Braxton v. Faber

DAVIS, Judge. The appellant, Audrey Braxton, seeks review of the proceedings in the Circuit Court for Montgomery County before the Honorable William C. Miller, presiding with a jury. The jury returned a verdict in favor of the appellee, defendant below, as to liability. The appellant presents the following issues for our review: 1.

Whether the trial court committed error throughout the trial. 2. Whether the trial court was biased against the appellant and her counsel. 3. Whether the jurors were prejudiced and guilty of misconduct. 4. Whether the trial court abused its discretion. 5.

Whether the appellant has been denied her Constitutional right to a fair trial. FACTUAL BACKGROUND On March 16, 1987, Audrey Braxton, appellant, was driving her automobile eastbound on Grovesnor Lane, in Rock-ville, Maryland, anticipating a merger with southbound traf ³⁹⁵ fic travelling on Rockville Pike. The appellant came to a stop at the yield sign at the intersection of Grovesnor and Rockville Pike. The appellee also had been travelling eastbound on Grovesnor Lane and was stopped behind the appellant at the yield sign.

After waiting for traffic to clear, the appellant moved out into the right-hand lane of Rockville Pike. The appellee also checked traffic on Rock-ville Pike, and when she perceived that all was clear, she too moved out into the right-hand lane of Rockville Pike behind the appellant. After travelling approximately 100 yards in the right-hand lane, the appellant came to a complete stop. At the same time the appellee was attempting a lane change from the right lane to the center lane of Rockville Pike.

The appellee, not realizing that the appellant had stopped, accelerated to make the lane change. The appellee looked up, saw the appellant, and applied her brakes but could not avoid the collision. The appellee contends that the appellant came to a complete and sudden stop for no apparent reason. The appellee further contends that, after driving to a nearby vacant lot to exchange insurance information, the appellant told her the reason she (the appellant) stopped was because she had changed her mind and had decided to make a lane change into the center lane of Rockville Pike.

DISCUSSION Testimony of Medical Expert The appellant first argues that the trial court erred in allowing the testimony of John Mizukawa, D.D.S. The appellant argues that, since Dr. Mizukawa is a maxillofacial 1 surgeon and the appellant testified that she had dysphasia, difficulty in swallowing, and did not allege temporomandibular joint (TMJ) injuries, the doctor’s testimony was irrelevant. The appellant also objects to the testimony because the doctor was not named by the appellee in ³⁹⁶ response to the appellant’s interrogatory concerning expert witnesses who would be called to testify at trial. Thus, the appellant’s counsel alleges they did not have ample time to prepare for examination of Dr. Mizukawa. It is a time-honored rule of evidence that “in order to qualify as an expert, [one] should have such special knowledge of the subject on which he is to testify that he can give the jury assistance in solving a problem for which their equipment of average knowledge is inadequate.” Raitt v. Johns Hopkins Hospital, 274 Md. 489, 500 , 336 A.2d 90 , quoting Casualty Ins.

Co. v. Messenger, 181 Md. 295, 291-99 , 29 A.2d 653 (1943); see generally, McLain, Maryland Evidence, § 702.1. Broad discretion is vested in the trial court with regard to expert testimony, and that discretion will not be disturbed on appeal absent an error of law or fact, a serious mistake, or a clear abuse of discretion. Rodman v. Harold, 279 Md. 167, 170 , 367 A.2d 472 (1977). We further note that objections attacking an expert’s training, expertise, or basis of knowledge go to the weight of the evidence and not its admissibility.

Lahocki v. Contee Sand & Gravel Co., 41 Md.App. 579, 600 , 398 A.2d 490 (1979), quoting Baltimore Transit Co. v. Smith, 252 Md. 430, 436 , 250 A.2d 228 (1969). From our reading of the record, we do not find that the appellant was unfairly prejudiced by the appellee’s failure to list Dr. Mizukawa in her answers to interrogatories. Counsel for the appellant claims lack of time to prepare for trial, yet counsel participated fully in the deposition of Dr. Mizukawa, which lasted for more than two hours. Further, Dr. Mizukawa gave much of the same testimony at trial as he gave in his deposition.

Additionally, the appellant was in possession of Dr. Mizukawa’s report for some two-and-a-half years prior to trial. The appellant also argues that sanctions are in order for the appellee’s failure to name Dr. Mizukawa in response to appellant’s interrogatories. Though the appellant thoroughly and accurately set forth the rules regarding ³⁹⁷ discovery and the failure to comply therewith, that determination is within the sound discretion of the trial court and will not be overturned absent an abuse. There is no evidence in the record to suggest that the appellee’s omission of Dr. Mizukawa’s name was in any way willful or contumacious, and therefore we cannot say that the trial judge abused his discretion in not imposing sanctions.

Additionally, there is no evidence in the record to suggest that the appellant made a Motion for Sanctions or suggested at trial that sanctions were in order for this omission. The appellant asserts that Dr. Mizukawa’s testimony clouded the appellant’s credibility as to both liability and damages. We are unclear as to how the doctor’s testimony had any bearing on the basic question of whether the appellant negligently stopped her car on Rockville Pike (ie., the basic question of liability for the accident). Lastly, the appellant contends that the trial court erred in allowing Dr. Mizukawa to testify “in the middle of the plaintiff’s [appellant’s] case-in-chief.” 2 The court granted appellant’s request to call Dr. Kevin M. Murphy in the middle of her testimony; she asserts, however, that the court erred in permitting Dr. Mizukawa to testify out of order.

Wide discretion as to the course of the trial is vested in the trial court, and the exercise thereof will not be reversed absent an abuse of discretion. Thrifty Diversified, Inc. v. Searles, 48 Md.App. 605, 615 , 429 A.2d 270 (1981). As a practical matter, great latitude is often accorded professionals, including medical experts, who have been summoned to testify. It is not uncommon, as a courtesy to these professionals, for a court to structure the order of testimony around their schedules.

We cannot say that in doing so the trial court abused its discretion. Fireman’s Fund v. Bragg, 76 Md.App. 709 , 548 A.2d 151 (1988). We ³⁹⁸ therefore hold that the trial court did not err in taking the testimony of Dr. Mizukawa out of the predetermined order. Judicial Prejudice/Bias The appellant next argues that the trial court was racially biased against her and her counsel. 3 We pause, at the outset, to comment that the charges made by appellant on this appeal are grave indeed and should not be made, or disposed of, lightly.

The factual basis primarily consists of asserted observations made by counsel of the gestures and body language of the trial judge. Appellant asserts that “[i]n the instant case, the judge’s outbursts regarding the trial time, when coupled with the judge’s overall demeanor, body language and other actions during the trial, clearly conveyed the judge’s biases and prejudices to the jurors.” Amplifying on her complaint of expressive body language, she further contends that [t]he judge refused to maintain an air of impartiality. Throughout the trial, the presiding judge constantly looked at the ceiling, moaned, groaned and rolled his eyes whenever Appellant’s counsel presented evidence and conducted the examination of Appellant’s witnesses. Furthermore, during the Appellant’s direct examination, the judge continuously rolled his eyes, moaned, groaned and held his head in disbelief.

Alternatively, when the Appellee testified, the judge did not make the same disruptive gestures. The judge never complained, moaned, groaned ³⁹⁹ or rolled his eyes at the Appellee’s counsel. In fact, the judge bent over backwards to assist the Appellee’s attorney. For example, the judge would wink, nod his head, smile and clear his throat in an obvious effort to prompt the Appellee’s attorney to make objections which were then immediately sustained by the Court.

Appellant summarizes her contention, stating: “The presiding judge’s words, body language and the inflections in his voice, throughout the trial, clearly communicated his biases to the jury.” Since the proceedings below were not videotaped, counsel for the appellant sought to preserve this issue for our review by stating: MS. POWELL: Okay. The other thing for the record, I just want the record to reflect, since this proceeding is not being video taped, it has been our observation throughout the trial that Your Honor has rushed us along, [4] rolled your eyes, yelled at us, complained, moaned and groaned, but only when the plaintiff is speaking or only when the plaintiff’s attorneys are speaking. It is also our observation that Mr. Ethridge is not being rushed along.

Additionally, it is our observation that he is being prompted to make objections. ⁴⁰⁰ I just want to note that for the record. After the jury had left the courtroom, the trial judge entertained the defendant’s motion for judgment which was denied. After the court and counsel discussed several exhibits, they engaged in the following exchange: 5 “Now, Ms. Powell, you have made some very serious accusations about this Court’s lack of impartiality; you have accused the Court of making faces and doing other things to demonstrate bias apparently against the plaintiff and in favor of the defendant; you have made allegations that the jury has improperly discussed this case among themselves in contravention of the Court’s order; you have attacked my integrity and you have attacked the jury’s integrity; and you have attempted to hang a dark cloud over this case. If you have got any proof of either of these things I suspect now is the time to submit it. “MS.

POWELL: Your Honor, may I be heard? “THE COURT: Yes. “MS. POWELL: With respect to the jury, my proposal was that the Court conduct a voir dire of the jury to find out whether there were any permissible discussions. I indicated that I heard, you know, some mention of, “Well, I wonder what she is going to say today.” I believe Mr. Randle heard the expert, Murphy’s name mentioned. I believe Mrs. Randle, who is present in Court, you know, heard some slight references; we did not hear the entire conversation, which is why we asked whether the Court would be willing to inquire.

If the Court inquired and we found that they were just discussing procedural matters, then we would not have any problem with that. We were just asking if the Court would consider inquiring. “With respect to the other comments, Your Honor, I did not mean any disrespect or anything like that, but I just ⁴⁰¹ wanted to make the record clear since this proceedings is not being video taped. I just feel I have an obligation to my client to protect the record. “THE COURT: Well, you do not have an obligation to accuse the Court of impropriety. If you— “MS.

POWELL: I did not— “THE COURT: (continuing) — have got any evidence of that, I want you to put it on the record— “MS. POWELL: I did not accuse you of— “THE COURT: (continuing) — and if you do not, I expect an apology from you. “MS. POWELL: I did not accuse you of impropriety, Your Honor. That was not— “THE COURT: You certainly did. “MS.

POWELL: Those were not my words, Your Honor. “THE COURT: Your [sic] certainly did. You accused me of making faces and doing other things to demonstrate my bias. “MS. POWELL: I did not— “THE COURT: And that is unfair and that is not true. “MS. POWELL: Your Honor, I did [not] [sic] even mention the word “Bias,” Your Honor. “THE COURT: You mention I was making faces and doing other things improper. “MS.

POWELL: Your Honor, if I may be heard, I believe what I said is during certain portions of the plaintiffs testimony, as well as when plaintiffs counsel, you know, was questioning witnesses, it was my observation that from time to time you did roll your eyes and look at the ceiling, and moan and groan, and rush us along with respect to the time, and, Your Honor, even if you were to look through the transcript, I do not believe that defense counsel has been rushed along or anything like that, I do not believe that defense counsel has been given a hard time, and I just want ⁴⁰² the record to reflect that. I am not accusing you of any bias per se. “THE COURT: Well, why did you bring it up if you are not accusing me of something? “MS. POWELL: I just want to protect the record. I am just trying to properly defend my client, Your Honor. “THE COURT: Well, how are you properly defending your client by making accusations against me?

Are you asking for a mistrial or what are you trying to do— “MS. POWELL: Your— “THE COURT: (continuing) — other than to offend me? “MS.. POWELL: I am not trying to offend you, Your Honor. I do not mean disrespect.

Just part of my concern is that the jury may possibly be wondering, you know, what is going on. I — like I said, I do not mean disrespect to Your Honor and I was just merely trying to protect the record. “THE COURT: Well, there is no record of it. If you want to put a record on of anything that I have done that is improper, I am giving you the chance right now, and if you do not have any evidence of it, I resent it. “MS. POWELL: Your Honor, I stated what my visual observations are; additionally, I believe that I stated from time to time when Mr. Ethridge has not make [sic] an objection to a particular line of questioning, that you in fact looked at him and cleared your throat and nodded at him and so forth, as if to prompt an objection. “THE COURT: All right.

Are you asking— “MS. POWELL: I would ask that you not— “THE COURT: Are you asking for a mistrial because of my impropriety? “MS. POWELL: No, Your Honor, and I would ask that you not hold this against my client. My client does not have anything to do with this.

I am merely trying to represent her and I would ask the Court not hold this against my client. ⁴⁰³ “MR. ETHRIDGE: Your Honor, I will not make any comment, but I am prepared, if a record need be made, to make my observations in response to what plaintiffs counsel is alleging, because I thing [sic] that the comments made by counsel are not true, out of line, and if a record need be made, I will be pleased to speak about my observations. I think this is totally, totally uncalled for, as to the observations by the Court. “THE COURT: Mr. Randle? “MR. RANDLE: Your Honor, Mr. Ethridge has a lot of nerve talking about things that are totally uncalled for.

When we were in the pretrial stages, trying to settle this case, when we came in to discuss the case in settlement, he called the case fraudulent, period. Did not even want to talk about it. Okay? So, in terms of— “THE COURT: Well, that has got nothing to do with the— “MR.

RANDLE: I understand that. “THE COURT: (continuing) — accusations against me. “MR. RANDLE: I understand that, but with respect to his comments — just with respect to his comments. “But, Your Honor, what I would like the Court to have clear is that we are not trying to ask for — and we are not asking for a mistrial, we are not doing that, and the perceptions of counsel here are her perceptions. I did not witness that— “THE COURT: No, but what you are trying to do is hang a dark cloud over me and this case, and if— “MR. RANDLE: Well, Your Honor— “THE COURT: (continuing) — [it] is not for the purpose of making a motion for a mistrial, if it is not any other purpose, it is simply scurrilous. “MR.

RANDLE: Your Honor, all I can say is that we are just trying to — counsel is just trying to make a record, I am trying to push the case along, and at this point I hope that you do not harbor any animosity against counsel and the ⁴⁰⁴ client with respect to the comments made and we would like to get on with the trial. “THE COURT: All right. Well, I will put for the record that I have hurried the case along and it is necessary to hurry the case along because I told you in chamber[s], I have told you throughout this trial that it has to be done in three days, and it is just that simple, and I have hurried it along and it needed to be hurried along. “MR. RANDLE: Your Honor, if I may, if I may add an additional comments [sic]. I know yesterday evening we were rushed through our direct.

The reason we could not continue our direct until five o’clock is because a defense witness was called out of turn and took a couple of hours out of our case, and I just want to— “THE COURT: It did not take two hours. I gave you an hour and a half on — I guess the first day of trial, on Tuesday, you had the plaintiff on for an hour and a half on direct, and you had another 45 minutes. Now, that is two hours and fifteen minutes on direct examination and that is plenty of time, and you were not in any way short-changed on time. “MS. POWELL: I do not— “THE COURT: I allowed you to call witnesses, to take the plaintiff off the stand to accommodate experts, and I have tried to accommodate both sides in this case as best I can, and, again, I do not appreciate the insinuations that you have made. “MR.

RANDLE: Thank you, Your Honor. . “THE COURT: We will take a short recess and then we will bring the jury back.” As we see it, the task before us is to determine whether, in the first instance, the appellant has made a sufficient record for us to decide whether the trial judge was racially biased against counsel and their client and, if we are satisfied that the record demonstrates bias on the part of the ⁴⁰⁵ lower court, whether that bias effectively denied the appellant a fair trial. 6 While we recognize the Hobson’s Choice 7 confronting counsel who wish to make an adequate record that a trial judge has exhibited personal or racial bias during the course of a proceeding, we believe that, in fairness to all concerned, such a Hobson’s Choice must be made. More specifically, we recognize that counsel have an obligation to do nothing which will harm the interests of the client; and, unquestionably, alienating the trial judge cannot be viewed as in the client’s best interests. On the other hand, the integrity of the system requires no less than that there be safeguards against the potential abuse of frivolous charges aimed at securing additional grounds for review of an unfavorable decision. We first consider whether the appellant has successfully preserved the issue for our review.

Appellant properly registered her objections to the trial court’s demeanor by detailing the specific objectionable conduct on the record. ⁴⁰⁶ The Court of Appeals in Surratt v. Prince George’s County, 320 Md. 439, 468 , 578 A.2d 745 (1990), set forth the procedure to be followed when seeking recusal of the trial judge for alleged personal misconduct: Finally, in order to trigger the recusal procedure we here prescribe, a motion must be timely filed. To avoid disruption of a trial, or the possible withholding of a recusal motion as a weapon to use only in the event of some unfavorable ruling, the motion generally should be filed as soon as the basis for it becomes known and relevant. The recusal motion filed here, as enlarged upon in open court, meets all of these criteria. It alleges sexual harassment by a judge, a matter we regard as involving serious personal misconduct____ It was supported by sufficient factual detail. “[A] reasonable member of the public knowing all the