Eyler, Deborah S., Kehoe, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.
Eyler, Deborah S., J.
In the Circuit Court for Montgomery County, Russell Anderson, the appellant, was tried by a jury on two counts of first-degree rape of Rosa Molina. According to Molina, a firearm was used in the rape, and a second man, co-defendant Timothy McLaughlin, also raped her. According to the appellant, who testified at trial, his sexual encounter with Molina was consensual. The jury convicted the appellant and McLaughlin and both were sentenced to two consecutive terms of life in prison.
The appellant challenges two rulings by the trial court admitting extrinsic evidence that, two weeks after the day Molina maintains she was raped, the police searched his apartment and found a handgun. In fact, the search was in connection with an entirely different case, and the handgun found during the search could not be shown to be the weapon used against Molina. The court ruled, however, that the evidence was admissible to impeach by contradiction the appellant's testimony, on cross-examination, that he did not have a handgun in his apartment at the relevant time.
We conclude that the trial court's rulings were an abuse of discretion. The evidence in question was extrinsic evidence concerning a collateral matter. It had virtually no probative value. And the danger that its admission would unduly prejudice the appellant and would confuse and mislead the jurors greatly outweighed any probative value it might have had. We shall reverse the judgments of conviction and remand the case for further proceedings.
FACTS AND PROCEEDINGS
Based on DNA evidence, the appellant and McLaughlin were charged, in 2012 with raping Rosa Molina on December 22, 1989. The rapes were committed in the basement laundry room of the apartment building in which Molina was living with her husband, young daughter, brother-in-law, and sister-in-law. In late 1989/early 1990, the appellant and McLaughlin were co-workers and friends. McLaughlin's sister lived in the same apartment building as Molina. The appellant and his girlfriend were living in an apartment in Washington, D.C. Molina did not know the appellant, McLaughlin, or McLaughlin's sister.
The case went to trial in April of 2013. Molina was called by the State and testified that on the afternoon of December 22, 1989, she was doing laundry in the basement of her apartment building when a man entered, approached her, and held a long black gun against her head. A second man entered the laundry room, closed the door, and turned the lights off. Both men were wearing black masks. Molina only could see their eyes. Each man raped her as the other man held the gun to her head. When they were finished, they left the laundry room. Molina went to her apartment and told her husband what had happened. After wiping her vaginal area off with tissues, taking a bath, and changing her clothes, she called the police and reported the rape. The police took a statement from her and collected her clothes and the tissues. She was transported to a hospital, where she underwent a vaginal examination.
On cross-examination, the defense elicited several inconsistencies between the facts Molina reported to the police after the rape and the facts she testified to at trial. Of importance here, Molina acknowledged that when the police interviewed her she told them that the gun that was held to her head was blue with a wooden handle, not long and black.
The State also called the investigating police officers, including two who interviewed Molina. One officer questioned her in Spanish, as she did not speak English, and translated what she was saying into English. He testified that Molina told him that after both men left the laundry room one man returned, and then Molina's sister-in-law entered the laundry room; and that for some time, both women and one of the men were in the laundry room together.
In addition, the State called the emergency room doctor and a forensic biologist. Together their testimony established the chain of custody of the evidence from which DNA was obtained in 2012, and the process by which that DNA was determined to match DNA from the appellant and McLaughlin.
The appellant took the stand and testified as follows. On December 22, 1989, he got off work at 8:00 or 9:00 a.m., having worked an extended overtime night shift. He walked to McLaughlin's sister's apartment building to find McLaughlin, who had agreed to lend him money to pay his rent. He and McLaughlin's sister entered the apartment building at the same time. They took the elevator and got off at the sister's floor, where they encountered McLaughlin and Molina "touching each other" and "laughing and playing." The appellant had never seen Molina before. McLaughlin's sister said she wanted to see her brother inside her apartment. McLaughlin whispered something in Molina's ear, took some money out of his pocket, put it in her "shirt-type area, " "smacked her on the butt, " and left with his sister.
Molina grabbed the appellant's hand and led him to the elevator and then to the basement laundry room. They "started making out." The appellant put his coat on the floor and they had sexual intercourse on top of it. He did not force himself on Molina and she did not push him away or tell him she did not want to have sex. He did not use a condom and ejaculated inside of Molina. Afterward, while they were getting dressed but were not yet fully clothed, a woman entered the laundry room and spoke to Molina in Spanish. The appellant could not understand what the woman was saying, but could tell she knew Molina and was "agitated or serious - angry." Molina answered the woman in Spanish and started to cry.
The appellant finished getting dressed, left the laundry room, and went to McLaughlin's sister's apartment to get the money. He then went home to the apartment in D.C. where he was living with his girlfriend.
We shall include additional facts in our discussion of the issues.
On January 5, 1990, exactly two weeks after Molina reported that she had been raped, a woman from Washington, D.C., called the District of Columbia Metropolitan Police ("D.C. Police") and reported that the appellant had raped her at gunpoint. The D.C. Police immediately obtained and executed a search warrant for the appellant's apartment. They seized several items, including a handgun they found in the living room closet. The police report of the search ("D.C. Police Report") describes the handgun as a "Revolver, 36 cal., Navy Model, from the Hawes Firearm Co., black with brown wood grips, black electrical tape wrapped around grip, cylinder and hammer, Serial # 7547."
On the third day of trial, the prosecutor informed defense counsel of the existence of the D.C. Police Report and furnished them copies. Before the appellant's counsel called the appellant to testify, he moved to preclude the prosecutor from using the D.C. Police Report on cross-examination and from introducing it into evidence. He argued that the report had not been timely disclosed and, in any event, whatever probative value it might have was substantially outweighed by the danger of unfair prejudice in admitting it. The latter argument was based largely on the fact that the State was not contending that the handgun found in the police search of the appellant's apartment on January 5, 1990, was the weapon that was used against Molina.
The trial court ruled that the State had not committed a discovery violation and that the prosecutor could use the report for impeachment. The judge observed that the report had not "been offered in any way, shape, or form, as substantive evidence in the [S]tate's case . . . that this is in fact the gun" and that it "is not coming in as evidence [and] does not go back to the jury." He stated that the report was "simply going to be used if the situation presents itself for purposes of cross examination, " and cautioned that the report's use would need to be "carefully limited."
On cross-examination of the appellant, the prosecutor established that in 1989 he and his girlfriend were living in a particular apartment in D.C., and were the only people living there. When asked whether he had purchased a .36 caliber Navy Model handgun, black with a wood handle, the appellant answered, "No." He also denied ever owning a handgun or any gun. He acknowledged that there had been a closet in the living room of the apartment in which he and his ...