Lawson v. State

Decision Date10 January 2005
Docket NumberNo. 1914,1914
Citation865 A.2d 617,160 Md. App. 602
PartiesJoseph LAWSON v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Eve L. Brensike (Nancy S. Forester, Public Defender, on brief), for appellant.

Devy Patterson Russell (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel EYLER, JAMES R., KRAUSER, MEREDITH, JJ.

KRAUSER, J.

Appellant, Joseph Lawson, was charged with assaulting and raping his seven-year-old cousin, Nigha P., on at least two separate occasions:1 while he was staying with Nigha's family in October or November of 2001 ("November 2001 incident"), and while he was babysitting Nigha's older brother at Nigha's home in June of 2002 ("June 2002 incident"). Neither incident, however, was reported by Nigha until July 2002, when she informed her mother of both.

Appellant was subsequently arrested and charged with, among other crimes, two counts of second-degree rape, two counts of attempted second-degree rape, and two counts of second-degree assault.2 At his trial before a jury in the Circuit Court for Prince George's County, the state presented three witnesses: Nigha, then eight years old, her mother, and a county social worker, who had interviewed Nigha shortly after this matter came to light. Both Nigha's mother and the social worker testified only as to what Nigha purportedly told them. While Nigha's testimony was largely consistent with the social worker's testimony as to the November 2001 incident, it contradicted her mother's and the social worker's testimony as to the June 2002 incident, in several important respects.

No physical evidence was introduced, although Nigha received a full medical examination following her revelations, nor was any other corroborative evidence presented. The state concluded its case by, among other things, hinting that appellant was a "monster," and implying that the child of appellant's cousin might also be in danger. But no objection was made nor was any mistrial sought on those grounds.

After the jury convicted appellant of all pending charges, the circuit court sentenced him to a term of fourteen years imprisonment for each of the two rapes; the two sentences were to run concurrently with each other.

Requesting that we now reverse his convictions, appellant claims that the testimony of the social worker should not have been admitted under Maryland Criminal Procedure § 11-304, that the testimony of Nigha's mother should not have been admitted under Maryland Rule 5-802.1, that Nigha's testimony standing alone was not legally sufficient to support any of appellant's convictions, and that the state's closing remarks to the jury were so inflammatory as to warrant a reversal of his convictions by this Court.

BACKGROUND

Twenty-seven-year-old Joseph Lawson was accused of raping and assaulting Nigha P., sometime between October 1, 2001 and November 30, 2001, and then in June 2002. When these two incidents occurred, Nigha was living at 1205 Kayak Avenue in Prince George's County, with her mother, Tanya Renee Thomas; her brother, Kristopher, who, at the time of trial was eleven years old; her grandparents; and appellant, who is her cousin. Although appellant moved out of that address sometime after the first assault, he continued to "visit or watch" Nigha and her brother.

Nigha did not inform her mother of the abuse until sometime in July 2002. On July 15, 2002, Nigha's mother notified the police that appellant had sexually assaulted her daughter. Two days later, on July 17, 2003, Nigha underwent a physical examination at the Prince George's Hospital Center.3 And the day after that, on July 18, 2002, Nigha was interviewed by Jennifer Cann, a social worker employed by the Prince George's County Department of Social Services, Child Advocacy Center.

At trial, Nigha testified that, when the first incident occurred, she was sharing a bedroom with her older brother, nine-year-old Kristopher. The children slept in bunk beds: Kristopher slept on the top bunk and Nigha on the bottom bunk. On the night of the November 2001 incident, Nigha was lying awake in her bed, watching television while her brother slept. Appellant, she testified, entered her bedroom. Exposing his "private part" to her, he asked if she knew what it was. When she said "no," he got into bed with her and, while she was lying down, tried to "stick his private part" into hers, penetrating her "a little bit." After she observed "white stuff" come out of his private part, which she described as a "big long stick," "he went to the bathroom, he got a rag and he told [her] to wipe it up." After she did, he "told [her] not to tell no one." The next incident occurred, approximately eight months later, in June 2002.

Nigha testified that, one day in June 2002, she returned home from school to find appellant alone in the house with her brother, Kristopher. After telling Nigha that he wanted to speak with her about an "incident" that occurred that day, appellant instructed her brother to "look out for" their grandmother, as he and Nigha walked into her mother's bedroom. Once inside the bedroom, appellant, according to Nigha, unsuccessfully attempted to pull down her pants and then told her that she could have some of his soft drink, if she would let him touch her with his private part. She testified that she told him to "stop" and then left the room. She did not, she admitted, see his private part that day. Later, at trial, she recalled talking to a social worker about the incident, but she could not remember telling the social worker that she did see his private part or that "he put a plastic thing on it."

Nigha's mother testified next. Over defense counsel's objection, Nigha's mother stated that, in July 2002, Nigha told her that, when Nigha and appellant were in the living room in June, 2002, he "took his private part," which had a "plastic thing" on it, and "put it in her private part," while the two of them were on a living room couch.

The third and last witness to testify was Jennifer Cann, a social worker employed by the County Department of Social Services. Her job, she testified, entailed "investigat[ing] allegations of child sexual abuse," and "[t]o come to a determination or disposition as to whether or not the abuse occurred." On July 18, 2002, she interviewed Nigha at one of the Prince George's County Department of Social Services buildings. Over defense counsel's objection, Cann testified that, after establishing a rapport with Nigha, she asked a series of non-leading questions to get "information to come from Nigha naturally."

Cann then testified as to what Nigha told her concerning the November 2001 and June 2002 incidents. A detailed account of her testimony will be given when we take up the issue of the admissibility of Nigha's statement to her later in this opinion. Suffice it to say that her testimony was consistent with Nigha's as to the November 2001 incident and was consistent with the testimony of Nigha's mother as to the June 2002 incident. The testimony of both women, however, was inconsistent with Nigha's as to what occurred in June of 2002, as Nigha testified that she did not have sexual intercourse with appellant at that time.

The state then rested, and appellant took the stand. He denied that he ever raped Nigha or touched Nigha in an inappropriate manner.

When the trial ended, the jury found appellant guilty of both incidents, the November 2001 and the June 2002 incident, convicting him of two counts of second-degree rape, two counts of attempted second-degree rape, and two counts of second-degree assault.

I.

Appellant contends that the circuit court "erred when it permitted a county-employed social worker[,] who was a stranger to the complaining witness[,] and who interviewed the complaining witness during a police investigation[,] to testify under Criminal Procedure § 11-304 as to the complaining witness's description of the alleged sexual assaults." The social worker, Jennifer Cann, testified as to what Nigha told her concerning the incidents of November 2001 and June 2002.4 Cann stated that Nigha told her that, one night in October or November of 2001, she was lying in bed watching television, when appellant exposed himself to her and asked her if she "knew what it was," apparently referring to his penis. When Nigha said she did not know what it was, "appellant started putting his private part in [her] private part." Nigha told Cann that she saw "white stuff come out of the front of his private part [,]" whereupon appellant "went in the bathroom and got a rag." After "wip[ing] off the side of the bed", appellant, Nigha informed Cann, "wiped her private part off" and said to her, "Don't tell nobody."

Cann further testified that Nigha confided to her that, one afternoon in June of 2002, she arrived home from school to find appellant and her brother in the living room eating Popeye's chicken. Appellant "told her he needed to discuss something with her in the bedroom, her mother's bedroom, and she went in there with him." When appellant "told her that he wouldn't give her any chicken unless she let him touch her," Nigha "said `no' and left the room." Later, according to Cann, when both Nigha and appellant were in the living room, appellant "then told her brother to go across the street and get some chips." After he left, appellant "placed her in a chair," knelt in front of her, and "put a plastic thing on his private part right before he put his private part in her private part." Cann testified that Nigha "described him pushing it in there, referring to his private parts, and that he ... had his private part in her private part until her brother came back to the house and knocked on the door."

That testimony, appellant claims, ran afoul of Md.Code (1957, 2001 Repl.Vol.), § 11-304(c) of the Criminal Procedure Article ("C.P."), which provides:

Recipients and offerors of statement — An out of court statement may be
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