Stabb v. State

HARRELL, J. This case concerns the propriety of an “anti-CSI effect,” or “no duty,” jury instruction, given before closing arguments in a criminal trial, that instructed the jury that there is “no legal ⁴⁵⁷ requirement that the State utilize any specific investigative technique or scientific test to prove its case.” We addressed a similar issue recently in Atkins v. State, 421 Md. 434 , 26 A.3d 979 (2011), and revisit it here primarily to provide additional guidance to Bench and Bar when confronted with requests (usually from the State) for this (or a similar) type of jury instruction seeking to avert the purported “CSI effect.” Since filing our opinion in Atkins , there have been published or made available no additional empirical studies that convince us that a “CSI effect” even exists, and, if it does, whether the effect is likely to influence unduly the final verdict. Although we continue to believe that “anti-CSI effect” or “no duty” instructions are not per se improper necessarily, we conclude, for reasons that we shall explain, that the trial court, in the context of the present case, abused its discretion in giving an “anti-CSI effect” jury instruction. Accordingly, we shall reverse the judgment of the Court of Special Appeals and direct remand of the case to the Circuit Court for Wicomico County for a new trial. I. Factual and Procedural Background Kenneth Gerald Stabb, Petitioner, was convicted by a jury, sitting in the Circuit Court for Wicomico County, of one count of third-degree sexual assault and one count of second-degree assault.

In the State’s case-in-chief at Stabb’s 27 April 2009 trial, eight-year-old Kaylen J., who was seven years old at the time of the assault, testified that, on 17 August 2008, she was sitting on the hood of her mother’s van, parked in front of the family home in Salisbury, Maryland, when Stabb touched her “private” with his hand, inside of her underwear. Kaylen J. continued that Stabb told her, “If you tell anyone I’ll kill you.” Kaylen J. related that her mother, Melissa R., ran out of the house, took Kaylen J. off the hood of the van, brought her inside, and someone “called the cops.” Before the incident, Kaylen J. said that she liked Stabb, and thought he was nice and funny. Officer Jonas Berry testified for the State that he responded to Kaylen J.’s family home at 11:40 p.m. (based on a ⁴⁵⁸ telephone complaint), spoke with Melissa R., and interviewed Kaylen J. briefly.

He observed that Kaylen J. appeared “offset, skittish, very introverted,” with shaking hands and pulling nervously on her nightgown during the interview. Kaylen J. told Officer Barry that Stabb “touched her pee pee” on the inside of her underwear. Kaylen J. began to cry, so Barry ended the interview and went looking for Stabb. He found Stabb asleep in his home nearby and informed him that he was under arrest for a sexual assault on Kaylen J. Stabb professed his innocence, but was taken into custody.

Officer Barry referred Kaylen J. to the Child Advocacy Center (“CAC”), but, because there was no reported penetration during the assault, he did not refer her for medical treatment. The State called next Phillip R., Kaylen J.’s uncle, who testified that he saw Stabb outside the house on the evening of the incident. He saw Kaylen J. greet Stabb with a hug, which was not unusual, and later saw Kaylen J., on the hood of the van, with Stabb’s arms around her closely. When Kaylen J. went into the house, she looked scared.

He thought Stabb had been drinking, based on his actions and the smell of alcohol on his breath. Heather Sullivan, a licensed graduate social worker employed by the CAC, was called as a State’s witness. Sullivan interviewed Kaylen J. at the CAC on 21 August 2008. A video and audio recording of the interview was made, and portions of it were replayed for the jury.

In the recording, Kaylen J. identified parts of the human body on drawings and on dolls, and demonstrated on them where Stabb touched her. Sullivan was cross-examined as to why she did not refer Kaylen J. for a Sexual Assault Forensics Exam (“SAFE”). Sullivan responded that a SAFE is done to treat injuries and determine whether there is any physical evidence of sexual assault. Kaylen J. was not referred for a SAFE because she did not disclose that penetration occurred.

Defense counsel pressed Sullivan about the potential for obtaining any kind of physical evidence had a SAFE been performed on Kaylen J. Sullivan responded that there was no possibility of the continued existence on 21 August 2008 of physical evidence as it had ⁴⁵⁹ been several days between the assault and Kaylen J.’s interview at the CAC. By that time, Kaylen J. had changed clothing and bathed. Moreover, Sullivan opined that it was not in Kaylen J.’s best interest to undergo a full pelvic exam, in the absence of previous disclosure of penetration. The State rested its case-in-chief at this point.

Defense counsel requested dismissal of the case, which was denied. The jury was excused for lunch and the trial judge, defense attorney, and prosecutor addressed administrative matters, including the verdict sheet and proposed jury instructions. The trial judge anticipated argument over the State’s requested lack of scientific evidence jury instruction (presumably generated by the exchanges over the absence of a SAFE of Kaylen J. and on what physical evidence might have been obtained had such been carried out), and questioned defense counsel as to whether she had reviewed the pertinent case law. Defense counsel confirmed an appreciation for Evans v. State, 174 Md.App. 549 , 922 A.2d 620 , cert. denied, 400 Md. 648 , 929 A.2d 890 (2007).

At that point, the jury returned, and trial resumed. Melissa R. was called as the first witness by the defense. She testified that, on August 17, she saw Stabb leaning over and whispering to her daughter (then seated on the van), so she ran out of the house, took Kaylen J. from the hood of the van, and brought her inside. Kaylen J. had a “look of pure horror.” Melissa R. also said that Kaylen J. told her that Stabb told her to “spread her legs, then spread them wider,” and that she was scared.

Melissa R. acknowledged that she had an intimate relationship with Stabb (which she did not disclose to the investigating police) which began to sour shortly before the assault of Kaylen J. After learning of the assault, Melissa R. went to a nearby convenience store to tell a friend about the incident. The friend instructed Melissa R. to call the police, which she did. The defense then called Jane R., Kaylen J.’s grandmother. Jane R. had been in her bedroom of the family home at the time of the alleged assault.

She testified that she saw Stabb ⁴⁶⁰ leaning over Kaylen J., seated on the hood of the van, with her nightgown pulled over her knees, and looking frightened. Jane R. urged Melissa R. to retrieve Kaylen J. immediately. Several weeks before the assault, Jane R. sent Stabb a letter stating that Kaylen J. was upset by Melissa R. and Stabb spending so much time together and urging Stabb to “back off,” but not to show the letter to Melissa R. Stabb shared the letter with Melissa R. anyway, shortly after it was received. During a recess, the trial judge, the prosecutor, and defense counsel discussed jury instructions again.

The one proposed by the State, at issue in this case, provided: During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not use a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof. You should consider all the evidence or lack of evidence in deciding whether a defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case.

Your responsibility as jurors is to determine whether the State has proven based upon all the evidence the defendant’s guilty beyond a reasonable doubt. [Emphasis added.] Stabb’s attorney objected to the instruction, arguing that the facts of Stabb’s case were distinguishable from those in Evans, 174 Md.App. at 549 , 922 A.2d at 620 , where the Court of Special Appeals approved the use of the same jury instruction: Defense Counsel: I would incorporate all of the arguments that the defense in [Evans ] made as far as the shift — the burden shifting. I would point out that its not a pattern instruction, and that maybe one day could be, but it’s not now. And given the facts of this case, and how the facts were generated, in that they were not generated by cross-examination, I would ask the court to just give the pattern instructions as to evidence, direct and circumstantial evidence, and reasonable doubt and not to give any specialized instruction in this case.... [Emphasis added.] ⁴⁶¹ The Court: All right your objection is noted. Did [the State] want to be heard?

The State: Your Honor,.... It will nonetheless be a vigorous argument that [Defense Counsel] makes in closing. The State believes that it’s an appropriate instruction, and I would ask the Court to give it. Defense Counsel: If the Court determines after I gave my closing argument that I gave a vigorous — then I would ask the Court to consider it, but to give it prior to the closing argument and without making any conclusion that I made a robust or vehement argument and basically harped on that fact, I would say its improper.

With the jury back in the box, defense counsel called Robin Stabb, Stabb’s ex-wife, as an alibi witness. Ms. Stabb testified that she was with Stabb on 18 August 2008 from approximately 11:00 p.m. (when she picked him up in her van) to 11:30 p.m. (when she dropped him off at his house).

Defense Counsel then called Stabb, who testified that, on the evening of 17 August 2008, he saw Melissa R. outside the convenience store near her house, bought her cigarettes and beer, and upon noticing the ex-Mrs. Stabb sitting in her van across the street, left the store and entered Ms. Stabb’s van. Stabb continued that thereafter he left Ms. Stabb’s van, walked directly to his house, and fell asleep. Stabb also claimed that, during another interview by a policeman named Detective Seichepine, the detective told him that his DNA was found on Kaylen J. Stabb responded to that revelation by asserting that his DNA was “not on that child.” The State called Detective Seichepine as a rebuttal witness. On cross-examination by defense counsel, Detective Seichepine admitted that he told falsely Stabb that an exam had been performed on Kaylen J. On redirect examination, the State questioned the detective whether a SAFE would have yielded any medical evidence, to which the detective responded that the possibility was “very minimal.” When questioned further by the State, Seichepine testified specifically that he had never heard of anyone obtaining fingerprints from a ⁴⁶² SAFE.

During recross-examination, the detective claimed that DNA evidence could be found in skin-to-skin contact. After the defense rested and before closing arguments, the trial judge gave the jury its instructions, including the scientific evidence instruction, supra, to which the Court noted defense counsel’s objection. In her closing argument, defense counsel focused heavily on the State’s reliance on a single child witness and the inconsistent recollections of the investigating officers and the State’s other witnesses. She also covered briefly the motive of Jane R. and Melissa R. to encourage Kaylen J. to implicate Stabb, the possibility of an alternative assailant, Stabb’s alibi witnesses, and the lack of physical evidence.

After almost two hours of deliberation, the jury returned a verdict of guilty on both of the counts with which Stabb was charged. At the 13 May 2009 sentencing hearing, after merging the convictions for sentencing purposes, the judge sentenced Stabb to eight years in prison, with all but four years suspended. On 13 May 2009, Stabb noted timely an appeal to the Court of Special Appeals. A panel of the intermediate appellate court, in an unreported opinion, concluded that, based on that court’s holding in Evans, 174 Md.App. at 549 , 922 A.2d at 620 , the jury instruction regarding scientific evidence was proper, affirming the judgment of the Circuit Court.

The Court of Special Appeals’s decision was filed prior to our decision in Atkins , which did not overrule explicitly the holding in Evans , but created a new basis for evaluating the giving of “anti-CSI effect” jury instructions. Also before we decided Atkins , Stabb filed a petition for writ of certiorari with this Court. We granted the petition, Stabb v. State, 418 Md. 397 , 15 A.3d 298 (2011), to consider the following question: Did the trial court err in instructing the jury that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case? Based on Atkins , we conclude that, although we remain persuaded that “anti-CSI effect” jury instructions are not improp ⁴⁶³ er per se, under the facts of this case, the trial court abused its discretion in providing essentially a preemptive jury instruction that there was “no legal requirement for the State to utilize any specific investigative technique or scientific test to prove its case.” Therefore, we reverse the judgment of the Court of Special Appeals and remand with instructions to remand further the case to the Circuit Court for Wicomico County for a new trial consistent with this opinion.

II

Discussion Article 21 of the Maryland Declaration of Rights 1 and the Sixth Amendment to the United States Constitution grant to criminal defendants the right to a fair trial, which includes a requirement that trial judges refrain from making statements that may influence improperly the jury. Butler v. State, 392 Md. 169, 192 , 896 A.2d 359, 373 (2006); see also Gore v. State, 309 Md. 203, 214 , 522 A.2d 1338, 1343 (1987) (stating that “it is generally improper for a trial judge to show his or her opinion of those matters upon which the jury will eventually pass”). Article 23 of the Maryland Declaration of Rights 2 states that “the Jury shall be the Judges of the Law, as well as of fact ...,” which limits the trial court from giving jury instructions that comment on evidence properly before ⁴⁶⁴ the jury. Gore, 309 Md. at 210 , 522 A.2d at 1341 .

Trial judges occupy a position of such authority in a court room that they “should be exceedingly careful in any remarks made ... during the progress of a trial, either in passing upon evidence or ruling upon prayers, and should carefully refrain, either directly or indirectly, from giving expression to an opinion upon the existence or not of any fact, which should be left to the finding of the jury.... ” Gore, 309 Md. at 212 , 522 A.2d at 1342 (quoting United Rys. & Elec. Co. v. Carneal, 110 Md. 211, 232-33 , 72 A. 771, 775 (1909)). The proper role of the trial court in delivering jury instructions is to “aid the jury in clearly understanding the case, to provide guidance for the jury’s deliberations, and to help the jury arrive at a correct verdict.” Chambers v. State, 337 Md. 44, 48 , 650 A.2d 727, 729 (1994). Maryland Rule 4-325(c) guides trial courts in delivering jury instructions: How given.

The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. We said in Thompson v. State, 393 Md. 291, 302-303 , 901 A.2d 208, 214 (2006) (quoting Ware v. State, 348 Md. 19, 58 , 702 A.2d 699, 718 (1997)), that Rule 4-325(c) “requir[es] the trial court to give a requested instruction under the following circumstances: (1) the requested instruction is a correct statement of law; (2) the requested instruction is applicable under the facts of the case; and (3) the content of the requested instruction was not fairly covered elsewhere in the jury instruction actually given.” An improper, objectionable instruction includes one that serves to relieve the state of its burden to prove a defendant’s guilt beyond a reasonable doubt.

State v. Evans, 278 Md. 197, 207 , 362 A.2d 629, 635 (1976). In order to preserve for appeal properly, an objection to a particular jury ⁴⁶⁵ instruction, a party must make timely an objection, after the instruction is given, that states the particular grounds of the objection. Gore, 309 Md. at 207 , 522 A.2d at 1339 (explicating Md. Rule 4-325(e)). The timing of the objection is important because it should give the trial court an opportunity to correct the instruction in light of a well-founded objection.

Gore, 309 Md. at 209 , 522 A.2d at 1340 (citing Bennett v. State, 230 Md. 562, 568 , 188 A.2d 142, 145 (1962)). A Maryland appellate court reviews a trial court’s refusal or giving of a jury instruction under the abuse of discretion standard. Gunning v. State, 347 Md. 332, 351 , 701 A.2d 374, 383 (1997). We stated in In re Don Mc., 344 Md. 194, 201 , 686 A.2d 269, 272 (1996) (quoting State ex rel.

Carroll v. Junker, 79 Wash.2d 12 , 482 P.2d 775, 784 (1971)): Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Where the decision or order is a matter of discretion it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. We consider the following factors when deciding whether a trial court abused its discretion in deciding whether to grant or deny a request for a particular jury instruction: (1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given. Gunning, 347 Md. at 348 , 701 A.2d at 381 (citing Grandison v. State, 341 Md. 175, 211 , 670 A.2d 398, 415 (1995), cert. denied, 519 U.S. 1027 , 117 S.Ct. 581 , 136 L.Ed.2d 512 (1996)).

In addition