Patrick v. State

ALPERT, Judge. On September 17, 1990, the grand jury for Cecil County, Maryland charged Delmar William Patrick, III, appellant, 1 with the murder of Earline Renee Brown. 2 In addition, on December 4, 1990, the State’s Attorney for Cecil County brought a criminal information against Patrick. The information included four counts: (1) attempted first degree rape; (2) attempted second degree rape; (3) attempted sexual offense in the first degree; and (4) attempted sexual offense in the second degree. 3 On the same day, the State’s Attorney informed Patrick that he sought a sentence of “Imprisonment for Life Without the Possibility of Parole” in the murder case. Judge Cole consolidated both cases for purposes of a motion to suppress hearing and for trial.

On December 10, 1990, Patrick filed a demand for bill of particulars in case # 90601C (the murder case). The State ⁴⁷⁸ did not respond until the day of trial. See discussion, infra part V. Judge Edward D.E. Rollins, Jr., presided over a jury trial during March 18-20, 1990. The jury convicted Patrick of first-degree felony-murder and found him not guilty of first degree premeditated murder. 4 On May 8, 1991, Judge Rollins heard and denied Patrick’s motion for a new trial.

Judge Rollins then conducted a sentencing hearing. After hearing the parties’ positions, Judge Rollins sentenced Patrick to the “jurisdiction of the Department of Corrections for the remainder of his natural life without benefit of parole.” The very next day, Patrick appealed to this court. On appeal he raises the following questions: I. Did the trial court err in its instructions to the jury?

II

Did the trial court err in admitting into evidence testimony relating to a previous act of misconduct by Appellant?

III

Did the trial court err in refusing to compel the State to disclose to the defense the reports of an expert consulted by the State?

IV

Did the trial court err in permitting a forensic chemist called by the State to testify to her conclusion that only one of her findings was “significant[?J” V. Did the trial court err in refusing to require the State to prepare a bill of particulars respecting the alleged sexual offenses? Patrick and the victim, thirteen-year-old Earline Renee Brown (Earline), lived in a subsidized housing project located in Port Deposit, Maryland. Patrick knew Earline, in fact, Patrick and Earline’s step-brother Steven Goodwin were best of friends. On the evening of September 1, 1990, Earline’s family noticed that she was missing.

Late that night/early the next morning of September 2, searchers located Earline’s ⁴⁷⁹ body in a wooded area. Her uncle was the first to sight her body; he immediately called out to the other searchers. Earline’s body rested some fifty feet from the apartment where Patrick lived with his parents and brother. Earline’s body was partially clothed when found.

According to the assistant medical examiner, the “pathological diagnosis, meaning the summation of injuries, number one, is strangulation; number two, blunt force injury to the head; number three, cutting and stab wounds of torso; number four, contusion of tongue....” He determined the “[c]ause of death was strangulation and blunt force injuries to the head.” There was also evidence of injury to the vaginal area. Based upon the testimony of witnesses who placed Patrick and Earline in close proximity to each other prior to her death, the police questioned Patrick about Earline’s murder. He gave the police several different versions of what happened. 5 His descriptions of the events before Earline’s death closely corresponded to the injuries found upon her body. Furthermore, the forensic chemist for the State determined that bloodstains found on Patrick’s shoes could have come from Earline — but not Patrick. ⁴⁸⁰ At trial, Patrick took the stand and told the jury that he did not kill Earline; he came across the body when he went into the woods behind his house, but he was “too scared” to tell anyone what he had seen.

I. Patrick argues that the trial court erred when it instructed the jury on the elements of first degree rape and first degree sexual offense. In addition, he complains because the court refused to instruct the jury on assault and battery and did not allow that charge on the verdict sheet. Patrick cites to certain pages from the trial transcript wherein the court defines the attempted rape and attempted sexual offense charges. He points out that the court failed to define fully the elements of first degree rape and first degree sexual offense.

He is concerned that the jury could have concluded that he “was guilty of first-degree rape or first-degree sex offense if he had engaged in the aggravating conduct alone: using a weapon, inflicting strangulation, and so on.” The trial court mentioned the aggravating factors that underlie each charge, 6 but forgot to define the terms rape (first degree) and sexual offense contemporaneously with the relevant instructions. At first glance, Patrick’s contentions appear tenable, but upon closer examination, they cannot stand. The State posits that Patrick failed to object and inform the lower court that it forgot to define the word rape contemporaneously with the first degree attempted rape charge. Furthermore, Patrick did not object to the lower court’s instructions on attempted sexual offenses.

Accordingly, our review is governed by Md.Rule 4-325(e). Objection. — No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, ⁴⁸¹ stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.

(Emphasis added). Sims v. State, 319 Md. 540, 549 , 573 A.2d 1317 (1990) (“Unless the attorney preserves the point by proper objection after the charge, or has somehow made it crystal clear that there is an ongoing objection to the failure of the court to give the requested instruction, the objection may be lost.”). If the defendant timely objects, the lower court has the opportunity to “correct any misstatement of law, clarify an ambiguity, or correct inaccuracies” in its instructions. Leatherwood v. State, 49 Md.App. 683, 694-95 , 435 A.2d 477 (1981).

Patrick had the “duty of stating distinctly at the time the specific grounds of objection.” Brown v. State, 203 Md. 126, 129-30 , 100 A.2d 7 (1953). He shirked his responsibility. In State v. Foster, 263 Md. 388, 397 , 283 A.2d 411 cert. denied, 406 U.S. 908 , 92 S.Ct. 1616 , 31 L.Ed.2d 818 (1971), the Court of Appeals stated, “It is a well established rule that when objection is raised to a court’s instruction, attention should not be focused on a particular portion lifted out of context, but rather its adequacy is determined by viewing it as a whole.” 7 In accord with this instruction, although not obliged to do so, we examine the jury instructions in their entirety. We have the discretion to recognize, sua sponte, plain error.

State v. Daughton, 321 Md. 206, 210-11 , 582 A.2d 521 (1990). ⁴⁸² A. The lower court began its instruction on the rape charge as follows: [THE COURT:] Now, first degree rape, I have to give you a definition of what these are for you to be able to consider whether the person attempted to do them. And I might say at this point that the attempt to rape or attempt to rape [sic], the person has to be living when you make the attempt. You can’t rape a dead person. You can’t commit a sexual offense against a dead person.

So, part of the proof is that when and if these attempts were made, the victim was alive at the time that the attempts were made. In order to convict of first degree rape in this case, attempted first degree rape, the State must prove that: The court went on to list the aggravating factors for first degree attempted rape (e.g., attacker used or displayed a dangerous weapon). Later, while instructing the jury on second degree attempted rape, the court gave a specific definition of rape. [THE COURT:] Second degree rape, in order to prove that, attempted second degree rape, and these are all attempts I say, doesn’t mean the actual act takes place, but they have to attempt to have committed it. That’s a common law offense.

The State has got to prove the Defendant attempted to have vaginal intercourse with the victim; that the act was committed by force or threat of force; that the act was committed without the consent of the victim. Vaginal intercourse means the penetration of the penis into the vagina. The slightest penetration is sufficient and emission of semen is not required. With this instruction in mind, we disagree with Patrick when he claims that the jury could have concluded that he was guilty of (attempted) first degree rape based upon ⁴⁸³ aggravating conduct alone.

There was no reversible error, let alone “plain error.” The information against Patrick listed attempted crimes— not completed crimes (e.g., rape). The State did not have to prove penetration because, as the trial court stated, “You can’t rape a dead person.” Moreover, as the State indicates, the presence of force and the absence of consent were undisputed. Even if we considered the trial court’s contemporaneous omission (with the first degree attempted rape instruction) of the definition of the term “rape” to be erroneous, it did not create the type of prejudice that precluded Patrick from receiving an impartial trial. Trimble v. State, 300 Md. 387, 397 , 478 A.2d 1143 (1984), cert. denied, 469 U.S. 1230 , 105 S.Ct. 1231 , 84 L.Ed.2d 368 (1985) (“we shall examine the circumstances at the time of the court’s instructions to determine if the court’s omission was prejudicial”); see State v. Hutchinson, 287 Md. 198, 202-03 , 411 A.2d 1035 (1980).

B. The State objected to the jury instructions because, among other things, the lower court failed to define the term “sexual act.” Patrick did not object to this omission. MR. SCARBOROUGH [FOR THE STATE]: I’d like the whole sexual act thing read. THE COURT: I didn’t do that?

MR. SCARBOROUGH: You just read the first part. There’s the second part. THE COURT: Okay.

I’ll give that. The court kept its word. [THE COURT:] I talk[ed] about first and second degree sexual act. Maybe I better, sexual act means, among other things, cunnilingus, fellatio, analingus, anal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person’s body, if the penetration can be reason ⁴⁸⁴ ably construed as being for the purposes of sexual arousal or gratification or for abuse of either party and if the penetration is not for accepted medical purposes.

The lower court cured its omission by giving supplemental instructions which included the definition of sexual act. Thus, the lower court linked the aggravating conduct for each attempted sexual offense charge with the crux of each offense. We hold that the trial court’s instructions on the attempted sexual offense charges did not amount to error, let alone plain error. England and Edwards v. State, 21 Md.App. 412, 427 , 320 A.2d 66 (1974) (“If jury instructions when read as a whole, clearly set forth the applicable law, there is no reversible error.”).

See also State v. Daughton, 321 Md. 206, 210-11 , 582 A.2d 521 (1990); Austin v. State, 90 Md.App. 254 , 600 A.2d 1142 (1992). C. At trial, Patrick took exception to the lower court’s “failure to instruct the jury on the offenses of assault and battery, and to include them on the verdict sheet.” Mrs. Murray, Patrick’s co-counsel, informed the lower court of the exceptions. MRS. MURRAY: Next I want to make an exception to the fact that categories for the following crimes are not included on the verdict sheet, that would be assault, battery.......

There’s evidence supporting those ... crimes. Assault and battery merge into murder. Every murder includes both an assault and a battery as a character of the actual crime. I think that belongs on the verdict sheet.

Okay. Next I’d like to except that the instructions for assault and also for battery were not given. Those belong in the verdict sheet and they belong in the instructions as well. ⁴⁸⁵ Patrick now argues that the “exception was meritorious, and the [court’s] refusal to place those offenses before the jury was error.” He cites Hagans v. State, 316 Md. 429 , 559 A.2d 792 (1989), and Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989), in support of his contention. In Hagans , the Court of Appeals adopted the majority rule on uncharged lesser included offenses.

After reviewing other states’ law, the Court chose to follow the principle that “a defendant, charged with a greater offense, can be convicted of an uncharged lesser included offense____” Hagans, 316 Md. at 447 , 559 A.2d 792 . 8 Ordinarily, the trial court should invoke the doctrine when either side requests or affirmatively agrees to the instruction. Hagans, 316 Md. at 455 , 559 A.2d 792 . The Court of Appeals concluded that where the State enters a nolle prosequi as to an uncharged lesser included offense, or where the charging document is drawn so as necessarily to exclude the lesser included offense, it would obviously be inappropriate to submit the lesser included offense to the jury, except to the extent that the defendant desires and is entitled to have it submitted under the principles recently set forth in Hook v. State, supra. Hagans, 316 Md. at 455 , 559 A.2d 792 .

In Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989), the Court discussed the harm flowing from the prosecutor’s nol pros of a lesser included crime, which, in effect, left the jury with a Hobson’s choice 9 — convict or acquit. Noting that the United States Supreme Court doctrine dealt with capital cases, the Court of Appeals decided to “apply the fairness concept as to lesser included offenses to encompass ⁴⁸⁶ noncapital cases.” Hook, 315 Md. at 43 , 553 A.2d 233 . Accordingly, the Court stated that [w]hen the defendant is plainly guilty of some offense, and the evidence is legally sufficient for the trier of fact to convict him of either the greater offense or a lesser included offense, it is fundamentally unfair under Maryland common law for the State, over the defendant’s objection, to nol pros the lesser included offense. The same rationale, set forth in detail supra, that supports the Supreme Court rule supports this view.

In short, it is simply offensive to fundamental fairness, in such circumstances, to deprive the trier of fact, over the defendant’s objection, of the third option of convicting the defendant of a lesser included offense. And if the trial is before a jury, the defendant is entitled, if he so desires, to have the jury instructed as to the lesser included offense. Hook, 315 Md. at 43-44 , 553 A.2d 233 . We point out that Hagans and Hook involved prosecutorial trial strategy.

The prosecutors’ decision to nol pros the lesser charges placed the defendant in a difficult situation. Thus, the Court of Appeals fettered the prosecutors’ broad discretion by subjecting it to the strictures of fundamental fairness. In the instant case, the strategic scenario is quite different. The State presented all of its charges to the jury.

The State did not nol pros any charges in an attempt to apply pressure on the jury. We agree with Patrick when he contends that “assault and battery were lesser-included offenses of virtually every other crime with which Appellant was charged.” Nevertheless, we do not agree that the lower court’s actions amounted to error. In Jackson v. State, 322 Md. 117 , 586 A.2d 6 (1991), the appellant took a position similar to Patrick’s. The criminal information against Jackson charged him with possession of cocaine with intent to distribute; possession of cocaine; conspiracy to distribute cocaine; conspiracy to possess eo ⁴⁸⁷ caine with the intent to distribute; and conspiracy to possess cocaine.

Jackson, 322 Md. at 123 , 586 A.2d 6 . The State, over Jackson’s objection, did not submit the possession counts (lesser included) to the jury. Jackson, 322 Md. at 123-24 , 586 A.2d 6 . Jackson, relying on Hook, in part, argued that “if there is legally sufficient evidence for the trier of fact to convict a defendant of the lesser included offense, that offense must go to the jury.” Jackson, 322 Md. at 127 , 586 A.2d 6 .

The Court of Appeals viewed Jackson’s assertion as a question of evidentiary sufficiency. Jackson, 322 Md. at 127 , 586 A.2d 6 . Apparently, Jackson based his contention upon language from Hook, 315 Md. at 43 , 553 A.2d 233 , quoted in Fairbanks v. State, 318 Md. 22, 25 , 566 A.2d 764 (1989), [w]hen the defendant is plainly guilty of some offense, and the evidence is legally sufficient for the trier of fact to convict him of either the greater offense or a lesser included offense____ In resolving the issue against Jackson, the Jackson Court stated that [e]ven when there is evidence that would support a finding of guilt of the lesser included offense, the State is not precluded from entering a nolle prosequi of that offense if, under the particular facts of the case, there exists no rational basis by which the jury could conclude that the defendant is guilty of the lesser included offense but not guilty of the greater offense. Under the facts of this case, there simply was no rational basis upon which the jury could have concluded that Jackson was guilty of possession [the lesser included] but not guilty of possession with intent to distribute [the greater].

Jackson, 322 Md. at 127-28 , 586 A.2d 6 . The Court cautioned that its “holding is not to be interpreted as reaching beyond ... [the] factual scenario” of the case. Jackson, ⁴⁸⁸ 322 Md. at 128 , 586 A.2d 6 . 10 We do not seek to extend Jackson’s holding to the case sub judice, rather, we look to that case for the “rational basis” test. On the facts before the jury, there was no rational basis upon which it could have concluded that Patrick was guilty of assault and battery (the lesser included) but not the greater charged offenses.

Assuming, arguendo, that Patrick’s testimony at trial was factually correct, he would not have been guilty of any crime. He testified that he happened upon Earline’s body by accident. In addition to his description of his activities, Patrick repudiated the statements he gave to the police in which he implicated Eric Davis and Steven Goodwin. The State argues that if the jury chose to believe those accounts, it could have found Patrick guilty as an accomplice.

Thus, we concur with the State when it posits, “There is no reasonable theory, on the facts of this case, which would permit convictions of just assault and battery. Therefore, instructions on those offenses were not required.” H. Patrick asserts that the lower court committed prejudicial error by allowing Stephanie Osborne to testify about Patrick’s prior conduct towards Earline. Osborne was a classmate of Earline’s. During the summer of 1990, prior to Earline’s murder, Osborne spent time at Port Deposit.

On direct examination, Osborne told the jury what she had heard Patrick say to Earline. Q Tell us what you heard Ricky say to Earline. A Couple of times I heard him say things like she had a nice body and a nice butt. ⁴⁸⁹ Later, Scarborough asked Osborne if she had ever seen Patrick touch Earline. MR.

SCARBOROUGH: Did you ever see him touch Earline? MR. KLENK [PATRICK’S CO-COUNSEL]: Objection. THE COURT: Overruled.

THE WITNESS: I’ve seen him pinch her butt before. BY MR. SCARBOROUGH: Q Pinch her butt? A Yeah.

Q Is that during that summer [of 1990]? A Um-hum. Patrick goes on to argue that “[f]or a male to ‘pinch the butt’ of a female is obviously a crime — a sexual offense and a battery.” 11 He believes that Osborne’s testimony was not probative and depicted him “as a nasty, undisciplined person with a willingness to violate the rights of others.” The State points out that “while it may be a sexual offense or battery to pinch someone, it patently is so only where the person pinched does not consent.” Taylor v. State, 214 Md. 156, 159 , 133 A.2d 414 (1957); King v. State, 36 Md.App. 124, 134 , 373 A.2d 292 , cert. denied, 281 Md. 740 (1977). The record herein does not tell us whether there was a lack of consent.

The absence of evidence of lack of consent would obviously present an insufficiency of evidence of crime. Thus, there was no “other crimes evidence.” We move on to consider whether Osborne’s testimony was relevant to the charges against Patrick. We conclude that it was. ⁴⁹⁰ We noted in Baldwin v. State, 56 Md.App. 529, 537 , 468 A.2d 394 (1983), cert. denied, 299 Md. 425 , 474 A.2d 218 (1984), that “the real test of admissibility of evidence in a criminal case is the connection of the fact proved with the offense charged.” Upon reviewing the trial testimony, we are convinced that the State offered Osborne’s testimony to disclose Patrick’s sexual affinity for Earline.

III

Patrick contends that the trial court erred when it refused to compel the State to disclose the results of polygraphs conducted by trooper James Mitchell. Patrick cites to Md.Rule 4-263(b)(4) which requires the State, upon request, to provide the reports and statements of experts to the defendant. Reports or Statements of Experts. — Produce and permit the defendant to inspect and copy all written reports or statements made in connection with the action by each expert consulted by the State, including the result of any physical or mental examination, scientific test, experiment, or comparison, and furnish the defendant with the substance of any such oral report and conclusion^] He contends that the plain language of the rule permits the discovery of polygraph results. Specifically, he asserts that “a polygraph exam is obviously a ‘scientific test.’ ” Therefore, because Md.Rule 4-263(b)(4) does not require that evidence be admissible before it is discoverable, Patrick claims, in a roundabout way, that the polygraph results would have aided him in preparing for his trial.

The State, on the other hand, argues that “polygraph results are of such questionable scientific reliability as to be inadmissible as evidence in criminal cases in Maryland, they cannot be considered scientific tests or experiments for the purposes of Rule 4-263(b)(4).” The lower court examined the polygraph materials and determined that the State had provided Patrick with all the exculpatory items found therein. Accordingly, the lower ⁴⁹¹ court refused to compel the State to provide Patrick with non-exculpatory polygraph material. •I’m going to deny your motion for discovery as far as reports of the polygraph exam because they are irrelevant in the case. They are not admissible anyway. Counsel has not cited, nor have we found, a Maryland decision which answers the question before us: Are non-exculpatory polygraph results discoverable under Md.Rule 4-263(b)(4)?

For the reasons that follow, we hold that they are not discoverable. At the outset of this discussion, we alert the reader to the distinction between results and tests. The distinction appears facile, nevertheless, authors sometimes gloss over it. For example, tests may be scientific, but the results may be unreliable.

Maryland law is settled on whether polygraph results are admissible as evidence — they are not. In Johnson v. State, 303 Md. 487, 513 , 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986), the Court of Appeals declared, “There is no longer any doubt that in this State, the results of a lie detector test, as well as the fact of taking such a test, are inadmissible at trial.” 12 The Court added, “While the better practice would be to delete all reference to polygraph tests, by whomever and whenever made, the admitted reference in this case does not warrant reversal.” Johnson, 303 Md. at 514 , 495 A.2d 1 . In no uncertain terms, the Court has indicated that there is to be no intentional discussion of polygraph results at trial. Finding no published decision interpreting the particular aspects of Md.Rule 4-263(b)(4) before us, we turned to a search of the rule’s history.

That search did not reveal anything of substance. ⁴⁹² In Jennings v. State, 303 Md. 72 , 492 A.2d 295 (1985), the Court of Appeals undertook an investigation of Md.Rule 741 (the precursor to Md.Rule 4-263). The earliest rule adopted by the Court of Appeals under its constitutional rulemaking power which provided for criminal discovery was Rule 5, found in Part Four, I, of the Criminal Rules of Practice and Procedure (1951). Jennings, 303 Md. at 79-80 , 492 A.2d 295 . Rule 5 did not address scientific tests. 13 Effective January 1, 1957, Rule 5 was renumbered Md.Rule 728.

Jennings, 303 Md. at 80 , 492 A.2d 295 . Maryland Rule 728 was a replica of old Rule 5. Jennings, 303 Md. at 80 , 492 A.2d 295 . Maryland Rule 728 was revised, along with Chapter 700, in the Twentieth Report of the Rules Committee.

Jennings, 303 Md. at 80 , 492 A.2d 295 . Maryland Rule 728 did not address scientific tests either. Eventually, the Rules Committee revised Md.Rule 728 and renumbered it Md.Rule 741. Jennings, 303 Md. at 83 , 492 A.2d 295 .

The language of Md.Rule 741(b)(4) is similar to Md.Rule 4-263(b)(4). 14 None of the material in the Rules Committee’s files on Md.Rule 4-263, Md.Rule 741, and “Rule 700 — General” di ⁴⁹³ rected us to a definition of scientific test as delineated in Md.Rule 4-263(b)(4). Thus, we survey the law of jurisdictions which do not permit the discovery of non-exculpatory polygraph results. 15 Federal Rule of Criminal Procedure (Fed.Rule) 16(a)(1)(D) is somewhat similar to Md.Rule 4-263(b)(4). (D) Reports of Examinations and Tests. Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial.

Federal Rule 16(a)(l)(D)’s last clause distinguishes it from Md.Rule 4-263(b)(4). Nevertheless, the Fed.Rule is relevant for our discussion because the Court of Appeals has barred intentional use of non-exculpatory polygraph materials at trial. Johnson v. State, 303 Md. 487, 513-14 , 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986). Although the federal court system allows the limited use (unrelated to the substantive correctness of