Baby v. State (Ct. of Special Appeals)

Filed February 9, 2007–Opinion by Judge Arrie Davis

Baby was convicted of first-degree rape, first-degree sexual offense and two counts of third-degree sexual offense, and sentenced to a term of fifteen years imprisonment with all but five years suspended and five years probation upon his release.

Baby's appeal presented the following three issues:

I. Whether the circuit court erred by refusing appellant's request to instruct the jury that it should return a verdict of not guilty of rape if it was persuaded by the evidence that the complaining witness consented to sexual intercourse but withdrew her consent after penetration;

II. Whether the circuit court erred by denying appellant's request to remove a juror who indicated that he had read a newspaper article about the case; and

III. Whether the circuit court erred in denying appellant's motion in limine to exclude expert testimony in reference to "rape trauma syndrome."

At the conclusion of the evidence, the trial judge instructed the jury as follows regarding evidence of "consent" to negate a charge of sexual assault and the force required to sustain a conviction of rape:

The amount of force necessary depends upon the circumstances, and no particular amount of force is required but it must be sufficient to overcome the resistance of the victim. You must be satisfied that the victim either resisted and that this resistance was overcome by force or treat of force or that the victim was prevented from resisting by force or threat of force. The victim must have resisted to the extent of her ability at the time unless her resistence or will to resist was overcome by force or fear that was reasonable under the circumstances. Finally, "consent" means actually agreeing to the sexual act rather than merely submitting as a result of force or threat of force.

After the jury began its deliberations, it submitted several notes, one of which read, "If a female consents to sex initially and, during the course of the sex act to which she consented, for whatever reason, she changes her mind . . . and the man continues until climax, does the result constitute rape?" The trial judge responded to that note as a factual question as opposed to a legal question and responded that "[he] was unable to answer this question as posed. Please reread the instructions as to each element and apply the law to the facts as you find them." The next morning, another note was submitted by the jury which read, "If at any time the woman says stop, is that rape?" The judge responded, "This is a question that you as a jury must decide. I have given you the legal definition of rape which includes the definition of consent."

This Court reasoned that the plain meaning of the jury’s words, "during the sex act," leads one to conclude that the reference was to the act of intercourse. By contrast, a much broader connotation is conveyed by "during the course of the action." Any initial confusion by the trial court as to whether the question was legal or factual should have been cleared up when the jury submitted the second note the following morning. Stripped of any hypertechnical interpretation, the jury simply wanted to know if consent could be withdrawn after commencement of the sex act, i.e., penetration. The fact that there was testimony that appellant had ceased his attempt to penetrate the prosecutrix within seconds after she told him to stop leaves little doubt that the jury sought to determine when, in point in time, a withdrawal of consent would sustain a conviction for rape. The jury, in the discharge of its responsibilities to apply the law to the facts as it found them to be, was entitled to a proper response to its inquiries.

Secondly, appellant contends the circuit court erred by refusing to remove a juror at the point when the juror admitted that he had read a newspaper article about appellant’s case. The article in question appeared on the third day of appellant’s trial and was found in the Weekly Gazette, a copy of which was in the courthouse lobby. In addition to the facts that appellant had previously been tried on the same charges and was facing life imprisonment, the article disclosed that his co-defendant had entered a plea of guilty. Upon inquisition by the trial court, and outside the presence of the jury, juror No. 100 indicated his reading the article would not affect his ability to be fair and impartial and that, although he had mentioned the article to two fellow members of the jury, he did not tell them what was in the article and, to his knowledge, they did not read it. The court then ruled that it would grant the appellant’s motion to strike the juror. In consideration of the State’s assurances that it had not decided whether to call appellant’s co-defendant, the trial judge reversed herself and decided not to excuse the juror but, rather, wait until the end of the trial to see whether the co-defendant testified and how many jurors were left, indicating that juror No. 100 may end up as an alternate that would be excused.

The decision to remove a juror is discretionary and will not be reversed on appeal absent a clear abuse of discretion or a showing of prejudice to the defendant. The burden is on the party alleging prejudice to prove (1) that the publicity is prejudicial, (2) that a juror has been exposed to the prejudicial material, and (3) that the juror’s decision was influenced by the prejudicial material. The injured party’s remedy is a mistrial or a reversal on appeal. In the instant case, only one juror was found to have read the article. Except where prejudice is manifest, a trial court is entitled to rely on the assurances of jurors that they would be able to reach a verdict based only on the evidence at trial even in cases where jurors possessed knowledge of extraneous extrajudicial information about the case being tried. It logically follows that a trial judge may rely on assurances where, as here, such assurances relate to whether juror No. 100 told the other jurors about the contents of the article and his assurance that the other jurors did not read the article. The Court held that appellant’s claim of prejudice failed because there was no evidence that information contained in the article was ever imparted to the members of the jury who ultimately deliberated and found appellant guilty, and in light of the fact that the court did ultimately excuse juror No. 100.

Finally, the appellant argues that testimony offered by a professor of psychiatric nursing as an expert witness to explain how aberrant behavior of victims of sexual assault can be attributed to the "rape trauma syndrome" - asserted to be a subset of post-traumatic stress disorder - was reversible error because she had not interviewed or examined the prosecutrix and that a "general explanation of PTSD, and how the psychological symptoms are manifested in their reactions, were not specific to the case." The State’s expert testified prior to trial that she had reviewed the police statement, the indictment, the forensic nurse examiner report and an audio cassette. When presented with a hypothetical based on testimony in this case, she attributed the victim’s failure to resist, her failure to immediately report the incident and her voluntarily giving her home telephone number to the assailant to the rape trauma syndrome. This Court held that the facts presented are quintessentially the circumstances contemplated by Maryland authorities which have considered the rape trauma syndrome. The evidence [expert testimony] was neither employed to establish the happening of the criminal event or the victim’s credibility, nor did it invade the province of the jury. The expert properly relied on material supplied by the court and statements as part of the hypothetical foundation upon which she based her opinion. As such, the court properly denied appellant’s motion in limine to exclude the testimony of the State’s expert.

The full opinion is available in PDF.