Tapscott v. State

KATHLEEN O’FERRALL FRIEDMAN, Judge, Specially Assigned. Appellant, Robert Allan Tapscott, appeals from a jury verdict in the Circuit Court for Prince George’s County convicting him of four related criminal charges. The jury found appellant guilty of two counts of child abuse and two counts of ¹¹⁷ incest arising out of two separate incidents involving the same victim. The court sentenced him to concurrent five-year terms on the first three counts, suspending all but one year in favor of three years probation.

The court merged the conviction on one of the incest counts. On October 8, 1993, appellant’s counsel entered his appearance, and on November 4, 1993, in an omnibus motion, appellant’s counsel made a demand for a speedy trial. The court set the trial for February 1, 1994. 1 There were four continuances. The first one, granted February 1, 1994, was at the request of appellant.

On the next trial date, February 28, 1994, the results of DNA testing, which were necessary to prove the relationship between appellant and the complaining witness, were not complete. As a result, the State requested a continuance beyond March 30, 1994, the 180-day time limit imposed by Md.Ann.Code, art. 27, § 591 (1992) and Md. Rule 4-271. State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979). The administrative judge for Prince George’s County, reluctant to extend beyond the deadline unless the analysis could not be completed on time, denied the request, but set a new trial date for March 16,1994.

On the next trial date, the State informed the administrative judge that the analysis would not be submitted until March 28, 1994 and again asked for a continuance. Upon the administrative judge’s finding of “good cause”, he granted the continuance and set a new trial date for April 19, 1994, 20 days beyond the 180 day limit. On April 19, 1994, the State informed the court that appellant had demanded additional information which the State needed more time to supply. Appellant asked the court to exclude the DNA evidence.

In order to allow the defense to obtain the material, the trial court granted the fourth continuance to May 9, 1994, despite defense counsel’s objection. Each time the court continued the case, defense counsel refused to consent under State v. Hicks. Trial began May 9, 1994. ¹¹⁸ On the first day of trial and before it began, appellant made four oral motions: 1) a motion to dismiss the four counts of the indictment on the grounds that the State selectively prosecuted appellant; 2) a motion to suppress a tape recorded conversation between the victim and the appellant; 3) a motion to dismiss the first and second counts of the indictment because they did not state the age of the victim of the alleged child abuse; and 4) a motion to dismiss the third and fourth counts for the reason that they did not specify the relationship between the alleged victim and appellant. The trial court denied all four motions.

Appellant presents nine contentions, which are reordered and restated as follows: I. Was appellant denied a speedy trial?

II

Must an indictment charging child abuse allege the specific age of the child?

III

Must an indictment charging incest allege a specific degree of consanguinity?

IV

Did the trial court err by admitting testimony of the DNA expert? V. Did the trial court properly control the scope of cross-examination?

VI

Did the trial court err in admitting the tape recorded conversation between the appellant and the complaining witness?

VII

Was there sufficient evidence to support the convictions?

VIII

Did the trial judge amend the two child abuse indictments through improper jury instruction?

IX

Was the appellant the target of selective prosecution and a victim of unlawful discrimination? We shall affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. ¹¹⁹ The Evidence Through the testimony of the victim, K.C., the State showed that, between June and September, 1991, appellant had sexual intercourse with K.C. and that he performed oral sex on her on two separate occasions: one at his home and another in a hotel room. At the time, she was Yllk years old 2 and appellant was 37 years old. The State presented evidence that appellant and K.C.’s biological mother, G.R., had the same father by blood, making them half-siblings.

Thus K.C. is appellant’s half niece. G.R. testified that for several years, when she was a young child, she lived in Washington, D.C. with her mother and her father, James Robert Tapscott. At some point, her parents separated, and she had no further contact with her father until 1978, when, married and living in New York, she located him in Edgewood, Maryland. According to G.R., when her two daughters were fourteen years old and six years old, 3 she relocated from New York to Gaithersburg, Maryland to be near her father and his family.

Appellant, by this time a grown man living separate from his father in the Gaithersburg area, met G.R. and her children. He helped her and the children move and thereafter, they developed what G.R. described as a “very strong relationship.” G.R. stated that their “Uncle Sonny” spent a lot of time with the girls and that they looked to him for advice. K.C. testified that as she got older, she saw him “once, twice a month” and that “he was there for us if we needed him.” Two experts’ testimony established the blood relationship. Terry Houtz, Genetic Testing Manager with the Baltimore RH Typing Laboratory, qualified as an expert “in the area of ¹²⁰ blood analysis, kinship analysis, and HLA testing.” 4 Based on blood testing of G.R. and appellant, Houtz opined that, to a reasonable degree of scientific certainty, it was more likely than not that appellant and G.R. were related.

Houtz testified that they shared certain genetic traits or genetic similarities and that the results were consistent with their being half-siblings. Francis Chiafari, a molecular geneticist with the Baltimore RH Typing Laboratory, testified as an expert “in the area of DNA testing, blood testing and typing for the purpose of determining relationships between parties.” He stated that it was “extremely likely that Robert Tapscott, Junior, is a sibling of [G.R.].” He quantified the relationship probability as 99.86%. According to the State’s version of the case, the first sexual encounter between K.C. and appellant took place during June 1991, in appellant’s home. K.C.’s mother gave her approval for appellant to pick up K.C. after school.

K.C. was to spend the night at his house so that he could take her to a job interview that he had arranged for her the next day. K.C. testified that, after picking her up, appellant took her to a FOP lodge where they both drank heavily. They later went to his house where they swam in his pool, drank more beer, and watched television. After both fell asleep on the sofa, K.C. awoke before sunrise and went to appellant’s bedroom.

Appellant tucked her into bed and began to leave, but when K.C. invited him to get in bed with her, he did. They both fell asleep. She awoke to appellant rubbing her shoulders and back, which led to sexual intercourse and oral sex performed by appellant on K.C. At trial, appellant denied having sexual intercourse with K.C. but admitted to K.C. performing oral sex on him. K.C. testified about the events leading to the second incident which occurred in September 1991 in a hotel room. ¹²¹ Upset, confused and crying about her boyfriend leaving for college, she called appellant at the home of one of his friends.

She then drove to his friend’s house to see appellant. There she accepted his offer to go with him to his part-time job at a Greenbelt hotel. K.C. testified that appellant arranged to meet her in one of the rooms where they again engaged in sexual intercourse and oral sex. At trial, although admitting that he obtained the room and met her there, appellant denied that any sexual acts occurred.

The State’s case included evidence by way of a recorded telephone conversation between K.C. and appellant. At the suggestion of the police and with equipment supplied by them, K.C. initiated this telephone conversation from her residence. During this conversation, appellant acknowledged that he had “sex” with her. He said: You said you don’t blame yourself and I don’t have a problem with that.

I’m not, again, I don’t want to accuse but both times before anything happened, not so much the first time, but the second time I mean it was discussed. It wasn’t something that you know we were both totally intoxicated one took advantage of the other one, and as you said yourself I, I was under the impression that it was something between, you know, consenting adults if you will. We will recount other facts as necessary when we discuss appellant’s separate contentions. I Speedy Trial Appellant contends that the trial court should have dismissed the charges against him based on statutory and constitutional speedy trial violations.

Upon receipt of the DNA results, defense counsel requested a report explaining how the tests were completed. When the court called the case for trial on April 19, 1994, the State informed the trial judge that the defense had made a request for DNA evidence pursuant to Md.Code Ann., Cts. & Jud. ¹²² Proc., § 10-915 (1992 RepLVol.), but that the RH Typing Laboratory did not have enough time to comply with the request. Appellant requested that the DNA results be excluded from evidence because there was no such report. The State argued that appellant did not make a timely request for DNA information.

Rather than sending the case to the administrative judge who had previously continued the case beyond the 180 day limit, the trial judge continued the case to give the State time to provide the additional information and the defense time to review the material. Appellant claims that this delay in the trial violated his statutory and constitutional rights to a speedy trial. Appellant claims that he raised this speedy trial argument prior to trial and at trial, but the record demonstrates that appellant did not clearly raise such a claim. Although appellant repeatedly referred to State v. Hicks, there was no mention of his constitutional right to speedy trial.

Regardless, his contention regarding the speedy trial is without merit. A. Statutory Claim The State must bring a criminal defendant to trial no later than 180 days after the earlier of the first appearance of the defendant in circuit court or the appearance of his counsel. Md.Ann.Code, art. 27, § 591 (1992 RepLVol.); Md.Rule 4-271(a)(1); State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979). However, Md.Rule 4-271(a) provides that, “for good cause shown”, an administrative judge or that judge’s designee may extend the trial date beyond the 180 day period.

The judge enjoys wide discretion in deciding good cause, and his determination carries a “heavy presumption of validity”. Dalton v. State, 87 Md.App. 673, 682 , 591 A.2d 531 (1991) (citing Marks v. State, 84 Md.App. 269, 277 , 578 A.2d 828 (1990)). To obtain dismissal for an alleged violation, the defendant has the burden of demonstrating either a clear abuse of discretion or a lack of “good cause” as a matter of law. State v. Cook, 322 Md. 93, 98 , 585 A.2d 833 (1991); State v. Frazier, 298 Md. 422, 454 , 470 A.2d 1269 (1984). ¹²³ Appellant mistakenly asserts that his statutory right to a speedy trial was violated.

There is no statutory right to a speedy trial. In Marks v. State, this court clearly explained that “the purpose of the 180 day rule is to protect the societal interest in the prompt trial of criminal cases, the benefits that the rule confers upon defendants are incidental.” Id., 84 Md.App. at 277 , 578 A.2d at 832 (citing State v. Hicks, 285 Md. at 320 , 403 A.2d 356 ). Consequently, the mandate to the State to bring the case to trial no later than 180 days is not a speedy trial right of a defendant. Regardless, the State complied with the statutory mandate.

On March 16, 1994, Judge Missouri postponed the case until April 19, 1994. On April 19,1994, Judge Melbourne postponed the case until May 9, 1994. The critical postponement in this case was on March 16, 1994 because that was the postponement carrying the trial date past the 180 day limit. Marks, 84 Md.App. 269 , 578 A.2d 828 ; see also Rosenbach v. State, 314 Md. 473, 479 , 551 A.2d 460, 463 (1989).

Appellant does not claim that the administrative judge abused his discretion or lacked good cause in granting a postponement on that date. Rather, he alleges that the trial judge’s postponement on April 19, 1994 was improper. Appellant’s allegation lacks merit because, once the administrative judge finds “good cause” and grants a trial date beyond the 180 day period, the statutory limitation does not control subsequent changes except to preclude an inordinate delay in subsequently bringing the case to trial, which was not the case here. See Cook, 322 Md. at 98 , 585 A.2d 833 .

The delay in obtaining the laboratory report was due partly to appellant’s father, James Robert Tapscott, leaving the State on vacation and not being available for blood testing. Consequently, the laboratory had to use blood only from G.R. and appellant. Pursuant to Md.Rule 4-263(d), in a criminal case, the State may obtain blood samples from the defendant. Additionally, Md.Code Ann., Crt. & Jud.Proc., § 10-915(b) (1989 RepLVol.) allows the evidence of DNA profile “to prove or disprove the identity of any person.” Without the blood ¹²⁴ testing results, the State would be unable to prove the incest counts.

The State’s need to obtain crucial evidence that could not reasonably have been obtained earlier is sufficient good cause for a postponement. See Marks, 84 Md.App. at 277 , 578 A. 2d 828 . Consequently, the evidence clearly established good cause for the continuance beyond the 180 day deadline, and there was no error in the short delay once the critical time limit passed. Based on this information, the administrative judge properly found good cause and set the trial beyond the 180 day limit.

B. Constitutional Claim Appellant also argues that he was denied his right to a speedy trial under the Sixth Amendment to the U.S. Constitution. 5 At trial, appellant did not raise his constitutional right to a speedy trial, and the trial court never addressed the issue. Therefore, appellant has waived his right to a speedy trial. Marks, 84 Md.App. 269 , 578 A.2d 828 . Because appellant did not raise this issue below, he has not preserved it for our review.

Md.Rule 8-131(a). Even if the appellant had preserved this claim, he would not succeed. The Supreme Court in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972), identified four factors the court must consider to determine whether a person has been deprived of the speedy trial guarantee: the length of delay, the reason for the delay, the defendant’s assertion of his right, 6 and prejudice to the defendant. Id. at 530 , 92 S.Ct. at 2192 .

The first factor presents a threshold question of whether “the delay is of constitutional dimension, a delay ¹²⁵ which is presumptively prejudicial.” Marks, 84 Md.App. at 281 , 578 A.2d 828 , citing Barker, 407 U.S. at 530 , 92 S.Ct. at 2192 . The Barker Court further explained: The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Id.

(footnote omitted); See Lee v. State, 61 Md.App. 169 , 485 A.2d 1014 (1985). The time required for the orderly processing of a case does not constitute a delay of constitutional dimension. Borgen v. State, 58 Md.App. 61, 73 , 472 A.2d 114 (1984); Powell v. State, 56 Md.App. 351, 358 , 467 A.2d 1052 (1983). This case, having come to trial a few days beyond seven months, does not present a delay of constitutional dimension.

Hence there is no need to analyze the other factors. Appellant was not denied his right to a speedy trial. II Sufficiency of the Child Abuse Counts The State charged the appellant with two counts of child abuse under Md.Ann Code, article 27, § 35A. 7 Appellant ¹²⁶ submits that the trial court should have granted his motion to dismiss the first two counts of the indictment charging him with child abuse because they failed to specify the age of the victim. The two counts read substantially as follows: ... that Robert Allan Tapscott ..., between June, nineteen hundred and ninety one, and September, nineteen hundred and ninety-one, ... having responsibility for supervision of [K.C.], a minor child under the age of eighteen years, did cause abuse to said minor, in violation of Article 27, Section 35A of the Annotated Code of Maryland, 1957 edition, as amended, and against the peace, government and dignity of the State.

(Child Abuse) Each count identified the victim as “a minor child under the age of eighteen years, ...” To support his claim, appellant cites Smith v. State, 62 Md.App. 670 , 491 A.2d 587 (1985). Smith is inapposite. The defendant in Smith was charged with child abuse in an information that referred to “a minor child under the age of eighteen.” This court ruled that the information failed to state an offense because the law in effect at the time of the alleged abuse defined a minor as one who was less than sixteen years old. Id. at 678-79 , 491 A.2d 587 . ¹²⁷ To fulfill the constitutional requirement in Art. 21 of the Maryland Declaration of Rights, an indictment must inform the individual charged with a crime of the accusation against him so that the accused can know the specific conduct with which he is charged and thereby avoid another prosecution for the same offense.

Williams v. State, 302 Md. 787, 791 , 490 A.2d 1277 (1985). In Jones v. State, 303 Md. 323, 326 , 493 A.2d 1062 (1985), the Court of Appeals explained: A primary purpose to be fulfilled by a charging document under the Maryland Law is to satisfy the constitutional requirement of Article 21 of the Declaration of Rights that each person charged with a crime be informed of the accusation against him, first, by characterizing the crime and, second, by so describing it as to inform the accused of the specific conduct with which he is charged. Maryland Rule 4-202(a), implementing the constitutional mandate, requires that a charging document “shall contain a concise and definite statement of the essential facts of the offense with which the defendant is charged and, with reasonable particularity, the time and place the offense occurred.” In denying Tapscott’s motion to dismiss, the trial court noted that generally when an indictment tracks the language of the statute it has been held to be sufficient to put the defendant on notice of the charges. As long as the indictment sets forth the essential elements of the offense charged, it is sufficient.

Jones v. State, Id. at 336-357, 493 A.2d 1062 . If there was any question about the specific age of the victim, the appellant could have demanded a bill of particulars pursuant to Md.Rule 4-241. See State v. Morton, 295 Md. 487, 495 , 456 A.2d 909 (1983); and Guy v. State, 91 Md.App. 600 , 605 A.2d 642 (1992). Indeed, as the trial court noted, the victim was a minor under the age of eighteen.

In this case, the indictment, which tracked the language of the statute by alleging that K.C. was “a minor child under the age of eighteen years,” was adequate. ¹²⁸ Ill Sufficiency of the Incest Counts Pursuant to Md.Ann.Code, art. 27, § 335 (1992 Repl. Vol.), the State also charged the appellant with two counts of incest. 8 Appellant alleges that the incest counts should have been dismissed because they did not allege the specific degree of consanguinity. 9 The indictments read as follows: ... that Robert Allan Tapscott ... between June, nineteen hundred and ninety-one and September, nineteen hundred and ninety-one, ... did knowingly have carnal knowledge of [K.C.], and thusly being within the degrees of consanguinity within which marriages are prohibited by law of this State, in violation of Article 27, Section 335 of the Annotated Code of Maryland, 1957 edition, as amended, and against the peace, government and dignity of the State. (Incest) Because the incest statute refers to “the degrees of consanguinity within which marriages are prohibited by law in this State,” and the statute governing prohibited marriages refers to “certain marriages within other degrees of affinity or consanguinity”, the appellant claims he would not know from the indictment which prohibited relationship he transgressed. ¹²⁹ This Court has stated repeatedly that references to the statute alleged to be violated incorporate the elements of the statutory offense “... as though the section has been set forth in full in the indictment.” Russell v. State, 69 Md.App. 554, 559 , 518 A.2d 1081 (1987) (quoting Whitehead v. State, 54 Md.App. 428, 445 , 458 A.2d 905 (1983). As we stated when discussing the sufficiency of the child abuse counts, it is enough to inform the person of the accusation against him so that he can avoid another prosecution for the same offense.

See Williams v. State, 302 Md. 787 , 490 A.2d 1277 (1985). Having referenced the applicable statute, the indictment averred the essential elements of the crime in accordance with Williams . Furthermore, as with the age of the victim, the appellant could have obtained the specific information from a bill of particulars or through discovery. See Guy, 91 Md.App. at 610-11 , 605 A.2d at 647 (1992).

IV DNA Evidence To prove the charges of incest, the State had to produce scientific facts about the relationship of the accused to the victim. As stated in Section I (Speedy Trial), the DNA evidence was admissible to prove the relationship between appellant and the victim. Md.Code Ann., Cts. & Jud.Proc., § 10-915 (1992 Repl.Vol.); Jackson v. State, 92 Md.App. 304, 323 , 608 A.2d 782 (1992). Section 10-915(b) of the Cts. & Jud.Proc.

Article requires a party to provide to the opposing party a list of information, upon written request. If a party is unable to provide the information within 30 days prior to the criminal proceedings, the court may grant a continuance to permit timely disclosure. Md.Code Ann., Cts. & Jud.Proc., § 10-915(b) (1992 Repl.Vol.). Upon receipt of the DNA results, appellant requested a protocol explaining how the DNA tests were conducted.

Prior to trial, appellant requested that the DNA results be excluded from evidence. Rather than exclude the evidence, the court ¹³⁰ postponed the trial to give defense counsel an opportunity to obtain and review the additional material. When, during the trial, appellant again requested that the DNA evidence be excluded, the trial court denied the motion to suppress, concluding: And an indication from the witness was ... all the information required by the Statute has been provided to Counsel. And there is no complaint that it has not been provided within thirty days, except for the additional information, which is not information required to be given the defense ■within the thirty-day period.

Appellant posits that, because the State did not disclose the DNA information within the statutory time limits of Md.Code Ann., Cts. & Jud.Proc. Article, § 10-915, the trial court committed error in admitting the testimony of the DNA expert. 10 The record is void of any evidence contradicting the court’s findings. Upon receipt of the DNA results, which were delivered within the thirty-day period, appellant requested the protocol, which was additional information. There is no indication in the record that appellant was supposed to receive information that he did not get.

Regardless, even if appellant were improperly deprived of the additional information within thirty days, pursuant to Md.Code Ann., Cts. & Jud.Proc., § 10-915(c), the remedy would not be to exclude the DNA results, but, rather to continue the case, which is precisely what the trial court did. Appellant further complains that the DNA expert, Francis Chiafari, over objection, was allowed to testify. Appellant argues that, because Chiafari’s former experience dealt with direct relationships (father and child), he was not qualified to explain the probabilities of persons being related as siblings, and that he based his testimony on false premises, i.e. ¹³¹ he was not told that the defendant’s paternal grandmother, mother and father had American Indian blood. Appellant made no objection to the testimony during the trial on the ground that the evidence was based on inaccurate facts.

Md.Rule 4-323(a). Therefore, appellant did not preserve the latter claim for appeal. Md.Rule 8-131(a). Even if appellant had preserved this issue for our review, he would not prevail.

Defense counsel challenged the basis of the opinion by fully exploring the possibility of appellant having mixed ancestry. Chiafari testified that, if the father was of mixed blood, his calculations would be “thrown off.” The adequacy of the basis for an expert’s opinion usually, but not always, goes to the weight to be given to the testimony. What appellant’s ethnic background is and the effect that would have on the expert’s conclusions are the subject of credibility to be determined by the jury. The expert had reasonably reliable information upon which to base his conclusion.

Radman v. Harold, 279 Md. 167 , 367 A.2d 472 (1977). The trial court exercises broad discretion to determine whether a particular witness is qualified to give an opinion. Simmons v. State, 313 Md. 33, 43 , 542 A.2d 1258 (1988); Trimble v. State, 300 Md. 387, 404 , 478 A.2d 1143 (1984). This evidence is the proper domain of blood testing experts and DNA specialists.

The witness was sufficiently qualified from his knowledge, skill, experience, training, and education to give opinions that would assist the trier of fact. The trial court did not err in allowing the testimony of the DNA expert. y Scope of Cross-examination Over appellant’s objections, Terry Houtz, the blood testing expert, testified that “more likely than not” appellant and K.C. were related, but he could not specify the degree of their relationship. Appellant’s counsel attempted to cross- ¹³² examine Houtz about a letter he had sent to Tapscott’s sister in response to her phone call asking his opinion on the minimum number of people who would need to be tested to determine paternity. In the letter, Houtz explained that, to determine paternity of a deceased man’s children, blood would be needed from the mother and at least two of the siblings.

At trial, Houtz based his opinions on blood drawn from appellant and the victim’s mother. Appellant’s counsel conceded during the trial that the letter “goes just to DNA.” The letter was marked for identification but was not admitted into evidence. The trial court prevented the defendant’s counsel from cross-examining the expert on this alleged contradiction. The trial court ruled that the letter was not relevant to HLA testing; it addressed DNA testing, which was not within the scope of Houtz’s expertise.

The trial court has broad discretion to admit or exclude expert testimony, and should not admit testimony of an expert when that testimony concerns a field inappropriate for the expert. See Hartless v. State, 327 Md. 558, 573 , 611 A.2d 581, 588 (1992). Accordingly, the trial court properly controlled the scope of cross-examination. VI Tape Recorded Conversation Tapscott claims that the trial court erred when it admitted the taped telephone conversation between K.C. and him.

He contends the recording was illegal because the State failed, as required by Md.Code Ann., Cts. & Jud.Proc., § 10-411(a) (1992 Repl.Vol.) to register the recording equipment before using it to record the conversation in this case. 11 ¹³³ Sergeant David Dunn purchased the device on September 9, 1993. The next day he used it to record the conversation. Later that same day, he mailed his request for registration. The statute mandates registration, not before the law enforcement agency uses the equipment, but “within ten days from the date on which the devices came into the possession or control of the agency....” The trial court did not err in admitting the taped conversation.

YII