Campbell v. State

Sebastian Albert Campbell v. State of Maryland, No. 156, Sept. Term, 2018. Opinion filed on December 18, 2019, by Berger, J. CRIMINAL LAW – TRIAL – COURSE AND CONDUCT OF TRIAL IN GENERAL – COURTROOM SECURITY Trial court did not abuse its discretion or violate appellant’s constitutional rights when, during certain portions of trial, the court permitted courtroom security personnel to be positioned near appellant, who, in addition to representing himself, was in custody. The trial court duly recognized that appellant, as his own attorney, may need to move around the courtroom during trial but that, as a prisoner, he was subject to certain protocols that the sheriff’s deputies generally followed in those situations. In addition, the trial court made assurances that the deputies would not be “disruptive;” that they would act in the “least invasive way;” that they would “quietly move behind [appellant];” and that there would be “no reference whatsoever to the fact that [appellant] was in custody.” CONSTITUTIONAL LAW – DUE PROCESS – CRIMINAL LAW – DISADVANTAGED PERSONS – INDIGENCY – EXPERT ASSISTANCE Trial court did not violate appellant’s constitutional rights in ruling that he was not entitled to funding from the Office of the Public Defender (“O.P.D.”) to pay for an expert witness.

Appellant could have obtained a state-funded expert witness had he accepted representation by O.P.D., but he chose to reject that service and represent himself. CRIMINAL LAW – REVIEW – PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW Appellant’s claim that the trial court erred in its handling of his request to have evidence shown to the jury was either unpreserved or affirmatively waived because appellant failed to lodge an appropriate and timely objection to the court’s actions. CRIMINAL LAW – EVIDENCE – HEARSAY/FACTS IN ISSUE AND RELEVANCE Trial court did not err in excluding the victim’s out-of-court statement that her step-father had abused her. The statement was not admissible as a prior inconsistent statement under the hearsay exception outlined in Maryland Rule 5-802.1(a)(2) because the statement was not inconsistent with the victim’s trial testimony.

The statement was also irrelevant. CRIMINAL LAW – TRIAL – JURY INSTRUCTIONS Trial court did not commit plain error in instructing the jury that evidence included “testimony from the witness stand” where appellant had given part of his testimony from the trial table. Not only was the given instruction identical to the Maryland pattern jury instruction, but appellant affirmatively waived his objection to the instruction when, during the parties’ discussion of proposed jury instructions, he expressly stated that he had no objection to the court giving the pattern instruction as written. Circuit Court for Montgomery County Case No. 131730 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 156 September Term, 2018 SEBASTIAN ALBERT CAMPBELL v. STATE OF MARYLAND Berger, Leahy, Shaw Geter, JJ.

Opinion by Berger, J. Filed: December 18, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-12-18 13:44-05:00 Suzanne C. Johnson, Clerk A jury, in the Circuit Court for Montgomery County, convicted Sebastian Campbell, appellant, of two counts of sex abuse of a minor and four counts of second-degree rape. The Court sentenced appellant to a total term of 130 years’ imprisonment. In this appeal, appellant presents several questions for our review, which we have rephrased and renumbered for clarity. They are as follows: 1.

Whether the trial court abused its discretion in permitting courtroom security personnel to be positioned near appellant during certain portions of his trial. 2. Whether the trial court violated appellant’s constitutional rights in ruling that appellant, who was representing himself at trial, was not entitled to funding from the Office of the Public Defender to pay for an expert witness. 3. With respect to two recorded statements made by the victim, whether the trial court erred in requiring appellant to prove the admissibility of the two recordings before agreeing to provide him with audio/visual equipment to play the recordings for the jury; in refusing to allow him to play one of the recordings in its entirety for the jury; and in giving the jury the option of reviewing the other recording during deliberations rather than publishing that recording during the evidentiary portion of trial. 4. Whether the trial court erred in restricting appellant’s cross- examination of the victim regarding a letter the victim had written in which she claimed that another individual had molested her. 5.

Whether the trial court erred in restricting appellant’s cross- examination of the victim regarding the victim’s past sexual conduct. 6. Whether the trial court erred in instructing the jury that evidence included “testimony from the witness stand” where appellant had testified from the lawyer’s table and not the witness stand. For reasons to follow, we hold that several of the issues raised by appellant were not preserved for our review. As to the issues that were preserved, we hold that the trial court did not err.

Accordingly, we affirm the judgments of the circuit court. BACKGROUND Appellant was arrested and charged after it was alleged that he had sexually abused his daughter (the “victim”). At trial, the victim testified that, in February of 2012, when she was 11-years-old and living with her mother in Michigan, she came to Maryland to live with appellant at his Rockville apartment. Approximately one month later, while the victim was asleep on the couch at his apartment, appellant pulled the victim’s pants down and had vaginal intercourse with her against her will.

In the months that followed, appellant engaged in non-consensual sexual intercourse with the victim “at least twice a week.” At some point, the victim became pregnant with appellant’s child, and, in August of 2013, the victim gave birth. Additional facts will be supplied below. DISCUSSION I. Appellant’s first claim of error concerns the trial court’s handling of courtroom security. At the start of trial, but prior to jury selection, the court discussed several procedural matters with the State and appellant, who at the time was representing himself.

During that discussion, the court addressed appellant regarding courtroom security: THE COURT: The next issue Mr. Campbell that I want to take up now so that we are all clear how that’s going to be handled 2 is you are in custody so each time you come up to the bench, and we’re in this Courtroom to pick the jury, we’re going to be going back to my Courtroom for the trial but each time you come up to the bench, there is going to be a deputy standing behind you so I want you to know that. They will take great effort to make sure that it’s not in any disruptive fashion but that is sheriff’s protocol and they’re going to follow [their] protocol. When it comes to the time of the trial, as you know, there will be witnesses or a witness will be called one at a time by the State as the moving party, the witness will be in the witness stand and they will have the ability to ask questions, show exhibits and conduct themselves in that fashion and will be moving around the Courtroom. You have two options Mr. Campbell with regard to your positioning is the term I’m going to use during any examination of a witness, whether it’s in cross examination or if you choose to call any witnesses of your own.

You can number one, you can stay seated and then the deputies will stay seated, that’s option one. Option two is you can approach a witness if you would like with the knowledge and understanding that there will be a deputy next to you at all times. Again in the same least [] invasive way they have but that is a security issue, so it’s one or the other. So which way would you prefer to handle – [APPELLANT]: Oh, I don’t mind the deputies, they can – THE COURT: Okay, so I want to be sure we’re clear.

You would like to get up and approach the witness if need be. You’d stay seated otherwise but if the need arises to get up, you would approach the witness stand with the full understanding that a deputy will be standing next to you. [APPELLANT]: All right. Following that exchange, the court took a five-minute recess. When the parties returned to court, the following exchange occurred: [APPELLANT]: How close are the deputies going to be to me?

I don’t understand. I mean, you didn’t really give me a proximity. 3 THE COURT: I don’t have that proximity. They’re going to probably . . . be in the proximity you see them right now. They’re going to follow their protocol and they’re going to – [APPELLANT]: I’m just concerned that it’s, is that going to give the jury the impression that I’m in custody?

It’s – THE COURT: Well, there’s not going to be any reference whatsoever to the fact that you’re in custody at all. In fact, I’m glad you brought that up because there will be no reference by anybody that you are in custody, and each time we take a break the jury will be excused from the courtroom. Before anybody takes one step towards moving anywhere, that will be at my direction and my direction only. Is everybody clear on that? [STATE]: Thank you, Your Honor.

THE COURT: And so, are you clear on that? [APPELLANT]: Yes. THE COURT: Okay. So, what will happen is when you get up to move, they’re going to quietly move behind you because that’s their job. So, I can’t tell you is it going to be 10 inches, 18 inches.

They’re going to be in enough distance that they follow their protocol for security, okay? [APPELLANT]: Because I – THE COURT: That’s the best I can tell you. That’s why I’m telling you, you have two options, remain seated and they’ll remain seated but if you feel the need to move around the courtroom, you’ll do so with the deputy at a distance that allows them to maintain courtroom security and for you to do what you need to do approaching the witness stand. [APPELLANT]: All right. I – THE COURT: And that’s the best I can tell you. [APPELLANT]: I understand that. So, I’m just going to object because – 4 THE COURT: Okay, you – [APPELLANT]: – I have – THE COURT: – can object.

I just need to know which way you want to proceed. [APPELLANT]: Well, either way, at this point is restriction on my ability to effectively defend my case, I feel, and I would object to the ultimatum itself. I have been in the courtroom before and represented myself from custody and did not have a guard following my footsteps in this very building. Maybe not this courtroom but definitely on this site in front of [another judge], so I understand that there is a certain security protocol but I will just object to anything that would tend to lead the jurors to believe that I am in custody or that I’m dangerous – THE COURT: I think – [APPELLANT]: – because if you’ve got a person following me around, the jury’s going to look at me like I’m a dangerous person, and I – THE COURT: I think you’re going to find, Mr. Campbell, that the deputies are going to maintain a distance that, as I’ve said three times now, allows them to maintain courtroom security and safety and allows you to represent yourself. That’s why . . .

I’ve told you you have two options and if you wish to get up and feel the need to do that and pick up an exhibit or do whatever you need to do, and if you wanted to remain seated and you needed an exhibit, the clerk would make sure you had the exhibit to ask your question. If you would like to move around the courtroom, that’s the way it’s going to be and they will act as professionally as they always do to make certain that it is in a way that allows you to move about the courtroom while they maintain security. That’s the best I can do to give you an answer, so your objection is noted. It’s – [APPELLANT]: Thank you.

THE COURT: – on the record. Thank you. 5 Appellant now argues that the trial court erred “by compelling him to present his defense in a four-day trial before the jury while conspicuously restrained by a tactical security team composed of at least three armed Montgomery County Sheriffs forming a close proximity mobile perimeter.” Appellant maintains that this “spectacle unequivocally suggest[ed] to the jury that the justice system itself [saw] a need to separate [him] from the community at large.” Appellant also maintains that the court erred by “completely relinquishing” its authority over courtroom security to the Montgomery County Sheriff’s Office. “The general rule, well settled in Maryland, is that ‘the conduct of a criminal trial is committed to the sound discretion of the trial judge[.]’” Wiggins v. State, 315 Md. 232, 239 (1989) (citations omitted); see also Choate v. State, 214 Md. App. 118, 151 (2013) (“‘The conduct of a criminal trial is committed to the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.’”) (quoting Bruce v. State, 351 Md. 387, 393 (1998)). “That control, however, must safeguard the defendant’s constitutional rights.” Kelly v. State, 392 Md. 511, 543 (2006). In other words, “[e]ven though the trial judge ‘runs the court,’ the right of an accused to a fair trial…is paramount.” Wiggins, 315 Md. at 239 (citations and quotations omitted). “If the exercise of discretion results in the denial of a fair trial to a defendant, the discretion is certainly abused.” Id. at 240 . In Estelle v. Williams, 425 U.S. 501 (1976), the United States Supreme Court held that a defendant’s right to a fair trial is violated if he is “compelled to go to trial in prison or jail clothing.” Id. at 504-506 ; accord Knott v. State, 349 Md. 277, 284, 292-93 (1998) 6 (holding that the defendant was prejudiced by being compelled to attend trial “while garbed in his orange, prison-issued jumpsuit.”).

In so holding, the Supreme Court noted that “the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment” and that such attire “is so likely to be a continuing influence throughout the trial that … an unacceptable risk is presented of impermissible factors coming into play.” Williams, 425 U.S. at 504-05 . The Supreme Court further noted that, although other similarly prejudicial measures may be permissible under certain circumstances, such as physically restraining a disruptive defendant, “compelling an accused to wear jail clothing furthers no essential state policy.” Id. at 505 . In contrast, the Supreme Court, in Holbrook v. Flynn, 475 U.S. 560 (1986), held that the presence of four uniformed state troopers, who had been seen sitting behind the defendant in the first row of the spectators’ section at trial, was not inherently prejudicial. Id. at 562, 568-69 .

In so doing, the Supreme Court distinguished the circumstances of that case from other practices, such as those presented in Estelle v. Williams, that it had deemed unconstitutional: The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers’ presence. While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely 7 possible that jurors will not infer anything at all from the presence of the guards. *** To be sure, it is possible that the sight of a security force within the courtroom might under certain conditions create the impression in the minds of the jury that the defendant is dangerous or untrustworthy.

However, reason, principle, and common human experience counsel against a presumption that any use of identifiable security guards in the courtroom is inherently prejudicial. *** We do not minimize the threat that a roomful of uniformed and armed policemen might pose to a defendant’s chances of receiving a fair trial. But we simply cannot find an unacceptable risk of prejudice in the spectacle of four such officers quietly sitting in the first row of a courtroom’s spectator section. Even had the jurors been aware that the deployment of troopers was not common practice in [that particular court], we cannot believe that the use of the four troopers tended to brand [the defendant] in their eyes with an unmistakable mark of guilt. Id. at 569-571 (internal citations, quotations, and footnote omitted).

Similarly, in Williams v. State, 137 Md. App. 444 (2001), this Court held that the trial court did not err in refusing the defendant’s request to have his Department of Corrections’ identification bracelet removed during trial. Id. at 453 . After discussing the facts and holdings of Estelle v. Williams and Knott v. State, supra, we noted that, “[a]lthough a person in an orange jumpsuit might stand out like a proverbial sore thumb, the same cannot be said when a person wears an institution’s identification bracelet.” Id. at 449-52. We explained: 8 [W]e see no hint in the record that the bracelet worn by [the defendant] branded him as a prisoner.

To the contrary, the trial judge stated that the jurors might think the bracelet was a “hospital band.” … Moreover, there is no evidence in the record as to the size of the courtroom or the distance between the jurors and [the defendant], which might have shed light on the question of the visibility of the bracelet. Therefore, we cannot tell from the record whether the jurors could necessarily see the bracelet. Nor do we know whether [the defendant] wore the kind of clothing that would have helped to conceal the bracelet[.] Id. at 452. Against that backdrop, we hold that the trial court did not err in its handling of courtroom security during appellant’s trial.

That is, we cannot say that the court’s placing of security personnel near appellant at various phases of his trial was so inherently prejudicial that appellant was denied his constitutional right to a fair trial. Unlike in Estelle v. Williams, where the defendant “appeared at trial in clothes that were distinctly marked as prison issue,” Williams, 425 U.S. at 502 , and Knott v. State, where the defendant “testified before the jury while garbed in his orange, prison-issued jumpsuit,” Knott, 349 Md. at 284 , there is nothing inherently prejudicial about the presence of one or more security guards near a defendant during trial. See Brown v. State, 132 Md. App. 250, 268 (2000) (“The mere presence of uniformed police officers [at trial] in itself does not appear to be ‘inherently prejudicial[.]’”). Moreover, we can find nothing in the record to suggest that the presence of the sheriffs was in any way remarkable or even noticeable by the jury, much less an “unmistakable indication” that appellant was in jail or that he needed to be 9 separated from the community at large.1 To the contrary, the record shows that the court’s use of security personnel was reasonable and not prejudicial to the Appellant.

See Bruce, 318 Md. at 721-22 (“Our inquiry is … whether the [security] measures utilized were reasonable and whether, given the need, such security posed an unacceptable risk of prejudice to the defendant.”). As the court explained when it first broached the subject at trial, the sheriffs would only follow appellant if he chose to approach the witness stand, which he did not have to, and that, if that happened, the sheriffs would stay at a distance that allowed them to maintain courtroom security while also permitting appellant “to do what [he] need[ed] to do approaching the witness stand.” The court also made clear that the deputies would not be “disruptive;” that they would act in the “least invasive way;” and that they would “quietly move behind [appellant].” Finally, the court stated emphatically that there would be “no reference whatsoever to the fact that [appellant] was in custody.” Even if we assume that the jury could observe and actually took note of the fact that there were one or more security guards near appellant during trial, that circumstance is fairly routine and subject to a wider range of inferences than other inherently prejudicial indicators like shackles or prison garb. Compare to Wiggins v. State, 315 Md. 232 , 239- 1 Appellant claims that he was “conspicuously restrained by a tactical security team composed of at least three armed [sheriffs] forming a close proximity mobile perimeter;” that the security measures were a “spectacular display of choreographed, close supervision where multiple armed sheriffs shadowed every one of appellant’s movements, hands on their weapons, eyes transfixed;” and that the sheriffs “perpetually stalk[ed] appellant’s every move in close proximity as he conduct[ed] his defense.” The record is completely devoid of any support for any of those assertions. 10 245 (1989) (holding that the trial court, in permitting guards to wear gloves for fear of contracting AIDS from the defendant, committed reversible error because the court did not have a sufficient basis to believe the defendant had AIDS and because the jurors could easily have inferred, given the “contemporary climate,” that the defendant had AIDS and should “be withdrawn from public circulation and confined to an institution with others of his ilk.”). Although the jury in the present case could have inferred that appellant was in jail based on the presence of the security guards, the jury could just as easily have inferred that the officers were there “to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence.” Holbrook, 475 U.S. at 569 .

Again, there is no evidence in the record that the jurors inferred anything from the positioning of security personnel at appellant’s trial, much less any evidence to suggest that “what they saw was so inherently prejudicial as to pose an unacceptable threat to [appellant’s] right to a fair trial[.]” Bruce, 318 Md. at 721 (citing Holbrook, 475 U.S. at 572 ). We also reject appellant’s claim that the trial court failed to exercise its discretion.2 In implementing the security measures, the court recognized that appellant, as his own 2 In setting forth his argument, appellant partly relies on a statement made by the trial judge at trial, in which the court intimated that it had “absolutely nothing to do with security protocol.” Our review of the relevant portion of the transcript reveals that those comments were made the following day during a completely different discussion, in which appellant had asked the court how someone could, if they wanted to, get him “some clothes to change into.” In response, the court stated that such arrangements were made by the prison and that the court had “nothing to do with [that] security protocol.” Thus, appellant’s reliance on the court’s comment is inappropriate, as it was taken out of context and is not germane to the issue presented here. 11 attorney, may need to move around the courtroom during trial. The court also recognized that appellant was a prisoner and that there were certain protocols that the sheriffs generally followed in those situations. Based on those factors, the court made the discretionary decision to have security personnel stand near appellant when he approached the witness stand, only deferring to the security guards with respect to how close the guards would stand in relation to appellant.

In so doing, the court made clear that the deputies would not be disruptive and that appellant would be permitted “to do what [he] need[ed] to do approaching the witness stand.” Moreover, when appellant expressed his concerns that the placement of the security guards may give the jury the impression that he was in custody, the trial judge stated that “before anybody takes one step, that will be at my direction and my direction only.” Accordingly, from the record in this case, it is clear that the court properly analyzed the relevant facts and circumstances and then acted accordingly and within the bounds of its discretion. See Maddox v. Stone, 174 Md. App. 489, 502 (2007) (noting that we “will reverse a decision that is committed to the sound discretion of a trial judge if we are unable to discern from the record that there was an analysis of the relevant facts and circumstances that resulted in the exercise of discretion.”) (emphasis removed). As a result, for all the reasons discussed herein, the trial court did not abuse its discretion in permitting courtroom security personnel to be positioned near appellant during certain portions of the trial.3 3 In October of 2018, appellant filed in this Court a “Motion to Correct the Record,” in which he claimed that the trial court had made several comments during trial that supported his position but had been omitted from the trial transcript. In November of 2018, (Continued) 12 II.

Appellant’s second claim of error concerns the denial of a pretrial motion in which he asked the court to hold a hearing to determine whether he should be appointed a State- funded expert witness. Shortly after being charged, appellant was appointed an attorney by the Office of the Public Defender (“O.P.D.”), but he ultimately discharged that attorney for a non-meritorious reason, refused substitute counsel from O.P.D., and decided to represent himself. Following that discharge, appellant filed a pretrial “Motion for Ex Parte Hearing to Establish Necessity for Appointment of Expert Witness,” which the State opposed. The court then held a hearing on that motion to determine whether the State was required to provide funding for an expert witness where the defendant, in this case appellant, had refused to be represented by O.P.D. After hearing argument from both parties, the court denied appellant’s motion for an ex parte hearing.

The court found that, pursuant to the relevant case law, appellant could not “pick and choose which of the State- provided services he wishes to receive” but rather had to “utilize the [O.P.D.’s] complete ‘package’ of services or forego them entirely.” appellant’s motion was denied. In September of 2019, the State filed its own “Motion to Correct the Record,” claiming that the trial transcript “may be incomplete” with regard to the issues raised in appellant’s motion and indicating that the omitted portions “would likely be relevant to Campbell’s first question presented.” The State then asked that this Court order appellant to correct the record “by ordering the missing portions of the … trial transcript.” Appellant thereafter filed a response, arguing that the State’s motion should be denied on the grounds that it would be “absurd” for him to be “responsible for providing proof of errors or omissions when his proper motion attempting to do exactly that was categorically denied.” From those facts, we see no need to address the State’s motion, as the relief requested, namely, ordering appellant to correct the record, has already been denied by this Court and would serve no useful purpose given that appellant has made clear that he no longer wishes to correct the record. 13 Appellant now contends that the trial court erred in denying his motion. Appellant maintains that “there is no statute or precedent that mandate[ ]s representation by the Office of the Public Defender before the threshold showing of entitlement is made.” Appellant also maintains that the court’s ruling violated his constitutional rights because it forced him to surrender one’s constitutional right, namely, his right to present a defense, in favor of another constitutional right, namely, his right to self-representation. Appellant is mistaken, as the Court of Appeals rejected a virtually identical argument in Moore v. State, 390 Md. 343 (2005).

There, the