Fisher v. State

• Citation: 736 A.2d 1125,128 Md. App. 79
• Decision Date: 08 September 1999
• Docket Number: No. 1394,1394
• Parties: Rose Mary FISHER, Mary Utley and Frank E. Scarpola v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

736 A.2d 1125

128 Md. App. 79

Rose Mary FISHER, Mary Utley and Frank E. Scarpola v. STATE of Maryland.

No. 1394, Sept. Term, 1998.

Court of Special Appeals of Maryland.

September 8, 1999.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant, Utley.

Thomas J. Saunders, Assigned Public Defender, Baltimore, for appellant, Fisher.

Kreg Paul Greer, Assigned Public Defender, Bel Air, submitted on the brief, for appellant, Scarpola.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on brief), for appellee.

Argued before MURPHY, C.J., and MOYLAN and WENNER, JJ. MOYLAN, Judge.

At 2:41 P.M. on June 25, 1997, nine-year-old Rita Fisher was pronounced dead at the Johns Hopkins Hospital. The subsequent post mortem report of the Office of the Chief Medical Examiner revealed that she had died of dehydration and malnutrition, conditions resulting from inadequate water and food intake. The post mortem report indicated that she had been admitted to the Johns Hopkins Hospital on June 25, the day of her death, and had "expired as a result of abuse and negligence."

Rita Fisher's physical development was described as "retarded." Her weight at the time of her death was forty-seven pounds, which was, in the opinion of the assistant medical examiner, considerably less than the average weight of a nine-year-old girl. Other medical records indicated that at an earlier period in her life she had weighed as much as 54-1/4 pounds. The evidence of physical abuse included "numerous recent and old abscesses and bruises to her head, chest, extremities, and buttocks." There were "multiple rib fractures exhibit[ing] a pattern of healing consistent with a severe chest injury several weeks prior to death." There was evidence of internal bleeding and of subdural bleeding of the brain. In addition, there were "multiple ligature marks on her wrists and ankles" which "indicate that she had recently been bound." There was also evidence that "a ligature [had been] placed recently around the chest."

On the next day, June 26, 1997, Rita Fisher's fifteen-year-old sister, Georgia Fisher, was admitted to the Northwest Hospital Center. Nurse Martha Chinery described Georgia, at the time of her admission, as "frightened, emaciated, malnourished, bruised, and scarred."

The appellants in this case were the three adult members of the household at 4106 Old Milford Mill Road in the Pikesville area of Baltimore County. Both Rita Fisher and Georgia Fisher had been members of that same household. The three appellants are 1) forty-nine-year-old Mary Utley, the head of that household and the mother of both Rita Fisher and Georgia Fisher; 2) twenty-year-old Rose Mary Fisher, daughter of Mary Utley and older sister of Rita and Georgia Fisher; and 3) twenty-one-year-old Frank E. Scarpola, Jr., the live-in boyfriend of Rose Mary Fisher.¹ The three appellants were jointly tried by a Baltimore County jury, presided over by Judge Dana M. Levitz, and convicted of a number of charges. All three appellants were convicted of:

1) The murder in the second degree of Rita Fisher;

2) The child abuse of Rita Fisher during the period of April 15, 1997 through June 23, 1997;

3) The child abuse of Rita Fisher on June 24 and June 25, 1997;

4) The child abuse of Georgia Fisher during the period of April 15, 1997 through June 23, 1997;

5) Conspiracy to commit child abuse on Rita Fisher; and

6) Conspiracy to commit child abuse on Georgia Fisher.

Rose Mary Fisher alone was additionally convicted of the child abuse of Georgia Fisher on June 24 and June 25, 1997.

Frank Scarpola received a combined sentence of ninety-five years imprisonment; Mary Utley received a combined sentence of seventy-five years imprisonment; and Rose Mary Fisher received a combined sentence of thirty years imprisonment. All three appellants raise the following five joint contentions:

1) That Maryland does not recognize the offense of second-degree felony-murder predicated on the felony of child abuse;

2) That Judge Levitz erroneously failed to instruct the jury with respect to the necessary causal connection between the underlying felony and the death of the victim;

3) That Judge Levitz erroneously refused to compel disclosure to the defense of certain confidential and privileged records and in refusing to have the disputed records sealed and made a part of the record for this appeal;

4) That Judge Levitz erroneously refused to compel the State to reveal to the appellants the whereabouts of Georgia Fisher prior to trial and facilitate access to her on the part of the appellants; and

5) That Judge Levitz erroneously joined the appellants for trial.

Mary Utley alone raises three additional contentions:

6) That Judge Levitz erroneously admitted three out-of-court statements in violation of the rule against hearsay and the confrontation clause;

7) That Judge Levitz erroneously admitted evidence of misconduct on the part of Mary Utley for which she was not on trial; and

8) That Judge Levitz erroneously permitted counsel for Frank Scarpola to cross-examine Mary Utley as to whether other witnesses were lying or telling the truth and erroneously denied the resulting motion for a mistrial.

The appellant Rose Mary Fisher alone raises the additional contention:

9) That Judge Levitz erroneously refused to permit her to introduce expert testimony in her defense.

The appellant Frank Scarpola alone raises the additional contention:

10) That the evidence was not legally sufficient to support his convictions on the two conspiracy charges.

The Factual Background

In the course of a ten-day trial, the State called fourteen witnesses, including one of the victims, Georgia Fisher. The defense called twenty-two witnesses, including the three appellants. The only undisputed facts were that prior to November of 1995, the residents of that address were Mary Utley, Rose Mary Fisher,² Georgia Fisher, and Rita Fisher. In November of 1995, Frank Scarpola moved into the residence as well.

The key witness for the prosecution was Georgia Fisher. Georgia related the abuse that she and her sister Rita had suffered at the hands of her mother, Mary Utley, for years before Scarpola moved in and the abuse that continued once Scarpola became a part of the household. With respect to the time period after Scarpola moved in, Georgia explained how she and Rita had to perform chores such as cleaning the house and looking after the pets and if those chores were not performed, "we would get a beating." When asked who, specifically, inflicted those beatings, Georgia answered, "Frank, Rosie and my mom." Georgia explained that the beatings would sometimes be with a yardstick and that sometimes the girls would be hit, kicked, or punched by the appellants. Scarpola would sometimes take Georgia and Rita into the basement and would use boxing gloves to hit them. When either of the girls fell down from being hit, Scarpola would order them to get back up so she could be hit again.

Georgia also described the many hours and days that she and Rita spent in "the hole." According to Georgia, "the hole" was "a small place [in the basement] that had a toilet and it had a stall and they locked us in there for punishment." Georgia explained that the "they" to whom she referred were "Frank, Rosie and my mom." The girls would be locked in "the hole" for "days at a time" with no light and only an occasional drink brought by the appellant Utley. When asked how often the girls were fed while in "the hole," Georgia replied, "once in a blue moon." Neither Rita nor Georgia was permitted to go into the refrigerator for food. In fact, at one point a lock was placed on the refrigerator door to prevent just that.

Georgia testified that, pursuant to Scarpola's orders, she was not permitted to help Rita with her homework. On one occasion when she did so and was caught, Scarpola beat her over the head with a metal flashlight. The beating resulted in a "big gash." Scarpola then proceeded to shave Georgia's head, pour wine over the open wound, and sew the wound with a needle and thread. Georgia did not go to school for several days after the incident. Georgia also described for the jury an occasion, a few months before Rita died, when she had been tied to her bed, gagged, and blindfolded by Scarpola so that he could rape her.³

Georgia stated that she and Rita had been locked in their room for five consecutive days before Rita died. During those five days they were fed "sometimes" and permitted to use the bathroom once every other hour. At such times, one of the appellants would unlock the girls' bedroom door and accompany the girls into the bathroom. If either of the girls could not "perform" and use the toilet, she would be hit in the face. While in their bedroom, Rita was forced to sleep on the wooden floor because her mattress had been removed by Scarpola. Rita was required to sleep "with her arms straight up above her head and [with] her legs straight ... face up." Georgia was given the responsibility of seeing that Rita did not move from that particular position. If Rita did move, Georgia would be "held responsible for it" and would be beaten. Georgia testified that both she and Rita were kicked in the ribs by Scarpola the week prior to Rita's death. Scarpola then smashed or threw away the girls' toys, including a dollhouse to which Rita was very attached. Scarpola told Rita and Georgia that they would not need the toys any longer because the girls were going "to go someplace until they were twenty years old," i.e., an institution.

The night before Rita died, Scarpola tied Rita up because she had been picking at a wound that Scarpola had earlier inflicted on her chin. Scarpola ordered Georgia to remove the shoestrings from her shoes. He then proceeded to tie Rita's hands to the dresser and her...