Nash v. State

GARRITY, Judge. Elmer Donald Nash, the appellant, was charged in an indictment in the Circuit Court for Harford County with two ⁶⁸⁴ counts of child abuse and two counts of third degree sexual offense (a fifth count of fourth degree sexual offense was nol prossed prior to trial). Two counts, child abuse and third degree sexual offense, involved Paula P. and two, charging the same offenses, involved her older sister Michelle. 1 Trial on the charges involving Michelle was held before a jury in the Circuit Court for Harford County (Cameron, J. presiding). The appellant was found guilty on both counts of child abuse and third degree sexual offense.

He was sentenced to imprisonment for seven years for child abuse and two years, consecutive, for third degree sexual offense. We are asked to determine whether the lower court abused its discretion in: i) denying the appellant’s motion for recusal; ii) permitting the State to ask leading questions of Paula; iii) limiting defense counsel in his cross-examination of Joyce S.; and iv) admitting the testimony of Ms. Bloxham. We are further asked to determine whether the lower court erred at sentencing in allowing the appellant credit only for time served while awaiting trial on the severed charge. Facts Michelle, who was bom December 10, 1969, testified that she was ten years old when the appellant came to live with her mother, Betty; her younger sister, Paula; and her older stepsister, Joyce, at the Edgewater Village Apartments in Harford County.

The day after Christmas of 1982, they moved to a large old home on Wheel Road that was in a state of disrepair and were forced to live, sleep, and bathe in the dining room until the house was renovated in the early spring of 1983. In the summer of that year, Mi ⁶⁸⁵ chelle’s mother began work on the night shift at a shoe factory. While her mother was at work or still asleep in the morning, the appellant took care of Michelle and Paula and got them up and off to school. Michelle recalled that when the group lived at the Edge-water apartment, the appellant exposed himself on three or four occasions as they sat on the floor playing cards and that whenever her mother would come into the room, the appellant would throw a pillow between his legs.

Shortly after they moved into the Wheel Road home, Michelle stated that the appellant began fondling her breasts as well as her vaginal area. She further testified that the appellant had made demands on her to touch him as well. Although Michelle complained to her mother, upon the appellant’s denial she was punished by her mother. Indeed, Michelle recalled numerous times when her mother would hit her or send her to bed without supper because the appellant would tell her mother that chores were not done, or were done improperly, any time Michelle refused to let him fondle her, or refused to fondle him.

On October 26, 1984, Michelle related these facts to Ms. Annetta Bloxham, a protective service worker involved in the investigation of neglect and abuse referrals of the Harford County Department of Social Services. Michelle has lived with her father in Pennsylvania since the day she advised Ms. Bloxham of the appellant’s conduct. Paula, Michelle’s younger sister, and Joyce, Michelle’s older stepsister, also testified regarding various incidents they observed between the appellant and Michelle. Michelle’s father testified that he contacted the Harford County Social Services by telephone on October 26, 1984, after receiving a letter on that day from Joyce.

In addition to presenting character witnesses, the appellant categorically denied ever touching Michelle in any way or requesting that she fondle him. ⁶⁸⁶ I. Denial of Recusal The appellant does not dispute that trial judges are vested with discretion to determine whether to recuse themselves, and that in order to obtain a reversal of a refusal to do so, there must be an affirmative showing of bias or prejudice on the part of the trial judge. See Harper v. Harper, 49 Md.App. 339 , 431 A.2d 761 (1981), modified on other grounds, 294 Md. 54 , 448 A.2d 916 (1982). Although the appellant agrees that he did not make an affirmative showing of bias or prejudice in this area, he nevertheless contends that the court committed reversible error in refusing to recuse itself. The basis for the recusal request was the fact that the trial judge had presided at the appellant’s previous trial, at which he was accused of committing similar offenses against the sister of the victim in the case sub judice.

It is well settled that a judge’s previous participation in an earlier, related trial, is “beside the point” where the judge is not acting as the fact finder in the present case, but rather is simply presiding over its presentation to the jury. Mason v. State, 12 Md.App. 655, 683 , 280 A.2d 753 , cert. denied, 263 Md. 727 (1971). See also McFadden v. State, 42 Md.App. 720 , 402 A.2d 1310 (1979); Silbert v. State, 12 Md.App. 516 , 280 A.2d 55 , cert. denied, 263 Md. 720 (1971). Indeed, even where the judge is to be the fact finder, there is no per se rule requiring recusal.

Carey v. State, 43 Md.App. 246 , 405 A.2d 293 , cert. denied, 286 Md. 744 (1979), 445 U.S. 967 , 100 S.Ct. 1660 , 64 L.Ed.2d 244 (1980). The recusal motion was specifically based on the trial court’s knowledge that appellant had a prior record; the court’s refusal to merge charges at the previous trial; and the court’s imposition of a consecutive sentence. Under the facts and circumstances of this case, we are unable to conclude that the court abused its discretion in denying the motion for recusal. ⁶⁸⁷ II. Evidentiary Rulings A. Leading Questions On occasion, the prosecutor asked Paula, who was 13 years-of-age at the time of the trial, “was there ever a time that ...” or “did there come a time when ...” Defense counsel objected to questions prefaced in this manner on the ground that they impermissibly led the witness.

The following colloquy took place at the bench. DEFENSE COUNSEL: This girl to my knowledge, is 13 years of age at the present time. She appears to be a mature individual. She’s been through one proceeding at the trial of her case against the defendant.

She indicated at that time on the cross-examination, I believe, she had reviewed this matter the last two or three times with the State’s Attorney. I don’t feel there’s any reason or justification for the leading nature of these questions. In the case the Court doesn’t understand my objection, I don’t think it takes anyone with a great deal of legal experience to understand by saying the preliminary words, did there come a time, when it’s going to be immediately followed by what they want their witness to recall, and I just think it’s completely unfair under the circumstances. She’s obviously setting forth in the witness’s mind exactly what she wants her to say without the necessity of the witness saying it____ While at the bench, the prosecutor pointed out that she could not ask general questions, such as “What happened on a particular day?,” because no specific date for these alleged incidents was known.

The court overruled defense counsel’s objection by referring to the witness’s young age and observing that “[tjhere are problems in this particular setting.” The trial judge further noted: In addition, we have a series of episodes. It’s not just one stickup or one B and E or something, it’s kind of continuous, and there has to be some way to focus on a particular occasion. Here we do not have witnesses to ⁶⁸⁸ say what happened on the night of the 31st because these things happened sometime in the past. Nobody knows the date.

It is elementary that leading questions on direct examination should be avoided. 3 J. Wigmore, Evidence § 769 (Chadbourn rev. 1970). There are, however, times when latitude may be allowed in posing questions during the direct examination of a particular witness. As this court held in Culver v. State, 1 Md.App. 406, 412 , 230 A.2d 361 (1967): [L]eading questions are permissible to arrive at facts when modesty or delicacy prevents full answers to general interrogations ..., [i.e.,] ... inquiry into delicate subjects of a sexual nature, constitute an exception to the general rule against leading questions. In such cases, the permitting of leading questions of the prosecutrix, particularly if she is of tender years, is a matter of sound discretion of the trial court.

The discretion of the trial judge will not be overturned on appeal unless “there has been such an abuse of his discretion as to prejudice the rights of the accused to a fair trial.” Hubbard v. State, 2 Md.App. 364, 368, 234 A.2d 775 (1967), cert. denied, 249 Md. 732 , 393 U.S. 889 , 89 S.Ct. 208 , 21 L.Ed.2d 168 (1968). In Scott v. United States, 412 A.2d 364 (D.C.1980), a matter similar to the case sub judice wherein the complaining witness was 13 years-of-age, the Court observed: While it is often necessary to use leading questions in a case of a young witness, age is not determinative. The legitimate need for such questions must be balanced against the danger they will supply the witness with a false memory. United States v. McGovern, 499 F.2d 1140, 1142 , (1st Cir.1974).

Since the trial court is in the best position to observe the witness and make this determination, it is largely committed to the trial court’s dis ⁶⁸⁹ cretion and we adhere to that policy here. United States v. Durham, 319 F.2d 590 (4th Cir.1963). Id. at 371. We adhere to the rationale articulated in Scott and conclude that the trial court did not abuse its discretion in permitting the