Norman Winegan, the appellant, was convicted by a jury in the Criminal Court of Baltimore of rape and perverted practices. He was sentenced to a term of 20 years for the rape and ten years consecutive for the perverted practices. He contends the evidence was insufficient to support the two convictions, that the court abused its discretion in permitting the State to call the appellant for additional cross-examination, that the judge improperly communicated with the jury in his absence, and that the court improperly refused a proffered instruction.
The prosecutrix, 17 year old Ann Elizabeth Brooks, testified that at or about 2:30 P.M. on Sunday, June 8, 1969, while walking home from a drug store in the 2900 block of Duvall and Garrison Streets in Baltimore, she was approached by a male stranger, later identified as appellant, Norman Winegan. She was directed to go with him and was told if she did not, he would "destroy" her; that she continued to walk, but "he told me to go nowhere because if I did he may destroy me." Miss Brooks said she complied upon seeing his left hand in his pants pocket, and believing he was carrying a gun. She testified he took hold of her arm and they walked five or six blocks to his boarding house at 4017 Bonner Road, passing people on the street, but that she did not indicate to anyone she needed help because she was "afraid he had a gun"; he was still holding his left hand in his pants pocket.
After she followed him to his third floor room in the boarding house, Miss Brooks stated appellant made her pull off her clothes and get on the bed and that then he undressed himself. She was on her menstrual cycle and wearing a tampon; that appellant removed the tampon from her body and inserted his penis into her vagina. Within a couple of minutes she pushed him off and started crying, asking him to let her go and he would not. She then said the appellant told her "if you don't do that, do this, and he made me suck him" during which he ejaculated.
Miss Brooks then took a cab home where she told her uncle about the incident and he called the police. When the police arrived, she was crying. She took them to appellant's boarding house where the officers found him asleep in bed in the nude, and there arrested him. When called upstairs by the officers, Miss Brooks made identification. Her testimony that when appellant awoke and said "I'm sorry" was corroborated by the officer, but the officer was not certain to whom the appellant was speaking — to the girl or to the officers. The officers did not locate a gun in the room.
Dr. Joseph Boggio testified he examined the victim at 6:15 P.M. and stated from his report the rape occurred between 3:00 and 3:30 P.M. the same day. His examination revealed a scant bloody discharge which indicated to him her menstrual period was nearing the end. No sperm was present. He stated there could have been penetration and no sperm. The examination revealed she was not a virgin and had had intercourse many times.
The appellant, 29 years of age, 6' 3" in height and weighing 190 pounds,
I Sufficiency of Evidence as to Rape
While we are frequently called upon to review the sufficiency of the evidence in rape cases, most of them are so clear it is seldom necessary to review the law in any great detail; however, two cases recently have required a detailed review, Walter v. State, 9 Md.App. 385, 264 A.2d 882 and Rice v. State, 9 Md.App. 552. In both we held where the victim's story could not be corroborated
The rule of reason, as we shall call it, was reiterated, either expressly or impliedly, by us in Walter v. State, supra and Rice v. State, supra. It is expressly supported by several cases throughout the country. State v. Beck, 368 S.W.2d 490 (Mo. S.Ct. 1963); People v. Hinton, 333 P.2d 822 (Cal. Dist. Ct. App. 1959); Johnson v. State, 76 So.2d 841 (Miss. S.Ct. 1955); Longoria v. State, 265 S.W.2d 826 (Tex. Crim. App. 1954); People v. Cassandras, 188 P.2d 546 (Cal. Dist. Ct. App. 1948); Cascio v. State, 25 N.W.2d 897 (Neb. S.Ct. 1947); Davis v. Commonwealth, 45 S.E.2d 167 (Va. S.Ct. App. 1947); State v. Dill, 40 A.2d 443 (Del. 1944); State v. Hoffman, 280 N.W. 357 (Wis. S.Ct. 1938); Kirby v. State, 59 So. 374 (Ala. Ct. App. 1912); and Doyle v. State, 22 So. 272 (Fla. S.Ct. 1897). Doubtless there are many other cases where the fear appeared to be so reasonable there was no necessity to discuss the rule. We have found no case which directly held to the contrary. As with many legal rules, this one is easier to state than to apply. In approaching the question we must bear in mind the presumption of innocence with which every accused is clothed, and the ease with which a woman can make the charge of rape a capital crime, and the difficulty of disproving the charge, especially if sexual intercourse has occurred.
II Sufficiency of the Evidence as to Perverted Practice
In reversing the rape conviction, we have accepted, as we must, the story of the prosecutrix as to the acts of the appellant. We did not accept her subjective statement of the overpowering fear, necessary to support a conviction of rape, because the acts she described were not sufficient under the circumstances to inspire such fear. This provides no reason for us not to accept the findings of the jury that the perverted practices actually occurred. We cannot say there was no evidence legally sufficient to support the verdict as to perverted practices. Md. Code, Art. 27, Sec. 554. Williams v. State, 5 Md.App. 450, 247 A.2d 731. There was some evidence the prosecutrix did not willingly perform fellatio. Rice v. State, supra. We
III Recall of Appellant to Witness Stand
The action of the trial court in permitting the recall of a witness to the stand is entirely within its sound discretion. Gardner v. State, 8 Md.App. 694, 261 A.2d 799 and McEntire v. State, 2 Md.App. 449, 235 A.2d 311. We see no abuse of discretion simply because the witness involved happened to be the accused.
IV Communication with the Jury
Soon after the jury retired to consider its verdict, the foreman advised the bailiff the jury could not agree on a verdict. In the absence of counsel and the accused, the trial judge instructed the bailiff to tell the jury to continue their deliberation. Although the question is borderline, we regard the answer to the question, under the particular circumstances, as a nonprejudicial communication instead of an instruction under State v. Saul, 258 Md. 100, 265 A.2d 178. See also Saul v. State, 6 Md.App. 540, 252 A.2d 282, Sweeney v. State, 6 Md.App. 431, 252 A.2d 9.
We note, however, the preferred practice is that any communication from judge to jury, not related to mere physical requirements of the jurors, should be made only in open court to the complete jury, in the presence of the accused and in the presence of counsel. 41 A.L.R.2d 266.
V. Failure to Call a Witness
Winegan alleges error because the trial judge refused an instruction that since Officer Green had not been called to testify the jury could infer that had he been called his testimony would have been adverse to the State. There is nothing in the record to suggest Officer Green had any information not known to the officer who did testify, despite
Judgment as to Indictment No. 4269 (Perverted Practice) affirmed, except as to the sentence; sentence vacated and case remanded for the imposition of sentence in accordance with this opinion;
Judgment as to Indictment No. 4268 (Rape) reversed without a new trial.
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