Fallin v. State

• Decision Date: 12 July 2018
• Docket Number: No. 79, Sept. Term, 2017,79, Sept. Term, 2017
• Citation: 460 Md. 130,188 A.3d 988
• Parties: Jason Adam FALLIN v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

460 Md. 130

188 A.3d 988

Jason Adam FALLIN

v.STATE of Maryland

No. 79, Sept. Term, 2017

Court of Appeals of Maryland.

July 12, 2018

Argued by Wyatt Feeler, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner/Cross-Respondent.

Argued by Sarah Page Pritzlaff, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent/Cross-Petitioner.

Argued Before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

McDonald, J.

A basic principle of a criminal jury trial, incorporated in the Maryland Constitution,¹ is that the jury is the judge of the facts. A corollary is that it is "the province of the jury" to determine the credibility of the witnesses who provide evidence about those facts.² This Court is sometimes called upon to determine whether particular testimony is helpful to the jury in assessing witness credibility or whether it purports to supplant the jury in carrying out that function. This is one of those cases.

Petitioner, Jason Adam Fallin, was accused of abusing his daughter on three occasions when she was between five and eight years old, by inappropriately touching her genitals. Virtually all of the evidence against him consisted of testimony and out-of-court statements of the daughter. A forensic examiner testified that the daughter showed "no signs of fabrication" and that the examiner had no concerns about fabrication when she made certain out-of-court statements implicating Mr. Fallin. We hold that this testimony impermissibly intruded on the responsibility of the jury to assess the credibility of witnesses.

IBackground

On July 6, 2015, Mr. Fallin was indicted by a grand jury in the Circuit Court for Charles County. All of the offenses charged in the indictment were related to three alleged incidents in which Mr. Fallin inappropriately touched the genitals of his daughter, whom we shall refer to as "S." The case first went to trial in January 2016, but the jury could not agree on a verdict and the court declared a mistrial. The case was retried in April 2016. The retrial is the subject of this appeal.

S was born in September 2005 as a result of a brief relationship of Mr. Fallin with S's mother, whom we shall refer to as "Heather." Mr. Fallin and Heather eventually entered into a consent order concerning custody of S in 2009, under which S was to reside with Heather, but visit with Mr. Fallin every other weekend. At the time Heather and S resided with Mr. Fallin's parents, although Mr. Fallin himself did not live with them. Heather apparently has experienced her own challenges and S has spent much of her young life residing with either Mr. Fallin's parents or Heather's mother. S had seen Heather only once during the year preceding the trial of this case.

At the trial of this case, S herself directly testified about two of the alleged incidents. She dated one incident to sometime in 2012 (when she was five or six years old) while she was in bed with both of her parents ("the bed incident"). She also testified about a second incident that occurred inside a port-a-potty along a trail near her paternal grandparents' home in 2014 ("the trail incident"). A forensic examiner, who had interviewed S in 2012 testified that S had told her about a third incident, which allegedly occurred while S and her father were watching television in 2012 ("the television incident"), although in her own testimony S did not mention that incident and denied that there had been any incidents other than the two she testified about herself.

The issues before us arise out of the testimony of two of the State's witnesses who testified about out-of-court statements of S. One issue is whether a forensic examiner's repeated opinion that S did not show "signs of fabrication" was properly admitted in evidence. Another issue is whether the Circuit Court should have provided a more detailed curative instruction to the jury about inadmissible testimony by the same examiner that she did not believe S was "incorrect" in her testimony. The remaining issue is whether testimony by one of the State's investigators concerning hearsay statements by S, although erroneously admitted in evidence, was harmless error.

To provide perspective on these issues, we first outline the legal context and then recount the evidence at trial in some detail.

A. Legal Context

1. The "Tender Years" Hearsay Exception

Testimony concerning out-of-court statements of an alleged victim of child abuse may be admissible under what is known as the "tender years" exception to the hearsay rule contained in Maryland Code, Criminal Procedure Article ("CP"), § 11-304. That statute concerns the admissibility of an out-of-court statement³ of a child under the age of 13 who is an alleged victim of child abuse or of certain sex offenses. To be admissible under the statute, the statement must have been made to a person acting in the course of a particular profession, the statement must not be admissible under any other hearsay exception, the child must also testify at trial, and the statement must have "particularized guarantees of trustworthiness" according to factors set forth in the statute. CP § 11-304(c), (d), (e).

Pertinent to this case, the out-of-court statement is admissible only if made to one of the following professionals "acting lawfully in the course of the person's profession":

(1) a physician;

(2) a psychologist;

(3) a nurse;

(4) a social worker;

(5) a principal, vice principal, teacher, or school counselor at a public or private preschool, elementary school, or secondary school;(6) a counselor licensed or certified in accordance with Title 17 of the Health Occupations Article; or

(7) a therapist licensed or certified in accordance with Title 17 of the Health Occupations Article.

CP § 11-304(c).

2. Expert Testimony Concerning Evaluation of Alleged Victim's Statements

Maryland appellate courts have previously considered the admissibility of expert opinion testimony related to the statements of an alleged victim of child abuse. Among the cases that bear on this issue and that form the backdrop for the objections made at trial are Bohnert v. State , 312 Md. 266, 539 A.2d 657 (1988) ; Hutton v. State, 339 Md. 480, 663 A.2d 1289 (1995) ; and Yount v. State , 99 Md. App. 207, 636 A.2d 50 (1994).

Bohnert

In Bohnert , as in this case, the defendant's conviction of a sexual offense against a child turned on whether the jury believed certain statements of the child. In that case, the defendant lived in an apartment with a woman and her two children, a boy and a girl. The girl alleged that the defendant frequently took her into the bathroom of the apartment to engage in sex acts. Other testimony at the trial suggested that she was jealous of her mother's relationship with the defendant and might have other motives for testifying falsely against him. The girl had twice recanted her allegations of abuse, and a physical examination found no signs of sexual abuse.

A social worker employed as a protective services investigator by the local department of social services, who had interviewed the girl and her mother, was qualified by the trial court as an expert in the field of child sexual abuse. In response to a question from the prosecution, the social worker responded that, in her opinion, the girl was a victim of sexual abuse. While the social worker alluded to other sources of information, she said that her opinion was based chiefly on statements made by the girl.

The jury convicted the defendant of the charges and the Court of Special Appeals affirmed the conviction. This Court, however, reversed, holding that it was an abuse of discretion to admit the social worker's opinion as to the girl's credibility.

The Court first observed that the social worker's opinion was based solely on what the girl had told her, as there were no eyewitnesses or physical evidence and the only other evidence was similar statements made by the girl to her mother or others. The Court observed that, while the admission of expert testimony on a particular subject is normally a matter within the discretion of a trial court, the social worker's opinion rested solely on the statements of the girl, who was also a witness in the case, and thus essentially amounted to an opinion concerning that witness' credibility.

The Court stated:

In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded the witness' testimony are solely within the province of the jury.... It is ... error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying. Whether a witness on the stand personally believes or disbelieves testimony of a previous witness is irrelevant, and questions to that effect are improper, either on direct or cross-examination.

312 Md. at 277, 539 A.2d 657 (citations omitted). Noting that the results of lie detector tests are not admissible, the Court stated that no one "can qualify as an ‘expert in credibility’ no matter what his experience and expertise" and reiterated that the credibility of a witness is solely the province of the jury. Id. at 278, 539 A.2d 657. "It is the settled law of this State that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth." Id.

The Court concluded that, in the case before it, the social worker's opinion that the girl had been sexually abused was "tantamount to a declaration by [the social worker] that the child was telling the truth..." Id. Such an opinion was "inadmissible as a matter of law" and the trial court had no discretion to admit it. Id. at 279, 539 A.2d 657.

Hutton

The Court reiterated that principle in Hutton , which also arose out of a child sex abuse prosecution. In that case, a social worker who had counseled the alleged victim testified in the State's case. The...