Stoddard v. State

RAKER, J. Erik Stoddard, petitioner, was convicted by a jury in the Circuit Court for Baltimore City of child abuse resulting in the death of a child and manslaughter. In this appeal, he presents two questions to this Court, which we rephrase as follows: 1. Did the trial court err in requiring the petitioner either to testify prior to the completion of the defense case or to forfeit the right to testify? 2. Did the trial court err in admitting evidence of prior bad acts and a question implying that petitioner posed a threat to another child?

We shall hold that the trial court erred by placing an impermissible restriction on petitioner’s right against self-incrimination and infringing his right to due process when it required him to testify prior to the completion of the defense case or to forgo testifying at all. We shall nevertheless hold that this error was harmless under the circumstances of this case. We shall further hold that the trial court did not err in admitting the evidence in question. For the reasons stated herein, we shall affirm.

I. This case arises out of the death of three-year-old Calen DiRubbo on June 15, 2002. In connection with this death, petitioner has been tried three times by the Circuit Court for ⁴²⁵ Baltimore City for the charges of murder and child abuse resulting in death. The jury in petitioner’s first trial convicted him of second degree murder and child abuse resulting in death, but this Court reversed the conviction. See Stoddard v. State, 389 Md. 681 , 887 A.2d 564 (2005).

The jury in petitioner’s second trial convicted him of second degree murder and child abuse resulting in death, but the trial court granted petitioner’s motion for a new trial because the court determined that it had failed to ask a mandatory voir dire question. The jury in petitioner’s third trial convicted him of child abuse resulting in death and manslaughter, and the trial court sentenced him to a term of incarceration of consecutive sentences of thirty years and ten years. Petitioner appealed to the Court of Special Appeals, which affirmed in an unreported opinion. See Stoddard v. State, No. 1185, Sept. Term 2008 (filed August 24, 2010).

We granted Stoddard’s Petition for a Writ of Certiorari. Stoddard v. State, 417 Md. 125 , 9 A.3d 1 (2010). At the time of Calen DiRubbo’s death, petitioner was the boyfriend of Calen’s mother, Cheryl DiRubbo, and had lived with them for several months. On the day that Calen died, petitioner was the only adult watching her for much of the morning and parts of the afternoon.

Several other friends and relatives were present at the DiRubbo home and with Calen at various points during that day. Most notably, Nick Dieter, who was Cheryl DiRubbo’s estranged husband, the father of Calen’s half-brother, and the de facto stepfather of Calen, was watching her in the late afternoon and evening while petitioner and Cheryl went out on a date. At approximately 10:30 p.m., Dieter went to let two friends in the front door of the house, walked by the couch where he thought Calen was sleeping, and realized that she was dead. One of the friends immediately called 911, and following the instructions of the 911 operator Dieter attempted to perform CPR on Calen.

After the paramedics arrived, Dieter called Cheryl and petitioner to let them know what was happening, and Cheryl returned to the house. ⁴²⁶ The police arrested Dieter initially in connection with Cal-en’s death, as he was the only adult with her when she died, and they assumed that her fatal injuries were inflicted immediately prior to her death. The medical examiner, however, estimated later that the fatal injury was likely inflicted several hours prior to Calen’s death, during a period of time that corresponded to when she was under the care of petitioner. The medical examiner found that Calen’s cause of death was blunt force injuries, that she had bruises and scrapes on her body, and that she appeared to have been suffering from abuse for some time. The medical examiner noted that the fatal injury was a blow to the abdomen, resulting in two large tears to the bowel and internal bleeding.

Shortly after Calen’s death and under intense questioning, Cheryl DiRubbo gave a statement to the police that implicated petitioner. She indicated, among other things, that petitioner had physically abused her, that petitioner had physically abused Calen, and that she had spoken with petitioner on the phone around noon on the day of Calen’s death, while Calen was still in his exclusive care, and that he had told her then that Calen had just vomited. At trial, Cheryl DiRubbo recanted this statement, testifying that she had lied to the police, claiming that the police had pressured her into impheating petitioner, that she had been merely telling police what they wanted to hear, and that she did so out of fear of losing custody of her other child and out of a fear of Nick Dieter. The police officer who conducted the interview testified, among other things, that they did not pressure her to implicate anyone and that they were surprised when Cheryl DiRubbo implicated petitioner in her statement, because at the time of questioning they had Nick Dieter in custody for the killing and were expecting her to inculpate him.

Charles Phren, the husband of Cheryl DiRubbo’s mother and godfather to Calen, testified that he and Cheryl’s mother spoke to her immediately prior to her statement to the police, and that he told her that although she had failed to protect Calen in life, the least she could do for her in death was to tell ⁴²⁷ the police the truth. In response, Cheryl put her head down, began to cry, and made the statement implicating petitioner that she subsequently recanted at trial. Dieter testified, inter alia, that he had a very close and loving relationship with Calen, whom he regarded as his daughter. He stated that, although his marriage to Cheryl DiRubbo was over and he had moved out several months before Calen’s death, he still paid child support and regularly cared for both Calen and his son.

He explained that he had been unable to watch Calen on the day she died because he spent most of the day retrieving his car from an impound lot, having been arrested for driving under the influence of alcohol the previous night. When he was able to begin looking after Calen in the late afternoon, he said that she appeared to be sick and in pain. He stated that she had vomited, that he rinsed her off in the bathtub, and that he put her down on the couch to rest. Both Cheryl DiRubbo’s mother and sister testified that Dieter was very loving towards Calen, and that Calen had been a happy child for most of her life.

They also stated that in the months leading up to Calen’s death, when Dieter had moved out and petitioner lived in the house as Cheryl’s boyfriend, they noticed that bruises started appearing on Calen’s body, that she started to seem more withdrawn, and that, while she remained affectionate towards Dieter, Calen appeared to be afraid of petitioner. Mark DiRubbo, Cheryl’s father and Calen’s grandfather, was deceased at the time of petitioner’s third trial, but his testimony from a previous proceeding was read to the jury. His testimony explained that Dieter treated Calen like a daughter, and that Calen seemed fine and was playing when he left her in petitioner’s care at 11:45 a.m. on the day of her death. The friends who helped Dieter pick up his car from the impound lot, and who were being let into the house when Dieter discovered that Calen was dead, also testified.

Their testimony largely confirmed Dieter’s version of the events from that day, including the timing of his arrival at the house, ⁴²⁸ that Calen was sick when he arrived, and that he appeared to be stunned and devastated when he discovered that Calen was dead. Several witnesses testified for the defense. An employee of the impound lot and a private investigator testified as to the time of the lot’s closing and the amount of time it takes to drive to certain locations, in an attempt to raise doubts as to when Dieter arrived at the house. The paramedics that responded to the 911 call regarding Calen testified that Dieter’s demeanor was strange and unemotional and that his behavior was uncooperative.

The friend whose party petitioner and Cheryl DiRubbo were attending when they received Dieter’s call about Calen testified that petitioner became upset when he heard the news. Petitioner testified that he had never hit either Calen or Cheryl, but that he had seen both Cheryl and Dieter spank and hit Calen. He testified that Calen was not sick and did not vomit while she was in his care on the day of her death. Further, he stated that Dieter arrived at the house and took over watching the children much earlier in the day than Dieter claimed, and that Dieter was highly agitated when he arrived.

The final witness for the defense was a medical expert named Dr. Isidore Mihalakis. He testified that, based on his examination of the medical examiner’s report and slides, he believed that Calen could have survived up to twenty-four hours after receiving the internal injuries that killed her. He also testified that at the time Dieter claimed to have rinsed vomit off of Calen in the bathtub, her injuries would have made it very painful for her to move and that the bruises would likely have been visible. He acknowledged that he had investigated very few child homicides in his career as a medical examiner in Warren County, New Jersey.

Scheduling became complicated during trial because the trial court had committed to attend a judicial meeting out of state and because of the unavailability of the defense’s medical expert to testify before the trial break. Prior to trial, the parties anticipated that the case would be completed before ⁴²⁹ Wednesday, April 23, 2008, which was the first day of a three-day judicial conference that the trial judge was scheduled to attend. When on the afternoon of Tuesday April 22 it became clear that the trial would run longer than expected, the judge said she planned to adjourn proceedings until Monday, April 28. In an attempt to convince the court that the defense could finish presenting its case on Wednesday morning, counsel stated: “[DEFENSE COUNSEL]: Your Honor, first of all, I, just as far as mere scheduling, I have two more brief witnesses at this point in time.

I also, after those two very brief witnesses ..., I potentially have a longer witness who could take anywhere between two and two and a half hours. If we go late today, past six o’clock, then I believe we should conclude with everybody except for Dr. Mihalakis.” When the trial judge reminded the parties that she could not hold court on Wednesday April 23, defense counsel informed the court that the medical expert would not be available on Monday April 28 or Tuesday April 29. Defense counsel continued to press the court to permit Dr. Mihalakis to testify the next morning and asserted that “if we worked past six o’clock” Tuesday evening, all of the other defense witnesses could testify. “[DEFENSE COUNSEL]: I have a total of four more witnesses to call. One witness, Dr. Mihalakis, who is available tomorrow morning and the following Wednesday!,] will take about an hour.

Two of my witnesses will be very short, but one of my witness, I believe based on prior testimony, would take probably a good, maybe as much as two and a half hours.” The State suggested that they could “knock out the long witness” that evening, and hear testimony by the expert and the two brief witnesses the next day. But when the court was adamant that it could not sit on Wednesday, defense counsel requested that the trial be continued until Wednesday April 30. The State objected and argued that testimony should resume on Monday April 28. Over the State’s objection, the ⁴³⁰ circuit court agreed to hear the defense’s remaining witnesses that evening and adjourn until Wednesday April 30 when Dr. Mihalakis would testify.

The defense’s two “brief’ witnesses testified that evening but took a bit longer than expected. Petitioner and both counsel approached the bench and the following colloquy ensued: “[DEFENSE COUNSEL]: Your Honor, at this point in time, I don’t have any more civilian witnesses to call. The one witness who I would call will probably take about two and a half hours and I would prefer to call him on Wednesday and I do not want a break in the testimony. THE COURT: All right.

Is he here? [DEFENSE COUNSEL]: He’s right, standing right there, Your Honor. THE COURT: All right. [PROSECUTOR]: It’s the Defendant. THE COURT: Call him.” Defense counsel and petitioner conferred, and the court instructed counsel to advise petitioner on the record regarding his right not to testify, which defense counsel did. Petitioner stated that he understood.

Then, defense counsel addressed the court and said: “[DEFENSE COUNSEL]: —I discussed this matter with my client and he says, he’s told me that at this point in time, it’s his election not to testify. However, he would reserve the right to take the witness stand before the close of the defense case. THE COURT: There’s no reservation. He will testify now or he will not testify. [DEFENSE COUNSEL]: Your Honor, he, he’s, at this point in time, he’s not, he’s not electing to testify.

However, he reserves the right to testify before the close of the defense case. So he’s not— THE COURT: He will not testify unless he takes the, if he wishes to testify, he may testify now. He does not get to ⁴³¹ choose to testify on Wednesday. So if he wishes to testify, he needs to testify now, [defense counsel], [PETITIONER]: And, Your Honor, may I be heard, please?

THE COURT: No. [DEFENSE COUNSEL]: Your Honor, just — well, most respectfully, just for the record, Your Honor, the defense would object to being placed in the position where my client has to testify before all the defense witnesses have actually taken the witness stand. [PETITIONER]: It violates my rights. THE COURT: [Defense counsel], you are being disingenuous. You have indicated continuously that Dr. Mihalakis would be your last witness and that this witness will testify this afternoon and it’ll be a long witness and about two and a half hours. You have now decided that you don’t want to call him until next Wednesday.

I’m telling you, if he’s going to testify, he’s going to testify this afternoon and you need to call him now. You know and I know that the law doesn’t permit him to make choices about timing. So you either call him now or you don’t call him. [DEFENSE COUNSEL]: Yes, Your Honor. Well, I, again, I’ve discussed the matter with my client and he— [PETITIONER]: (Inaudible).

I adamantly object to it. I think it’s (inaudible) my case. It’s totally against what I think is my right. I have a right to evaluate all the evidence presented in my case and then make my determination based on that and I’m bein’ refused this right.

I want that specifically clear in the record ‘cause that’s what I believe. [DEFENSE COUNSEL]: Your Honor, most respectfully, my client would like me to convey to the Court that if, if his choice is to either testify now or not testify at all, he will testify now. However, he says that he is doing so over objection because he would like to reserve his, you know, that particular right until we reach the point where we’re at ⁴³² the close of the defense case. So I’m just makin’ the record, Your Honor. THE COURT: Fine.

Call your witness.” Defense counsel called petitioner as a witness, and at the close of direct examination, the court instructed the jury to return the following week. Upon returning on Wednesday April 30, the jury heard the State’s cross-examination and defense counsel’s redirect examination of petitioner, as well the testimony of the defense’s medical expert. The jury convicted petitioner, the circuit court imposed sentence, and petitioner’s appeals to the Court of Special Appeals and to this Court followed.

II

Before this Court, petitioner argues that the trial court’s requiring him to testify, if he wished to testify at all, prior to the last defense witness violated due process and the prohibition of compelled self-incrimination guaranteed by the United States Constitution, as set forth in Brooks v. Tennessee, 406 U.S. 605 , 92 S.Ct. 1891 , 32 L.Ed.2d 358 (1972), the Maryland constitution, and Maryland common law. Petitioner’s second issue is that the trial court erred when it allowed the State to elicit testimony from Nick Dieter that the petitioner had assaulted him in the past, allowed the State to play a recording of Cheryl DiRubbo’s statement that petitioner had assaulted her in the past, and allowed the State to ask Cheryl DiRubbo a question that allegedly implied that petitioner would pose a danger to her son if allowed to go free. Petitioner argues that these were each instances of inadmissible “other crimes” evidence or outright character assassination, and that they were highly prejudicial. The State argues that Brooks merely struck down a statute requiring every defendant to testify first, if at all, and that neither it nor its progeny guarantees a defendant an unqualified constitutional right to testify last.

The State further argues that petitioner had decided to testify, (and even to ⁴³³ testify in the second-to-last position), that he knew exactly what the final witness was going to say (as the witness had testified at his previous trial), and petitioner’s objection to testifying before the final witness was a disingenuous argument that merely attempted to delay his testimony so that it would not be divided over two days. Finally, the State argues that even assuming arguendo that there was a Brooks error, it was harmless because petitioner had every intention to testify anyway and there was no reasonable possibility that the alleged error contributed to the guilty verdict. As to the evidentiary rulings, the State argues that each of those rulings involved a different factual and legal foundation, and that the trial court exercised its discretion properly in each instance. The testimony regarding the assaults on Nick Dieter was admissible to rehabilitate the witness after the defense had impeached him with a prior omission.

The recording of Cheryl DiRubbo stating that petitioner had assaulted her was admissible to show a motive for giving testimony that is false and inconsistent with prior statements. Likewise, the question regarding Cheryl DiRubbo’s son did not prejudicially imply that petitioner would harm him, but rather it was permissible as it flowed directly from the witness’s prior inconsistent statement and went to her motive for testifying falsely.

III

We first address whether the trial court’s demand that petitioner decide whether he would testify prior to the defense expert or not at all was error. In Brooks v. Tennessee, 406 U.S. 605 , 92 S.Ct. 1891 , 32 L.Ed.2d 358 (1972), the United States Supreme Court struck down a Tennessee statute that required a defendant wishing to testify in his own behalf to be the first witness called by the defense. The Court held that this requirement, even though predicated on the legitimate state interest in preventing testimonial influence, violated a defendant’s right to effective assistance of counsel and to due process because it limited coun ⁴³⁴ sel’s ability to evaluate 0the need for such testimony. The Supreme Court explained the implication of this constitutional interest, noting as follows: “Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right.

By requiring the accused and his lawyer to make that choice without an opportunity to evaluate the actual worth of their evidence, the statute restricts the defense — particularly counsel — in the planning of its case. Furthermore, the penalty for not testifying first is to keep the defendant off the stand entirely, even though as a matter of professional judgment his lawyer might want to call him later in the trial. The accused is thereby deprived of the ‘guiding hand of counsel’ in the timing of this critical element of his defense. While nothing we say here otherwise curtails in any way the ordinary power of a trial judge to set the order of proof, the accused and his counsel may not be restricted in deciding whether, and when in the course of presenting his defense, the accused should take the stand.” Id. at 612-13 , 92 S.Ct. at 1895 , 32 L.Ed.2d at 364 .

The Brooks Court held also that such a practice violated the defendant’s right to remain silent because, although the statute was meant to ensure truthful testimony, “[p]ressuring the defendant to take the stand, by foreclosing later testimony if he refuses, is not a constitutionally permissible means of ensuring his honesty.” Id. at 611 , 92 S.Ct. at 1895 , 32 L.Ed.2d at 363 . In the decades since the Brooks Court’s ruling, some courts have attempted to limit the protection afforded to defendants in the decision’s broad language by focusing on the specific facts of the cases before them, differentiating those circumstances from the circumstances in Brooks , and emphasizing the trial court’s necessary discretion in scheduling cases. See, e.g., Harris v. Barkley, 202 F.3d 169, 174 (2d Cir.2000) (finding no Brooks violation when defendant was forced to testify before a witness that was not yet available); United States v. Leon, 679 F.2d 534, 538 (5th Cir.1982) (same); People v. Walden, 224 P.3d 369, 376-78 (Colo.Ct.App.2009) (same); State v. Turner, 252 Conn. 714 , 751 A.2d 372, 384 (2000) ⁴³⁵ (same). Other courts, however, have interpreted the language in Brooks to provide a wide scope of the protection and analyzed the circumstances before them to determine, first, if a Brooks violation had occurred and, second, whether that violation was prejudicial or harmless error.

See, e.g., United States v. Rantz, 862 F.2d 808, 812 (10th Cir.1988) (finding a Brooks violation where a defendant was forced to testify at the start of his case in chief, but holding the error harmless); United States v. Luce, 718 F.2d 1236 , 1241 n. 4 (6th Cir.1983) (citing Brooks for the proposition that a defendant “may not constitutionally be forced to decide whether he will testify at any point before the close of his defense”), aff'd, 469 U.S. 38 , 105 S.Ct. 460 , 83 L.Ed.2d 443 (1984); United States v. Panza, 612 F.2d 432, 439 (9th Cir.1980) (finding no violation of the Brooks guarantee of “counsel’s freedom to decide when a defendant will take the stand”); State v. Kido, 102 Hawai'i 369 , 76 P.3d 612, 619 (Haw.Ct.App.2003) (same as Rantz). In our view, the former approach tends to conflate unnecessarily the existence of circumstances that make a Brooks violation harmless with the lack of a Brooks violation. We therefore find the latter approach to be a more reasonable and faithful interpretation and application of the Supreme Court’s holding in Brooks , and adopt it. When petitioner’s counsel requested that the trial adjourn early to avoid interrupting petitioner’s testimony by the break in the trial, it was wholly within the trial court’s discretion to deny this request.

However, once petitioner declared that he had not yet made a final decision whether to testify and wanted to see the final defense witness prior to making this decision, the situation changed. The trial court’s refusal to accommodate the request for a delay based upon