Stabb v. State

Decision Date22 November 2011
Docket NumberNo. 2,Sept. Term,2011.,2
Citation423 Md. 454,31 A.3d 922
PartiesKenneth Gerald STABB v. STATE of Maryland.
CourtMaryland Court of Appeals

31 A.3d 922
423 Md. 454

Kenneth Gerald STABB
STATE of Maryland.

No. 2

Sept. Term


Court of Appeals of Maryland.

Nov. 22, 2011.

[31 A.3d 923]

Mark Colvin, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Petitioner.

Brenda Gruss, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.


[423 Md. 456] This case concerns the propriety of an “anti-CSI effect,” or “ no duty,” jury instruction, given before closing arguments in a criminal trial, that instructed the jury that there is “no legal [423 Md. 457] requirement that the State utilize any specific investigative technique or scientific test to prove its case.” We addressed a similar issue recently in Atkins v. State, 421 Md. 434, 26 A.3d 979 (2011), and revisit it here primarily to provide additional guidance to Bench and Bar when confronted with requests (usually from the State) for this (or a similar) type of jury instruction seeking to avert the purported “CSI effect.” Since filing our opinion in Atkins, there have been published or made available no additional empirical studies that convince us that a “CSI effect” even exists, and, if it does, whether the effect is likely to influence unduly the final verdict. Although we continue to believe that “anti-CSI effect” or “no duty” instructions are not per se improper necessarily, we conclude, for reasons that we shall explain, that the trial court, in the context of the present case, abused its discretion in giving an “anti-CSI effect” jury instruction. Accordingly, we shall reverse the judgment of the Court of Special Appeals and direct remand of the case to the Circuit Court for Wicomico County for a new trial.

[31 A.3d 924]

I. Factual and Procedural Background

Kenneth Gerald Stabb, Petitioner, was convicted by a jury, sitting in the Circuit Court for Wicomico County, of one count of third-degree sexual assault and one count of second-degree assault. In the State's case-in-chief at Stabb's 27 April 2009 trial, eight-year-old Kaylen J., who was seven years old at the time of the assault, testified that, on 17 August 2008, she was sitting on the hood of her mother's van, parked in front of the family home in Salisbury, Maryland, when Stabb touched her “private” with his hand, inside of her underwear. Kaylen J. continued that Stabb told her, “If you tell anyone I'll kill you.” Kaylen J. related that her mother, Melissa R., ran out of the house, took Kaylen J. off the hood of the van, brought her inside, and someone “called the cops.” Before the incident, Kaylen J. said that she liked Stabb, and thought he was nice and funny.

Officer Jonas Berry testified for the State that he responded to Kaylen J.'s family home at 11:40 p.m. (based on a [423 Md. 458] telephone complaint), spoke with Melissa R., and interviewed Kaylen J. briefly. He observed that Kaylen J. appeared “offset, skittish, very introverted,” with shaking hands and pulling nervously on her nightgown during the interview. Kaylen J. told Officer Barry that Stabb “touched her pee pee” on the inside of her underwear. Kaylen J. began to cry, so Barry ended the interview and went looking for Stabb. He found Stabb asleep in his home nearby and informed him that he was under arrest for a sexual assault on Kaylen J. Stabb professed his innocence, but was taken into custody. Officer Barry referred Kaylen J. to the Child Advocacy Center (“CAC”), but, because there was no reported penetration during the assault, he did not refer her for medical treatment.

The State called next Phillip R., Kaylen J.'s uncle, who testified that he saw Stabb outside the house on the evening of the incident. He saw Kaylen J. greet Stabb with a hug, which was not unusual, and later saw Kaylen J., on the hood of the van, with Stabb's arms around her closely. When Kaylen J. went into the house, she looked scared. He thought Stabb had been drinking, based on his actions and the smell of alcohol on his breath.

Heather Sullivan, a licensed graduate social worker employed by the CAC, was called as a State's witness. Sullivan interviewed Kaylen J. at the CAC on 21 August 2008. A video and audio recording of the interview was made, and portions of it were replayed for the jury. In the recording, Kaylen J. identified parts of the human body on drawings and on dolls, and demonstrated on them where Stabb touched her. Sullivan was cross-examined as to why she did not refer Kaylen J. for a Sexual Assault Forensics Exam (“SAFE”). Sullivan responded that a SAFE is done to treat injuries and determine whether there is any physical evidence of sexual assault. Kaylen J. was not referred for a SAFE because she did not disclose that penetration occurred. Defense counsel pressed Sullivan about the potential for obtaining any kind of physical evidence had a SAFE been performed on Kaylen J. Sullivan responded that there was no possibility of the continued existence on 21 August 2008 of physical evidence as it had [423 Md. 459] been several days between the assault and Kaylen J.'s interview at the CAC. By that time, Kaylen J. had changed clothing and bathed. Moreover, Sullivan opined that it was not in Kaylen J.'s best interest to undergo a full pelvic exam, in the absence of previous disclosure of penetration. The State rested its case-in-chief at this point.

Defense counsel requested dismissal of the case, which was denied. The jury was

[31 A.3d 925]

excused for lunch and the trial judge, defense attorney, and prosecutor addressed administrative matters, including the verdict sheet and proposed jury instructions. The trial judge anticipated argument over the State's requested lack of scientific evidence jury instruction (presumably generated by the exchanges over the absence of a SAFE of Kaylen J. and on what physical evidence might have been obtained had such been carried out), and questioned defense counsel as to whether she had reviewed the pertinent case law. Defense counsel confirmed an appreciation for Evans v. State, 174 Md.App. 549, 922 A.2d 620, cert. denied, 400 Md. 648, 929 A.2d 890 (2007). At that point, the jury returned, and trial resumed.

Melissa R. was called as the first witness by the defense. She testified that, on August 17, she saw Stabb leaning over and whispering to her daughter (then seated on the van), so she ran out of the house, took Kaylen J. from the hood of the van, and brought her inside. Kaylen J. had a “look of pure horror.” Melissa R. also said that Kaylen J. told her that Stabb told her to “spread her legs, then spread them wider,” and that she was scared. Melissa R. acknowledged that she had an intimate relationship with Stabb (which she did not disclose to the investigating police) which began to sour shortly before the assault of Kaylen J. After learning of the assault, Melissa R. went to a nearby convenience store to tell a friend about the incident. The friend instructed Melissa R. to call the police, which she did.

The defense then called Jane R., Kaylen J.'s grandmother. Jane R. had been in her bedroom of the family home at the time of the alleged assault. She testified that she saw Stabb [423 Md. 460] leaning over Kaylen J., seated on the hood of the van, with her nightgown pulled over her knees, and looking frightened. Jane R. urged Melissa R. to retrieve Kaylen J. immediately. Several weeks before the assault, Jane R. sent Stabb a letter stating that Kaylen J. was upset by Melissa R. and Stabb spending so much time together and urging Stabb to “back off,” but not to show the letter to Melissa R. Stabb shared the letter with Melissa R. anyway, shortly after it was received.

During a recess, the trial judge, the prosecutor, and defense counsel discussed jury instructions again. The one proposed by the State, at issue in this case, provided:

During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not use a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof. You should consider all the evidence or lack of evidence in deciding whether a defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven based upon all the evidence the defendant's guilty beyond a reasonable doubt. [Emphasis added.]

Stabb's attorney objected to the instruction, arguing that the facts of Stabb's case were distinguishable from those in Evans, 174 Md.App. at 549, 922 A.2d at 620, where the Court of Special Appeals approved the use of the same jury instruction:

Defense Counsel: I would incorporate all of the arguments that the defense in [ Evans ] made as far as the shift—the burden shifting. I would point out that its not a pattern instruction, and that maybe one day could be, but it's not now. And given the facts of this case, and how the facts were generated, in

[31 A.3d 926]

that they were not generated by cross-examination, I would ask the court to just give the pattern instructions as to evidence, direct and circumstantial evidence, and reasonable doubt and not to give any specialized instruction in this case.... [Emphasis added.]

[423 Md. 461] The Court: All right your objection is noted. Did [the State] want to be heard?

The State: Your Honor,.... It will nonetheless be a vigorous argument that [Defense Counsel] makes in closing. The State believes that it's an appropriate instruction, and I would ask the Court to give it.

Defense Counsel: If the Court determines after I gave my closing argument that I gave a vigorous—then I would ask the Court to consider it, but to give it prior to the closing argument and without making any conclusion that I made a robust or...

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