Wilson v. State

• Decision Date: 07 June 2000
• Docket Number: No. 1597,1597
• Citation: 752 A.2d 1250,132 Md. App. 510
• Parties: Raymond Davis WILSON a/k/a Raymond Junior Wilson v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

752 A.2d 1250

132 Md. App. 510

Raymond Davis WILSON a/k/a Raymond Junior Wilson v. STATE of Maryland.

No. 1597, Sept. Term, 1999.

Court of Special Appeals of Maryland.

June 7, 2000.

Martha Weisheit, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Douglas Gansler, State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Argued before MOYLAN, EYLER and SONNER, JJ.

MOYLAN, Judge.

The appellant, Raymond Davis Wilson, challenges his convictions by a Montgomery County jury, presided over by Judge Martha G. Kavanaugh, of first-degree rape, two counts of a first-degree sexual offense (one involving sodomy and the other, fellatio), first-degree burglary, and robbery. On appeal, he presents the following questions for resolution:

1. Was the evidence legally sufficient to prove the penetration required for both the rape and one of the first-degree sexual assault convictions?

2. Did the trial court err in refusing to compel the production of validation studies of the DNA evidence conducted by the Cellmark Laboratory?

3. Did the trial court err in denying the appellant's motion to suppress evidence obtained following his pretextual arrest on an outstanding warrant for a traffic violation?

4. Was the 1991 warrant for the seizure of the appellant's blood supported by probable cause?

5. Was it a violation of the appellant's Fourth Amendment rights to examine blood seized from him pursuant to a warrant in an earlier unrelated case without a second warrant?

The Factual Background

In the early morning hours of December 12, 1997, seventy-six-year-old Jill Livesey awoke in her Potomac, Maryland home to the sight of a stranger standing in her bedroom doorway. The intruder, wearing a mask, approached her, pushed her back onto her bed, and attempted to hold her down. Ms. Livesey struck her assailant and scratched him on his face, but he nonetheless succeeded in pulling off her pajamas. The intruder then raped Ms. Livesey "back and front many times." He also forced the victim to perform fellatio upon him. In the course of the fellatio, he suddenly stopped and demanded money. Ms. Livesey gave the man four $100 bills that she kept in her dresser. He then fled the scene.

Later that day, the victim was taken to Shady Grove Hospital where she was examined by Susan Boch, a nurse practitioner. Ms. Boch took a report from the victim in which the victim stated:

He took his pants down and tried to put his penis in the front of me and then the back of me, and when I wasn't—when he wasn't so successful, he put that wretched penis in my mouth.

The victim also stated that she "honestly didn't know" whether her attacker had penetrated her vagina and anus. Ms. Boch took swabs of the victim's vaginal and rectal areas and photographed both. She also took fingernail clippings.

Several other witnesses were also interviewed regarding the crime. Brian Schwartzback, who was living in an apartment in Ms. Livesey's barn, testified that he knew the appellant and that he saw the appellant several days after the incident. Schwartzback recalled that at that time, the appellant had his hand wrapped in a gauze bandage. A taxicab driver testified that in the early morning hours of December 12, he picked up an individual in Tobeytown (a neighboring town to Potomac) and the individual paid for his fare with a $100 bill. A tracking dog subsequently followed a trail from Ms. Livesey's residence to the Tobeytown area.

Tammy Mindick, an acquaintance of the appellant, testified that at 5:30 a.m. on December 12, the appellant unexpectedly arrived at her home by taxicab. Ms. Mindick noticed scratches on the appellant's face. When the detectives arrested the appellant on December 22, they also noticed that he had injuries to his hands and a healed scratch under his left eye. The detectives took photographs of the appellant as well as hair and saliva samples.

The Element of Penetration:

Rape and Sodomy

The appellant does not challenge the legal sufficiency of the evidence to support his convictions for robbery, first-degree burglary, and the first-degree sexual offense involving fellatio. He challenges only his convictions for 1) rape and 2) the first-degree sexual offense involving sodomy. His claim is that the State's evidence was not legally sufficient to show the penetration that is a required element of both crimes.

The appellant argues that Ms. Livesey's conclusory testimony that the appellant "raped me front and back many times" is not in itself enough to prove that penetration did, in fact, occur. The appellant focuses, moreover, on the victim's admission to the examining nurse that she "honestly didn't know" whether the appellant had made vaginal or anal penetration.

The appellant is, of course, correct in his assertion that penetration is a required element of both first-degree rape under Md.Code Ann., art. 27 § 462, and of certain first-degree sexual offenses (sodomy or anal intercourse) under Md.Code Ann., art. 27 § 464. As to rape, see Smith v. State, 224 Md. 509, 168 A.2d 356 (1961)

and Robert v. State, 220 Md. 159, 151 A.2d 737 (1959). As to sodomy or anal intercourse, see Bradbury v. State, 233 Md. 421, 423, 197 A.2d 126 (1964) and Canter v. State, 224 Md. 483, 485, 168 A.2d 384 (1961). And see Md. Ann.Code, art. 27 § 461(g) ("Penetration, however slight, is evidence of vaginal intercourse.") and § 461(e) ("Penetration, however slight, is evidence of anal intercourse.").

We turn our attention first to the element of penetration that was always a requirement of common law rape and is still, unchanged, a requirement of art. 27, § 462. In terms of its basic elements, the 1976 statute is simply declarative of the common law felony of rape. Although § 461(g) may tell us that "[p]enetration, however slight, is evidence of vaginal intercourse," it neglects the arcane, but sometimes critical, follow-up question "Penetration of what?" Especially in rape cases involving very young victims, the evidence of penetration is frequently very problematic. The critical difference between consummated rape and attempted rape may turn on overlooked nuances of the genital geography of the human female.

Craig v. State, 214 Md. 546, 136 A.2d 243 (1957), was the first Maryland appellate opinion to examine the required element of penetration in this anatomical context of distinguishing the vulva generally from the vagina specifically as the locus of required penetration. It pointed out, 214 Md. at 547, 136 A.2d 243:

Penetration, however slight, will sustain a conviction for the same, but the proof thereof must sustain a res in re; that is, an actual entrance of the sexual organ of the male within the labia (majora) of the pudendum (the external folds of the vulva) of the female organ, and nothing less will suffice.

In Kackley v. State, 63 Md.App. 532, 537, 493 A.2d 364 (1985), we explained that "penetration into either the labia minora or the vagina is not required; invasion of the labia majora, however slight, is sufficient to establish penetration." (Emphasis supplied).

The external female genitalia are covered by two folds of fatty or adipose tissue known as the labia majora, the major or outer lips. That is the critical locus for the legally significant element of penetration. When the labia majora are pushed aside, access is permitted into the pudenda or vulva generally. Within that vulvar vestibule, in a more anterior position, is the clitoris or external opening of the female urethra, which is surrounded by two smaller fatty or adipose folds, known as the labia minora—the smaller or inner lips. Also within the vulva or pudenda but in a more posterior position is the opening or orifice of the vaginal canal itself. The vaginal canal is the sheath that connects the vulva with the cervix or opening of the uterus. In a virginal female, the opening to the vaginal canal is covered by a thin membrane known as the hymen or maidenhead, unless that membrane has somehow been ruptured.

It is a well-settled principle of rape law that the penetration that is required is penetration only of the labia majora. No penetration of or entry into the vaginal canal itself is now or has ever been required. As Craig v. State pointed out, 214 Md. at 549, 136 A.2d 243, "[T]here may, of course, be penetration without the rupture of the hymen." That basic principle was not changed by the 1976 statute, which did not undertake to alter in any way the common law meaning or definition of rape. The use of the term "vaginal intercourse" by §§ 462 and 463 does not require any penetration, even slight penetration, into the literal vaginal canal itself. The penetration required remains simply the vulvar penetration that has always been required to prove common law rape. Section 461(g) stands for this proposition as it states that "`vaginal intercourse' has its ordinary meaning of genital copulation."¹ The appellant's challenge in this case goes not to the substantive law of penetration but to the State's evidence with respect to penetration. We hold that the testimony from the victim was itself enough to generate a prima facie case of penetration. Ms. Livesey testified that she had been raped "back and front many times." When asked to elaborate, she explained, "Well, I mean the front part of me, my vagina, and the back, the rectum." The victim's description of what occurred to her was sufficient to establish, prima facie, that penetration occurred. As we said in Simms v. State, 52 Md.App. 448, 453, 449 A.2d 1196 (1982),

it is clear that the victim need not go into sordid detail to effectively establish that penetration occurred during the course of a sexual assault. Where the key to the prosecutor's case rests with the victim's testimony, the courts are normally satisfied with descriptions which, in light of all the surrounding

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