Myer v. State

• Decision Date: 10 March 2008
• Docket Number: No. 15, Sept. Term, 2007.,15, Sept. Term, 2007.
• Citation: 403 Md. 463,943 A.2d 615
• Parties: Robert Lee MYER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

943 A.2d 615

403 Md. 463

Robert Lee MYER v. STATE of Maryland.

No. 15, Sept. Term, 2007.

Court of Appeals of Maryland.

March 10, 2008.

Cynthia E. Young, Annapolis, MD, for Petitioner/Cross-Respondent.

Edward J. Kelley, Assistant Attorney General, (Douglas F. Gansler, Attorney General of Maryland, Baltimore, MD), on brief, for Respondent/Cross-Petitioner.

Argued Before: BELL, C.J., and RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, specially assigned) and DALE R. CATHELL, (Retired, specially assigned), JJ.

RAKER, J.

In this criminal case involving sexual abuse to a minor, we must decide if the trial court abused its discretion when it did not allow the defendant to recall the child-witness for additional cross-examination after the court admitted into evidence a videotaped interview between a social worker and the child-witness after the child-witness had testified. We shall hold that the trial court abused its discretion in denying petitioner the opportunity to cross-examine the child-witness after the video-tape had been admitted into evidence.

I.

Robert Lee Myer, petitioner, was indicted in the Circuit Court for Baltimore County for sexual abuse of a minor and various other sexual offenses. He waived his right to a jury and proceeded to trial before the court. He was convicted of the offenses of sexual abuse of a minor, third degree sexual offense, fourth degree sexual offense and second degree assault.

Petitioner's convictions stem from events that occurred on or about November 19 and 20th, 2004. H.C., then three years old, was staying with petitioner and his wife, Ethel Myer, at their house overnight on November 19th. When H.C.'s mother, Kelly C., picked her up the next morning, H.C. told her that Petitioner had been "bad" and indicated that he had touched her vagina. Kelly C., along with her husband David C., took H.C. to the police station in Cockeysville. Two days later, a licensed social worker at the Child Advocacy Center, Nelwyn Henry, interviewed H.C. The interview was videotaped. Petitioner was indicted by the Grand Jury for Baltimore County, and proceeded to trial in the Circuit Court.

Petitioner filed an "omnibus motion," raising, inter alia, the competency of the child. At the hearing on the motion, he argued that H.C., a child of four years and nine months of age, was not a competent witness. He raised concerns as to her ability to recollect, her ability to differentiate between the truth and a lie, and impermissible coaching. As to the admissibility of a videotape made during the social worker's interview of the young child, counsel explained as follows:

"We also believe that as part of the competency proceeding, it is important for the Court to weigh what the child says today as opposed to what she was saying a year ago in that tape and how she was saying it. And, so, we've asked the Court to review the tape for that limited ground, but we reserve the right to object to it if the State tries to bring [it] in as substantive evidence."

The Court found H.C. competent to testify.

From the outset, petitioner objected strenuously to the admissibility of the videotape. Before the trial commenced, petitioner told the court that he objected to the tape. He stated as follows:

"Your Honor, there is the argument regarding the tape. But [I'd] like to reserve on that. I want to see what the State's going to do. For all I know, they may or may not admit it, so I — we'll just wait. I'd be pleased to wait for that to get things going."

Petitioner moved in limine to exclude the testimony of the social worker as well as the videotape of the social worker's interview of H.C. His objection was twofold: that it was unreliable, and that it violated his constitutional right of confrontation. He maintained that the interview and the tape were hearsay, that the evidence was testimonial in nature, and it was therefore inadmissible based upon Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Lawson v. State, 389 Md. 570, 886 A.2d 876 (2005).

The State's position was that the social worker would be called only to lay the evidentiary foundation for the tape's admission, that the tape was not testimonial evidence and therefore it was admissible evidence. The trial court reserved ruling as to the admissibility.

H.C. testified as the State's first witness. She testified that she was on the bed with Myer while her Aunt Ethel was taking a shower. She testified that Myer touched his fingers to his lips and then to her vaginal area, on the inside of her underwear. After the State concluded its direct examination, defense counsel declined to cross-examine H.C.

The court heard testimony from several other witnesses, including H.C.'s parents, Ethel Myer, expert witnesses interpreting forensic evidence recovered from H.C.'s underwear, and Ms. Henry, the social worker. Defense counsel maintained that the social worker should not be permitted to testify at all, and objected. Ms. Henry testified about the interview she conducted with H.C., explaining to the court the protocol she uses when she conducts a "forensic interview" with a child to determine whether abuse has occurred.

On cross-examination, defense counsel elicited the facts as to how the police became involved in the case and their involvement in the interview with H.C. The interview room contained a camera to videotape the interview and the police could watch the interview from an adjoining room. There was a phone in the room and Ms. Henry structured the interview so there would be an opportunity at the end of the interview for a police observer to call with any questions he would like to ask the victim.

The State waited until the end of its case-in-chief to formally offer the videotape into evidence. Defense counsel objected again to the tape's admissibility on constitutional grounds and lack of reliability and particularized guarantees of trustworthiness. The following colloquy occurred:

"[DEFENSE COUNSEL]: ... Also, if the Court decides it wanted to admit the tape for those substantive reasons, I would like to reserve the right to at least — I'm going to consider cross-examining [H.C.] on portion of the tape, if it comes in.

"THE COURT: Well, it would have been better, even if it were beyond the scope of the State's direct, to question the child about whatever matters needed to be addressed while she was here.

"[DEFENSE COUNSEL]: Well, you know, Your Honor, I made a tactical decision, along with my client, based on what [H.C.] had to say and what I felt was best for this case for him not to cross-examine based on her testimony.

"THE COURT: Hmm.

"[DEFENSE COUNSEL]: Now, introducing some other testimony, or at least you're being requested to put in some other testimony of [H.C.], and, and I think I have the right to cross-examine her on that. However, it may very well be that the State and I can stipulate to what are really, I think, only two to three points in that tape that I would ask [H.C.] about. I, I am not and I do not want to inconvenience that child or have her get on the stand again, if I can help it...."

The court reserved ruling on the matter.

The next day, petitioner called Michael Spodak, M.D.¹ as an expert in the field of forensic psychiatry to testify that, in his opinion, because the methods used in conducting the interview were suggestive, the interview was unreliable. Defense counsel again objected to the admissibility of the tape, based on lack of genuineness and trustworthiness, and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158. L.Ed.2d 177. Without conceding the tape's admissibility, counsel reiterated to the court that if the tape was received into evidence, counsel wanted to cross-examine the child. Counsel argued to the court as follows:

"By the way, I think from my argument yesterday, I think the Court already understands that I disagree with the State when they said in their argument, I've already had my chance to cross-examine [H.C.]. I certainly had my chance to cross-examine [H.C.] based on her testimony. I've never had a chance to cross-examine [H.C.] with the information that's on this tape that has not been in evidence and is only now decided by the court, whether or not to admit."

The State argued that the tape possessed particularized guarantee of trustworthiness and that it was admissible pursuant to § 11-304 of the Criminal Procedure Article, Md.Code (2001, 2006 Cum.Supp.).²

The court ruled that the videotape had particularized guarantees of trustworthiness pursuant to § 11-304(e) and was admissible, concluding as follows:

"I've considered all of the factors under Criminal Procedure Section 11-304; I've considered the testimony, also, of Dr. Spodak and the arguments of respective Counsel, and I'm satisfied that the statement given by [H.C.] to Miss Henry does have the particularized guarantees of trustworthiness. It was given to Miss Henry as she was acting in the course of her profession as a licensed clinical social worker, interviewing the child and, therefore, I do find that the tape should be admitted into evidence."

Following a stipulation by the parties as to the testimony of an unavailable police officer, the State rested.

Petitioner renewed his request to recall H.C. for cross-examination. The following discussion took place:

"[DEFENSE COUNSEL]: Your Honor, there's still the question about, with respect to the tape, the cross-examination of [H.C.]."

"THE COURT: [H.C.] was here, and there was an opportunity to cross-examine her on competency and then as to the merits of the case. That would have been the time to question her regarding the tape. I don't know what questions you would have asked her with respect to the tape. The interview took place back in November of 2004.

"[DEFENSE COUNSEL]: Well, Your Honor, I can certainly make a proffer to you. But I, I've already made the argument yesterday. I'll make — excuse me — Friday, I'll...