Morton v. State
| Decision Date | 02 September 2011 |
| Docket Number | No. 2490,2009.,Sept. Term,2490 |
| Citation | 28 A.3d 98,200 Md.App. 529 |
| Parties | Rodney Patrick MORTONv.STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Kellie M. Black (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.Sharon S. Street (Douglas Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.Panel: JAMES R. EYLER, MATRICCIANI, CHARLES E. MOYLAN, JR., (Retired, Specially Assigned), JJ.MATRICCIANI, J.
Appellant, Rodney Patrick Morton, was convicted by a jury sitting in the Circuit Court for Worcester County of a third degree sex offense and second degree assault involving his nine-year-old daughter, I.M. The circuit court sentenced appellant to two years imprisonment, with all but six months suspended. Appellant timely noted the present appeal, and raises the following two issues for our review:
I. Did the trial court violate Md. Rule 4–326, by failing to timely notify defense counsel of a note sent by the alternate juror?
II. Did the trial court err in allowing Belle Goslee, a SAFE (sexual assault forensic examination) nurse, to testify as an expert witness?
We conclude that appellant did not preserve his complaint regarding the juror's note and that the trial court did not err or abuse its discretion in admitting expert testimony by Ms. Goslee.
At trial, the State presented the testimony of I.M., Tamara Thompson, and Belle Goslee to prove that appellant digitally penetrated his daughter's vagina. Their testimony set forth the following:
Appellant, who was a friend of Thompson's husband, had been living in the Thompson house for four or five weeks, along with appellant's two children. I.M. testified that on the evening of May 22, 2009, after she fell asleep on his bed, her father carried her to her own bed in another room. As he was doing so, he put his hand inside the leg of her shorts and digitally penetrated her vagina. I.M. stated that she kept her eyes closed throughout the encounter because she was afraid and unsure of what to do. She also stated that her father had sharp fingernails, and that the penetration hurt a great deal.
Once alone in her room, I.M. was scared and began to cry. Joe Thompson—Tamara Thompson's brother, who was also a guest in the house—found her crying and brought her to her father. I.M. told her father that her “private hurt.” They called I.M.'s mother, but I.M. did not tell her about the incident that night because appellant was present.
The next morning, appellant asked Thompson to buy some cranberry juice while she and I.M. went grocery shopping because I.M. was still in pain, and he thought I.M. had a bladder or kidney infection. While out with I.M., Thompson asked the girl about her pain. Based on I.M.'s response, Thompson called I.M.'s mother. After talking to I.M., her mother immediately came to pick her up.
The following day, May 24, 2009, Belle Goslee, a SAFE nurse, examined I.M. in the Emergency Room at Atlantic General Hospital. I.M. was sullen and quiet and did not talk to Goslee throughout the examination. Goslee found what appeared to be a piece of lint on the border of I.M.'s exterior and inner labia. When she removed the material with a q-tip, she discovered a .5 centimeter tear that was red, had clean borders, and was slightly open, indicating that it was probably fresh. Based on this, Goslee opined that the tear was “consistent with the fact that there may have been digital [penetration] in that area.” According to Goslee, such a tear would be immediately painful and was not a common injury for a nine-year old child. Because I.M. would not allow the nurse to continue the examination beyond that area, complaining that it was too painful, Goslee was unable to evaluate whether there were indications of vaginal penetration.
Appellant testified on his own behalf, confirming that he carried his daughter, of whom he had custody, to her bed after she fell asleep. Although he pulled the leg of her shorts down when it rode up, he denied contacting her genital area at any time. When I.M. returned to his room about forty-five minutes later, she was crying, and she told him that her genitals hurt. Appellant called I.M.'s mother to discuss the problem, and they agreed to give her cranberry juice for a possible yeast or bladder infection, as they had successfully done with prior infections.
Based on this evidence, the jury found appellant guilty of a third degree sex offense and second degree assault. Additional facts will be provided as necessary.
Appellant first contends that the trial court erred by failing to give timely notice to defense counsel of a note sent by the alternate juror, in violation of the mandate in Maryland Rule 4–326. Rule 4–326(d) provides, in pertinent part, that “[t]he court shall notify the defendant and the State's Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication.”
It appears that a note from the alternate juror was delivered to the bailiff sometime after Ms. Thompson, who had been sequestered, entered the courtroom to testify as the second of the prosecution's three witnesses in its case-in-chief. The note explained that the alternate juror knew the individual who had come into the courtroom with Ms. Thompson because they worked together. The trial judge took no action at that time. After completing her testimony, Thompson left the courtroom. Ms. Goslee testified immediately thereafter, and the State then rested its case-in-chief. Just before appellant took the stand as the sole witness in his defense, there was a ten-minute recess. Before sending the jury out of the courtroom, the trial court gave the following instruction:
Ladies and gentlemen of the jury, as you heard that's the completion of the State's case. What we are going to do now is take about a ten-minute recess. As you go back for this recess, the case obviously is not ready for your consideration. So, as you go back, during the recess, please don't discuss among yourselves anything about the case at this point. You are not able to do that until I send you out at the completion of the case and instruct you to do so.
When the jury returned, appellant testified. Without another recess, the State presented a rebuttal witness, the court instructed the jury, and closing arguments were presented. The alternate juror was thereafter excused, and deliberations began at 12:05 p.m. The trial judge then gave the following explanation to counsel:
All right. Folks, I just wanted to let you know that at some point during the trial, that the alternate juror passed a note to the Bailiff that, in fact, he knew whoever the person was that came in with Ms. Thompson. She was accompanied by a male and he passed a note to the Bailiff that he assume[d] it was her husband and that he worked with her husband.
Seeing as this was going to be a quick trial and his services probably weren't going to be needed I let it go at that because, obviously, this isn't going to affect his decision, as he is gone. But I just wanted you to be aware of that fact.
Appellant contends that the trial court's failure to notify the parties immediately upon receiving the note constitutes a violation of the mandate in Rule 4–326(d). In his view, “[t]he proper course of action ... was to call the parties to the bench as soon as [the court] received the note,” and he argues that “the simple fact that the alternate juror was ultimately excused does not affirmatively show that [appellant] was not prejudiced[.]” In particular, he argues:
Had Mr. Morton's counsel been promptly notified of the note, she might have: 1) asked the trial court to find out who the man was; 2) asked the trial court to question the alternate juror regarding the nature of his relationship with this man; 3) asked the trial court to ask the alternate juror whether or not he had spoken to the man about the facts of this case; 4) asked the alternate juror whether he had spoken to the other jurors about any such facts; and 5) cautioned the alternate juror against discussing any such facts with other jurors.
The State counters that the court did not violate the Rule because it did not respond to the communication, that appellant received timely notice of the note, that appellant was not prejudiced by any delay in disclosing the note because the juror did not participate in deliberations, and that defense counsel's failure to object at trial to the court's handling of the note precludes appellant's challenge. We agree that the issue was not preserved for our review, and that, even if preserved, the circuit court's actions did not constitute reversible error. We explain.
Maryland Rule 8–131(a) governs the scope of appellate review and provides, in part, that “[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court.” When the trial judge informed the attorneys about the excused juror's note, defense counsel did not object or otherwise comment on the judge's decision not to communicate with the remaining jurors regarding the note. Thus, this issue has not been preserved for appeal. Even if preserved, however, appellant's argument is to no avail.
It is true that the constitutional guarantee to a criminal defendant to be present at every stage of his trial includes the right to be present whenever the court communicates with the jury in any way. See Perez v. State, 420 Md. 57, 21 A.3d 1048 (2011), and Bunch v. State, 281 Md. 680, 683–84, 381 A.2d 1142 (1978). It is also true, however, that such a communication will not be grounds for reversal if the record “affirmatively shows that such communications were not prejudicial or had no tendency to influence the verdict of the jury.” Midgett v. State,...
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