Collins v. State

• Decision Date: 03 October 2005
• Docket Number: No. 281,281
• Parties: Adrian F. COLLINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

884 A.2d 181

164 Md. App. 582

Adrian F. COLLINS v. STATE of Maryland.

No. 281, September Term, 2004.

Court of Special Appeals of Maryland.

October 3, 2005.

William E. Nolan (Nancy S. Forster, Public Defender, on brief), for appellant.

Gregory D'Alesandro (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel EYLER, JAMES R., KENNEY and BARBERA, JJ.

EYLER, JAMES R., J.

Adrian Frayne Collins, appellant, was convicted by a jury in the Circuit Court for Harford County of attempted second degree rape¹ (Count 5), two counts of third degree sexual offense² (Counts 2 and 6), and child abuse (Count 7). Subsequently, after merging one of the third degree sexual offense convictions, the court sentenced appellant to twenty years' imprisonment for the attempted second degree rape conviction, a concurrent term of fifteen years' imprisonment for the child abuse conviction, and a ten-year suspended sentence for the remaining third degree sexual offense conviction.

On appeal, appellant contends that (1) the court erred in admitting out-of-court statements by the victim because it violated his Sixth Amendment right to confront witnesses, (2) the court erred in admitting testimony regarding other crimes in violation of Rule 5-404(b), and (3) the evidence was legally insufficient to sustain the conviction for attempted second degree rape. With respect to the first issue, the objection in circuit court was on the ground of hearsay. Subsequent to trial and conviction, the Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and appellant now argues a violation of the Confrontation Clause. We hold that the first issue was not preserved for review because the only ground stated below was hearsay, and we decline to recognize plain error. Perceiving no error with respect to the second issue, and holding as to the third issue that the evidence was legally sufficient, we shall affirm the convictions.

Factual Background

We shall quote the relevant facts, as set forth in appellant's brief, omitting citations to the record. We will supplement the facts contained in appellant's brief as necessary.

Kelly Collins, the wife of appellant, testified that in September of 2002, she took her 8-year-old daughter, [K], to the hospital[³]. Ms. Collins explained that she took her daughter to the hospital because she "noticed [K] was very red in her vaginal area." According to Ms. Collins, this discovery "brought back everything that [she] had forgotten about and [she] decided it was time to turn [appellant] in for molesting [her] daughter." Ms. Collins explained that what she had "forgotten about" was that she had caught appellant allegedly molesting [K][sic] on two prior occasions. According to Ms. Collins, nearly two years earlier she witnessed [K] "bent over the kitchen chair with her pants down.... [Appellant] was behind her with his penis out between her legs."⁴

Nearly a year after the incident in the kitchen, according to Ms. Collins, she observed appellant and [K] on the couch.[⁵] Ms. Collins explained that [K] "had her pants pulled down," and appellant "was in the process of pulling his shorts down." Ms. Collins testified that she did not report these incidents because she felt threatened by appellant.

Ms. Susan Holian, a sexual forensic examiner (SAFE) nurse, testified that she examined [K] on October 1, 2002. Ms. Holian reported redness of the "external and internal genitalia," and explained that "by internal, that's the area right before the vaginal hole." Ms. Holian further reported that [K]'s hymen was intact, indicating a lack of vaginal penetration.

Ms. Penny Boccelli, a social worker for the Harford County Department of Social Services, testified that she interviewed [K] on October 3, 2002. Ms. Boccelli testified that the interview was conducted at the Child Advocacy Center in the presence of a police detective and was recorded on videotape. Ms. Boccelli explained that a copy of the videotape was made for the police detective as "part of their criminal evidence." The videotape of Ms. Boccelli's interview with [K] was entered into evidence and played for the jury. During the interview, [K] explained that appellant touched her "pee-pee." She told Ms. Boccelli that he put his "pee-pee" on her "pee-pee." [K] further told Ms. Boccelli that this type of contact occurred on two prior occasions. Once in the kitchen, and once on the couch.

Mr. James Hanna, appellant's step-father, also testified for the State. He testified that on September 30, 2002, he received a phone call from Ms. Collins, who told him she was taking [K] to the hospital. Mr. Hanna testified that as a result of that phone call, he went to the home of appellant and Ms. Collins. He explained that when he arrived, he witnessed appellant and Ms. Collins arguing, and heard appellant say "that nothing had happened that weekend, it was all in the past, there was no penetration."

Appellant testified on his own behalf, and expressly denied ever having "any sort of sexual activity" with [K]. Moreover, Dr. Kent Hymel, a pediatric physician and expert in sexual child abuse examination, testified that "redness and tenderness are completely non-specific findings." Dr. Hymel stated that such findings "cannot or should not be specifically related to sexual assault, because there are multiple other even more common explanations for redness and tenderness." Dr. Hymel explained that such symptoms may, for example, be the result of "simple skin irritation."

On January 5, 2004, after jury selection but prior to opening statements, the court interviewed [K] in chambers. Subsequently, the court heard arguments in regard to the State's motion to introduce the videotaped interview between [K] and Ms. Boccelli, pursuant to Md.Code (2001), § 11-304 of the Criminal Procedure Article. The following colloquy pertinent to this appeal ensued.

THE STATE: Your Honor, the State is making a motion to have the videotaped testimony — or the videotaped interview of the victim in this case, [K], introduced into trial and to be produced in lieu of live testimony. We've had the child interviewed in chambers by Your Honor, and I've talked with defense counsel, and the precedent under 11-304 ... is that an out-of-court statement may be admissible if made to a person who is acting lawfully in the course of her profession and is a licensed social worker, and Miss [Boccelli] is so, and I have talked to defense counsel and he has stated he would stipulate to the fact that she was acting lawfully in her profession and was licensed at the time, but if need be, for the court's purposes, I can put her on the stand.

APPELLANT'S COUNSEL[⁶]: I would stipulate to that, Your Honor, and that she is currently a licensed social worker as well.

THE COURT: All right, so what you're doing, then, is offering this video as an out-of-court statement of a child victim, right?

THE STATE: Yes, Your Honor.

* * *

THE COURT: And the child in this case is not going to testify; is that correct?

THE STATE: Not if she doesn't have to. Well, no, Your Honor.

* * *

THE COURT: And we're here for the purpose of a hearing to make a determination as to particularized guarantees of trustworthiness [pursuant to § 11-304(e)]; is that correct?

THE STATE: That is true, Your Honor.

APPELLANT'S COUNSEL: That's correct, Your Honor, and under (f), Your Honor will need to make a finding on the record as to the specific guarantees of trustworthiness that are in the statement and determine the admissibility of the statement.

Subsequently, the videotaped interview was played for the court. Both before and after the videotape was played, appellant's counsel argued that the videotape did not meet the "particularized guarantees of trustworthiness" requirements of section 11-304(e), focusing predominantly on (e)(xii), which mandates that the court consider "whether the statement was suggested by the use of leading questions." At no time did appellant object to the videotape on the grounds that it violated his right to confrontation under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights.⁷

On January 6, 2004, the court ruled on the State's motion. In so doing, it stated the following with regard to section 11-304(e).

Subsection (c) requires that the out-of-court statement is admissible only if it's made to and offered by a person acting lawfully in the course of that person's profession, and one of the professions listed would be a licensed social worker, and that in fact is the case here. It's also a videotape being made through the licensed social worker, but it is in fact a video presentation.

* * * The court also must find that there are particularized guarantees of trustworthiness pursuant to subsection (e). Keeping in mind that the issue of trustworthiness of the statement and the degree of probative value are two different items, in this particular instance I'm looking at this only to see if I believe that the child's statement has some indication of, or guarantees of, trustworthiness, and subsection (2) of subsection (e) sets out the various factors which the court must examine.

* * *

"Whether the statement was spontaneous or directly responsive to questions." Well, in this particular case the statement was almost entirely made pursuant to and responsive to questions asked by the social worker.

* * *

The next factor involves the use of leading questions, and there were some leading questions obviously used in the garnering of information during the course of the video statement. The questions that were asked appeared to me to really be more in preparing the witness to answer other more important questions that were not leading. Again, given the entirety of the statement, I do not feel that the questioning or manner of questioning was such as to preclude the trustworthiness of what was said.

* * *

So given all of that, I'm going to admit

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