Germain v. State

CATHELL, Judge. Petitioner, Jean Bernard Germain, was convicted by a jury in the Circuit Court for Anne Arundel County of attempted second degree murder, first degree assault, reckless endangerment, and carrying a weapon with intent to ⁵¹⁵ injure. Petitioner appealed to the Court of Special Appeals. In an unreported opinion filed June 12, 2000, the Court of Special Appeals affirmed his conviction. 1 Petitioner presents one question to this Court, for which we granted certiorari: Did the Court of Special Appeals err in not reversing Petitioner’s conviction on the ground that the trial court precluded Petitioner from using a key State witness’s Pre-Sentence Investigation (PSI) for any reason including to refresh the witness’s recollection, on the ground that PSIs are confidential and privileged?

We answer petitioner’s question in the affirmative. We hold that the trial court should not have precluded petitioner from using a key State witness’s PSI to refresh that witness’s recollection. The confidentiality of a PSI is not absolute. The showing of a PSI to a witness who has a right to see it, in order to refresh that witness’s recollection, is not prohibited by statute.

Accordingly, we reverse the decision of the Court of Special Appeals and remand with instructions to reverse the judgment of the Circuit Court for Anne Arundel County and remand the case to that court for a new trial. I. Facts Petitioner and Mr. John Campbell (Campbell), two individuals incarcerated in the State of Maryland, shared cell 205 in D building, Bravo Wing of the Maryland House of Corrections Annex located in Jessup, Maryland. Sergeant Carlton L. Gibson, the officer in charge of the housing unit, testified that in early August 1998, 2 petitioner and two other individuals had ⁵¹⁶ just come off of temporary housing into the D Building. Petitioner was given a choice of three bed spaces in which to move.

Petitioner requested that he not be moved into a cell with anyone who was a smoker. After initially refusing the placement in the cell with Campbell, petitioner changed his mind and accepted housing in that cell. His decision to accept the housing was made, at least in part, on the assurances by Sergeant Gibson that they would move him out of the cell after a short period of time. Petitioner testified that soon thereafter he made numerous requests to be moved from the cell he shared with Campbell because Campbell “smoke[d] all the time,” was HIV positive, and had sexually propositioned petitioner.

However, Sergeant Gibson testified that “[t]he only reason I had was — the only reason that was brought to my attention was the smoking. Because [petitioner] said — he stated that he had asthma and he couldn’t move in with anybody that smoked cigarettes.” Additionally, when asked whether petitioner ever complained about unwanted sexual advances by his cell mate, Sergeant Gibson responded that “[s]exual advances [were] never brought to my attention.” At approximately 11:25 p.m. on August 1, 1998, after being cell-mates for approximately two weeks, a fight broke out between the two inmates. The issue at petitioner’s trial for this assault was not whether the assault occurred but whether petitioner was acting in self-defense. During the trial, the defense counsel argued that petitioner was acting in self-defense by warding off an unwanted, forced homosexual assault upon him by Campbell, who petitioner believed to be a homosexual, a convicted sex offender, and a HIV positive individual, while the State contended that the assault was simply an unprovoked attack by petitioner.

The two inmates’ versions of the assault are drastically different. Campbell testified that at approximately 11:25 p.m., he walked to the door of the cell to smoke a cigarette. Before Campbell could light the cigarette, petitioner jumped out of bed and began hitting him in the back of the head. Initially, ⁵¹⁷ Campbell thought that petitioner was only punching him, but when he saw blood running down his face, he realized he was being stabbed.

Campbell called out for a correctional officer. Officer Barbara Leonard responded to his call for help, called for a 10-10, 3 and waited for additional correctional officers to arrive. During this time, petitioner “Continued stabbing [Campbell] in the neck, the shoulder, and down the right side of [Campbell’s] back.” Not until Officer Orice Custis arrived and sprayed pepper spray in the cell did petitioner stop attacking Campbell. Campbell testified and the medical report confirmed that he had “104 stab wounds.” Contrastingly, petitioner maintained that on the night in question, he was acting in self-defense.

He testified that Campbell, whom he believed was a homosexual, a convicted sex offender, and HIV positive, “tried to approach [him] sexually.” Petitioner testified that “[Campbell] approached me about a sexual thing, and I told him that I was not a homosexual. And after I refused, he approached me. He tried to attack me.” Petitioner explained that while he was laying on his bed and Campbell was standing in the cell, Campbell began touching him and fondling him in a sexual manner. Petitioner testified that: Mr. Campbell told me that he was a known sex offender to me.

And I knew that he had AIDS. He was approaching me sexually, so that was an assault on my life. He wanted to have sex with me. I refused.

He approached me, touching me. When I jumped down to try to get him to stop, he attacked me. And we fought. Petitioner then grabbed a knife, which he kept for protection, from its hiding place by the toilet and used it in his fight with Campbell.

Petitioner was seen hitting and stabbing Campbell by two correctional officers who responded to Campbell’s calls. Officer Barbara Leonard testified that at approximately 11:25 ⁵¹⁸ p.m. she heard someone calling “CO, CO.” 4 Upon arriving at cell 205, she found that Campbell “was bent down at the door and [petitioner] ... was just stabbing him repeatedly.” She instructed petitioner to stop striking Campbell. When he ignored her, Officer Leonard “called the code” by reporting a “10-10 on delta bravo,” indicating that there was a fight between inmates on the bravo wing of Building D. Officer Orice Custis responded to her call and upon arriving at cell 205, ordered petitioner to stop striking Campbell. On the evening that the fight broke out between the two inmates, Officer Custis was the Officer in Charge of a housing unit in Building D. He testified that when he arrived at cell 205 he saw Campbell “in the fetal position right by the door.

There was another inmate [petitioner] on top of him stabbing him.” Officer Custis instructed petitioner to stop striking Campbell. When petitioner ignored him, Officer Custis went to the control center, got a chemical agent, ran back to cell 205, 5 and ordered petitioner to stop striking Campbell. When petitioner continued to ignore Officer Custis’s commands, Officer Custis “sprayed a short burst of chemical agent into the cell” through a small slot in the cell door at which time petitioner “dropped the weapon down and ran to the back of the cell.” Officer Custis ordered petitioner to back up to the cell door to be handcuffed but he refused to cooperate. The two officers waited for more officers to arrive to the scene before they opened the door, handcuffed both petitioner and Campbell, and took them to Medical.

Officer Leonard testified that the fight continued for approximately three minutes from the time she first responded to Campbell’s cries for help. She also testified that she did not witness how the fight started. ⁵¹⁹ II. The Trial As we discussed, supra, defense counsel’s theory of the case was that petitioner was acting in self defense by warding off an unwanted, forced sexual assault upon him by Campbell, who petitioner believed to be a homosexual, a convicted sex offender, and a HIV positive individual. On cross-examination, Campbell denied being a homosexual and stated that if he made any sexual advances toward petitioner while they were cell mates, that he did not remember making them.

He further testified on cross-examination that, although he remembered pleading guilty to two second degree sex offenses and he was serving a forty-year sentence, he did not recall the specifics of the charges. It was clear that whether Campbell was a person who made sexual attacks against members of the same sex was proffered as material to the credibility of both Campbell and the defendant. On recross-examination, defense counsel again tried to elicit the specifics behind Campbell’s convictions for two second degree and one third degree sexual offense: BY MR. GUNNING:[ 6 ] Q. Mr. Campbell, the victim of your sexual offense was an 11-year-old boy; is that correct?

MR. PAONE: Objection. MR. GUNNING: Your Honor, may we approach?

THE COURT: No. I am going to overrule. He can answer the question. You opened the door. Go ahead.

THE WITNESS: I don’t remember. BY MR. GUNNING: Q. You don’t recall. A. I don’t remember nothing.

Q. You don’t recall pleading guilty to sodomizing an 11-year-old boy. ⁵²⁰ A. I remember pleading guilty to second degree sex offense. That’s all I remember. Q. And you don’t recall the second second degree sex offense with the same 11-year-old boy as part of that plea. A. No. I remember pleading guilty to two second degree sex offenses.

That was all I remember. Q. And you also pled guilty to a third degree sex offense which entailed fondling the penis of that little boy, correct? THE WITNESS: No. Q. And you just don’t remember any of that. A. I don’t remember none of it.

Shortly thereafter, the following discussion took place at a bench conference: MR. PAONE: Your Honor, defense counsel has just shown me a copy of what appears to be a PSI for the defendant.[ 7 ] I can only assume he is going to cross-examine him about the contents of that PSI. I am going to object before we get into it. THE COURT: What— MR.

GUNNING: Initially I am going to use it to refresh his recollection. MR. PAONE: A PSI is confidential. THE COURT: How— MR.

GUNNING: That doesn’t mean I can’t use it to refresh his recollection. THE COURT: This report is for official Court use only. It is saying here it is confidential and protected. Where did you get this?

MR. GUNNING: Through subpoena. MR. PAONE: His base file. ⁵²¹ THE COURT: I think it is confidential.

It says this report — public inspection— MR. GUNNING: All that means is that I can’t go into a courthouse and say give me the PSI for this defendant. THE COURT: Well, you did. MR.

GUNNING: But now that I have gotten this PSI, I should be able to use the information in there to try to refresh his recollection. THE COURT: He has already — -so I am going to sustain his objection. You have it on the record— MR. GUNNING: I could proffer to the Court that this document — -he admitted to — sexual offenses to an 11-year-old boy, and one would be by sodomy and the other one would be by having oral sex with him.

He also fondled him. This information will be mainly to refresh his recollection. THE COURT: Well — there is no need in going into the rest of it, for several reasons. One, it is confidential; two, it is already on — and the only purpose of the convictions are to show— MR.

GUNNING: But, Your Honor, now we have the issue of credibility where he says he is not a homosexual. And if you ... sodomize an 11-year-old boy— THE COURT: If you have a conviction, you can tell them the conviction. MR. PAONE: Your Honor, I am going to renew my objection to all references to the specific facts of any case.

I can’t get into them on my cross-examination, and neither can defense counsel. Your Honor, under these circumstances there are many reasons, psychological, psychiatric, any number of reasons, why the [witness] may not remember what exactly happened on these occasions. The clear implication to the jury has been that — there has also been no indication that [petitioner] knows any of the facts of these cases and therefore knows to be fearful of them. It is grossly unfair.

The State is not allowed to go into the facts of any convictions [petitioner] may have when he ⁵²² takes the stand. I think the law is very clear that when it comes to credibility we have the conviction and the conviction alone. And that goes for both sides, the State and the defense.[ 8 ] THE COURT: I — it is clear that this is a confidential document, and as part— The record indicates that at this point the bench conference ended.

III

Discussion a. The Confidential Nature of a PSI is Not Absolute The question before us is simply whether the trial court erred in refusing to permit petitioner’s defense counsel to use Campbell’s PSI to attempt to refresh his recollection on the sole basis that PSI’s are confidential. It is helpful to our analysis to review the nature of PSIs and their role in the criminal justice process. A “pre-sentence investigation” is an “[investigation of the relevant background of a convicted offender, usually conducted by a probation officer attached to a court, designed to act as a sentencing guide for the sentencing judge.” 9 Black’s Law Dictionary 1184 (6th ed.1990); see ⁵²³ also 18 U.S.C.S. § 3552 (Presentence reports); Fed.R.Crim.P. 32(b) (Presentence Investigation and Report).

Generally, a PSI is a tool offered to the sentencing court to assist it in reaching its goal of individualizing the sentence “to fit ‘the offender and not merely the crime.’ ” Smith v. State, 308 Md. 162, 167 , 517 A.2d 1081, 1084 (1986) (quoting Williams v. New York, 337 U.S. 241, 247 , 69 S.Ct. 1079, 1083 , 93 L.Ed. 1337 (1949)). “The principal function of the presentence report is to assist the court in determining the appropriate sentence.” United States v. Charmer Indus. Inc., 711 F.2d 1164, 1170 (2d Cir.1983). Because a PSI is a tool generally utilized by a sentencing judge, the circumstances, which present themselves in the case sub judice, are unusual. In this case, the State’s key witness, Campbell, was a convicted sex offender.

During cross-examination and recross-examination, Campbell claimed that he could not remember the specifics of the crimes for which he had been convicted. Defense counsel, in an effort to strengthen petitioner’s testimony that Campbell had been making unwanted sexual advances, fondling him, and sexually attacking him, attempted to utilize a PSI that was apparently prepared in respect to Campbell’s sentencing on his convictions. Defense counsel received the PSI through subpoena and was attempting to use the PSI to refresh Campbell’s memory as to the nature of his past convictions after Campbell asserted that he could not remember. We continue our discussion with an analysis of the relevant statutes.

Maryland Code (1999), section 6-112 of the Correctional Services Article 10 provides: § 6-112. Presentence investigation report; other investigations and probationary services. (a) In general.— ⁵²⁴ (2) Except on court order, a presentence investigation report is confidential and is not available for public inspection.[ 11 ][Emphasis added.] As the wording of section 6-112 clearly indicates, the confidentiality of a PSI is not absolute. It is confidential in that it is not available for general “public inspection,” except on an order of a court.

It does not specifically prohibit the use of PSIs in official court proceedings — it is primarily designed to limit “public inspections.” 12 ⁵²⁵ Some of the underlying purposes behind the PSI confidentiality requirement include: (1) to encourage individuals, including a defendant, who have relevant information to provide it candidly with the assurance of confidentiality, see United States v. Greathouse, 484 F.2d 805, 807 (1973); United States v. Evans, 454 F.2d 813, 820 (1972); (2) to consider the privacy interests of the victims and their families, see Halacy v. Steen, 670 A.2d 1371, 1374 (Me.1996); (3) to consider the privacy interests of the defendant, see United States v. Corbitt, 879 F.2d 224, 236 (7th Cir.1989), cert. denied, 502 U.S. 823 , 112 S.Ct. 86 , 116 L.Ed.2d 58 (1991); (4) to protect the anonymity of confidential sources, see United States v. Huckaby, 43 F.3d 135, 138 (5th Cir.1995); and (5) to consider that the report may include irrelevant and unsupported information, see Halacy, 670 A.2d at 1374 . We recognize that there are numerous compelling interests served by preserving the confidentiality of PSIs from “public inspection.” 13 These valid public policy justifications for confidentiality usually factor heavily against out-of-court disclosures to any party not involved in the sentencing or rehabilitation of the subject of the PSI. The United States Supreme Court stated in United States Department of Justice v. Julian, 486 U.S. 1 , 108 S.Ct. 1606 , 100 L.Ed.2d 1 (1988): [T]he courts have been very reluctant to give third parties access to the presentence investigation report prepared for ⁵²⁶ some other individual or individuals. As the Government points out, one reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report.

A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically required some showing of special need before they will allow a third party to obtain a copy of a presentence report. [Citations omitted.] Id. at 12 , 108 S.Ct. at 1613 , 100 L.Ed.2d 1 ; see Charmer Indus., 711 F.2d at 1171 (noting that “[i]n order to ensure the availability of as much information as possible to assist in presentencing, the courts have generally determined that pre-sentencing reports should be held confidential.”) 14 However, as we discussed, supra, despite the justifications for keeping a PSI confidential in respect to “public inspection” (which was not the use petitioner proposed in the case at bar), the confidentiality of a PSI even then is not absolute. Section 6-112(a)(2) plainly states that a PSI is ⁵²⁷ confidential from “public inspection” “[ejxcept on court order.” Although, the determination as to whether to permit access to a PSI should be made with utmost care, it is still well within the authority of a court to make. As a United States District Court stated in 1996: This determination does not end the court’s inquiry, however, for a presentence report’s presumption of confidentiality is not absolute.

A third-party[ 15 ] seeking access to a presentence report may overcome the report’s confidentiality by demonstrating that disclosure will “serve the ends of justice,” [United States v.] Schlette, 842 F.2d [1574,] 1579 [ (9th Cir.1988) ]; [United States v.] McKnight, 771 F.2d [388,] 390 [ (8th Cir.1985) ], or by establishing a “compelling, particularized need for disclosure,” Huckaby, 43 F.3d at 138 ; Corbitt, 879 F.2d at 239 [n. 5.] Applying this standard requires a fact specific inquiry in which the need for confidentiality is balanced against the desirability of releasing a presentence report.[ 16 ] Huckaby, 43 F.3d at 139 ; Schlette, 842 F.2d at 1579, 1583; Charmer, 711 F.2d at 1173 . The showing required of the party seeking disclosure will vary with the degree to which the need for confidentiality is present in a particular case. Schlette, 842 F.2d at 1583 (citing United States Indus., Inc. v. United States Dist. Court, 345 F.2d 18, 21 (9th Cir.), cert. denied, 382 U.S. 814 , 86 S.Ct. 32 , 15 L.Ed.2d 62 (1965)).

This determination is committed to the sound discretion of the trial court and will be reviewed for abuse of discretion. Huckaby, 43 F.3d at 138 ; Schlette, 842 F.2d at 1577. United States v. Preate, 927 F.Supp. 163, 166-67 (M.D.Pa.1996); see Huckaby, 43 F.3d at 138 (recognizing that no court ⁵²⁸ has held that confidentiality of information contained in a PSI must be maintained in all circumstances); Corbitt, 879 F.2d at 239-40 (noting that in some situations, a PSI may be disclosed to meet a particularized need arising out of pending or contemplated litigation); Charmer Indus., 711 F.2d at 1175 (concluding that a court “should not authorize disclosure of a presentence report to a third person in the absence of a compelling demonstration that disclosure of the report is required to meet the ends of justice.”); Hancock Bros., Inc. v. Jones, 293 F.Supp. 1229, 1233 (N.D.Cal.1968) (“Information contained in a presentence report should not be disclosed to third parties unless lifting confidentiality is required to meet ends of justice.”); Halacy, 670 A.2d at 1375 ; State v. Bacon, 167 Vt. 88, 91 , 702 A.2d 116, 119 (1997) (“[T]he confidentiality of PSIs is not absolute.”). While the issue of what standard a trial court should use in determining whether a PSI should be disclosed is not before us, we do note that such a determination is within the authority of the court. 17 In any such instance, the determination ⁵²⁹ should be made on the facts and circumstances of that individual case.

We addressed an impeachment issue in Hall v. State, 292 Md. 683 , 441 A.2d 708 (1982), a case in which we decided whether a statement made by the accused to a probation officer conducting a presentence investigation was admissible in a subsequent trial for the purpose of impeachment. We said: Hall’s last contention is that admitting Monk’s testimony was a violation of Maryland Code ([1957,] 1971 [Repl.Vol.], 1981 Cum.Supp.), Art. 41, § 124(b)[ 18 ] and Maryland Rule 771(b).[ 19 ] In pertinent part, section 124(b) provides that “presentence reports shall be confidential and not available for public inspection except upon court order or for use by any correctional institution.” Maryland Rule 771(b) tracks section 124(b) and provides that a presentence report “is not a public record and shall be kept confidential as provided in Article 41, § 124(b) of the Maryland Code.” The short answer to this contention is that the report was not introduced nor was the substance of the report made public. The information provided the probation agent is the kind (such as name, age, home address) routinely and preliminarily ascertained in any interview and is not gathered for the purpose of incriminating the defendant. In our view this type of information was not intended by the Legislature to be protected by § 124(b) and thus we find no violation of either the spirit or the letter of § 124(b) or Rule 771(b).

We hold, therefore, that Monk’s testimony based on the presentence interview was admissible to impeach Hall’s statement made on direct examination and, as limited, this ⁵³⁰ testimony did not violate the confidentiality requirements of Article 41, § 124(b) or Rule 771(b). Id. at 692, 441 A.2d at 713 . In the posture of the case at bar, when the trial court denied defendant the use of the PSI, it was not proposed that it be admitted into evidence. It was merely to be used for recollection refreshing purposes.

Generally, when appropriate in the first instance, there are no limitations on the nature of the relevant documents that may be used in the refreshing of a witness’s recollection. Such documents are not being admitted into evidence. 20 As we have discussed, supra, in Maryland, the determination as to whether to disclose otherwise confidential information contained within a PSI is a question committed to the authority of the trial court. However, this exercise of authority has little role in the use of already obtained PSI documents to refresh recollection. The trial court in the case sub judice erroneously believed that it was mandatory to keep the information contained within a PSI confidential under all circumstances, even though the PSI was already in the defendant’s possession.

When faced with defense counsel’s assertion that ⁵³¹ he was entitled to use the generally confidential PSI to refresh Campbell’s recollection, the trial court repeatedly relied solely on the document’s status as “confidential” and “for official Court use only.” The trial court failed to recognize that the confidentiality requirement related primarily to “public inspection” and would not apply to showing it to the subject for whom it was prepared, a person who had the right to see it. Additionally, the trial court failed to perceive any difference in respect to its use in official court proceedings to refresh a witness’s recollection, and making it available for “public inspection.” In other words, the trial court erroneously concluded that it had no authority to allow the disclosure of the contents of the PSI because such information was always confidential. That is simply incorrect. The trial court’s failure to permit defendant to utilize the PSI to refresh a witness’s recollection was reversible error. b.

Refreshing Recollection Whether a witness’s recollection may be refreshed by a writing or by other means depends on the particular facts and circumstances of the individual case. As we said in Oken v. State, 327 Md. 628 , 612 A.2d 258 (1992), cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993): While it is true that in many circumstances, an examining attorney must first establish that a witness’s memory is exhausted before refreshing the recollection of that witness, see 6 L. McLain, Maryland Evidence § 612.1 (and cases cited therein), laying such a foundation is not an absolute prerequisite. Instead, the question of whether a witness’s recollection may be refreshed by a writing or some other object depends upon the particular circumstances.... Bankers Trust Co. v. Publicker Industries, Inc., 641 F.2d 1361, 1363 (2d Cir.1981) (“There is no required, ritualistic formula for finding exhaustion of memory.”) State v. Greenlee, 72 N.C.App. 269 , 324 S.E.2d 48, 51-52 (1985) (prosecuting attorney did not improperly impeach State witness merely by attempting to refresh her memory upon realizing that her in-court testimony was contradictory to ⁵³² her prior statement); Walker v. State, 445 So.2d 955, 957 (Ala.Crim.App.1983) (witness for State in a rape prosecution could refer to a writing for purpose of refreshing his recollection without first, as condition precedent, showing that it was necessary for his recollection to be refreshed); Reproductive Health Services, Inc. v. Lee, 660 S.W.2d 330, 335-36 (Mo.App.1983) (holding that “where witness’ testimony concerned five separate incidents of trespassing over a period of approximately ten months, involving various defendants, ... trial court could, in the exercise of its discretion, permit witness to employ written list to refresh her recollection without any specific statement on her part that she needed the list to refresh her recollection.”); People v. Verodi, 150 Cal.App.2d 137, 150-51 [,] 309 P.2d 568, 576-77 (2d.

Dist.1957) (holding that “in murder prosecution, district attorney’s referring witness’ attention to memorandum, previously prepared by witness, for purpose of refreshing witness’