Morton v. State

MATRICCIANI, J. Appellant, Rodney Patrick Morton, was convicted by a jury sitting in the Circuit Court for Worcester County of a third degree sex offense and second degree assault involving his nine-year-old daughter, I.M. The circuit court sentenced appellant to two years imprisonment, with all but six months suspended. Appellant timely noted the present appeal, and raises the following two issues for our review: I. Did the trial court violate Md. Rule 4-326, by failing to timely notify defense counsel of a note sent by the alternate juror? ⁵³⁴ II. Did the trial court err in allowing Belle Goslee, a SAFE (sexual assault forensic examination) nurse, to testify as an expert witness? We conclude that appellant did not preserve his complaint regarding the juror’s note and that the trial court did not err or abuse its discretion in admitting expert testimony by Ms. Goslee.

FACTS AND LEGAL PROCEEDINGS At trial, the State presented the testimony of I.M., Tamara Thompson, and Belle Goslee to prove that appellant digitally penetrated his daughter’s vagina. Their testimony set forth the following: Appellant, who was a friend of Thompson’s husband, had been living in the Thompson house for four or five weeks, along with appellant’s two children. I.M. testified that on the evening of May 22, 2009, after she fell asleep on his bed, her father carried her to her own bed in another room. As he was doing so, he put his hand inside the leg of her shorts and digitally penetrated her vagina.

I.M. stated that she kept her eyes closed throughout the encounter because she was afraid and unsure of what to do. She also stated that her father had sharp fingernails, and that the penetration hurt a great deal. Once alone in her room, I.M. was scared and began to cry. Joe Thompson — Tamara Thompson’s brother, who was also a guest in the house — found her crying and brought her to her father.

I.M. told her father that her “private hurt.” They called LM.’s mother, but I.M. did not tell her about the incident that night because appellant was present. The next morning, appellant asked Thompson to buy some cranberry juice while she and I.M. went grocery shopping because I.M. was still in pain, and he thought I.M. had a bladder or kidney infection. While out with I.M., Thompson asked the girl about her pain. Based on LM.’s response, Thompson called LM.’s mother.

After talking to I.M., her mother immediately came to pick her up. ⁵³⁵ The following day, May 24, 2009, Belle Goslee, a SAFE nurse, examined I.M. in the Emergency Room at Atlantic General Hospital. I.M. was sullen and quiet and did not talk to Goslee throughout the examination. Goslee found what appeared to be a piece of lint on the border of I.M.’s exterior and inner labia. When she removed the material with a q-tip, she discovered a .5 centimeter tear that was red, had clean borders, and was slightly open, indicating that it was probably fresh.

Based on this, Goslee opined that the tear was “consistent with the fact that there may have been digital [penetration] in that area.” According to Goslee, such a tear would be immediately painful and was not a common injury for a nine-year old child. Because I.M. would not allow the nurse to continue the examination beyond that area, complaining that it was too painful, Goslee was unable to evaluate whether there were indications of vaginal penetration. Appellant testified on his own behalf, confirming that he carried his daughter, of whom he had custody, to her bed after she fell asleep. Although he pulled the leg of her shorts down when it rode up, he denied contacting her genital area at any time.

When I.M. returned to his room about forty-five minutes later, she was crying, and she told him that her genitals hurt. Appellant called I.M.’s mother to discuss the problem, and they agreed to give her cranberry juice for a possible yeast or bladder infection, as they had successfully done with prior infections. Based on this evidence, the jury found appellant guilty of a third degree sex offense and second degree assault. Additional facts will be provided as necessary.

DISCUSSION I. Communication from Alternate Juror Appellant first contends that the trial court erred by failing to give timely notice to defense counsel of a note sent by the alternate juror, in violation of the mandate in Maryland Rule 4-326. Rule 4-326(d) provides, in pertinent part, that “[t]he court shall notify the defendant and the State’s Attorney of ⁵³⁶ the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication.” It appears that a note from the alternate juror was delivered to the bailiff sometime after Ms. Thompson, who had been sequestered, entered the courtroom to testify as the second of the prosecution’s three witnesses in its case-in-chief. The note explained that the alternate juror knew the individual who had come into the courtroom with Ms. Thompson because they worked together. The trial judge took no action at that time.

After completing her testimony, Thompson left the courtroom. Ms. Goslee testified immediately thereafter, and the State then rested its case-in-chief. Just before appellant took the stand as the sole witness in his defense, there was a ten-minute recess. Before sending the jury out of the courtroom, the trial court gave the following instruction: Ladies and gentlemen of the jury, as you heard that’s the completion of the State’s case.

What we are going to do now is take about a ten-minute recess. As you go back for this recess, the case obviously is not ready for your consideration. So, as you go back, during the recess, please don’t discuss among yourselves anything about the case at this point. You are not able to do that until I send you out at the completion of the case and instruct you to do so.

When the jury returned, appellant testified. Without another recess, the State presented a rebuttal witness, the court instructed the jury, and closing arguments were presented. The alternate juror was thereafter excused, and deliberations began at 12:05 p.m. The trial judge then gave the following explanation to counsel: All right.

Folks, I just wanted to let you know that at some point during the trial, that the alternate juror passed a note to the Bailiff that, in fact, he knew whoever the person was that came in with Ms. Thompson. She was accompanied by a male and he passed a note to the Bailiff that he assumefd] it was her husband and that he worked with her husband. ⁵³⁷ Seeing as this was going to be a quick trial and his services probably weren’t going to be needed I let it go at that because, obviously, this isn’t going to affect his decision, as he is gone. But I just wanted you to be aware of that fact. Appellant contends that the trial court’s failure to notify the parties immediately upon receiving the note constitutes a violation of the mandate in Rule 4 — 326(d).

In his view, “[t]he proper course of action ... was to call the parties to the bench as soon as [the court] received the note,” and he argues that “the simple fact that the alternate juror was ultimately excused does not affirmatively show that [appellant] was not prejudiced[.]” In particular, he argues: Had Mr. Morton’s counsel been promptly notified of the note, she might have: 1) asked the trial court to find out who the man was; 2) asked the trial court to question the alternate juror regarding the nature of his relationship with this man; 3) asked the trial court to ask the alternate juror whether or not he had spoken to the man about the facts of this case; 4) asked the alternate juror whether he had spoken to the other jurors about any such facts; and 5) cautioned the alternate juror against discussing any such facts with other jurors. The State counters that the court did not violate the Rule because it did not respond to the communication, that appellant received timely notice of the note, that appellant was not prejudiced by any delay in disclosing the note because the juror did not participate in deliberations, and that defense counsel’s failure to object at trial to the court’s handling of the note precludes appellant’s challenge. We agree that the issue was not preserved for our review, and that, even if preserved, the circuit court’s actions did not constitute reversible error. We explain.

A. Preservation Maryland Rule 8-131(a) governs the scope of appellate review and provides, in part, that “[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears ⁵³⁸ by the record to have been raised in or decided by the trial court.” When the trial judge informed the attorneys about the excused juror’s note, defense counsel did not object or otherwise comment on the judge’s decision not to communicate with the remaining jurors regarding the note. Thus, this issue has not been preserved for appeal. Even if preserved, however, appellant’s argument is to no avail. B. Prejudice It is true that the constitutional guarantee to a criminal defendant to be present at every stage of his trial includes the right to be present whenever the court communicates with the jury in any way.

See Perez v. State, 420 Md. 57 , 21 A.3d 1048 (2011), and Bunch v. State, 281 Md. 680, 683-84 , 381 A.2d 1142 (1978). It is also true, however, that such a communication will not be grounds for reversal if the record “affirmatively shows that such communications were not prejudicial or had no tendency to influence the verdict of the jury.” Midgett v. State, 216 Md. 26, 36-37 , 139 A.2d 209 (1958). For the reasons explained below, the record in this case affirmatively shows that the communication sent by the alternate juror and the court’s subsequent dismissal of the alternate juror were not prejudicial to appellant and had no tendency to influence the verdict of the jury. In Smith v. State, 66 Md.App. 603, 624 , 505 A.2d 564 , cert. denied, 306 Md. 371 , 509 A.2d 134 (1986), we stated that “[w]hile [Rule 4-326(d) ] expressly requires notice to the parties of any communication from the jury, its very spirit is to provide an opportunity for input in designing an appropriate response to each question in order to assure fairness and avoid error.” See also Stewart v. State, 334 Md. 213, 223 , 638 A.2d 754 (1994).

The most vital protection afforded by the rule, therefore, is the ability of the defendant to have input in fashioning a proper response to the jury, particularly in situations where the jury has questions about the law to be applied in reaching its verdict. In the present case, it is undisputed that the court did not respond to the note, thereby precluding any complaint that the court violated Rule 4-326(d) ⁵³⁹ by communicating with the jury without giving defense counsel an opportunity for input. As explained above, when the trial judge then informed the attorneys about the excused juror’s note, defense counsel did not object or otherwise comment on the judge’s decision not to communicate with the remaining jurors regarding the note. As a result, the judge did not make any of the inquiries that appellant now argues should have been pursued in order to rule out the possibility that the alternate juror had discussed his acquaintance with other jurors in a manner that might prejudice appellant.

The only opportunity for conversation among jurors was the ten-minute recess after the State’s case in chief, immediately prior to which the jury was admonished not to discuss “anything about the case.” In addition, the juror’s communication in this case was merely a statement that he worked with the man who had accompanied Ms. Thompson into the courtroom, not a revelation about a personal relationship with the witness herself, or a question about law or facts relating to the case. 1 C.f. Taylor v. State, 352 Md. 338, 345 , 722 A.2d 65 (1998) (holding that the trial court erred when it answered questions it received from the jury on specific points of law relating to the various crimes with which the defendant was charged, before notifying the defendant of their receipt). Perhaps most importantly, the alternate juror was dismissed prior to jury deliberations, and therefore, any connection he may have had with Ms. Thompson could not have affected the jury’s verdict. We therefore hold that the circuit court’s actions with regard to the alternate juror’s communication do not constitute reversible error.

II

Expert Testimony by SAFE Nurse Appellant next contends that the trial court erred in permitting Belle Goslee, the SAFE nurse who examined I.M., to ⁵⁴⁰ testify as an expert witness. Appellant first objected to Ms. Goslee’s testimony in a motion in limine prior to trial, arguing that the State had failed to identify her timely as an expert witness, as required by Md. Rule 4-263(d). The trial court denied the motion, and permitted Ms. Goslee to take the stand. After conducting voir dire of Ms. Goslee prior to her qualification as an expert, appellant again objected to her testimony, arguing that she was not qualified to render an expert opinion regarding the significance of her findings in a pediatric patient, citing Md. Rule 5-702.

We shall separately address — and reject — both arguments. A. Discovery Sanction Under Maryland Rule 4-263(n), a trial court may exclude expert testimony as a sanction for failure to comply with mandatory discovery obligations. Appellant contends that “[t]he trial court should have excluded Ms. Goslee’s expert testimony as a sanction for the State’s discovery violation[ ]” because, “although the State had identified Ms. Goslee as a lay witness and had provided the defense with a copy of her report at some earlier date, the State failed to inform the defense that it intended to call Ms. Goslee as an expert witness until one week before trial.” See Md. Rule 4-262(d)(2)(D) (requiring prosecution to timely disclose name of testifying expert and substance of findings and opinions). The State responds that appellant waived this complaint by failing to renew his pre-trial objection at the time Goslee’s testimony was offered at trial.

Alternatively, the State argues that the court did not abuse its discretion in denying appellant’s motion to exclude the expert testimony as a discovery sanction. Under Maryland Rule 4-323(a), “[a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.” This requirement means that “when a motion in limine to exclude evidence is denied, the issue of the admissibility of the evi ⁵⁴¹ dence that was the subject of the motion is not preserved for appellate review unless a contemporaneous objection is made at the time