Bruce v. State

FISCHER, Judge. David Bruce, the appellant, was convicted by a jury in the Circuit Court for Baltimore City of child abuse. Appellant subsequently filed a motion for new trial which the court denied. Thereafter, appellant was sentenced to eight years imprisonment, with four years suspended in favor of two years of probation commencing upon his release.

Bruce appealed and raised three issues for our review: 1. Whether the trial court committed reversible error in concluding that [the] five year old [alleged victim] was competent to testify. 2. Whether the trial court improperly instructed the jury on the proper mental state required for child abuse. 3. Whether the trial court committed reversible error by admitting highly prejudicial hearsay, despite the prosecution’s failure to comply with the mandatory twenty day ⁵¹² notice requirement of the Md.Cts. & Jud.Proc.Code Ann., § 9-103.1.

The pertinent facts unfolded on December 14, 1991 when the victim’s mother, who was eight months pregnant, was taken to the hospital because she was believed to be in labor. Before the victim’s mother departed for the hospital, however, the victim, who was then five years old, had been spanked by his great-uncle for punching holes in a toilet seat. The victim’s mother testified that the spanking left no marks and that the child was healthy and had no injuries. Later that day, appellant picked up the child and stayed with him.

On December 16, while the victim’s mother was still in the. hospital, she spoke to appellant by telephone. Bruce told her that the boy had fallen down the stairs but was not “bruised up.” The next day, Bruce took the boy to the hospital to see his mother. When the child arrived, his mother observed bruises and scabs across his face. The victim’s grandmother was also present at the hospital on that day, and when she attempted to inquire about the boy’s injuries, Bruce intervened.

The grandmother, then attempting to talk privately with the boy, tried to take the child into the bathroom. Bruce placed his foot against the bathroom door to prevent it from closing. He pushed open the door, swung at the grandmother, and said to the boy, “If you tell, I will kill you.” The child left the hospital with his grandmother, and on December 18, she took him to Johns Hopkins Hospital. Photographs taken at Hopkins depicted the child’s, injuries.

On May 1, 1992, the boy was again taken to Hopkins where he saw Dr. Lawrence Wissow, a pediatrician on the Child Advocacy Team. Two weeks later, Dr. Wissow again saw the victim at the Hopkins Pediatric Primary Care Clinic. These visits were for behavioral problems. Dr. Wissow testified that, during the course of the visits, the boy stated that Bruce “had done the ‘boo-boos’ on his face.” The child also disclosed that Bruce had hit him and had used a ⁵¹³ brown belt to inflict many injuries.

The victim further stated that Bruce had held his face under water in a bathtub and that Bruce choked him. In addition, the boy told Dr. Wissow that Bruce had warned that if the boy told anyone about the injuries, Bruce would hurt him. The boy also stated that Bruce would give him a G.I. Joe toy if he did not disclose the injuries. The victim testified that the injuries to his face had been caused when Bruce hit him while wearing a ring.

The boy also stated that he had sustained other injuries when Bruce hit him with a belt. The child further testified that Bruce had warned him not to discuss the injuries or Bruce would drown him. During cross examination, the victim stated that, when asked by his teacher about the injuries, he responded that he had fallen in the hall. I. On appeal, Bruce first complains that the court erred in allowing the child to testify.

According to Bruce, the boy “repeatedly told the trial judge he could not tell the difference between the truth and a lie.” Bruce also contends that the judge “overlooked clear signs of adult influence” on the child’s testimony and “failed to probe [the boy’s] ability to remember and relate the events at issue----” In support of his position, Bruce points to several exchanges that occurred during the competency hearing. That hearing consumed more than twenty-five pages of transcript; during it the circuit court carefully, indeed painstakingly, questioned the victim in order to determine his competency to testify. It is impossible to set out the entire transcript of the hearing here but we do set forth below a large and representative sample of the questions asked and answered during the hearing. After getting the child comfortably situated in court, the judge inquired whether the child knew the difference between a “good person” and a “bad person.” The Court: What’s the difference?

Do you know? [The Victim]: No. ⁵¹⁴ The Court: Do you know the difference between telling the truth or telling a lie? [The Victim]: Yes. The Court: What’s the difference? Do you know the difference? [The Victim]: No. The Court: You don’t know the difference between telling the truth and telling a lie? [The Victim]: Yes. The Court: All right.

What’s the difference between the truth or telling a non-truth or telling a lie? Do you know? What happens when you tell a lie? [The Victim]: I get spankings. The Court: You do?

Who spanks you when you tell a lie? Do you know? [The Victim]: (Nodding head.) The Court: Who? Does your mommy spank you sometimes when you tell a lie? [The Victim]: Yes. The Court: Okay.

Does anybody else ever spank you when you tell a lie? [The Victim]: No. The Court: Do you get spanked when you tell the truth? [The Victim]: No. The Court: Why? [The Victim]: Because I tell the truth. The Court: Because you told the truth. Is it good or bad to tell a lie? [The Victim]: Bad. The Court: Is it good or bad to tell the truth? [The Victim]: The truth.

The Court: Is it good or bad to tell the truth? [The Victim]: The truth. The Court: The truth. Is it good or bad to tell the truth? ⁵¹⁵ [The Victim]: Bad to tell the truth. The Court: Is it good to tell a lie or bad to tell a lie? [The Victim]: Bad.

The Court: Is it bad to tell the truth? [The Victim]: No. The Court: Is it good to tell the truth? [The Victim]: Yes. The Court: Do you get spanked when you tell the truth? [The Victim]: No. The Court: Do you get spanked when you tell lies? [The Victim]: Yes. The Court: Why do you get spanked when you tell a lie, but you don’t get spanked when you tell the truth? Do you know? [The Victim]: No. The Court: Has your mommy or grandmother ever told you to tell the truth or tell a lie? [The Victim]: No. The Court: Do they ever tell you to tell the truth? [The Victim]: No. The Court: Do they tell you to tell a lie? [The Victim]: No. The Court: Do you know when you’re telling the truth? [The Victim]: Yes.

The Court: Do you know when you’re lying? [The Victim]: Yes. The Court: What’s the difference? How do you know when you’re lying? Do you know? [The Victim]: No. The Court: How do you know when you’re telling the truth, do you know that? [The Victim]: (Shaking head.) ⁵¹⁶ The Court: [W]hy are you here today? [The Victim]: Because.

The Court: Why? Why are you here today? [The Victim]: Because David Bruce beat me. The Court: When did he do that? Do you know?

Would you tell the truth or a lie about David Bruce? [Defense Counsel]: Objection. [The Victim]: The truth. The Court: The truth. What would happen if you told a lie about David Bruce? [Defense Counsel]: Objected to. The Court: What would happen? [Defense Counsel]: Objected to.

The Court: Mr. Hornstien, you may not — you may not mention a word under contempt of court. You may not even mention a word. Now, I want you to tell me what would happen if you told a lie about David Bruce? [The Victim]: He said he was going to drown me. The Court: He would do what? [The Victim]: He said' he was going to drown [me] if I tell.

The Court: He told you he would drown [you] if you told what? [The Victim]: Yes. The Court: If you told what? [The Victim]: That he beat me. The Court: Okay. Would you come in court today and tell [the] truth or a lie about David Bruce. [The Victim]: The truth.

The Court: And what would happen if you told a lie, if you didn’t tell the truth about David Bruce? [The Victim]: I’d get beatings. The Court: Who would do that? [The Victim]: Yes. ⁵¹⁷ The Court: Who would do that? [The Victim]: David Bruce. The Court: If you told a lie or the truth? [The Victim]: A lie. If I told a lie.

The Court: And what are you going to tell today, a lie or the truth? [The Victim]: The truth. The Court: Okay. Do you want to ask him any questions? [The Prosecutor]: Okay. [I]f I were to tell you that my shoes were white, would I be telling you the truth or a lie? [Defense Counsel]: Objected to. [The Victim]: A lie. [The Prosecutor]: And why wouldn’t it be the truth? [The Victim]: Because it’s black. [The Prosecutor]: What’s black? [The Victim]: Your shoes. [The Prosecutor]: And if I were to tell you that my stockings were black, would that be the truth or a lie? [The Victim]: A lie. [The Prosecutor]: Why? [The Victim]: Because they’re white. [The Prosecutor]: Okay. For the record, my shoes are black, and my stockings are white. [The Prosecutor]: [I]f I were to tell you that I could fly, would that be the truth or a lie? [The Victim]: A lie. [The Prosecutor]: Why? [The Victim]: Because you can’t. [The Prosecutor]: And If I were to tell you that I was wearing a watch, would that be the truth or a lie? [The Victim]: The truth. [The Prosecutor]: Why? ⁵¹⁸ [The Victim]: Because you’re wearing one. [The Prosecutor]: For the record, the prosecutor is wearing a watch. [The Prosecutor]: [I]f I were to tell you that this man’s suit is blue, would that be the truth or a lie? [The Victim]: A lie. [The Prosecutor]: Why?

Can you say why? What color is this suit? [The Victim]: I don’t know. [The Prosecutor]: You don’t know the name for that? [The Victim]: No. [The Prosecutor]: But is it black? [The Victim]: No. [The Prosecutor]: Is it blue? [The Victim]: No. [The Prosecutor]: For the record, no, no. Your Honor, for the record, I would describe it as white, but I guess it could be described as gray. [The Prosecutor]: [W]ill you tell the truth today? [The Victim]: Yes. [The Prosecutor]: Will you promise us that you will tell the truth today? [The Victim]: Yes. The Court: What does it mean to tell a lie?

Do you know? Do you know the difference between telling the truth or telling lie? [The Victim]: No. [The Prosecutor]: I’m going to object, Your Honor. I think those are questions that are difficult for philosophers to answer.. I don’t think that he can form the concepts necessary to answer.

The Court: Do you know what happens to people who tell lies? ⁵¹⁹ [The Victim]: Yes. The Court: What? [The Victim]: They get beatings. The Court: And what happens to people who tell the truth? [The Victim]: They don’t. The Court: And why? [The Victim]: Because they tell the truth.

The Court: And why do you tell the truth? [The Victim]: So I won’t get no beatings. The Court: And do you know whether you are going to be asked to tell the truth or tell lies today? [The Victim]: Tell the truth. The Court: And are you going to tell the truth to everybody who questions you? [The Victim]: Yes. The Court: If [the prosecutor] told you to tell a lie, would you tell a lie? [The Victim]: No. The Court: Even if it made [the prosecutor] happy, would you tell a lie? [The Victim]: No. The Court: If [defense counsel] questioned you, would you tell [him] the truth or a lie? [The Victim]: The