In re Lavar D.

• Citation: 189 Md. App. 526,985 A.2d 102
• Decision Date: 30 December 2009
• Docket Number: No. 605 September Term, 2008.,No. 604 September Term, 2008.,No. 634 September Term, 2008.,604 September Term, 2008.,605 September Term, 2008.,634 September Term, 2008.
• Parties: In re LAVAR D., Britny C. & Ronald B.
• Court: Court of Special Appeals of Maryland

985 A.2d 102

189 Md. App. 526

In re LAVAR D., Britny C. & Ronald B.

No. 604 September Term, 2008.

No. 605 September Term, 2008.

No. 634 September Term, 2008.

Court of Special Appeals of Maryland.

December 30, 2009.

Marc A. DeSimone, Jr. (Nancy S. Forster, Public Defender, on the brief), Baltimore, MD, for Appellant.

Michelle W. Cole (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD., for Appellee.

Panel: HOLLANDER, JAMES R. EYLER and MATRICCIANI, JJ.

JAMES R. EYLER, Judge.

Ronald B., Britny C., and Lavar D., appellants,¹ were charged in the Circuit Court for Baltimore City, in separately filed delinquency petitions, with assault and related offenses, arising out of an altercation between appellants and the victims, Sarah Kreager and Troy Ennis, on a Mass Transit Administration ("MTA") bus on the afternoon of December 4, 2007. After proceedings, the circuit court, sitting as a juvenile court, found each appellant involved as to charges of assault in the first degree, assault in the second degree, conspiracy to commit assault in the first degree, disorderly conduct, and reckless endangerment. Appellants were acquitted of several other charges. Subsequently, the court placed each appellant under the control of the Department of Juvenile Services for community-based placement and other rehabilitative services, and also required each appellant to complete fifty hours of community service. On May 19, 2008, Lavar D. and Britny C. noted appeals. On May 23, 2008, Ronald B. noted an appeal. On September 11, 2008, we consolidated the cases for purposes of appeal.

In this Court, appellants raise several questions for our consideration. They are, as phrased by appellants, as follows:

1. Where appellants were charged with assault and related offenses and the judge, sitting as fact-finder, recognized that self-defense "has been raised in this case," did the judge impermissibly shift the burden of proof when he stated that "the burden of proving self defense rest[s] upon the person accused of the assault"?

2. Where defense counsel proffered that the alleged victim had testified in the disposition hearing of a co-respondent, held before the same judge sitting as fact-finder in the present case, that her children were not in custody solely because of this incident, did the court err in prohibiting defense counsel from cross-examining the victim as to whether she had a pending charge for distribution of narcotics, where the alleged sale of drugs occurred in the presence of her three children?

3. Is the evidence sufficient to establish that each appellant is a delinquent child?

4. Where the interrogating officer urged Mr. B. to "[h]help [sic] yourself" before "four [other respondents] tell me exactly what happened and exactly what you did" and emphasized that "[a]fter now is too late" did the lower court err in finding that the resulting custodial statement was not the product of police inducement?

5. [Appellants' argument # 5 was withdrawn].

6. Did the lower court err in precluding cross-examination of Mr. Ennis concerning past domestic violence of Ms. Kreager?

7. Did the lower court err in allowing the State to introduce statements by co-respondents with blank and omitted passages containing redacted statements implicating the other respondents?

8. Did the lower court err in prohibiting the accused from refreshing one victim's recollection of whether he had made prior false statements to the police when it ruled that "you can't use a document he didn't prepare to refresh his recollection"?

We shall affirm.

Factual Background

On January 31, 2008, the first day of pretrial motions hearings, appellants moved for suppression of their statements to MTA police, arguing that the statements were coerced. When the State attempted to play the taped statements for the court, counsel for Nakita M. argued that "if the State is going to play the one part," as to the voluntariness of the statement, "I would ask that the State play both parts or the whole thing." Subsequently, the following colloquy ensued, in pertinent part.

THE STATE: Your Honor, the State's intent is to, there are certain portions that the State does not believe are admissible and the State, it's planning to stop at those points. Counsel does have a copy of a transcript that indicates those stoppage points. I don't know if that's what counsel's referring to.

THE COURT: I don't know either.

* * *

THE COURT: Could you help me out, [counsel for Nakita M.]?

COUNSEL FOR NAKITA M.: Yes, I can, Your Honor. If the State intends to play one part, the State should play every part of the tape. But at this point, Your Honor—

THE COURT: Well, but the only thing that's relevant at this time is whether or not, you raised an objection, I believe, to the voluntariness.

COUNSEL FOR NAKITA M.: Yes, Your Honor.

THE COURT: So that's, that's what's relevant. So the—what's germane to this hearing is the part of the tape that goes to the issue of whether or not your client's statements were freely and voluntarily given so that's what I'm hoping we'll hear.

COUNSEL FOR NAKITA M.: Well, at this point, Your Honor, if the State is picking and choosing what they choose to let the [c]ourt hear,—

THE COURT: Well, unless, if I decide [counsel for Nakita M.] that it's not freely and voluntarily given, none of it comes in. If I, so for me to watch the whole tape means the cat's out of the bag, doesn't it? So the part you all don't want me to see I've then seen. What's at issue here is whether or not this statement is freely and voluntarily given.

* * *

(Whereupon, counsel approached the bench and the following ensued:)

* * *

THE COURT: See, I thought it [sic] I can see the whole thing if this were a jury trial. But I'm the trier of fact so once I see it, you know—

COUNSEL FOR LAVAR D.: But, Your Honor, this is the same issue I was discussing in the office. They cannot redact Bruton[²] on their own. The solution in this kind of case is to sever these trials so that if—

THE COURT: This isn't Bruton. Only, this is a—

COUNSEL FOR LAVAR D.: It is Bruton.

COUNSEL FOR NAKITA M.: It is Bruton, Your Honor.

THE COURT: [Counsel for Lavar D.], see this? I've determined this isn't a Bruton situation....

* * *

The State then again attempted to play the tape, and offered to the court what was marked for identification as State's Exhibit #2, a copy of a transcript of the tape-recorded interview, prepared by the State, with redactions. Counsel for Lavar D. objected, and the following transpired.

COUNSEL FOR LAVAR D.: This is the [c]ourt redacting Bruton issues and it is not appropriate. I mean the State's Attorney's Office. The State's Attorney's Office is not a licensed, certified transcription. We don't know if they've transcribed out any exculpatory evidence. This is not a solution to get rid of the Bruton issues which are the implication by certain respondents of other respondents. It is not appropriate. I suggested it at the arraignment. I have suggested it at every single hearing since because severance of the trials is the remedy.

THE COURT: [Counsel for Lavar D.], and you didn't get severance of trials, okay? So that horse is dead. Subject to the motion. Thank you. Continue.

* * *

COUNSEL FOR NAKITA M.: ... [W]hat the State has requested be introduced was transcribed by a person in the State's Attorney's Office. I would ask that it not be introduced into evidence.

* * *

THE COURT: I haven't looked at the transcript....

* * *

(Whereupon, a taped interview was played for the [c]ourt.)

* * *

During the playing of the tape, counsel again objected to the State's starting and stopping of the tape, and the following transpired, in pertinent part. COUNSEL FOR LAVAR D.: [T]his is [the State's] version of the tape. And that's where they're stopping and starting.... The evidence is the tape in its entirety. The evidence, if it has Bruton issues, should have been severed. The State doesn't get to come in here and stop and start like this. Just like everyone said and then put it down on what they're claiming is some sort of official transcript which they typed up in their office based on their version of things.

* * *

THE COURT: But didn't you get [the State's redactions]?

COUNSEL FOR NAKITA M.: I got it.

* * *

COUNSEL FOR NAKITA M.: ... [B]ut in redacting it for the purpose of the motion ... why stop it and start it, stop it and start it. You're talking about voluntariness, stop it and start it. Who's to say that one of the parts that you missed—

THE COURT: Oh, I thought the only part, when you said play the whole thing I then said play the whole thing with the exception of the part that they said they could redact which incriminates other people.

* * *

THE COURT: I mean, well not redact but skip over.

* * *

THE STATE: I presented to counsel each of the set of statements. I told them that they had been redacted by Bruton.

* * *

COUNSEL FOR LAVAR D.: I don't want their version of events. I want the tape.

* * *

THE COURT: But you got the tape.

* * *

THE COURT: But when you've got the tape, you can do your own version.

COUNSEL FOR LAVAR D.: Then I want my whole tape played, every single bit.

THE COURT: Then when we come to your tape. Anything else?

COUNSEL FOR SHAMIRA B.: Your Honor, I just want to note, if I may, the continuing objection to the stopping and starting and the redaction of the tape.

* * *

Over continuous objections, the taped interview was played, with the State skipping portions of it. At some point, counsel for Shamira B. objected again on the basis that "[t]here were so many people [in Nakita M.'s tape-recorded statement] about corespondents...." Subsequently, a bench conference was held, and the following transpired, in relevant part.

COUNSEL FOR SHAMIRA B.: Your Honor, the statement I'm objecting to....

* * *

COUNSEL FOR SHAMIRA B.: "I don't know," in response to a question "who kicked the young lady." That was played in open court. Your Honor heard it. I object to it on grounds...