Lawson v. State

KRAUSER, J. Appellant, Joseph Lawson, was charged with assaulting and raping his seven-year-old cousin, Nigha P., on at least two separate occasions: 1 while he was staying with Nigha’s family ⁶⁰⁸ in October or November of 2001 (“November 2001 incident”), and while he was babysitting Nigha’s older brother at Nigha’s home in June of 2002 (“June 2002 incident”). Neither incident, however, was reported by Nigha until July 2002, when she informed her mother of both. Appellant was subsequently arrested and charged with, among other crimes, two counts of second-degree rape, two counts of attempted second-degree rape, and two counts of second-degree assault. 2 At his trial before a jury in the Circuit Court for Prince George’s County, the state presented three witnesses: Nigha, then eight years old, her mother, and a county social worker, who had interviewed Nigha shortly after this matter came to light. Both Nigha’s mother and the social worker testified only as to what Nigha purportedly told them.

While Nigha’s testimony was largely consistent with the social worker’s testimony as to the November 2001 incident, it contradicted her mother’s and the social worker’s testimony as to the June 2002 incident, in several important respects. No physical evidence was introduced, although Nigha received a full medical examination following her revelations, nor was any other corroborative evidence presented. The state concluded its case by, among other things, hinting that appellant was a “monster,” and implying that the child of appellant’s cousin might also be in danger. But no objection was made nor was any mistrial sought on those grounds.

After the jury convicted appellant of all pending charges, the circuit court sentenced him to a term of fourteen years ⁶⁰⁹ imprisonment for each of the two rapes; the two sentences were to run concurrently with each other. Requesting that we now reverse his convictions, appellant claims that the testimony of the social worker should not have been admitted under Maryland Criminal Procedure § 11-304, that the testimony of Nigha’s mother should not have been admitted under Maryland Rule 5-802.1, that Nigha’s testimony standing alone was not legally sufficient to support any of appellant’s convictions, and that the state’s closing remarks to the jury were so inflammatory as to warrant a reversal of his convictions by this Court. BACKGROUND Twenty-seven-year-old Joseph Lawson was accused of raping and assaulting Nigha P., sometime between October 1, 2001 and November 30, 2001, and then in June 2002. When these two incidents occurred, Nigha was living at 1205 Kayak Avenue in Prince George’s County, with her mother, Tanya Renee Thomas; her brother, Kristopher, who, at the time of trial was eleven years old; her grandparents; and appellant, who is her cousin.

Although appellant moved out of that address sometime after the first assault, he continued to “visit or watch” Nigha and her brother. Nigha did not inform her mother of the abuse until sometime in July 2002. On July 15, 2002, Nigha’s mother notified the police that appellant had sexually assaulted her daughter. Two days later, on July 17, 2003, Nigha underwent a physical examination at the Prince George’s Hospital Center. 3 And the day after that, on July 18, 2002, Nigha was interviewed by Jennifer Cann, a social worker employed by the Prince George’s County Department of Social Services, Child Advocacy Center.

At trial, Nigha testified that, when the first incident occurred, she was sharing a bedroom with her older brother, nine-year-old Kristopher. The children slept in bunk beds: ⁶¹⁰ Kristopher slept on the top bunk and Nigha on the bottom bunk. On the night of the November 2001 incident, Nigha was lying awake in her bed, watching television while her brother slept. Appellant, she testified, entered her bedroom.

Exposing his “private part” to her, he asked if she knew what it was. When she said “no,” he got into bed with her and, while she was lying down, tried to “stick his private part” into hers, penetrating her “a little bit.” After she observed “white stuff’ come out of his private part, which she described as a “big long stick,” “he went to the bathroom, he got a rag and he told [her] to wipe it up.” After she did, he “told [her] not to tell no one.” The next incident occurred, approximately eight months later, in June 2002. Nigha testified that, one day in June 2002, she returned home from school to find appellant alone in the house with her brother, Kristopher. After telling Nigha that he wanted to speak with her about an “incident” that occurred that day, appellant instructed her brother to “look out for” their grandmother, as he and Nigha walked into her mother’s bedroom.

Once inside the bedroom, appellant, according to Nigha, unsuccessfully attempted to pull down her pants and then told her that she could have some of his soft drink, if she would let him touch her with his private part. She testified that she told him to “stop” and then left the room. She did not, she admitted, see his private part that day. Later, at trial, she recalled talking to a social worker about the incident, but she could not remember telling the social worker that she did see his private part or that “he put a plastic thing on it.” Nigha’s mother testified next.

Over defense counsel’s objection, Nigha’s mother stated that, in July 2002, Nigha told her that, when Nigha and appellant were in the living room in June, 2002, he “took his private part,” which had a “plastic thing” on it, and “put it in her private part,” while the two of them were on a living room couch. The third and last witness to testify was Jennifer Cann, a social worker employed by the County Department of Social Services. Her job, she testified, entailed “investigating] alie ⁶¹¹ gations of child sexual abuse,” and “[t]o come to a determination or disposition as to whether or not the abuse occurred.” On July 18, 2002, she interviewed Nigha at one of the Prince George’s County Department of Social Services buildings. Over defense counsel’s objection, Cann testified that, after establishing a rapport with Nigha, she asked a series of non-leading questions to get “information to come from Nigha naturally.” Cann then testified as to what Nigha told her concerning the November 2001 and June 2002 incidents.

A detailed account of her testimony will be given when we take up the issue of the admissibility of Nigha’s statement to her later in this opinion. Suffice it to say that her testimony was consistent with Nigha’s as to the November 2001 incident and was consistent with the testimony of Nigha’s mother as to the June 2002 incident. The testimony of both women, however, was inconsistent with Nigha’s as to what occurred in June of 2002, as Nigha testified that she did not have sexual intercourse with appellant at that time. The state then rested, and appellant took the stand.

He denied that he ever raped Nigha or touched Nigha in an inappropriate manner. When the trial ended, the jury found appellant guilty of both incidents, the November 2001 and the June 2002 incident, convicting him of two counts of second-degree rape, two counts of attempted second-degree rape, and two counts of second-degree assault. I. Appellant contends that the circuit court “erred when it permitted a county-employed social worker!,] who was a stranger to the complaining witness!,] and who interviewed the complaining witness during a police investigation!,] to testify under Criminal Procedure § 11-304 as to the complaining witness’s description of the alleged sexual assaults.” The social worker, Jennifer Cann, testified as to what Nigha told her concerning the incidents of November 2001 and June ⁶¹² 2002. 4 Cann stated that Nigha told her that, one night in October or November of 2001, she was lying in bed watching television, when appellant exposed himself to her and asked her if she “knew what it was,” apparently referring to his penis. When Nigha said she did not know what it was, “appellant started putting his private part in [her] private part.” Nigha told Cann that she saw “white stuff come out of the front of his private part[,]” whereupon appellant “went in the bathroom and got a rag.” After “wip[ing] off the side of the bed”, appellant, Nigha informed Cann, “wiped her private part off’ and said to her, “Don’t tell nobody.” Cann further testified that Nigha confided to her that, one afternoon in June of 2002, she arrived home from school to find appellant and her brother in the living room eating Popeye’s chicken.

Appellant “told her he needed to discuss something with her in the bedroom, her mother’s bedroom, and she went in there with him.” When appellant “told her that he wouldn’t give her any chicken unless she let him touch her,” Nigha “said ‘no’ and left the room.” Later, according to Cann, when both Nigha and appellant were in the living room, appellant “then told her brother to go across the street and get some chips.” After he left, appellant “placed her in a chair,” knelt in front of her, and “put a plastic thing on his private part right before he put his private part in her private part.” Cann testified that Nigha “described him pushing it in there, referring to his private parts, and that he ... had his private part in her private part until her brother came back to the house and knocked on the door.” That testimony, appellant claims, ran afoul of Md.Code (1957, 2001 RepLVol.), § ll-304(c) of the Criminal Procedure Article (“C.P.”), which provides: ⁶¹³ Recipients and offerors of statement — An out of court statement may be admissible under this section only if the statement was made to and is offered by a person acting lawfully in the course of the person’s profession when the statement was made who is: (1) a physician; (2) a psychologist; (3) a nurse; (4) a social worker; or (5) a principal, vice principal, teacher, or school counselor at a public or private preschool, elementary school, or secondary school. While conceding Cann was a qualified social worker under Maryland law at the time she interviewed Nigha, 5 appellant contends that, at the time of that interview, Cann was not “acting lawfully in the course of ... [her] profession” under C.P. § ll-304(c). Rather, appellant maintains, Cann was, at that time, acting as an “agent of the state who was brought into this case for the purpose of evidence collection rather than for the purpose of treatment,” and therefore, her testimony was not admissible under that statutory exception to the hearsay rule. Appellant’s claim requires that we first determine whether, when Cann was interviewing Nigha, she was “acting lawfully in the course of [her] profession,” a locution that has not heretofore been the subject of appellate scrutiny.

We begin by noting that Cann, in interviewing Nigha, was performing duties mandated by state law. Section 5, subtitle 7 of Maryland’s Family Law Article, entitled “Child Abuse and Neglect,” requires the Department of Social Services, among others, to promptly investigate “a report of suspected physical or sexual abuse.” Specifically, it states, in part: ⁶¹⁴ (b) Time for initiation; actions to be taken. — Within 24 hours after receiving a report of suspected physical or sexual abuse[,] ... the local department [of Social Services] or the appropriate law enforcement agency shall: (1) see the child; (2) attempt to have an on-site interview with the child’s care taker; (3) decide on the safety of the child, wherever the child is, and of other children in the household; and (4) decide on the safety of other children in the care or custody of the alleged abuser. (c) Scope. — The investigation shall include: (1) a determination of the nature, extent, and cause of the abuse or neglect, if any; Md.Code (1984, 1999 RepLVol.), § 5-706 of the Family Law Article (“F.L.”). Consistent with that statute, Cann’s duties, as a social worker at the Prince George’s County Department of Social Services, required her to “investigate allegations of child sexual abuse” and “come to a determination or disposition as to whether or not the abuse occurred.” She interviewed Nigha for that purpose, explaining “[t]he agency had received allegations that Nigha had been sexually abused.” In short, she performed her duties, as required by Maryland law, specifically F.L. § 5-706(b).

Moreover, the General Assembly enacted C.P. § ll-304(c) permitting social workers to testify as to out of court statements made to them while they were “acting lawfully in the course of [their] profession,” after enacting F.L. § 5-706, imposing upon the local departments of social services the professional duty to investigate reports of sexual abuse and to interview the victims of such abuse. Presuming, as we must, that the General Assembly knew that it had defined the professional duties of departmental social workers to include interviewing the victims of sexual abuse, when it enacted legislation permitting the same social workers to testify as to ⁶¹⁵ statements made to them in the course of their professional duties by victims of such abuse, see Cicoria v. State, 332 Md. 21, 43 , 629 A.2d 742 (1993), we conclude that performing such interviews falls within scope of the lawful professional actions of a departmental social worker. We therefore hold that, when Cann interviewed Nigha about being sexually abused by appellant, she was “acting lawfully in the course of [her] profession.” Although Cann’s interview of Nigha, as appellant correctly points out, aided the state in the collection of evidence against appellant and thereafter in his prosecution, it was, to be sure, principally intended to protect Nigha from further sexual abuse. 6 That it may have ultimately served more than one purpose does not render it inadmissible as long as it otherwise qualifies as a hearsay exception, which it does. See Webster v. State, 151 Md.App. 527 , 827 A.2d 910 (2003).

Appellant counters, however, that Nigha’s statements to Cann were untrustworthy, as she was nothing more than a stranger to Nigha at the time of the interview. “Only statements obtained by someone in a trusting relationship with the child would satisfy hearsay concerns regarding reliability and trustworthiness,” he maintains. Appellant then draws the following analogy: The “distinction between familiar social workers with whom the child has a relationship and unfamiliar social workers who are employed by the state to investigate allegations of criminal activity can be analogized,” he reasons, “to the distinction between treating and examining physicians in the context of the hearsay exception for statements made to a treating physician.” “Just as an examining physician who is hired for purposes of litigation does not instill the requisite trust in a patient to ensure that the patient gives truthful information, the social worker who is a stranger, sent by the state after an allegation of sexual abuse is made, similarly ⁶¹⁶ does not instill the requisite trust in the child to ensure that the child gives a complete and truthful account of the alleged abuse,” he concludes. But the prior relationship between the child victim and the social worker, though relevant, is not the only factor the court must consider in determining the admissibility of the child’s statement to the social worker. Indeed, C.P. § ll-304(e) 7 provides that, to determine whether “[a] child victim’s out of court statement is admissible ... the court shall consider, but is not limited to,” thirteen factors.

At an in camera pre-trial hearing, the court did just that. When the hearing concluded, the court found: 1) that Nigha possessed detailed personal knowledge of the events; 2) that she testified “very forthrightly” and did not appear to be “holding anything back”; 3) that ⁶¹⁷ the court was certain that the statements were made; 4) that Nigha did not possess a motive to fabricate her testimony; 5) that the social worker did not impermissibly lead or coerce Nigha’s testimony; 6) that Nigha described the incidents using language that is appropriate for her age; 7) that the timing of the statement did not impair its reliability; 8) that her detailed knowledge of the events enhanced her credibility; 9) that Nigha was not suffering from “any major distress when making the statement”; and 10) that the social worker appeared to be a credible witness and “capable historian.” Given that appellant does not contest any of these findings, we hold that the circuit court did not err in admitting Cann’s statements, regardless of the fact that Cann and Nigha had never met before the interview took place.

II

Appellant contends that the circuit court erred in permitting Nigha’s mother to testify at trial as to what Nigha said to her concerning the June 2002 incident under the “prompt complaint of sexually assaultive behavior” hearsay exception of Rule 5-802.1(d). Appellant claims that Nigha’s statements to her mother “do not qualify for admission as prompt complaints of sexually assaultive behavior, because the statements were not consistent with [Nigha’s] trial testimony....” And, “even if the statements did fall within the scope of the hearsay exception, they were not,” appellant insists, “ ‘prompt’ within the contemplation of the rule[,] and therefore[,] should not have been admitted.” Rule 5-802.1(d) provides: 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: (d) A statement that is one of prompt complaint of sexually assaultive behavior to which the declarant was subjected ⁶¹⁸ if the statement is consistent with the declarant’s testimony. Rule 5-802.1(d) was adopted by the Court of Appeals in 1994. Given our recent discussion of the origins of this rule and the policy underlying it in Gaerian v. State, 159 Md.App. 527 , 860 A.2d 396 , 2004 WL 2403157 (2004), we need not concern ourselves with that here, except to reiterate that Rule 5-802.1(d) embodies a principle that “has been the settled law of Maryland for over one hundred years that ‘a victim’s timely complaint of a sexual attack is admissible as part of the State’s case-in-chief.’ ” Nelson v. State, 137 Md.App. 402, 409 , 768 A.2d 738 (2001) (quoting Cole v. State, 83 Md.App. 279, 287 , 574 A.2d 326 (1990)). “It is not merely rebuttal evidence,” we have observed, “because 1) it may be offered in the State’s case-in-chief, 2) it is not hedged in by limiting instructions, and 3) its admissibility is not contingent upon the defendant’s doing something first.” Cole, 83 Md.App. at 289 , 574 A.2d 326 . “On the other hand,” we have cautioned, “it is not fully autonomous substantive evidence, because it is subject to limitations such as 1) the requirement that the victim actually testify; 2) the timeliness of the complaint; and 3) the extent to which the references may be restricted to the fact that the complaint was made, the circumstances under which it was made, and the identification of the culprit, rather than recounting the substance of the complaint in full detail.” Id.

Appellant contends that, because the testimony of Nigha’s mother was, in his words, “wholly inconsistent” with Nigha’s, the circuit court erred in admitting it under Rule 5-802.1. He cites as authority for that position Corbett v. State, 130 Md. App. 408 , 746 A.2d 954 (2000). In that case, the defendant was charged with attempting to rape his girlfriend’s twelve-year-old daughter. Id. at 411 , 746 A.2d 954 .

When the adolescent complainant could not remember what had happened, except for some “events peripheral to the allegations against” the defendant, she was permitted to read to the jury a portion of a handwritten statement she gave police shortly after the incident inculpating the defendant. Id. at 412 , 746 A.2d 954 . The entire statement was later admitted into ⁶¹⁹ evidence over defense counsel’s objection. Id. at 414-15 , 746 A.2d 954 .

Declaring the admission of that statement to be error, this Court noted that “to qualify under this rule, the [out-of-court] statement must be consistent with the witness’s testimony at trial.” Id. at 428 , 746 A.2d 954 . “Although [the complainant’s] trial testimony about some peripheral facts was consistent with her recitation of those facts in her written statement, none of those facts,” we pointed out, “concerned sexually assaultive behavior on appellant’s part,” and therefore we concluded that “Rule 5-802.1 (d) was not applicable.” Id. Nigha’s testimony concerning the June 2002 incident not only fell far short of making out a case of second-degree rape, but in fact exculpated appellant of that charge. See Md.Code (1957, 2002 Repl.Vol.), § 3-304 of the Criminal Law Article (stating that second degree rape requires “vaginal intercourse”). At trial, Nigha stated that when she returned home from school appellant was there babysitting her older brother.

When she and appellant went into her mother’s bedroom to talk, he tried unsuccessfully to pull down her pants. She told him to stop and left the room. Nothing happened after that, she testified, and she did not see his “private part” that day. That testimony conflicted with her mother’s version of what occurred on that occasion.

Nigha’s mother claimed that Nigha had told her that she and appellant were on the living room couch when appellant “took his private part,” which had “a plastic thing” on it, and “put it in her private part.” Because the testimony of Nigha and of her mother was not only completely at odds, but differed as to whether in fact the crime of rape had ever occurred on that date, we hold that the trial court erred in admitting the testimony of Nigha’s mother under Rule 5-802.1(d). But that error, the state contends, was harmless error. There was, the state assures us, “other highly persuasive evidence” of appellant’s guilt. “The jury’s verdict,” the state avows, “would ... have been the same, with or without Thomas’s testimony.” ⁶²⁰ For an error to be harmless, “[u]pon an independent review of the record, we must be able to declare, beyond a reasonable doubt, that the error in no way influenced the verdict----” Collins v. State, 373 Md. 130, 148 , 816 A.2d 919 (2003). That we cannot do here.

Contrary to the state’s claim, there was no “other highly persuasive evidence of Lawson’s guilt.” No medical evidence or other corroborative evidence was presented that appellant raped Nigha in June 2002, except, that is, for the testimony of the social worker, whose sole source of information was the same as Nigha’s mother: Nigha’s post-incident statement which was repudiated by Nigha at trial. When the state’s case relies exclusively, as it does here as to the June 2002 incident, on the credibility of a single witness, the bolstering of that witness’s credibility with testimony of another witness, which should not have been admitted into evidence, cannot be harmless. See McCray v. State, 122 Md.App. 598, 610-11 , 716 A.2d 302 (1998). We shall therefore reverse all of appellant’s convictions that relate to the June 2002 incident.

In doing so, we.note that appellant’s convictions for the earlier incident of November 2001 rested on far firmer evidentiary grounds, and therefore, we are persuaded beyond a reasonable doubt that the admission of the testimony of Nigha’s mother as to the June 2002 incident did not unfairly prejudice appellant as to the November 2001 incident.

III

Appellant contends that “the statements of the alleged child victim, standing alone without any independent corroboration, were legally insufficient to convict [him] of two counts of second-degree rape and two counts of attempted second-degree rape[,]” particularly when, as to one of the alleged rapes, the child denied that a rape had ever occurred. The requirement of corroboration in sex crime cases does not have roots that extend much beyond the twentieth century. Conceived shortly before that century began, it attracted ⁶²¹ little legislative or judicial support, and then, before that century ended, almost completely disappeared. It was, to be sure, never a part of our common law tradition. “At common law,” as Wigmore notes, “the testimony of the prosecutrix or injured person, in the trial of all offenses against the chastity of women, was alone sufficient evidence to support a conviction; neither a second witness nor corroborating circumstances were necessary.” 7 Wigmore on Evidence § 2061 (3d ed.1940).

That changed, in small measure, when, in 1886, “the New York legislature became the first to enact a corroboration requirement for the prosecution of rape, a provision purportedly designed to protect the defendant from an ‘untruthful, dishonest, or vicious complaint.’ ” Michelle J. Anderson, The Legacy of the Prompt Com,plaint Requirement, Corroboration Requirement, a,nd Cautionary Instructions on Campus Sexual Assault, 84 B.U.L.Rev. 945, 956-57 (2004) (footnotes omitted). By the early 1970s, seven jurisdictions, Georgia, Idaho, Iowa, New York, the Virgin Islands, the District of Columbia, and Nebraska, had legislatively or judicially adopted a corroboration requirement. Id. at 957. The three principal justifications for the corroboration requirement were summarized by the Supreme Court of Idaho, in the very case in which it finally discarded that requirement.

According to that court, they were: “(1) the ease of fabrication and the fear of frequent false charges due to the emotion connected with the act of intercourse; (2) the