Craig v. State

WILNER, Judge. Sandra Ann Craig owned and operated a kindergarten and pre-kindergarten school in Howard County known as Craig’s Country Pre-School. Brooke Etze attended the school during the period August, 1984, through June 7, 1986, when she was between four and six years of age. Brooke’s parents were entirely satisfied with the school and with Ms. Craig while Brooke was enrolled there.

On June 21, 1986, Mr. and Mrs. Etze read a newspaper article recounting complaints of children having been abused at Ms. Craig’s school. A week or two later, they ²⁵⁵ received a letter inviting them to a meeting hosted by the county’s sexual assault center and social services and health departments. They attended the meeting, and, as a result of what they learned, they contacted the sexual assault center and arranged to have Brooke evaluated by a therapist, Mary Burke. In her fourth or fifth session with Ms. Burke, Brooke said a number of things that led Ms. Burke to suspect that she had been the victim of abuse.

Ms. Burke contacted the police and social services departments, who then joined in an investigation of Brooke's allegations. In ensuing conversations with her parents and in further sessions with Ms. Burke, Brooke revealed a number of incidents of physical, sexual, and psychological abuse committed by Ms. Craig directly, by two of Ms. Craig’s children —Jamal and Mika—and by other children at the school. The direct abuse by Ms. Craig included kicking Brooke on the legs and in her “private parts,” inserting a stick in her vagina, and threatening her with the loss of her parents’ love. A medical examination by Dr. Charles Shubin revealed a scarred hymen, with an opening nearly four times normal—“abnormal findings ... which represent very clear healed injury to this child.” As a result of these disclosures and investigations, a six-count indictment was returned in the Circuit Court for Howard County against Ms. Craig.

It charged her with first degree sexual offense (Count 1), second degree sexual offense (Count 2), child abuse (Count 3), unnatural and perverted sexual practice (Count 4), common law assault (Count 5), and common law battery (Count 6). Each of these offenses, the indictment alleged, was committed “during the period of September 1984 to June 1986, at Howard County____” 1 ²⁵⁶ Prior to trial, both sides filed a number of motions. Among those filed on behalf of Ms. Craig were a demand for particulars, a motion “for disclosure of impeaching information,” a motion for discovery and production of documents, and a motion in limine to preclude testimony by Ms. Burke as to statements made to her by Brooke. The demand for particulars, averring that the indictment lacked “specificity and particularity,” sought, among other things, the “specific acts the State alleges the defendant did to constitute the crimes charged in each and every charge” and “the date and time of the act or acts that the State alleges constituted a crime in each and every crime charged against the Defendant.” In the discovery motion, Ms. Craig asked for “any material or information which tends to negate the guilt of the defendant as to the offense(s) charged,” copies of “all written memoranda which any of the State’s witnesses will take with them to the witness stand or refer to while testifying during the State’s case in chief,” and “the substance of any oral report and conclusion made in connection with the Defendant’s case by each expert consulted by the State, including the results of any physical or mental examination____” The State, for its part, moved to allow Brooke and other young children to testify through closed circuit television, pursuant to Md.Code Ann.Cts. & Jud.Proc. art., § 9-102, and to allow certain “other crimes” evidence 'in order to establish “a pattern of conduct on the part of the Defendant.” In lieu of a formal response to the demand for particulars and the two discovery motions, the parties agreed to an open-file discovery, i.e., the State agreed to “provide all non work-product reports in its files” as well as “a complete witness list.” The one exception to this approach concerned certain records of the county health department which the Attorney General, presumably as counsel to the health department, delivered to the court for in camera inspection.

Upon such review, the court denied the request to produce those documents, which it characterized principally as “cor ²⁵⁷ respondence, much of it apparently unsolicited, from parents of children attending the ... facility operated by the Defendant” that did not tend “to negate or mitigate the guilt or punishment of the Defendant as to the offense(s) charged.” Counsel did not press the point further and accepted the open file discovery as a sufficient response to his various motions. Ms. Craig’s motion in limine was effectively denied, at least to the extent that Ms. Burke was permitted to testify and to relate both verbal and non-verbal communications from Brooke made during the evaluation and therapy sessions. The State’s motions were granted. Other children allegedly abused by Ms. Craig were allowed to testify as to what had occurred to them, and both they and Brooke were permitted to testify through closed circuit television.

After 12 days of trial, the jury convicted Ms. Craig on all six counts. She then discharged her trial attorneys and employed new counsel, who filed amended motions for new trial. 2 Extended evidentiary hearings were held on those motions. On September 21, 1987, however, the court finally denied the motions and imposed sentence. This appeal followed in which seven issues, three of them multi-part, are raised.

Ms. Craig complains that: (1) the State withheld exculpatory evidence that it had a duty to disclose; (2) the indictment was defective; (3) the court erred in allowing the children to testify on closed circuit television; (4) it erred in admitting an opinion from Ms. Burke that Brooke was the victim of child abuse; (5) it erred in allowing Ms. Burke and Mrs. Etze to testify as to Brooke’s statements to them; (6) it wrongfully excluded certain testimony of Ms. Craig’s expert witness; and (7) it erred in allowing the testimony of other children as to abuse suffered by them. Interlaced with some of these complaints is the further ²⁵⁸ charge that her trial counsel was Constitutionally incompetent. We find no merit in any of these complaints and shall therefore affirm. I. WITHHELD EVIDENCE (1) Introduction As we observed, in lieu of a formal response to Ms. Craig’s various motions, the State opted to provide an open file discovery.

Pursuant to that agreement, it turned over to defense counsel the “main Investigative file” of the county police department, the written statements of 16 witnesses, a therapist's report and a medical report on another alleged child-victim, all or parts of police reports involving Brooke and other children, and a report and addendum prepared by Brooke’s therapist, Mary Burke. The focus of Ms. Craig’s complaint is on the material known or available to the State that was not disclosed, principally the therapy notes of Ms. Burke recording (1) statements made by Brooke directly to Ms. Burke, to Brooke’s parents, or, in one instance, allegedly to Dr. Shubin, (2) statements made by other child-witnesses to Ms. Burke during the course of their evaluation and therapy, and (3) Ms. Burke’s impressions of Brooke’s credibility. Ms. Craig urges that these documents and some others recording like information contain material that is exculpatory to her, that was available to the prosecutor, that the prosecutor had a duty to disclose, and that could have influenced the verdicts in the case. (2) General Duty Of Disclosure The duty of a prosecutor to disclose exculpatory information is a matter of both Federal and State law.

In Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194, 1196 , 10 L.Ed.2d 215 (1963), the Supreme Court held flatly that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the ²⁵⁹ good faith or bad faith of the prosecution.” That holding was refined somewhat in United States v. Agurs, 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976), where the Court attempted to define the circumstances under which non-disclosure would warrant upsetting an adverse verdict and ordering a new trial. In that regard, the Court drew a distinction between evidence or information that was “available to the prosecutor and not submitted to the defense” and that which “had simply been discovered from a neutral source after trial.” Id., at 111 , 96 S.Ct. at 2401 . As a prosecutor is under no “constitutional duty routinely to deliver his entire file to defense counsel,” the Court rejected Agurs’s plea to “treat every nondisclosure as though it were error.” Id. Rather, it held, at 112-13, 96 S.Ct. at 2401 -02: “The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt.

Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.

On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” (Footnotes omitted.) Md.Rule 4-263 imposes and extends the requirement of disclosure as a matter of State law. Section (a) of the Rule requires the disclosure, even without a request, of “[a]ny material or information tending to negate or mitigate the guilt or punishment of the defendant as to the offense charged.” Section (b) requires the further disclosure, upon request, of additional classes of information, including written reports and the substance of oral reports by each expert ²⁶⁰ consulted by the State “including the results of any physical or mental examination____” Under these requirements—Federal and State—where the question of non-disclosure arises after the trial is over and the issue is the validity of the verdict, at least three considerations are usually present: (1) was the information that was allegedly withheld really exculpatory, i.e., did it tend to negate or mitigate the guilt or punishment of the defendant as to the offense(s) charged; (2) was the information reasonably available to the prosecutor so that it could have been disclosed; and (3) was it material in the sense that, when “evaluated in the context of the entire record,” it “creates a reasonable doubt that did not otherwise exist.” United States v. Agurs, supra, 427 U.S. at 112 , 96 S.Ct. at 2402 ; see also United States v. Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972); Moore v. Illinois, 408 U.S. 786 , 92 S.Ct. 2562 , 33 L.Ed.2d 706 , reh. denied 409 U.S. 897 , 93 S.Ct. 87 , 34 L.Ed.2d 155 (1972); Stevenson v. State, 299 Md. 297 , 473 A.2d 450 (1984); Yeagy v. State, 63 Md.App. 1 , 491 A.2d 1199 (1985). Each of these considerations is in contention here. We shall begin with the second—availability.

(3) Availability Of The Undisclosed Information As we observed, the Agurs Court drew a distinction between information that was “available to the prosecutor” prior to or during trial and evidence “discovered from a neutral source after trial.” 427 U.S. at 111 , 96 S.Ct. at 2401 . It is in the former situation that due process is most directly and significantly implicated. Md.Rule 4-263 fleshes this out a bit. Section (g) of that Rule applies the obligation of disclosure to “material and information in the possession or control of the State’s Attorney and staff members and any others who have participated in the investigation or evaluation of the action and who either regularly report, or ²⁶¹ with reference to the particular action have reported, to the office of the State’s Attorney.” (Emphasis added.) Health and social service agencies do not ordinarily report their findings or suspicions to the State’s Attorney; indeed, in most instances they are precluded from doing so by confidentiality statutes.

See, for example, Md.Code Ann. Cts. & Jud.Proc. art., § 9-109. Normally, then, material in the files of those agencies, especially material protected by privilege, would not be subject to disclosure under either due process requirements or under Rule 4-263(a)(l). 3 A special situation exists with respect to child abuse cases, however. Since 1966, every health practitioner, every education, mental health, and social worker, and every law enforcement officer has been under a statutory obligation to make a written report whenever that person (1) has examined or treated a child, and (2) from that examination or treatment, has reason to believe that the child has sustained physical injury as a result of abuse. See 1966 Md.Laws, ch. 221.

During the period relevant to this case, these reporting requirements and the follow-up actions required to be taken by the various health, social services, and law enforcement agencies were set forth in Md.Code Ann. Fam.Law art., §§ 5-901—5-912. 4 Section 5-908 required the report to be made to the local department of social ²⁶² services but also required that a copy of that report be sent to the State’s Attorney. That duty pertained “[notwithstanding any law on privileged communications.” In addition to certain specified information, the report was to contain “any other information that would help to determine: (i) the cause of the suspected abuse; and (ii) the identity of any individual responsible for the abuse.” § 5-903(c)(5). Section 5-905 required that, promptly after receiving a report of suspected abuse, the department of social services or the appropriate law enforcement agency, or both, must make a “thorough investigation.” That investigation was to include, “(1) a determination of the nature, extent, and cause of the abuse, if any; and (2) if the suspected abuse is verified ... a determination of the identity of the person or persons responsible for the abuse____” § 5-905(b). Section 5-905(e) required, as of January, 1985, that the “agencies responsible for investigating child sexual abuse,” including the State’s Attorney, “implement a joint investigation procedure for conducting joint investigations of child sexual abuse.” (Emphasis added.) Finally, § 5-905(g) required that “[w]ithin 5 business days after completion of the investigation, the local department [of social services], and the appropriate law enforcement agency, if that agency participated in the investigation, shall make a complete written report of its findings to the local State’s Attorney.” (Emphasis added.) Pursuant to the directive in § 5-905(e), the Howard County State’s Attorney entered into an agreement with the county police and social services departments providing for joint investigations by those agencies and the sharing of information among them.

That agreement also provided for a “complete written report” of the investigation to be submitted to the State’s Attorney. This requirement of information sharing was made known to Brooke’s parents. Prior to the first session with Ms. Burke, Mrs. Etze signed a form acknowledging, among other things, that “the Howard County Sexual Assault ²⁶³ Center is mandated by law to report suspected sexual abuse of children to the Police or to Protective Services of the appropriate community,” that “it is the policy of the Center to cooperate fully with the Police and Protective Services during the active investigation of the suspected sexual abuse or assault of a child under the age of 18,” and that “Howard County Sexual Assault Center records and information are subject to subpoenas which mandate release and disclosure.” (Emphasis in original.) In the case at hand, there was indeed close cooperation between the State’s Attorney’s Office and the other agencies, including the sexual assault center. Assistant State’s Attorney Mary C. O’Donnell attended approximately 12 of the therapy sessions conducted by Ms. Burke with Brooke, as well as several sessions conducted with the other child witnesses; she also had a dozen or so telephone conversations with Ms. Burke regarding Brooke.

A written report summarizing five sessions with Brooke, from July 28 through September 2, 1986, was sent by Ms. Burke to the State’s Attorney’s Office, supplemented by a further report in January, 1987, summarizing three additional sessions. On these facts—the statute, the agreement, and the actual contact and reporting—it is clear beyond cavil that the requirements of Rule 4-263 would extend to relevant material in the hands of the sexual assault center and the police and social services departments. Those agencies “participated in the investigation or evaluation of the action” and “either regularly report, or with reference to the particular action have reported, to the office of the State’s Attorney.” 5 Whether Ms. Burke had some subjective belief that her notes were privileged, as the State now claims, is quite ²⁶⁴ beside the point. 6 Under the governing legal precepts, this material was available to the prosecutor, whether or not it was physically in his files. (4) Exculpatory Quality—Materiality There is, of course, a close relationship between the extent to which information is exculpatory and the extent to which it was material, and so we shall consider these two elements together.

Did any of it tend to negate or mitigate Ms. Craig’s guilt, and, if so, would it, evaluated in the context of the entire record, have created a reasonable doubt that did not otherwise exist? The case against Ms. Craig rested, to a large extent, on the credibility of Brooke, who was the lead-off witness. Brooke testified that Ms. Craig had kicked her “in my leg” and “[i]n my privates,” and had stuck her with thumbtacks. She said that Ms. Craig had touched her with a stick “[i]n my private parts,” which she defined as “[hjere between my legs,” and that this had occurred “[a] lot of times,” sometimes “in the woods and sometimes in her office.” She stated that Ms. Craig made up rules requiring the children to hurt each other.

When asked why she did not tell her parents about these incidents, Brooke said that she was afraid because Ms. Craig had told her that “my parents wouldn’t love me any more,” that “my parents would get a divorce,” and that “she would kill me.” On cross-examination, which was lengthy, Brooke twice stated that the stick wielded by Ms. Craig never went into her body—that she was simply hit with it. Although she ²⁶⁵ claimed that other children at the school occasionally chased her or threw sticks, she denied that they had ever actually hit her or bit her or touched her “privates” with sticks. The thrust of her testimony was that the physical and sexual abuse of her was committed solely by Ms. Craig. Dr. Charles Shubin, a pediatrician with considerable experience in dealing with abused children, examined Brooke at the request of the State.

He testified that her hymen was “gaped open” to a 15 mm diameter, which was nearly four times the “absolute upper limit of normal” published by the American Medical Association. In addition, he said, “the hymen itself was not normal.” Instead of being “circumferential all the way around the fold of the vagina,” as it should have been, “the lower edge was considerably thickened.” There was, in addition, “a retracted scar.” In summary, Dr. Shubin stated that “[t]hese are clearly very abnormal findings and which represent very clear healed injury to this child.” As to causation of that injury, Dr. Shubin stated, “To cause injury to that tissue, stretch it, tear it, scar it would require pushing past an inch and a quarter with some penetrating force. Some object would have to be pushed into this child past an inch and a quarter which would be the normal range of motion to this tissue to cause the injury that we see in this diagram [that he drew for the jury].” Dr. Shubin said that “[i]t’s not possible just by examining her to say for sure what that object was and certainly impossible to say who did it” and, because the injury had healed, it was equally impossible “to say with certainty when it happened.” He was quite certain, however, that the abnormal findings “were caused by the penetration of something inside of the body.” A “blow or an injury to the external part of Brooke Etze’s body,” he said, would not have caused that kind of injury; “[i]t requires penetration into the child’s body of an object small enough to fit into that area.” ²⁶⁶ This opinion by Dr. Shubin was, of course, inconsistent with Brooke’s testimony that the stick used by Ms. Craig had not entered her body. Dr. Shubin dismissed the inconsistency with the assertion that “I’m not aware that children are able to easily tell what inside the body means or not.” Dr. Shubin’s testimony set the stage for testimony from Ms. Burke as to the revelations made to her by Brooke.

She testified that Brooke had told her, during the therapy sessions, that Ms. Craig had “stuck her in the privates with a stick,” that she had kicked Brooke on the legs and “in the private parts,” stuck her with thumbtacks, and threatened that, if she told anyone about these incidents, her parents “will divorce, that they will abandon her or won’t come to get her again.” When asked how consistent Brooke was “in her disclosures that Mrs. Craig is the person who did these things to her,” Ms. Burke responded, “She was totally consistent.” Ms. Craig complains specifically about the non-disclosure of 34 items contained principally in Ms. Burke’s therapy notes and in two intake reports. They seem to fall into two categories—complaints by Brooke and some of the other children of abuse by persons other than Ms. Craig, and impressions by Ms. Burke of Brooke’s credibility. An examination of the items falling within the first category reveals that, with one possible exception discussed below, none of it directly exculpates Ms. Craig. Nowhere is there to be found a statement by Brooke (or by anyone else) that Ms. Craig did not kick her, or touch her “privates” with a stick, or stick her with thumbtacks, or encourage the children to abuse one another, or threaten her.

Nor, with that one possible exception, did any of those items purport to attribute the vaginal injury described by Dr. Shubin to ' any third party to the exclusion of Ms. Craig. They simply record statements by Brooke and some of the other child-witnesses that Jamal, Mika, and some of the other children ²⁶⁷ at the school, also mistreated Brooke and the other child-witnesses. 7 Although it is clear that impeachment evidence falls within the Brady rule and must be disclosed (see United States v. Bagley, supra, 473 U.S. at 676 , 105 S.Ct. at 3380 ), a statement that someone other than the defendant also abused the victim does not necessarily detract from the evidence as to the defendant’s conduct or directly tend to negate or mitigate her guilt. The bulk of this material, then, if exculpatory or of impeachment quality at all, is only marginally so. A good bit of that information, moreover— in particular, Brooke’s assertions of mistreatment at the hands of Jamal, Mika, and at least five other children—was made known to defense counsel through the open file discovery and was used by him in cross-examining Brooke’s mother. 8 ²⁶⁸ There was one item in this category, however, that was not made known to counsel and that requires more specific consideration.

In Ms. Burke’s file was a copy of the written report of Dr. Shubin’s examination of Brooke, and appended to it was a copy of a handwritten note from Ms. Burke to Fred Levi, of the protective services division of the county department of social services. The note says, in relevant part, “Am going to refer Brooke for therapy next week. Implicated Mika as perpetrator when speaking [with] Shubin. ” (Emphasis added.) When questioned about that note at the hearing on the new trial motion, Ms. Burke indicated that this information had come to her through Brooke’s parents, who were present during the examination of Brooke by Dr. Shubin. She had not discussed it with Dr. Shubin and claimed to have no recollection of what she thought of it when it was brought to her attention.

Notwithstanding her statement, “[i]mplicated Mika as perpetrator,” Ms. Burke said that her own notes “simply indicate ... that she [Brooke] told Dr. [Shubin] that somebody hurt me .down there, and they don’t indicate who.” Dr. Shubin was not called to testify at the hearings on the motion for new trial; nor were Brooke’s parents. They, of course, could have testified as to what, if anything, Brooke actually said to Dr. Shubin. As it is, all that we have is this somewhat cryptic note recording a double-level hearsay statement and Ms. Burke’s somewhat vague explanation. On this record, we are unwilling to presume, as Ms. Craig urges us to do, that Brooke in fact exculpated her by attributing the vaginal injury solely to Mika.

The note is, at best, an invitation to further inquiry, which, when pur ²⁶⁹ sued as post-trial counsel chose to pursue it, revealed nothing. Assistant State’s Attorney O’Donnell testified that she was unaware of the note until shown it at the new trial hearing, and that neither Ms. Burke nor Dr. Shubin had ever mentioned to her any such statement by Brooke. The principal item in the second category came from an intake summary prepared by department of social services intake worker K. McKone on August 19, 1986, which was just after the first therapy session at which Brooke began to make disclosures leading Ms. Burke to contact the department. In the part of the summary entitled “Description of Abuse or Neglect,” Ms. McKone states: “Brooke is currently being evaluated at the SAC [Sexual Assault Center] and has had several sessions with Ms. Burke.

During play therapy Brooke has disclosed that someone had touched her private parts, and she pointed to the crotch area of a doll. She said ‘Roger’ (fictitious name) touched her with a stick and it hurt a lot. There is no validation yet of who did this to her and where although she did attend Craig[’]s Country Pre-school. According to Ms. Burke fantasy & reality are mixed up for this child and continued efforts will be made to determine what happened to her through continued evaluation.

Next session is on 8/25—10 AM.” (Emphasis added.) Although Ms. Craig complains of the passage concerning “Roger,” she calls particular attention to the emphasized portion indicating a belief by Ms. Burke that fantasy and reality were “mixed up” for Brooke. When questioned about that at the new trial motion hearing, Ms. Burke said that she had no recollection of making that particular statement, and that it “doesn’t sound like a statement I would have made to a Protective Service worker.” She allowed, however, that it may have been Ms. McKone’s “perception of what I was saying.” Ms. Burke acknowledged “in a clinical sense that fantasy and reality were mixed for that child at that time.” She continued that “that would have been typical of a child who’s working through ²⁷⁰ abuse dynamics,” that “young children frequently mix fact in with other types of information which are distortions. Sometimes they are motivated that out of guilt, sometimes out of fear, that everything gets rolled up together.” At no point in her lengthy examination, however, did Ms. Burke indicate any belief that Brooke’s accusations against Ms. Craig were inaccurate or untruthful. The trial court reviewed each of the passages complained of by Ms. Craig in the context of the documents whence they came, the extensive testimony concerning them, and the evidence presented at trial.

It observed that there was “testimony going everywhere in this case. There was testimony that the jury could pick and choose.” The items at issue here, it held, “it’s not such evidence as in my judgment would probably have affected the outcome of the case. It would have just been other inconsistent statements, evidence that this jury could have perhaps reviewed and considered, but not evidence which, in my judgment, would have affected the outcome of the case.” We are not persuaded that the trial court’s overall assessment was wrong. We observe initially that none of this newly discovered evidence would, in any manner, serve to negate or mitigate Ms. Craig’s guilt under Counts 3, 5, or 6 (child abuse, assault, and battery).

It in no way detracts from the evidence that Ms. Craig kicked Brooke or stuck her with thumbtacks. At best, it goes only to the alleged sexual abuse, in particular whether Ms. Craig inserted a stick into Brooke’s vagina, and thus pertains only to Counts 1, 2, and 4. There was, as we have indicated, some inconsistent testimony at trial, and some of it laid open the question of Brooke’s credibility. 9 She specifically denied that other ²⁷¹ children had kicked, hit, or bitten her, whereas Ms. Burke recounted some of her statements to the contrary. Brooke’s mother testified to specific instances of Brooke’s not telling the truth, one of which involved a false accusation against another child.

She conceded that “to a degree, a typical amount,” there was a problem with “Brooke making up stories.” She said, in particular, that, according to one of Brooke’s teachers, “it was a problem at school.” Trial counsel had and used Ms. Burke’s reports recounting Brooke’s accusations of sexual abuse or touchings on the part of Jamal and at least five other children (see n. 8, ante). Viewing the undisclosed material and the explanations of it developed post-trial in the light of the evidence presented at trial, we are unable to conclude that this material (1) necessarily negated or mitigated Ms. Craig’s guilt (or punishment) or (2) sufficed to create a reasonable doubt that did not otherwise exist. We are simply not persuaded that the trial judge erred in his conclusion that, even if the relevant and admissible evidence (along with the attendant explanations of it) developed post-trial had been before the jury, the verdicts would not likely have been any different.

II

SUFFICIENCY OF THE INDICTMENT Ms. Craig makes two attacks on the indictment: (1) that the allegation as to when the offenses were committed —“during the period of September 1984 to June 1986”— was too broad and uncertain; and (2) that the indictment failed to inform her of the specific conduct charged. Although she claims that these complaints were effectively preserved for appellate review, she argues that, if they were not so preserved, it was due to the incompetence of trial counsel, which would justify relief on that basis. We begin by noting the requirement of Md. Rule 4-252(a) that “[a] defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense” must be raised “by motion in conformity with this Rule and if not so raised [is] waived unless the ²⁷² court, for good cause shown, orders otherwise____” With exceptions not alleged or relevant here, a motion under § 4-252(a) must be filed within 30 days after the appearance of counsel. It must state the grounds on which it is made and the relief sought.

No such motion is in the record before us; nor is there any reference to one in the docket entries. It appears that counsel filed a paper entitled “Motions Pursuant To Maryland Rule 4-252” in another case (No. 15461), apparently intending it to apply to all cases against Ms. Craig. The motion is captioned as “Case #: 15461, and others” and seeks a variety of different relief, including dismissal of the indictment on the ground “[t]hat the indictment/information is defective.” Although two cases (Ayre v. State, 291 Md. 155 , 433 A.2d 1150 (1981), and Brown v. State, 285 Md. 105 , 400 A.2d 1133 (1979)) are cited for that proposition, there is no averment as to how or why the indictment is defective— merely the bald allegation that it is so. Quite apart from the failure to file the motion in this proceeding, 10 we do not regard that bald statement as adequate compliance with the requirement that the motion “state the grounds upon which it is made.” Certainly, it did not suffice to raise either of the two particular complaints made here.

Unless those alleged defects constitute a failure to show jurisdiction in the court or to charge an offense, therefore, they have been waived, notwithstanding that the trial court allowed Ms. Craig to raise the issue in her motions for new trial. Md. Rule 4-202(a) requires a charging document to state “with reasonable particularity” the time the offense occurred. But time is not ordinarily regarded an element of the offense or germane to jurisdiction, and it is certainly not so in this instance. The alleged violation in this regard, moreover, is not a complete absence of an allegation as to ²⁷³ time but rather a violation of the “reasonable particularity” requirement.

That is a matter that should and could have been raised by pre-trial motion when, if found to be meritorious, it could have been addressed and presumably corrected. The Rule does not allow such a complaint to be held until after trial has occurred and a verdict rendered. Ms. Craig’s first complaint, as to time, has been waived. Her second complaint, which she characterizes as a failure to charge an offense, is simply without substantive merit.

In Williams v. State, 302 Md. 787, 791 , 490 A.2d 1277 (1985), and later in State v. Chaney, 304 Md. 21 , 497 A.2d 152 (1985), cert. denied 474 U.S. 1067 , 106 S.Ct. 824 , 88 L.Ed.2d 796 (1986), the Court made clear that not every deficiency in setting forth the elements of the offense or the particular conduct charged amounts to a jurisdictional defect. As stated in Chaney, 304 Md. at 25-26 , 497 A.2d 152 : “We said [in Williams j that a claim that an indictment fails to charge or characterize a crime is jurisdictional and may be raised at any time. But in determining, for jurisdictional purposes, whether an indictment sufficiently charges and characterizes a crime, we made clear in Williams that merely because the charging document does not allege, expressly or by implication, every essential element of an offense does not necessarily mean that no cognizable crime within the court’s subject-matter jurisdiction has been charged. We said that while the customary method of identifying a particular crime charged in an indictment has been to aver its essential elements, that method is not exclusive 'and the use of other words that sufficiently characterize the crime will satisfy the jurisdictional requirement.’ ” The language of the indictment here suffices, in our view, to charge the six offenses upon which Ms. Craig was tried and convicted. 11 Any complaint as to lack of specificity in the precise conduct has also, therefore, been waived. ²⁷⁴ We shall defer, at this point, Ms. Craig’s complaint about the competence of her trial counsel but shall consider her several complaints in that regard later in this Opinion.

III

TESTIMONY THROUGH CLOSED CIRCUIT TELEVISION Subject to certain conditions set forth in the statute, Md.Code Ann.Cts. & Jud.Proc. art., § 9-102(a) provides that, in a case of child abuse, the court ²⁷⁵ “may order that the testimony of a child victim be taken outside the courtroom and shown in the courtroom by means of closed circuit television if: (i) The testimony is taken during the proceeding; and (ii) The judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.” Applying this statute, the court allowed Brooke (and several other children) to testify in the proceeding from the judge’s chambers, with counsel present, through closed circuit television. Ms. Craig contends: (1) § 9-102 and the procedure authorized by it violate her Constitutional right of confrontation; (2) the court failed to follow the proper procedure in concluding that the children would suffer serious emotional distress such that they would be unable to reasonably communicate if required to testify in court; and (3) the procedure authorized by § 9-102 and used in this case violated her right of presence. (1) Confrontation When this case was tried, the parties and the court were without the benefit of any controlling appellate consideration and construction of § 9-102. After the verdicts were announced, the Court of Appeals decided Wildermuth v. State, 310 Md. 496 , 530 A.2d 275 (1987), in which it considered a number of challenges to § 9-102, including claims that the procedure authorized by the statute contravened a defendant’s rights of confrontation and presence.

Wildermuth then became the focus of Ms. Craig’s attack on the procedure used at trial, both at the hearings on the motions for new trial and in argument before us. More recently, however, the United States Supreme Court decided Coy v. Iowa, — U.S. — , 108 S.Ct. 2798 , 101 L.Ed.2d 857 (1988), in which it too addressed the confrontation issues raised by procedures impairing face-to-face contact between ²⁷⁶ child-witnesses and defendants on trial for having allegedly abused them. Coy was charged with having assaulted two 13-year old girls as they slept in a tent in the backyard of their house. As the man who attacked them wore a stocking mask over his head and shined a flashlight in their eyes, the girls were unable to identify their assailant; they were not asked at trial to identify Coy. 12 Although no inquiry was made as to whether the victims would be able to present their testimony in Coy’s presence, and the judge made no finding that they would be unable to do so, the trial court, acting pursuant to a recently enacted Iowa statute, permitted a semi-opaque screen to be placed in the courtroom between Coy and the witness stand.

With certain adjustments to the lighting in the courtroom, the screen enabled Coy “dimly to perceive the witnesses” but totally precluded the witnesses from seeing Coy. The State sought to excuse the lack of any specific finding of necessity for separating the victims from the defendant on the ground that the statute authorizing the procedure “create[d] a legislatively imposed presumption of trauma” and thus ipso facto established the necessity. It urged as well that, as Coy’s right of cross-examination was not impaired by the screen, there was, in fact, no violation of his right of confrontation. In an Opinion authored by Justice Scalia, in which five other Justices joined, the Supreme Court rejected both arguments.

As to the latter, the Court made clear that the right of confrontation entails more than just the right to cross-examine. Repeatedly, Justice Scalia referred to the concomitant right, of even longer historical standing, to meet one’s accuser “face to face.” Beyond even earlier Supreme Court decisions and English common law antecedents, he quoted from Shakespeare (Richard II), the New ²⁷⁷ Testament (Acts 25:16), and a 1953 speech made by President Eisenhower to the B’nai B’rith Anti-Defamation League for the proposition that “there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’ ” Thus, he announced, “[w]e have never doubted ... that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” — U.S. at — , 108 S.Ct. at 2800 . The screen, said Justice Scalia, “was specifically designed to enable the complaining witnesses to avoid viewing [Coy] as they gave their testimony, and the record indicates that it was successful in this objective---- It is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.” With that, Justice Scalia turned to the State’s argument that the confrontation issue at stake was outweighed by the need to protect victims of sexual abuse. He recognized that, in earlier decisions, the Court had held that “rights conferred by the Confrontation Clause are not absolute, and may give way to other important interests” but concluded that “The rights referred to in those cases ... were not the right narrowly and explicitly set forth in the Clause, but rather rights that are, or were asserted to be, reasonably implicit—namely, the right to cross-examine ...; the right to exclude out-of-court statements ...; and the asserted right to face-to-face confrontation at some point in the proceedings other than the trial itself____ To hold that our determination of what implications are reasonable must take into account other important interests is not the same as holding that we can identify exceptions, in light of other important interests, to the irreducible literal meaning of the clause: ‘a right to meet face to face all those who appear and give evidence at trial.’ ...

We leave for another day, however, the question whether any exceptions exist. Whatever they may be, they ²⁷⁸ would surely be allowed only when necessary to further an important public policy.” Id. at-, 108 S.Ct. at 2802-03 . (Emphasis on last two sentences added; citations omitted.) Extending that last statement, Justice Scalia specifically rejected the notion that the Iowa statute could, of itself, supply the necessity: “The exception created by the Iowa statute, which was passed in 1985, could hardly be viewed as firmly rooted. Since there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception.” Id. at-, 108 S.Ct. at 2803 .

(Emphasis added.) Justice Scalia, as we indicated, wrote for himself and five other Justices, including Justices White and O’Connor. Those two Justices, however, filed a Concurring Opinion, authored by Justice O’Connor, to make clear their view that the right to face-to-face confrontation, which they agreed had been violated in that case, was “not absolute but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony.” Id. (Emphasis added.) They recognized that child abuse was a problem “of disturbing proportions in today’s society,” that it was “one of the most difficult problems to detect and prosecute, in large part because there often are no witnesses except the victim,” and that, even when “an instance of abuse is identified and prosecution undertaken, new difficulties arise” from the fact that “a child victim may suffer trauma from exposure to the harsh atmosphere of the typical courtrooom — ” They observed that many States had, as a result, enacted statutes authorizing a variety of procedures to shield a child-witness, calling attention, in particular, to the fact that about half of the States permit the child’s testimony to be given through closed circuit television, sometimes with and sometimes without the defendant’s being present in the same room. The point of their concur ²⁷⁹ rence was “to make clear that nothing in today’s decision necessarily dooms such efforts by state legislatures to protect child witnesses.” Id.

(Emphasis added.) In furtherance of that point, Justices O’Connor and White concluded that “even if a particular state procedure runs afoul of the Confrontation Clause’s general requirements, it may come within an exception that permits its use.” There is nothing novel, they said, about the proposition that the Clause embodies a general requirement that a witness face the defendant. "But it is also not novel to recognize that a defendant’s ‘right physically to face those who testify against him,’ ... even if located at the ‘core’ of the Confrontation Clause, is not absolute, and I reject any suggestion to the contrary in the Court’s opinion.” The core of the concurrence was then stated as follows: “In short, our precedents recognize a right to face-to-face confrontation at trial, but have never viewed that right as absolute. I see no reason to do so now and would recognize exceptions here as we have elsewhere. Thus, I would permit use of a particular trial procedure that called for something other than face-to-face confrontation if that procedure was necessary to further an important public policy....

The protection of child witnesses is, in my view and in the view of a substantial majority of the States, just such a policy. The primary focus therefore likely will be on the necessity prong. I agree with the Court that more than the type of generalized legislative finding of necessity present