White v. State

• Citation: 223 Md.App. 353,116 A.3d 520
• Decision Date: 11 June 2015
• Docket Number: No. 912, Sept. Term, 2012.,912, Sept. Term, 2012.
• Parties: Robert Armstrong WHITE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

223 Md.App. 353

116 A.3d 520

Robert Armstrong WHITE

v.STATE of Maryland.

No. 912, Sept. Term, 2012.

Court of Special Appeals of Maryland.

June 11, 2015.

Juan P. Reyes (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Robert Taylor, Jr. (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: MEREDITH, GRAEFF and LEAHY, JJ.

Opinion

LEAHY, J.

Science and technology play a vital role in the criminal justice system, especially in cold cases, by, for example, exonerating the innocent and identifying the guilty through advances such as forensic DNA testing. But technology can also trample important constitutional protections, as demonstrated by the incessant struggle to protect privacy rights. Technical innovations must, therefore, satisfy the perennial dictates of the United States and Maryland Constitutions before they may be utilized in a criminal case. In this appeal, we examine, among other things, whether use in the courtroom of a two-way video conference in lieu of physical, in-court testimony by one of the State's forensic technicians violated Appellant Robert Armstrong White's constitutional right to confrontation.

Two women—T.K. and E.L.¹ —were raped during separate incidents in Montgomery County, Maryland in 1979. Despite the investigations launched in each case, their assailant was never identified. Approximately three decades later, the Montgomery County Police Department reopened these cold cases and sent the forensic evidence collected in each case to the lab for DNA testing—an investigative tool not available in the 1970s.² Those DNA analyses ultimately revealed a match with Appellant's DNA. Consequently, in the spring of 2012, Appellant was separately tried for each case before two different judges in the Circuit Court for Montgomery County. At trial, the State presented the testimony of Jeanne Hostetler, the serologist who examined the original rape kits in each case, via two-way video conference. The juries in each case ultimately convicted Appellant of the first-degree rapes, as well as other related offenses. In his timely appeal,³ Appellant presents three questions for our review, which we have reordered:

I. Did the trial court err in denying Appellant's motion to dismiss based on Appellant's right to a speedy trial?

II. Did the trial courts err in admitting testimony via video conference in violation of Appellant's confrontation rights?

III. Did the trial court err in allowing the State to make improper and prejudicial statements at closing argument?

We hold that the circuit court properly denied Appellant's motion to dismiss filed in the second trial because Appellant's right to a speedy trial was not violated. Specifically, we conclude that, under the good faith standard applied to the government's dismissal of charges announced in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the speedy-trial clock did not begin to run in this case until the filing of the second statement of charges and detainer, and the resulting delay did not impair Appellant's right to a speedy trial. We also hold that after conducting a fact-sensitive inquiry, the circuit court did not err in finding Ms. Hostetler unavailable to testify at trial, and correctly determined that under the circumstances, admission of her testimony via two-way video conference subject to full cross-examination in lieu of physical, in-court testimony did not violate Appellant's constitutional right to confrontation pursuant to the principles espoused in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Appellant failed to preserve his argument that the State made improper and prejudicial arguments during closing, and we conclude that the prosecutor's statements did not deny Appellant his fundamental right to a fair trial as to warrant plain error review. Accordingly, we affirm the judgments of the trial courts.

BACKGROUND

In 2009, the Montgomery County Police Department re-opened two cold cases involving the 1979 rapes of T.K. and E.L. The DNA of the semen samples taken from each case was run through the Combined DNA Index System and revealed a match to Appellant's DNA.⁴ The State then obtained a search warrant for the buccal swab of Appellant, and additional testing of the buccal swab with the samples taken from each cold case confirmed the DNA match.⁵ In T.K.'s case, Appellant was charged with two counts of first-degree rape, two counts of second-degree rape, and robbery with a dangerous weapon. In E.L.'s case, Appellant was charged with two counts of first-degree rape, two counts of second-degree rape, first-degree sexual offense, and kidnapping.⁶ Although the crimes relating to each victim were charged in the same indictment, Appellant requested, and the State ultimately agreed, that each case be tried separately.

A. Trial One—March 19–22, 2012—Judge McCormick Presiding

T.K. testified that in March of 1979, she was twenty years old, working at the National Bureau of Standards and at the Montgomery Ward, and attending a night class at Montgomery College in Rockville, Maryland. On March 12th, after her class ended at 8:30 p.m., she left the building and started walking toward her car in the parking lot. Suddenly a man grabbed her from behind and placed his arm across her mouth. He stuck a sharp object, which she thought was a knife, against her neck. The man told her not to make any noise and dragged her into the cover of nearby pine trees. The man made T.K. pull her pants down and forced her to engage in vaginal intercourse. He made her wear a sweater over her head so she could not see. After making her pull her pants up again, he dragged her to another location, still holding the sharp object to her neck. Again he forced her to pull her pants down, got on top of her, and repeated the rape. T.K. testified that she was a virgin, that she was scared, and that when she whimpered, he admonished her to be quiet. She related that she thought he was going to cut her neck and that she was probably going to die.

The man then made T.K. hand over a pack of cigarettes and her wallet, containing checks and $3.00. As he smoked a cigarette, and while holding her checkbook and driver's license, he asked her to affirm her address and that her name was T.K. He threatened her, stating, “if you tell anybody about this.... I will go back to this house ... and fire up the house and burn everybody in it.” Next he threw her car keys. After retrieving them, T.K. got into her car and drove to her parents' house where she lived. Her mother called the police.

When the police officer arrived, T.K. told him what had happened and provided a description of her assailant, although she admitted that she was unable to get a good look at him. She told the officer that the man had been masked, but could not remember other details. Once she arrived at Suburban Hospital, she met with a female officer and received a pelvic exam performed by a doctor.

Thomas Schirf, who at the time of trial was retired from the Montgomery County police force, testified that he was the primary detective involved in T.K.'s case. After refreshing his recollection by referring to a report that he prepared during the investigation, Detective Schirf testified that he received a phone call at around 11:15 p.m. regarding a rape on March 12, 1979, and that he drove over to T.K.'s home. T.K. described her attacker as a “Negro male, age unknown, 5'8?, medium build, wearing a green Army field jacket, white knit hat pulled over face, white gloves or hands wrapped with a white cloth.” Detective Schirf collected T.K.'s clothing for evidence. Then T.K. accompanied Detective Schirf to the crime scene, where she pointed out the pine trees and wooded area and recounted what had occurred. Immediately thereafter, Detective Schirf took T.K. to Suburban Hospital, where a doctor conducted a pelvic exam and collected samples for a rape collection kit in the presence of female officer, Sheila Rahn. After the evidence was gathered, Detective Schirf placed the evidence into sealed bags that ultimately went to the crime lab in a sealed box. He then gave the box to Detective Gibson, who delivered the box to Jeanne Hostetler, a serologist.

Sheila Feeney (maiden name Rahn), a retired Montgomery County police officer, testified that she witnessed T.K.'s pelvic exam and the doctor's collection of swabbings for T.K.'s rape kit. She obtained the samples and swabs from the doctor conducting the exam and placed them back into the kit.

Jeanne Hostetler then testified—via video conference—that she was a forensic serologist for the Montgomery County Police Department in 1979.⁷ She received the box of evidence in T.K.'s case in sealed condition and opened the box to conduct a serological analysis of the items therein. To conduct this analysis, she cut small portions of the swabbings for her examination and replaced the remaining portions into the original containers. After her examination, she placed the containers back into the box, sealed it, and returned the box to another detective. T.K.'s assailant could not be identified during the initial investigation.

Detective Joe Mudano, a detective in Montgomery County Police Department's Cold Case Unit, testified that in May 2009, he reopened the investigation into T.K.'s rape. Detective Mudano began his investigation by collecting all of the materials from the original investigation, including the crime scene photographs and the old police files from the County's Archives. He also obtained the original evidence box from the secured Evidence Storage Facility. The box was closed, and the tape on the box was “kind of ragged,” but “still intact with the initials of who sealed it in all respects, top and bottom.” It contained the victim's clothing from the night of the rape, and the forensic evidence obtained by the hospital, including vaginal and cervical swabs. Detective Mudano took the vaginal and...