Avery v. State

Carter, J., delivered the opinion of the Court. The appellant John Lawrence Avery, M.D., was convicted by a jury in the Circuit Court for Montgomery County of assault and battery upon Eileen K. Hall and sentenced to five years in prison by Judge Joseph M. Mathias. The last three and one-half years of the sentence were suspended. He appeals from this judgment contending that the trial court committed numerous prejudicial errors as hereafter related.

The indictment consisted of four counts charging the appellant with attempted rape, assault with intent to rape, assault and battery, and assault, respectively. FACTS The evidence adduced by the State showed that the victim was a twenty-year-old single girl who had been a patient of the appellant for about two years prior to the incident. On January 16, 1971, the appellant conducted part of a physical examination of Miss Hall in his office. Rather than have her come back, he suggested that he ⁵²⁵ could stop by her apartment on his way to a medical meeting and complete the examination.

On the afternoon of January 25, he telephoned her and stated he would stop at her apartment that evening and requested that she have her bed pulled out and have on her bed attire so he could finish the examination. When he arrived, they sat a table in the living-dining room of her efficiency apartment. During the course of his examination, he inquired how she was sleeping and she replied not too well. When he asked if she would like something to help her sleep, she did not object and while they were still seated at the table, he gave her an injection in her arm.

Immediately, she lost consciousness. When she awakened she was lying on her sofa-bed with the appellant lying beside her. Her clothing from her waist down had all been removed except her underpants which were around her ankle. When she realized the appellant was sexually molesting her, she was shocked and frightened but kept her eyes closed so as not to indicate to him that she was conscious for fear he might seriously harm her.

At that time the phone rang whereupon the appellant arose from the sofabed and said to her, “Your phone is ringing.” She then sat up and replaced her clothing. He said to her, “You really had a bad dream,” advised her he had finished his examination, and departed. After the appellant left, she called a male acquaintance who lived in the same apartment house and informed him what had occurred. She and her friend then went for a ride and dinner.

During the evening she decided to have a blood test made to determine the contents of the injection and about 1:30 a.m. went to the Holy Cross Hospital for that purpose. While at the hospital, she related the incident to two policemen who were there in connection with another case. They advised her to report the matter to the Detective Bureau in Montgomery County, which she did later that same day. In reporting the incident, Miss Hall protested to Lieutenant Robertson that no one would take her word against that of a doctor.

The Lieutenant instructed her to keep up her contacts with the ⁵²⁶ doctor and advise him of all future developments. Later that day the appellant telephoned her and requested that she call him in two weeks concerning the effect of the medication he had given her. She advised Lieutenant Robertson of this call and was instructed to call the appellant as the appellant had suggested. Accordingly, she did so on February 8 and 22.

On February 22 the appellant prescribed additional medication and advised her he could give her some of the tablets in his office or he could phone the prescription in to the drugstore, whichever she preferred. She replied whatever was easiest for him would be satisfactory to her. He then suggested that since he was going by her apartment that week on his way to the hospital, he could deliver the medicine to her apartment and inquired what night would be convenient. They agreed on February 25 at 8:00 p.m.

Promptly after this arrangement had been made, Miss Hall called Lieutenant Robertson and advised him of the development. Upon receipt of this information, Robertson made arrangements to have a closed-circuit television camera concealed in a shoe box in Miss Hall’s apartment, number 202, and a monitor installed in the adjoining apartment, number 203. The purpose of the installation was to conduct a police surveillance of the appellant’s contemplated visit to Miss Hall’s apartment. This purpose was fully understood and agreed to by both Miss Hall and her neighbor.

The appellant arrived at Miss Hall’s apartment at 8:02 p.m. on February 25. At that time the television equipment was operating with Lieutenant Robertson, Corporal Miller, Detective Gibson (a woman), Dr. Reap, an Assistant Medical Examiner for Montgomery County, and the neighbor all looking at the monitor. When the appellant arrived, he sat on the couch beside Miss Hall. He then brought out a small package of pills and gave her some instructions as to their use.

He advised her that the pills might disturb her sleep and inquired how she was sleeping. She said not too well. He opened his bag, brought out a hypodermic needle and asked her about giving her something to help her sleep. ⁵²⁷ (This was the same question he had posed to her on January 25.) She indicated that whatever he determined was best would be agreeable to her. The appellant then gave her an intravenous injection in her arm and almost inmediately she lost consciousness.

The five persons who witnessed the event on television all testified to substantially the same facts. Their testimony showed that a few seconds after the injection, Miss Hall’s head began nodding back and forth and she fell against the appellant. Thereupon the appellant placed his arm around her, pulled her to him, and put his hand on her breast. When she had entirely stopped moving, he leaned her back against the couch, stood up, removed his coat, and sat back down on the couch.

He then pulled her onto his lap and placed his left hand between her legs in the area of her genitalia. He then removed her clothing from the waist down. At this point Lieutenant Robertson and Corporal Miller left the monitor and upon a signal from Dr. Reap went to apartment 202 and entered with a key which Miss Hall had previously given them. Upon entering the apartment they observed Miss Hall in an unconscious condition on her back on the couch with the appellant on top of her.

Lieutenant Robertson identified himself and placed the appellant under arrest. Thereafter Dr. Reap and Detective Gibson entered apartment 202, assisted Miss Hall in dressing, and Dr. Reap took a blood sample from her arm for testing. The appellant did not testify. He offered the medical records of Holy Cross Hospital which showed that a complete vaginal examination of Miss Hall was conducted at that institution at about 12:30 a.m. on January 26.

This examination disclosed no evidence that sexual intercourse had occurred in the immediate past. He also produced an expert television engineer who testified that placing the television camera in question in a shoe box and operating it for several hours prior to 8:00 p.m. on February 25, as was done in this case, would tend to diminish the clarity of the picture. He further stated that the picture produced by the television equipment used in ⁵²⁸ this instance was inferior to the commerical type of television used in homes. The appellant also produced a number of friends and neighbors who testified to his good character and reputation.

CONTENTIONS I and II Since both contentions 1 and 2 concern pre-indictment publicity, they will be considered together. The appellant’s first contention is that the court erred in denying his pre-trial motion to dismiss the indictment because the pre-indictment publicity was so great as to preclude the grand jurors from making an independent decision and therefore deprived him of due process. His second contention is that the court erred in denying his motion for production of the grand jury minutes concerning the return of the indictment. He alleged he was entitle'd to these minutes in order to ascertain if there was any voir dire examination of the grand jurors to determine whether they were disposed to indict the appellant, irrespective of the evidence produced before them, because of the pre-indictment publicity.

The evidence showed that subsequent to a preliminary hearing on March 17, 1971 and prior to the indictment on March 29, 1971, articles concerning the appellant’s conduct, as charged in the indictment, appeared in several newspapers, having a general circulation in Montgomery County. The articles in substance recited the facts shown by the State’s evidence concerning the crime charged, as heretofore related, and made a brief reference to an incident between Miss Hall and the appellant that occurred prior to February 25. Reference was also made to a trial in 1966 where the appellant had been acquitted of charges of abortion and assault on a patient. There is no showing that any of the grand jurors who returned the indictment against appellant were apprised of the information contained in the newspaper articles.

Even assuming they were so informed, the contention is with ⁵²⁹ out merit. In Coblentz v. State, 164 Md. 558 , 1 the Court of Appeals said at page 570: “* * * The grand jury, as has been observed, is not a judicial body; it is an accusing body, permitted to act upon knowledge obtained by its members from any source. * * * But there are no statutory provisions in Maryland, as there are in some other states, prescribing additional cautions of qualifications, and we find no ground for imposing a requirement that they must be unprejudiced, as the objection demands. * * *” (emphasis supplied.) 38 Am. Jur. 2d, Grand Jury, § 7 states: “Generally, in the absence of a controlling statutory provision, a person is not disqualified or incompetent to serve as a grand juror by reason of bias or prejudice on his part, by the fact that he has heard or read about the case under investigation * * *.” Since the prejudice of the grand jury is not grounds for attacking the validity of the indictment, the appellant did not show a particularized need for the minutes by alleging he wanted them for this purpose. In Grimm v. State, 6 Md. App. 321 , this Court, in speaking of the right of an accused to grand jury minutes, said at page 331: “* * * At the very most, Dennis [Dennis v. U. S. 384 U. S. 855 ] makes clear that it is only upon a showing of a ‘particularized need’ that an accused might be entitled in a proper case to such disclosure. * * *” We find no error in the court’s denial of the motion for production of the grand jury minutes. ⁵³⁰ III The appellant’s third contention is that the court erred in denying his demand for a bill of particulars to the indictment with respect to what conduct of the appellant was part of his professional relationship with Miss Hall and what part was claimed by the State to be criminal acts.

In Wilson v. State, 4 Md. App. 192 , this Court said at page 202: “Maryland Rules of Procedure, 715 a provides that the court may order the filing of a bill of particulars. But a defendant is not entitled thereto as of right. The grant or refusal of particulars is within the sound discretion of the trial court and this Court will not reverse a denial of particulars unless there has been a gross abuse of discretion resulting in injury to the accused. Pearlman v. State, 232 Md. 251, 261 .

Bills of particulars are intended to guard against the taking of an accused by surprise by limiting the scope of the proof. Hadder v. State, 238 Md. 341, 351 . * * *” We further held in Polisher v. State, 11 Md. App. 555 , 587 that Md. Rule 715 a does not contemplate that the State shall particularize all the evidence that it intends to offer. The record in the instant case showed that on May 16, 1971 2 the State’s Attorney turned over his entire file to counsel for the appellant. There is no showing of any surprise to the appellant in respect to the evidence offered by the State concerning his conduct toward Miss Hall, irrespective of whether it be characterized as professional or criminal.

Therefore, there was no abuse of discretion in the trial court’s ruling denying the demand for particulars. IV The appellant next contends it was prejudicial error for the court to refuse his motion to waive is right to a ⁵³¹ public trial and to grant him a private trial. In Cox v. State, 3 Md. App. 136 , this Court said at page 139-140: “It is true that the Sixth Amendment to the Federal Constitution guarantees to an accused ‘the right to a speedy and public trial.’ But we do not read this guarantee as carrying with it a right in the accused to demand a private trial. Under our form of government, secrecy in any phase of its administration is abhorrent; secrecy in the administration of justice is intolerable.

Our citizens have the same interest in insuring that fair play is accorded an accused at trial as they do in seeing that the rights of society are preserved and respected in the trial of an alleged offender against its laws. See E. W. Scripps Co. v. Fulton, 100 Ohio App. 157 , 125 N.E.2d 896 . This is not to say that a trial judge does not have some latitude in the conduct of the trial proceedings to make selective exclusions of members of the public where no prejudice to the accused results. The Court of Appeals of Maryland recognized this in Dutton v. State, 123 Md. 373 (at p. 387) : ‘In determining whether any part of the public should be excluded from the trial of a criminal case, some discretion must be allowed the trial court.’ We find no merit in the Appellant’s contention that it was error to deny him a private trial.” In Singer v. United States, 380 U. S. 24 , the Supreme Court held that trial by jury as guaranteed by the Sixth Amendment to the Constitution could be waived by an accused but that Federal Procedure Rule 23 (a) which conditioned his right to do so upon the court’s approval and the government’s consent violates no provision of the Federal Constitution.

In so holding, the Court said as a matter of dictum at page 34-35: “The ability to waive a constitutional right does not ordinarily carry with it the right to in ⁵³² sist upon the opposite of that right. For example, although a defendant can, under some circumstances waive his constitutional right to a public trial, he has no absolute right to compel a private trial, * * *.” We find no error in the court’s ruling. 3 V, VI, and VII Since contentions 5, 6, and 7 all involve the same question, they will be considered together. The basic question is whether the court erred in permitting the State, over the appellant’s objection, to refer to his conduct toward Miss Hall on January 25 when he was on trial only for his alleged criminal conduct toward her on February 25. By contention 5 he claimed the court erred in refusing his request that the prosecutor be prohibited from referring to events that occurred on January 25 in his opening statement to the jury.

The Court denied the appellant’s request and the opening statement of the State’s Attorney did contain the details of the occurrence on January 25 which he expected to prove. Obviously, if the evidence to which the prosecutor referred in his opening statement was admissible at the trial, he was entitled to make reference to it in his opening statement. In Gordon v. State, 5 Md. App. 291 , we said at page 306: “* * * [T]he rule is that evidence of other crimes is admissible to prove the specific crime charged jvhen such evidence tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of the ⁵³³ crime on trial. To like effect, see Jones v. State, 4 Md. App. 445 ; Thomas v. State, 3 Md. App. 708 ; Gilchrist v. State, 2 Md. App. 635 ; Loker v. State, 2 Md. App. 1; Gorski v. State, 1 Md. App. 200 .” The evidence showed that the appellant’s conduct toward Miss Hall on February 25 was the same type as that which he had exhibited toward her on January 25.

The two incidents were so related to each other that the proof of one tended to establish the other. Together they tended to show a common scheme or plan on the part of the appellant to sexually molest Miss Hall after causing her to become unconscious. Furthermore, the events that occurred on January 25 tend to establish the appellant’s motive and intent in respect to his conduct on February 25. We therefore conclude, under the holdings in Gordon v. State, supra and the cases therein cited that evidence of the appellant’s previous conduct toward Miss Hall was admissible.

Consequently, the court was not in error in refusing to prohibit the prosecutor from referring to the events of January 25 in his opening statement to the jury which was the basis of the appellant’s fifth contention. His sixth contention that the court erred in failing to grant his motion for a mistrial because of the prosecutor’s remarks and his seventh contention that the court erred in failing to grant his motion for a judgment of acquittal for the same reason are likewise without merit. VIII Contention 8 claims that the trial court committed prejudicial error by admitting, over the appellant’s objection, evidence of his conduct toward Miss Hall on January 25. We have already held under contentions 5, 6, and 7 that this evidence was relevant and admissible in proving the crime charged on February 25.

However, it is the appellant’s further contention that even assuming this evidence was relevant, it was nevertheless improperly admitted because at the time of its admission ⁵³⁴ the State had not established prima facie the commission of the crime charged on February 25. He relies for support of this contention upon MacEwen v. State, 194 Md. 492 , (1949) and Polisher v. State, supra. In MacEwen the Court of Appeals in dealing with the question of the order of proof of criminal acts of the accused other than those for which he was on trial stated at page 502: “* * * The law does not permit the proof of any such extraneous matter until the State has offered evidence which shows prima facie guilt [of the offense charged] * * In Polisher this Court interpreted the holding in MacEwen regarding the required order of proof by holding at page 585, that MacEwen “does not mean that the State must first establish prima facie every element of the crime charged, for it is the evidence of other offenses which may prove some of the elements of the crime charged.” Even assuming that it was error for the trial court to have admitted evidence of the collateral offense of January 25 before first requiring the State to introduce some clear evidence of the commission of the offense charged, we hold that it was harmless error. Immediately after the evidence concerning the incident of January 25 was introduced, the State introduced its full evidence concerning the incident of February 25.

Notwithstanding that this order of proof was contrary to the rule, there is no showing that the jury was confused or misled because of it nor that there was any reasonable possibility that the error might have contributed to the appellant’s conviction. It has been repeatedly held that while an accused has a constitutional right to a fair trial “he does not necessarily have a right to a perfect trial.” See State v. Babb, 258 Md. 547, 552 ; Bailey v. State, 6 Md. App. 496, 508 . We therefore find contention 8 is likewise without merit. IX, X, and XI Contentions 9,10, and 11 all relate to the refusal of the ⁵³⁵ complaining witness (Miss Hall) to waive her right to require the hospital to treat the records of her psychiatric diagnosis and treatment as confidential information.

Contention 9 claims the court erred in denying the appellant’s motion to compel the State to produce these psychiatric records for his inspection or in the alternative to dismiss the indictment with prejudice. Miss Hall testified that she had attended the Community Psychiatric Clinic in Montgomery County from October to December 1970 to find out what was wrong with her physically because she was continuing to have female problems and was continually tired notwithstanding the appellant’s prescriptions. She further testified, without contradiction, that she advised the appellant on January 16, 1971, that she had “started to go to the Community Psychiatric Clinic because I am just so physically sick.” Counsel for the appellant claimed the first time he knew of the existence of the psychiatric records was when Miss Hall mentioned her treatment by the Clinic in her testimony at the trial on June 9. He immediately moved the court to compel the State to produce these records.

Miss Hall then refused to waive her right to have them treated as confidential under Md. Code, Art. 35, § 13A, sub-section (b) which provides: “Except as hereinafter provided, in civil and criminal cases, * * *, a patient, or his authorized representative, has a privilege to refuse to disclose, and to prevent a witness from disclosing, communication, wherever made, relating to diagnosis or treatment of the patif it’s mental or emotional disorder, provided, that the presiding judge of a court of record may compel such disclosure in cases involving the custody of children, * * Sub-section (c) provides for six exceptions to the general prohibition set forth in (b), none of which are applicable to the facts in the instant case. After Miss Hall refused to waive her right under the statute, Judge Mathias de ⁵³⁶ nied the motion to require the State to produce the records for examination by the appellant. Under contention 9 the appellant claims (1) that Miss Hall as the complaining witness was an agent of the State and as such was not entitled to the protection of the statute; (2) since the statute allows the records to be produced, in the court’s discretion, in a child custody case but denies their production in the case of a sexual offense involving capital punishment, it violates the appellant’s constitutional right to due process and fundamental fairness; and (3) that the rights guaranteed him by the Sixth, Eighth, and Fourteenth Amendments to the Federal Constitution and Articles 5, 16, 21, 23, 44, and 45 of the Maryland Declaration of Rights have been violated. He further points out that Md. Rule 422 c permits the court to take whatever action it deems appropriate (including dismissal of the indictment) if a party refuses to produce documents or records and that Md. Rule 701 states that the Md. Rules are intended to provide for the just determination of all criminal causes.

In respect to the appellant’s claim (1) the fact that Miss Hall as the victim of a crime is the complaining witness used by the State in the prosecution of the instant case does not ipso facto cause her to become an agent and representative of the State. As a cooperative victim, she assisted the police in their investigation of the case. As the prosecuting witness at the trial, she testified to what she had observed and heard concerning the appellant’s conduct. She was in no sense an agent of the police or of the State.

We hold that the statute (Art. 35, § 13A) did apply to Miss Hall in the capacity she occupied at all times as a private citizen and patient. The appellant’s claim (2) is also without merit. Here he contends that the failure of the statute to permit the trial judge to compel the production of a psychiatric patient’s records in a case involving a sexual offense as well as in a case of child custody violates his constitutional rights. We disagree.

This so-called discrimination is not a violation of the equal protection clause because ⁵³⁷ a person accused of a serious sexual offense is in an entirely different class than an infant child whose custody is under consideration. The equal protection clause requires only that the laws treat persons equally who are in the same class and under like circumstances. See Eggleston v. State, 209 Md. 504, 515 ; Mullen v. Director, 6 Md. App. 120 ; Johnson v. State, 3 Md. App. 105 . The appellant baldly asserts in (3) and (4) that the statute as a whole is unconstitutional because it denies him due process and fundamental fairness in prohibiting him from examining the victim’s psychiatric records.

We find no merit in the argument. The privilege of non-disclosure afforded by the statute is facially constitutional and appellant cites no authority, constitutional or otherwise, which would nullify the protection extended by the statute. Where, as here, the witness claimed the privilege, no suppression of evidence by the State is involved within the contemplation of such cases as Brady v. Maryland, 373 U. S. 83 , 10 L.Ed.2d 215 , 83 S. Ct. 1194 or Giles v. Maryland, 386 U. S. 66 . The appellant cites United States v. Hillard, U.S.D.C.

(Calif. May 4, 1971) 30 U.S.L.W. 2679 -80; Brady v. Maryland, supra and refers to two military cases without citations against Officers Rheault and Moresco in support of his motion. None of the holdings in these cases are apposite to the facts in the instant case. In all of them the information sought by the defendant was in the possession or under the control of agents of the government as the prosecuting party.

In the instant case it was under the control of the complaining witness. Md. Rule 422 c prescribes sanctions to be applied for the violation of court orders dealing with depositions and discovery in civil actions under the provisions of Chapter 400 of the Maryland Rules and is not applicable to criminal causes. Md. Rule 701 deals with the interpretation of the Rules set forth in Chapter 700 concerning criminal causes. The suggested dismissal of the indictment is not predicated upon any Rule in Chapter 700 and therefore Rule 701 is not applicable. ⁵³⁸ We therefore conclude that the appellant has not shown that he was deprived of any of his constitutional rights by the refusal of Miss Hall to allow him to inspect her psychiatric records under the authority of Art. 35, § 13A.

Therefore the court did not err in denying the appellant’s motion to compel the State to produce these records or in the alternative to dismiss the indictment with prejudice. Contention 10 claims that the court erred in denying the appellant’s motion to require an in-camera inspection of the psychiatric records. Since we have already held the appellant was not entitled to inspect the records, it is clear no useful purpose would be served by having the court make a personal inspection of them. We therefore hold there was no error in the court’s denial of this motion.

Contention 11 claims the court erred in denying the appellant’s motion to strike the testimony of Miss Hall after she refused the appellant permission to inspect her psychiatric records. Inasmuch as we have already held the appellant was not entitled to inspect these records, there was no error in the court’s denial of this motion. XII Contention 12 claims the court erred in denying the appellant’s motion to dismiss the indictment because of the failure of the State to advise the appellant in advance of the trial that the prosecuting witness had been a patient at a psychiatric clinic within a few months prior to the alleged offense and that she had attempted to commit suicide within two days after the offense occurred. In respect to the psychiatric treatment the undisputed evidence shows Miss Hall personally informed the appellant on January 16 or more than four months prior to trial that she was a patient at the Community Psychiatric Clinic in Montgomery County.

In