Rainville v. State

• Decision Date: 01 September 1991
• Docket Number: No. 54,54
• Parties: Robert Paul RAINVILLE v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 398

328 Md. 398

614 A.2d 949

Robert Paul RAINVILLE v. STATE of Maryland.

No. 54, Sept. Term, 1991.

Court of Appeals of Maryland.

Nov. 6, 1992.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Sarah E. Page, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

McAULIFFE, Judge.

In a difficult case involving charges that the defendant raped and otherwise sexually abused a seven-year-old girl, a State's witness testified that several weeks after the alleged assault the defendant was "in jail for what he had done to Michael [the victim's nine-year-old brother]." Defense counsel, who had earlier filed a motion in limine asking that the court order the prosecutor and the State's witnesses not to make any reference to charges or incidents involving the defendant and Michael, moved for a mistrial. The trial judge denied the motion, and instructed the jury to disregard the statement. The defendant appealed, claiming error in the denial of his motion in limine and in the refusal to grant a mistrial. The Court of Special Appeals affirmed in an unreported opinion, and we granted the defendant's petition for certiorari.

I.

In June, 1989 the defendant rented a room from Elisa Turner (the mother) and her fiance, Murphy Miller, in a home in Berlin, Maryland. In addition to the defendant, the home was occupied by the mother and Murphy, and the mother's three children, Michael, age nine; Margaret (Peggy), age seven; and Tyler, a baby. At about 6:00 p.m. on the evening of 15 June 1989, Michael and Peggy asked their mother if they might go into the defendant's room to watch television with him. The mother obtained the defendant's permission and allowed the visit. According to the testimony of Peggy, at some later time the defendant lifted her from the floor onto his bed, placed his penis in her mouth, and then successively in her vagina and in her rectum. ¹ She said Michael was initially asleep on the floor, but awoke when she screamed because the defendant had placed his penis in her vagina. She testified that the defendant first threw a pillow at Michael and then a knife, and that the defendant threatened to "chop off" the heads of her mother and her brothers. According to the testimony of her mother, Peggy left the defendant's room at about 9:00 p.m., kissed her mother goodnight, and retired to her own room; Michael left the defendant's room about one-half hour later and went to his room.

Peggy first told her mother about the assault approximately three weeks later. Her mother took her to the Maryland State Police Barrack in Salisbury, and then to Dr. Stephen Cooper for an examination. The defendant was charged with second degree rape, two counts of second degree sexual offense, child abuse, assault, and battery. The record indicates that just prior to Peggy's first report of the assault, the defendant was arrested for child abuse, third degree sexual offense, and battery of Michael. The details of the alleged assault of Michael do not appear in this record, except that the incident was also alleged to have occurred in June, 1989.

Separate indictments were returned against the defendant for the charges involving Peggy and those involving Michael. The State filed a motion to consolidate the indictments for trial. The defendant objected, contending he would be seriously prejudiced by the joint trial of charges relating to separate and distinct offenses. Judge Theodore R. Eschenberg of the Circuit Court for Worcester County denied the State's motion.

Thereafter, the defendant filed a motion in limine, arguing that evidence of alleged offenses involving Michael would be inadmissible in the prosecution involving Peggy, and requesting that the court "pass an order instructing the State's attorney and the State's witnesses in [the case involving Peggy] not to testify in their case in chief concerning any alleged incidences (sic) involving [Michael's case]." This motion was not heard until the case was called for trial before Judge Richard B. Latham and a jury. Judge Latham declined to grant the motion, stating that he would rule on evidentiary questions if and when they arose.

The "blurt" of testimony concerning the defendant's alleged assault upon Michael occurred when the mother was testifying about Peggy's first complaint of the assault. The prosecutor's question was appropriate--the mother's response was not.

PROSECUTOR: Now, if you would, describe for the gentlemen of the jury Peggy's demeanor when she told you about the incident?

THE MOTHER: She was very upset. I had noticed for several days a difference in her actions. She came to me and she said where Bob was in jail for what he had done to Michael that she was not afraid to tell me what had happened.

Defense counsel immediately objected and moved for a mistrial at a bench conference which followed, arguing that the defendant's case had been "hopelessly prejudiced." The trial judge denied the motion, but said he would give a curative instruction, and asked whether the defendant would prefer that the instruction be given immediately or only during final instructions to the jury. Defense counsel asked for an immediate instruction, and the judge instructed the jury as follows:

THE COURT: Gentlemen of the jury, the witness just alluded to some other incident that has nothing to do with this case, and you should not in any way consider what she has said, and you should put it out of your mind and forget about it. Does anybody have any questions about that? Okay. Let's go.

The jury acquitted the defendant of rape and of the charge of second degree sex offense involving anal intercourse, but convicted him of the second degree sex offense of fellatio, and of assault and battery. The defendant was sentenced to 15 years imprisonment, and this appeal resulted.

II.

The State contends that the question of whether the trial court erroneously failed to grant the defendant's motion in limine is not reviewable by this Court. The State maintains initially that the trial court's deferral of the matter until such time as specific evidentiary questions might arise at trial did not constitute a ruling subject to review. Moreover, to the extent that the court's action may be viewed as a ruling, the State argues that under this Court's decision in Prout v. State, 311 Md. 348, 535 A.2d 445 (1988), a court's ruling on a motion in limine is not itself subject to review, but rather the admission or exclusion of the evidence is what is to be reviewed for error. See also Eiler v. State, 63 Md.App. 439, 445, 492 A.2d 1320 (1985) (motion in limine is a procedural step, not a ruling on evidence; "neither the grant nor the denial of such a motion constitutes reversible error").

The State's argument on this issue fails to differentiate the part of the motion which sought to exclude other crimes evidence from the part which requested an instruction to the State's witnesses not to discuss the other charges. The trial court deferred ruling on the former, preferring to decide any questions of admissibility, if and when they arose, in the context of evidence already adduced and of any proffers made. The defendant does not challenge that decision. However, by not instructing the State's witnesses to avoid testifying about the other allegations, at least until the court ruled otherwise, ² the trial judge effectively denied the motion as to that request. It is this denial that petitioner asks this Court to review.

Maryland Rule 4-323(a) governs objections to the admission of evidence; subsection (c) applies to "any other ruling or order" and is therefore the controlling provision in this case:

(c) Objections to Other Rulings or Orders.--For purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court. ...

Maryland Rule 4-323(c) (emphasis added). See also Prout v. State, supra, 311 Md. at 357, 535 A.2d 445 (subsection (c) of Rule 4-323 governs "a 'ruling or order' other than one admitting evidence"). The defendant filed a written motion requesting an instruction to the State's witnesses, and the defendant's attorney noted that the court and counsel had discussed the motion off the record. It is clear that the defendant had made known to the court the action he desired the court to take. It is equally clear that the judge's failure to instruct the State's witnesses before trial was necessarily a decision denying a portion of the defendant's request. The question of whether the trial court erred in failing to instruct the State's witnesses as requested is therefore properly subject to review by this Court.

The defendant contends that the trial court's failure to instruct the witnesses as requested was error because as a result of "favor[ing] a 'wait-and-see' approach over a simple and prudent prophylactic measure, irreparable harm was done." The defendant argues that the ruling and instruction requested in his motion are consistent with this Court's view of the function of a motion in limine:

[T]he real purpose of a motion in limine is to give the trial judge notice of the movant's position so as to avoid the introduction of damaging evidence which may irretrievably infect the fairness of the trial.

Prout v. State, supra, 311 Md. at 356, 535 A.2d 445.

Similarly, the defendant cites a number of cases demonstrating that "in a variety of contexts courts have approved in limine orders directing witnesses to avoid specified testimony." See, e.g., Cook v. Philadelphia Transp. Co., 414 Pa. 154, 199 A.2d 446, 449 (1964) (court properly instructed witnesses not to...