Scott v. State

Moore, J., delivered the opinion of the Court. Wilner, J., concurs and filed a concurring opinion at page 328 infra. ³²⁴ This appeal concerns both the guilt stage and the penalty stage of the trial of Joseph H. Scott, a/k/a Rozette Waters, on an indictment for the commission of a sexual offense in the first degree in violation of Article 27, Section 464 of the Maryland Code. After a bench trial in the Criminal Court of Baltimore (Arabian, J.), appellant was found guilty and sentenced to a term of 40 years. He presents three questions: “1.

If the only credible evidence of the victim’s age indicated he was 14 at the time of the incident resulting in criminal charges, did the State fail to prove an essential element of the crime of committing a sexual offense with a person under the age of 14? 2. If the Court’s sentence was influenced by facts not made known to Appellant or his counsel, was Appellant denied due process of law? 3. If the Court bases a conviction on corroborating testimony of a prosecuting witness, which corroborating testimony was not adduced at trial, was the conviction clearly erroneous?” I The specific offense involved was sodomy, alleged to have occurred on February 16, 1978. The victim, Michael McDougald, was a young boy.

Appellant, at the time of the alleged offense, was 26. Article 27, Section 464 then provided that a person was guilty of a sexual offense in the first degree if he engaged in a sexual act: “(2) With another person who is under 14 years of age and the person performing the act is at least 4 or more years older than the victim.” 1 ³²⁵ Called as the State’s first witness, Michael McDougald stated that he was 14 years old at the time of trial, July 21, 1978, and that his birthday was Labor Day, September 5. The boy’s age, upon the basis of his testimony, if accurate, would have to have been 14 at the time of the alleged commission of the offense. Since the age of the victim is an essential element of the crime, appellant argues that his conviction cannot be sustained.

The victim’s response to the inquiry concerning his age, on direct examination, was not the only evidence presented on this issue. He also identified his parents as being Ann Austin, his mother, and Ernest Hewlett, his father. Michael’s mother testified and said she was 26 years of age and that her son was born on “September 5,1967 or 65.” A birth certificate was received in evidence, over objection, bearing the name, “Michael Eric McDougald” and disclosing the following: 1. Date of birth September 5, 1965 2.

Father of child Ernest José Hewlett 3. Mother of child Annie McDougald 4. Mother’s age 14 years Appellant contends that the birth certificate — which we believe to be the most probative evidence of the victim’s age — was inadmissible because “no link or connection was established between it and the prosecuting witness” or, in other words, relevancy was not shown. 2 Such a contention is patently absurd. As conceded by appellant, the birth certificate is a public record and no witness was needed to introduce it.

Md. [Cts. & Jud. Proc.] Code Ann. § 10-204 (1974). The name was that of the victim. Furthermore, the parents’ names on the certificate corresponded with those given by the victim.

As to the year of birth, we think it is a fair interpretation of Ann McDougald's testimony that she was correcting herself out loud when she said 1967, or ’65. This construction is consistent with the date of birth on the ³²⁶ certificate in addition to the disclosure on the certificate that she was 14 when the victim was born. Appellant also argues that the State impermissibly impeached the victim when it questioned his mother as to his age and introduced the birth certificate. We disagree.

The State is not precluded from presenting testimony which may be inconsistent. In such a situation, it is for the trier of fact to weigh the testimony. See Green v. State, 243 Md. 75, 80 , 220 A.2d 131, 134 (1966). Here, the State was not bound by Michael’s testimony concerning his age nor precluded from presenting the more reliable evidence on the issue; and that evidence was sufficient to enable the finder of fact to conclude that Michael was less than 14 years of age when the crime was committed.

II At sentencing, the following colloquy occurred between appellant’s counsel and the court: “[COUNSEL]: Your Honor, I have read the medical, and I have also read the presentence report THE COURT: Medical Report? The defendant was negative. I may add for your information that Mr. Conti made a special appointment to come to see me and suggested the maximum sentence. [COUNSEL]: Well, that is indeed information to me, because it didn’t appear on the medical report. I don’t know whether it was Mr. Conti speaking or for whom was he speaking?

THE COURT: The Medical Office, Dr. Kniffen. 3 [COUNSEL]: Because the report as submitted — the last sentence, the second paragraph, it says that it is felt that he deserves time in prison. I won’t ³²⁷ argue with that, but I’m saying now to Her Honor that he’s suggesting the maximum, and it would seem to me that it could just very easily have been