*1 698
98 A.3d Monroe Wardell BROOKS v. Maryland.
STATE 46, Sept. Term, 2013. No. Maryland. Appeals of Court of Aug. 2014.
Jeffrey Ross, (Paul M. Asst. Public DeWolfe, Defender B. Defender, Baltimore, Public MD), brief, on for petitioner. Prucka, Susannah E. Asst. Atty. (Douglas Gansler, Gen. F. Gen.,
Atty. Baltimore, MD), brief, on for respondent. C.J., HARRELL, BARBERA,
Argued before ADKINS, McDONALD, BATTAGLIA, GREENE, and WATTS, JJ. j.
McDonald, County A convicted Petitioner Wardell jury Harford degree rape, count each of first second Monroe Brooks one assault, false degree degree imprisonment. second rape, to life all imprisonment, Mr. was sentenced but Brooks conviction, and a degree rape for the first years suspended, sentence, 40-year prison years suspend- all but 20 consecutive ed, merged conviction. The court imprisonment for the false degree for and second degree the convictions second assault degree first The convictions rape rape. into the conviction of Special Appeals. were the Court of affirmed us, that his convictions should be Mr. Brooks asserts Before evidentiary court erroneous reversed because the trial made (1) police it: to admit into evidence a rulings when declined inconsistent oral state- report prior allegedly that contained a (2) strike complaining ment witness and failed to expert an forensic who had examined testimony of nurse that complaining complaining witness and who testified “would what had told injuries verify” she physical witness’s with Brooks. In the event the nurse about her encounter Mr. convictions, Brooks argues not reverse his Mr. we do into his merged his for false must be imprisonment conviction sentencing first for degree rape purposes conviction for that, false imposed consecutive sentence for accordingly, the should vacated. imprisonment be properly police We that the Circuit Court excluded the hold that, further even if the nurse’s statement report. We hold injuries verify” she “would account observed could be impermissi- witness construed complaining witness, harm- veracity comment on the of another it was ble Finally, this case. we less error under circumstances of that, hold the facts of this Mr. Brooks’ conviction under be into conviction imprisonment merged for should his false rape. degree first
Background The Trial briefly
We summarize the evidence at trial. The circum- stances surrounding the on rulings the two evidentiary issues subject are the appeal this are in greater described in conjunction detail with the analysis those issues later in opinion. this
Prosecution Case B.,1 the fall of Laura a 62-year-old resident of Alabama, was at staying the Harford County home of her deceased in mother to prepare order the home for auction. doing While yard work one day, Brooks, she met Mr. a 53- year-old man who worked as a “handyman,” when he walked by her mother’s home. Laura B. offered to hire him to weed and clean in up ditch the yard. Mr. agreed Brooks returned the next day to do the work.
Laura B. hired Mr. Brooks several other to perform times jobs and, odd occasions, on several home, drove Mr. Brooks approximately three miles from her mother’s house. Accord- B., ing to Laura Mr. Brooks would stop by to look for work time, and,
from time to when Laura B. told him that she did not him, have money hire Mr. Brooks “chit would chat” and “just kind hung around.”
Laura that, B. testified early evening hours of Octo- 9, 2008, ber she taking was nap a bedroom in her mother’s house when she was awakened aby noise. She went back to sleep, thinking that her sister had come the house. When she next opened eyes, her Mr. Brooks standing beside her bed with his pants on the floor and sex. demanding She asked Mr. why Brooks he inwas her bedroom and told him he was not supposed to be in said, the house. When she “You here,” need to get out of and tried push him toward the 1. Consistent adopted by with the Special convention the Court of briefs, Appeals parties and the in their complaining we refer to the witness in this case her first name and the first initial of her last name. door, began Brooks hair and grabbed
bedroom Mr. statue, aup being her. ceramic which was drag picked She it, and struck Brooks on the head with doorstop, used as Mr. *6 and shattering began statue. Mr. Brooks to beat choke the to B. him Laura told Mr. Brooks Pleading stop, her. with to his but needed demands that she a that she would submit attacking He her. stopped moment. her, Laura B. to the living Mr. Brooks behind went
With water, a room, smoked After a cigarette. drank some and time,” while, “it and said she went the Mr. Brooks was bedroom, Brooks to inter- Mr. forced her have sexual where that, intercourse, Mr. Brooks during course. She testified bleeding Experiencing physical from his head wound. was Laura and when Mr. Brooks B. wondering stop, would pain go her and get up for a Mr. Brooks allowed asked “break.” B., Laura living According to the room. he then followed a around house like “shadow.” She asked Mr. Brooks her responded nothing” her He that “This is and to leave alone. police anyone not or else. told her to call B. ran into the ahead of Mr. eventually Laura back bedroom Brooks, immediately hung up. on the telephone, dialed 911 back, called Mr. told her not to the 911 Brooks operator When it. told him the caller her probably answer Laura B. was sister, who come to house if she not answer the would did call and Laura B. answered the be telephone. pretended realiz operator, eventually with her sister. The 911 speaking be in her that the ing might danger, Laura B. informed telephone Laura B. laid the dispatched.2 would be police down, drink, and went to told Mr. Brooks she needed that Mr. had re kitchen. she realized Brooks When bedroom, to the she ran down basement out mained from a house, some clothes clothesline. She grabbing house until arrived. police hid outside the through left the Mr. Brooks was arrested as he house B. taken ambulance to subsequently by door. Laura was back jury recording played call for the at trial. 2. A of the 911 was Hospital, Harford Memorial where she was examined nurse.
Deputy Faby, Sheriff Jesse the first officer to arrive at home, dispatched Laura’s B’s testified that he was to the home arrived, nearby. while When he he found Laura B. patrolling until standing driveway. He remained at the scene cross-examination, investigation completed. During Dep- uty Faby spoke stated that he to Laura B. at the scene before “jotted she went to the and that he down basic hospital information” after their conversation and later generated report using those notes. Defense counsel moved to admit evidence, Deputy Faby’s report into the trial court but denied the motion.
Other law enforcement officers described how the sheriffs processed office the scene for evidence. Forensic scientists *7 Maryland from the Police Laboratory State testified about the house, collection of evidence at the the DNA profile developed evidence, on that and match Eighteen its to Mr. Brooks. items, sheet, bed, including quilt a bed from the and the Brooks, broken statue that Laura B. had used to strike Mr. were from retrieved the house and taken to the Crime Scene they eventually Unit where were and sent to a packaged lab for testing. DNA swab were collected samples throughout the house and from Mr. Brooks. DNA analysis established that Mr. Brook’s profile profile DNA matched the DNA obtained from Laura quilt. B.’s shirt and the DNA from more than one Brooks, individual penile was obtained from swabs of Mr. although major Mr. Brooks was “the contributor” to the DNA obtained from those swabs. Harden,
The prosecution Phyllis called nurse a certified (“SAFE”), Sexual Assault Forensic Examiner who examined Laura B. a few hours after Laura B. at hospital. arrived Nurse Harden had nurse registered been since 1979 and a trial, SAFE nurse since 2000. As of the time she had conducted more than 200 sexual assault forensic examinations. The Circuit Court an in qualified expert her as “forensic nursing in emphasis examinations with sexual assaults.” Laura B. that she had interviewed
Nurse Harden testified interview, in of that of the examination. Her notes part evening essentially an account of that Laura B. provided which court, in were admitted into as her the same Harden then testi- objection. Nurse evidence over defense face, on Laura’s injuries in she observed fied detail about knees, injury to her arms, very profound” and “a thighs, and report force trauma.” Her written “caused blunt genitalia into injuries of Laura B.’s were admitted photographs examination, prosecu- of her direct evidence. At the end her as to whether Laura opinion tor Nurse Harden for asked inconsistent with” the to her was “consistent or B.’s statement in physical examination injuries she had observed responded Harden that her examination Laura B. Nurse The defense Laura B. had told her. verify” “would what statement, but moved to strike Nurse Harden’s objected and and declined to objection overruled the the Circuit Court testimony. strike the Case
Defense Brooks, testified that witness was Mr. who only defense sex. He testified engaged and Laura B. had consensual he that, walked from a bar to question, on the he had night on her to ask for a ride home. He knocked Laura B.’s house door, door, Laura B. came to the he asked her back and when ride, she invited him into the house. point for a at which kitchen, Brooks, he asked to Mr. once According do, him he to clean agreed Laura B. if she had work for that, because Laura B. did her windows. Mr. Brooks testified *8 him in to have sex with any money, agreed not have she Brooks, cleaning. According Mr. exchange for the window Mr. consensual sex in the bedroom. When they then had come Laura B. that he could not back Brooks informed later, windows, days come two day next to clean the but would statue, him leaving hit him a she with upset became “dazed.” Laura B. striking, assaulting or hitting,
Mr. Brooks denied manner, at her “something” admitted that he threw any but However, he said that he did not she hit [him].” “because happened night. much what He testi- remember about Laura B.’s house the back through fied that he tried to leave door police lights door he saw because was the when telling had entered the house. He denied through which he or Laura B. phone following Laura B. not to answer around the house.
Verdict and Sentence 29, 2010, trial, days jury
On after five January finding degree returned a verdict Mr. Brooks of first guilty threat, assault, second second rape by degree rape, degree imprisonment. jury acquitted and false Mr. Brooks of rape degree dangerous the first with a weapon, rape assault, first in connection with a first degree burglary, degree and first degree burglary.3 13, 2010, the April
On Circuit Court sentenced Mr. Brooks all imprisonment, years suspended, to life but 50 for the first conviction, degree rape 40-year and a consecutive prison sentence, years suspended, imprisonment. all for false but merged degree The court the second assault conviction and conviction degree rape degree rape second into the first for sentencing purposes, merge conviction but declined to false conviction into the first con- imprisonment degree rape viction.
Appeal appealed Special Appeals,
Mr. Brooks to the Court of which judgments affirmed the of the Circuit Court in an unreported panel One member of the would have reversed the opinion. on that it ground convictions was error not to strike Nurse injuries Harden’s that Laura verify” B.’s “would version of events and that such an error was not harmless. certiorari,
Mr. petition granted Brooks filed which we and, if evidentiary to consider two issues the convictions are granted judgment acquittal 3. The court trial had motion for with respect charge wearing carrying dangerous weapon. to a *9 708
affirmed, we are asked to sentencing particular, issue. one following questions: consider the three (1) should have admitted into the Circuit Court Whether 5-616, evidence, Rules 5-613 and extrinsic Maryland under oral of allegedly of a inconsistent evidence and, so, if report form of a whether police Laura B. to do so was harmless error. failure (2) have struck the state- the Circuit Court should Whether examination of Laura Harden that her forensic ment of Nurse had verify” B. what Laura B. told her about would “would and, so, if failure to do Mr. Brooks whether the encounter with harmless error. so was
(3) merged Court should have the Circuit Whether degree rape into the first imprisonment conviction for false sentencing purposes. conviction for
Evidentiary Issues of Review A. Standard evidentiary of an appellate
The standard of
review
on a
judge’s ruling
turns on whether the trial
based
ruling
fact,
law,
or
an
finding
of
on a
of
on
evaluation
pure question
Questions
of relevant evidence.
of law are
admissibility
judge any special
the trial
defer
according
reviewed without
ence;
“clearly
fact are assessed under a
erroneous”
findings of
standard;
of relevant
admissibility
and an assessment of the
an
standard.
is reviewed under
abuse
discretion
evidence
Matthews,
See,
Maryland-National Capital
Inc. v.
e.g., J.L.
Comm’n,
71, 92,
A.2d
Planning
Park
368 Md.
792
288
(2002);
Inc. v.
Corp. Maryland,
Gasper,
Hotel
Ruffin
(2011).
594, 620,
ruling
For
on
example,
Md.
B. the Police was Admissible Whether Counsel, by Report, Foundation Laid Defense Offer of Ruling Court trial, examination,
At Laura B. testified on direct that she taking night alleged rape, was on the and that she nap first knew that Mr. Brooks was her house when she heard a awoke, bedroom, noise, an intruder was in realized her cross-examination, Brooks. On defense coun- recognized Mr. through police report by sel Laura B. sought impeach Deputy Faby. Among things, report other that summarized night police his conversation Laura B. that after the brief with report arrived at her home. The of that that portion testimony her trial stated: allegedly inconsistent with scene, Upon Faby ... arrival on the Dfc. made contact with asked what had complainant hap- B.]. When [Laura pened, following. advised She advised that [Laura B.] to her she had Wardell Brooks over house at 1930 hrs. She time, this “I during advised that Mr. Brooks said want some that she told him no pussy.” kept She advised but he following her around the house. She advised that she went nap. by into her bedroom to take a She was awoken stumbling through sound of him the bedroom door. She wearing pants saw that he was not a shirt and had his down around his ankles.... time, delay, presentation
undue waste of or needless of cumulative evidence.” testimony Laura was consistent with B.’s report While the Brooks,5 that it argued Mr. the defense raped that she was that Laura B. had invited Mr. interpreted could be to mean which would inconsistent evening, Brooks to her house be unexpected that he was an intruder. with her concerning Laura B. Defense counsel cross-examined as follows: Deputy Faby night conversation with you remembering speaking Do COUNSEL]: [DEFENSE sheriff, evening Deputy Faby, deputy to a a uniformed house? police] your when came [the I I who it spoke to someone. have no idea B.]: [LAURA was. just You don’t remember his COUNSEL]:
[DEFENSE name, right? Right.
[LAURA B.]: *11 this you telling Do remember [DEFENSE COUNSEL]: ... Brooks over house you your that had Warded deputy evening? 7:30 that about Objection, your ATTORNEY]: STATE’S
[ASSISTANT Honor. I not. did
[LAURA BJ: Objection. ATTORNEY]: STATE’S [ASSISTANT THE COURT: Overruled. you ... an officer ask
[DEFENSE COUNSEL]: [D]id that Brooks had question, you respond and did Warded over to house at 7:30 that your evening? come they I said that asked what Warded [LAURA B.]: Brooks— in, him, I I up he came and I said that noticed woke at time report struggle paragraph of the recounted Laura B.'s 5. The second her, advances, Brooks, with Mr. his assault of her submission to his escape in to her at trial. The third and terms similar paragraph report apprehension final of the concerned the of Mr. Brooks, hospital, transport of Laura B. to the and other details of investigation night. that I time. It 6:30 or dusk. didn’t know the approximately 7:30. Ma’am, please ques- listen to COUNSEL]:
[DEFENSE tion. I to. trying am B.]:
[LAURA Did my question. Just listen to COUNSEL]: [DEFENSE uni- or some other you Faby or did not tell Officer you they arrived evening your at house when formed officer 7:30 your Brooks over house about you had Wardell evening? No. [LAURA B.]: you you Did or did not? COUNSEL]:
[DEFENSE No. [LAURA B.]: concern- respective positions to the court their argued
Counsel state- admissibility prior allegedly inconsistent ing the relied on Deputy Faby. Laura B. to Defense counsel ment of 5-613, Attorney Maryland Rules while the Assistant State’s and 5- requirements Maryland that the Rules 5-802 argued rule, 802.1, hearsay to the also had to concerning exceptions report counsel did not offer the be satisfied. Defense testimony. Laura B.’s during evidence Deputy Faby During called as its next witness. State cross-examination, Deputy Faby confirmed that he had writ- counsel police report concerning ten a incident. Defense marked produced copy Deputy Faby’s report, which was for identification as Defendant’s Exhibit 1. Defense counsel questioned Faby concerning then as fol- Deputy report *12 lows: your And as a result of conver-
[DEFENSE COUNSEL]: B.], that you you generated sation with indicated [Laura notes, say you subsequently and is it fair to that some 1? reduced that to the document marked as Defense Exhibit That’s correct. FABY]: [DEPUTY at the your signature And that is
[DEFENSE COUNSEL]: bottom, correct? Yes.
[DEPUTY FABY]: And is that a fair and accurate COUNSEL]: [DEFENSE you your information that took from representation report? notes and put Yes. [DEPUTY FABY]: then moved that the be admitted into report
Defense counsel objected. A bench conference was held evidence. The State admissibility Although report. discuss the recognized trying that defense counsel was prosecutor B., impeach argument Laura his centered around Rule 5-802.1 and defense counsel also focused on that rule: STATE’S There is no rule
[ASSISTANT ATTORNEY]: for a into provides police report per se be admitted And, evidence.... I have to refer to the rules. again, back 5-802.1 doesn’t allow for that because the three areas sub be, one, allow that would would number a written not; her, it signed by statement and was number two is that recorded, electronically essentially verbatim statement of hers, not; and the third one is it’s other and it’s some by maybe sign her that she didn’t that wasn’t fashion, recorded in some other but that she somehow ... adopts any otherwise it doesn’t come under [T]his those. 5-802, long Under as an
[DEFENSE COUNSEL]: adversary party introducing is the statement of the officer evidence, then it an exception hearsay into is to the rule. ultimately agreed The Circuit Court with the State’s approach to the issue:
I think is interpretation still the rule [the State’s] witness, It adopted by correct one. hasn’t been in this as a statement. This is previous witness just recordation of what he believes he was told officer’s it doesn’t come in. "witness.So But it doesn’t come in under this It doesn’t come provision. you testifying. in also because have the officer here It doesn’t come in. *13 Faby ask Deputy counsel did not ruling, defense
After made to him allegedly statement his notes or about the about over to her house.” had [Mr. Brooks] Laura B. that “she by and the testify, other officers to police The called two State day. for the adjourned proceeding court the counsel asked the trial court next defense morning, admissibility Deputy Faby’s on the of ruling its reconsider time, 5-613 and counsel invoked Rules report. This defense 5-616, of Rule 5-802.1 were requirements that the argued for the being was not offered report not because applicable asserted, for being was offered truth of the matter but impeachment: purpose Honor ruled on Yesterday Your COUNSEL]
[DEFENSE 1, which my to admit Defendant’s Exhibit Number request Faby. from Dfc We [Laura B.] was a statement taken bench, I it argument and made an reapproached should come in as a inconsistent statement under 5-801, sections, 5-613, 5-616, appropriate Rules and the subsections, argued yesterday. that we at the bench that, saying I and without implicit anything, believe the Court should have considered that statement should truth, hearsay, come as non not offered for the because it of the lack of being purposes credibility offered witness, B.]. who was [Laura Again, prosecutor Maryland focused on Rule 5-802.1 concerning exceptions hearsay rule: Well, Honor, STATE’S Your [ASSISTANT ATTORNEY]: I go requirements think we still back to the of Rule 5-802.1 (a) purported under subsection that unless it’s a verbatim, signed, of witness which is otherwise recorded usually through adopted by electronic means or otherwise witness, subject being that it’s not admitted because it rule, of that and that not requirements doesn’t meet the has changed. again argued requirements
Defense counsel once that the hearsay applicable: rules not were 5-802.1(a) Honor, Your has [DEFENSE COUNSEL]: admissibility of the nothing admissibility, to do with its *14 being hearsay as a statement admitted as non that purposes showing of an inconsistent statement would credibility relate to the of witness. gave permission have a witness who testified she no
We that day, have Mr. Brooks come into her house and she statement, Deputy Faby’s report, at least it’s in makes day, totally that she had Mr. Brooks over that which is necessary inconsistent. It’s not to even address completely and, therefore, that I think Assis- purpose, [the 5-802.1 for tant is not on that Attorney]’s argument appropriate State’s issue. that the was not
Ultimately, report the Circuit Court ruled Laura B. signed adopted admissible because neither nor report. appeared The Circuit Court also conclude applicable report being Rule 5-802.1 was because the truth in it: offered for the of the matter asserted My prior ruling will stand. addition those reasons earlier, case, you that I indicated but also in this because get having still have to over the hurdle of the witness it, adopted signed you it or are not over that hurdle offered, really this case. And it does and it is go, being asserted, really, to to the heart of what’s the truth go being here: Mr. into get matter asserted how did Brooks previous ruling the victim’s home? So the stands and the report is not admissible.
Analysis
Identifying Applicable Rules Evidence Maryland provides generally “[ejxcept Rule 5-802 provided by permitted by applicable otherwise these rules or statutes, hearsay constitutional or is not admissi- provisions added.) For our is (emphasis purposes, key phrase ble.” hearsay that allows the introduction of introductory clause pursuant prosecutor, to other rules of evidence. The and to court, 5-802.1, on Rule which some extent the trial focused hearsay some statements to be admitted for substan permits correct in their purposes. tive Both were assessment was not admissible under that Deputy Faby’s police report rule.6 only
But Rule 5-802.1 is not rule that allows for introduction of a inconsistent statement into prior evidence. argued, As Mr. Brooks’ counsel Rules 5-616 and 5-613 inde- pendently allow for the introduction of evidence of inconsistent statements for the purpose impeachment. Be- us, fore agree both the State and Mr. Brooks that the decision whether to admit Deputy Faby’s report proper turned on the application of those rules.
Application Rules 5-613 and 5-616 *15 permits Rule 5-616 prior extrinsic evidence of a inconsistent statement to be used for the of purpose impeachment, 613(b).7 case, accordance with Rule prior alleg- this the 5— opinion Special Appeals In its in this concisely the Court of 6. correctly analyzed admissibility the issue of under that rule: Maryland provides ... Rule 5-802.1 for the admission of: "A state- testimony, ment that is inconsistent with the declarant’s if the state- (1) ...; (2) given writing ment was under oath reduced to and was declarant; (3) signed by the substantially or recorded in verbatim by stenographic contemporaneously fashion or electronic means with 5-802.1(a). making of the statement.” Rule Here, Deputy Faby’s report given by . .. was not a statement Laura oath, B., adopted signed by B. under was not or Laura and was not contemporaneously making recorded with the of the statement. The therefore, report, was not admissible substantive evidence under rule 5-802.1. provides, pertinent 7. part: Rule 5-616 Impeachment Rule Generally. 5-616. and rehabilitation — (a) Impeachment by inquiry credibility of the witness. of a witness, may through questions
witness be attacked asked of the including questions that are directed at: (1) Proving under Rule 5-613 that the witness has made statements present testimony; that are inconsistent with the witness’s ... (b) prior evidence. Extrinsic evidence of impeaching Extrinsic may provided inconsistent statements be admitted as in Rule 5- 613(b).... Laura B. by statement is an oral inconsistent statement edly Deputy Faby. police report in the that was summarized evidence avail- two forms of extrinsic potentially There were to that oral statement respect with to defense counsel able testimony on Laura B.’s impeach introduced might be (1) Faby about what testimony by Deputy examination: direct (2) interview, Deputy Faby’s during B. him Laura told Defense counsel summarizing that interview. report written the latter form of extrinsic only to introduce attempt chose to evidence. Dep is whether introduction question
The threshold satisfy requirements would report written uty Faby’s follows: That rule reads as Rule 5-613. witnesses. Prior statements of
Rule 5-613. A (a) concerning prior statement. Examining witness or oral written examining a witness about party it to the witness need not show made statement time, that at at that provided or its contents witness disclose (1) written, statement, if is the end of the examination or if the statement parties, witness and the disclosed circumstances oral, of the statement and the is the contents made, to whom it including persons was under which it (2) witness is made, to the witness and are disclosed deny or it. explain given opportunity (b) prior inconsistent Extrinsic evidence of otherwise re- justice the interests of of witness. Unless *16 of a inconsistent statement prior extrinsic evidence quire, (1) until the this Rule not admissible under a witness is (a) the witness have been met and requirements of section (2) and having made the statement has failed to admit a non-collateral matter. concerns unless the statement conditions that must to determine the basic Parsing this rule of a to offer extrinsic evidence party in order for be satisfied witness, we oral statement of allegedly inconsistent prior following the checklist: derive
1. The the statement and the circumstances content of made, it including person(s)
under which was the to made, be whom it was must disclosed to the witness being impeached who is the end that witness’s of before 5-613(a)(l), (b)(1). examination. Rule Here, defense counsel asked Laura B. about the allegedly during inconsistent his oral statement cross-examination of (her her, both disclosing the circumstances the statement Deputy interview Faby), person with to whom it was (Deputy Faby). requirement made This rule was satisfied.
2. The witness to be must be impeached given opportu- an
nity explain or deny allegedly inconsistent state- 5-613(a)(2), (b)(1). ment. Rule B., During the cross-examination of Laura was given she explain opportunity deny or statement. She denied that she Deputy Faby told that she “had” Mr. Brooks over to p.m. evening. house at 7:30 requirement This rule was satisfied.
3. The witness must have having admit made “failed 5-613(b)(1). the statement.” Rule cross-examination, During B. Laura denied made having allegedly portion inconsistent of the statement. This require- ment of the rule was satisfied. The statement must “a concern non-collateral mat-
b. words, ter” —in other the content the statement must not be “collateral” to the issues at trial. Rule 5- 613(b)(2).
The defense contended that the sexual encounter between Mr. Brooks Laura B. rape. was consensual and not a alleged inconsistency prior oral statement summarized in Deputy Faby’s report concerned whether Brooks Mr. in Laura B.’s house that at her evening invitation and not as intruder, alleged as she had Although testified.
718 with directly allegation was not inconsistent
oral statement not to at trial. This rape, of it was collateral the issues satisfied. requirement of rule was 613(b) Thus, under Rule requirements the foundational 5— the prior allegedly of evidence of introduction extrinsic Laura But there statement of B. were met. inconsistent form of that extrinsic question appropriate remains the of the evidence. Maryland
Form Extrinsic Evidence under Common of Law Faby’s testimony as Deputy
Had defense counsel offered
B.’s prior allegedly
of Laura
inconsistent
extrinsic evidence
statement,
testi
analysis
Deputy Faby’s
be brief.
our
would
5-613(b). See,
Rule
mony would have been admissible under
(1997)
State,
v.
225,
444
e.g.,
Hardison
118
702 A.2d
Md.App.
(officer’s
eyewitness’s statement
to
regarding
prior
him was
of the witness’s
admissible
extrinsic evidence
statement).
eliciting
Instead of
the statement as
inconsistent
however,
Faby’s testimony,
of
the defense elected
part Deputy
offer
as extrinsic evidence of Laura B.’s
police report
to
oral
prior allegedly inconsistent
statement.8
Evidence,
Rules of
adoption
Maryland
Prior to the
of the
it
be impeached
well
that a witness could
was
established
inconsistent oral
a prior allegedly
written
extrinsic
evidence of
transcription
if
a verbatim
statement
the written evidence was
or
adopted
oral
if the witness had
witness’s
statement
approved
principle
or
the written version. This
was discussed
involving discovery
police
in two 1990 cases
of
interview notes
of
reports
purpose
impeachment
prosecution
or
for the
of
tactics,
perfectly
trial
this
is
8. As matter of
choice
understandable.
and,
already
although
The written version
the statement was
known
events,
at
completely support
did
the defense version of
least
it
not
prove
compatible
part
Attempting
oral
with
the defense.
Faby
subject
through
Deputy
cross-examination of
would be
testimony, including
potential qualifica-
vagaries
usual
live
Faby
way
Deputy
interpretation by
tion or
of the written version in
incompatible
might
completely
the defense
turn out
be
with
theory.
State,
269, 289,
1,
witnesses. See
v.
Collins
318 Md.
A.2d
denied,
3296,
cert.
497 U.S.
110 S.Ct.
In
the
who was convicted of murder in a
trial,
that
jury
argued
the trial court had
in ruling
erred
that
the defense was not
to
entitled
obtain written notes of a
by a
by
statement made
State witness
recorded
and
detec-
tive, prior to the cross-examination of the
This
witness.
Court
ruling
affirmed the trial court’s
that the witness’s statement
police report”
discoverable,
in the
not
“paraphrased
was
stat-
ing,
signed,
approved
witness] neither
adopted
“[The
[n]or
of
in
the facts contained
the
The
summary.
detective drafted
report subsequent
the
to the actual
If
interview....
the
statements,
expressly
has not
it
approved
witness
would
unfair for
be
the evidence to be
for impeachment pur-
used
289,
poses.”
Bruce,
318
at
In
Md.
The Court of
law
that a
application
principle
the common
supports the
adopted
must
or
summary of a witness’s statement
be
written
although not necessari-
point,
the witness —at some
ratified
into
order for the written version
be admitted
at trial —in
ly
impeaching
witness.
for the
purpose
evidence
Hardison,
trial
was on
for assault with intent
a defendant
was that
the defendant had
theory
murder. The State’s
theory
victim
the defense
deliberately shot the
while
accidentally
fired
while
victim and
the shot had been
gun.
over the
An
struggling
gain
control
defendant were
*19
trial
the
to the altercation testified at
defen-
eyewitness
gun
a
and shot the victim. Defense
pulled
had
out
dant
him
impeach
by asking
the witness
attempted
counsel
to
accidentally
a
officer that the shot
police
whether he had told
the
during
struggle
off
a
between the defendant and
went
victim;
making
denied
the statement.
State
the witness
the
who had conducted
interview with
called the
officer
police
eyewitness
incorporated
and had
the witness’s
the
cross-examination,
to
his
in an effort
report.
into
On
police
witness,
counsel
the officer wheth-
the
defense
asked
impeach
him that the
and the victim
the witness had told
defendant
er
Md.App.
fired.” 118
“wrestling when the two shots were
were
233,
objected to
and
question,
A.2d 444. The
the
at
702
State
objection on the basis that the
the trial court sustained the
hearsay.
to
would
question
answer
the
be
officer’s
the
admissibility
the
of
appeal
At issue on
Hardison was
told him.
testimony
what the witness had
regarding
officer’s
held that
fact that
Special Appeals
“[t]he
[the
The Court of
read,
written
not
or
approve,
adopt [the officer’s]
did
witness]
impeached
him
with his own
being
did not insulate
from
report
that,
5-613(b),
statement,”
the
under Rule
oral
and concluded
told him
the
during
the witness
officer’s
as what
inconsistent statement
interview was admissible
721
241,
the
of
the
118
purpose
impeaching
Md.App.
witness.
at
444.
A.2d
court
While the
did not rule on
admissibility
the
report
type
officer’s written
of
issue
extrinsic evidence at
—the
analyzed
in this
admissibility
case—the court
of such a
report:
person other than
witness
“When
reduces
words
spoken
writing,
witness’s
and the witness ratifies the
it,
writing by signing, adopting,
writing
or
will
approving
be
as it if
him-
prepared by
treated
had been
the witness
Thus,
if
self. ...
[the
had ratified
witness]
[the officer’s]
report, it could have been treated as if had
it
been written
him,
and used
impeach
[the witness]
under Rule 5-613.”
at
Notably,
instructive, jurisdictions that have from other as can cases rules.11 analogous adopted rule, have federal courts analogous the federal applying
In
impeached with written extrinsic
may
that a witness
be
held
if the
only
oral statement
prior
of a
inconsistent
evidence
oral
substantially
verbatim version
the
evidence is
written
the
adopted or ratified
previously
or if the witness
Almonte,
v.
United States
example,
version. For
written
(2d Cir.1992),
on trial
[CO-DEFENDANT] — I 50,000 ... Almonte for me grand. unit for works er. Yeah, right. that’s [DEFENDANT]— notes, including Id. argued 29. counsel that the at Defense “Yeah, right,” were a record the notation that’s verbatim agent, they and that could there- what the defendant told trial agent’s at impeach fore be used to from the co-defendant. questioned separately defendant Out- the introduction of notes. government opposed The presence jury, the Assistant United States side Rules, large body persuasive authority is the value of such a al impressive.” 1034. Id. at respect- Maryland in one 11. rule differs from the federal rule rule, impeached given an Maryland witness to be must be under the allegedly Horn- opportunity stein, address the inconsistent statement. See (“Unlike Rule, Maryland supra, the Federal under at 1055 is admis- evidence of the inconsistent statement not Rule extrinsic denied requirement has met and the witness has sible until this been statement”). requirement is at issue this case. That not *21 723 a verbatim Attorney testified that notes were not tran- the DEA summary agent’s but rather a shorthand of script, statements, right” and that wrote the that’s “yeah, he words for to that the way [him] as a “shorthand remember substance as [the of statement was the same co- defendant’s] [the Id. statement.” The trial court declined to admit defendant’s] impeach notes as a inconsistent to prior agent. DEA appeal, the Second Circuit the trial court’s On affirmed “
ruling, ‘third holding party’s characterization’ of a not witness’s statement” does constitute a statement of prior that witness unless the witness has that charac- subscribed or it transcript terization is verbatim witness’s own Id. at 29. court explained words. the rationale for the essence, problem, relevancy. rule: “The is If one of a third only that party’s summary notes reflect charac- note-taker’s prior statement, of a terization witness’s then the notes are prior statement, as an impeaching irrelevant inconsistent thus inadmissible.” Id.
The Eleventh
Circuit reached a similar conclusion United
(11th
denied,
v. Saget,
Cir.),
States
On the Eleventh Circuit whether a wit- considered impeached pursuant ness could be attorney Rule 613 reading from an FBI report. affirming F.2d at 710. trial court’s on application Rule it relied the same as our rationale common law decisions Bruce evidentiary Act, and Collins: “Under the Jencks non-verbatim summaries are manda- oral statements excluded from a witness’s *22 it unfair to allow the grossly would be tory production because could impeach to use to a witness which defense statements the be to be witness’s own rather than fairly not said the selections, interpretations the product investigator’s of reasons, the that a For same we conclude interpolations.... a may impeached party’s not with third character- witness be oral the prior or a statement unless interpretation ization to the adopted has or otherwise statement witness subscribed at own.” 991 F.2d 710. his a on courts have that Relying Saget, Almonte held summarizing oral report prior written a witness’s inconsistent impeach into to the statement cannot be admitted evidence substantially if is not or has not witness the verbatim report See, adopted by of or the witness as accurate. approved been Suarez, 1202, De La F.3d 1216 e.g., States v. Cruz 601 United Cir.2010) (11th to (affirming the trial court’s decision not FBI on summary admit an a witness’s interview the basis a may impeached by that a witness not be non-verbatim a unless it can be said prior fairly version of oral statement statement); own v. that the version is witness’s State (“[I]f 340, (Minn.2009) Graham, 764 witness N.W.2d 352 own, him as adopted has not the statement attributed to his may reading not evidence in the form of counsel offer extrinsic from third-party summary impeach a the wit- verbatim Barile, (4th 749, ness”); v. 286 United States F.3d 757-58 cf. Cir.2002) a containing that FDA documents witness’s (holding a prior may impeach inconsistent statement be admitted but after the court witness only witness determines can be adopted they “has the statements or whether otherwise Strother, her”); 869, v. 49 F.3d 875 attributed United States (2d Cir.1995) a (holding containing a memorandum wit- was admissible to prior impeach ness’s inconsistent statement did draft memo- though the witness even the witness not it “signed herself witness and confirmed randum because “a noting that she had memorandum” and discussed can party’s third characterization of witness’s statement where witness constitute witness ”).12 has ‘subscribed to that characterization.’ At least one state court has a rule to adopted that effect. See Ohio 16(B)(6) (requiring Criminal Rule that prosecution provide with reports by defendant law enforcement officers with the proviso that “a document prepared by person other than the testifying witness will not considered to be be the witness’s prior statement for purposes of cross-examination of that . .. particular explicitly witness unless adopted by the wit ness”). contrary
We have found two decisions courts other states construing rules similar to Rule 5-613. In State v. Reid, (Tenn.2005), 164 S.W.3d the Supreme Court of Tennessee considered whether a trial court properly had *23 excluded the police written summaries of a officer as extrinsic evidence for impeachment of two witnesses under Tennessee 613, which, 5-613, Rule of Evidence like Rule is based on the like-numbered Federal Rule of case, Evidence. In that of, defendant was convicted among other things, the murder and aggravated robbery of two ice cream store employees. At trial, one witness testified that she saw a car similar to the store, defendant’s car near the and another witness testified that he saw a car similar to the defendant’s car park near the where the bodies of the employees were found. Defense counsel sought impeach to the witnesses’ testimony by calling Similarly, many prohibited 12. courts have impeaching counsel from by reading report witness summarizing from a paraphrasing or See, prior e.g., witness’s inconsistent statement. United States v. Adames, 737, (7th Cir.1995) (trial 56 F.3d 744-45 properly court refused to impeach allow counsel to by reading a witness from an agent’s report summarizing prior the witness’s inconsistent statement statement, because the adopt witness “testified he did not did not write say and could not everything that what was in it was he had told Linder, agents”); 31123855, State v. 2002 WL (Oh.Ct.App. at *2 2002) ("A summary of a witness’s oral conversation becomes a wit only ness’s signed, statement if she has reviewed and or otherwise it, adopted nearly or if it is a opposed verbatim account being to merely selections....”); Hood, investigator’s People own v. 229 202, 916, Ill.App.3d (1992) (“A 170 Ill.Dec. 593 N.E.2d 812 impeached witness cannot be a statement is not in her own verbatim”). substantially words or into sought to introduce interviewed them
the officer who interviews with summarizing his reports the police evidence motion counsel’s trial court denied defense The the witnesses. reports. to admit the that the trial held Supreme Court the Tennessee appeal,
On that “the It held excluding the summaries. court erred is that the of extrinsic evidence for the use ‘only requirement’ deny.’ or opportunity explain an must be ‘afforded witness content or recorded may be the written evidence extrinsic of another or the itself prior of the or oral state prior written as to the content witness The court noted that Tennes at 313-14.13 ment.” 164 S.W.3d impeaching party limit the expressly “does not see Rule 613 evidence, impeach it require nor does one form of extrinsic forms of extrinsic two available to choose between ing party Id. at 314. evidence.” (La.Ct.App. v. 738 So.2d
Similarly, Arrington, State court in Louisiana held 1999), appellate the intermediate with the an officer’s interview summarizing a police report of a admissible as extrinsic evidence daughter victim’s her trial daughter inconsistent with oral statement of aggra- was on trial for In that the defendant testimony. daughter His testified battery vated of his wife. knife, which he used to stab his armed with a defendant was testified, sought counsel defense daughter wife. After the *24 the stating daughter jury police report have the review the defendant was armed with screwdri- had indicated that requirement that because the foundation ver. The court held met, report should have admitted the had the trial court been into Id. at 1093. evidence. commentary provided by the quoted and relied on
13. The court in Reid the Advisory the rules that the rule stated Commission on Tennessee impeachment "only requirement” for the use of extrinsic evidence at 313- prior statement. 164 S.W.3d of a witness with a inconsistent accompanied by similar the federal rule nor our rule 14. Neither commentary. Summary suggested the rationale our persuasive
We find in Bruce and as well as the Eleventh decisions Collins prior unfair to Saget impeach decision it would be Circuit’s —that fairly with a statement “which could not be said witness product investiga be the witness’s own rather than the selections, interpretations, interpolations.” tor’s and We hold written may impeached that a witness not be with extrinsic statement, of a oral un prior allegedly evidence inconsistent substantially the evidence is a verbatim version of less written previously acknowledged by the oral statement or was the Although witness as an accurate version. this the court, and to some extent the trial were focused on prosecutor, (Rule 5-802.1), rule would have satis wrong the defense 613(b),if requirements fied the for admission under Rule it 5— the more stringent requirements had satisfied of Rule 5-802.1. event, any defense counsel did not establish that in Deputy Faby’s report substantially statement was a verba tim of Laura B.’s nor had deputy, version statement previously acknowledged Laura B. it as an accurate version. report It would have been unfair to admit the written into and Laura B. with could be impeach Deputy evidence what “selections, Faby’s interpretations, interpolations” own and B. had told him of that night. what Laura about the events properly police report.14 The trial court excluded the the Trial Have C. Whether Court Should Struck SAFE Nurse’s Statement the trial
We next consider whether court should have struck findings the SAFE nurse that the from her examination of Laura B. what Laura physical verify” “would B. her told about encounter with Mr. Brooks. brief, argues illogical require
14. In his Mr. Brooks it is adopt party deny witness to both statement authored a third requirements the statement —one of the of Rule 5-613. Mr. Brooks’ argument appears adopt to assume that the witness must 5-613, required, purposes at trial. That is not however. For of Rule approved adopted Laura B. could have the statement or the written any during summary at time to the trial after the or interview. *25 Testimony Nurse Harden’s in expert as an sexual assault qualified
After she was examinations, her ex- Nurse Harden testified about forensic interview hospital, including amination of Laura B. at the her on Laura physical injuries Laura B. and the she observed explained part B. Harden that the interview was Nurse looking things “I’m for a number both examination because in I am forensically, and and it focuses me on what medically for, *26 you that observed? Objection.
[DEFENSE COUNSEL]: THE COURT: Overruled. I during What found examination my
[NURSE HARDEN]: verify story would that she told me. Objection.
[DEFENSE Ask it be stricken. COUNSEL]: THE COURT: Overruled. cross-examination,
On defense counsel asked Nurse Harden injuries, analysis including about Laura B.’s whether they could have by aggressive been caused consensual sex. case, no, Nurse Harden “In this replied, it cannot.” Nurse explained Harden that “no woman in [involved the studies she part training] had read as of her has injury ever had to more during than one area sex.” -anticipated Upon further sex-— questioning by re-cross-examination, defense counsel on Nurse Harden conceded that one only study showed that none of the women examined after injuries consensual sex had in more than one area of their genitalia. agreed Nurse Harden had personal knowledge injuries she no the cause of the genitalia. Laura B.’s
Vouching Credibility versus Assessing Consistency with Other Evidence
This previously Court has drawn a distinction between circumstances in which a witness expresses opinion an simply witness, vouches credibility for the of another in situations which a witness assesses whether a statement of
another witness is consistent with other facts known to the
An
testifying
example
witness.
of the former
is found
State,
266,
(1988);
Bohnert v.
312 Md.
Bohnert
Bohnert,
testimony is inad-
expert
held that
this Court
it
assesses the
directly
matter of law when
as a
missible
In that
a child under
another witness.
credibility of
boyfriend of sexual abuse.
14 accused her mother’s
age of
at trial
the central
issue
credibility of the victim was
have had
may
the child
there was evidence
because
child recant-
accusing
boyfriend,
motives for
improper
during
confirmed them
her testi-
and then
allegations
ed her
physical
support
was no
evidence
mony, and there
worker,
quali-
called a social
who was
The State
allegations.
312 Md.
in the field of child sexual abuse.”
“expert
fied as an
worker
The State asked the social
at
revealed that her
mother,
that the
victim,
people”;
and “other
and
the victim’s
testimony in both its
that social worker’s
emphasized
State
271-74,
A.2d
731 sexually was tantamount to a declaration was abused telling that the child was the truth and that [the defendant] 278-79, lying,” was inadmissible. Id. at State, 480, 504, A.2d 657. See also Hutton v. 339 Md. (1995) (in concerning alleged A.2d 1289 a trial child sexual abuse, testimony by expert psychologist alleged that the post-traumatic victim suffered stress disorder as a result inadmissible, although testimony might sexual abuse was such admitted to show lack of be consent when the sexual contact issue). itself was not at
Conyers with,
In Conyers,
charged
among
the defendant was
other
things,
premeditated
murder of his estranged girlfriend’s
A
Conyers
mother.
former cellmate of
named
testi-
Johnson
Conyers
fied that
told him that he had
gone
the victim’s
purpose
committing
house for the
burglary
had ended
up shooting the victim. Defense counsel
attempted
under-
mine Johnson’s credibility by showing
plan
that Johnson had a
prison
to reduce his
time on pending charges by testifying
against other inmates.
On
Bohnert.
testimony
tal
should have been excluded under
The
that the issue
not
Appeals
preserved
Court
held
was
In an
holding,
alternative
the Court stated that
review.
“was
distinguishable
Bohnert was
because the detective
not
opinion
credibility
an
to ...
Johnson’s
as
offering
as
wit-
Instead,
Md.
Conyers does not stand for that witness proposition testify that told truth. The may another witness Court holding, concluding disclaimed such a that the explicitly detec- credibility not offering opinion tive was Johnson’s as a Rather, generally. testifying witness detective was information to him provided certain Johnson was confirmed information to the not by other known detective —and avail- Conyers’ charging papers. testimony, from Such able held, jury’s did not invade the function of determining Court credibility of witnesses. Question Prosecutor’s
In the the prosecutor instant asked Nurse Har open-ended the account Laura question den —whether during the examination was “consistent given B. had nurse injuries with” the she on Laura B. or inconsistent observed
733
Bohnert,
question posed
Unlike the
to the social worker
this
question did not ask Nurse Harden to reflect generally on
Rather,
Laura B.’s
credibility.
question asked the nurse
to
Laura
to
compare
directly
B.’s statement
other evidence
observed by
injuries.
the nurse —Laura B.’s
Given that a
person’s physical
might
condition
be “consistent with” several
versions of the
past,
question
require
did not
Nurse
Harden
necessarily
any particular
endorse
version of the
injuries
truth. An answer that the
she observed were “consis
tent with” Laura
B.’s statements
her would mean Laura
B.’s version was not
possible
excluded from the set of
explana
(Indeed,
tions of her physical condition.16
the defense cross-
examination of Nurse Harden
attempted
show that
injuries could be “consistent with” Mr. Brooks’ version of
events).
In that
the nurse’s testimony would serve as
corroboration of other evidence heard by the jury
primarily
—
Laura
testimony
B.’s
thus was effectively qualified or
—-and
jury’s
conditioned on the
acceptance of that evidence. See
State,
684,
Hall v.
Md.App.
693-95,
107
962,
670 A.2d
cert.
denied,
473,
(1996)
342 Md.
In our question State’s was permissible and the trial court properly overruled the objection defense to that question. hand, injuries On the other an answer that the were “not consistent”
16. with Laura B.'s suggested statement to her would have that Laura B.'s version was not correct. 17. Mr. Brooks cites a number of cases from other states in which courts testimony by have held inadmissible psychologists or social workers that a child’s behavior or having statements are "consistent with” been See, Moran, sexually 378, e.g., 248, abused. State v. 151 Ariz. 728 P.2d (1986); State, 290, (Alaska 254-56 Nelson v. 782 P.2d App.1989); 299 Chamberlain, 414, (1993). State v. 137 N.H. 628 A.2d context, testimony found inadmissible in those cases was more analogous general to the question posed elicited Bohnert, question unlike in this case where the asked about the consis- tency of Laura B.’s statement to the nurse with the nurse’s observation physical injuries. of her *30 Answer
The Nurse’s the prosecutor’s answered simply Nurse Harden Had B.’s is, whether Laura asked —that way in the it was question or inconsistent with” were “consistent to her statements have answer would Harden’s injuries she observed —Nurse Instead, she stated But she did not. admissible. clearly been what verify” “would injuries she observed physical that the isolation, the word in had told her. Considered Laura B. to the Latin word origin its traces “verify”—which had assessed the nurse suggest well might “truth”18— of true version to her to be the one statement Laura B.’s events. hand, answer as the Nurse Harden’s other to hear
On the did, it in the context one must consider trial court jury and n word. The verb single not focus on a it and they heard in answer but alone Nurse Harden’s appear did not “verify” “would,” which introduced auxiliary verb by the qualified was context, In testimony.19 conditionality to her of degree prosecutor’s readily apparent. condition is nature of that (1) is, answer —that either an either —or required question the examina during to the nurse gave Laura B. account that (2) it “incon injuries or Laura B.’s tion “consistent” with clear, context, option that the nurse chose in It was sistent.” synonymous of a verb (1), it terms expressed she although respond- witness an instance where the This was not phrase. ("veritas”). (rev. 2005) Dictionary at 202 ed. Latin Desk 18. Oxford verb, "contingency” or auxiliary expresses "would” as an 19. Used Dictionary Una- Third New International "possibility.” See Webster's (2002). 5(a) that use “would” bridged Verb constructions at the "conditional auxiliary sometimes referred to as verb are also an In <http://www.oxforddictionaries.com/words/moods>. mood.” See qualifies “would” testimony, the use of the word Harden’s Nurse context, the condition "verify” with an unstated condition. verb accept of jury’s willingness to Laura B.’s version appear to be the would i.e., verify” Laura B.’s physical examination "would the nurse’s events' — be a ultimately that statement assuming jury found least, very use of this the nurse's of events. At credible version prov- invading jury’s expressed about phrase a reticence qualifying deciding of the facts. ince question ed to a with an irrelevant answer or embellished an beyond response question. answer a reasonable to the Bohnert, Unlike the social worker’s testimony Nurse Harden’s was based on a of her comparison obser complaining vations of the witness’s condition physical with the statements of that simply witness and not an assessment general credibility the witness’ based on an interview. The significant most part testimony indeed, the nurse’s virtual — ly all of her testimony professional aside from her qualifica description tions—was her and documentation of Laura B.’s injuries. One need not expert be investigation sexual assaults to know that extensive bruising lacerations throughout woman’s face body, including profound *31 “blunt force trauma” to genitalia, her would be consistent with a violent sexual assault.20 The nurse’s affirmation that Laura B.’s statements matched physical her condition hardly was surprising. trial, At that in point the no theory explain other ing injuries those presented had been jury.21 if
Even it was error for the trial court not to strike Nurse Harden’s of answer, use the word “verify” we have no difficulty finding that it was harmless error. This Court has described the standard of review for harmless error:
[Wjhen appellant, case, a criminal error, establishes court, unless a reviewing upon its own independent review record, of belief, is able to declare a beyond a reason- doubt, able that verdict, the error in no way influenced Indeed, 20. closing argument, in the State’s prosecutor spent a significant reminding amount jury injuries, of time of Laura B.’s described Nurse Harden photographs and documented in and other evidence, point to make the they obvious that corroborated Laura B.'s testimony. prosecutor The did not even mention the nurse’s statement injuries verily" that those "would Laura B.'s account. trial, point 21. At that in the explicitly proposed the defense had not engaged defense that Laura B. had in consensual sex with Mr. Brooks. (The statement, opening defense counsel’s stating while that Mr. Brooks innocent, circumspect so). was why was theory as to that would be The that Laura B. and engaged Mr. Brooks had in consensual sex was subsequently raised in defense counsel’s cross-examination of Nurse testimony Harden and in Mr. Brooks’ in the defense case. is ‘harmless’ and a reversal deemed cannot be such error that must thus be satisfied reviewing court Such mandated. com- that the evidence possibility no reasonable there is or excluded— erroneously admitted of—whether plained verdict. guilty to the rendition may have contributed (1976) 688, 659, (empha- State, 350 A.2d 276 Md. v. Dorsey added). sis of one worst, error consisted alleged at
In this in which answer lengthy in a examination —an answer brief and used a verb question appropriate to an responded witness verb. The appropriate for the quite synonym that not was focused, on both direct completely testimony was nurse’s cross-examination, physical of Laura B.’s on her assessment Laura B.’s assessment of kind of and not some injuries, of her direct In the context generally. credibility her, it was apparent put that was question and the injuries that the she affirming essentially Harden Nurse to incon- opposed consistent —as Laura B. were on observed It is incon- to the nurse. Laura B.’s statements sistent —with that, answering believe jury that the would ceivable testimony com- general providing Harden was Nurse question, Brooks, Laura B. with that of Mr. credibility paring as to his version yet not testified who, had point, at nurse endorsed that the argue did the State events. Nor evi- physical credibility generally. witness’s complaining Laura B.’s the circumstances dence, recording, the 911 corroborat- generally apprehension Mr. Brooks’ and of escape *32 version —that Mr. Brooks’ version of events. ed Laura B.’s window-washing exchange sex for to proposed Laura B. had in delay one-day to a the violence due had initiated and its face. these incredible on that task —was completing circumstances, possibility to no reasonable appears there be functioning nurse was think that the jury would that the B.’s Laura assessing that was polygraph human some kind of credibility. general Imprisonment Convictions Rape and False
Merger degree rape as to first guilty jury returned verdicts The assault, and degree second threat, degree rape, by second
737
merged
false
The Circuit Court
Mr. Brooks’
imprisonment.
degree rape
degree
convictions for second
and second
assault
degree rape
sentencing purposes.
into the first
conviction for
However,
not merge
imprisonment
the court did
the false
imposed
conviction and
consecutive sentence for that of-
fense. Mr. Brooks contends that the convictions should have
merged
sentencing purposes.
been
for
merger
purposes
of convictions for
of sentenc
ing
protection against
jeopardy
derives from the
double
af
by
forded
the Fifth Amendment of the federal Constitution
State,
385,
by Maryland
and
common law. Nicolas v.
426 Md.
(2012).
Merger protects
The Court of had occasion to consider imprisonment merges rape whether a false conviction into a State, 82, 92, Md.App. conviction Hawkins v. 366 A.2d (1976). In that the defendant the victim approached area, throat, a wooded seized her held a to her gun side, her to undress and on ground, raped ordered lie only her. The court noted that the victim was detained necessary complete rape. the time Because “[a]ll facts necessary prove the lesser offense were essential to one,” proving the the court greater held the defendant’s imprisonment merged conviction for false into rape convic- tion. Id. The court reasoned that hold “[t]o otherwise would in every rape, be to hold that case of a conviction for false imprisonment proper,” would also be but noted that “confine- or rape ment after before the is committed would preclude merger.” Id.
As the Circuit Court’s instructions the instant case also demonstrate,22 necessary the facts prove rape prove also *33 In particular, period rape. for the imprisonment
false must prosecution the prove imprisonment, in order to false elements, each of which is also three prove following the conviction: degree rape of a first element victim; (1) the confined or detained the defendant indicated, or detention Hawkins of confinement proof rape necessarily part victim is (2) against was confined or detained the victim will; intercourse without rape
victim’s involves sexual i.e., will against the victim’s the victim’s consent — (3) by force accomplished or detention was the confinement force; involves degree rape second
or threat forcible or threat the use offorce offorce of false Thus, jury imprisonment if convicted Mr. Brooks the convictions rape, coincident with the for confinement sentencing purposes. merge merger as to in this case is thus question
The critical
con-
imprisonment
and the false
rape
whether
conviction
charge,
jury:
imprisonment
the court instructed the
22. On the false
person
imprisonment
the confinement or detention of
False
is
will, accomplished by force or threat of force. In
against
person’s
imprisonment,
of false
the State must
order to convict the defendant
prove:
B.];
[Laura
confined or detained
1. That the defendant
will;
against
detained
2. That
was confined or
[Laura B.]
accomplished by
force or
the confinement or detention
3. That
threat of force.
threat,
charge
degree rape by
the court
instructed the
of first
On
jury:
defendant,
prove
the State must
all of the
to convict
In order
degree rape,
prove the
and must also
elements of forcible second
placed
fear that
[Laura B.]
threatened or
reasonable
defendant
death, suffocation,
imminently subject
stran-
B.] would be
[Laura
injury.
gulation, disfigurement,
physical
or serious
jury:
charge
degree rape,
court instructed the
of second
On the
by
or threat
Rape
vaginal
with a female
force
is unlawful
intercourse
to convict the defendant
and without her consent.
In order
of force
prove:
degree rape, the State must
of second
B.];
vaginal
with [Laura
the defendant had
intercourse
1. That
force,
force or threat of
2. That the act was committed
of [Laura B.].
committed without
the consent
3. That the act was
*34
the
act or acts.” Laura B.’s
viction are based on
“same
finding
in
could
that Mr. Brooks
testimony
support
this case
ie.,
by
her will
force or threat of
against
detained her
force —
the
when he beat and
falsely imprisoned
rape
her —before
living
in
and followed her to the
choked her
the bedroom
room,
to
house in
of the
confining
anticipation
rape,
he followed her around the
rape
well as after the
when
house
imprisonment
and refused to let her leave. While the false
on
reasonably
conviction could have
been based Mr. Brooks’
itself,
rape
readily apparent
actions
from the
it is not
separate
came to that conclusion.
In
jury actually
whether the
such
circumstances,
from
precedent
we are constrained
assum-
were not
on the
act or
ing that the two convictions
based
same
In
factual
for a
particular,
jury’s
acts.
when the
basis
verdict
ambiguities
is not
the court resolves factual
readily apparent,
if
merges
the defendant’s favor and
the convictions
those
Nicolas,
satisfy
required
convictions also
evidence test.
410-413,
396;
State,
and run in neighborhood. According Nicolas’ to the officers, they attempted question when Nicolas about incident, pushed punched he and the officers. At that point, place the officers indicated their intention to him under arrest, after which an additional altercation At occurred. trial, Nicolas initial attack. jury denied the found Nicolas guilty resisting of both assault and arrest. that, verdicts,
This Court held in returning guilty those jury could have that the initial believed altercation —before the officers announced their intention arrest Nicolas—either that, occurred or did not occur. The Court also found even if occur, jury believed that the initial altercation did it could separate have found that it did not constitute a assault from following assault the officers’ announcement of their intent examining arrest Nicolas. After the trial transcript, jury instructions, sheet, and the verdict the Court determined that ambiguous the record was as to the factual basis on which Nicolas, 426 charge. of the assault jury guilty found Nicolas that, resolving 396. The Court held Md. at A.3d ambiguity merge, convictions should as to whether question resolved in for a conviction should be as to the factual basis Accordingly, the Court assumed the defendant’s favor. arrest convic- resisting for the assault and the factual bases merged. the convictions Id. were the same and held that tions Snowden, convictions for Similarly, merged this Court robbery. In that battery into conviction assault intent of entered a restaurant with the the defendant manager appeared, it. the restaurant robbing When subsequently immediately manager shot the defendant *35 manager, kept money. to know where he the demanded back, a rifle at his led the pointing the defendant with located, money was and the to the office where the defendant $3,000. trial, In a left the restaurant with bench defendant of, robbery among things, convicted other the defendant was battery. and assault and battery that the assault and conviction argued
The State
there
robbery
into the
conviction because
merge
should not
robbery
shooting prior
crimes—the
to the
separate
were two
This
stated that the trial court’s
robbery
and the
itself.
Court
robbery
the defendant of both
and
convicting
rationale for
do not
battery
readily apparent:
and
was not
“We
assault
battery as a
robbery charge
the
was based on
know whether
as a
included
included offense or on assault
lesser
lesser
Md. at
battery
separate.”
with the
considered
offense
jury
The Court noted that “had it been
appeared identify period the entire of time that Mr. Brooks period was with Laura B. her house as the of false imprisonment. jury: He told the
The false count. imprisonment Requirements for that is *36 against that the defendant confined or detained the victim her will force or threat of using force. The fact that he instructions, jury 23. In addition to the verdict sheet can be examined Here, reviewing provided jury a court. the Circuit Court the with a general verdict sheet. In cases in which there could be an issue as to merger, provide jury special a trial could the with a court verdict sheet. example, special might For in this a verdict sheet have stated something following question only you like: "Answer the if and if find guilty degree rape imprisonment. the defendant of both first and false before, imprisonment during, Did the false occur or after the first 'before,' degree rape? ‘during,’ Again, or 'after.' Circle do not answer question you guilty degree this if find the defendant not of either first rape imprisonment.” or false her out of sight, her out of his he wouldn’t let wouldn’t let bedroom, everywhere that she wanted the he followed house, the in told her she couldn’t use go specifically to the these are all indications that he police, or call the phone in the meant to her where she was bedroom. She keep a phone wasn’t even free to make wasn’t free leave. She call. the entire jury this invited the consider argument
While Laura B. and Mr. Brooks of the encounter between period count, in to the false evening imprisonment relation jury not that the should consider the prosecutor suggest did considering in rape separately time before or after the false count. imprisonment that, deliberations, during jury we note its sent
Finally, asking imprisonment “Is false time question judge moment, If the victim was restrained for a brief dependent? trial court re- imprisonment?” is that considered false memory to its of the evidence by referring jury sponded the court. we are loath to light of the instructions of While factual determina- any concerning jury’s draw conclusions deliberations, during to the question posed judge tions from question jury it to infer from this is difficult period separate rape on a time from the specifically focused itself. jury’s factual basis of the conviction precise
Because readily apparent Mr. Brooks of false is not imprisonment factual must be resolved favor any ambiguities defendant, con- imprisonment must assume that the false we rape on the same facts as the conviction— viction was based is, during rape. of Laura B. As the detention test, above, evidence all the required indicated under the of false are included imprisonment elements of the offense Therefore, degree rape. of first the elements of the offense sentencing purposes. merge the two offenses must
Conclusion above, stated we hold: For the reasons *37 of a inconsistent oral prior 1. Written extrinsic evidence purpose of a is admissible at trial for the of witness if the of the impeachment proponent of the witness evidence if requirements Maryland satisfies the Rule 4-613 and substantially is a verbatim version of the writing either the prior previously adopted oral statement or the declarant has summary an accurate of the writing prior or ratified the oral statement. this the defense satisfied the founda- rule, requirements tional of the but failed to establish that the police report substantially was a verbatim version inconsistent statement of Laura B. or that she had allegedly previously adopted properly it. The Circuit Court excluded from report evidence.
2. It was for permissible prosecutor to ask the SAFE shortly alleged nurse who examined Laura B. after the rape whether the account to given by during the nurse Laura B. the examination was “consistent or inconsistent with” the physical injuries observed the nurse. response The nurse’s injuries she observed on Laura B. verify” “would was, context, Laura B.’s likely account most understood as injuries an affirmation that were consistent with what Laura B. told the nurse and required the trial court was not if strike the statement. Even the nurse’s use of the word “verify” could be considered an inadmissible comment con- B., cerning general of Laura credibility the court’s failure was, worst, to strike the nurse’s answer at harmless error. 3. Because it not readily apparent is that the factual basis jury’s guilty for the verdict on the imprisonment false count separate guilty from that of the verdict on the first degree rape count and because all of the elements of false imprison- degree rape, ment are also elements of a first the conviction for imprisonment merged false should be into the conviction for degree rape sentencing purposes. first
Judgment Special Appeals Affirmed Court Part in Part. Remanded reversed Case Court with to Remand Directions Circuit Court for Further *38 Opinion. Split
Proceedings this to be with Costs Consistent County. Evenly and Harford Between Petitioner J., ADKINS, concurs. GREENE, JJ., dissent.
HARRELL and J., ADKINS, concurring. respect with to its Majority opinion, except
I with the agree failure to strike Nurse no error in the trial court’s finding she question, indicating to the response prosecutor’s Harden’s that tran- accounting of the events verify could the victim’s spired. opinion when he Judge dissenting
I with Harrell’s agree by this was error refusing to strike concludes Judge’s with Harrell’s disagree, though, court. I the trial my opinion, prejudicial. conclusion that this error was render corroborating evidence to this there was sufficient officer’s police evidence includes error harmless. Such house, Nurse Har- his arrival at the victim’s testimony about non-objectionable testimony significant physi- about the den’s victim, of the victim photographs to the and the injury cal I agree Judge the crime. with Mc- taken at the time of error, if were he concludes that there analysis Donald’s when it harmless. Majority, and join judgment I
Accordingly, rationale, not its failure to strike Nurse of its but some above. response Harden’s as described GREENE, J., HARRELL, J., joins. dissenting, which dissent, I with much of the Technically, although agree I part company which I only point upon opinion. Court’s Nurse Harden’s Majority regard admitting is with with the (to question) prosecutor’s legitimate response testimonial examinations of Laura B. physical from her findings that her Contrary B. her. to the what Laura told verify” “would allowing Majority opinion and conclusion of the analysis and, if jury was not error to be considered response 734-37, 257-59), I error, 98 A.3d at (Maj. op. at was harmless one, According- harmful to boot. quite find error and would of the Circuit Court judgment I reverse the ly, would trial. the case for a new remand concedes, ... ‘verify’ “the word Majority opinion
As the
Laura
had assessed
might
suggest
Harden]
well
that [Nurse
of events.”
to her to be the one true version
B.’s statement
Yet,
Majority opinion
at 256.
Maj. op. at
98 A.3d
rationalization,
linguistic
in a
based on
engages thereafter
something
meant
else in the
gymnastics, that it could have
Although
analysis may beguile
context here.
such an
greater
sight
one should not lose
of who the
jurists
lawyers,
some
*39
I
not
jury
peers.
fact finder
at Brooks’s trial —a
of his
do
was
legal
in the
accept
they, unpracticed
likely
ways
most
in
would
what Nurse Harden said
such
legerdemain,
perceive
I
imagines,
as the
nor am
caged
Majority opinion
manner
assume, Brooks’s
that was the case here.
willing
expense,
to
at
concede, “verify” usually
Majority opinion
As the
must
truth.” That is the sense most often
means “to establish the
lexicographers.
lay people
associated with
word
(10th
See,
Collegiate Dictionary 1312
e.g., Merriam Webster’s
1993)
truth,
or
accuracy,
establish the
reali
(“verify”
ed.
—“to
of’).
what,
must assume
present purposes,
This is
we
ty
for the
prejudicial
jury
understood.
It was
error
jury
to consider Nurse Harden’s answer.
permitted
have been
than
that Laura B.’s
reply
simply saying
Her
was more
injuries.
explanation
version was not excluded as an
of her
the one
“verify” suggested
The use of the term
that it was
analogous
was
to the social worker’s
“true” version. This
State,
266,
in
v.
312 Md.
on the victim’s warranted in admitting court’s error Nurse Harden’s was not a warrants a new trial in this harmless error and case. standard of review for harmless error is: error, a criminal establishes appellant,
[W]hen
court, upon
independent
unless a
its own
review
reviewing
record,
belief, beyond
is able to declare a
a reason-
doubt,
verdict,
way
able
that the error in no
influenced
such error cannot be deemed “harmless” and a
is
reversal
reviewing
mandated.
court must thus be satisfied that
Such
possibility
is no
the evidence com-
there
reasonable
plained
erroneously
of—whether
admitted or excluded—
may
guilty
have contributed to the rendition of the
verdict.
State,
(1976)
638, 659,
Dorsey v.
276 Md.
We have been reluctant to hold that an error was harmless
jury’s
when the error could have affected the
assessment of
victim,
the credibility of either the defendant or the
and when
trial
on
hinged
jury
the outcome of the
whether the
believed
See, e.g.,
the defendant’s or the victim’s version of events.
(1998)
State,
v.
Md.
Judge joins Greene authorizes me to state that he the views here. expressed notes I need to treat.” Her interview looking what her, B. that Mr. including what Laura told summarized napping had beside her bed while she was appeared Brooks sex; him that Laura B. had hit with a ceramic and demanded statue; that, her, Mr. Brooks had choked had response, him, had then followed her forced her to have sex with and house; had contacted the police around the and that she for the 911 to return her call. dialing operator and waited the interview were admitted concerning Nurse Harden’s notes objection. into evidence over defense on which she diagrams Nurse Harden then described injuries, Laura and 35 of Laura B. that photographs noted B.’s face, and on her bruising documented extensive lacerations At the conclusion of her direct examina body, genitals.15 and tion, following exchange place: took Harden, given STATE’S Mrs. ATTORNEY]: [ASSISTANT examiner, your training you as a forensic nurse were able to medi- upon degree draw a conclusion based reasonable certainty you cal as to whether what told [Laura B.] exhibits, Using photographs 15. and other demonstrative Nurse following injuries on Harden testified in detail about the she observed face, blood, lacerations, bruising B.: and on the side of her Laura forehead, cheeks, nose, ears, swelling lips; bruising around and and hairline; eyes; bruising bruising and her on her neck and on her arms fingernails; upper around abrasions on her forearm and blood back; blood, scratches, bruising thighs; and on her knees and discolor- labia; color) bruising "very profound” (purplish on her ation minora, fourchette, injuries majora, posterior includ- to her labia labia laceration; cervix; bruising ing on her and hemor- discoloration rhaging vagina. within her interview was consistent or inconsistent with injuries