Worthen v. State

• Decision Date: 22 March 1979
• Docket Number: No. 499,499
• Citation: 399 A.2d 272,42 Md.App. 20
• Parties: Lesley Clint WORTHEN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 20

42 Md.App. 20

399 A.2d 272

Lesley Clint WORTHEN v. STATE of Maryland.

No. 499.

Court of Special Appeals of Maryland.

March 22, 1979.

Isaac S. Kershner, Assigned Public Defender, Baltimore, for appellant.

Diane G. Goldsmith, Asst. Atty. Gen., with whom were Francis Burch, Atty. Gen., George R. Sparling, State's Atty. for St. Mary's County, and John E. Pleisse, Asst. State's Atty. for St. Mary's County, on the brief, for appellee.

Argued before MOORE, LOWE and MELVIN, JJ.

LOWE, Judge.

Lesley Clint Worthen was charged with statutory child abuse and common law assault and battery, each charge relating to an injury sustained by his stepchild. He was tried by a jury in the Circuit Court for St. Mary's County, which convicted him of assault and battery, but exonerated him from child abuse.

The State's evidence was admittedly thin, resting upon the two basic factors of underlying proof of a crime that were described to the jury by the State as being, 1. the proof that "a crime has been committed," (I. e., the corpus delicti) and 2. the proof that appellant committed it (I. e., criminal agency).

At argument the prosecutor contended that he had proven the corpus delicti when

"(t)he doctor got on the stand and told . . . about examining the child, the determinations he made, and that this was in his opinion a battered, abused child."

The prosecutor acknowledged that proof of criminal agency was substantially more difficult, pointing out that when a victim is a two-year-old infant, there is no one to put on the witness stand and to point a finger "the State's sort of up the creek . . . ." However, he also pointed out to the jury that the Court of Appeals has addressed the problem, and has somewhat lightened his burden.

"So, the law recognizes that (neither) this Assistant State's Attorney nor any can call up a small child to point the finger, but it provides a way to point the finger."

Properly prefacing the new found solution with the appropriate caveat that "you cannot convict somebody here today based on a prior conviction," he said:

"But in a situation where you have an essential factual material element to prove, like criminal agency, in a case which in fact involved a child abuse case, the Court of Appeals has said that it was admissible as evidence this was referring to prior beatings of other offenses which, 'has a natural tendency to establish or offers a reasonable presumption or inference as to a principal fact or issue or matter in dispute.' And, of course, we have an issue in dispute: Mr. Worthen being the guy that did it. So, I can show to you that he has a tendency to do that by his prior acts." (emphasis added).

The direct evidence of criminal agency of the crime charged was that appellant had punished the child, a fact he admitted but sought to explain as not having exceeded the bounds of parental propriety. Appellant sought to explain the child's more severe injuries by attempting to prove that certain of the injuries were accidentally received from sources unrelated to the punishment administered.

The case thus portended to be a very close one, turning almost entirely upon the degree to which appellant was believed by the jury to have corporally punished his stepdaughter. To convince the jury that the sole cause of the injuries was that Mr. Worthen Intentionally exceeded the bounds of proper parental punishment, the State produced a witness who testified that Worthen had inflicted a recent similarly abusive punishment upon the child and that the witness had reported the incident to the authorities. It was this witness through whom the State intended to show that Worthen "has a tendency to do that (abuse the child) by his prior acts."

That the State intended to produce this witness was not divulged to appellant until the evening before the trial despite discovery having been propitiously sought. A continuance was prayed by appellant to investigate and plan a defense or counterattack. This was denied. Vehement objection was timely made to the introduction of the evidence but this too was overruled, and the testimony was as devastating as portended.

The Trial Sequence

motion for change of venue

It is evident from the record that appellant was especially vulnerable to evidence of such a prior offense in St. Mary's County, a rural community environment where he had lived and where he was to be tried. In a pretrial hearing on appellant's motion for change of venue, appellant brought out that a series of front page articles had appeared in "The Enterprise " newspaper, "Southern Maryland's Leading Weekly Since 1883." The first of this series began under the headline "Child Abuse," and a subheadline, "It Does Happen Here." There followed the "lead" article reciting in bold print the facts of a pending case presumably taken from an arrest report. The facts indicated it could have been none other than this case, although appellant's name was not used.

"On Jan. 22, 1978, 2-year-old Cathy H. lay in a hospital bed at Bethesda Naval Hospital, suffering from multiple bruises and abrasions and a blood clot on the brain. Eighty miles away her stepfather was incarcerated in the St. Mary's County Jail, charged for the second time with child abuse.

The arrest report said, 'On 1-21-78 at 0900 hours the above named defendant took his 2-year-old stepdaughter to the Naval Air Station Hospital for medical treatment. The child was examined by (a doctor) and the doctor found the child to have multiple contusions about the face, ribs, buttocks and legs. (The doctor) stated that the child has symptoms of a possible subdural hematoma caused by a blow to the head.'

'(The doctor) stated that his examination revealed that the child appeared to have been abused. (The doctor) ordered that a complete set of x-rays and photographs be taken of the victim. The child was later transferred to the Bethesda Naval Hospital for further treatment.'

'The defendant . . . stated that he disciplined the child on 1-21-78 prior to taking the child to the hospital for medical treatment. The defendant stated that the child was throwing a temper tantrum, so he struck the child with his hand on the child's buttocks.'

The Navy man was charged with child abuse and assault and battery and is awaiting trial in St. Mary's County Circuit Court.

'I have a very deep concern in this case,' Assistant State's Attorney John Pleisse said during a bond hearing. 'The same charge, involving the same child, was handled as an assault and battery in this court.' "

The articles that had followed during the three succeeding weeks dealt with various, often emotional, aspects of the crime of child abuse and the ways it should be handled as seen by others quoted in the media. In explaining what the "average public response to a child abuser" was, the paper quoted a county coordinator as saying, " 'Most people's reaction is to want to put them in jail.' " The articles quoted "authorities" in various human nature fields of endeavor. For example, a respected local doctor was quoted: " 'When a child is bruised by a parent, if that is not abuse, it borders on it . . . I believe in physical punishment. But I get very upset when I see a child that's been bruised.' " Expert opinions were summarized pointing to primary cause:

" 'Most experts agree that child abuse repeats itself from parent to child, in a brutal, and sometimes deadly cycle.' ",

which set an identifying stage for Worthen's trial where the State elicited that appellant had also been an abused child.

Among the witnesses appellant produced to support his removal request was a parole and probation officer who had "cause to know" appellant officially. ¹ The officer testified in favor of removal because he, like the prior witness, was certain that the facts outlined in The Enterprise were easily recognizable as appellant's pending case, and that

"Because the case just about outlined his present circumstances, and I feel that if I wasn't in the capacity I am in and I just read the articles and I was on the jury, it would certainly be fresh in my mind as to how I would feel about the case when it came before me."

The trial judge inquired exclamatorily:

"That would apply to any article about any crime being committed that somebody was charged with, wouldn't it?" to which the witness responded as expected:

"Probably would, Your Honor, if it outlined the case."

Applying the testimony generally, the court asked:

"You feel, then, if I understand your testimony to be that any such articles as to any defendant would deny him and he couldn't get a fair trial if it was published in a local paper that has general circulation around the county."

This elicited the witness' rationale that:

"If it goes down the line as that one did outlining the emotional situations such as child abuse and it brings it fresh before the person's mind, I feel that they would prejudge the situation, same as the wife-beating articles that appeared not too long ago. They're very informative and I feel we need more of it; however, if someone's case, if it was outlined in those articles, if someone came before the jury for wife-beating charges within two weeks or a month of that, I feel it would be fresh on the jury's mind as to how they feel about the situation."

In other words:

"It's fresh in people's minds and it does outline (t)his particular case."

In addition appellant called a clinical social worker from the St. Mary's County (Mental) Health Department who felt that appellant could not get a fair trial because:

"I think they may have read the facts in the articles and made some decisions themselves about the cases that were presented."

He gave as an example four persons with whom he had discussed the articles.

"Of the four people that spoke to me about the series it was evenly split. Two of them were saying that child abusers should go to jail, should be punished, and the other two were just wanting to know how you...