Jackson v. State

Powers, J., delivered the opinion of the Court. The critical evidence against Okino Alan Jackson, the appellant in this case, came before the jury “second hand”. Therein lies the basis of this appeal. At a jury trial in the Criminal Court of Baltimore, presided over by Judge Harry A. Cole, Jackson was convicted of carnal knowledge of a woman child under the age of fourteen years.

The sentence was 21 years. Foregoing the usually less effective shotgun attack upon everything in the record, from arrest to commitment, appellant takes sharp aim at one target. He argues that admission in evidence of res gestae statements made by a witness not competent to testify denied his right to cross examination under the confrontation clause of the Sixth Amendment. The Hearsay Evidence Admitted The facts relevant to the issue before us are not complicated.

The events upon which the charge was based took place on 21 April 1974. Corretta Venable, then 4 years and 3 months old, lived with her family in the 1000 block of ³³⁴ North Broadway, in Baltimore. Her mother, Lorraine Venable, testified that Corretta had been playing at the house of another child in the same block. At about 2:00 P.M. Mrs. Venable, looking out an upstairs window, saw Corretta coming home.

She said she knew from the expression on the child’s face that something was wrong with her. She called to Corretta to come upstairs. The transcript shows: “Q [By Mr. Stein, Assistant State’s Attorney]: Tell the ladies and gentlemen of the jury what happened when she came into the house. A I asked what was wrong.

She said, ‘Kino - -’ MR. LEVINE [Defense counsel]: Objection. THE COURT: Overruled. BY MR.

STEIN: Q Go ahead, Ms. Venable. A She said, ‘Kino done it to me.’ I said, ‘Done what to you?’ She was crying. She said, ‘He took my pants off, my panties.’ MR. LEVINE: Objection.

THE COURT: Overruled. MR. LEVINE: To this continuous testimony, Your Honor. THE COURT: It’s overruled.

BY MR. STEIN: Q Go ahead, Ms. Venable. A ‘And my shoes. He put his wee-wee in me,’ and she pointed down to her vagina.

I then laid her on my bed, and pulled her panties down, and I looked in her vagina, and it was just like she was on her menstrual period. MR. LEVINE: Objection as to what it was like. THE COURT: Don’t characterize.

Tell us what you saw. BY MR. STEIN: Q What did you see when you looked at her vagina? ³³⁵ A I seen blood down there. Q Ms. Venable, prior to this difficulty, or before this day, had you ever seen blood down there before?

A No, I haven’t. Q What was then your reaction when you saw the blood on her vagina? A I started screaming and hollering. I called my oldest daughter.

Q What is the name of your oldest daughter? A Paretta Venable.” Mrs. Venable identified the appellant in court as the person known in the neighborhood as Kino, an uncle of Corretta’s playmate. In the cross examination of Mrs. Venable the transcript reads: “Q [By Mr. Levine]: Now, how many questions did you ask her before she gave her response? A The only question I asked her was what was wrong, and she told me.

Q What were her exact words? A She kept on saying, ‘Kino done it to me. Kino done it to me. Kino done it to me,’ and she was just crying and crying.” “Q Well, could you please recall what you stated earlier about how she appeared when she first entered the house?

A She had an expression on her face. I knew something was wrong with her. Q What was the expression on her face. A Like she was getting ready to cry.

After she got into the house, she just started to crying and crying. She said he put a knife to her leg.” ³³⁶ Paretta Venable, Corretta’s 19 year old sister, testified, in somewhat less detail, and also over objection, to substantially the same account of what Corretta said when s.he came home. After Mrs. Venable and her older daughter Paretta had testified, Judge Cole held a hearing in chambers to determine whether Corretta Venable was competent to testify as a witness at the trial. Corretta and her mother were present, as well as the accused and both counsel.

The proceedings were recorded and transcribed. The judge ruled that the child, who by then had just reached her fifth birthday, was not competent to testify. That determination was within the court’s discretion, and is not questioned. There was other incriminatory evidence, but our decision turns on the admissibility of the testimony we have set out above.

If admitting that testimony over objection was error, the error surely was not harmless, Dorsey v. State, 276 Md. 638 , 350 A. 2d 665 (1976), and appellant’s conviction would be reversed. If the rulings of the court were correct the conviction would stand. The statements that the mother testified were made to her by the child were indeed genuine hearsay. The witness related what another person had said at another time and place.

The evidence was offered, not merely to prove the fact that such utterances were made, but to .prove, as substantive evidence, the truth of the facts stated in the utterances. The Dual Aspect of the Question One aspect of our inquiry is whether, under the circumstances shown, the statements, although hearsay, were admissible under an exception to the rule which ordinarily excludes hearsay evidence. The other aspect of our inquiry is whether the admission of the statements, even if they pass muster under the rules of evidence as an exception to the hearsay rule, denied the accused his constitutional guarantee of the right to confront and cross examine witnesses against him. The Statements Were Excited Utterances One of the exceptions to the hearsay rule permits the ³³⁷ admission in evidence of hearsay sometimes described as excited utterances, or spontaneous exclamations, or the less precise term, res gestae.

In 6 Wigmore, Evidence, § 1747, (3d ed. 1940), the author discusses the exception in terms of the principles on which it is based. One is, the author says, “* * * the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.” Other principles, those of necessity to resort to the hearsay statement, and the circumstantial probability of its trustworthiness, are explained in greater detail in §§ 1748 and 1749. Those principles have been applied numerous times as the law of Maryland.

In Estep v. State, 14 Md. App. 53 , 286 A. 2d 187 , cert. den., 265 Md. 737 (1972), Judge Gilbert, speaking for this Court, cited a long list of cases in the Court of Appeals and in this Court dealing with the admissibility in evidence of excited or spontaneous utterances under an exception to the hearsay rule. Estep and many, but not all, of the cited cases involved a report or complaint by the victim of a sexual assault. Several of the cases, such as Green v. State, 161 Md. 75 , 155 ³³⁸ A. 164 (1931), support the admissibility of a hearsay report as proper to corroborate the victim’s evidence when the defense is consent, or that the charge is false. A much less explicit complaint, made by a four year old child to her mother some four or five hours after the occurrence, was held by us in Smith v. State, 6 Md. App. 581, 586-87 , 252 A. 2d 277 (1969), to be admissible through the mother as original evidence, although the victim herself was not a competent witness.

Even more analogous, if possible, to the legal principle involved, were the facts in a child abuse case, Moore v. State, 26 Md. App. 556 , 338 A. 2d 344 (1975). A 3 1/2 year old boy was taken to the hospital, with extensive injuries. The surgeon testified that he asked the child why his tummy was hurting him. The witness quoted the response, “Daddy was mad, Daddy did it.” In his opinion for the Court Judge Moylan said, at 560: “In response to the question as to ‘why his tummy was hurting him,’ the child declared, ‘Daddy was mad, Daddy did it.’ This, of course, is classic hearsay.

The witness on the stand, Dr. Chilimindris, was recounting an out-of-court declaration by the three and one-half year old declarant which was being offered for the truth of the thing asserted — to wit, to prove that ‘Daddy did it.’ The declarant was not on the stand and, indeed, may have been