State v. Deleon

⁶⁴⁸ JAMES R. EYLER, Judge. On December 20,1999, David Deleon, appellee, was charged with child sexual abuse and related charges in the District Court of Maryland for Frederick County. The alleged victim was a nine-year-old child, Katie W. (Katie).

On February 15, 2000, appellee was charged with similar offenses against Katie’s seven-year-old sister, Amanda W. (Amanda). The alleged victims were the grandchildren of appellee’s then girlfriend, Rosemary P. At the time of the alleged incidents, the alleged victims, their mother, and Rosemary P. all lived with appellee in his residence. On February 17, 2000, a criminal information was filed in the Circuit Court for Frederick County with respect to the alleged abuse of Katie, and on April 12, 2000, a criminal information was filed in circuit court with respect to the alleged abuse of Amanda.

On June 16, 2000, the cases were consolidated. On November 27, 2000, the State filed in circuit court an indictment that had been returned by a grand jury on November 22. On December 5, the State nol prossed the charges in district court. The cases were scheduled for jury trial in circuit court on May 21, 2001.

On February 15, the court began hearing preliminary motions. On May 21, the Staté nol prossed the charges relating to Amanda. On May 21 and May 22, hearings and various discussions took place in chambers between the court and counsel. Based on information that became known at that time, appellee filed a motion to dismiss the indictment, alleging prosecutorial misconduct.

On May 23, 2001, the court held a hearing, and on May 29, 2001, the court granted the motion. The State noted an appeal and raises as the sole issue whether the circuit court erred in granting the motion. We shall reverse the judgment of the circuit court. Factual Background The following background information reflects our review of the transcripts contained in the record.

There are no transcripts of the grand jury proceedings. Additionally, from time ⁶⁴⁹ to time, various discussions took place between counsel and the court, the content of which is not reflected in the record. In this summary, we will set forth only those matters pertinent to the issue before us. On March 21, 2000, Dr. Nerita Estampador-Ulep, a physician with the Montgomery County Department of Health and Human Services, conducted interviews and examined the alleged victims.

Dr. Estampador-Ulep’s examination revealed no physical signs of abuse with respect to either child. The examination of Katie revealed pustule lesions, which Dr. Es-tampador-Ulep swabbed and sent to American Medical Laboratories for testing. Dr. Estampador-Ulep also took a blood sample from Katie and sent it to the same lab for testing. According to Dr. Estampador Ulep’s records, the purpose of the tests was to “rule out herpetic lesions.” Subsequently, the State obtained a blood sample from ap-pellee and sent it to the same laboratory to test for herpes virus.

A lab report dated July 6, 2000, indicates that the test was positive for both HSV-I and HSV-II (Herpes Simplex Virus) antibodies. Type I herpes simplex virus is generally marked by sores around the mouth or nose, and type II herpes simplex virus is marked by lesions on the genitalia. Stedman’s Medical Dictionary 709 (25th ed.1990). The July 6, 2000, lab report indicates that appellee’s HSV-I antibody reading was 2.99 and his HSV-II antibody reading was 4.19.

The report sets forth the following reference ranges for both HSV-I and HSV-II: Less than 0.91 0.91-1.09 Greater than 1.09 No detectable antibodies Equivocal Positive On December 22, 2000, appellee filed a motion for an order requiring the State to provide a transcript of the grand jury testimony for purposes of cross-examination at trial. A transcript of a later proceeding reveals that the motion was denied without a hearing, but we were unable to locate an order or a docket entry. In any event, as previously noted, the record does not contain a transcript of the grand jury proceedings. ⁶⁵⁰ On February 15, 2001, the court held a hearing on the following motions filed by appellee: (1) motion to dismiss on the ground that his right to a speedy trial had been violated, (2) motion to sever the cases for trial, and (3) motion for reduction of bond. Subsequently, the court denied the motion to dismiss, and the consolidation became moot because the State nol prossed the charges relating to Amanda.

With respect to the motion to reduce bond, the transcript reveals that appellee had been incarcerated since December, 1999, on a $300,000 bond. The court ruled that it would accept a pledge of the deed to appellee’s residence, if it were free of encumbrances. The record indicates appellee was subsequently released from custody. During the course of the argument at the hearing, to the extent pertinent here, the prosecutor, in arguing the strength of the State’s case, argued that the State had medical evidence that Katie had contracted genital herpes from appellee.

On May 9 and 10, 2001, the court held another motions hearing. The purpose of this hearing was to determine if Dr. Estampador-Ulep, an expected State’s witness, could testify to statements made to her by the alleged victims. The State had previously filed a notice of intention to use out-of-court statements by sexual offense victims, pursuant to Maryland Code, art. 27, section 775. 1 The prosecutor argued that Dr. Estampador-Ulep was not a treating physician, and therefore, while the statements were not admissible as a hearsay exception, they were admissible under section 775. At the hearing, Dr. Estampador-Ulep testified in detail with respect to the time, place, and circumstances of all statements made to her by the alleged victims.

During the course of the testimony, she stated that she found no physical injury during her examination of the children. She did find pustule lesions in Katie which she described as a “blister.” She scraped the ⁶⁵¹ lesions for a culture and did “antibodies.” Dr. Estampador-Ulep further testified that Katie had type I herpes, stated this was usually the genital type, based on the presence of lesions, and observed that the “antibody was way up.” The testimony and the argument of counsel concentrated, however, on the statements by the alleged victims and whether they were trustworthy. In ruling, the court observed that everyone seemed to agree that Katie had genital herpes but noted there was no physical evidence of abuse in the record other than lesions, which neither corroborated nor excluded the alleged abuse. The court ruled that the out-of-court statements of both alleged victims were not reliable and would not be admissible at trial.

On May 21 and 22, 2001, the court held further proceedings on the record. There had been a plea offer by the State, and appellee was voir dired to establish that he understood the offer. The prosecutor represented that, if the offer were rejected, the State would go forward only as to Katie because it was the stronger case “with the herpes and everything.” Appellee rejected the plea, and the State nol prossed the charges as to Amanda. The prosecutor raised the possibility of stipulations with respect to laboratory tests.

It is apparent from the transcript that there had been prior discussions, but the content of those discussions is not reflected in the record. It is clear that at some prior point in time, Rosemary P. had turned over to the State a bed comforter that was then sent to the Maryland State Police Crime Laboratory for testing. As of May 21, according to the record, defense counsel had the results of the blood tests and the comforter test but did not have the results of any culture. Defense counsel stated that he would not stipulate to the result of the test on the comforter, nor would he stipulate to the result of the blood test on Katie.

The prosecutor explained that he was only seeking a stipulation as to chain of custody with respect to the blood and the comforter. With respect to the blood test, the prosecutor further explained that he understood the defense did not challenge the findings but did challenge the interpretation of them. The ⁶⁵² prosecutor observed that defense counsel could cross-examine the lab representative (expected to be Dr. Nathan Sherman) when the State called him as a witness. Defense counsel stated he had a basic problem with the reliability, and thus admissibility, of the tests and would not stipulate to them.

Defense counsel questioned the reliability of blood testing for herpes, suggesting instead that there should be a “scraping” taken from a herpetic lesion because that was the more reliable way to test for herpes. Ultimately, defense counsel agreed to stipulate to the chain of custody with respect to the blood test and the test on the comforter. The court agreed to hold a hearing on the question of whether the form of testing, in both instances, was reliable and generally accepted. The court, prior to holding that hearing, heard argument on the State’s position that Katie’s out-of-court statements to Dr. Poirer, an alleged treating physician, were admissible through Dr. Poirer pursuant to Rule 5-803(b)(4).

Defense counsel opposed the State’s request and asserted that Dr. Poirer was not a treating physician but rather saw Katie at the request of a detective. The prosecutor also argued that Katie’s out-of-court statements to detectives were admissible as prompt complaints of sexual assault pursuant to Rule 5 802.1(d). Defense counsel also opposed that request. The court deferred ruling until trial.

There was discussion about the admissibility of a photograph depicting appellee in a robe that matched a description given by Katie. The court did not rule on that issue. Finally, the parties argued appellee’s request that the jury visit appellee’s residence. The court did not rule then, but at a later time, after the court visited the scene, it granted appellee’s request.

On the afternoon of May 21, the court was ready to proceed with the hearing on the reliability of the form of testing performed on the blood and the comforter. No witnesses were present, and the prosecutor proffered that the lab representative would testify that the blood test was generally accepted as a form of testing for herpes and that the result of ⁶⁵³ the test on Katie was “equivocal.” The prosecutor stated that the defense position that “scrapings” were the preferred method of testing and ascertaining the meaning of “equivocal” were matters that went to the weight of the evidence, not its admissibility. The hearing continued on May 22. Cathryn Braunstein, a chemist with the Maryland State Police Crime Laboratory, testified about the test performed on the comforter.

Counsel conducted direct and cross-examination with respect to the reliability of the test. The court, over objection of both parties, asked the witness questions about the results of the test. Defense counsel followed up with further questions. In response to questions from the court and defense counsel, the witness stated that the comforter contained a stain consisting of semen and non-semen.

A DNA test revealed the semen was likely from appellee, but the non-semen consisted of a mixture of male-female substance. The female portion predominated and was from two or three females, although none of it was from the alleged victims. The court ruled that the test on the comforter did meet the criteria for being scientifically reliable, and it would not be excluded on that basis. In the afternoon of May 22, the parties again discussed the need for a similar hearing with respect to the blood test.

In the course of that discussion, the prosecutor stated: Here’s another problem, Your Honor, with regard to that. There was a culture taken from the child. It was never requested to be independently tested by the defense. It does exist....

We have a piece of evidence in this case that hasn’t been tested, it would appear. So, Your Honor, we need to verify, I guess, that the culture has been tested, if all of a sudden now — I mean the motion to suppress was withdrawn. 1 had no idea that herpes testing via blood would be challenged. It’s just an acceptable form of testing. If he’s now saying the only way to test is to test the culture and you’re going to make that ruling, I ⁶⁵⁴ don’t know what to do.

I mean should we go get the culture tested if it hasn’t been tested already? THE COURT: Has it been tested? PROSECUTOR: We have no first-hand knowledge that it’s been tested. There’s nothing — this was never brought up until, I guess, really until last Friday, or even really this morning, I guess.

THE COURT: Well, that’s true, but you certainly know whether or not it’s been tested because if it was tested and negative, that would be exculpatory. PROSECUTOR: Absolutely. We have no reports that have been provided to us, nor do we have — nor prior to today have we ever inquired about that because we had a positive blood test. THE COURT: And so what do they tell you now that you inquire?

What was the testing on the swab? PROSECUTOR: We don’t — they believe that it was tested. No one knows for sure whether it was positive or negative, but what we should probably do is determine what the test was first so we can determine whether it was positive or negative. Otherwise, we may be proceeding with a piece of exculpatory evidence or a piece of inculpatory evidence.

But the defense never requested that it be tested, and the State, if it was tested, no one ever provided us, via our subpoenas for all the records, with the test, and we didn’t even look into whether it was tested until today at noon. Based on representations made by counsel for the parties, it appears that, prior to the afternoon of May 22, counsel had only a one page report from American Medical Laboratories. The report described the results of the blood test. On the afternoon of May 22, the State received by facsimile a five-page American Medical Laboratories report from Dr. Estam-pador Ulep’s office.

The report, dated March 22 and March 23, 2000, showed that the culture from Katie’s scraping was negative. The court proceeded with the hearing to determine the reliability of the blood test. The State called a representative ⁶⁵⁵ from American Medical Laboratories, Ur. Charles Repeddy, to testify.

The court questioned the witness about the results of Katie’s blood test. The witness testified that the test showed there were antibodies present to HSV-I, but it did not show that Katie was positive for HSV-II. The witness further testified that HSV-II is genital herpes. Despite this testimony, the prosecutor advised the court that he planned to call Dr. Repeddy at trial, even though Dr. Repeddy would testify that Katie only had HSV-I, explaining that the witness would also testify that type I could be sexually transmitted.

The court pointed out that the witness testified that type I could be transmitted through a number of means. In response, the prosecutor pointed out that the witness could testify to the level of antibodies present in Katie even if he could not testify that Katie had genital herpes. The circuit court ruled that the blood test would not be admissible in evidence because it was too equivocal. The coui't further ruled that Dr. Repeddy’s testimony would not be admissible because he could not express an opinion that Katie had genital herpes, pointing out that, in fact, he testified that the blood test was essentially negative.

The court and counsel continued to discuss what the State intended to do at trial. The prosecutor indicated that Dr. Estampador-Ulep could testify with respect to the presence of lesions. The court responded that Dr. Estampador-Ulep could not link the lesions to anything because the culture was negative. The prosecutor then stated he probably would not call her except possibly in rebuttal.

Appellee then filed the motion to dismiss, which is now before us. On May 23, 2001, the court held a hearing on that motion. Appellee argued that the State (1) intentionally withheld exculpatory evidence, (2) misrepresented that Katie had tested positive for genital herpes to the grand jury, the court, and defense counsel, and (3) acted inappropriately in another case in which appellee was involved. With respect to the concealment and misrepresentation issues, the prosecutor asserted that Dr. Estampador-Ulep had not told him about the ⁶⁵⁶ culture result, and he expected her to testify that Katie had genital herpes and that it had been communicated by appellee.

He explained that when he called Dr. Repeddy to testify, he thought it was to establish the testing procedure, not to interpret the results. He further explained that he had earlier spoken to Dr. Sherman at American Medical Laboratories, and he understood from him that the test results were consistent with someone who had been exposed to HSV-II virus. Finally, the prosecutor asserted that when he learned about the result of the culture, he contacted Dr. Estampador-Ulep, who advised that the culture was negative because she had not taken a proper specimen, explaining that she did not “burst the blister or scrape it off.” With respect to the related case issue, the court received testimony. The testimony revealed that, prior to the allegations of child abuse, appellee had required the children, their mother, and Rosemary P. to leave his residence.

Appellee did so because he believed Rosemary P. had forged checks in October, 1999, drawn on his bank. Appellee initiated charges in district court. On May 5, 2000, an investigator for. the State’s Attorney’s Office spoke to appellee while appellee was in jail awaiting trial on the charges involved in this case. The investigator testified that he did not know why appellee was incarcerated and did not know that the parties in the forgery case were involved in this case.

He stated that he did not discuss the child abuse allegations with appellee. The prosecutor in the forgery case testified that she knew appellee had a pending criminal charge but did not know the facts of this case at the time that she was prosecuting the forgery case, and she did not know the two cases were related. Rosemary P.’s defense in the forgery case was that appellee had given her permission to draw checks on appellee’s account. She was found not guilty on the forgery charges.

Appellee argued that the State failed to properly investigate and prosecute the forgery charge. According to appellee, had there been a conviction of Rosemary P., it would have affected her credibility as a witness in this case. ⁶⁵⁷ We have reviewed the exhibits introduced into evidence at the various hearings. The exhibits include the lab reports. We note that a report dated March 22, 2000, shows that Katie’s culture was negative and shows a preliminary blood test reading of 3.33 HSV-I antibodies and 0.99 HSV-II antibodies.

A “final report” dated March 23, 2000, shows 0.56 HSV-I antibodies and 0.88 HSV-II antibodies and again a negative culture. The circuit court dictated a lengthy and thorough opinion that covers 38 pages in the transcript. The court began as follows: A defendant’s ability to exercise his constitutional rights must not be chilled by heavy-handed prosecutorial conduct. Rather than acting as a minister of justice, [the prosecutor] . .. has demonstrated a modus operandi in this case that might be termed ‘by hook or crook.’ The court has considered all improprieties connected with this case, including multiple instances of prosecutorial misconduct that demand dismissal with prejudice.

The cumulative effect of these improprieties operate to outweigh any society interest and prosecuting defendants in favor of the interest of the defendant and the public in the fair administration of justice. The court then considered the claim that the State had withheld the exculpatory test result performed by the laboratory. The court noted that appellee had filed discovery requests. After discussing discovery rules 4-261 (a), 4-263(b)(4), and 4-263(g); Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963); and the responsibilities of a prosecutor under rules 3.3, 3.4, and 3.8 of the Rules of Professional Conduct; the court concluded that the State had the duty to disclose the results of the culture.

The court further indicated that Dr. Estampador-Ulep had requested the test and was acting on the State’s behalf. The court further stated that, if the prosecutor did not have actual knowledge of the test result, the prosecutor had a duty to learn, observing that deliberate concealment or bad faith was not required in order to justify court intervention. The court also considered whether appellee could have obtained the culture result from ⁶⁵⁸ the laboratory but observed that the prosecutor had initially represented that the swab had not been cultured and also represented that the laboratory test results were positive for genital herpes. 2 The court next considered the claim that the State falsely represented that the laboratory test results were positive for genital herpes and a witness would so testify. The court reviewed the discussions between counsel and the court during the several day period prior to May 29 and summarized them as follows.

The prosecutor had, on several occasions, represented that the laboratory test results were positive for genital herpes, and that a representative from the laboratory would testify that Katie had genital herpes. More specifically, on May 21, the prosecutor requested defense counsel to stipulate to the admission into evidence of the blood test result and the results of another test on a comforter that had been given to the State by Rosemary P. After some discussion, the defense refused to stipulate. On May 22, a witness testified that the sample taken from the comforter consisted of semen which matched that of appellee and a DNA mixture that was primarily female. The female portion did not come from either of the alleged victims.

With respect to the blood test, the prosecutor advised that he could not produce a witness prior to trial, but later stated he could produce someone that afternoon. The court observed: At that time [the prosecutor] noted that there was a problem in regard to the culture that had been taken from the child. Previously, when requested as to whether or not that culture had been tested, he stated that it had not. A culture was not taken.

On Tuesday afternoon [May 22] he said a culture has been taken from the child. It does exist. It has not been tested. ⁶⁵⁹ After further discussion, the prosecutor indicated that he needed to verify if the culture had been tested, stating that his office had no record and the subject had never come up. The court then referenced the testimony of Dr. Repeddy, mentioned above, who testified that the blood test was essentially negative.

Following its review, the court observed: “So, how anyone could proffer that any scientist from this laboratory would testify that there was the presence of HSV-II [genital herpes] is simply beyond my understanding.” The court considered appellee’s allegation that the State had deliberately misled the grand jury. The court observed that