was talking about, and he just pulled me over on him.'

'Q. How did he pull you over?

'A. He just took his hand and pulled me over.

'Q. In which direction were you facing when he pulled you over?

'A. I was facing him; my face was facing him. I was straddling him.

'Q. You were straddling him?

'A. Yes.

'Q. Where were your legs?

'A. My legs was on each side of him.

'Q. And what, if anything, happened then?

'A. Then he put his penis in my vagina.'

'THE COURT: * * * When he grabbed you and pulled you over, what did you do?

'A. I just went over on him because I was hysterical, and I was afraid because he was a police officer.'

She testified further on cross-examination:

'Q. Talk to the captain about what?

'A. About me not, so we wouldn't have been locked up; and I asked him why Johnny couldn't go too, and he said Myers was going to stay to talk to Johnney until we got back, and then he says, come on, let's go.

'Q. And then you proceeded to do what?

'A. I went with him because I was scared.

'Q. You went with him why?

'A. Because I was scared.

'Q. You were scared of the fact he was a police officer?

'A. Yes.

'Q. Were you scared of being locked up?

'A. No, of him being a police officer.'

'Q. I see; now, when the car stopped and you said to him, is that the police station, what happened then?

'A. Then he says, no.

'Q. No, it's not a police station?

'A. No.

'Q. Now, you're sitting on the righthand side of the car, aren't you?

'A. Yes.

'Q. Did it ever dawn on you at that time to open the door and get out of the car?

'A. I was scared.'

'Q. Well, again I ask you, why didn't you open the door of the car on the righthand side and get out of the car?

'A. Because he was a police officer, and he had a gun and I was afraid.

'Q. Did you think he had a gun and thought that he was going to use the gun when he opened up his pants?

'A. Yes, he might have shot me.

'Q. Beg you pardon?

'A. If I ran, he might have shot me or something.'

'Q. You certainly knew when you arrived in a sitting position on his legs that your pants were off at this point, didn't you? You knew they were off didn't you?

'A. Yes.

'Q. Well, I'll ask you again why at this point didn't you holler for help?

'A. Because I was so scared and hysterical.

'Q. Well, why did you take your pants off?

'A. Because I was afraid of him; I was hysterical.

'Q. Did it ever dawn on you not to get on his legs and straddle his legs?

'A. No, because I was too afraid and hysterical.

'Q. I see. Did he bruise you or harm you in any manner?

'A. He was talking loud.'

The State contends this evidence was sufficient to support a rape conviction and relies on the leading Maryland, case, Hazel v. State, 221 Md. 464, 468, 157 A.2d 922 which gave the common law definition of rape as 'the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim.' The opinion analyzes the law stating force is an essential element of the crime and the evidence must show either the victim resisted but her resistance was overcome by force, or she was precluded from resisting by threats to her safety, i. e. the force was constructive. Absence of consent, also an element, can be established by the resistance, and the amount of resistance required is relative, depending on the circumstances. The Court said at page 470, 157 A.2d at page 925: 'But the real test, (whether physical resistance is present or absent) which must be recognized in all cases, is whether the assault was committed without the consent and against the will of the prosecuting witness.' Then the Court's language went somewhat further than other cases, particularly the older ones in allowing proof of lack of consent when physical resistance is absent, saying at page 470, 157 A.2d at page 925:

'The kind of fear which would render resistance by a woman unnecessary to support a conviction of rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist.' (Emphasis added)

The Court further pointed out submission is not the same as consent, and differs from a reluctant consent.

Professor Rollin M. Perkins in his book Criminal Law (1957 Ed.) criticizes the common law definition of rape at page 121:

'If force is declared to be an element of the crime it becomes necessary to resort to the fiction of 'constructive force' to take care of those cases in which no force is needed beyond what is involved in the very act of intercourse itself. A more sound analysis is to recognize that human nature will impel an unwilling woman to resist unlawful sexual intercourse with great effort if she is not disabled by any physical or mental incapacity at the moment, nor deterred by intimidation or deception. Hence the better view is that 'force' is not truly speaking an element of the crime itself, but if great force was not needed to accomplish the act the necessary lack of consent has been disproved in other than exceptional situations.'

All courts recognize some exceptional situations where neither resistance nor force is required e. g. when the victim is asleep. Clark and Marshall, Crimes § 11.01 at 673. Some other situations require little more in the way of either force or resistance as where a father or stepfather rapes his young daughter. State v. Carter, 265 N.C. 626, 144 S.E.2d 826 (1965); Deffenbaugh v. State, 32 Ariz. 212, 257 P. 27 (1927); Bailey v. Commonwealth, 82 Va. 107 (1886). The question of statutory rape, where the victim is below the age of consent, was not involved in these cases.

Although a police officer does not stand in loco parentis...