Tolen v. State

477 A.2d 797, 59 Md. App. 625, 1984 Md. App. LEXIS 381
CourtCourt of Special Appeals of Maryland
DecidedJuly 13, 1984
DocketNos. 1514
StatusPublished
Cited by2 cases

This text of 477 A.2d 797 (Tolen v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tolen v. State, 477 A.2d 797, 59 Md. App. 625, 1984 Md. App. LEXIS 381 (Md. Ct. App. 1984).

Opinion

MOYLAN, Judge.

As an appellate contention, the claim that evidence was unconstitutionally “suppressed” is enjoying a season in high fashion. This decision, and the Supreme Court opinion upon which it is based, will hopefully reduce that vogue.

The appellants, Ira Tolen and Joe Louis Andrews, were convicted by a Prince George’s County jury, presided over by Judge Howard S. Chasanow, of first-degree rape and second-degree rape, respectively. Upon this joint appeal, both appellants raise the following two contentions:

1) That the State denied them due process of law when it failed to preserve the blood and fluid specimens taken from the body of the prosecutrix; and
2) That the trial judge abused his discretion when he failed to grant a new trial on the basis of newly discovered evidence.

The appellant Tolen alone raises two additional contentions:

3) That the trial judge erroneously refused to order a physical examination of the rape victim; and
4) That the trial judge unduly restricted the cross-examination of the rape victim.

The appellants do not, and in good conscience could not, claim that the evidence was not legally sufficient to sustain the convictions. The rape victim was 19 years of age. On December 6, 1982, she was waiting at a bus stop in Washington, D.C., when the two appellants pulled up in an [628]*628automobile. She recognized the appellant Andrews, who asked her if she wanted a ride. She accepted. The appellant Tolen was “passed out” in the back seat. Andrews explained to the victim that he was going to take Tolen home. When the three reached an apartment complex in Prince George’s County, the appellants forced the victim from the car into a basement apartment.

Inside the apartment, the victim was ordered to disrobe. She was raped by Tolen, with Andrews remaining in the bedroom during the course of the rape. Moments later, someone knocked on the apartment door. The rape victim agreed to answer the door and to state that she was Tolen’s girlfriend and that the two of them had been arguing. When she answered the door, however, she ran out and “hysterically” reported to the police officer and maintenance man at the door that she had been raped. She was shortly thereafter taken to the Prince George’s General Hospital and examined.

Her story was well corroborated by no less than three neighbors. Bryant Barbee testified that at about 7 p.m. he heard “some beating and noises” in the apartment next door. About 15 minutes later, he saw another neighbor, Mrs. Palmer, come out and threaten to call the police if the noise did not stop. Both Thomas Palmer and Donna Palmer, husband and wife, testified that they called the police when they heard “high pitched” and “stressful” screams “apparently coming from the hallway.” When they stepped in the hallway to investigate, they saw the appellant Tolen struggling with a woman. In response to the call from the Palmers, the police knocked on the door to Tolen’s apartment at 7:04 p.m. When no one answered, the officer left. He returned later, however, and contacted the maintenance man. When he knocked on the door the second time, at about 8:13 p.m., the rape victim ran out and reported the rape. The responding officer, James Nowlin, described her as “hysterical” and “nervous” but testified that she did not appear to be intoxicated. Both Mr. and Mrs. Palmer, as [629]*629well, observed the rape victim rush out of Tolen’s apartment when the officer returned on the second occasion.

Dr. Elias Gerth examined the rape victim at 10 p.m. that evening at the Prince George’s General Hospital. Her face was swollen and bruised and there was a small laceration on the right side of her nose. He, however, found no clear evidence of genital trauma. Dr. Gerth testified that the rape victim’s blood was not tested for the presence of alcohol and that such tests are not normally conducted.

Both of the appellants took the stand and acknowledged having been at the apartment with the rape victim. Both appellants testified as to an act of sexual intercourse between the rape victim and Tolen. Their mutual defense, however, was that the act of intercourse was completely consensual. They testified that the victim had had several drinks. The rape victim, on the other hand, testified that she took only “two swallows” of liquor in the apartment and was “not intoxicated at all.” The maintenance man who went to the door with the policeman testified that the victim smelled of alcohol and that her speech was slurred. One of the neighbors testified that she “looked like she had been drinking” and that her eyes were “blurry.” The two appellants, moreover, testified that after the act of intercourse, the victim asked Tolen for money twice and for drugs two or three times.

The appellants now contend that the routine destruction by the hospital of the victim’s blood specimen denied them due process in that it denied them the opportunity to prove that the victim was either 1) under the influence of alcohol at the time of the alleged rape or 2) a user of drugs.

With respect to the blood specimen (it is not even suggested how the preservation of the fluid specimen would have been material), the Rape Crisis Center of the Prince George’s General Hospital is not an arm of the prosecution. It was stipulated that specimens such as those taken in this case are “routinely” destroyed by the hospital staff ten days after they are taken. In ruling on the appellants’ [630]*630pretrial motion to have the indictment dismissed, Judge Chasanow found as a matter of fact:

“[T]he evidence was clearly, it was destroyed as a routine part of the practice of the hospital by an independent, private facility. Admittedly, the Rape Crisis Center is part of the hospital and there is an intimate contact with the police department. However, I don’t feel the routine destruction of specimens in any way should result in dismissal of the charges.”

Under circumstances such as these, even to raise the spectre of unconstitutional suppression betrays either 1) a total failure to comprehend or 2) a stubborn refusal to comprehend the limited applicability of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. The heart of the Brady decision was that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” 373 U.S. at 87, 83 S.Ct. at 1196. In explicating Brady, Moore v. Illinois, 408 U.S. 786, 794-795, 92 S.Ct. 2562, 2567-2568, 33 L.Ed.2d 706, 713 (1972), pointed out the three distinct components, all of which are necessary to the finding of a due process violation:

“The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence. These are the standards by which the prosecution’s conduct ... is to be measured.”

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Related

In Re Mark M.
782 A.2d 332 (Court of Appeals of Maryland, 2001)
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653 A.2d 972 (Court of Special Appeals of Maryland, 1995)

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Bluebook (online)
477 A.2d 797, 59 Md. App. 625, 1984 Md. App. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tolen-v-state-mdctspecapp-1984.