Alford v. State

Panel: Berger, Reed, James R. Eyler (Senior Judge, Specially Assigned), JJ. Eyler, James R., J. ⁶⁰ Appellant, Armande Shelten Alford, was charged in the Circuit Court for Somerset County with second-degree sexual offense, third-degree sexual offense, unnatural or perverted practice, sexual abuse of a minor, and second-degree assault. Appellant was charged with committing the offenses from June 1, 2010 to July 26, 2010. This is relevant because appellant turned eighteen in May 2010.

Tried by a jury, appellant was convicted on all counts. Appellant was sentenced to concurrent sentences of fifteen years, with all but seven years suspended, for second-degree sex offense and sexual abuse of a minor, with the remaining convictions merged. Appellant was also ordered to serve three years' probation upon release and to register as a sex offender ⁶¹ for life. Appellant timely appealed and presents the following questions for our review: 1.

Did the trial court err in excluding the defense's expert sua sponte and without a Frye - Reed hearing? 2. In a case where the evidence regarding jurisdiction was closely contested, did the trial court err by failing to make a finding regarding jurisdiction? 3. In a case where the evidence regarding jurisdiction was closely contested, did the trial court err in refusing to include the alleged possible dates of the offense on the verdict sheet? For the following reasons, we shall reverse and remand for a new trial. ²⁴⁷ BACKGROUND Ten-year-old D.H., the daughter of Shayla H. and Devon Alford, testified that she had been living with her grandmother, Michelle H., in Hampton, Virginia, since she was five or six years old. 1 There was evidence that D.H. lived with her paternal grandmother, Lacolia Alford, and her uncle, appellant, in Crisfield, Maryland, from June 1, 2010 to July 25, 2010.

D.H. testified that one time, when she was four or five years old and living in Crisfield, after her paternal grandmother had gone to the store, appellant asked her to come upstairs to his room to watch a movie. After that movie ended, appellant "tapped on [her] shoulder and said don't tell anyone what you are about to do. And then he-well, he pulled out his private part and said to put it in [her] mouth." Although D.H. was scared, she did as appellant ordered, got on her knees, and put appellant's penis in her mouth. D.H. offered further details of this incident, including that appellant was lying on the bed, wearing an "orangy red shirt and some blue jeans," his penis ⁶² was brown, "straight up," and "kind of tall and it had a round-kind of like a round triangle top." One of the issues in this case concerned the timing of this event.

D.H., who was born in October 2005, believed the assault occurred when she was either four or five years old. She remembered that the sun was shining and flowers were outside the window. On cross-examination, when asked whether the incident occurred during a "visit" to her grandmother's, D.H. replied that it did not. She knew that her father, Devon, was not living in Crisfield at the time of the incident.

Also on cross-examination, D.H. agreed that she spoke to an investigator in Maryland about this incident and agreed she told that person that it happened "just before" she moved in with her maternal grandmother in Virginia. Lacolia Alford, appellant's grandmother, testified that appellant lived with her in Crisfield, Maryland from June 1, 2010 to July 26, 2010. According to Lacolia Alford, appellant never watched D.H., and was never alone with her. She confirmed that Devon Alford, appellant's brother, and his daughter, D.H., were also living with her during this timeframe.

After July 2010, D.H. moved to Virginia to reside permanently with her maternal grandmother, Michelle H. Michelle H. testified that D.H. lived with her in Virginia "off and on" after she was born, and lived with her permanently after she was five or six years old. Michelle H. explained that there had been different custody arrangements before that, and at various times, D.H. had stayed with her, her own mother, Shayla H., or her father, Devon Alford, when he lived with Lacolia Alford. Until the summer of 2015, D.H. spent part of the summers visiting with Lacolia Alford at her home in Crisfield. It was during that summer that D.H. told Michelle H. that she did not want to go to Crisfield, explaining what appellant had done to her.

After Michelle H. spoke to D.H., Michelle H. called Lacolia Alford, D.H.'s other grandmother, and told her D.H. was upset and crying. Eventually, Michelle H. came to Crisfield and spoke to the police concerning D.H.'s allegations. ⁶³ Corporal Johnathon Pruitt, of the Maryland State Police, spoke with Lacolia Alford on July 31, 2015, concerning the allegations ²⁴⁸ in this case. Corporal Pruitt then met with appellant. On August 3, 2015, appellant provided a statement to the officer after he was advised of and waived his rights under Miranda v. Arizona , 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). 2 In that statement, which was played for the jury, appellant agreed that, when he was 18 years old, during the summer of 2010, D.H. was living with him and his grandmother in Crisfield.

At first, appellant denied that he had been alone with D.H., but then confirmed that there was one occasion where, after his grandmother left the house to go to the store, that D.H. went upstairs to watch cartoons. 3 Appellant maintained that he never "watched" D.H., and he denied that anything inappropriate had occurred. Appellant repeated, several times, that "[n]othing happened." However, towards the end of the interview, when Corporal Pruitt suggested that D.H. may have touched his penis, appellant stated, "[m]aybe she did touch me or something" and "[m]aybe she touched me and I pushed her away[.]" He admitted that on one occasion, D.H. "walked up to me, something like that, touched me or something, and I said, get away from me, or something like that." Corporal Pruitt further testified that he drafted the initial charging document, charging appellant with the underlying crimes from June 1, 2010 to July 26, 2010. He explained that the latter date was based on the award of custody of D.H. to Michelle H. on July 26, 2010.

On cross-examination, Corporal Pruitt agreed that appellant's date of birth was May 16, 1992, and that he was 18 years old on May 16, 2010. After the State completed its case-in-chief, appellant called a number of witnesses to testify on his behalf. His brother, ⁶⁴ Devon Alford, D.H.'s father, confirmed that he paid child support for D.H. when she lived in Virginia with her mother and maternal grandmother. The payment of child support was suspended when D.H. lived with him in Crisfield, when he resided with his mother, Lacolia Alford.

The court admitted child support documentation which showed that: (1) child support for D.H. was suspended on October 30, 2006, when D.H. lived with her father; (2) child support was reinstated on June 4, 2007, when custody was granted back to D.H.'s mother; and, (3) primary custody was granted to D.H.'s mother on July 26, 2010. However, Devon also testified that D.H. would visit his grandmother in Crisfield. 4 Appellant's sister, also named Lacolia, confirmed that D.H. would visit her grandmother in Crisfield during the summers. Devon agreed that he was not present during those visits. We shall include additional detail in the following discussion.

DISCUSSION I. Appellant first contends that the court erred in excluding his expert, sua sponte , and without a Frye - Reed hearing. 5 The ²⁴⁹ State primarily responds that the expert was properly excluded based on Maryland Rule 5-702. In reply, appellant contends that the Rule 5-702 argument was not made below and should not be considered. Near the end of the jury trial, the appellant called his last witness, Dr. Maggie Bruck. At that point, the trial court asked the parties to approach, and the following ensued: THE COURT: What kind of witness is this? ⁶⁵ [DEFENSE COUNSEL]: She's an expert.

She's a psychologist. She has a Ph.D. She's an expert in memory essentially, childhood memories, how memories are formed, how they are retrieved. THE COURT: How in the world-she's not a physician? [DEFENSE COUNSEL]: No, she's a Ph.D. in Psychology. THE COURT: Well, how in the world does she qualify to testify about that? [DEFENSE COUNSEL]: About memory?

THE COURT: Any more than a lay person? [DEFENSE COUNSEL]: Because there are a lot of things that are very different than what lay people think about memories that are in fact the case. They do the studies. They interview children. They have controlled groups.

They do scientific research. And then she's written books. She's written articles. She's- THE COURT: I'm sorry to interrupt.

But does this even meet the threshold of a Frye-Reed test. It's never been submitted to a Frye-Reed test. [DEFENSE COUNSEL]: No one asked to have it submitted to a Frye-Reed. And she's been qualified as an expert in the State of Maryland and also several other States and other countries in her field. THE COURT: What's your position? [PROSECUTOR]: Her resumé generally says that she's been qualified as an expert in three cases in the State of Maryland and other States.

It doesn't specifically say what she's been qualified as an expert in. I'm not quite sure (inaudible) there is an issue with memory that's been generated insofar as [D.H.'s] recollection of the events. THE COURT: I don't see how her testimony is going to be any more probative than that of a lay person with respect to memory.... The trial court then continued: "I don't think she's qualified and I don't think this would meet the Frye-Reed test ..." ⁶⁶ The court then accepted a written proffer of Dr. Bruck's credentials and her proposed testimony, as follows: Dr. Bruck has a Ph.D. in Experimental Psychology from McGill University.

She is currently a Professor at Johns Hopkins University, Division of Child and Adolescent Psychiatry. She written/co-written [sic] 92 Peer Reviewed Articles in her field of study, she also cowrote 2 books, one of which involved a scientific analysis of children's testimony. Dr. Bruck contributed to 24 other books in her fields of study. She has been certified as an expert witness in 15 States, Canada, England, Ireland and Australia.

Dr. Bruck's testimony would provide a summary of the relevant scientific literature on evaluating the reliability of children's statements and highlight how this research and literature is important in evaluating the present case. She will testify generally about autobiographical ²⁵⁰ memory, which is the memory of past events that involve oneself. She would testify that long delays in disclosure have a great impact on one's ability, in particular children, to recall an event accurately. The recall of an event long after it occurs requires the brain to reconstruct the memory.

New experiences can interfere with those memories. The contents of memories involve manipulation of the memory during encoding, integration of the information with pre-existing information and then reconstruction of that information when it is retrieved. It is common for the brain to fill in the gaps of the memory during retrieval in order to help make the memory make sense. In addition, suggestion through questions or information coming from adults or other outside experiences can cause confusion in memories and/or false memories.

Dr. Bruck would also testify, that contrary to popularly held beliefs about memory, a very detailed report of an event does not necessarily indicate that the memory is more accurate. Human memories are not a video recording of an event. Things are forgotten, confused and events that never happened can be recalled as if they did. Numerous studies of children and adults have shown that human memory is highly susceptible to outside influences. ⁶⁷ Dr. Bruck would testify that the age of an individual at the time the memory is stored has [an] impact on what types of information is stored.

For example, a child under the age of 5 is highly unlikely to store memories that are introspective, emotional, temporal, or verbatim. Dr. Bruck will offer an opinion as to what types of details a 4 year old could recall about an event at the age of 9. Specifically, in this case that it is highly unlikely that the child would recall verbatim what words were said, what color clothes she or someone else was wearing, what color the sheets were on the bed and the weather on the date of the memory. Childhood memories are typically fragments, often out of order, and contain guess and incorrect details.

Memories formed before 4 or 5 years old are poorly remembered and not well preserved for future use. A more mature memory system develops after age 5-7 years old and stable adult-like autobiographical memories are rare[ly] seen before the age of 8-10 years. Dr. Bruck would also testify that all memories, whether traumatic or not are subject to decay, forgetting, interference and distortion. The reconstructive process is an unconscious one and therefore, the vividness and apparent authenticity of the memories is not a reliable measure for their truth.

Defense counsel and the court continued to discuss this witness: [DEFENSE COUNSEL]: And there are in fact (inaudible) where children are interviewed about traumatic events such as a shooting in a school and a child who wasn't even present made claims to remember very specific details about where they were and what they were doing when the shooting happened. THE COURT: She would offer-according to your proffer Doctor Bruck will offer an opinion as to what types of details a four year old could recall about an event at the age of nine? [DEFENSE COUNSEL]: Yes. ⁶⁸ THE COURT: Well, that's basically she's invading the memory of this particular-there is no way she would know what this particular child thinks. [DEFENSE COUNSEL]: They know based on developmental and tests what types of things a four year old can talk about. Therefore (inaudible) they cam ²⁵¹ [sic] remember. That's how they remember things.

Your brain is developing in its ability to recall the types of things it recalls and their ability to retain that information there is lot of (inaudible). THE COURT: Isn't it your burden to proffer to the Court ahead of time so the Court can conduct a Frye-Reed test on this topic? [DEFENSE COUNSEL]: She was disclosed as an expert to the State's Attorney. I believe it is the State's burden to request a Frye-Reed hearing if they would like to challenge that. The State has not done so.

THE COURT: Do you want to say anything at all? [PROSECUTOR]: The State didn't request a Frye-Reed hearing in this particular matter, Your Honor, but that didn't (inaudible) the disclosure not too long ago in regards to the expert witness. THE COURT: Do you have any case law or rule that says the State must initiate the Frye-Reed Test? [DEFENSE COUNSEL]: Not in front of me. The court then ruled: THE COURT: I don't think what you proffered satisfies the Frye-Reed Test. I don't think that.

She would satisfy the Federal Daubert, D-a-u-b-e-r-t, Test. So you've made your proffer. I'm not going to let her testify. [DEFENSE COUNSEL]: I understand, Your Honor. What I would indicate is that there has been absolutely no testimony presented to this Court in order for the Court to make that determination.

If there was going to be a Frye-Reed hearing there is usually a much more involved hearing where information is presented by the expert and/or other experts as to whether or not- ⁶⁹ THE COURT: That's what you should have done. You should have- [DEFENSE COUNSEL]: I don't have to ask for a Frye-Reed hearing to have my expert qualified. THE COURT: Well, she's not qualified as an expert. The Court of Appeals has set forth the following with respect to Frye - Reed : In Armstead v. State , 342 Md. 38 , 54, 673 A.2d 221 , 228-29 (1996), we said: In Maryland, novel scientific evidence may become admissible in one of several ways.

First, the evidence may be admitted by statute, if a relevant statute exists. See 5 L. McLain, MARYLAND EVIDENCE § 401.4(c), at 277-78 (1987). Second, the proponent can prove that the evidence meets the Reed standard of "general acceptance" in the relevant scientific community. Reed v. State , 283 Md. 374 , 381, 391 A.2d 364 , 368 (1978) (quoting Frye v. United States , 293 F. 1013 , 1014 (D.C.Cir.1923) ).

This can be accomplished through expert testimony, judicial notice, or a combination of the two. Goldstein v. State , 339 Md. 563 , 567, 664 A.2d 375 , 376-77 (1995). The "standard enunciated in Frye v. United States ... and adopted by this Court in Reed v. State ... makes evidence emanating from a novel scientific process inadmissible absent a finding that the process is generally accepted by the relevant scientific community." Clemons v. State , 392 Md. 339 , 343-44, 896 A.2d 1059 , 1061 (2006). Since we adopted the Frye standard in Reed v. State , we have often had the occasion to elaborate on the development and application of the Frye - Reed standard. ²⁵² Savage v. State , 455 Md. 138 , 157-58, 166 A.3d 183 (2017).

Although the general standard of review for admission of expert testimony is discretionary, we recognize that "[a]ppellate review of a trial court's decision regarding admissibility under Frye - Reed is de novo ." Wilson , 370 Md. at 201 n. 5, 803 A.2d 1034 ; accord Savage , 455 Md. at 157 , 166 A.3d 183 . That being said, it remains "the proponent's burden of ⁷⁰ satisfying Frye - Reed by a preponderance of the evidence, and to do so at the initial pre-trial stage[ ]." Savage , 455 Md. at 171 , 166 A.3d 183 ; see also Howard v. State , 232 Md. App. 125 , 168, 156 A.3d 981 ("The burden was on the defense to request a Frye - Reed hearing. Having failed to do so, Howard cannot complain on appeal that the trial court erred by not holding such a hearing"), cert. denied , 453 Md. 366 , 162 A.3d 842 (2017) ; Cobey v. State , 73 Md. App. 233 , 238, 533 A.2d 944 (1987) ("Under the Frye - Reed test, the proponent of a new scientific test bears the burden of producing evidence to establish the technique's general acceptance. The State conceded at oral argument that it also bore the burden of persuasion, as the proponent of the new technique") (internal citation omitted).

In this case, appellant's initial argument is that the trial court erred in even raising Frye - Reed , sua sponte , absent an objection from the State. Although it is true that the party objecting to expert testimony ordinarily requests such a hearing, as the State points out, the trial court is the " Frye - Reed gatekeeper." See Savage , 455 Md. at 171 , 166 A.3d 183 ("The fact that an expert's opinion is not contradicted does not require its admission. To so hold would abrogate the gatekeeping obligation of the trial court, which must inquire into the admissibility under Frye - Reed of even uncontradicted evidence"); see also Howard , 232 Md. App. at 168 , 156 A.3d 981 ; Addison v. State , 188 Md. App. 165 , 181, 981 A.2d 698 (2009) (declining to address a Frye - Reed issue raised on appeal and observing that "the grounds for the objection were vague. No Frye / Reed analysis was requested, or even hinted to, at trial"), cert. denied , 412 Md. 255 , 987 A.2d 16 (2010).

We are not persuaded that the court erred in raising the Frye - Reed issue or that appellant's burden in this regard shifted to the State simply because the State did not ask for a Frye - Reed hearing prior to trial. Nevertheless, with respect to the merits of the Frye - Reed issue, the State suggests that we "should not decide the Frye issue based on the limited record below." We agree. See Addison , 188 Md. App. at 181 , 981 A.2d 698 ("[W]e have never ⁷¹ subjected evidence to Frye / Reed when not conducted or requested at trial") (emphasis added). The State argues, however, that our analysis should not stop there.

The State explains that we should affirm because, under Rule 5-702, the court did not abuse its discretion in refusing to admit the proffered evidence. Maryland Rule 5-702 provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill experience, training or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. Under this rule, trial courts have "wide latitude in deciding whether to qualify ²⁵³ a witness as an expert or to admit or exclude particular expert testimony." Massie v. State , 349 Md. 834 , 850-51, 709 A.2d 1316 (1998).

In the absence of an error of law or fact, we review the admission of expert testimony for abuse of discretion. See Bomas v. State , 412 Md. 392 , 416-17, 987 A.2d 98 (2010) ; Wilson v. State , 370 Md. 191 , 200, 803 A.2d 1034 (2002). Moreover, the trial court's "action in admitting or excluding such testimony will seldom constitute a ground for reversal." Bryant v. State , 393 Md. 196 , 203, 900 A.2d 227 (2006) (citations omitted). Expert testimony "is admissible only if it is relevant in the particular case[.]" State v. Smullen , 380 Md. 233 , 268, 844 A.2d 429 (2004).

"The standard for relevance under Maryland common law is whether the jury will receive appreciable help from the expert testimony in resolving the issues presented in the case." Simmons v. State , 313 Md. 33 , 41, 542 A.2d 1258 (1988) ; see also Sippio v. State , 350 Md. 633 , 648-49, 714 A.2d 864 (1998) (observing that the inquiry turns on whether the trier of fact will receive appreciable help, and trial courts "need not consider whether the trier of fact could possibly ⁷² decide the issue without the expert testimony"). The Court of Appeals has made clear that "[t]he burden rests with the proponent of the expert testimony to demonstrate that these requirements have been met." Rochkind v. Stevenson , 454 Md. 277 , 286, 164 A.3d 254 (2017) (citing Bomas , 412 Md. at 417-18 , 987 A.2d 98 ). In response to the State's argument, appellant observes that Rule 5-702 was not argued before the trial court, and the court did not exercise discretion under that Rule. Thus, because application of the Rule would require us to exercise discretion in the first instance, we cannot affirm on that basis.

We agree. See State v. Bell , 334