Lawson v. State

• Decision Date: 28 November 2005
• Docket Number: No. 12,12
• Citation: Lawson v. State, 389 Md. 570, 886 A.2d 876 (Md. 2005)
• Parties: Joseph LAWSON v. STATE of Maryland.
• Court: Maryland Supreme Court

886 A.2d 876

389 Md. 570

Joseph LAWSON v. STATE of Maryland.

No. 12, September Term, 2005.

Court of Appeals of Maryland.

November 28, 2005.

Eve L. Brensike, Assigned Pro Bono Counsel, University of Michigan Law School, Ann Arbor, Nancy S. Forster, Public Defender, Michael R. Braudes, Asst. Public Defender, all on brief, for petitioner.

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

Russell P. Butler, Tracy Delaney, Upper Marlboro, Thomas P. Steindler, Mark H. Churchill, Eric S. Johnson, McDermott, Will & Emery, LLP, Washington, DC, Amicus Curiae.

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

CATHELL, J.

On July 8, 2003, Joseph Lawson, petitioner, was convicted by a jury in the Circuit Court for Prince George's County on two counts of second-degree rape, two counts of attempted second-degree rape, and two counts of second-degree assault. He was thereafter sentenced by the trial court to fourteen years in prison. Petitioner appealed the convictions to the Court of Special Appeals challenging, among other things, the admissibility of a social worker's testimony at trial and the propriety of the prosecutor's closing arguments. On January 10, 2005, the intermediate appellate court reversed one count of second-degree rape and attempted second-degree rape, and affirmed the remaining convictions. Lawson v. State, 160 Md.App. 602, 632, 865 A.2d 617, 635 (2005).

Petitioner filed a petition for writ of certiorari on February 22, 2005 and we granted certiorari on May 12, 2005. Lawson v. State, 387 Md. 122, 874 A.2d 917 (2005). Petitioner presents the following questions for our review:

"1. Did the Court of Special Appeals err when it held that a county-employed social worker who was a stranger to the child complainant and who interviewed the child as part of a police investigation was acting `in the course of [her] profession' under Maryland Criminal Procedure § 11-304 rather than as a law enforcement agent?

"2. Did the Court of Special Appeals err when it deemed harmless the State's impermissible and inflammatory closing arguments to the jury, even though that court recognized that the State's arguments unconstitutionally shifted the burden of proof to Petitioner, violated the prohibition on `Golden Rule' arguments, and impermissibly suggested that Petitioner would commit similar crimes on another specific victim if he was acquitted?

"3. In a case in which Petitioner was convicted of two sexual assaults, did the Court of Special Appeals impermissibly dilute the legal definition of harmless error when it held that the erroneous admission of testimony from the complainant's mother about the second alleged incident only infected Petitioner's convictions for that incident, even though the mother's testimony also had the `carryover effect' of bolstering the credibility of the complainant's social worker, who testified about the first alleged incident?[¹]

"4. Did the Court of Special Appeals err when it held that an out-of-court accusation of rape by a child complainant who later testifies at trial and repudiates that out-of-court accusation is sufficient, without any independent corroboration, to convict the defendant?" [Footnote added.]

We hold that the testimony of the social worker was admissible under Md.Code (2001, 2005 Supp.) § 11-304 of the Criminal Procedure Article ("C.P."). We further hold that the cumulative effect of the prosecutor's improper remarks during closing argument and rebuttal was prejudicial, that the evidence presented did not overcome the prejudice created, and absent any attempts by the trial court to cure such prejudice the admission of the remarks constituted plain error. Finally, we hold that there was no error by the Court of Special Appeals in its corroboration ruling.

I. Facts

Sometime in July 2002, Nigha P., a seven-year-old girl, told her mother that petitioner, a twenty-seven-year-old man, had sexually molested her. On July 15, 2002, the mother reported to the police what Nigha had told her. Two days later, Nigha was examined by a physician at the Prince George's Hospital Center. On July 18, 2002, Jennifer Cann interviewed Nigha. Ms. Cann was a social worker employed by the Prince George's County Department of Social Services. Nigha, her mother, and Ms. Cann testified for the State at trial.

Nigha's testimony at trial described two separate instances in which the petitioner molested her. The first incident occurred sometime in October or November 2001. Nigha testified that petitioner, her mother, her grandparents and her brother lived with her during that period. Nigha and her brother shared a room and slept in bunk beds. Her brother slept on the top bunk and she slept on the bottom. According to Nigha, petitioner came into her room one night while she was watching television and her brother was sleeping. He then showed her his "private part," which she described as a "big long stick." He asked her if she knew what it was and she said "I don't know." He then climbed onto the bed with her, pulled down her pants and "tried to `stick his private part' into hers, penetrating her `a little bit.'" Lawson, 160 Md.App. at 610, 865 A.2d at 622. Nigha stated that petitioner did not put her on top of him and that he did not get on top of her. Nigha saw some "white stuff" come out of petitioner's private part. Petitioner went to the bathroom "got a rag," had Nigha clean up the "white stuff" from the floor and told her not to say anything. Nigha went to sleep after petitioner left the room. She did not tell anyone until July 2002.

The second incident took place one afternoon in June 2002. Nigha came home from school while petitioner and her brother were eating. At that time, petitioner no longer lived with them. Nigha testified that petitioner took her to her mother's room and asked her brother to look out for their grandmother. Nigha stated that petitioner told her that she could have some of his soft drink if she let him touch her in her "private part." She refused and he tried to pull down her pants. She then told him to stop and walked out of the room. Nigha testified that she did not see his "private part" that day.

Nigha's mother, Ms. Thomas, testified next. Her testimony was consistent with Nigha's account of the first incident of sexual abuse. Ms. Thomas's testimony regarding the second incident, however, was inconsistent with Nigha's account. According to Ms. Thomas, Nigha had told her that she did see petitioner's "private part" during the second incident and that he had a "plastic thing" on it. The final witness for the State was Ms. Cann. On a pretrial motion, petitioner's counsel had argued that Ms. Cann should not be allowed to testify as to Nigha's statements to her during the interview. The pre-trial judge denied petitioner's motion. At trial, petitioner was granted a continuing objection with regards to Ms. Cann's testimony about Nigha's out-of-court statements, preserving the issue for appeal. Ms. Cann's testimony was consistent with Nigha's account of the November 2001 incident. She also testified that Nigha had told her that there were two other occasions in which petitioner had abused Nigha. According to Ms. Cann, Nigha said that the day after the first incident, petitioner again placed his "private part" inside of hers. As to the June 2002 incident, Ms. Cann testified that Nigha had told her petitioner had pulled her pants down and, again, placed his "private part" inside hers.

After Ms. Cann's testimony the State rested. The petitioner took the stand on his own behalf and denied all the accusations against him. The defense then rested its case and both sides prepared for closing arguments. During the State's closing, the prosecutor made the following statements to the jury:

"[State:] When I was thinking over what I was going to say to you to try to convince you that justice should be served here, I started thinking about my eight-year-old niece, and if my eight-year-old niece came to me and told me —

[Defense:] Objection.

The Court: Sustained.

[State]: I want you to put yourself in the shoes if you have an eight-year-old niece, seven-year-old niece, or you have an eight-year-old daughter, seven-year-old daughter, a cousin, a close family friend, and this child comes to you and says that someone that you know sexually molested them. What would go through your minds?

Well, I would urge you to think about certain things. One, motive. What is the motive here? Have you heard any motive? Did the defense give you a motive as to why Nigha would be lying?" [Emphasis added.]

The defense made a general objection which was summarily overruled. The State then implored the jurors again to place themselves in the shoes of Nigha's mother: "I urge you, while you are putting yourself in the shoes of someone who has had a child come to them and tell them this, what else do you look at? Well, again, you would look at details." [Emphasis added.]

The defense presented its closing argument. It was followed by the State's rebuttal, which included the following statement:

"What does a monster look like? Looks like different things to different people. What does a sexual molester look like? He looks like someone you know. He looks like your uncle, your brother, your sister, your cousin. It's possible. But there is no certain way that someone who molests children looks. But they do ingratiate themselves. They make themselves indispensable. They are friendly, always there to watch.

"Not everyone is like that, but please don't misunderstand me because the important point here is that a child molester looks like anybody else. That's why they are able to do what they do, because they look like all of us, and we trust.

"When I said that they ingratiate themselves, they make themselves indispensable. They make themselves helpful. The defendant told you, himself, he is paying for an apartment and h

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