Duley v. State

GILBERT, Chief Judge. As a result of a nonjury trial in the Circuit Court for Calvert County, Michael Joseph Duley was convicted of child abuse (Md.Ann.Code art. 27, § 35A) and manslaughter in connection with the death of his daughter. The trial judge sentenced Duley to fifteen years imprisonment on the abuse charge and suspended imposition of the sentence on the manslaughter conviction. 1 On appeal to this Court, Duley posed four issues. We have, however, combined the questions on sufficiency of the evidence into one issue, reducing the number of arguments to three.

I. “The trial court lacked jurisdiction to try [Duley] for involuntary manslaughter because the indictment fails to charge that offense.” ²⁷⁸ Although no objection to the adequacy of the indictment to charge manslaughter was made before the trial court, Duley now contends that the failure of the indictment to charge an offense deprived that court of jurisdiction. The question of jurisdiction may be raised at any time. Pedzich v. State, 33 Md.App. 620 , 365 A.2d 567 (1976). With respect to the manslaughter, the indictment charged: “The Grand Jurors of the State of Maryland, in and for the body of Calvert County, does further present that MICHAEL JOSEPH DULEY, late of Calvert County aforesaid, on or between the 20th day of June in the year nineteen hundred and eighty-two and the 16th day of July in the year nineteen hundred and eighty-two, at Calvert County aforesaid, unlawfully did kill and slay MICHELLE L. DULEY, against the peace, government and dignity of the State.

Common Law” There are two methods that the State may utilize in charging the offense of manslaughter: 1) under the common law, or 2) the statutory short form indictment set out in Md.Ann.Code art. 27, § 616. Brown v. State, 44 Md.App. 71 , 410 A.2d 17 (1979). The requisites for charging manslaughter at common law were articulated in Neusbaum v. State, 156 Md. 149, 155 , 143 A. 872, 875 (1928). The Court there said: “At common law it was essential that the indictment should show the name of the person charged, the name of the person killed, the jurisdiction within which and the time at which the homicide occurred, that it was felonious and such facts and circumstances incident to the crime as were reasonably necessary to identify it, and to enable the court to see whether a crime had been committed as charged.” The indictment in the instant case alleges neither that the homicide was felonious nor “the facts and circumstances incident to the crime.” Because those elements are ²⁷⁹ missing, the indictment conflicts with Neusbaum .

It is not defective because of the failure to aver that it was “feloniously” committed inasmuch as Md.Rule 711 d declares that the use of the word “feloniously” is no longer required in a charging document. The indictment, however, must, by common law standards, fall because it fails to apprise the accused of “the facts and circumstances incident to the crime.” 156 Md. at 155 , 143 A. at 875 . That the indictment is not sufficient at common law does not mean that it is insufficient for all purposes. Md.Ann.Code art. 27, § 616 provides: “In any indictment for murder or manslaughter, or for being an accessory thereto, it shall not be necessary to set forth the manner or means of death.

It shall be sufficient to use a formula substantially to the following effect: ‘That A.B., on the.....day of.....nineteen hundred and....., at the county aforesaid, feloniously (wilfully and of deliberately premeditated malice aforethought) did kill (and murder) C.D. against the peace, government and dignity of the State/” (Emphasis supplied.) The indictment in the instant case substantially tracked the statutorily suggested form. Hence, the indictment properly charged manslaughter. We add that the term “Common Law,” appearing at the foot of the count charging manslaughter, refers to the common law offense of manslaughter and not to the manner in which it is charged. II. “The trial judge erred by allowing an expert pathologist to testify as to a battering parent ‘profile.’ ” The State’s witness, Dr. Brian D. Blackbourne, qualified as an expert in the fields of forensic and anatomical pathology- The record reveals the following significant happenings with respect to the direct examination of Dr. Blackbourne: ²⁸⁰ “[Mr. Sengstack, State’s Attorney]: All right.

Can you tell me whether or not in your research of the matter, have you had occasion to determine whether or not a certain type of individual might be more prone to commit this type of [child] abuse? MR. CUMBERLAND [Defense Counsel]: Objection. THE COURT: Overruled.

You may answer. A. [Dr. Blackbourne]: Yes. There is sort of a profile of common facts in a series of cases. Q. [Mr. Sengstack]: All right.

Can you tell me what that profile consists of? MR. CUMBERLAND: Objection. THE COURT: Overruled.

A. [Dr. Blackbourne]: The persons involved in the Battered Child Syndrome often are young, somewhat immature, unable to really handle their emotions in a socially acceptable fashion. Frequently they are in a stressful situation, either economic, domestic stresses on them, and subject to sort of flying off when certain added stress is presented. They sometimes have been victims of quite harsh punishment themselves as they were growing up, is sort of a pattern which they fall back into.” During its argument for a verdict of guilty on the child abuse charge, the State referred to Dr. Blackbourne’s testimony by asserting: “Mr. Duley fits the criteria that Dr. Blackbourne indicated this type of person might be involved in child abuse. One who is young, one who feels the pressure of financial situations, one who has to babysit while the wife might be working.

This is the exact type of person who is most likely to commit this type of crime.” Recently, the Court of Appeals of the State of Washington considered a similar issue to that presented in the matter sub judice. That court, in State v. Maule, 35 Wash. App. 287 , 667 P.2d 96 (1983), held that it was reversible error for a trial judge to admit evidence that a majority of child abuse cases involve a male parent figure, with biological ²⁸¹ fathers outnumbering non-biological fathers as offenders. In reversing, the appellate court said: “In State v. Steward, 34 Wash.App. 221, 224 , 660 P.2d 278 (1983), we held that it was reversible error to admit ‘expert’ testimony in a second degree murder prosecution of a babysitting boyfriend that, on the basis of the expert’s experience, ‘serious injuries to children were often inflicted by either live-in or babysitting boyfriends.’ We consider equally prejudicial the admission of ‘expert’ testimony that the majority of child sexual abuse cases involve ‘a male parent-figure, and of those cases that would involve a father-figure, biological parents are in the majority’ in a prosecution of a defendant who is the father figure of one of the alleged victims and the father of the other.

Such evidence invites a jury to conclude that because the defendant has been identified by an expert with experience in child abuse cases as a member of a group having a higher incidence of child sexual abuse, it is more likely the defendant committed the crime. Admission of this testimony was reversible error. State v. Steward, supra.” 35 Wash.App. at -, 667 P.2d at 99 . See also State v. Loebach, Minn., 310 N.W.2d 58 (1981).

We are persuaded by Maule’s reasoning, and we hold that the admission into evidence of Dr. Blackbourne’s “child battering profile” was error. Such evidence is totally irrelevant because it does not tend to prove that Duley committed the acts of abuse attributed to him. The evidence had no probative value with respect to Duley’s culpability. J. Wig-more, A Student’s Textbook on the Law of Evidence, 36 (1935).

Brown v. State, 29 Md.App. 1 , 349 A.2d 359 (1975). At best, Dr. Blackbourne’s testimony tended to associate Duley with a group of persons who, in the doctor’s opinion, are often responsible for child abuse. That type of evidence is no different than allowing an expert to testify that most homicides are committed by men. From that point of reference, only a dolt would not include Duley within the scope of the comment. ²⁸² We are aware that in Grant v. State, 55 Md.App. 1 , 461 A.2d 524 (1983), this Court sanctioned the testimony of a Maryland State Trooper, trained in drug traffic interception, as to the “drug carrier profile.” There, however, we were dealing with “probable cause” to stop an alleged courier.

Grant was concerned with the méchanizations of a clandestine, sophisticated, abstruse drug trafficking operation. Judge Moylan, for the Court, said: “In assisting the jury to understand the character.'sties of the drug traffic throughout the country and to appraise accurately the value of the seized cocaine, ... [the Trooper’s testimony] served a valuable function in the search for truth.” 55 Md.App. at 29 , 461 A.2d at 538 . The law of Maryland is that the, “... admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal.” Raithel v. State, 280 Md. 291, 301 , 372 A.2d 1069 (1977); Grant v. State, 55 Md.App. at 29 , 461 A.2d at 538 . See also Winkles v. State, 40 Md.App. 616, 622-23 , 392 A.2d 1173 (1978).

The only thing on record relative to any expertise Dr. Blackboume might possess as to the “battered child parent” is contained in the simple question by the state’s attorney to the doctor: “Can you tell me whether or not in your research of the matter, have you had occasion to determine whether or not a certain type of individual might be more prone to commit this abuse?” The answer to the question, as we have seen above, was, “Yes. There is sort of a profile of common factors in a series of cases.” Other than that single question and response, there is not one word of testimony showing how, when, or where the doctor, a pathologist, acquired his expertise on the profile of the battered child’s parent, nor was ²⁸³ there any exploration into the extent or composition of the research performed by Dr. Blackbourne. Under the particular circumstances of this case, we deem that the trial judge should not have allowed the testimony relating to the profile of a battered child’s parent. That the trial judge erred in admitting Dr. Blackbourne’s testimony does not ipso facto require that we reverse Duley’s convictions.

Error which is “harmless” does not warrant reversal. Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976). The standard to be applied in deciding whether error is “harmless” was stated by Judge O’Donnell in Dorsey : “[WJhen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.” 276 Md. at 659 , 350 A.2d at 678 .

See also Cox v. State, 51 Md.App. 271 , 443 A.2d 607