Roberts v. State

Liss, J., delivered the opinion of the Court. On September 3, 1981, Gregory Bernard Roberts, appellant, was convicted by a jury in the Circuit Court of Kent County on charges of first degree rape, unlawfully wearing and carrying a dangerous and deadly weapon openly with the intent or purpose of injuring, daytime housebreaking, and attempting to steal goods of value of less than $300.00. Sentences were imposed on each of the charges and appellant noted this appeal, raising the three following issues: I. Whether the trial court abused its discretion in refusing to grant a continuance?

II

Whether the trial court erred in allowing the State to produce a dog lineup, thereby denying the appellant his right of cross-examination and prejudicing the jury with the use of unreliable testimony?

III

Whether the trial court erred in refusing to compel the State to turn over certain laboratory reports? I. The Court of Appeals has made it abundantly clear that the granting of a continuance rests within the sound discretion of the trial judge and that such discretion will not be disturbed on appeal absent a showing of abuse prejudicial to the defendant. See Jackson v. State, 288 Md. 191 , 416 A.2d 278 (1980); McKenzie v. State, 236 Md. 597 , 204 A.2d 678 ²⁵⁹ (1964); Taylor v. State, 226 Md. 561 , 174 A.2d 573 (1961). In Jackson v. State, 214 Md. 454 , 135 A.2d 638 (1957), cert. denied, 356 U.S. 940 , 78 S.Ct. 784 , 2 L.Ed.2d 816 (1958), the Court of Appeals set forth the following criteria to be followed in determining if an abuse had occurred: To show such an abuse of discretion and prejudice for failure to continue a case because of the absence of witnesses, the party requesting the continuance should show: that he had a reasonable expectation of securing the evidence of the absent witness or witnesses within some reasonable time; that the evidence was competent and material, and he believed that the case could not be fairly tried without it; and that he had made diligent and proper efforts to secure the evidence, [id. at 459.] After applying these factors to the circumstances in this case we conclude that the trial judge acted within the bounds of his discretion.

The record discloses that on May 12, 1981 appellant’s counsel, pursuant to Maryland Rules 741 and 780, filed a motion for discovery and inspection in which he propounded some 100 questions, some of which included "boiler plate” interrogatories which had no relevance to the charges against the appellant. In response to these motions the State disclosed the existence of written and oral statements made by appellant to police and furnished copies of these statements to appellant’s counsel. In addition, the State answered those specific relevant questions included in the motion, listed all of the physical evidence in the possession of the State and listed the names and addresses of all of the witnesses who were expected to be called to testify at trial. These witnesses included a nurse and examining physician at Kent & Queen Anne’s Hospital and an FBI Laboratory Analyst.

Appellant’s counsel also received a copy of the FBI report forwarded to the State and the medical report of the Kent & Queen Anne’s Hospital. On August 27,1981, appellant’s counsel received from the State a supplemental medical report in which appellant ²⁶⁰ contends for the first time revealed that spermatozoa was found in the vagina of the victim at the initial examination. On September 1, 1981, the day the trial began, appellant’s counsel moved for a continuance, giving the following reasons: May it please the Court, on August 27th according to the certification by the State’s Attorney I was provided with a copy of a medical report from the Kent & Queen Anne’s Hospital laboratory, involving the victim in this case. In that report it was revealed to me for the first time, I might add, that certain spermatozoa was present and that spermatozoa had been analyzed by the laboratory, and I believe a copy of the motion and the certification is in the court file.

The certificate of service states that I received a copy. I received this copy on Saturday, which would have been, I believe, August the 29th or 30th. The significance of this, along with the Federal Bureau of Investigation report dated July 23rd, 1981, and giving, of course, a synopsis of the result of their examination, which was previously discussed in a motions hearing. The significance of the medical report, however, in this case, is that a sample from this defendant of spermatozoa may prove to eliminate him as the individual who committed this crime.

On previous discovery here and some authorization for release of evidence for alleged rape, which was received by me on June 2nd, 1981. It was never revealed that there was in fact any spermatozoa present, and in fact, on page five of that report evidence of sperm or seminal fluid was checked "no.” In addition, on page four of that report, spermatozoa absent/present was in fact not checked off in the vagina, cervix, vulva or other indications in the examination of the victim in this case. Court: Mr. Wadkovsky, why was this so late? Mr. Wadkovsky: That’s when we received the ²⁶¹ subsequent report.

I think it was after I talked to Mr. Smith the last time. Court: Who did you receive it from? Mr. Wadkovsky: Kent & Queen Anne’s Hospital, and I think it was as a result of our conversation with Mr. Smith that he asked for additional lab reports and apparently Dr. Gulbrandsen did not furnish it; the hospital furnished it. This was our original report and it was reported to Mr. Smith.

Appellant argued that the continuance should be granted to permit him to submit himself to "an antibody or HLA test” which he hoped would exclude him as the criminal agent. The ensuing colloquy then occurred: Court: Do you have any medical evidence to say these things would happen? I don’t know of any such a test where you can distinguish sperms from one person to another. Mr. Smith: Your Honor, there are tests.

Court: Well, do you have any proof that there are tests? Mr. Smith: No, Your Honor. Prior to Saturday I did not have any idea that this would come up. Court: The motion is late.

We are ready for trial. We have 60 jurors in here. You’re late already. Of course you said you had an excuse and I told you I wouldn’t find you in contempt and I’m not going to.

I am going to refuse to grant a continuance. I have no evidence these things could be separated. The State may or may not use the tests. I don’t know if I will even allow it.

We’ll get to it. You say a bald allegation that these things could be checked and separated so as to provide some evidence that the Defendant did not create the sperms in the vagina of the victim, I take it. But it’s just too late in the day, and I can’t find that we have any evidence that you have of any type that you could present to — ²⁶² reliable evidence, that would be admissible in evidence to do this type of thing. Mr. Smith: And Your Honor, I am saying that there has been, and Your Honor, I don’t know whether or not the Court is familiar with this particular case, but there has been an instance where a man who was convicted and received 50 years in jail up north had a test run some 20 years later on this very same principle and was excluded as a result of this kind of HLA type of test.

Court: What do you have to say about this? Mr. Wadkovsky: I never heard of the test, and I don’t know what relevance it would have. Court: We’re here, and we waited for you. You said you were tied up in another court, and you were, from 10:00 until really now — what time is it now?

The jury has been sitting out there all day. It’s 25 minutes of 2 and now for the first time I see a motion for a continuance. Have you made any effort to check the hospital records? Mr. Smith: Your Honor, I received the hospital records from the State’s Attorney.

Court: Have you independently went over and checked the hospital records? Have you filed an order to obtain the hospital records? Mr. Smith: No sir. Court: Then I will find you did not use due diligence to develop this evidence.

I am going to deny your motion for a continuance. Appellant argues that the delay in receiving the supplemental hospital report was "occasioned by a cunning State’s Attorney.” There is not a scintilla of evidence to support this charge. The record is clear that immediately upon receipt of the supplemental report the State’s Attorney furnished it to appellant’s counsel. The initial hospital report was at best equivocal.

At one point, it contained no checks or other indications in portions of the form headed "absent” or "present” ²⁶³ with respect to spermatozoa. On the next page, the answer "No” was given to the question "Evidence of sperm or seminal fluid?” Despite this apparent self-contradiction and despite the fact that the report was clearly a preliminary one which did not include the results of laboratory tests, over a three-month period appellant’s counsel made no efforts to check the hospital records personally or to confer with the doctor who had prepared the report and whose name had been given to him. We are convinced that discovery proceedings were never intended to replace personal diligence in the preparation of a case for a trial. The proffer made in support of the continuance was totally insufficient to require the trial judge to grant the continuance.

The HLA test was never identified by name, nor was the "case up north,” in which miraculous results were obtained, ever identified by name or jurisdiction. Nothing was proffered as to the existence of the test, its reliability or its acceptance in the relevant scientific community (the medical profession), or the courts. See Collins v. State, 52 Md. App. 186 , 447 A.2d 1272 (1982). Even if the test in question was of the type we discussed in Mills v. State, 28 Md. App. 300 , 345 A.2d 127 (1975), the appellant failed to show that he had a reasonable expectation of securing the test results within a reasonable time, what the test results might show, or that the case could not be fairly tried without it.

There was no abuse of discretion by the trial judge. See Jackson v. State, supra.

II

Appellant next raises the unique question of whether the State may properly admit into evidence testimony concerning a "lineup” wherein the services of a tracking dog were utilized to link the appellant to certain physical evidence found at the scene of the crime. In Terrell v. State, 3 Md. App. 340 , 239 A.2d 128 (1968), this Court made an exhaustive survey of the law concerning that portion of American folklore dealing with the ability of a dog trained to follow the human scent to track down a fugitive. In that case, Judge Thompson, speaking for this ²⁶⁴ Court, noted that "[t]he ability of a dog to follow the human scent is not an inherent characteristic, but one that must be instilled into the animal through arduous training.” 3 Md. App. at 344 . The first case in which an accused questioned the admissibility of evidence of tracking by a bloodhound was in Hodge v. State, 98 Ala. 10 , 13 So. 385 (1893), where the Supreme Court of Alabama stated that it was "common knowledge” that tracking dogs, if properly trained, could track the human scent.

Three years later, in Simpson v. State, 111 Ala. 6 , 20 So. 572 (1896), the Alabama Court reiterated its position in Hodge, supra, thus laying the foundation for the legal supposition that such evidence may be properly introduced before the trier of fact. The Kentucky Supreme Court, in Pedigo v. Commonwealth, 103 Ky. 41 , 44 S.W. 143 (1898), set forth the perimeters of the rule where it stated: [I]n order to make such testimony competent, even when it is shown that the dog is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, it must also be established that the dog in question is possessed of these qualities, and has been trained or tested in their exercise in the tracking of human beings, and that these facts must appear from the testimony of some person who has personal knowledge thereof. We think it must also appear that the dog so trained and tested was laid on the trail, whether visible or not, concerning which testimony has been admitted, at a point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicated to have been made by him. When so indicated,