Ellison v. Sachs

• Decision Date: 23 March 1984
• Docket Number: Civ. A. No. M-83-4455.
• Citation: 583 F. Supp. 1241
• Parties: Ervin Devere ELLISON v. Stephen H. SACHS, Attorney General of the State of Maryland.
• Court: U.S. District Court — District of Maryland

583 F. Supp. 1241

Ervin Devere ELLISON v. Stephen H. SACHS, Attorney General of the State of Maryland.

Civ. A. No. M-83-4455.

United States District Court, D. Maryland.

March 23, 1984.

Barnet D. Skolnik, Marc Seldin Rosen and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., and Douglas M. Smith, Annapolis, Md., for petitioner.

Carmina Szynyog, Asst. Atty. Gen., Baltimore, Md., for respondent.

JAMES R. MILLER, Jr., District Judge.

MEMORANDUM AND ORDER

On December 28, 1983, the petitioner, Ervin Devere Ellison, through his attorneys, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Paper No. 1). A hearing on this petition was held on February 15, 1984. Subsequently, the petitioner and the respondent filed supplemental memoranda of law on questions raised at the hearing. (Paper Nos. 11 & 12). The matter is now ready for decision.

I. Background

A. Trial and Pretrial Hearing

The petitioner was indicted on April 28, 1982, by a Grand Jury in Prince George's County, Maryland, on four counts: second degree rape, assault with intent to rape, second degree sexual offense, and assault with intent to commit a second degree sexual offense. (Paper No. 3, Exh. 2). On July 7, 1982, a hearing was held by Judge James M. Rea, of the Circuit Court for Prince George's County, on the pending motions filed by the petitioner,¹ including the motion to suppress the extrajudicial photographic identification of Ellison by the five year old victim. (Id., Exh. 2). Ellison chose to absent himself from this hearing. (Id. at M-3-5).

At the July motions hearing, the prosecution called Detective Alexander of the Prince George's County Police Department, Major Assaults Division, Child Abuse Unit. (Id. at M-15). Detective Alexander testified that she interviewed Tanya Matthews, the five year old victim, on February 17, 1982, six days after the incident giving rise to this indictment. (Id. at M-15). Detective Alexander testified that Tanya was shown two sets of photographs. The first set consisted of photos of individuals taken from police files, and Tanya did not recognize anyone in this group. (Id. at 16-17). Tanya was shown a second set of photographs which consisted of photographs of the male employees at the Grace Brethren School, which Tanya attended and where the incident allegedly took place. (Id. M-18). Tanya picked out one photograph of someone who went to her school and whom she described as "a good boy." (Id. at M-19). She picked a second photograph, a photograph of Ellison, and said the person depicted therein was a "bad boy." Detective Alexander testified that Tanya said that person was a "bad boy" because "he had done something bad to her. He had stuck a needle in her." (Id. at M-19). The photographs were scrambled and Tanya identified the "bad boy" photograph twice more. (Id. at M-20-21). Ellison's counsel then cross examined Detective Alexander. (Id. at M-22-30).

Tanya was also called as a witness at the motions hearing. (Id. at M-37). Before permitting the Clerk to administer the oath, Judge Rea conducted an examination of Tanya's understanding. (Id. at M-38-41). Counsel for the state and the petitioner's counsel were also permitted an opportunity to examine Tanya's competence to testify. (Id. at M-41-45). After the court ruled Tanya was competent to testify, Tanya was questioned regarding the February photographic identifications. (Id. at M-45-48). At the hearing, Tanya again identified Ellison's photograph as that of a "bad boy." (Id. at M-50). Tanya stated that the man was bad because "he stuck a needle in" her. (Id.). Petitioner's counsel asked no questions about the in-court photographic identification, (Id. at M-51), but asked several questions regarding Tanya's ability to discern hair color and colors in general. Tanya's mother also testified, at petitioner's counsel's request, about Tanya's recitation of the incident, including the earlier description of her assailant given by Tanya. (Id. M-55-58). Judge Rea then ruled that the photographic identification by Tanya on February 17, 1982 was legally proper. Judge Rea noted, prophetically, that the trial judge would also need to rule on Tanya's competence to testify. (Id. at M-63).

A jury trial began on August 11, 1982, on the four-count indictment with Judge Arthur Ahalt presiding. When the victim was called to testify, defense counsel requested a ruling on the competency of the witness. (Paper No. 3, Exh. 2, 1-5, 1-18). After examination by the court and counsel (id. 1-20-42), and argument by counsel (id. 1-43-46), Judge Ahalt ruled that Tanya was incompetent to testify because of her inability to recall events occurring in February, 1982. (Id. 1-47-51).

The State called Tanya's mother, Mrs. Matthews. She testified that, when she and her husband picked up Tanya from the Grace Brethren School on February 11, 1982, Tanya's clothes were in disarray, and, upon reaching home, she discovered that Tanya had blood in her pants and a reddened genital-rectal area. (Id. at 1-55-57, 1-67). Tanya was bathed and the next evening, following school, taken to her pediatrician and Prince George's County Hospital. (Id. at 1-57-59).

Dawn Western and Barbara Mazella, teachers at Grace Brethren School, testified that Tanya was at the school on February 11, 1982 and that Tanya was not alone with Ellison at the school on that day. (Id. at 1-73-103). After Detective Hall of the Prince George's County Police testified briefly about his investigation at the school on February 19, the State moved to have the transcript of the July 7, 1982 motions hearing admitted into evidence, which defense counsel opposed. (Id. at X-XXX-XXX). The court sustained the objection. (Id. at 122-123).

The State then called Detective Alexander to the stand, who, over objection, testified that Tanya selected the photograph of Ellison and stated that he was the "bad boy" who "stuck the needle in her." (Id. at 1-127, 1-132). Two drawings made by Tanya for Detective Alexander in February, 1982 were also identified. The first drawing was of the "box" the incident allegedly occurred in.² The second drawing depicted the man who "stuck the needle in her" with eyes, nose, arms, and legs located in the appropriate places and the "needle" drawn on the body in the approximate location of a male penis. (Id. at 1-135, 1-138, 1-141). The defendant objected to the latter drawing, State's Exhibit 23, as hearsay, (id. at X-XXX-XXX), but both were admitted.

The following day, Dr. Dennis Frank, the physician at Prince George's County Hospital who examined Tanya, testified that in his opinion she had been abused by "either a penis or by a foreign object." (Id. at 2-9).

Sheree O'Brien, courtroom clerk for the Circuit Court for Prince George's County, was then called. She testified that Tanya picked out the photograph of Ellison at the July 7, 1982 hearing before Judge Rea. (Id. at 2-10-11). Ms. O'Brien also testified that Tanya had chosen Ellison's photograph as one of "the bad man." (Id. at 2-16).

Ms. Matthews was recalled to the stand and testified that Tanya told Dr. Fowler, her pediatrician, when he asked what had happened, that a man had stuck "a needle" in her rectal area. (Id. at 2-30-31). Defense counsel objected. (Id. at 2-27-29).

At the close of the State's case, the court granted a motion for acquittal as to the charges of second degree rape and assault with intent to rape. (Id. at 2-38). The defendant presented evidence (id. at 2-39-117), and, following closing argument, (id. at X-XXX-XXX), the jury retired. A verdict of guilty on Count III, second degree sexual offense, and not guilty of Count IV, assault with intent to commit a second degree sexual offense, was ultimately returned. A new trial motion was denied. (Paper No. 3, Exh. 10).

B. Appellate Proceedings

Petitioner appealed his conviction to the Court of Special Appeals of Maryland. In his brief, he presented three issues: (1) did the trial court err by admitting into evidence pre-trial photographic identifications of Ellison made by an out-of-court declarant who was not available to testify at trial?; (2) did the trial court err in admitting through the testimony of the victim's mother an out-of-court declaration by the infant victim to a treating physician?; and (3) did the trial court err by admitting into evidence a drawing made by an out-of-court declarant and introduced through the testimony of a police officer when the out-of-court declarant was not available to testify. (Paper No. 3, Exh. 3) (See also Respondent's Brief, Paper No. 3, Exh. 4).

The Court of Special Appeals of Maryland, in an unreported per curiam opinion, affirmed the judgment. The Court concluded that Ellison, through his counsel, had failed to object to the testimony at trial of Ms. O'Brien who testified to one extrajudicial identification at the pre-trial hearing and that the testimony of Detective Alexander regarding a previous extrajudicial identification was harmless error because of the identification by Tanya of Ellison through Ms. O'Brien. The statements made by Tanya to Dr. Fowler, related to the jury through the testimony of Ms. Matthews, were ruled to be admissible, because the same safeguards that permitted a treating physician to testify as to those statements would apply to one who overheard them. Finally, the Court of Special Appeals concluded that the drawing submitted to the jury was not hearsay. (Paper No. 3, Exh. 5).

Ellison applied to the Maryland Court of Appeals for a Writ of Certiorari (Paper No. 3, Exh. 6; Respondent's Brief, Exh. 7), on the issue of whether the trial court had erred by admitting Detective Alexander's testimony regarding the extrajudicial photographic identification made by Tanya on February 17, 1982 when the witness was unavailable at trial. His petition was denied on December 1, 1983. (Paper No. 3, Exh. 9).

II. Petition in Federal District Court Pursuant to 28 U.S.C. § 2254

In his petition...