Holmes v. State, 2575, Sept. Term, 2016

• Decision Date: 05 April 2018
• Docket Number: No. 2575, Sept. Term, 2016,2575, Sept. Term, 2016
• Citation: 236 Md.App. 636,182 A.3d 341
• Parties: Cloyd James HOLMES v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

236 Md.App. 636

182 A.3d 341

Cloyd James HOLMES

v.STATE of Maryland

No. 2575, Sept. Term, 2016

Court of Special Appeals of Maryland.

April 5, 2018

Submitted by: Michael T. Torres (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Submitted by: Peter R. Naugle (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Deborah S. Eyler, Graeff, Paul E. Alpert (Senior Judge, Specially Assigned), JJ.

Alpert, J.

In this appeal, we consider whether a parent's surreptitious use of her cell phone to record a face-to-face conversation with her child may be used as evidence in a criminal trial of a third party. We shall hold that in the circumstances presented here, the recording was prohibited under the Maryland Wiretap Act, Md. Code (2013 Repl. Vol., 2017 Supp.), § 10–401 et seq. of the Courts and Judicial Proceedings Article ("CJP"). Moreover, we conclude that even if we were to recognize a narrow "vicarious consent doctrine" under which a parent may be deemed to have consented to a recording on behalf of his or her child, the recording in this case would not be admissible because appellant failed to establish that it was made in good faith for the benefit of the child.

A jury in the Circuit Court for Montgomery County convicted Cloyd James Holmes, appellant, of sexually abusing an eight-year-old girl and a related third-degree sex offense. Appellant was sentenced to a total of twelve years, with all but six years suspended, plus five years of supervised probation. He presents three questions for our review:

1. Did the circuit court err in preventing the defense from introducing a cell phone recording on the grounds that the recording violated Maryland's wiretap statute?

2. Did the circuit court err in limiting the defense's questioning of the lead detective?

3. Did the circuit court err in excluding other relevant evidence?

Concluding there was no error or abuse of discretion, we shall affirm appellant's convictions.

FACTS AND LEGAL PROCEEDINGS

Because appellant does not challenge the sufficiency of the evidence supporting his convictions, our summary of the trial record provides context for the issues raised in this appeal. See Washington v. State , 180 Md. App. 458, 461 n.2, 951 A.2d 885 (2008).

The charges against appellant stemmed from a single incident of sexual assault reported by B.B., who is the daughter of appellant's girlfriend, Ashley B. At the time of the incident, appellant and Ashley B. lived in an apartment, together with the couple's one-year-old son, eight-year-old B.B., and her five-year-old brother. The State's prosecution theory was that while B.B. was sleeping in her bed one night, appellant woke her; touched her vagina with his mouth, finger, and penis; then asked her to touch his penis. In support, the State presented testimony from B.B. as well as individuals to whom she reported the assault, including three family members, a police detective, and a pediatrician.

B.B. recounted that the incident occurred between Christmas 2015 and New Year's Day. That night, while the rest of the family was asleep in other bedrooms, appellant entered her bedroom wearing a robe and "went under [her] cover for the tablet," which was "a pink Kindle." He pulled down her pajama pants and underwear, put a pillow over her face, got on his knees between her legs, touched his "private part" to her private part, used his index finger to touch the outside of her private part, and "licked" her private part. She used an anatomical drawing to identify her vagina as her private part and appellant's penis as his private part.

When appellant asked her to go to the living room, she put her clothes back on and did so. B.B. testified that appellant then took a "vinegary color" substance out of a little glass cup, put it on his "private part," "asked [her] to rub it[,]" and rubbed it "[a] little bit" with his own hand. When she refused to touch his private part, he asked again. After she said no a second time, appellant "said I'm sorry" and asked if she wanted to play on her tablet. The next day, when B.B. got home from school, appellant repeated his apology and warned her that if she told anyone, there "will be consequences," which "scared" her because she understood him to mean that "[s]omething bad will happen."

Around Valentine's Day, B.B. reported the incident to her grandmother and great-aunts. That day, she first told her Aunt Alandria (also known as Aunt Langie), who then called Aunt Eboni (also known as Aunt Bebe) and her grandmother Pamela Walters. All three women testified that on February 13, 2016, each individually spoke with B.B., who recounted the incident consistently during separate conversations. Pam Walters testified that B.B. told her that "after Christmas" appellant

came into my room looking for the tablet. So then he went to pull my underwear down, but I was pulling them back up. Then he got them down. He took them off, and she said he played with me down there, then he kissed me down there, and he tried to use his finger, but his fingernail was hurting me, so I started to cry. And she said he took a pillow and he put it over her face to muffle her crying, and then she said he went and got some type of ointment and put it on his penis and tried to get her to touch it, but she was reluctant to touch it. But she said he attempted to bend her over, but she wouldn't bend when he was attempting to.

B.B. talked to a police officer the day after she reported the abuse to her family members. Montgomery County Police Detective Leonor Diaz, the lead investigator assigned to the case, interviewed B.B. Later, B.B. also recounted the incident to Dr. Evelyn Shukat, a pediatrician who testified at trial as an expert in child abuse reporting and evaluation.

On cross-examination, B.B. testified that she talked to her mother after coming home from the police station. When her mother asked why B.B. did not first tell her about the incident, the child answered, "because I was scared." Although she denied asking her mother "what would happen if ... [she] had lied in [her] statement to the police," she then recalled that she asked, "will I go to jail if I lie?" B.B. later explained on re-direct that she asked her mother, "if I ever lie about something, will I have to go to jail. And then she said I won't." B.B. also recalled that during that conversation, Ashley B. went to the kitchen cupboard, "took out the cup" that appellant used during the incident, and asked "was this the cup that the stuff was in and [B.B.] said it was." When her mother asked "if it was just a dream," B.B. "said it wasn't."

On cross-examination, B.B. also acknowledged that during a Christmas party at her grandparents' house around the time of the incident with appellant, there was a heated argument between appellant and her aunts, after appellant told B.B. that if she took another piece of cake, he would "drop kick it out of [her] hand."

Appellant, testifying in his defense, denied any sexual contact with B.B. He suggested that after the Christmas Day altercation, B.B. fabricated the incident with the encouragement of her grandmother and aunts.

By Christmas 2015, appellant and B.B.'s mother had been in a relationship for two to three years. The "blended family" lived in a three bedroom apartment in Silver Spring. Although B.B. initially told him that he would never be her father, they eventually grew closer, and he read books to her, helped her with homework, and watched television together.

But there was friction with Ashley B.'s aunts and mother, which was evident in the Christmas Day 2015 altercation at the residence of Ashley B.'s aunt, Alandria Walters. During that family gathering, appellant admitted that he told B.B. that if she took more cake, he would knock it out of her hand. Alandria Walters yelled at him, saying, "You're not even her real father." Appellant, who had been drinking, became upset, spoke with Pam Walters and her husband, then left.

Ashley B., mother of B.B., testified in appellant's defense. According to both Ashley B. and appellant, when B.B.'s school break began around December 21, the child stayed with her grandmother, Pam Walters, and did not return home to sleep until after New Year's.

As detailed below in Part I of our discussion, after B.B. reported the incident, Ashley B. used a "voice recorder" application installed on her cell phone to record a conversation she had with B.B. Ashley B. told Detective Diaz about the recording but never sent it to her. When police came to search her home, Detective Diaz took Ashley B.'s cell phone into another room. When the phone was returned, the recording was no longer stored on it. But by then, Ashley B. had sent the recording to appellant's mother and his defense lawyer.

Although the trial court granted the State's motion to exclude that recording, Ashley B. testified about her conversation with B.B. According to Ashley B., her daughter discussed the incident, then asked "what would happen to her if it really didn't happen," and asked whether she would go to jail if she lied, while looking down and away from her mother. Ms. B. told her that she did not know what would happen. Based on that conversation, Ashley B. did not believe B.B.'s accusation of appellant. But she did not ask B.B. whether she lied.

We shall add facts in our discussion of the issues raised by appellant.

DISCUSSION

I. Exclusion of Cell Phone Recording

Under Md. Rule 5–104(a), admissibility of evidence is preliminarily decided by the trial court. Appellant contends that the trial court erred or abused its discretion in excluding Ashley B.'s recording of her oral conversation with her eight-year-old daughter, B.B. It was undisputed that the recording was made by Ashley B. using an application (commonly referred to as an "app") on her cell phone, without her daughter's knowledge or permission.

The State moved to exclude the recording on the grounds that it was both inadmissible hearsay and an unlawful...