Acker v. State

ON REMAND KEHOE, J. Maryland Rule 5-802.1(b) permits the introduction of a witness’s prior consistent statement as substantive evidence “if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive.... ” The Court of Appeals has interpreted this rule to include a temporal restriction, namely, that a prior consistent statement is admissible under Rule 5-802.1 (b) only if “it was made before the source of the bias, interest, influence or incapacity originated.” Thomas v. State, 429 Md. 85, 101-02 , 55 A.3d 10 (2012). The issue before us is how the restriction articulated in Thomas should apply in cases in which a party, in addition to a temporally-specific allegation of bias, makes bald assertions such as that the victim of alleged child sexual abuse was “starved for attention” and therefore is inherently unworthy of belief. We conclude that factually unsupported and conclusory allegations of bias or fabrication of the sort at issue in this appeal do not trigger the Thomas restriction. The appellant in this case is Robert Mitchell Acker, who was convicted by a jury of the Circuit Court for Montgomery County of two counts of sexual offense in the third degree. 1 He appealed and a panel of this Court affirmed his convictions in an unreported opinion.

Acker v. State, No. 513, September Term, 2011, filed April 5, 2012 (“Acker I ”). As we will explain ²¹⁵ in greater detail, the Court of Appeals granted Acker’s petition for writ of certiorari, summarily vacated the judgment, and remanded the case to us for reconsideration in light of Thomas . Upon reconsideration, we conclude that the trial court did not err in its evidentiary rulings and again affirm the convictions. Background A. The Trial On July 11, 2010, K., at the time fifteen years old, called the Montgomery County Police and stated that she had been sexually abused by Acker on several occasions starting in 2003, when she was seven years old.

Acker was eventually indicted on seven sex-related offenses, including multiple counts of sexual offense in the third degree. The case proceeded to a four-day trial by jury in the Circuit Court for Montgomery County. A few days before trial commenced, the prosecution filed a motion in limine requesting that the trial court “make a pretrial ruling on the admissibility of certain prior consistent statements [made by KJ to be offered by the State.” In the motion, the prosecution asserted that the statements it intended to offer were admissible on several grounds, including pursuant to Rule 5-802.1(b). The court heard the motion outside the presence of the jury on the first day of trial.

The prosecutor, at that time, repeated her request for “a pretrial ruling on [the motion]” but stated, “I know it may end up becoming more of a ripe issue after the victim’s testified.... ” Defense counsel, in turn, agreed with the latter point, contending, “I think it’s premature to make any judgment. We don’t know what the evidence is going to be until we hear the evidence.... ” The trial court agreed with defense counsel, concluding that, “once [the State is] in a position to call witnesses that would be [testifying as to] prior consistent statements, then we can address it at that point.” The State’s case rested on the credibility of K. She testified that, on several occasions between 2003 and 2005, Acker ²¹⁶ engaged in two different types of sexual contact with her. According to K., the alleged incidents of abuse occurred at her mother’s house, after the family hosted parties which involved alcohol and illicit drug use among the adults in attendance. The guests at these parties, including Acker, often spent the night, sleeping on the floor or couch in the home’s living room, in order to avoid driving under the influence of drugs, alcohol, or both.

K. testified that, at first, she did nothing in response to the ongoing abuse because “I didn’t know what was happening,” but that, eventually, she told several people about it in 2004 or 2005, including (in chronological order): Michael S., a neighborhood friend; Melissa, her mother; and Charlene C., her best friend from school. 2 According to K., she believed that Melissa had “gotten [Acker] in trouble” for abusing her until July of 2010, when she learned, during a heated verbal argument with her mother, that Melissa had not, in fact, called the police after learning of the alleged abuse. K. testified that she was upset that Melissa “didn’t do anything,” and that she “wanted something done [about the abuse].” As a result, K. called 9-1-1 two times: first, reporting that Melissa had “abus[ed]” her; 3 and second, reporting that Acker had “raped” her several years ago. (K. clarified that, when she told others that she had been raped by Acker, she meant that ²¹⁷ he had “violated” her or touched her inappropriately). K. further testified that, as a result of, among other matters, the 9-1-1 calls and Melissa’s failure to report the abuse, she and Melissa “have a difficult time getting along with each other.” Defense counsel advanced three theories as to why K.’s testimony was unworthy of belief. 4 First, in opening statement, defense counsel attacked K.’s character, contending that K. had fabricated the alleged instances of abuse because she was “starved for attention,” and, as a result, was “reaching out for attention” from both her mother and the world at large.

Second, defense counsel asserted that K. had lied about the alleged abuse at the behest of her mother, Melissa, who felt “jilted” by Acker’s refusal, in June of 2005, of what he perceived to be romantic overtures from her. Third, defense counsel maintained that K. had fabricated the abuse allegations in order to assist Amy R., a family friend, who was involved in a lawsuit with Acker over a real estate transaction (the suit was filed in either late 2009 or 2010). As defense counsel summarized to the jury in his opening statement, “Mr. Acker’s kind of caught up in this perfect storm. He has his worst enemies pursuing him through [K.] ... a child struggling for attention.... ” In an attempt to rebut one or more of these charges of fabrication, 5 the State called Michael S., Melissa, and Charlene C. to testify, over Acker’s objections, that K. had disclosed the alleged incidents of abuse to them in 2004 or 2005. 6 Michael ²¹⁸ S. stated that, although he could not remember K.’s exact words, she communicated to him that Acker had “touched her” and “did inappropriate things to her,” and that, during these conversations, K. was “upset” and “crying.” Melissa testified that K. “came to me and told me that [Acker] touched her one time” and that “he had put his hands on her when she was little.” According to Melissa, at the time, K. was “really upset” and “it just kind of came out at the end of [a] discussion.” Charlene C., in turn, testified that K. told her that “around from when she was 7 until 10, that she was being raped” — i.e., touched inappropriately — and that, during the conversations, K. was “upset” and, “several times, she would just randomly cry about it because nothing had been done.” 7 The trial court admitted these prior consistent statements as substantive evidence under Rule 5-802.1(b), which, as noted above, requires that the statements be “offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive[;]” Acker testified in his own defense.

He admitted that sexual contact had occurred on at least one occasion in 2004 or 2005, but he denied any responsibility for the interaction, stating that it was K. who had initiated the inappropriate contact. As to the remaining incidents described by K., Acker testified that he had never sexually abused K. and that she was lying about the allegations. After deliberating, the jury convicted Acker of two counts of sexual offense in the third degree and acquitted him of the remaining charges. Acker was sentenced to incarceration for a period of four years, all but eighteen months suspended, with eighteen months of supervised probation to follow upon his release.

In addition, Acker was required to register as a sex offender. ²¹⁹ B. The Appeal Acker appealed his convictions to this Court, arguing, in pertinent part, that the trial court erred in permitting Melissa, Charlene C., and Michael S. to testify regarding K.’s prior consistent statements about the alleged abuse. Applying the analysis set forth in Thomas v. State, 202 Md.App. 386 , 32 A.3d 503 (2011), rev’d, 429 Md. 85 , 55 A.3d 10 (2012), the panel affirmed Acker’s convictions, holding that the prior consistent statements were admissible because they “were made prior to the existence of at least one of the potential motives to lie as argued by Acker — most notably, [K.’s] 9-1-1 call to police to elicit attention from her mother.” Op. at 226-27, 100 A.3d at 1168-69. 8 Acker filed a petition for writ of certiorari in the Court of Appeals, presenting the following question: Did the Court of Special Appeals incorrectly apply Maryland Rule 5-802.1(b) when it held that if a declarant had multiple motives to fabricate, the declarant’s prior consistent statement was admissible at trial so long as it predated at least one of the declarant’s motives? The Court of Appeals granted the petition and summarily vacated this Court’s judgment and remanded the case to us “for further consideration in light of Thomas v. State, [ 429 Md. 85 , 55 A.3d 10 (2012) ].” Upon remand, we ordered the parties to re-brief the relevant issues in light of Thomas and Hajireen v. State, 203 Md.App. 537 , 39 A.3d 105 cert. denied, 429 Md. 306 , 55 A.3d 908 (2012), a decision of this Court interpreting Rule 5-802.1(b). 9 ²²⁰ Analysis There is no dispute that the prior consistent statements at issue in this appeal constitute hearsay and were inadmissible unless they satisfied the requirements of Rule 5-802.1(b) or another exception to the general prohibition against the admission of hearsay evidence. Our review of the trial court’s rulings concerning the admission of hearsay evidence is de novo.

Thomas, 429 Md. at 98 , 55 A.3d 10 ; Dulyx v. State, 425 Md. 273, 285 , 40 A.3d 416 (2012). Acker maintains that the Court of Appeals’ decision in Thomas “dictates ... that once the defense has asserted [that] a witness has a motive to fabricate, any statements that follow are inadmissible as prior consistent statements so long as the original motive continues to exist.” In Acker’s view, the trial court erred in admitting K.’s prior consistent statements into evidence via the testimony of Michael S., Melissa, ²²¹ and Charlene C. We do not agree with Acker’s proposed application of Thomas to the facts before us. To reiterate, Acker argued that K. complained to the police about his alleged actions and then testified consistently with the details of her complaint for three distinct reasons: (1) that K. was angry at Acker because he had an ongoing lawsuit against a friend of K. and her family; (2) that K. complained to the police in the first instance because she was “starved for attention”; and (3) that she resented Acker because he had rebuffed romantic overtures from K.’s mother, overtures that Acker asserted had been made about the time he allegedly assaulted K. We hold that evidence of K.’s prior consistent statements was properly admissible under Thomas to rebut Acker’s first theory of impeachment because the statements were made prior to the dispute that led to the lawsuit with the family friend. We decline to accept Acker’s argument that this otherwise admissible evidence should be barred because K. reported the alleged assaults to the police.

Finally, we conclude that the temporal element of Acker’s third theory of impeachment — that K. was motivated to lie because her mother had been rebuffed by Acker — is irrelevant to a Thomas analysis because there was no evidence or argument suggesting that K. was so motivated at the time she made the statements to her mother and her friends that were admitted into evidence. Because evidence of K.’s prior consistent statements were properly admitted to rebut Acker’s first theory of impeachment, and the remaining two theories of impeachment did not affect the admissibility of those statements, we will affirm Acker’s convictions for sex offense in the third degree. We will begin our analysis by reviewing the Court’s reasoning in Thomas itself. We will then consider Thomas in the context of other principles relevant to Rule 5-802.1(b) problems.

We will then turn to Acker’s specific contentions. ²²² II. Thomas: A Prior Statement Must Predate the Alleged Motive to Fabricate to Be Admissible under Rule 5 — 802.1(b) The trial court admitted K.’s prior consistent statements as substantive evidence pursuant to Rule 5-802.1(b). 10 The rule provides in pertinent part: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (b) A statement that is consistent with the declarant’s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive[.] Although Rule 5-802.1(b) is silent as to any temporal limitations, appellate courts in Maryland have held that prior consistent statements are admissible under this rule only if the prior statements were delivered “before the alleged fabrication or improper influence or motive arose.” Holmes v. State, 350 Md. 412, 424 , 712 A.2d 554 (1998). As the Court of Appeals explained in Thomas: In Holmes , we explained that Md. Rule 5-802.1(b) retains the common law “premotive” requirement. In other words, as a prerequisite to admissibility, a prior statement must predate the alleged motive to fabricate.

Under the common law, if a witness is attacked by a charge of fabrication or ²²³ improper influence or motive, the prior consistent statement is relevant only if it was made before the source of the fabrication or improper influence or motive originated. 429 Md. at 101-02 , 55 A.3d 10 (citing Holmes, 350 Md. at 422 , 712 A.2d 554 ). In Thomas, the defendant was charged with distributing controlled dangerous substances. At trial, the State offered evidence that the defendant and a man named Benjamin had engaged in an exchange of drugs, money, or both, in a shopping center parking lot, before driving away. The State contended that the evidence at trial established that the defendant was the seller and that Benjamin was the purchaser.

The defense presented the opposite theory, that it was Benjamin — not the defendant — who was the one distributing drugs. In support of the State’s position, the prosecution called Benjamin to testify, as well as the two police officers who stopped Benjamin’s vehicle and arrested him shortly after the exchange took place. Benjamin testified that he had purchased crack cocaine from the defendant. Thereafter, the two police officers testified that, after pulling him over on the side of the road and discovering crack cocaine on his person, Benjamin told them that he had purchased the drugs from the defendant.

Though opting not to present evidence of its own, the defense responded to this testimony by attacking the credibility of Benjamin during its cross-examination and closing argument. The jury ultimately convicted the defendant of distributing controlled dangerous substances. On appeal to this Court, in Thomas v. State, 202 Md.App. 386 , 32 A.3d 503 (2011), the defendant challenged the admissibility of the police officers’ testimony as to the prior, out-of-court statements of Benjamin. The defendant argued that Benjamin had a motive to testify falsely and that this motive arose from two distinct events: first, that, upon the officers’ discovery of crack cocaine on his person, he had a motive to lie to protect himself from drug distribution charges, and second, that he had a motive to testify falsely in court so that he would receive favorable treatment from the prosecution on unrelated charges involving his unauthorized use of a motor vehicle. 202 ²²⁴ Md.App. at 393-94, 397-98, 32 A.3d 503 .

The police found the cocaine in Benjamin’s possession before he made the out-of-court statements; but the unauthorized use situation arose after Benjamin made the statements. Id. On appeal, the defendant contended that, pursuant to Rule 5-802.1(b), the trial court erred in permitting the police officers to testify as to Benjamin’s pre-trial statements because they were made after at least one of the alleged motivations to lie arose. Id. at 394 , 32 A.3d 503 .

This Court disagreed, holding that, under the rule, “a witness’s prior consistent statement is admissible if made prior to the existence of any one of multiple biases or motives that an opposing party charges, expressly or impliedly, might have influenced the witness’s testimony.” 202 Md.App. at 398 , 32 A.3d 503 (emphasis added). Because the second of the two alleged motives to lie arose subsequent to Benjamin’s making of the statements, we affirmed the trial court’s evidentiary rulings. Id. at 400 , 32 A.3d 503 . The Court of Appeals granted Thomas’s petition for a writ of certiorari and came to a different conclusion.

In Thomas v. State, 429 Md. 85 , 55 A.3d 10 (2012), the Court held that, “when the witness is obviously under investigation or has been arrested when the [prior] statements were made, [those statements] are generally inadmissible because the motive to fabricate has already arisen.” 429 Md. at 103 , 55 A.3d 10 (citing 2 McCormick on Evidence § 251, at 152 (Kenneth S. Brown ed., 6th ed.2006)). Applying the rule to the facts before it, the Court concluded that the trial court erred in permitting the police officers to testify about Benjamin’s prior statements because “Benjamin made the statements after he was stopped by police and under investigation for his alleged participation in [the] drug transaction.” Id. at 106, 55 A.3d 10 . As the Court observed, “Benjamin had a motive to fabricate his story the moment he knew he was under investigation and/or stopped by the police on suspicion of participating in a drug transaction.” Id. at 107 , 55 A.3d 10 . Therefore, “his prior consistent statements were inadmissible because the motive to ²²⁵ fabricate, as alleged by [the defendant], had already arisen.” Id. at 106 , 55 A.3d 10 .

In so holding, the Court articulated the following generally applicable standard for purposes of applying Rule 5-802.1(b): “[i]f the prior consistent statements were made at a time prior to the existence of any fact which would motivate bias, interest, or corruption on the part of the witness then the prior consistent statements are admissible to rebut the alleged bias or interest,” but, “[c]onversely, statements made when the declarant had an alleged motive to falsify are not relevant [and thus not admissible] to rebut a charge of fabrication.” 429 Md. at 104-105 , 55 A.3d 10 . As the Court noted, “[t]he timing of the alleged fabrication is crucial to the application of Md. Rule 5-802.1(b),” and, therefore, “the trial court’s focus should be on when the prior consistent statements arose.” Id. at 104 , 55 A.3d 10 .

III

The Finite Scope of Rule 5 — 802.1(b) As the Court of Appeals made clear in Thomas, “under Md. Rule 5-802.1(b) a prior consistent statement may not be admitted to counter all forms of impeachment or to bolster the witness merely because [he or] she has been discredited.” 429 Md. at 102 , 55 A.3d 10 (quotation marks and citations omitted). Instead, the rule is “ ‘intended to permit the admission of those prior consistent statements which would logically rebut the impeachment undertaken, whether by an implied or express charge of fabrication or of bias or improper motive.’ ” Id. at 103 , 55 A.3d 10 (quoting Holmes, 350 Md. at 423 , 712 A.2d 554 ). To rebut the charge of fabrication, the out-of-court statement must have been made prior to the occurrence of facts or events that gave rise to the alleged motivation to fabricate. Such events may be, for example: an investigatory stop or arrest of the witness, id. at 103, 55 A.3d 10 ; the witness’s commission of a crime, Blair v. State, 130 Md.App. 571, 601 , 747 A.2d 702 (2000); McCray v. State, 122 Md.App. 598, 609-10 , 716 A.2d 302 (1998); the witness’s formulation of a “ ‘plan or contrivance to give false testimony,’ ” Cole v. State, 83 Md.App. 279, 301 , 574 A.2d 326 ²²⁶ (1990) (quoting McCormick on Evidence § 49 (E. Cleary 3d ed.1984)); or a “change of circumstances” arising from the witness’s role in a financial or other type of “transaction.” Baltimore City Pass.

Ry. Co. v. Knee, 83 Md. 77, 78-79 , 34 A. 252 (1896). Put another way, these cases stand for the proposition that Rule 5-802.1(b) is not an avenue for the admission of a witness’s consistent out-of-court statement unless the statement is introduced to rebut an impeachment based upon a specific event which is the source of the witness’s motivation to fabricate. See, e.g., Thomas, 429 Md. at 104 , 55 A.3d 10 ; Knee, 83 Md. at 78-79 , 34 A. 252 ; Cole, 83 Md.App. at 300 , 574 A.2d 326 .

That such a factual predicate is