Bey v. State
| Decision Date | 29 June 2016 |
| Docket Number | No. 413, Sept. Term, 2015.,413, Sept. Term, 2015. |
| Citation | 228 Md.App. 521,139 A.3d 1113 |
| Parties | Douglas Ford BEY II v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Rachel Simmonsen (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.
Sarah Page Pritzlaff (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.
Panel: GRAEFF, FRIEDMAN, and GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.
HARRELL
, J.
Appellant, Douglas Ford Bey, II, stood before the Circuit Court for Frederick County accused of sexual abuse of a minor. He was convicted, after a jury trial, on seventeen various counts, resulting in a cumulative sentence of 390 years in prison. Bey argues in this appeal that he is entitled to a new trial because of procedural errors, including the implicit denial of an alleged request to discharge his counsel and the admission of certain demonstrative evidence and testimony regarding DNA, and, in any event, his sentence was improper in significant regard. We disagree with Bey on the first two contentions, but agree that his sentence was improper.
Therefore, he shall not receive a new trial, but rather is entitled to a new sentencing proceeding.
FACTS AND LEGAL PROCEEDINGS1
The female victim, a minor at the time of the sexual abuse and at trial, testified that the abuse, all of which occurred in the family home, began in 2010 and continued until about February 2014. She recalled that the first instance of abuse was in the summer of 2010 (when she was ten years old) when Bey, the victim's putative father, performed cunnilingus on her. After this initial incident, the sex acts2 continued multiple times a week during the ensuing four year span.
In 2013, the victim, believing she was pregnant, told some friends that she had been molested. Following revelation to Bey of her pregnancy concern, he took her to a doctor, who confirmed the pregnancy. Ultimately, she had the fetus aborted at the University of Maryland Medical Center. Donna Young, a nurse from the hospital, testified that the abortion was performed on 3 February 2014, when the victim was 14 years old.
After this procedure, the victim saw a therapist on 12 February 2014, whom she told about the abuse. The therapist reported the abuse to appropriate governmental and law enforcement authorities. An investigation ensued by the Frederick County Department of Social Services and the Frederick County Sheriff's Office. Detective Ronald Dement, a member of the Sheriff's Office, and Shannon Pulsipher, an investigator for Social Services, were responsible principally for the investigation by their respective agencies.
The victim was brought to the Sheriff's offices to make a statement regarding the abuse. After recording her statement, including a representation that Bey forced her to perform oral sex on him earlier that very day, Detective Dement obtained promptly a search warrant to conduct a forensic sexual assault exam on Bey. Oral and genital swabs were taken from both Bey and the victim. Julie Kempton, a forensic scientist, concluded from testing of the swabs that, to a reasonable degree of scientific certainty, the victim's DNA was present on Bey's penis, according to her testimony at trial.
Also analyzed for DNA evidence was the eleven week old aborted fetus. The fetal tissue was obtained by Detective Dement from Melissa Sheriff, a pathologist assistant for the pathology lab at the University of Maryland Medical Center, and delivered subsequently by him to the Sheriff's Office's property department. Sarah Shields, a DNA analyst, testified that, after conducting genetic tests, she was able to conclude, to a reasonable degree of scientific certainty, that Bey was the biological father of the fetus.
The State introduced also a recorded jail telephone call in which an inmate, referring to himself as “Speedy,”3 admitted to having his daughter perform oral sex on him. During this same phone call, the inmate requested the other party to the call to cause his backpack to be brought to him. When the law enforcement authorities intercepted Bey's backpack, additional evidence was uncovered from a cell phone found within. Detective Gene Alston testified that the cell phone contained data showing Bey's web history, which included visits to “about 65 pornography web sites, more than a thousand times,” between May 2013 and March 2014. Finally, Detective Dement testified that Bey asked him to tell the victim that he “was sorry for everything that he had done.”
A jury convicted Bey of seventeen of eighteen charged counts: five counts of sexual abuse of a minor, ten counts of a continuing course of conduct against a child, and two counts of third degree sexual offense.4 The court sentenced Bey cumulatively to 390 years in prison. Bey filed a self-represented Motion for a New Trial, received by the circuit court on 16 September 2014, asserting ineffective assistance of counsel. The Public Defender's office, which represented Bey at trial, appealed to this Court on 4 May 2015. Additional facts will be provided as necessary to our analysis of Bey's appellate questions.
QUESTIONS PRESENTED5
Appellant presents three questions for our consideration, which we rephrase here:
For the following reasons, we hold that the circuit court did not err with regard to the questions directed to the conduct of Bey's trial, but hold that its sentencing of Bey, as challenged in his third question, was in error. Thus, we affirm the judgments of conviction, but vacate the sentence and remand for a new sentencing proceeding.
DISCUSSION
Bey contends that the circuit court erred in not granting his implicit trial request to discharge counsel when he stated that he and his attorney had a fundamental disagreement about the scope of cross-examination of the victim and that Bey believed his attorney was “winging it” generally during the trial to that point. The State responds that “Bey did not make any statement from which the trial court reasonably could have concluded that he wanted to discharge his counsel.” Moreover, because the alleged disagreement was over a matter of trial strategy, there was insufficient meritorious basis given by Bey for his complaint to be worthy of relief. Additionally, the State maintains that, due to the timing of any perceived discharge request, it was within the circuit court's soundly exercised discretion to deny such during trial.
How trial judges are obliged to address a defendant's request to discharge counsel made before trial commences is regulated by Maryland Rule 4–215(e)
. The Rule explains what mandatory action is to be taken by the circuit court when such a request is made and how appellate review is to be conducted. State v. Hardy, 415 Md. 612, 621, 4 A.3d 908, 913 (2010) (citing Williams v. State, 321 Md. 266, 272, 582 A.2d 803, 806 (1990) ). When the request for discharge is made after voir dire and during the trial, however, this rule does not apply and we are asked instead to “evaluate the trial court's ruling on a motion to discharge counsel under the far more lenient abuse of discretion standard.” Hardy, 415 Md. at 621, 4 A.3d at 913 (citing State v. Brown, 342 Md. 404, 429, 676 A.2d 513, 525 (1996) ). Thus, we afford deference to the circuit court's judgment and will “find an abuse of discretion only when the court's act is so untenable as to place it beyond the fringe of what the [appellate] court deems minimally acceptable.” Hardy, 415 Md. at 621–22, 4 A.3d at 913
(citation and internal quotation marks omitted).
To constitute a request to discharge counsel, “ ‘any statement by the defendant from which the court could reasonably conclude that the defendant desire[s to discharge his counsel is] sufficient’ for the court to consider that statement as a request to discharge counsel.” Hardy, 415 Md. at 622, 4 A.3d at 914
(quoting Snead v. State, 286 Md. 122, 127, 406 A.2d 98, 101 (1979) ). Such a request will be sufficient “even when [the defendant's] statement constitutes more a declaration of dissatisfaction with counsel than an explicit request to discharge.” Hardy, 415 Md. at 623, 4 A.3d at 914.
In Hardy, the Court of Appeals concluded that a defendant's “declaration that he was ‘thinking about changing the attorney or something’ reasonably should have led a trial judge to conclude that Hardy wanted, or at the very least was inclined, to discharge his counsel.” Hardy, 415 Md. at 623, 4 A.3d at 914
. Even though Hardy's statement was conclusory, Maryland law required the “court to consider his statement a request to discharge counsel and address the matter accordingly.” Hardy, 415 Md. at 623, 4 A.3d at 914. Thus, the statement made by a defendant does not need to be an “explicit request to discharge” in order to be understood as a request to do so.
The timing of a request, however, is rather important in the appellate analysis of the circuit court's eventual decision as to whether the request should be granted. In Hardy, it was made clear that the timing of the request determined whether “the trial judge's consideration of that request is governed purely by its discretion, or whether it should be circumscribed by the procedural demands of Rule 4–215(e)
.” Hardy, 415 Md. at 624, 4 A.3d at 915. The Court of Appeals concluded in Hardy that Rule 4–215(e) “does not apply literally once voir dire begins, and, therefore, the trial judge was not obliged necessarily to adhere to the Rule's strict procedural requirements in considering [the defendant's] request.” Hardy, 415 Md. at 624, 4 A.3d at 915
. To prevent confusion on the part of a jury as to why a...
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