Raines v. State

DEBORAH S. EYLER Judge. Robert M. Raines, the appellant, was convicted by a jury in the Circuit Court for Montgomery County of two counts of second degree sex offense and one count of child abuse. He was sentenced to two consecutive 10-year sentences for each of the second degree sex offense convictions and a 15-year sentence for the child abuse conviction, to run concurrently, ²⁰⁹ with all but five years suspended, and in favor of three years’ supervised probation. On appeal, the appellant poses two questions for review, which we have rephrased: I. Did the trial court err in denying his request to call the prosecutor as a witness?

II

Was the evidence of criminal intent sufficient to support his convictions? For the following reasons, we shall affirm the judgments of the circuit court. FACTS AND PROCEEDINGS The victim in this case was the appellant’s adopted daughter, who was sixteen years old when the appellant’s case went to trial, in November 2000. According to the victim, one day sometime between February 1, 1998, and June 30, 1998, the appellant picked her up from school, drove her to a shopping center, and, while she waited in the car, went into a store and bought a vibrator.

He then drove her home, took her into the bedroom, showed her the vibrator, and told her how to use it. He put an x-rated movie on the television and told her to remove her pants. She did so, and lay down on the bed. The appellant then proceeded to “work [the vibrator] in and out” of the victim’s vagina, for about five to ten minutes.

A few months later, the appellant picked the victim up from school. He had a dildo with him. He drove to a drug store and purchased KY jelly. The appellant took the victim home, put an x-rated movie on the television, put KY jelly on the dildo, and inserted it in the victim’s vagina for several minutes.

Also during this time period, the appellant told the victim he was going to surreptitiously videotape his wife (her mother) masturbating. He did so, then played the tape for the victim. Another time, the appellant put an x-rated movie on the television in the bedroom, told the victim to go in there and masturbate and, when she did so, videotaped her, without her knowledge. When the victim thought she saw the red light of ²¹⁰ a video camera, she confronted the appellant, who acknowledged he had been taping her but said the tape would have been for her viewing only.

The defense theory in this case was that the victim resented the appellant’s strict supervision and discipline, and fabricated the incidents in an effort to free herself of his control. The appellant testified on his own behalf. He admitted buying a vibrator for the victim, but claimed he did so in an effort to teach her how to sexually satisfy herself so she would not engage in premarital sex. The appellant testified that he did not think he had bought a dildo for the victim.

He admitted taping his wife masturbating and showing the tape to the victim. Additional facts will be recited in our discussion of the issues. DISCUSSION I. On direct examination about the vibrator incident, the victim testified that when the appellant inserted the vibrator in her vagina, it was off, but the appellant then turned the vibrator on and vibrated it for about a minute and a half, while it still was inserted in her vagina. On cross-examination, defense counsel attempted to impeach the victim’s testimony on this point by questioning her about the following statement she had given the police: “It (the vibrator) was not vibrating at that time.” In response, the victim explained that her statement to the police had been correct because it had been made in answer to the question whether the vibrator had been vibrating when the appellant had inserted it.

The statement did not mean, therefore, that the vibrator had not been turned on at any time during the incident. Defense counsel then asked the victim whether before trial she had told anyone that the appellant had turned the vibrator on when it was inside of her. The victim answered that she believed she had spoken to the prosecutor ²¹¹ about that at some time when the two of them were alone in the prosecutor’s office. At the beginning of the defense case, defense counsel informed the court of his intention to call the prosecutor as his first witness 1) “to try to elicit ... that the conversation [about the vibrator being turned on] never happened, that [the victim] never told [the prosecutor] ... in the first place”; and 2) to explore whether “there were notes taken” and “how important that could be, and did it ever come up.... ” The prosecutor told the court that she had had several meetings with the victim and at the last two meetings, no notes had been taken and she (the prosecutor) had “no recollection of what was said, with specifics, to the vibrator ... [w]hether she told me that it was on and it wasn’t written down in my notes, I don’t know.

I don’t have any recollection of that independently.” During the meetings between the prosecutor and the victim, another employee of the State’s Attorney’s Office — Paula Sian — also was present. Ms. Sian worked as an investigator for the office. The prosecutor proceeded to inform defense counsel and the court that Ms. Sian had taken notes during some of the interviews but the notes did not say anything about whether the vibrator was on or off. Finally, the prosecutor said they had “never discussed the operation of [the vibrator].” The trial court questioned why the parties could not enter into a stipulation.

Defense counsel refused and said he wanted to call the prosecutor to the stand for the purpose of having her testify that she could not remember whether, during the interviews, the victim had said whether the vibrator was on or off. The prosecutor replied that she did not think the question whether the vibrator was on or off was important. Defense counsel then said he wanted to call the prosecutor to the stand to elicit that thought. The trial court denied the request.

Defense counsel called Ms. Sian to the witness stand. Ms. Sian testified that her notes of the meetings between the ²¹² victim and the prosecutor did not say whether the victim had said the vibrator was on or off. Ms. Sian further stated that she had no independent recollection of whether the victim had said anything about the vibrator being on or off. On cross-examination, the prosecutor started to ask Ms. Sian about the number of attorneys she worked for and the number of cases she handled in the State’s Attorney’s Office.

Defense counsel requested a bench conference and complained that if that line of questioning was meant to show that Ms. Sian had so many cases to handle she could not possibly be expected to remember the interviews with the victim, he should be allowed to call the prosecutor to testify, because she was the only other person present during the interviews. The trial court remarked that defense counsel “had a valid point” but, to the extent he was trying to show that the victim was lying about having told the prosecutor the vibrator had been on, Ms. Sian’s testimony was sufficient on that point; and it would be unfair to both parties to have the prosecutor’s credibility put in issue while she was an advocate in the case. On appeal, the appellant contends that the trial court abused its discretion in refusing to permit him to call the prosecutor to the stand to testify that she had no memory of whether the victim told her during the interviews that the vibrator had been turned on when it was inside her. It is well established in Maryland that a prosecuting attorney is competent to serve as a witness.

Johnson v. State, 23 Md.App. 131, 140 , 326 A.2d 38 (1974), aff'd, 275 Md. 291 , 339 A.2d 289 (1975); Wilson v. State, 261 Md. 551, 569 , 276 A.2d 214 (1971), Murphy v. State, 120 Md. 229, 235 , 87 A. 811 (1913). Courts usually are reluctant, however, to permit a prosecutor to serve as a witness in a case he is prosecuting, except in extraordinary circumstances. Johnson v. State, supra, 23 Md.App. at 141 , 326 A.2d 38 (citing Gajewski v. United States, 321 F.2d 261, 268 (8th Cir.1963)); see also United States v. Dempsey, 740 F.Supp. 1295, 1297 (N.D.Il. 1990); Robinson v. United States, 32 F.2d 505, 510 (8th Cir.1928). Often, that reluctance stems from a “concern that ²¹³ jurors will be unduly influenced by the prestige and prominence of the prosecutor’s office and will base their credibility determinations on improper factors.” United States v. Edwards, 154 F.3d 915, 921 (9th Cir.1998).

In general, courts have held that in those cases in which the prosecutor is a necessary witness for the prosecution, it is within the sound discretion of the trial court to require the prosecutor to withdraw from the case, and testify as a witness. United States v. Johnston, 690 F.2d 638, 646 (7th Cir.1982); “Prosecuting Attorney as a Witness in Criminal Cases,” 54 A.L.R.3d 100 , § 5(a) (1973, Suppl.2001). When the defense seeks to call the prosecutor as a witness, the issue of prejudice to the defendant comes into play. Carr v. State, 50 Md.App. 209, 215 , 437 A.2d 238 (1981).

We first addressed the propriety of a trial court’s refusal to allow a defendant to call the prosecutor as a witness in Johnson v. State, supra, 23 Md.App. 131 , 326 A.2d 38 . In that case, the defendant appealed his conviction for first degree murder in the death of his brother, arguing, inter alia, that the trial court had erred in refusing to permit him to call the prosecutor as a witness. Id. at 141, 326 A.2d 38 . The same prosecutor had prosecuted the defendant’s two brothers in an earlier trial in which the defendant had testified as a witness and had confessed to killing the third brother in self-defense.

That testimony became the State’s primary evidence against the defendant in his own murder trial. Defense counsel sought to call the prosecutor to testify that the State had “rejected” the defendant’s admission of guilt in the earlier trial. Id. at 141 , 326 A.2d 38 . In Johnson , we concluded that the decision whether to allow the defense to call the prosecutor to testify is within “the broad discretionary right of the trial judge to control the trial of the case.” Id. at 142 , 326 A.2d 38 (internal citations omitted).

The exercise of this discretion must be guided, however, by “an accused’s right to call relevant -witnesses and to present a complete defense,” so that the accused’s right to a complete defense “may not be abrogated for the sake of trial ²¹⁴ convenience or for the purpose of protecting [the prosecutor] from possible embarrassment while testifying, if he