*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104 In May of 2019, Ernesto Torres, a doctor practicing in Frederick, Maryland, was indicted on one count of rape in the second degree,1 one count of sexual offense in thefourth degree,2 and one count of assault in the second degree.3 The charges against Torresarose from an incident which occurred in April of 2019 in Frederick, involving R.J.4
Following a bench trial in the Circuit Court for Frederick County, which occurred in October of 2019, Torres was found guilty of the commission of a fourth-degree sexual offense and the second-degree assault. The trial court merged the second-degree assault into the fourth-degree sexual offense and sentenced Torres to one year of imprisonment, to be served in the Frederick County Adult Detention Center. The judge gave Torres credit for time served of 230 days.
On appeal, Torres asks us to vacate his conviction, by presenting the following question:
Was Appellant's Sixth Amendment Constitutional right to confront his accuser violated when the Trial Court precluded him from impeaching the complainant with prior inconsistent statements, on the grounds that these statements were contained in records that were privileged under Maryland Annotated Code, Health Occupations §14-410?
In answering the question, we shall remand the case to the trial court with instructions to accept a proffer from Torres of the alleged inconsistent statements, in order for the judge to determine whether any were, in fact, inconsistent with R.J.'s trial testimony and whether a new trial is warranted. We explain.
Prior to trial, in discovery, the State provided a transcript of an interview of R.J., which had been conducted by an investigator for the State Board of Physicians ("the Board") as well as a transcript of R.J.'s testimony under oath during a hearing before an Administrative Law Judge ("ALJ"), during which he appealed the Board's suspension of his medical license. The State, preliminarily, then filed a Motion in Limine, which requested various evidentiary rulings, including, "That there be no mention by either the State or the Defendant of any prior hearings or any testimony taken during any prior hearings." In his response to the State's motion, Torres stated, "The Defendant agrees that no reference should be made by either side in opening statements to prior hearings. The Defendant reserves his right, under the Confrontation Clause, to confront any witness presented by the State with prior inconsistent statements related to these allegations."
On the first day of the trial, the judge, in ruling on various motions, reserved ruling on whether Torres could use, for impeachment purposes, R.J.'s previous statements. R.J., who was the first witness called by the State, testified regarding the events that led to the indictment for the sexual offenses and second-degree assault. The following colloquy occurred prior to her cross examination:
[DEFENSE COUNSEL:] Your Honor, at this point I think I need to ask for a recess because I need the Court to advise me on what I can and cannot do.
THE COURT: I'll tell you what. I don't know that we need a recess. Would you go sit in the front over there?
R.J.: Yes.
The judge then convened a bench conference, during which the conversation continued as follows:
THE COURT: I'm intrigued on what you are planning to do.
[DEFENSE COUNSEL:] Your Honor, I think I have the right to, the Court has already heard that there's been, that there's a written statement the complainant made.
THE COURT: Uh-huh.
[DEFENSE COUNSEL:] I will proffer that the State also disclosed an interview that, a transcript from an interview that the complainant made and I have the transcript. But with regards to cross-examination I believe that if there's any prior inconsistent statement that she has made with regards to this incident that I can cross-examine here if I was in possession theoretically of a transcript from another proceeding that is confidential under Maryland law. I think the defendant's right under the Confrontation Clause --
THE COURT: Here's what I want you to do. I want you to go, to do your cross-examination except for that. Are you able to do that?
[DEFENSE COUNSEL:] It's very - -
THE COURT: Or do you need me to make the decision right now?
[DEFENSE COUNSEL:] Well, the problem is I've - -
THE COURT: Because I read COMAR. COMAR says it's confidential, period.5
In response, Torres's attorney stated that her client's "rights under the Confrontation Clause trump the statute." The prosecuting attorney responded, "Your Honor, if I could, I was wondering if [Torres's counsel] could proffer, I don't, I did nothear anything inconsistent. I just am wondering what it is[.]" The trial judge, without responding to the State's request for a proffer, recessed the proceedings, stating that he would "decide" whether Torres's attorney would be allowed to use the transcripts for impeachment purposes.
When the court reconvened, the trial judge discussed the issues related to R.J.'s prior statements:
Counsel has made a motion and wants to use certain transcript and information from a prior hearing in cross-examination. There's much case law that says in ascertaining legislative intent we look first to the language of the statute giving it its natural and ordinary meaning. Where the plain language of the statute is unambiguous we end our inquiry as to legislative intent and "apply the statute as written without resort to other rules of construction". Bricken v. Lindsay and there's many cases that actually cite that.
The applicable statute is Maryland Code Health Occupations 14-410 as it applies to the Maryland Board of Physicians. Except by express stipulation and consent of all parties to a proceeding before the board of disciplinary panel or any of its other investigative bodies or in any similar civil or criminal action the proceedings, records or files of the board in disciplinary panel or any of its other investigative bodies are not discoverable and are not admissible in evidence.
Nor is any order passed by the board admissible in evidence. The statute is clear and unambiguous.
The following colloquy, then, ensued in open court:
[DEFENSE COUNSEL:] Your Honor, I would like to proffer, I would to proffer for the record at the bench what the information is that the defense is in possession of --
THE COURT: Is it something different than what I just described? Yes or no?
[DEFENSE COUNSEL:] In terms of the law?
THE COURT: No.
[DEFENSE COUNSEL:] I'm sorry.
THE COURT: Is, does it not, is it part of the, hold on one second, proceedings, records, files?
[DEFENSE COUNSEL:] Your Honor, I will, what I am going --
THE COURT: I just need a yes or no to that one.
[DEFENSE COUNSEL:] I think it's, I'm not sure how to answer. I think it's a yes and no. I think the difficulty for this --
The judge then convened a bench conference, during which the colloquy resumed:
[DEFENSE COUNSEL:] But, however, I possess information because I will proffer to the Court I have questioned this witness on a prior occasion and I will proffer to the Court that in a prior proceeding I have information --
THE COURT: Don't tell me what she said.
[DEFENSE COUNSEL:] Well, I think I need to proffer --
THE COURT: You can't. I'm the trier of fact. Is the proceeding, is the proceeding the hearing in front of the panel of physicians?
* * *
[DEFENSE COUNSEL:] Well, so it is a, it was, I will proffer that it was a hearing before an administrative law judge regarding an appeal.
* * *
[DEFENSE COUNSEL:] The Court will not allow me to proffer to make a record of what the information is that I would like to --
THE COURT: You can proffer --
[DEFENSE COUNSEL:] -- include?
THE COURT: You can proffer that it was part of your hearing that resulted from this but it was the appeal to the ALJ. You've done that. And my ruling is that is all part of the proceedings relative to the board.
[DEFENSE COUNSEL:] And the Court, I just want to be clear. I'm --THE COURT: And it protects your client as well.
[DEFENSE COUNSEL:] I, no[,] I understand the intent of the statute but I guess why I'm asking, I'm inquiring of the Court, I'm requested that the Court allow me to proffer what the specific information is --
[STATE'S ATTORNEY:] Just for the record. Just --
THE COURT: I would do that if it was, if we were in a trial in front of a jury. It's a trial in front of me that was elected. I'm not going to let you do it. I don't think that's appropriate.
[DEFENSE COUNSEL:] I understand. Thank you.
THE COURT: And the appellate [court] may decide otherwise if it goes that far.
During the course of cross-examination, the following exchange took place between Torres's attorney and R.J.:
[DEFENSE COUNSEL:] Do you recall and I'm referring to State's discovery page 174 just so everybody knows what I am doing. Do you recall speaking to an investigator regarding this incident around May 29, 2019?
R.J.: Are you referring to the police officer that I talked to or the detective like?
[DEFENSE COUNSEL:] I'm speaking with regards to another investigator that you spoke with and you gave a recorded statement.
R.J.: Oh, yes. On that Sunday, yes.
[DEFENSE COUNSEL:] And do you recall the investigator asking you questions about this[?]
The State objected to the question, after which a bench conference occurred, in which the following discussion took place:
THE COURT: There wasn't anything objectionable yet.
[STATE'S ATTORNEY:] She's referring to the transcript. She is not --
[DEFENSE COUNSEL:] This is the State
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