Choate v. State

MOYLAN, J. Ralph Sabert Choate, the appellant, was convicted by a jury in the Circuit Court for Montgomery County of one count of first degree rape and two counts of first degree sexual offense. The court imposed three consecutive life sentences. The appellant has raised four issues for our review, which we have reworded: ¹²⁶ I. Did the court err in instructing the jury on an aggravating factor with respect to both first degree rape and first degree sexual offense?

II

Did the court abuse its discretion in denying the appellant’s two motions for mistrial?

III

Did the court abuse its discretion in postponing trial beyond the Hicks 1 date and did the court err in denying the appellant’s motion to dismiss for this reason?

IV

Did the court err in permitting a witness to testify about the victim’s prompt report of sexual assault? We shall hold that issue I is not preserved for our review and the remaining issues are not meritorious. Accordingly, we shall affirm. Facts The evidence adduced at trial revealed the following facts.

In the fall of 2010, the victim hired the appellant to work as a handyman and to do odd jobs in her Bethesda home. He had been recommended by another contractor. The victim was satisfied with the appellant’s work and she recommended his services to her neighbors. In December 2010, the appellant filled in holes in the victim’s laundry room wall and promised to return later to sand and paint the wall.

The victim and the appellant finally agreed that he would return to finish the job on February 5, 2011 at 8:00 a.m. On February 5, the appellant called the victim at 6:50 a.m. to say that he was “almost at [her] neighborhood.” It was unusual for the appellant to arrive that early. The victim got dressed and the appellant arrived. The victim thought the appellant was acting strangely.

The appellant went to his vehicle to get supplies and the victim went to the kitchen to make tea. While the victim was in the kitchen, the appellant came up behind her and said, “let’s you and me, let’s get it on.” This was the first time the appellant had made a sexual ¹²⁷ advance toward her. The victim told the appellant that his comment was not funny, and that he should leave. The appellant repeated that he wanted to “get it on.” The victim again told the appellant to leave, and ran out of the kitchen.

When the victim reached the entrance area of her home, the appellant grabbed her and pulled out a screwdriver that “had yellow on it.” The victim pushed herself away, but the appellant tackled her, held her down, locked the front door, and told her to be quiet. The victim felt scared because of the screwdriver. As they struggled, the victim told the appellant not “to do this,” and that he was a good person. She offered to give him money to leave.

The appellant repeatedly tried to pull the victim’s pants down, and she repeatedly pulled them back up. The appellant then said, “enough of this,” and “half carried” the victim to the living room. He forced her onto a sofa and, against her resistance, pulled off her pants and underwear. After the appellant told her that he would leave if she performed oral sex on him, the victim attempted to do so, but the appellant could not sustain an erection.

The appellant then took the victim upstairs to a guest bedroom. He again forced her to perform oral sex on him, briefly performed oral sex on her, and repeatedly attempted to have intercourse with her. According to the victim, the appellant did insert his penis into her vagina. The appellant became upset and told the victim, “don’t worry, I’m not going to kill you.” In an attempt to escape, the victim offered to make breakfast.

They went downstairs to the kitchen. She made scrambled eggs for the appellant and put them on the kitchen counter for him to eat. She then walked out the front door and kept going until she reached an Exxon gas station and called 911. After speaking with police officers the victim was taken to a hospital for a forensic examination, which revealed two facial abrasions and some vaginal lacerations.

The time the victim might have sustained the vaginal lacerations could not be determined. Naomi Lobosco, who was accepted as an expert ¹²⁸ in forensic biology and serology, including DNA testing and analysis, testified that the appellant was identified as “the minor contributor” to a “mixed DNA profile” obtained from the interior front panel of the victim’s underwear. Officer James Herman of the Montgomery County Police Department went to the victim’s home. He smelled fresh eggs and saw a plate of eggs in the kitchen.

He found muddy footprints on a stairwell. The living room couch was “messed up” and the pillows were strewn about. The bed in the guest bedroom was unmade and the pillows there were also strewn about. At 3:09 p.m. on February 5, Special Agent Larry Lee Willis of the Virginia State Police stopped a van traveling southbound on 1-81 in Montgomery County, Virginia.

After obtaining a search warrant, Agent Willis found documents bearing the appellant’s name and a screwdriver. 2 When shown the screwdriver during the trial, the victim testified that it “could be [the screwdriver used during the assault], but I can’t swear that that’s what it was.” Discussion I. The appellant first contends that the court erred in instructing the jury on one of the aggravating factors necessary to prove first degree rape and first degree sexual offense, because it was not generated by the evidence. Rape in the first degree requires the State to prove that a defendant 1) “engage[d] in vaginal intercourse with another by force, or the threat of force, without the consent of the other,” and 2) that the defendant did at least one of the following: (i) employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon; ¹²⁹ (ii) suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime; (iii) threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; (iv) commit the crime while aided and abetted by another; or (v) commit the crime in connection with a burglary in the first, second, or third degree. Md.Code (2002), § 3-303 of the Criminal Law Article (“CL”). Sexual offense in the first degree requires proof that the defendant “engage[d] in a sexual act with another by force, or the threat of force, without the consent of the other,” plus at least one of the same list of aggravating factors.

CL § 3-305. At trial, the appellant agreed with the State that the jury should be instructed on factors (i) and (iii) as to first degree rape, but objected to the jury being instructed on factor (ii). The State argued, and the court found, that factor (ii) was generated by the victim’s testimony that, while they were struggling in the foyer area of her home, the appellant was able to hold me down and turn around and lock the front door. And I was trying to pull and kick and scream and he just said, “You’d better be quiet.” And he had this, by my neck and I was like, “No, you don’t want to do this.” (Emphasis supplied).

With regard to first degree sexual offense, the State again requested that the court instruct on factors (i), (ii), and (iii), and the appellant agreed. The appellant did not renew his objection to the jury being instructed on factor (ii) after the instruction had been given. On the contrary, after the judge instructed the jury, she called counsel to the bench and asked whether they were satisfied with the instructions. The appellant’s trial counsel replied, “Satisfied, Your Honor.” Maryland Rule 4-325(e) ordinarily requires counsel to object to a jury instruction promptly after the court has given ¹³⁰ the instruction.

The appellant relies on Bowman v. State, 337 Md. 65 , 650 A.2d 954 (1994), and Gore v. State, 309 Md. 203 , 522 A.2d 1338 (1987), for the propositions that substantial compliance with Rule 4-325(e) can be sufficient and that it is not necessary to renew an objection after the court has given the instructions if doing so would be “futile or useless.” The appellant ignores the fact that his trial counsel agreed with the State that the jury should be instructed on factor (ii) with regard to first degree sexual offense and told the court he was “satisfied” with the instructions as they had been given. In Robinson v. State, 209 Md.App. 174 , 58 A.3d 514 (2012), cert. denied, 431 Md. 221 , 64 A.3d 497 (2013), we explained the reasons why Rule 4-325(e) requires objections to be made promptly after instructions have been given: There are good reasons for requiring an objection at the conclusion of the instructions even though the party had previously made a request. If the omission is brought to the trial court’s attention by an objection, the court is given an opportunity to amend or correct its charge. Moreover, a party initially requesting a particular instruction may be entirely satisfied with the instructions as actually given.

Id. at 199, 58 A.3d at 529 (emphasis supplied) (quoting Johnson v. State, 310 Md. 681, 686, 689 , 531 A.2d 675, 677, 679 (1987) (finding objection to instruction was not preserved in part because, after instruction had been given, defense counsel “specifically stated that he had ‘no exceptions’ to the instruction”)). By agreeing with the State that the jury should be instructed on factor (ii) with regard to first degree sexual offense and by expressing his satisfaction with the instructions actually given, the appellant waived any objection and failed to preserve this issue for appellate review. Thus, the appellant asks that we exercise our discretion to undertake plain error review. We decline to do so.

We are especially disinclined to take the extraordinary step of noticing plain error where, as here, the appellant affirmatively (as opposed to passively) waived his objection by expressing his satisfaction with the instructions as actually given. More ¹³¹ over, even if the appellant had preserved an objection, we would have found that the court’s instructing on factor (ii) was not erroneous. All that is necessary to generate a requested instruction that is a correct statement of the applicable law and that has not been covered by other instructions is “some evidence.” See, e.g., Arthur v. State, 420 Md. 512, 525-26 , 24 A.3d 667, 675 (2011) (emphasis supplied). This is a “fairly low hurdle.” Id.

(citing State v. Martin, 329 Md. 351, 359-61 , 619 A.2d 992, 996-97 (1993)). The victim’s testimony that “he had this, by my neck” was sufficient evidence to generate the instruction.

II

The appellant next contends that the court abused its discretion in denying his two motions for mistrial made after the State’s closing and rebuttal arguments. A. The appellant’s first motion for mistrial related to a screwdriver with yellow markings that Agent Willis recovered from the van he had stopped and searched in Virginia on the afternoon of February 5. The victim testified that the appellant had threatened her with a screwdriver that “had yellow on it.” When shown the screwdriver Agent Willis had recovered, she testified that it “could be [the screwdriver used by the appellant], but I can’t swear that that’s what it was.” The court admitted photographs Agent Willis had taken of the interior of the van, including the screwdriver, without objection. When the appellant objected to admission of the screwdriver itself, on the ground that the victim could not identify it as the particular screwdriver used in the attack, the court reminded the appellant that the photographs had already come in, and ruled that the screwdriver would be admitted as the screwdriver Agent Willis had recovered from the van.

Nevertheless, the court prohibited the prosecutor from arguing to the jury that the screwdriver was the particular screwdriver that had been used in the attack. ¹³² Despite the court’s ruling, the prosecutor argued to the jury-in summation that the screwdriver in evidence was indeed the one used during the attack. [PROSECUTOR]: And she [the victim] puts the tea kettle on the stove and when she turns around, the defendant is standing directly behind her. And she’s startled, because she didn’t even hear him come into the kitchen. And he says to her, “let’s you and me get it on right here, right now.” And she says, “that’s not even funny, get out of my house.” “No, come on, you and me, let’s get it on.” And she goes to run around her island and she’s grabbed by the defendant, who holds this screwdriver— [DEFENSE COUNSEL]: Objection. [PROSECUTOR]:—to— [THE COURT]: Sustained. [PROSECUTOR]: Who has a screwdriver and holds it to her throat. And she realizes, she’s in huge trouble and she’s trapped in her house.

(Emphasis in appellant’s brief). At the conclusion of the State’s closing argument, the appellant’s counsel approached the bench and asked for a mistrial. The court found that the prosecutor had violated its previous ruling, but declined to grant a mistrial. Instead, the court gave the following curative instruction: All right.

With respect to the screwdriver, the State made a statement in closing argument that, that was the screwdriver that [the appellant] used. You are to disregard that argument. There was absolutely no testimony that that was the screwdriver. The victim testified that a screwdriver was used.

She was not able to identify that screwdriver. So you are not to consider that screwdriver that’s in evidence as the screwdriver that was used on that particular day. The appellant contends that the prosecutor’s comment that the appellant was “holding] this screwdriver” was an impermissible reference to facts not in evidence. He asserts that, rather than curing any prejudice, the court’s instruction made ¹³³ the situation worse by highlighting the State’s improper comment.

The appellant maintains that he was highly prejudiced because the screwdriver directly related to one of the potential aggravating factors the jury could have found as a basis for first degree rape or first degree sexual offense—use or display of “a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon.” See CL §§ 3— 303(a)(2)(i); 3-305(a)(2)(i). The State contends that the court was correct in denying the motion for mistrial, but submits that it did so for the wrong reasons. In the State’s view, the court’s previous ruling that the prosecutor could not refer to the screwdriver recovered from the van as the particular screwdriver used in the attack improperly infringed on the wide leeway afforded to prosecutors to “make any comment that is warranted by the evidence or inferences reasonably drawn therefrom.” See Grandison v. State, 341 Md. 175, 224 , 670 A.2d 398, 421-22 (1995) (quoting Oken v. State, 327 Md. 628, 676 , 612 A.2d 258, 281 (1992)). The State maintains that a reasonable juror could have inferred from the victim’s testimony and the fact that the screwdriver was recovered from the appellant’s van that it was the screwdriver used in the attack.

As this Court reiterated in Behrel v. State, 151 Md.App. 64, 142 , 823 A.2d 696, 741 , cert. denied, 376 Md. 546 , 831 A.2d 5 (2003): A mistrial is not a sanction designed to punish an attorney for an impropriety. It is rather an extreme sanction that sometimes must be resorted to when such overwhelming prejudice has occurred that no other remedy will suffice to cure the prejudice .... [T]he decision as to whether a mistrial is called for is contingent upon the impact of an error and not upon the motivation behind the error. Moreover, the remarks must be a direct and contributing factor that resulted in egregious prejudice to the defendant. (Emphasis supplied) (internal citations and quotations omitted).

We review the denial of a motion for mistrial for abuse of discretion and will reverse only where “the prejudice to the ¹³⁴ defendant was so substantial that he was deprived of a fair trial.” Cooley v. State, 385 Md. 165, 173 , 867 A.2d 1065, 1069-70 (2005). Under either the appellant’s theory that the prosecutor improperly commented on facts not in evidence or the State’s theory that the prosecutor properly commented on an inference reasonably drawn from the evidence, the result would be the same: we would hold that the court did not abuse its discretion in declining to grant a mistrial. Even if we were to accept the appellant’s argument that the prosecutor’s comment was improper, we still would hold that any potential prejudice was cured by the court’s instruction that the jury “disregard” that portion of the prosecutor’s argument and that the jury “not ... consider that screwdriver that’s in evidence as the screwdriver that was used on that particular day.” In any event, we agree with the State that the court’s previous ruling prohibiting the prosecutor from arguing that the screwdriver was the screwdriver the appellant used in the attack was erroneous. Attorneys are entitled in closing argument to ask the jury to draw reasonable inferences from the evidence.

See, e.g., Wilhelm v. State, 272 Md. 404, 412 , 326 A.2d 707, 714 (1974) (“As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range.”). The victim testified that the appellant had used a screwdriver “with yellow in it” during the attack. A screwdriver with yellow markings was recovered from the appellant’s van. When shown that screwdriver at trial, the victim testified that it “could be [the one],” but that she could not “swear that that’s what it was.” A reasonable juror could infer from that evidence that the screwdriver was indeed the one the appellant had displayed during the attack.

The prosecutor was free to argue to the jury that the screwdriver in evidence was the screwdriver, just as the appellant’s trial counsel was free to argue to the jury that it was not. ¹³⁵ As the prosecutor’s comment was permissible, we hold that the court did not abuse its discretion in denying the appellant’s first motion for mistrial, albeit for different reasons than those stated by the court. See, e.g., State v. Phillips, 210 Md.App. 239, 270 , 63 A.3d 51 , 69 (2013) (“This Court may affirm the circuit court’s decision on any ground adequately shown by the record.”) (quoting State v. Rush, 174 Md.App. 259, 289 , 921 A.2d 334 (2007), aff'd in part and rev’d in part on other grounds, 403 Md. 68 , 939 A.2d 689 (2008)). B. The appellant’s second motion for mistrial came at the conclusion of the State’s rebuttal. During rebuttal, the prosecutor had argued, without objection: Now, with respect to the credibility—because, really, ... a lot of this case comes down to what [the victim] told you, because when a rape occurs, a rape doesn’t occur in front of a camera.

There’s only two people there. In this case, the two people who were there were [the victim] and the defendant. And yesterday, [the victim] came in and she sat here and she told you what happened. And one of the instructions that Her Honor read to you, was the credibility of witnesses instruction.

In requesting a mistrial, the appellant’s trial counsel argued that the prosecutor’s comments “create[d] an inference that the defendant should have gotten on the stand and told his story.” The court disagreed, and found that there had been no “inappropriate references to the fact that the defendant did not testify.” On appeal, the appellant again contends that the prosecutor’s comments infringed on his absolute right not to testify, as guaranteed by the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights. The State contends that the prosecutor’s comments were permissible, because the prosecutor never explicitly mentioned the appellant’s decision not to testify. The State asks that we read the prosecutor’s comments in their proper context, and ¹³⁶ points out that the portion the appellant quotes in his brief was just the beginning of a lengthy and detailed discussion regarding the victim’s credibility. This was a central issue in the case and one that the appellant’s trial counsel also had discussed in closing.

The State relies on the court’s instruction, before closing argument, that “the defendant has an absolute, constitutional right not to testify,” and that his silence “must not be held against [him] and must not be considered in any way or even discussed.” Maryland law has “long held that a criminal defendant’s rights under Article 22 of the Maryland Declaration of Rights and § 9-107 of the Courts and Judicial Proceedings Article preclude comment by a prosecutor on a defendant’s decision not to testify.” Marshall v. State, 415 Md. 248, 261 , 999 A.2d 1029, 1036 (2010). In evaluating whether a prosecutor has improperly commented on a defendant’s election not to testify, we must determine whether “the remark [is] ‘susceptible of the inference by the jury that they were to consider the silence of the traverser in the face of the accusation of the prosecuting witness as an indication of his guilt.’ ” Smith v. State, 367 Md. 348, 354 , 787 A.2d 152, 155 (2001) (quoting Smith v. State, 169 Md. 474, 476 , 182 A. 287, 288 (1936)). In Smith, a prosecution for burglary, the prosecutor delivered the following argument: The Judge has said that you can look backwards in this case. Look to see who ends up with the property and then you can work backwards and here if the recent unexplained possession of stolen property allows you to work backwards to conclude, hey, this guy was the thief, this guy was the burglar.

In making that conclusion, ask yourself this. What explanation has been given to us by the defendant for having the leather goods? Zero, none. 367 Md. at 352 , 787 A.2d at 154 . The defendant’s objection to this line of argument was overruled.

The Court of Appeals concluded, however, that the prosecutor “went beyond the permissible comment on the absence of the evidence, and impermissibly commented directly on the defendant’s failure ¹³⁷ to testify.” Id. at 360 , 787 A.2d at 159 . The Court held that this error was not harmless and, therefore, ordered a new trial. In Marshall , a prosecution for narcotics distribution, the prosecutor remarked in rebuttal: Mr. Marshall did not take the stand so I ask you to take that with a great deal of caution when [defense counsel] tries to indicate a health problem for Mr. Marshall because there’s no evidence of that whatsoever. There are several pieces we don’t have.

We don’t have Mr. Marshall’s thoughts but we do have so many other pieces and when you put those pieces together, they spell out guilty. 415 Md. at 255-56 , 999 A.2d at 1032-33 . The State conceded in Marshall that the prosecutor’s remarks commented upon the defendant’s election to remain silent, but argued that they were permissible under the invited response doctrine. The Court of Appeals found “no impropriety in defense counsel’s closing argument sufficient to warrant the prosecutor’s comments on the defendant’s decision not to testify,” and ordered a new trial. Id. at 268 , 999 A.2d at 1040 .

In this case, the prosecutor’s comments were not susceptible of the inference that the jury should consider the appellant’s silence as evidence of guilt. The entire thrust of this portion of the prosecutor’s discussion, which continued for four transcript pages, was that the victim was a credible witness. The remarks that “[t]here [were] only two people there” and that one of those people, the victim, “came in and ... sat here and ... told you what happened,” are properly read as a submission that the victim should be believed because she was the only eyewitness other than the appellant. The prosecutor did not suggest that the jury should take any negative inference from the fact that the appellant chose not to testify, or that the appellant had any burden to tell his side of the story.

The court did not abuse its discretion in denying the appellant’s second motion for mistrial. ¹³⁸ III. The appellant also contends that the court abused its discretion in postponing trial beyond the 180-day “Hicks deadline” and in subsequently denying his motion to dismiss on that basis. The parties agree that the Hicks date in this case was November 14, 2011, which was also the scheduled trial date. The State filed a motion to postpone trial on October 14, 2011, on the grounds that a DNA analyst was scheduled for training and would be unavailable to testify and the prosecutor was scheduled for trial in another case the same day that had to be tried by November 22 pursuant to the Interstate Agreement on Detainers (“IAD”).

See Md.Code (1999, 2008 Repl. Vol.), §§ 8-401, et seq., of the Correctional Services Article (“CS”). 3 The appellant opposed that request on October 19, 2011, asserting that the prosecutor “should have been aware of the conflict in scheduling at the time the trial date was set,” and claiming that he would be prejudiced by the delay because the total prison time he might ultimately serve was “in a state of uncertainty” due to a looming parole revocation in another matter that was being held in abeyance pending resolution of this case. At a motions hearing on October 20, 2011, the trial judge in this case initially declined to grant a postponement, but then, at the State’s request, allowed the parties to go before the acting administrative judge. The acting county administrative judge held a hearing later that day, at which counsel made the same arguments as they had in their written motions and in argument before the trial judge.

The acting administrative judge found good cause to postpone the case beyond November 14. ¹³⁹ Trial ultimately began on March 12, 2012. On that day, the parties litigated a motion to dismiss for denial of speedy trial rights that the appellant had filed on March 8, 2012. The appellant argued that the Montgomery County Criminal Differentiated Case Management Plan prohibited the acting administrative judge from reconsidering the trial judge’s initial decision not to grant