Deloso v. State

• Decision Date: 15 July 1977
• Docket Number: No. 1282,1282
• Citation: 376 A.2d 873,37 Md.App. 101
• Parties: Thomas A. DELOSO, Sr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 101

37 Md.App. 101

376 A.2d 873

Thomas A. DELOSO, Sr. v. STATE of Maryland.

No. 1282.

Court of Special Appeals of Maryland.

July 15, 1977.

Ralph H. France, II, Asst. Public Defender, with whom were Alan H. Murrell, Public Defender, and Poole & France, Hagerstown, on the brief, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and John S. Hollyday, State's Atty., for Washington County, on the brief, for appellee.

Argued before MOORE, LOWE and MELVIN, JJ.

LOWE, Judge.

The corporal punishment of students constitutionally allowed teachers, Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (No. 75-6527, decided April 19, 1977), was viewed in the early cases as derived from the parental right to discipline one's child. Id. at 651, 97 S.Ct. 1401. It is unlikely that Thomas A. Deloso, Sr. foresaw the irony his actions would create when, on or about November 16, 1974, he administered corporal punishment to his daughter Jenny Jo, age five, which resulted in marks on her face ¹ and a "whelp" or bruise on her back and right hip. When she arrived at school Jenny Jo called these marks to the attention of her teacher, who told the director of the school, who told a social worker (Mrs. Broadwater), who told a doctor, who examined Jenny Jo at the hospital and found:

"Physical exam general appearance well developed white female with inflamed contusions on upper back and right cheek. Remainder of exam within normal limits. Good range of movement in all extremities without pain."

The contusions occurred (as told by Jenny Jo to the director) when "her daddy had spanked her." Neither treatment nor medication was required. The child returned to school and no legal action was taken at that time.

Nearly five months later, on or about April 8, 1975, Jenny Jo was again punished by her father. This time she showed the results to two teachers, ² who told the director and a member of Parent Involvement Aid, who told the vice-principal, who told Mrs. Broadwater of Social Services, who again told the doctor, who again examined Jenny Jo and found:

"Contusions covering much of right buttock and right flank."

This time, Mrs. Broadwater acted:

"Q All right, now Mrs. Broadwater, then what else did you do after you took the child to the hospital in reference to your investigation?

A This was the second time this had occurred in four months.

Q So, what did you do?

A I telephoned the Juvenile Court and described what had happened and asked if we might have an emergency commitment . . .".

As a result of this teacher to case worker to court communication, appellant was indicted on June 6, 1975 for abusing his daughter. On January 12, 1975 he was convicted by a jury in the Circuit Court for Washington County of two counts of child abuse.

hearsay or spontaneous declaration

For whatever reason, at trial the State chose not to call the child who was by then in the custody of foster parents (who themselves felt compelled to spank Jenny Jo during her stay), or Jenny Jo's case worker (who, it was stipulated, would have testified that she believes Jenny Jo to be a disciplinary problem and does have to be spanked occasionally). Virtually the only testimony introduced by the State was that of the teachers, the school director, and the social worker; ³ and, other than appellant's alleged admission to the social worker that

". . . he had hit Jenny on the back, because she had disobeyed him" all of the State's testimony relevant to the charges was hearsay from the child, introduced over objection through the various persons and reports described. The trial judge admitted all of the hearsay under the "excited utterance" exception to the hearsay rule, relying upon Moore v. State, 26 Md.App. 556, 338 A.2d 344.

In Moore we held that an answer given by a 3 1/2 year-old hospitalized child to an examining physician's question "why his tummy was hurting him", while clearly hearsay, was admissible as an excited utterance under the spontaneous declarations exception to the hearsay rule. Although we set out at some length the underlying reasoning of the foremost text writers as to why an excited utterance was more trustworthy than ordinary hearsay, the Moore case was decided on a narrow factual basis, i. e., a child in intense pain. We assumed that, when suffering, even children instinctively tell the truth to a physician.

Perhaps because we had occasion to draw upon the scholarship of Moore in Jackson v. State, 31 Md.App. 332, 356 A.2d 299 (where we held that statements inculpating the accused, made by a 4 year-old rape victim to her mother immediately upon arriving home after the assault, were admissible excited utterance exceptions to the hearsay rule), our holdings have been interpretively broadened by some trial judges to admit any relevant hearsay from an infant without regard to the prerequisite foundation of circumstantial probability of trustworthiness. See Jackson, supra, 31 Md.App. at 337, 356 A.2d 299; Moore, supra, 26 Md.App. at 562, 338 A.2d 344. While the writings of Professors Wigmore, McCormick, Morgan and Strahorn, from which we recited in Moore, make fascinating reading from an analytic and scholarly viewpoint, a trial judge called upon to rule during the climax of a trial may find that their digestion was not completed at the time of their consumption. However, we are reminded of a judicial purgative wherein we reiterated a most lucid res gestae test from Price v. State, 5 Md.App. 127, 131-132, 245 A.2d 600, 603:

" '. . . the declaration was made at such a time and under such circumstances that the exciting influence of the occurrence clearly produced a spontaneous and instinctive reaction on the part of the declarant. She was still emotionally engulfed by the situation. . . .' " Smith v. State, 6 Md.App. 581, 587, 252 A.2d 277, 280.

This still seems a most practical rule of thumb for a trial judge, and an understandable test to apply on appeal as well.

The length of time between the occurrence and the declaration is a consideration in determining not only its spontaneity, but whether the declarant was "still emotionally engulfed", although, as is obvious from Moore, time is not a conclusive factor. The utterance need not be contemporaneous or simultaneous with the principal act. While it may be subsequent to it, it must be established that the exciting influence has not lost its sway or been dissipated by meditation. Harnish v. State, 9 Md.App. 546, 551, 266 A.2d 364. But the crucial factor is not so much the lapse of time or change of location but the continuance of a situation which insures that what is said is, in fact, a spontaneous reaction to the occurrence, rather than an independent, preconceived expression of the speaker's will. Reckard v. State, 2 Md.App. 312, 316-317, 234 A.2d 630.

Implicit in this consideration, however, is the requirement that the offerer of the hearsay statements provide the foundation upon which he asserts admissibility. See Harnish, supra, 9 Md.App. at 549-551, 266 A.2d 364; McCormick, Evidence § 297 (2d ed.). As we have already pointed out, the State's entire case rested upon hearsay, but the State laid no foundation showing circumstantial probability of trustworthiness. Nor was there evidence of the relative time sequences between the alleged incidents of abuse and Jenny Jo's statements to the various witnesses. Nothing in the evidence indicated that Jenny Jo "was still emotionally engulfed by the situation", either inferentially from time and circumstances, or actually from the witnesses' observations. To the contrary, Jenny Jo's conduct and conversation appeared from the telling to have been quite casual almost a "show and tell" depiction. Neither Moore, Jackson, nor any other case reviewed by this Court permits the admission of the hearsay of a child simply by virtue of its tender years. The element of trustworthiness is generally found in the spontaneity of the exclamation, and that is totally lacking here. The facts in Moore permitted an exception to the hearsay rule not an expansion of the exception. Moore did not abrogate the hearsay rule for child abuse cases.

insufficient evidence, reverse or remand

Obviously then, we must reverse the judgments below. But because we are dealing primarily with the insufficiency of the evidence, the question arises whether we should remand for a new trial, reverse outright, or choose the middle course and leave that decision for the trial judge. In providing those alternatives, the Court of Appeals in Gray v. State, 254 Md. 385, 397, 255 A.2d 5, 11, gave us some guidance on how to answer this question:

"We conclude that if the record before the Court of Special Appeals indicates that additional probative evidence of guilt can be adduced by the State at another trial necessitated by the insufficiency of the evidence, a new trial should be awarded after a reversal if the interests of justice appear to require it. If the record indicates that no additional probative evidence can be so adduced, the entry of a judgment of acquittal should be directed. If the Court of Special Appeals cannot determine from the record whether or not additional probative evidence can be produced on a retrial, and the interests of justice appear to require it, the Court should vacate the judgment and remand the case with directions to the trial court (a) to hold a new trial if the State within a specified time can satisfy the court that it can produce additional probative evidence, or (b) to enter a judgment of acquittal if the State cannot preliminarily so satisfy the court."

At first blush Gray may offend one's sense of "fair play", which, while "peculiar to Anglo-American law", is so rooted in our theory of justice in America that most of us take it for a fundamental legal tenet. Campbell v. State, Md.App., 376 A.2d 866 (filed July, 1977). Gray seems to say that the State may retry an accused if...