Gonzalez v. State

RUDY A. GONZALEZ v. STATE OF MARYLAND

No. 1929

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 15, 2021

Circuit Court for Montgomery County

Case No.: 134709C

UNREPORTED

Fader, C.J., Wells, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

Opinion by Wells, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant, Rudy Gonzalez, was indicted in the Circuit Court for Montgomery County, Maryland, and charged with first-degree rape, second-degree rape, and sexual offense in the third degree. The State nol prossed the offense of sexual offense in the third degree prior to the close of the evidence. The court instructed the jury on first-degree rape, second-degree rape (forcible), and second-degree rape (mentally incapacitated/physically helpless). The jury was unable to reach a verdict on first-degree rape. But the jury convicted Gonzalez of second-degree rape (mentally incapacitated/physically helpless). After he was sentenced to twenty years, with five years suspended, followed by five years' supervised probation, Gonzalez filed this timely appeal. He asks us to address the following questions:

1. Did the trial court err, as a matter of law, by refusing to allow evidence of Gonzalez's sexual peacefulness or sexual propriety as either character or habit evidence?

2. Did the trial court err by disallowing the proffered testimony of David Land?

3. Did the trial court err by refusing to grant a mistrial when Detective Abigail Ratnofsky testified that after Gonzalez was arrested, he did not ask why he was being taken to the station or why the police were at his home?

4. Did the trial court err by admitting the recording of the police interview without redaction of inadmissible evidence?

5. Did the trial court err by allowing the State to enter a nolle prosequi as to third-degree sexual offense?

6. Did the trial court err by denying a mistrial following the State's improper closing and rebuttal arguments?

For the reasons explained below, we reverse, concluding that the trial court committed two errors that seriously compromised Gonzalez's credibility before the jury.Because these errors are not harmless beyond a reasonable doubt, reversal and a new trial are required. Specifically, first, we conclude that the court erred in not permitting defense testimony regarding Gonzalez's alleged propensity for sexual peacefulness. Second, we conclude that two statements of disbelief that a detective made during Gonzalez's interrogation merit reversal under Crawford v. State, 285 Md. 431 (1979). While we do not think that the court abused its discretion in sustaining a defense objection to a prosecutor's question to a detective about Gonzalez's post-arrest silence without providing an additional curative instruction that Gonzalez requested, the jury nonetheless heard impermissible testimony on that topic. That fact weighs against a finding of harmless error in the overall conduct of the trial. Finally, because we remand for a new trial, we decline to address (1) the issue Gonzalez raises regarding defense witness Land's testimony, (2) the propriety of the State's nol pros of the third-degree sexual offense, or (3) any of the issues Gonzalez raises regarding the State's comments during closing argument.

FACTUAL BACKGROUND

On the night of October 8, 2018, G. testified she went to Gonzalez's residence and consumed several shots of tequila.¹ She lost consciousness and awoke the next morning, confused, naked, and in severe pain. A medical examination performed revealed significant bruising to G.'s breasts, as well as severe trauma to her genitals that required surgery and further medical treatment.

Testimony at trial established that G. was nineteen years old, had recently arrived in the United States from El Salvador, spoke little English, and worked as a waitress at a restaurant located in Montgomery County. Gonzalez was a customer of the restaurant. Gonzalez, who was fluent in Spanish, spoke with G. on one occasion and offered to help her learn English and find a job other than waitressing. G. was interested. She accepted his business card and agreed to meet with him.

On the morning of October 8, 2018, she called Gonzalez and suggested that he pick her up at around 5:00 p.m. to go to a park so they could talk more about job opportunities. G. met him at the appointed time and place but, instead of taking her to a park, Gonzalez drove her to his own residence. She testified that she reluctantly went with him. Once at the residence, they sat down on a couch in the living room and spoke for a while about family, her employment situation, and El Salvador.

Eventually, according to G., Gonzalez produced a bottle of tequila and two glasses and said, "let's celebrate our friendship." G. took the drink and testified that she initially felt "fine." Gonzalez then gave her several more drinks of tequila. She testified that she had five drinks in all. She testified that she told Gonzalez that her brother would be worried about her and that she should go home, but Gonzalez became upset and insisted that they have one more drink.

G. agreed, but after she took the drink she told Gonzalez she "wasn't going to be able to hold it[.]" She testified that she asked for a lime, and Gonzalez went to the kitchen and returned about five minutes later with a lime wedge. She testified that the lime was "bittersweet" and tasted "different," and that, after she put it in her mouth, "that was it." G.looked at her phone, saw it was around 7:15 p.m., and again told Gonzalez that she wanted to go home. She remembered that he was "upset and red," and that she passed out soon after.

After she passed out, G. did not remember anything else until she woke up the next morning. At that time, she was in Gonzalez's bed, naked, confused, and unable to move. Gonzalez tried to roust her, telling her it was her "fault that he was going to be late at work." He said that he had washed her clothes and then gave them to her.

G. testified that she sat up and realized she was in pain. She testified there was a "very strong" pain in her "buttocks or it was my anus" as well as around her breasts. She said that she felt weak and had to sit down while trying to dress. She noted that Gonzalez "wanted to get rid of [her] very quickly." He helped her get dressed but was "behaving very weird."

G. testified that Gonzalez never told her that they had sex after she passed out. She likewise stated that he did not tell her that he bathed her after she vomited, nor did he tell her why she was naked. She testified that she "was traumatized" and suspected that "something had happened to me."

G. testified that she then got into Gonzalez's car so that he could take her home. G. said she felt weak and thirsty. So, she asked Gonzalez to drop her off outside a Wendy's restaurant. He did. After he left, G. realized that the Wendy's was closed. By then she said that she was "feeling badly" and "sick," and sat down on the curb at the back of the parking lot. It was then that she looked at her cellphone and noticed that all of her apps were "deactivated." Without objection, she testified that it appeared that it was"deactivated like, like to prevent that somebody could call me, or the GPS could work and look at me." G. confirmed that she did not deactivate any of the phone's apps.

G. then got up and went over to a dumpster to urinate. When she did, she saw blood coming from her vagina. She was not experiencing her period and testified that this was "a different thing." She laid down and fell asleep.

Afterwards, as the Wendy's was being opened for the day, an unidentified lady awakened G. and took her inside the restaurant. Someone called for an ambulance. While riding in the ambulance to the hospital, G. noticed that her nipples "were red, the tips of my nipples were broken" and she had "several bruises," including her legs. Doctors at the hospital told her that she would need surgery because she "had a large wound in [her] vagina and it was bleeding quite a bit." G. testified that she needed twenty-five days to recover from her injuries. She maintained that she did not have any of these injuries before October 8, 2018.

Later, G. told the police she was with Gonzalez the night before. She told the police that she did not want, nor did she agree, to have sex with him.

The jury heard from Julio Deras, the firefighter-paramedic who treated G. at the Wendy's and transported her to the hospital. Deras said that when he arrived, G. was not wearing socks or a bra, had dirt in her hair, and had blood in her shoes and around her ears. She had low blood sugar and appeared dehydrated. She also complained of pain around her breasts and vaginal area. She told Deras that she was with a man the night before, that she consumed alcohol, and that she did not consent to intercourse. Deras also testified, without objection, that general indications that a person was intoxicated included, but werenot limited to, that "they're throwing up on themselves, they've urinated on themselves[.]"

Dr. Jessica Volz, who the court accepted as an expert in the fields of sexual assault forensic examinations and drug-facilitated sexual assaults, testified, without objection, that vomiting, urination and unconsciousness were possible effects of acute alcohol intoxication. She also testified that "drug-facilitated sexual assault" is "sex that occurs when someone is under the influence of any substance" that affects their ability to resist, consent, or perceive danger. A toxicology screen of G., taken several hours after the incident, was negative for any substances. Dr. Volz testified that, although some drugs could still be in G.'s urine, other drugs, "such as GHB, which some people are familiar with as the date-rape drug, would have...