Myer v. State

RAKER, J. In this criminal case involving sexual abuse to a minor, we must decide if the trial court abused its discretion when it did not allow the defendant to recall the child-witness for additional cross-examination after the court admitted into evidence a videotaped interview between a social worker and the child-witness after the child-witness had testified. We shall hold that the trial court abused its discretion in denying petitioner the opportunity to cross-examine the child-witness after the video-tape had been admitted into evidence. I. Robert Lee Myer, petitioner, was indicted in the Circuit Court for Baltimore County for sexual abuse of a minor and various other sexual offenses. He waived his right to a jury ⁴⁶⁷ and proceeded to trial before the court.

He was convicted of the offenses of sexual abuse of a minor, third degree sexual offense, fourth degree sexual offense and second degree assault. Petitioner’s convictions stem from events that occurred on or about November 19 and 20th, 2004. H.C., then three years old, was staying with petitioner and his wife, Ethel Myer, at their house overnight on November 19th. When H.C.’s mother, Kelly C., picked her up the next morning, H.C. told her that Petitioner had been “bad” and indicated that he had touched her vagina.

Kelly C., along with her husband David C., took H.C. to the police station in Cockeysville. Two days later, a licensed social worker at the Child Advocacy Center, Nelwyn Henry, interviewed H.C. The interview was videotaped. Petitioner was indicted by the Grand Jury for Baltimore County, and proceeded to trial in the Circuit Court. Petitioner filed an “omnibus motion,” raising, inter alia, the competency of the child.

At the hearing on the motion, he argued that H.C., a child of four years and nine months of age, was not a competent witness. He raised concerns as to her ability to recollect, her ability to differentiate between the truth and a lie, and impermissible coaching. As to the admissibility of a videotape made during the social worker’s interview of the young child, counsel explained as follows: “We also believe that as part of the competency proceeding, it is important for the Court to weigh what the child says today as opposed to what she was saying a year ago in that tape and how she was saying it. And, so, we’ve asked the Court to review the tape for that limited ground, but we reserve the right to object to it if the State tries to bring [it] in as substantive evidence.” The Court found H.C. competent to testify.

From the outset, petitioner objected strenuously to the admissibility of the videotape. Before the trial commenced, petitioner told the court that he objected to the tape. He stated as follows: ⁴⁶⁸ “Your Honor, there is the argument regarding the tape. But [I’d] like to reserve on that.

I want to see what the State’s going to do. For all I know, they may or may not admit it, so I—we’ll just wait. I’d be pleased to wait for that to get things going.” Petitioner moved in limine to exclude the testimony of the social worker as well as the videotape of the social worker’s interview of H.C. His objection was twofold: that it was unreliable, and that it violated his constitutional right of confrontation. He maintained that the interview and the tape were hearsay, that the evidence was testimonial in nature, and it was therefore inadmissible based upon Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), and Lawson v. State, 389 Md. 570 , 886 A.2d 876 (2005).

The State’s position was that the social worker would be called only to lay the evidentiary foundation for the tape’s admission, that the tape was not testimonial evidence and therefore it was admissible evidence. The trial court reserved ruling as to the admissibility. H.C. testified as the State’s first witness. She testified that she was on the bed with Myer while her Aunt Ethel was taking a shower.

She testified that Myer touched his fingers to his lips and then to her vaginal area, on the inside of her underwear. After the State concluded its direct examination, defense counsel declined to cross-examine H.C. The court heard testimony from several other witnesses, including H.C.’s parents, Ethel Myer, expert witnesses interpreting forensic evidence recovered from H.C.’s underwear, and Ms. Henry, the social worker. Defense counsel maintained that the social worker should not be permitted to testify at all, and objected. Ms. Henry testified about the interview she conducted with H.C., explaining to the court the protocol she uses when she conducts a “forensic interview” with a child to determine whether abuse has occurred.

On cross-examination, defense counsel elicited the facts as to how the police became involved in the case and their involvement in the interview with H.C. The interview room contained a camera to videotape the interview and the police ⁴⁶⁹ could watch the interview from an adjoining room. There was a phone in the room and Ms. Henry structured the interview so there would be an opportunity at the end of the interview for a police observer to call with any questions he would like to ask the victim. The State waited until the end of its case-in-chief to formally offer the video-tape into evidence. Defense counsel objected again to the tape’s admissibility on constitutional grounds and lack of reliability and particularized guarantees of trustworthiness.

The following colloquy occurred: “[DEFENSE COUNSEL]: ... Also, if the Court decides it wanted to admit the tape for those substantive reasons, I would like to reserve the right to at least—I’m going to consider cross-examining [H.C.] on portion of the tape, if it comes in. “THE COURT: Well, it would have been better, even if it were beyond the scope of the State’s direct, to question the child about whatever matters needed to be addressed while she was here. “[DEFENSE COUNSEL]: Well, you know, Your Honor, I made a tactical decision, along with my client, based on what [H.C.] had to say and what I felt was best for this case for him not to cross-examine based on her testimony. “THE COURT: Hmm. “[DEFENSE COUNSEL]: Now, introducing some other testimony, or at least you’re being requested to put in some other testimony of [H.C.], and, and I think I have the right to cross-examine her on that. However, it may very well be that the State and I can stipulate to what are really, I think, only two to three points in that tape that I would ask [H.C.] about. I, I am not and I do not want to inconvenience that child or have her get on the stand again, if I can help it....” The court reserved ruling on the matter.

The next day, petitioner called Michael Spodak, M.D. 1 as an expert in the field of forensic psychiatry to testify that, in his ⁴⁷⁰ opinion, because the methods used in conducting the interview were suggestive, the interview was unreliable. Defense counsel again objected to the admissibility of the tape, based on lack of genuineness and trustworthiness, and Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 . Without conceding the tape’s admissibility, counsel reiterated to the court that if the tape was received into evidence, counsel wanted to cross-examine the child. Counsel argued to the court as follows: “By the way, I think from my argument yesterday, I think the Court already understands that I disagree with the State when they said in their argument, I’ve already had my chance to cross-examine [H.C.].

I certainly had my chance to cross-examine [H.C.] based on her testimony. I’ve never had a chance to cross-examine [H.C.] with the information that’s on this tape that has not been in evidence and is only now decided by the court, whether or not to admit.” The State argued that the tape possessed particularized guarantee of trustworthiness and that it was admissible pursuant to § 11-304 of the Criminal Procedure Article, Md.Code (2001, 2006 Cum.Supp.). 2 The court ruled that the videotape had particularized guarantees of trustworthiness pursuant to § ll-304(e) and was admissible, concluding as follows: ⁴⁷¹ “I’ve considered all of the factors under Criminal Procedure Section 11-304; I’ve considered the testimony, also, of Dr. Spodak and the arguments of respective Counsel, and I’m satisfied that the statement given by [H.C.] to Miss Henry does have the particularized guarantees of trustworthiness. It was given to Miss Henry as she was acting in the course of her profession as a licensed clinical social worker, interviewing the child and, therefore, I do find that the tape should be admitted into evidence.” Following a stipulation by the parties as to the testimony of an unavailable police officer, the State rested. Petitioner renewed his request to recall H.C. for cross-examination.

The following discussion took place: “[DEFENSE COUNSEL]: Your Honor, there’s still the question about, with respect to the tape, the cross-examination of [H.C.].” “THE COURT: [H.C.] was here, and there was an opportunity to cross-examine her on competency and then as to the merits of the case. That would have been the time to question her regarding the tape. I don’t know what questions you would have asked her with respect to the tape. The interview took place back in November of 2004. “[DEFENSE COUNSEL]: Well, Your Honor, I can certainly make a proffer to you.

But I, I’ve already made the argument yesterday. I’ll make—excuse me—Friday, I’ll make it again.” “At the time the client pros- to cross-examine [H.C.] was based on the testimony that she had given. The tape was not into evidence at that time. Tape is in evidence now.

And I believe the confrontation clause argument gives me the right to cross-examine her on the contents of the tape which, in some cases, is different than what she testified to on the stand. It’s not identical. And I’ve already made the Court aware of some of the areas, you know, with respect to Aunt Ethel being in the bed which is, I would suggest to the Court, a huge difference in, with respect to what she’s testified to. And it goes to her credibility.

Not whether ⁴⁷² she’s lying or not, but whether she has memory of the incident and how she’s reporting it. “And, so, there, there are things that are said on the tape that aren’t said during testimony before you, and those are the things that I would ask her about. And, so, I ask for permission to do that. “THE COURT: Well, you have trial strategy, and it may be a decision to ask the witness about a prior inconsistent statement, or it may be a decision to simply point out the differences between testimony here at trial and statement given at the time that she spoke with Miss Henry back in November of 2004. But there was certainly an opportunity to conduct cross-examination.” The State opposed recalling H.C. for further cross-examination, arguing that the State had given the defense notice of intent to use the statement pursuant to § ll-304(d)(3). 3 Defense counsel pointed out that “things that are said in that tape, once again, that aren’t said in [H.C.’s] direct.' If there weren’t those differences, I think that the State would have a good point.” The court did not permit H.C. to be recalled for cross-examination, stating: “I don’t see the reason for that in light of the opportunity for cross-examination that’s already been given.” The court found petitioner guilty and sentenced him to a term of incarceration. Petitioner noted a timely appeal to the Court of Special Appeals.

Before that court, petitioner argued that the trial court violated his Sixth Amendment right of confrontation, based on Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 . He further argued that his rights to cross-examination and due process were violated when he was not allowed to recall H.C. for cross-examination after the tape was admitted. The Court of Special Appeals agreed with Myers that the recorded statement was “testimonial” in nature as ⁴⁷³ that term has been used by the Supreme Court in Crawford v. Washington but found that the Confrontation Clause of the Sixth Amendment was not offended. In an unreported opinion, the Court of Special Appeals held that even though the statements made on the videotape were testimonial in nature, the Confrontation Clause was not offended because Myer had the opportunity to cross-examine H.C. before the tape was admitted.

The intermediate appellate court reasoned as follows: “In the case at bar, because the State complied with its obligation to disclose the existence of the victim’s recorded statement, it is of no consequence that appellants’s trial counsel made a strategic decision to forego cross-examination of the victim. Because the victim actually testified during the State’s case-in-chief, she was ‘subject to cross-examination concerning the [recorded] statement.’ The Confrontation Clause, which provides criminal defendants with the opportunity to cross-examine prosecution witnesses, does not require that a witness be ‘recalled’ as an essential condition precedent to the introduction of that witness’s otherwise admissible prior statement.” We granted certiorari to answer the following question: 4 “Did the trial court violate Petitioner’s Sixth Amendment rights under Crawford v. Washington and his fundamental ⁴⁷⁴ right to cross-examine witnesses against him when it allowed the State to introduce taped testimonial hearsay at the close of its case and refused to permit defense counsel to cross-examine the declarant-victim on the additional testimony?” Myer v. State, 399 Md. 33 , 922 A.2d 573 (2007).

II

Before this Court, petitioner argues that the statements on the tape are testimonial hearsay under Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 , and its progeny. Petitioner argues that the interview and tapes are testimonial evidence because during the interview, a police officer was watching through a two-way mirror and the officer asked a question, by telephone, at the end of the interview. Petitioner asserts that he was never given a prior opportunity to cross-examine H.C. about the videotape because the tape was not yet in evidence when the State called H.C. as a witness and he was not allowed to recall H.C. after the tape was admitted into evidence. Finally, petitioner argues that the trial court committed prejudicial error under Maryland evidence law when it denied petitioner the opportunity to recall H.C. for cross-examination.

The State argues that petitioner declined to cross-examine H.C. when given the opportunity, and that Crawford was not • offended because H.C. was available for cross-examination before the tape was admitted. The State characterizes the refusal of the trial court to recall H.C. for further cross-examination as a permissible exercise of the court’s discretion.

III

We turn to petitioner’s contention that the trial court committed prejudicial error when it denied his request to ⁴⁷⁵ recall the witness for cross-examination. This Court generally follows the principle that we will not reach a constitutional issue when a case can properly be disposed of on a non-constitutional ground. See Smith v. State, 399 Md. 565 , 570 n. 4, 924 A.2d 1175 , 1178 n. 4 (2007); Dept. of Corrections v. Henderson, 351 Md. 438, 451 , 718 A.2d 1150, 1156 (1998); Professional Nurses v. Dimensions, 346 Md. 132, 138 , 695 A.2d 158, 161 (1997); State v. Lancaster, 332 Md. 385 , 404 n. 13, 631 A.2d 453 , 463 n. 13 (1993). A court’s interest in properly disposing of a case on non-constitutional grounds is so strong as to constitute one of the few exceptions to the general rule that an issue must be raised in the petition for certiorari, cross-petition or Order of the Court.

See McCarter v. State, 363 Md. 705, 713 , 770 A.2d 195, 199 (2001); Professional Nurses v. Dimensions, 346 Md. at 138-139 , 695 A.2d at 161 (1997) (stating “[t]he appellate policy of avoiding unnecessary decision of constitutional issues gives rise to one of ‘a very limited number of circumstances [that] have been treated as extraordinary’ and thus within the exceptions to the requirement that an issue be raised in a certiorari petition, cross-petition, or order by the Court.’ ”) (internal citations omitted); State v. Raithel, 285 Md. 478, 484 , 404 A.2d 264, 267 (1979). In the instant case, the issue presented can be decided on Maryland evidentiary, non-constitutional grounds. We hold that the trial court’s denial of Myer’s request to recall the witness after the tape was admitted to be a violation of Maryland evidence law separate and apart from any rights Myer may have under the Sixth Amendment to the United States Constitution. See Michigan v. Long, 463 U.S. 1032, 1040 , 103 S.Ct. 3469, 3476 , 77 L.Ed.2d 1201 (1983).

Because we find that the Circuit Court abused its discretion in restricting petitioner’s right of cross-examination, and the error was not harmless, we do not consider petitioner’s constitutional argument as to the admissibility of the tape. The trial court abused its discretion when it refused to recall the witness for purposes of cross-examination. The ⁴⁷⁶ trial court has discretion both in controlling the mode and order of interrogating witnesses and in controlling the scope of cross-examination. The trial court also abused its discretion because its refusal to recall the child-witness, under the unusual facts of this case, impermissibly limited petitioner’s right of cross-examination.

Trial courts are granted broad discretion under Md. Rule 5—611(a) to control the mode and order of the interrogation of witnesses and the parties’ presentation of evidence. Subject to constitutional considerations, the same is true as to the scope and timing of cross-examination. The Rule provides, in pertinent part, as follows: “(a) Control by court. The Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. “(b) Scope of cross-examination.

(1) Except as provided in subsection (b)(2), cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. Except for the cross-examination of an accused who testifies on a preliminary matter, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination ____” We review an exercise of this authority for abuse of discretion. See Ware v. State, 360 Md. 650, 684 , 759 A.2d 764, 782 (2000) (noting that “trial judges have broad discretion in determining the order of presentation of evidence.”). An abuse of discretion can occur when the trial judge’s action “impair[s] the ability of the defendant to answer and otherwise receive a fair trial.” State v. Hepple, 279 Md. 265, 270 , 368 A.2d 445, 449 (1977).

Cross-examination is a right guaranteed by the common law. See, e.g., Crawford v. Washington, 541 U.S. at 68 , 124 S.Ct. at 1374 (holding that where testimonial evidence is at ⁴⁷⁷ issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination); U.S. v. Gomez-Lemos, 939 F.2d 326, 333 (6th Cir.1991) (describing “the ancient faith of the common law, incorporated by the founders in the Bill of Rights, that live confrontation and cross-examination of witnesses in the courtroom is the key to finding the truth in a criminal trial”); State v. Bumper, 275 N.C. 670 , 170 S.E.2d 457, 460 (1969). The United States Supreme Court has recognized cross-examination as “the ‘greatest legal engine ever invented for the discovery of truth.’ ” California v. Green, 399 U.S. 149, 158 , 90 S.Ct. 1930, 1935 , 26 L.Ed.2d 489 (1970) (quoting 5 John Henry Wigmore, Evidence in Trials at Common Law, § 1367 (3d ed.1940)). Cross-examination has many purposes.

The questioner may intend to impeach a witness with a prior inconsistent statement, to show bias or interest of a witness, or to even bring out helpful information not included in the direct testimony. We have described the role of cross-examination as follows: “The real object of cross-examination is ‘to elicit all the facts of any observation or transaction which has not been fully explained.’ That a witness may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge or the like, is a fundamental concept in our system of jurisprudence. And cross-examination to impeach, diminish, or impair the credit of a witness is not confined to matters brought out on direct examination; it may include collateral matters not embraced in the direct examination to test credibility and veracity, it being proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character or credibility. Of course, the right to cross-examine effectively necessarily includes the right to place the testimony of a witness in its proper setting to fairly enable the jury to judge its credibility.” ⁴⁷⁸ State v. Cox, 298 Md. 173, 183-84 , 468 A.2d 319, 324 (1983) (internal citations omitted).

Cross-examination is permissible to elicit facts “tending to discredit the witness by showing his testimony in chief was untrue or biased.” Alford v. U.S., 282 U.S. 687, 692 , 51 S.Ct. 218, 219 , 75 L.Ed. 624 (1931). The partiality of a witness is “always relevant as discrediting the witness and affecting the weight of his testimony.” 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev.1970). A cross-examiner may also seek to draw out disparities in a witness’ testimony. Such pursuit may yield an instance where “the witness who has told one story aforetime and another today has opened the gates to all the vistas of truth which the common law practice of cross-examination and re-examination was invented to explore.” Edward W. Cleary, et al., McCormick on Evidence, § 251 at 603 (2d ed.1972).

If a witness is not so easily led to contradiction, the “[c]ommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Jenkins v. Anderson, 447 U.S. 231, 239 , 100 S.Ct. 2124, 2129 , 65 L.Ed.2d 86 (1980) (citing 3A J. Wigmore, Evidence § 1042, at 1056 (Chadbourn rev.1970)). In the instant case, the trial court improperly precluded petitioner’s counsel from the opportunity to pursue these traditional avenues of cross-examination with respect to the video-taped testimony, which the State introduced into evidence after H.C., the child-victim had testified. When the trial court denied petitioner the opportunity to recall H.C. for cross-examination, the court said as follows: ‘Well, you have trial strategy, and it may be a decision to ask the witness about a prior inconsistent statement, or it may be a decision to simply point out the differences between testimony here at trial and statement given at the time that she spoke with Miss Henry back in November of 2004. But there was certainly an opportunity to conduct cross-examination.” ⁴⁷⁹ In this case, the denial of the opportunity to cross-examine after the tape had been admitted “inhibited the ability of the defendant to receive a fair trial.” Martin v. State, 364 Md. 692, 698 , 775 A.2d 385, 388 (2001).

The general rule is that ex parte statements are excluded from evidence as hearsay unless otherwise permitted by rule or statute. Many states, including Maryland, have enacted statutes, sometimes known as the tender years exception, designed to protect the emotional and psychological health of young children alleged to be victims of sexual abuse and to provide for the admissibility of ex parte statements and video-tapes taken under particular circumstances. See, e.g., State v. Snowden, 385 Md. 64 , 867 A.2d 314 (2005); Commonwealth v. Kriner, 915