Watson v. State, 34

• Court: Court of Appeals of Maryland
• Citation: 407 A.2d 324,286 Md. 291
• Docket Number: No. 34,34
• Parties: Kyle WATSON v. STATE of Maryland.
• Decision Date: 06 November 1979

Page 291

286 Md. 291 407 A.2d 324 Kyle WATSON
v.
STATE of Maryland. No. 34. Court of Appeals of Maryland. Nov. 6, 1979.

[407 A.2d 325]

Page 292

Michael R. Malloy, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Stephen B. Caplis, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, COLE and DAVIDSON, JJ.

ORTH, Judge.

The General Assembly of Maryland created the felony of rape in the second degree by Acts 1976, ch. 573. As amended by Acts 1977, ch. 292, effective 1 July 1977, a person is guilty of that crime "if the person engages in vaginal intercourse ¹ with another person . . . (w)ho is under 14 years of age and the person performing the act is at least four years older than the victim." Md.Code (1957, 1976 Repl.Vol., 1979 Cum.Supp.) Art. 27, § 463(a)(3). Upon conviction, a penalty of imprisonment for a period of not more than 20 years is authorized. § 463(b).

On 13 October 1977, Kyle Watson, 21 years of age, engaged in vaginal intercourse with Joyce Deskins, 13 years of age. He was charged with the offense of rape in the second degree by indictment returned 15 November 1977, tried at a court trial in the Criminal Court of Baltimore, convicted on 2 May 1978, and sentenced to 20 years in care of the Commissioner of Correction on 2 June 1978. The judgment was affirmed on direct appeal to the Court of Special Appeals in an unreported opinion. We granted Watson's petition for the issuance of a

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writ of certiorari. The question presented was whether the sentence imposed constituted cruel and unusual punishment or was otherwise improper. I

The evidence adduced at the trial established that Joyce had freely and voluntarily engaged in the sexual activity. She was in love with Watson, and on numerous occasions had invited him to come to her home, where she lived with her parents and brother. [407 A.2d 326] In the early afternoon of 13 October 1977 he arrived at her house in response to an invitation extended a week before. Her parents, who were working, and her brother were not at home. She led Watson to her bedroom. They undressed and, in her bed, had sexual relations with her full cooperation. Afterwards, "(w)e just laid there, and then he got up and got dressed and kissed me, and then he left." He knew how old she was. Several days later she discussed the incident with her cousin. The cousin recounted what had happened to her mother, Joyce's aunt, and the aunt told Joyce's mother, who informed the police.

II

To aid in the imposition of punishment, the trial court requested a pre-sentence medical report and a pre-sentence probation report at the conclusion of the guilt phase of the trial. These reports were in the hands of the court and considered by it at the penalty stage of the trial. The medical officer recommended that Watson "receive a maximum sentence of incarceration." This recommendation was supported by the evaluation of Watson by the doctor upon "repeated psychiatric examination" and psychological testing. The court observed that "the medical office was particularly disturbed about this. They personally came to see me about this." The Division of Parole and Probation "(b)ased upon (Watson's) extensive prior record, his mental health history, the nature of the instant offense, and his potential threat to society," recommended that a sentence be

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imposed. It "further recommended that if possible, (Watson) be incarcerated at Patuxent whereby he can receive psychiatric management as previously indicated in his earlier history." The court stated that according to both reports Watson was anti-social. There are "obviously defects in his personality. . . . He is a threat to society. He is a danger to society." It was because of this that the court emphatically rejected defense counsel's suggestion that any sentence be suspended and probation granted. "(U)nder no conditions will there be a suspended sentence. . . . Clearly, both reports say that he should receive incarceration, and one was vehement in saying it should be the maximum because he is that much of a danger to society." Thus, the issue was "where and how long." "I asked the medical office if (Patuxent) was appropriate in the case and they did say that it would be fine." Then the court declared: "Now I can only do that if the defendant wishes it." This belief of the court, and its subsequent action apparently predicated upon that belief, requires that the sentence imposed be vacated and that the case be remanded for resentencing.

When the court indicated that it could sent Watson to the Patuxent Institution only if Watson wished it, defense counsel said: "Well, from my past experiences with the Patuxent Institution, I personally would not recommend such institution for the defendant and, of course, I would talk to his family about that and to the defendant." Further discussion followed, during the course of which the court observed: "There is the possibility of being released sooner if he is better and it is possible he may get out sooner if he is in a regular institution." At the end of the colloquy between the court and defense counsel, the court reminded defense counsel that he wanted to talk to Watson about the possibility of confinement in Patuxent. The transcript of the proceedings reflects that a "brief pause" ensued, "following which the proceedings . . . resumed." Defense counsel reported to the court that he had "discussed the situation with (Watson) and his family." Before he made known their decision, however, he again suggested probation, this time upon the condition that Watson receive "medical attention at a private

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institution, in University Hospital or one of the other hospitals ." The court reiterated that Watson could not expect to be put on probation with his record and reviewed that record in detail. Defense counsel then informed the court with respect to the attitude of Watson and his family toward Patuxent:

Well, I discussed the "where" with the defendant and his family and, of course, his father who was a guard at Patuxent [407 A.2d 327] in no way wants his son to go there because of his past experience with Patuxent. Under no circumstances would he want his son to go there. So, therefore, we only have one alternative for the Court to do. . . .

It is manifest that the court proceeded thereupon on the belief that inasmuch as Watson did not wish to be sent to Patuxent, the resources of that institution could not be called upon as to him. After allocution had been offered Watson and declined, the court said:

Even the maximum sentence in this case . . . is such that under our present parole guides means almost nothing. I think that if he really improves or some change is seen in him, he'll be out in a reasonable time anyway. I agree with you that there is some mitigating circumstance in (Joyce's) attitude and her appearance, such that when it is combined with his general behavior in society it really makes very little difference. She was just another victim an easy one. That is true, but even if it was not an easy one he would commit the crime, I think, if I am to believe the reports of the probation department and the medical office that he is anti-social. He is a threat to society. He is a danger to society. While I have that difficulty and I am...