Corbett v. State

• Decision Date: 01 March 2000
• Docket Number: No. 755,755
• Citation: 746 A.2d 954,130 Md. App. 408
• Parties: Michael CORBETT, Sr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

746 A.2d 954

130 Md. App. 408

Michael CORBETT, Sr. v. STATE of Maryland.

No. 755, September Term, 1998.

Court of Special Appeals of Maryland.

March 1, 2000.

Maureen Glancy, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Steven L. Holcomb, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General), Baltimore, and Jack B. Johnson, State's Attorney for Prince George's County, Upper Marlboro, on the brief, for appellee.

Submitted before MOYLAN, BYRNES, and JOHN J. BISHOP, Jr. (Retired, specially assigned), JJ.

BYRNES, Judge.

A jury in the Circuit Court for Prince George's County convicted Michael Corbett, Sr. of attempted second degree rape, child abuse, and attempted third degree sexual offense. He was sentenced to prison for twenty five years without parole for the second degree rape conviction and was given a fifteen year concurrent term for the child abuse conviction. The court merged the third degree sexual offense conviction for sentencing.

On appeal, appellant asks whether the trial court erred in admitting into evidence the prior written and signed statement of the prosecuting witness. For the following reasons, we answer the question affirmatively. Accordingly, we shall reverse the judgments and remand the case to the circuit court for further proceedings.

FACTS

The charges in this case stemmed from events alleged to have taken place on the morning of August 20, 1997. At that time, twelve year old LaDonna R., the prosecuting witness, was living in an apartment in Suitland, Maryland with her three year old brother Marcus and her mother, Ms. R. Appellant is Marcus's father and Ms. R.'s boyfriend. On the morning in question, LaDonna's mother was at work, and La-Donna was at home with Marcus and appellant. On direct examination by the State's Attorney at trial, LaDonna identified appellant and testified that something unusual happened between them on August 20, 1997. She stated, however, that she did not remember what had happened. La-Donna testified that she remembered that she had been asleep on the couch in the apartment and that when she woke up, appellant was near her, looking "shocked." The police arrived, took her to the police station, and asked her some questions. LaDonna remembered giving the police a handwritten and signed statement in which she recounted the events that had transpired.

At that point in the examination, the State's Attorney showed LaDonna a written and signed statement. LaDonna identified it as the statement she had given to the police, read it to herself and, after acknowledging that it helped "[a] little bit" to remind her what she had told the police, testified that she still did not remember what had happened to her on the day in question.

LaDonna went on to testify about events peripheral to the allegations against appellant. She stated that she remembered telephoning her mother at work on the day in question and that her mother came home in response; that when her mother arrived home, she and her mother were crying and her mother "h[eld her] in her arms;" that the police came to the apartment and asked her questions, although she could not remember what she told them; that after the police left, she talked to her mother about why she had asked her to come home, but that she could not remember what she told her mother; that her mother took her to the hospital and then took her home; that the police were called again and another officer came to the house; and that she could not remember what she told that police officer.

At the State's Attorney's request, La-Donna identified her handwriting and signature on each page of her written statement. The State's Attorney then questioned LaDonna as follows:

Q: Okay. What can you tell me about what you remember that morning?

A: I remember waking up and running to the phone, calling my mother.

Q: Okay. And when you woke up and ran to the phone to call your mother, was there a reason why you went to call your mother?

A: Yes.

Q: And what was that reason?

A: Something just happened.

Q: Can you tell me what had just happened?

A: I don't remember.

Q: You don't remember?

A: No.

Q: If you look at that statement, does the statement say what happened?

A: Yes.

Q: Can you read that out loud to me?

At that point, defense counsel objected, and this colloquy ensued:

DEFENSE COUNSEL: Your Honor, I will object, but now it's like a bifurcated testimony. She can use the statement to refresh her testimony, but she can't testify from it.

THE COURT: I think [the State's Attorney] is doing it perfectly proper with a child of this age with this statement. It's the beginnings of a statement given and then recanting, and a child of this age of tender years, twelve years old, I think it's perfectly proper.

DEFENSE COUNSEL: We haven't approached the Nance problem.

THE COURT: Yes, you have.

DEFENSE COUNSEL: I note she starts testifying what she can remember. If she's not—the Nance case directly deals with the issue of whether or not her statement is totally contradictory now as to what she said at the time. So far, she's not contradicting anything.

THE COURT: She hasn't said anything at this time, because she keeps having problems with relapses [sic] of memory as to the critical issue.

PROSECUTOR: I would like to specifically refer the Court to Page 572 ...

THE COURT: Where a witness has such loss of memory, the Court may appropriately admit her prior statements. You are going to eventually?

PROSECUTOR: I'm eventually going to move it in.

THE COURT: I think that's perfectly proper, over your objection of course.

LaDonna then read this portion of her statement to the jury:

My name is LaDonna [ ], I'm twelve years old, and this morning my mother's boyfriend was in the house while I was asleep on the couch. My father — my brother, his son was sitting next to me watching TV while I was sleeping. I do not know what he did to me, because I sleep very hard, and I can't hear or feel anything in my sleep. But when I woke up, my shorts and underwear was removed from off of me. When I looked up, [appellant], my mom's boyfriend, was in front of me with his — with my legs spread apart while he was trying to put his penis inside of me. I screamed out mommy, he backed up away from me and said[,] "[O]h, God."

LaDonna repeated that reading her written statement helped remind her "[a] little bit" what had happened on the morning of August 20, 1997. The State's Attorney then asked her: "Is that [the recitation of events in the statement] what you remember from what happened on the morning of August the 20th, what you read to us?" LaDonna replied, "Yes," and further responded that when she reported those events to the police and answered their questions, she was telling the truth.

The State's Attorney then offered the full written statement into evidence. Defense counsel objected. The trial court sustained the objection, stating: "So far she's admitted the statement as truthful, so I don't think you really get it in; do you?" At that point, the State's Attorney asked permission to pose additional questions to LaDonna, and the court allowed her to do so.

Thereafter, LaDonna testified that she had not wanted appellant to do what he did to her, that it made her feel "hurt," and that she had told her mother and the police officer who had come to the apartment on the second call the events recounted in her statement. When asked whether she in fact remembered what had happened after she woke up that morning, however, LaDonna testified, "No." The State's Attorney then directed LaDonna to look at her statement again. She did so, and testified that she did remember what had happened after she woke up:

Q: What happened?

A: I was screaming for my mother.

Q: And then what happened?

A: He backed away.

Q: And then what happened?

Defense counsel interjected, objecting on the ground that LaDonna appeared to be reading from her statement instead of testifying from memory as she was purporting to do. The trial judge asked LaDonna, "Do you remember now?" She responded, "No." The State's Attorney then took the written statement from LaDonna, and asked her what she remembered doing after she woke up on the morning in question. LaDonna testified that she remembered screaming for her mother, but that she did not remember anything after that.

The State's Attorney moved again for the admission of LaDonna's statement into evidence. Over objection, the trial court admitted the full document, including several pages that LaDonna had not read to the jury. The trial judge stated: "Well, I really think there are several pages to that statement, and it goes into additional things other than what we just talked about, what she just talked about. She said she doesn't remember. I think it's admissible, I will overrule the objection." The State called LaDonna's mother, who was without question a reluctant witness. Ms. R. testified that on the morning in question, she received a telephone call at work from LaDonna, who asked her to come home; that when she arrived home she grabbed LaDonna and hugged her but did not talk to her about what had happened; that police officers arrived and questioned LaDonna but that she did not hear what LaDonna told them; that when LaDonna complained that she did not feel well, she took her to the pediatrician; that the pediatrician told her to take LaDonna home; that she did not have a conversation with LaDonna about what had happened, other than LaDonna telling her she was fine; and that her sister called the police again. Ms. R. acknowledged that she had given a written and signed statement to the police. That statement was admitted into evidence, over objection, upon an express finding by the trial court that it contained several statements that were inconsistent with Ms. R.'s trial testimony.¹

The State also called Corporal Donald Bell of the Prince George's County Police Department. He...