Muhammad v. State

DEBORAH S. EYLER, J. In this appeal we hold that the Circuit Court for Baltimore City erred by admitting into evidence, as a prompt complaint of sexual assault, a factually detailed prior consistent statement of a sexual assault victim; and that the error was not harmless beyond a reasonable doubt. Melvin Caldwell, a/k/a Kamal Muhammad, the appellant, was charged with numerous crimes arising out of the stabbing of L.M. in a vacant row house in Baltimore City. A jury convicted him of attempted second-degree murder, first-degree assault, second-degree assault, possession of a deadly weapon with intent to injure, and fourth-degree sex offense. 1 ²⁵⁸ He was sentenced to imprisonment for 30 years for attempted second-degree murder, three years for possession of a deadly weapon, and one year for fourth-degree sex offense, with all terms to run consecutively. The assault convictions merged for sentencing.

The appellant noted a timely appeal. FACTS AND PROCEEDINGS At trial, the State presented evidence showing the following. On July 21, 2012, at around 8:00 p.m., Detective Willie Craft of the Baltimore City Police Department (“BPD”) was patrolling in the “Lafayette corridor” in central Baltimore when he received a call to respond to 637 West Lafayette Street, a vacant end-unit row house at the corner of Lafayette Street and Argyle Avenue (“the row house”). It only took Detective Craft a little over a minute to get to the row house.

There he saw two women standing across the street. They motioned to him and reported that they had heard “screaming” coming from inside the row house. Detective Craft walked to the front of the row house and heard “a loud cry for help” and “moaning.” The voice sounded like a woman. The doors and windows of the row house were boarded up.

Detective Craft tried to pull the plywood off the front door, but was unable to gain entry. Within minutes, two more police officers arrived at the scene. Detective Craft directed them to stand by the front door while he went around to the back. He ran through an empty lot next to the row house.

As he approached the rear of the row house, he saw a “naked black male,” later identified as the appellant, walking in a crouched position just outside a wall that surrounded the backyard of the row house. He appeared to be carrying clothing. Detective Craft loudly identified himself as a police officer and yelled for the appellant to stop. The appellant took off running into a wooded area in the empty lot. ²⁵⁹ Detective Craft pursued the appellant on foot.

The appellant dropped the items he was carrying and continued to run. Detective Craft caught up with him, forced him to the ground, and placed him in handcuffs. Detective Craft noticed scratch marks on the appellant’s face. Detective Craft asked the appellant if anybody was inside the row house.

The appellant replied, “No, Officer, nobody’s in there.” Detective Craft then asked whether there was a “woman injured inside the dwelling.” The appellant said, “I don’t know. I don’t know. I don’t know.” By then, more police officers had arrived. They took custody of the appellant.

Detective Craft and another officer entered the row house through the back door. The plywood covering that door had been partially pried off, permitting ingress and egress. Inside, they found L.M. lying naked in a pool of blood next to a blood-soaked mattress. She had multiple stab wounds to the side of her neck and one stab wound to the back of her head.

On the mattress was a black-handled knife, covered with blood. L.M. was moaning softly and her eyes were “flickering].” She did not speak to the officers. She was transported to the University of Maryland Shock Trauma Unit (“Shock Trauma”). Detective Craft recovered the items the appellant had dropped as he fled.

They included men’s clothing; a woman’s pocketbook that contained an identification card for L.M., a syringe, and a bottlecap; and a wallet with numerous identification cards for the appellant. Early the next morning, Detective Robert Bell, who was assigned to the BPD’s Sex Crimes Unit, transported a sexual assault forensic examination (“SAFE”) nurse, Ben Lebovitz, to Shock Trauma. 2 Nurse Lebovitz performed a SAFE examination on L.M., who was intubated and sedated at the time. He observed bruising on her forehead, pooling of blood around ²⁶⁰ her right eye, swelling on her right cheek, and multiple abrasions around her tongue. Two of L.M.’s front teeth were missing, one on the top and one on the bottom, and another bottom tooth was loose.

There were numerous internal and external abrasions around L.M.’s vagina. Nurse Lebovitz took oral, vaginal, anal, and fingernail swabs and a blood sample from L.M. Detective Bell obtained a warrant to collect forensic evidence from the appellant. Around 10:00 a.m., he and Nurse Lebovitz met with the appellant at the police station. Nurse Lebovitz “took facial swabs from [the appellant’s] face, oral swabs from the inside of his mouth, blood from his fourth finger on his right hand[,] ... fingernail scrapings[,] head hair pullings, pubic hair cofmbings], and pubic hair pullings.” Detective Bell photographed the appellant’s face.

The samples all were submitted for DNA analysis. L.M. underwent surgery for her injuries. On July 25, 2012, four days after she was stabbed, her breathing tube was removed and she was brought out of sedation, which enabled her to speak. Detective Bell interviewed her at Shock Trauma that day.

We shall discuss that interview infra. L.M. testified that she was 52 years old and had been a heroin addict for over 20 years, including at the time of the events at issue. (She claimed to have stopped using heroin about five months before the trial.) On July 21, 2012, she spent the morning helping a friend set up his booth at Artscape. That afternoon, her sister called and invited her to a crab feast for her brother-in-law’s birthday.

Around 3:00 p.m., she walked to Argyle Avenue to purchase heroin to bring with her to the crab feast. She noticed the appellant walking behind her, “stalking” her. As she walked past a “gully,” he grabbed her from behind, placing a choke hold around her neck. He told her he was “BGF” and that she wasn’t “paying [her] dues in the neighborhood.” She began having difficulty breathing because the appellant’s forearm was pressed against her throat.

He told her she would be “kicking out some ²⁶¹ pussy,” which she understood to mean he was going to rape her. After that, L.M. “blacked out.” When she awoke she was lying on a mattress inside a vacant house with her pants off. The appellant was naked and was straddling her with his penis in her face. He told her to “[s]uck [his] dick.” He also told her she would not be “leaving anytime soon” and that she should “take the rest of [her] stuff off,” including her jewelry, so as not to scratch him.

After L.M. removed her clothing and jewelry as directed, the appellant put his penis in her mouth. Thinking the appellant was going to kill her, L.M. decided to bite his penis and try to escape. As the appellant put his hand on her forehead and began to push her away from him, she “bit as hard as [she] could.” In response, he punched her in the face repeatedly, knocking out some of her teeth. At that point, his penis fell out of her mouth and she jumped up and ran to a boarded up window.

She screamed, “Help me, help me.” The appellant grabbed her and said, “You’re going to die.” She was “fighting and grabbing his face and scratching him.” He pushed her to the ground and pressed his “thumbs in [her] neck,” causing her to lose consciousness again. The next thing L.M. remembered was waking up surrounded by “people in all white,” who told her she was at Shock Trauma. A DNA analyst testified that she tested 13 samples taken from the knife, a pair of boxer shorts found outside the row house, a white sock found inside the row house, L.M.’s body, and the appellant’s body against known samples taken from L.M. and the appellant. L.M. was the “major contributor” to DNA found on the knife blade, the knife handle, and the white sock.

The DNA of an “indeterminate minor contributor” also was found on the knife blade, one stain on the knife handle, and the white sock. The sample from L.M.’s fingernails revealed a “mixture” of DNA from L.M. and the appellant. The sample from the appellant’s fingernails revealed his DNA and DNA from a minor indeterminate contributor. L.M.’s ²⁶² DNA was not found in the swabs taken from the appellant’s penis or from his facial scratches.

Nurse Lebovitz testified generally about SAFE examinations and specifically about his SAFE examination of L.M. Over objection, he opined that “abrasions” to the “lower part of the vagina” such as those he observed during L.M.’s SAFE examination are common injuries caused by the insertion of a penis into the vagina during a sexual assault. 3 The appellant testified in his own defense, as follows. On July 21, 2012, he was living inside the row house because he was homeless. That morning, he ran into L.M. as he was walking in the neighborhood. They were friends.

The two spoke briefly. Later that afternoon, he again saw L.M. on the street. They went to the row house for an agreed “exchange” of “sex for drugs.” They walked together through a narrow alley that connects Argyle Avenue to the backyard of the row house and entered the row house through the back door. Once inside, the appellant told L.M. to wait while he went to the adjacent vacant row house to get drugs that he kept there.

He left and returned with “two ten-dollar pills of cocaine in a rock form[,] one capsule of heroin[,] and [a] ten-dollar bill.” He gave all of these items to L.M. She “proceeded to smoke the crack ... in a glass pipe.” She placed the heroin in a “soda bottle cap,” cooked it with a cigarette lighter, and then used a syringe from her pocketbook to inject it. A few minutes later, L.M. removed her clothes and lay down on the mattress. The appellant took off his clothes too and sat on the mattress next to her. He “really wasn’t in the mood,” however.

Moments later, an “unknown guy” burst into the room and attacked both of them. The man was holding a “shiny object” that the appellant at first thought was a gun. The appellant wrestled with the man. The man said, “kick it out or you’re going to die,” which the appellant ²⁶³ understood was a demand for drugs.

The appellant told the man he didn’t have any drugs. L.M. was screaming and repeatedly “running into this guy.” At one point, L.M. scratched the appellant’s face as she tried to fend off the assailant. The appellant heard “[L.M.] hit the floor.” He saw the assailant run out of the room, but did not know if he had left the row house. Because the appellant was “scared for [his] life,” he ran too.

He “grabbed” clothing off of the chair as he left, but couldn’t see what he was taking because it was so dark in the room. The appellant exited the row house through the back door and ran a short distance to the empty lot, where he fell down. He sat on the ground for a few minutes until he heard Detective Craft say, “Police. Get on the ground.” Detective Craft had his gun drawn.

The appellant got down on his stomach and the detective handcuffed him. According to the appellant, Detective Craft did not ask him any questions about who was inside the row house. On appeal from his convictions, the appellant poses seven questions for review. 4 567Because we find merit in Question 4, challenging the admission of a detailed out-of-court oral state ²⁶⁴ ment by L.M. as a prompt complaint of sexual assault, we shall reverse the judgments and remand the case for further proceedings. As the other issues are not likely to arise on remand, we shall not address them.

DISCUSSION On direct examination, the prosecutor asked Detective Bell to describe L.M.’s demeanor during the interview at Shock Trauma, when he asked her to tell him what had happened on July 21, 2012. The detective responded that L.M. was “calm” at first, but then became “emotional and began to cry.” The prosecutor requested a bench conference, which was granted. At the bench, the prosecutor said he planned to ask Detective Bell to recount “the statement that he took from [L.M.] at that time,” i.e., the oral statement L.M. made to him at Shock Trauma. The court asked “what exception to the hearsay rule will that fall [under].” The prosecutor argued that it was admissible either as an excited utterance or as a prompt complaint of sexual assault.

Defense counsel responded that the lapse of time between the traumatic event and the statement was too long for it to qualify as an excited utterance and that the prompt complaint of sexual assault exception to the rule against hearsay does not apply when the complaint is made in response to police questioning. The court ruled that the statement was not an excited utterance and that the prosecutor had not yet laid a proper foundation to satisfy the prompt complaint of sexual assault exception. It permitted the prosecutor to pose additional questions. In the resumed direct examination of Detective Bell, the prosecutor established that July 25, 2012, was the first day after the stabbing that L.M. could speak because she had been sedated before then.

The following exchange then occurred: [PROSECUTOR]: And can you tell the ladies and gentleman of the jury what [L.M.] related to you [in the interview at Shock Trauma]? ²⁶⁵ [DETECTIVE BELL]: Yes. She told me on the 21st of July around 6 p.m., she has been speaking to her sister on the phone. She was walking on the street near Argyle Avenue at West Lafayette near a grassy area which had some woods with some trees and a black male came out of the bushes, approached her— [DEFENSE COUNSEL]: Your Honor, we object to this. THE COURT: Overruled. [DETECTIVE BELL]: Told her he was BGF, a bush-wacker, put her in what she described as a sleeper hold.

She then stated she woke up in a vacant house and she was naked, and he told her to suck his dick, and if she did as he wanted he wouldn’t injure her. So she started performing oral sex on him and at some point bit his penis. He then screamed and started to beet [sic] her about the head and face. She further stated that she attempted to defend herself by scratching him in the face and she may have grabbed onto a lamp and she was pushed onto the ground and beaten further.

And then she recalls speaking to a paramedic and then after that she doesn’t remember anything else. Before this Court, the appellant contends the trial court erred by admitting into evidence, under the prompt complaint of sexual assault exception to the rule against hearsay, the details of L.M.’s oral statement to Detective Bell, beyond that she was sexually assaulted by the appellant on July 21, 2012, in the row house. The State responds that the trial court did not err and, if it did, any error was harmless. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801(c). “Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” Md. Rule 5-802. Whether evidence is hearsay is an issue of law that we review de novo, as is whether hearsay evidence properly was admitted under an ²⁶⁶ exception to the rule against hearsay.

Bernadyn v. State, 390 Md. 1, 7-8 , 887 A.2d 602 (2005). L.M.’s oral statement to Detective Bell was hearsay, as it was an out-of-court statement offered at trial to prove its truth. Therefore it was not admissible unless it met the requirements of one of the hearsay exceptions. Under Rule 5-802.1, certain hearsay statements by witnesses who testify at trial and are subject to cross-examination are admissible, substantively, as exceptions to the rule against hearsay.

One such exception, set forth at Rule 5-802.1(d), is “[a] statement that is one of prompt complaint of sexually assaultive behavior to which the declarant was subjected if the statement is consistent with the declarant’s testimony.” That rule is based on the long recognized Maryland common law hearsay exception for a victim’s timely complaint of a sexual assault. See Parker v. State, 67 Md. 329 , 10 A. 219 (1887). Originally, the purpose of the prompt complaint of sexual assault exception to the rule against hearsay was to allow the State to preemptively rebut the