Hajireen v. State

GRAEFF, J. Tuan Pingeran Hajireen, appellant, was accused of sexually assaulting J.M., an eight-year-old girl. 1 A jury sitting in the ⁵⁴¹ Circuit Court for Montgomery County found him guilty of a third-degree sexual offense. The court imposed a sentence of seven years, all but two suspended, to be followed by supervised probation. Appellant additionally was required to register as a sex offender. Appellant presents five questions for our review, 2 which we have consolidated and rephrased as follows: 1.

Did the circuit court err when it admitted a recorded interview between a social worker and the victim? 2. Did the circuit court err when it declined to give a “missing evidence” instruction to the jury with respect ⁵⁴² to a recording of a police interview of the appellant that was missing the audio component? For the reasons set forth below, we shall reverse the judgment of the circuit court and remand for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND On August 20, 2010, appellant was indicted on one count of committing a sexual offense in the third degree.

Trial commenced on January 11, 2011. During opening statement, defense counsel told the jury that appellant’s “nightmare” began on July 18, 2010, “when, for some reason unknown to [appellant], myself, unknown to anybody ... [J.M.] tells her mother” that appellant molested her. Counsel told the jury that the jury’s task was “to prove that something didn’t happen, to corroborate it with other evidence, to verify the word of a child, whose motives are unknown to us.” The victim’s mother, Ms. M., testified that appellant met J.M.’s family at a religious holiday celebration in 2008 or 2009. After they met, appellant spent a significant amount of time at the family home.

Although appellant’s presence made Ms. M. uncomfortable, he would visit the family home a few times a week, and, at one point, he visited “almost every night.” The children enjoyed spending time with appellant. J.M. testified that, one night in March 2010, she, her sister, and appellant were playing a game of hide-and-seek. After they finished playing, J.M. went upstairs to prepare for bed. She went back downstairs for a glass of water and appellant, who was alone in the living room, called her over and asked her to sit on his lap.

She complied, facing away from him. Appellant then placed one of his hands under her shirt on her stomach and the other hand in her pants, underneath her underwear. J.M.’s testimony about the incident continued as follows: [THE STATE]: Okay. Did you ever know or feel if he put his finger or any part of his hand inside of you or whether it stayed on the outside of you? ⁵⁴³ [J.M.]: It stayed—put it inside. [THE STATE]: Okay.

Do you remember if he put one finger or more than one finger inside. [J.M.]: I think it was one finger. [THE STATE]: Okay. [J.M.], how long would you say his hand was inside your, your pants for? [J.M.]: About five seconds. [THE STATE]: And after five seconds what happened? [J.M.]: He took it out. [THE STATE]: Okay. And did anything happen right before he took it out? [J.M.]: No. [THE STATE]: After he took it out, was his other hand still on your stomach or did he move that hand? [J.M.]: Moved that hand. [THE STATE]: So, what happened after five seconds? [J.M.]: My mom, she called, she called me to go upstairs. [THE STATE]: And at that time, did you go upstairs? [J.M.]: Yeah, I was trying. [THE STATE]: What do you mean you were “trying”? [J.M.]: I went upstairs and he called me again. [THE STATE]: And then what? [J.M.]: He did it again. [THE STATE]: Okay. So, when you say “he did it again,” did you ever get off of his lap or did you stay on his lap the whole time? [J.M.]: On his lap the whole time. [THE STATE]: Okay. So, how long a time was there between when he put his—took his hand out and put his hand back in?

Do you remember? Was it like a minute or less? [J.M.]: Maybe less. ⁵⁴⁴ [THE STATE]: ... The second time he put his hand down your pants, where was his other hand? [J.M.]: On ... my stomach. [THE STATE]: And the second time, do you remember how long his hand was down your pants? [J.M.]: About the same ... five seconds. [THE STATE]: Five seconds. And that time did his hand move or stay the same? [J.MJ: Move. [THE STATE]: And did his finger stay on the outside or did it go inside? [J.M.]: Inside. [THE STATE]: Okay.

And after five seconds what happened? [J.M.]: My mom, she called me again. [THE STATE]: And after she called you again, tell me what happened then. [J.M.]: I went upstairs. During cross-examination of J.M., defense counsel questioned her extensively about whether she told anyone about whether appellant “put his finger inside” her. J.M. testified that she told her mother, the police, and a social worker, Ms. Daryl Leach. 3 Ms. M. testified that, in July 2010, J.M. told her what appellant had done in March, stating that appellant “put his hands in my pants.” Ms. M. and her husband called the police and filed a police report. In response to defense counsel’s questioning, Ms. M. stated that she did not tell the police that J.M. said that appellant put his finger inside of her.

Amy Krone, a member of the Montgomery County Police Department, conducted the initial investigation. Officer ⁵⁴⁵ Krone spoke with J.M., who told her that appellant asked her to sit on his lap and then “placed his hand inside of her underwear and rubbed her vaginal area with one hand and took his other hand and placed it on her stomach and rubbed her stomach area.” J.M. became frightened and tried to get off appellant’s lap. Appellant held her tighter, but he then released her after Ms. M. called for J.M. On cross-examination, defense counsel established that Officer Krone’s report stated that J.M. “did not state that [appellant] penetrated her, only touched her private area.” After her initial investigation, Officer Krone contacted detectives from the Family Crimes Division. Detective Levi Renno, a member of the Montgomery County Police Department Family Crimes Division, Child Abuse Unit, conducted the investigation.

He contacted a social worker, Daryl Leach, to interview J.M. He observed the interview, which was recorded. On July 23, 2010, Detective Renno, along with Detective Chad Williams, arrested appellant and transported him to the Family Crimes Division. Appellant was able to speak English. After advising appellant of his Miranda rights, Detective Renno asked appellant what languages he spoke.

Appellant responded that he spoke Tamil, Sinhalese, and English. 4 Appellant signed an Advice of Rights form and agreed to speak with the police. Detective Renno began the interrogation by stating what J.M. had told them. Appellant initially acknowledged that he touched J.M.’s vagina, but he stated that it was accidental. After further questioning, appellant acknowledged that his touching of J.M. was intentional, and that he had touched J.M. under her underwear.

He considered his conduct a lapse in ⁵⁴⁶ judgment, but he stated that his hand never went inside of her vagina. He apologized. The detectives gave appellant the opportunity to write an apology letter to J.M., which he did. In the letter, appellant wrote: “I am so sorry for all this.

Because we all make mistakes in life time. You are like my own grand children. I am so sorry if I hurt you. May Allah bless you.

Tell mommy & daddy I am sorry. It’s a big mistake.” Prior to their questioning of appellant, the detectives went to the audiovisual room to start the recording equipment. The recording equipment is activated by pushing a button and turning on the television monitor. Detective Williams could not remember who started the recording equipment, but Detective Renno testified that he was under the impression that his questioning of appellant was being recorded.

After the end of the questioning, Detective Renno went to the audiovisual room and discovered that there was video, but no sound. 5 The prosecutor then moved to admit a DVD recording of the interview between J.M. and the social worker, Ms. Leach. Defense counsel objected, arguing that the tape constituted hearsay, had no probative value because it was irrelevant, and was prejudicial. The prosecutor argued that the DVD did not ⁵⁴⁷ contain inadmissible hearsay because the social worker made no statements during the interview and J.M.’s statements were admissible pursuant to Rule 5-802.1, the hearsay exception for prior consistent statements. He argued that the tape was relevant because the defense strategy was to undermine J.M. The court reserved ruling until it had the opportunity to view the DVD of the interview.

The next day, prior to the court viewing the DVD, defense counsel re-asserted his initial objections. He also argued that the testimony was cumulative, and if admitted, would allow the jury to view statements, which counsel characterized as largely replicating J.M.’s trial testimony, “over and over again.” Defense counsel also argued, without elaboration, that the statement should not come in as a response to a charge of fabrication because the interview occurred after the motive to fabricate arose. The court then viewed the videotaped interview, in which J.M. stated, consistent with her trial testimony, that appellant told her to sit on his lap, and he then put his hand in her pants, under her underwear. 6 With respect to appellant’s hand, the interview proceeded as follows: Ms. Leach: Okay. Do you have any way to know if his hands were on the outside of your body but touching your skin, inside your body but touching your skin, or something else?

Do you ... understand what I’m asking? [J.M.]: No. Ms. Leach: Okay. Let’s see how I’m going to ask this so it makes sense. Okay. When [appellant] was rubbing here, on the no-name part, you’ve described to me that it was on the outside, it was touching your skin but on the outside of your body.

At any point, could you ... tell if ⁵⁴⁸ his, any part of his hand went inside your body when the rubbing was happening? [J.M.]: No. Ms. Leach: No, okay. Are you sure? [J.M.]: Yeah. Ms. Leach: Okay. All right.

On the rubbing part, the no-name part ... could you tell if his fingers were doing—this is a really weird question, okay—could you tell if his fingers were like doing the same thing or were some of his fingers doing different things when the rubbing— [J.M.]: They were doing the same thing. Ms. Leach: Same thing, okay. How about up here on your tummy? [J.M.]: The same thing. Ms. Leach: Okay.

All right. (Emphasis added). After the tape ended, the court stated that “[t]his testimony is inconsistent with what she testified to at trial in material respects.” The prosecutor responded that the court should admit the DVD as a prior consistent statement because “the totality of the statement is consistent with what [J.M.] testified to in court.” Alternatively, the prosecutor argued that the statement was justified as rehabilitation, in response to her impeachment. The court ruled as follows: I believe that the, the tape is admissible for two separate reasons.

First, I do believe it fulfills the requirements of 5-802.1 as that rule has been explicated by the Court of Appeals in Holmes v. State, 350 Md. 412 [ 712 A.2d 554 (1998) ], and by the Court of Special Appeals in Hyman v. the State, 158 Md.App. [618, 857 A.2d 1166 (2004)], a decision by Judge Kenney. The statements—the witness was, in my judgment, cross-examined, and it was clearly suggested to the jury that she’s making up stories and has not been truthful in her recounting of the stories, either in front of the jury or on prior ⁵⁴⁹ occasions, and that, as a consequence, the evidence is admissible to rebut an implied or express charge of fabrication or motive. Here, frankly, it’s not implied, it’s express, and the declarant testified at trial and the declarant was subject to cross-examination about her statements. I also find under 5-104 that the statements predated any motive to lie or any improper influence and certainly predated this trial, which is when the charge of fabrication was made.

As an independent alternative ground, which was the basis for the affirmance in Holmes , the statements are also admissible as a consistent statement to diminish the child’s impeachment at trial under 5-616(c)(2). The witness was clearly impeached during her cross-examination, and as a consequence, the statements are usable by the State under that rule. Now, here’s the rub. If they are admissible as substantive evidence, they’re just in.

If they’re admissible only for impeachment, upon request, I would give a limiting instruction. What I’m inclined to do in this case is, when I instruct the jury, tell them they’re usable only for the purposes of rehabilitation and not for the truth of the matter.[ 7 ] The court then addressed the relevancy of the evidence and balanced that against the potential prejudice in admitting the DVD into evidence: I do find that the evidence is relevant. I disagree with the contention that was made yesterday that the statements do not have probative value. I find that they are relevant to the case.

I also find under 5-403 that the, the probative value of the evidence, in the context of this case and how the evidence has come in, outweighs the danger of unfair prejudice, ⁵⁵⁰ confusion of the issues, or misleading the jury. And I believe, in addition, that my, when I instruct the jury that it’s—this is the shorthand version and not the longhand version—that it’s only to be used by them under 5—616(e)(2), that, in addition, minimizes the prejudice, because I’ll make it clear that the statements are not usable by them for the truth of the matter asserted. So, although I’m not required, necessarily, to state on the record that I’ve done the balancing[,] the Court of Appeals has indicated in lots of cases, including Streater v. State, that they would prefer so they don’t have to indulge in the Chaney v. State presumption, which sort of is the fallback of “when, there’s nothing else to do, we’re going to assume the trial judge was not a complete idiot,” which is not always a good assumption, so there it is. It may be right, it may be wrong, but there it is.

The State then played the DVD for the jury. The DVD was approximately eight minutes. The State then rested its case. Defense counsel made a motion for judgment of acquittal, asserting a “lack of sufficiency of the evidence based on the contradictory statements of the victim in the case.” The court denied the motion, and the defense rested.

In its instructions to the jury, the court, consistent with its evidentiary ruling, instructed the jury that the DVD evidence was admissible only regarding the victim’s credibility. It instructed: This morning I allowed you to watch a videotape, a DVD of statements made by the child earlier in the matter. This testimony was permitted only to help you decide whether or not to believe the testimony that the child gave at trial. It is for you to decide whether or not to believe the trial testimony of the child in whole or in part, but you may not use her earlier statement—that is to say, what you saw on the TV monitor—for any purpose other than to assist you in making that decision. ⁵⁵¹ During closing argument, defense counsel told the jury that J.M.’s allegations were not credible.

Specifically, he stated: Usually, if someone is not telling the truth, fibbing, fabricating lying, whatever you want to call it, there’s usually a reason. [Appellant] doesn’t know the reason. I don’t know the reason. Maybe there is no reason. Maybe it’s just something children do____She walked in here, she was awfully cute, and you know, when a 9-year-old girl walks in, tells you something, you really want to believe her because she’s cute.

You don’t know nothing about her, but she says something and that something was a little shady, and you want to believe her. And, apparently, some people did believe her, and now the prosecutor wants you to believe her. But why can’t we believe her? And I’ll tell you why.

Counsel then stated that J.M. “downright fabricated, fibbed, and told a falsehood” when she testified that she told her mother, the police, and the social worker that appellant put his finger inside her. During deliberations, the jury submitted a note to the court, asking: “Does 3rd degree require penitration [sic].” After discussing the note with counsel, the circuit court answered: “No.” 8 Shortly thereafter, the jury returned with a guilty verdict. On March 28, 2011, appellant filed a timely notice of appeal. DISCUSSION I. Admissibility of Prior Inconsistent Statements Appellant’s first contention involves the admission of a DVD containing J.M.’s prior statements to the social worker.

Ap ⁵⁵² pellant asserts several grounds of error. Initially, he contends that the recording contained inadmissible hearsay statements by J.M. He further contends that the DVD contained hearsay statements by the social worker, asserting that her “mode of questioning” included statements that repeated and reinforced J.M.’s previous answers and “implicitly asserted that [J.M.] was telling the truth.” Finally, appellant contends that the decision to admit the recorded interview constituted reversible error “[b]ecause its risk of prejudicial effect substantially outweighed its relevance.” The State contends that the trial court properly admitted a portion of the recorded interview. It asserts that J.M.’s recorded statements were properly admitted as an exception to the hearsay rule pursuant to Maryland Rules 5-616(c)(2) and 5-802.1. It argues that the social worker’s questioning was not hearsay and “did not constitute an implied assertion or a statement of belief in [J.M.’s] credibility.” Finally, the State contends that the circuit court “properly exercised its discretion in balancing probative value and prejudice” and properly admitted the taped statement with a limiting instruction.

A ruling on the admissibility of evidence ordinarily is within the trial court’s discretion. Blair v. State, 130 Md.App. 571, 592 , 747 A.2d 702 (2000). This Court generally reviews such rulings for an abuse of discretion. State v. Simms, 420 Md. 705, 724-25 , 25 A.3d 144 (2011). “An abuse of discretion occurs ‘where no reasonable person would take the view adopted by the [trial] court,’ or when the court acts ‘without reference to any guiding rules or principles.’ ” Brass Metal Prods. v. E-J Enters., 189 Md.App. 310, 364 , 984 A.2d 361 (2009) (quoting King v. State, 407 Md. 682, 697 , 967 A.2d 790 (2009)).

Although the decision whether to admit a prior consistent statement falls within the discretion of the trial court, there are certain limits to when such evidence is admissible. The Court of Appeals has made clear that, “[a]s a general rule, prior out-of-court statements by a witness that are consistent with the witness’s trial testimony are not admissible ⁵⁵³ to bolster the credibility of a witness.” Holmes, 350 Md. at 416-17 , 712 A.2d 554 . Accord Thomas v. State, 202 Md.App. 386, 395 , 32 A.3d 503 (2011) (general rule that prior consistent statements are not admissible merely as corroborative evidence). There are exceptions to this general rule, which are set forth in Md. Rule 5-802.1 and Md. Rule 5-616(c)(2), but there are specific requirements that must be met to fall within the ambit of these rules. 9 We turn to address these requirements.

A. Maryland Rule 5-802.1 Maryland Rule 5-802.1 provides, in part, as follows: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (b) A statement that is consistent with the declarant’s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive[.] In Holmes, 350 Md. at 417 , 712 A.2d 554 , the Court of Appeals addressed whether this Rule retained the common law “premotive” rule, i.e., that if a witness is attacked by a charge of fabrication or improper influence or motive, the prior consistent statement is relevant only if it was made before the source of the fabrication or improper influence or motive originated. 10 The Court of Appeals held that the Rule ⁵⁵⁴ did contain a “premotive” requirement, and a prior inconsistent statement is admissible pursuant to Rule 5-802.1(b) only if it was made prior to the alleged fabrication or improper motive. Id. at 424 , 712 A.2d 554 . Here, the trial court found that J.M.’s prior statements to the social worker were admissible pursuant to Rule 5-802.1 because defense counsel suggested to the jury that J.M. was making up stories, and therefore, the evidence was “admissible to rebut an implied or express charge of fabrication.” Defense counsel’s argument, however, was that, for reasons unknown, J.M. made up the entire incident, from the beginning when she told her mother. J.M.’s subsequent statements to the social worker, therefore, were not made prior to the time the alleged, but