Germain v. State

• Decision Date: 10 April 2001
• Docket Number: No. 82,82
• Parties: Jean Bernard GERMAIN v. STATE of Maryland.
• Court: Maryland Court of Appeals

769 A.2d 931

363 Md. 511

Jean Bernard GERMAIN v. STATE of Maryland.

No. 82, Sept. Term, 2000.

Court of Appeals of Maryland.

April 10, 2001.

Claudia A. Cortese, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Zoe M. Gillen, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ CATHELL, Judge.

Petitioner, Jean Bernard Germain, was convicted by a jury in the Circuit Court for Anne Arundel County of attempted second degree murder, first degree assault, reckless endangerment, and carrying a weapon with intent to injure. Petitioner appealed to the Court of Special Appeals. In an unreported opinion filed June 12, 2000, the Court of Special Appeals affirmed his conviction.¹ Petitioner presents one question to this Court, for which we granted certiorari:

Did the Court of Special Appeals err in not reversing Petitioner's conviction on the ground that the trial court precluded Petitioner from using a key State witness's Pre-Sentence Investigation (PSI) for any reason including to refresh the witness's recollection, on the ground that PSIs are confidential and privileged?

We answer petitioner's question in the affirmative. We hold that the trial court should not have precluded petitioner from using a key State witness's PSI to refresh that witness's recollection. The confidentiality of a PSI is not absolute. The showing of a PSI to a witness who has a right to see it, in order to refresh that witness's recollection, is not prohibited by statute. Accordingly, we reverse the decision of the Court of Special Appeals and remand with instructions to reverse the judgment of the Circuit Court for Anne Arundel County and remand the case to that court for a new trial.

I. Facts

Petitioner and Mr. John Campbell (Campbell), two individuals incarcerated in the State of Maryland, shared cell 205 in D building, Bravo Wing of the Maryland House of Corrections Annex located in Jessup, Maryland. Sergeant Carlton L. Gibson, the officer in charge of the housing unit, testified that in early August 1998,² petitioner and two other individuals had just come off of temporary housing into the D Building. Petitioner was given a choice of three bed spaces in which to move. Petitioner requested that he not be moved into a cell with anyone who was a smoker. After initially refusing the placement in the cell with Campbell, petitioner changed his mind and accepted housing in that cell. His decision to accept the housing was made, at least in part, on the assurances by Sergeant Gibson that they would move him out of the cell after a short period of time.

Petitioner testified that soon thereafter he made numerous requests to be moved from the cell he shared with Campbell because Campbell "smoke[d] all the time," was HIV positive, and had sexually propositioned petitioner. However, Sergeant Gibson testified that "[t]he only reason I had was—the only reason that was brought to my attention was the smoking. Because [petitioner] said—he stated that he had asthma and he couldn't move in with anybody that smoked cigarettes." Additionally, when asked whether petitioner ever complained about unwanted sexual advances by his cell mate, Sergeant Gibson responded that "[s]exual advances [were] never brought to my attention."

At approximately 11:25 p.m. on August 1, 1998, after being cell-mates for approximately two weeks, a fight broke out between the two inmates. The issue at petitioner's trial for this assault was not whether the assault occurred but whether petitioner was acting in self-defense. During the trial, the defense counsel argued that petitioner was acting in self-defense by warding off an unwanted, forced homosexual assault upon him by Campbell, who petitioner believed to be a homosexual, a convicted sex offender, and a HIV positive individual, while the State contended that the assault was simply an unprovoked attack by petitioner. The two inmates' versions of the assault are drastically different.

Campbell testified that at approximately 11:25 p.m., he walked to the door of the cell to smoke a cigarette. Before Campbell could light the cigarette, petitioner jumped out of bed and began hitting him in the back of the head. Initially, Campbell thought that petitioner was only punching him, but when he saw blood running down his face, he realized he was being stabbed. Campbell called out for a correctional officer. Officer Barbara Leonard responded to his call for help, called for a 10-10,³ and waited for additional correctional officers to arrive. During this time, petitioner "[c]ontinued stabbing [Campbell] in the neck, the shoulder, and down the right side of [Campbell's] back." Not until Officer Orice Custis arrived and sprayed pepper spray in the cell did petitioner stop attacking Campbell. Campbell testified and the medical report confirmed that he had "104 stab wounds."

Contrastingly, petitioner maintained that on the night in question, he was acting in self-defense. He testified that Campbell, whom he believed was a homosexual, a convicted sex offender, and HIV positive, "tried to approach [him] sexually." Petitioner testified that "[Campbell] approached me about a sexual thing, and I told him that I was not a homosexual. And after I refused, he approached me. He tried to attack me." Petitioner explained that while he was laying on his bed and Campbell was standing in the cell, Campbell began touching him and fondling him in a sexual manner. Petitioner testified that:

Mr. Campbell told me that he was a known sex offender to me. And I knew that he had AIDS. He was approaching me sexually, so that was an assault on my life. He wanted to have sex with me. I refused. He approached me, touching me. When I jumped down to try to get him to stop, he attacked me. And we fought.

Petitioner then grabbed a knife, which he kept for protection, from its hiding place by the toilet and used it in his fight with Campbell.

Petitioner was seen hitting and stabbing Campbell by two correctional officers who responded to Campbell's calls. Officer Barbara Leonard testified that at approximately 11:25 p.m. she heard someone calling "CO, CO."⁴ Upon arriving at cell 205, she found that Campbell "was bent down at the door and [petitioner] ... was just stabbing him repeatedly." She instructed petitioner to stop striking Campbell. When he ignored her, Officer Leonard "called the code" by reporting a "10-10 on delta bravo," indicating that there was a fight between inmates on the bravo wing of Building D. Officer Orice Custis responded to her call and upon arriving at cell 205, ordered petitioner to stop striking Campbell.

On the evening that the fight broke out between the two inmates, Officer Custis was the Officer in Charge of a housing unit in Building D. He testified that when he arrived at cell 205 he saw Campbell "in the fetal position right by the door. There was another inmate [petitioner] on top of him stabbing him." Officer Custis instructed petitioner to stop striking Campbell. When petitioner ignored him, Officer Custis went to the control center, got a chemical agent, ran back to cell 205,⁵ and ordered petitioner to stop striking Campbell. When petitioner continued to ignore Officer Custis's commands, Officer Custis "sprayed a short burst of chemical agent into the cell" through a small slot in the cell door at which time petitioner "dropped the weapon down and ran to the back of the cell." Officer Custis ordered petitioner to back up to the cell door to be handcuffed but he refused to cooperate. The two officers waited for more officers to arrive to the scene before they opened the door, handcuffed both petitioner and Campbell, and took them to Medical. Officer Leonard testified that the fight continued for approximately three minutes from the time she first responded to Campbell's cries for help. She also testified that she did not witness how the fight started.

II. The Trial

As we discussed, supra, defense counsel's theory of the case was that petitioner was acting in self defense by warding off an unwanted, forced sexual assault upon him by Campbell, who petitioner believed to be a homosexual, a convicted sex offender, and a HIV positive individual. On cross-examination, Campbell denied being a homosexual and stated that if he made any sexual advances toward petitioner while they were cell mates, that he did not remember making them. He further testified on cross-examination that, although he remembered pleading guilty to two second degree sex offenses and he was serving a forty-year sentence, he did not recall the specifics of the charges. It was clear that whether Campbell was a person who made sexual attacks against members of the same sex was proffered as material to the credibility of both Campbell and the defendant. On recross-examination, defense counsel again tried to elicit the specifics behind Campbell's convictions for two second degree and one third degree sexual offense:

BY MR. GUNNING:[⁶]

Q. Mr. Campbell, the victim of your sexual offense was an 11-year-old boy; is that correct?

MR. PAONE: Objection.

MR. GUNNING: Your Honor, may we approach?

THE COURT: No. I am going to overrule. He can answer the question. You opened the door. Go ahead.

THE WITNESS: I don't remember.

BY MR. GUNNING:

Q. You don't recall.

A. I don't remember nothing.

Q. You don't recall pleading guilty to sodomizing an 11-year-old boy.

A. I remember pleading guilty to second degree sex offense. That's all I remember.

Q. And you don't recall the second second degree sex offense with the same 11-year-old boy as part of that plea.

A. No. I remember pleading guilty to two second degree sex offenses. That was all I remember.

Q. And you also pled guilty to a third degree sex offense which entailed fondling the penis of that little boy, correct?

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