Zaal v. State, 28

• Citation: 602 A.2d 1247,326 Md. 54
• Decision Date: 01 September 1991
• Docket Number: No. 28,28
• Parties: , 73 Ed. Law Rep. 130 Iwan ZAAL v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 54

326 Md. 54

602 A.2d 1247, 73 Ed. Law Rep. 130

Iwan ZAAL v. STATE of Maryland.

No. 28, Sept. Term, 1991.

Court of Appeals of Maryland.

March 16, 1992.

Jose Felipe Anderson, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

M. Jennifer Landis, 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.

ROBERT M. BELL, Judge.

In this case, we are asked to decide whether, pursuant to a lawfully issued subpoena, see COMAR 13A.08.02.20A, ¹ a defendant charged with child sexual abuse, may inspect the school records of the child he has allegedly abused. The Court of Special Appeals responded in the negative, when it addressed the issue. Zaal v. State, 85 Md.App. 430, 584 A.2d 119 (1991). We granted the petition for writ of certiorari, filed by petitioner, Iwan Zaal, to review the important issue. We shall reverse.

I.

Petitioner was charged with sexual child abuse of his twelve year old granddaughter, the victim. According to the victim, when she and petitioner returned from the movies and lunch, petitioner talked dirty to her and fondled her, which included touching her inappropriately on the uppermost part of her thigh and fingering her vagina. In addition, she stated that, at one point, petitioner placed her on top of him and she felt something go into her vagina. Finally, she maintained that petitioner placed her hand on his penis. Petitioner denied the allegations and, in fact, rejoined that it was the victim who acted inappropriately. He maintains that it was the victim who placed his hand between her legs, afterwards stating, "I did it for my daddy," and later touched him, while commenting, "Now my father can get you." Evidence presented at trial indicated that there was "bad blood" between petitioner and the victim's father to the point that the victim's father had threatened that he would "get [petitioner] one way or another."

Prior to trial, petitioner subpoenaed the victim's school records from the Montgomery County Board of Education ("the Board"). ² See Maryland Rule 4-266. In response, relying on COMAR 13A.08.02.20B, ³ the Board moved for a protective order. See Maryland Rule 4-266(c). A hearing was held on the motion. Petitioner argued that the school records he sought were critical to his effective cross-examination of the victim. Because, he noted, he was aware that the victim had an emotional disability requiring special education and he denied her allegations, the case would likely turn on the victim's credibility. Therefore, he continued, it was necessary that he be able to attack her credibility and, specifically, to explore her motivation, bias and veracity. This would not be possible, he proffered, "without access to some records indicating the nature and extent of the child's disability." Moreover, he suggested that the records might reveal "a pattern of behavior pre-existing that would impinge upon [the victim's] believability in the statement." In fact, that the victim was in a "special classroom" as a result of an "emotional disturbance" bears, he asserts, on whether there was "a physical basis that would relate to her capacity to observe and relate" or "a mental deficiency leading to an inability to control actions." Furthermore, petitioner noted "the extreme antagonism [that] had existed for a number of years between himself and the victim's father," contending that the victim's awareness of that hostility may indicate a bias on her part which caused her to fabricate the incident.

After conducting an in camera review of the victim's school records, the trial court, granting the Board's motion for protective order, quashed the petitioner's subpoena. It noted that its review did not reveal "anything that would appear to set forth any kind of evidence that would be directly admissible in this proceeding," for impeachment purposes. The trial court concluded, "there is really nothing I can see that in any significant way would relate to truth telling to this or to any other occasion" and, certainly, nothing "show[ing] an inveterate tendency to lie." Therefore, the court said:

When you weigh that against a rather strong privacy concern, and frankly the concern of making this record an open issue and permitting the child to be inquired as to it even in the face of objections that could be sustained when raised by the State, may compromise significantly this child's educational future.

That's really one of the reasons for the privacy consideration.

On appeal, ⁴ petitioner argued that the trial court's ruling violated his rights to confrontation, compulsory process and effective assistance of counsel under both the federal and State constitutions. Rejecting those arguments, the intermediate appellate court, concluding that "the fact pattern and the statute in this case are virtually identical to those in Ritchie," found Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) dispositive. Zaal, 85 Md.App. at 444, 584 A.2d at 126. It observed:

Maryland carefully regulates the disclosure of personally identifiable information from a student's education records. See Md.Regs.Code tit. 13, § 13[A].08.02.19-.31 (1989). A school or educational institution generally may not disclose such information without the written consent of a student's parent or guardian. Id. at 13A.08.02.19. There are a few limited exceptions, however, including a disclosure "[t]o comply with a judicial order or lawfully issued subpoena" so long as the school or educational institution attempts to notify the student or the student's parent or guardian in advance of its compliance with the order. Id. at 13A.08.02.20A(9).

85 Md.App. at 442, 584 A.2d at 125.

II.

The statute at issue in Pennsylvania v. Ritchie, supra, was enacted to establish an agency to combat child abuse by investigating cases of suspected mistreatment and neglect. 480 U.S. at 43, 107 S.Ct. at 994, 94 L.Ed.2d at 48. In pertinent part, it provided:

(a) Except as provided in section 14 [Pa.Stat.Ann., Tit. 11, § 2214 (Purdon Supp.1986) ] reports made pursuant to this act including but not limited to report summaries of child abuse ... and written reports ... as well as any other information obtained, reports written or photographs or X-rays taken concerning alleged instances of child abuse in the possession of the department, a county children and youth social service agency or a child protective service shall be confidential and shall only be made available to:

* * * * * *

(5) A court of competent jurisdiction pursuant to a court order.

Pennsylvania Statutes Ann., Title 11, § 2215(a) (Purdon Supp.1986). ⁵ There are other exceptions not here relevant. Thus, the Court was presented with the issue "whether and to what extent a State's interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant's Sixth and Fourteenth Amendment Right to discover favorable evidence." 480 U.S. at 42-43, 107 S.Ct. at 993-94, 94 L.Ed.2d at 48.

Having been charged with various sexual offenses against his minor daughter and seeking unspecified exculpatory evidence to be used in his defense, Ritchie subpoenaed the investigative records maintained by the Children and Youth Services Agency. Relying on its enabling statute, which provided that information relating to a child abuse investigation is confidential, subject to certain exceptions, the agency refused to release them. Without reviewing all of the records, but accepting the agency's representation that the records contained no relevant medical reports, the trial judge refused to order the records disclosed and denied Ritchie's motion for sanctions. Ritchie was subsequently tried and convicted of child abuse.

On appeal, the Pennsylvania Superior Court vacated the conviction and remanded the case for further proceedings. It held that, while not entitled to full disclosure of the records, Ritchie was initially entitled to an in camera review by the trial judge, release of certain statements made by the victim to her counselor, and, thereafter, disclosure of the entire record to his lawyer in order that the relevance of the statements disclosed might be argued. Although affirming the Superior Court's decision to vacate and remand, the Supreme Court of Pennsylvania, relying on the confrontation and compulsory process clauses, held that Ritchie was entitled to review the entire record for useful information. Pennsylvania v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985). In that Court's view, the defendant was entitled to "the opportunity to have the files reviewed with the eyes and the perspective of an advocate," who "may see connection and relevancy" a neutral judge would not. 502 A.2d at 153.

Affirming in part and reversing in part, the Supreme Court of the United States analyzed the issue in the context of the due process clause of the Fourteenth Amendment. ⁶ It affirmed the Pennsylvania Supreme Court's remand for further proceedings, agreeing that the trial court should have reviewed the agency's file, but for information that "probably would have changed the outcome of [the defendant's] trial." 480 U.S. at 58, 107 S.Ct. at 1002, 94 L.Ed.2d at 58. The Court rejected, however, the holding that the review must be done through counsel. Notwithstanding that defendant would be deprived of the "advocate's eye" in favor of a trial judge's in camera review, the Court believed that limitations on the trial court's discretion would protect the defendant's interest in a fair trial, 480 U.S. at 60, 107 S.Ct. at 1003, 94 L.Ed.2d at 59, and, in any event, the State's "compelling interest" in protecting sensitive child abuse information outweighed the defendant's countervailing interest in having disclosure. Id. As to this point, the Court made the following significant...