Runge v. State

ROBERT M. BELL, Judge. Having been convicted by a jury in the Circuit Court for Cecil County of three counts of sexual child abuse, William Frederick Runge, appellant, was sentenced to three concurrent 15 year terms of imprisonment. His appeal from the judgments thus entered raises six issues: 1. Did the court below commit error in limiting appellant’s access to the Department of Social Services’ file to an in-camera inspection by the court? 2.

Did the court below commit error in determining that the array of jurors was selected in accordance with law? 3. Did the court below commit error in propounding a leading question to Jennie Lee Runge? 4. Did the court below commit error in eliciting hearsay testimony concerning a prior complaint of abuse by one of the children? 5. Was appellant denied a fair trial by remarks made by the trial judge during the opening statement of defense counsel? ²⁷ 6.

Was the evidence sufficient to sustain guilty verdicts? Finding merit in the issues raised by questions 1 and 5, we will reverse and remand for a new trial. Because they may recur on retrial, for the guidance of the trial judge, we will address each of the remaining issues raised by appellant except issue # 2. 1. Maryland Code Ann. Art. 88A § 6(b) provides: (b) Child abuse or neglect — Except as otherwise provided in Title 5, Subtitle 9 of the Family Law Article 1 , all records and reports concerning child abuse or neglect are confidential, and their unauthorized disclosure is a criminal offense subject to the penalty set out in subsection (e) of this section.

Information contained in reports or records concerning child abuse or neglect may be disclosed only: (1) Under a court order; (2) To personnel of local or State departments of social services, law enforcement personnel, and members of multidisciplinary case consultation teams, who are investigating a report of known or suspected child abuse or neglect or who are providing services to a child or family that is the subject of the report; (3) To local or State officials responsible for the administration of the child protective service as necessary to carry out their official functions; ²⁸ (4) To a person who is the alleged child abuser or the person who is suspected of child neglect if that person is responsible for the child’s welfare and provisions are made for the protection of the identity of the reporter or any other person whose life or safety is is likely to be endangered by disclosing the information; (5) To a licensed practitioner who, or an agency, institution, or program which is providing treatment or care to a child who is the subject of a report of child abuse or neglect; or (6) To a parent or other person who has permanent or temporary care and custody of a child, if provisions are made for the protection of the identity of the reporter or any other person whose life or safety is likely to be endangered by disclosing the information. The portion of the statute pertinent to appellant’s first argument on appeal is subsection (b)(4). Prior to trial, appellant filed a Motion For Subpoena For Tangible Evidence Before Trial, directed to the Cecil County Department of Social Services and requesting production of “all records in any way relating to William F. Runge, Iris Runge, Dan Runge, Jennifer Rungie [sic] and Jamie Runge.” Although the record does not reflect that the subpoena was issued pursuant to court order, the Cecil County Department of Social Services moved to quash the subpoena, citing Maryland Code Ann. Art. 88A, § 6(a) and (b) and Maryland State Government Code Ann. § 10-616 as authority. The court set a hearing on both motions.

At that hearing, the State suggested that the court review the records in camera and determine which, if any of them, should be disclosed to appellant. In spite of appellant’s objection to that procedure, the court agreed and ordered the complete Social Services file turned over to it for such review. At yet another hearing, held after the court’s in camera review, relying upon Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987), and the guidelines it enunciated, and conducted on the record, the court released certain of the records to appellant. This was done ²⁹ by reading portions of the documents verbatim into the record.

The court characterized the disclosure it made as “essentially the whole file.” The court also retained the file for further review, should the need for further disclosure arise during trial. Appellant argues that the court’s ruling and the procedure it adopted were error. 2 Relying upon the Maryland law, specifically subsection 6(b)(4), he asserts that Pennsylvania v. Ritchie is inapposite: In Ritchie , the statute did not provide for disclosure to the alleged child abuser, while the Maryland statute does. Since, therefore, under the Maryland statute, an alleged child abuser is entitled to disclosure, appellant continues, once that fact has been determined, “[t]he court’s in-camera inspection should have been limited to safeguarding from disclosure the identity of the reporter(s) of the abuse.” The State, on the other hand, contends that Ritchie is dispositive of this issue and, hence, that the in camera review by the judge was not just a proper procedure, it was the mandated one. Of particular significance to the State’s analysis are: (1) the following discussion by the Supreme Court: A defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth’s files.

Although the eye of an advo ³⁰ cate may be helpful to a defendant in ferreting out information, this Court has never held — even in the absence of a statute restricting disclosure — that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U.S. 83 [ 83 S.Ct. 1194 , 10 L.Ed.2d 215 ] (1963), it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final.

Defense counsel has no constitutional right to conduct his own search of the State’s files to argue relevance, 480 U.S. at 59 , 107 S.Ct. at 1003 (Citations and footnote omitted); and (2) its perception that, by virtue of the statute’s use of the word “may”, disclosure to an alleged child abuser is permitted, rather than required. Appellant is correct, the statute at issue in this case and the statute in Ritchie are different. That being so, the facts sub judice and the facts in Ritchie are necessarily also different, and significantly so. In Ritchie , although it specifically did not provide for disclosure of the information in the Social Services file to one accused of sexual offenses against children, the statute did provide for disclosure to other persons or agencies under certain circumstances. 3 Of particular relevance for our purposes, the statute provided ³¹ for disclosures “to a court of competent jurisdiction pursuant to a court order.” ³² Faced with a statute which did not entitle him to access to information in the Social Service’s file, Ritchie sought disclosure of the information on the basis of the Sixth Amendment rights of confrontation and compulsory process.

Without examining the entire file, the trial judge denied Ritchie’s motion, thus refusing to order disclosure of the files. On appeal, the Superior Court vacated the conviction and remanded the case for further proceedings to determine whether Ritchie was entitled to a new trial. Although it held that the full disclosure sought by Ritchie was not required by the confrontation clause, it concluded that he was entitled to the verbatim statements made by the victim and that his lawyer was entitled to access to the entire file for the limited purpose of allowing him to argue the relevance of the information contained in it to Ritchie’s right to a new trial. The disclosures were to follow the court’s in camera review of the confidential material in the file.

The Supreme Court of Pennsylvania agreed that the conviction must be vacated and the case remanded for determination whether a new trial was necessary. That court, however, was also of the view that “by denying access to the CYS file, the trial court order had violated both the Confrontation and the Compulsory Process Clauses of the Sixth Amendment____” 480 U.S. at 38 , 107 S.Ct. at 989 . Thus, it held that both Ritchie and his counsel were entitled to review the entire file in their search for useful evidence. The issue thus presented to the Supreme Court was whether, when a statute does not provide for disclosure of information to an accused, but does not totally prohibit disclosure, the accused is nevertheless entitled to obtain disclosure of the information pursuant to the confrontation clause and the compulsory process clause.

And it was in that context that the Supreme Court rejected appellant’s arguments and permitted the relevance of the information sought to be determined by the court after an in camera review. The issue which this case presents was not, nor could it have been, presented in Ritchie . ³³ The Maryland statute clearly provides for disclosure to one accused of child abuse. The issue presented here, therefore, is whether the disclosure is mandatory and, if so, whether there are any restrictions other than the safeguarding of the identity of the reporter(s) of the information, placed upon that disclosure. The answer to these questions requires application of the rules of statutory construction, rather than the confrontation or compulsory process clauses.

We approach this task by considering the plain language of the statute, in light, however, of its purpose. Kaczorowski v. City of Baltimore, 309 Md. 505, 513 , 525 A.2d 628 (1987). Section 6(b) is “a recognition that when the information is relevant to some other purpose”, Freed v. Worcester County, 69 Md.App. 447, 454 , 518 A.2d 159 (1986), it may be disclosed only to the persons and agencies enumerated in the statute. More to the point, however, it includes an enumeration of the persons and agencies to which the information may only be disclosed as well as the purposes or reason for the disclosure; hence, the statute itself supplies the other purposes for the disclosure.

Thus, in the case of subsection (4), the disclosure may only be made “if the alleged child abuser is responsible for the child’s welfare.” 4 If, on the other hand, the information is not relevant for the purpose prescribed by the statute, disclosure is neither required nor permitted. The statute places no conditions upon a disclosure made pursuant to its terms; beyond that necessary to protect the sources of the information, it does not explicitly provide for, nor do its terms imply that it is desirable that there be, court screening of the disclosure via an in camera inspection. Indeed, that the statute contains a provision for disclosure to the court pursuant to court order tends to negate such an interpretation. Consequently, we hold that, ³⁴ no court filtering, is required or permitted, except that necessary to protect the sources of the information.

The phrase in § (b), “[information contained in reports or records concerning child abuse or neglect may be disclosed only”, is interpreted by the State as being permissive, undoubtedly because of its use of the word “may”. While it is true that the word “may” ordinarily connotes only directive intent, the context of the statute in which it is used may be such as to require that it be interpreted as mandatory. See Resetar v. State Bd. of Education, 284 Md. 537, 547-50 , 399 A.2d 225 (1979); Blumenthal v. Clerk of Cir. Ct., 278 Md. 398, 408-09 , 365 A.2d 279 (1976); Tranen v. Aziz, 59 Md.App. 528, 535 , 476 A.2d 1170 (1984); Pope v. Secretary of Personnel, 46 Md.App. 716, 717-19 , 420 A.2d 1017 (1980), cert. denied, 289 Md. 739 (1981). That is the case here.

It may not seriously be contended that a disclosure ordered by the court may be complied with, or not, at the discretion of the agency or that the question of directory or mandatory intent is to be determined on a category by category basis. Viewing the statute in this manner, and particularly in light of the use of the word “only” as a limitation upon the categories of persons to whom disclosure is permitted, leads inexorably to the conclusion that the disclosure is mandatory once it is determined that the person or agency by whom disclosure is sought has need of the information for a relevant purpose, as prescribed by the statute. A construction of the statute as directory only would, as we have intimated, render meaningless the requirement that such information be disclosed “under court order.” See § 6(b)(1). Applying this interpretation to the facts sub judice produces a clear result.

Appellant is entitled to the information in the records and reports in the Department of Social Services’ file by virtue of subsection 6(b)(4), not subsection 6(b)(1). Pursuant to that subsection, the extent of appellant’s entitlement is clear: disclosure of the information contained in reports and records concerning child ³⁵ abuse. This being so, the only basis for court intervention is to determine appellant’s entitlement and to ensure that the sources of the information are safeguarded; court intervention to determine the extent of the disclosure of the information is not only unwarranted, but not permitted. The court was asked to do more than determine appellant’s entitlement to disclosure; it was asked to determine what information was to be disclosed.

To the extent that the court went beyond determining appellant’s entitlement to disclosure, it erred 5 in its interpretation of the statute. 2. Appellant also challenges the propriety of remarks made by the trial judge during his opening statement to the jury. In order to assess the merit of this challenge, it is necessary to place the matter in procedural and factual context. Appellant waived opening statement at the beginning of trial, preferring to address the jury after the State’s case had been completed.

During his opening statement, the following occurred: MR. THOMPSON: [Defense counsel] One thing we’ve got here, as in almost every state I know of in the United States, is the adversary system, where the State is representing the interests of the community, ... so their job, the State’s job, is to put on evidence that would favor a conviction. MR. KEMP [Assistant State’s Attorney]: Your Honor, I object to that remark.

The State puts on evidence— THE COURT: I'll sustain that. MR. THOMPSON: They are advocates. MR.

KEMP: Your Honor— THE COURT: It is not the obligation of the State. The State has an obligation to be fair and impartial and ³⁶ put on the evidence on which they submit to the jury, and the jury determines whether a person is guilty or not. MR. THOMPSON: Your Honor, the State is an advocate.

THE COURT: I’ve already ruled. Continue to make your speech. MR. THOMPSON: Your Honor, I have to approach the bench.

THE COURT: So what is new? Let’s get up here. (Emphasis added) At the bench conference the following colloquy occurred: THE COURT: That was not a correct statement. MR.

KEMP: That is not a proper statement. THE COURT: Let him make his opening