Walker v. State

DAVIS, Judge. Appellant Johnny Walker was tried and convicted by a jury in the Circuit Court for Baltimore City of child abuse and second degree sexual offense committed on two daughters of his former girl Mend. He was thereafter sentenced to concurrent terms of fifteen years for sexual child abuse and twenty years for the second degree sexual offense. From these convictions, he appealed to this Court raising the following questions, which we restate for clarity: I. Did the lower court deprive appellant of his constitutional right to a public trial by excluding all of appellant’s family members from the courtroom during the testimony of the two alleged victims?

II

Did the lower court err by refusing appellant’s request for a jury instruction that the State must prove that the crime against Salaunah occurred between 1992 and 1996 as alleged in the indictment?

III

Did the lower court err by not ruling on appellant’s objection to the prosecutor’s jury argument that appellant was an “animal”? ³⁶⁷ IV. Did the lower court err by overruling appellant’s objection to the prosecutor’s rebuttal argument to the jury to “remember that the only evidence you will receive in this case has come from the State” and that the State’s “evidence remains uncontroverted”? Because we answer question I in the affirmative, we reverse the judgment of the lower court and we do not reach questions II and IV; however, we address question III for the guidance of the lower court on remand. FACTS For more than ten years, appellant had a romantic relationship with the mother of the two victims.

At the same time, according to Tuleeya, the eldest of the two daughters — who was seventeen years old at the time of trial — appellant began, when she was eight years old, touching and feeling her inappropriately and, when she was nine and ten years old, he demanded that she perform fellatio on him. Because of his inability to penetrate the young victim, appellant was unsuccessful in his attempts to engage in coitus with the victim. Appellant ultimately relented when the victim was fourteen years old, because she was then more physically able to resist his sexual advances. Twelve year old Salaunah testified that appellant took her into the bathroom, ostensibly to brush her teeth, but instead covered her eyes with his hand and then inserted something that “sort of felt like when you put your hand in your mouth.

It felt like skin.” Thereafter, Salaunah heard appellant pulling up his pants and then the noise of his zipper being pulled up. This occurred before the witness began attending school. The mother of the two victims, Zelma B., testified that, approximately two days after she ended her relationship with appellant, Tuleeya advised her that appellant had sexually abused her. Salaunah previously had related the incident to her in which appellant had told the younger daughter to close her eyes so that he could brush her teeth, but, when the ³⁶⁸ witness (Zelma B.) confronted appellant, he had denied that the incident occurred.

Prior to trial, the prosecutor asked that members of appellant’s family be excluded from the courtroom during the testimony of the two victims because they had said things to the two victims and “they [the two victims] feel very frightened and very intimidated by that.” The court indicated when the witnesses were called to testify, “I’ll hear from [appellant’s counsel] and I’ll deal with it at that time.” Additional facts will be supplied in conjunction with the discussion that follows. i In granting the request to exclude appellant’s family members from the courtroom, the following colloquy transpired: [PROSECUTION]: Your Honor, at this time, the State would like to renew its motion to have the courtroom emptied of any of the [appellant’s] relatives or — with respect to this case, inasmuch as the victims , are child witnesses and they’ve had some problems in the past in terms of intimidation by the family of the [appellant]. So, I would just ask that this courtroom be cleared of them at the time Tuleeya and Salaunah ... testify with respect to this, this matter. THE COURT: How old are the witnesses, [prosecutor]? [PROSECUTION]: The oldest witness is 17 and the youngest is 12. THE COURT: And are the witnesses related to the [appellant’s] family? [PROSECUTION]: Well, the [appellant] is the stepfather of the witnesses.

The mother of the children was in a relationship with the [appellant] for 10 years. He lived in the home during that period of time. THE COURT: And have the children expressed — the witnesses expressed any concern to you about testifying in the present (sic) of the [appellant’s] family? [PROSECUTION]: Yes, they have, Your Honor. They have, and that’s why I’m making the request of the Court, ³⁶⁹ because they have expressed concerns in terms of having to testify in their presence.

THE COURT: [Appellant’s Counsel], do you wish to be heard? [APPELLANT’S COUNSEL]: Except that we would object. We believe that these witnesses are not of tender years. And if the State felt there was [sic] some problems, then made arrangements to have [sic] testify via the TV camera. But this is an open proceeding.

My client’s family has been very supportive throughout this whole situation. They are here, they’ve always been here. I don’t believe that inside the courtroom they pose any threat. We don’t believe that there ever has been a threat by the family with respect to these particular witnesses, and that’s not their purpose for being here.

If these witnesses made allegations, then now’s the time to express them in front of — in court and in an open courtroom. We believe that this should be an open proceedings and that their ages, Your Honor, would make them competent witnesses and, as I stated earlier, that there’s nothing that would prevent them from testifying in open court. THE COURT: Okay. Well, certainly the [appellant] has a right to a public trial and the public has a right to attend the trial, and the [appellant’s] family is part of the public.

I do think, however, the Court is obliged to assure that witnesses are permitted to testify freely— Are you having a problem, [prosecutor]? [PROSECUTION]: —thank you, Your Honor. THE COURT: —testify freely and without any fear of intimidation. And I understand that in a case such as this where families are essentially — wind up pitted against one another as a result of these allegations which are incredibly disruptive and destructive to a family that opinions can overflow on the witness and make the witness, whether the witness is a child or an adult, feel intimidated and feel threatened in some way, not only in ³⁷⁰ the courtroom itself but after the proceedings are over, as to what the consequences of their testimony may be perceived to be by the family of the [appellant]. Considering all of that and considering the young age of the witnesses, even though they are old enough and competent, and also considering the fact that the quality of the witness’s testimony is — it is preferable, I think, under any circumstances to have live witness testimony before a jury to video testimony.

And the benefit of permitting the [appellant’s] family to be present is far outweighed by the benefit of the jury of having live — and the [appellant], for that matter — of having live witness testimony. I’m going to grant the State’s motion and request that members of the [appellant’s] family be excused from the proceedings during the testimony of the child witnesses. Thank you. [PROSECUTION]: Thank you, Your Honor. Stating that he was deprived of his right to a public trial, appellant asserts that the court’s decision to exclude his family, during the testimony of the alleged victims was prejudicial error.

According to appellant, the trial court, by not finding that closure was “essential” and not attempting narrowly to tailor the exclusion, did not meet the requirements of Waller v. Georgia, 467 U.S. 39 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984). Appellant avers that the trial court, without considering any other evidence, accepted the State’s proffer as true. In addition, appellant contends, the trial court’s findings were not specific enough for us to determine, on appeal, whether its order was proper. The Sixth Amendment to the U.S. Constitution guarantees an accused the “right to a speedy and public trial.” Cox v. State, 3 Md.App. 136, 139 , 238 A.2d 157 (1968).

The privilege of the public to attend trials is not, however, unrestricted. Ex Parte Sturm, 152 Md. 114, 122 , 136 A. 312 (1927). “In determining whether any part of the public should be excluded from the trial of a criminal case, some discretion ³⁷¹ must be allowed the trial [c]ourt.” Dutton v. State, 123 Md. 373, 387 , 91 A. 417 (1914). Articulating the purpose of the public trial requirement, the Court of Appeals, citing to Cooley’s Constitutional Limitations, page 312, stated that it ... is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility, and to the importance of their functions; and the requirement is fairly met with if, without partiality or favoritism, a reasonable portion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether. Dutton, 123 Md. at 388-89 , 91 A. 417 .

In Waller , the Supreme Court held that “the right to an open trial may give way in certain cases to other rights or interests.” Id. 467 U.S. at 45 , 104 S.Ct. at 2215 . The Court has also opined that [t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 510 , 104 S.Ct. 819, 824 , 78 L.Ed.2d 629 (1984).

In other words, the party seeking the exclusion “must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Waller, 467 U.S. at 48 , 104 S.Ct. at 2216 . The Supreme Court, in concluding that “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in ³⁷² some cases, a defendant’s right to face his or her accusers in court,” addressed the effect of permitting a child witness to testify on closed-circuit television and the effect this procedure had on the defendant’s Sixth Amendment right to confront witnesses against him. Maryland v. Craig, 497 U.S. 836, 853 , 110 S.Ct. 3157, 3167 , 111 L.Ed.2d 666 (1990). The Court noted that the State’s interest in “the protection of minor victims of sex crimes from further trauma and embarrassment is a compelling one,” id. 497 U.S. at 852 , 110 S.Ct. at 3167 (citations omitted), and that “ ‘[m]any States have determined that a child victim may suffer trauma from exposure to the harsh atmosphere of the typical courtroom and have undertaken to shield the child through a variety of ameliorative measures.’ ” Id. 497 U.S. at 853 , 110 S.Ct. at 3167 (quoting Coy v. Iowa, 487 U.S. 1012, 1022-23 , 108 S.Ct. 2798, 2804 , 101 L.Ed.2d 857 (1988)).

The Supreme Court, in discussing the use of closed-circuit television, however, held that the State must make an “adequate showing of necessity” for its use. Craig, 497 U.S. at 855 , 110 S.Ct. at 3169 . The Court held that the trial court must determine whether use of the procedure is necessary to protect the welfare of the child victim, and must find that the child victim “would be traumatized, not by the courtroom generally, but by the presence of the defendant.” Craig, 497 U.S. at 855-56 , 110 S.Ct. at 3168-69 . The Court concluded that, if the trial court determines the child victim is traumatized by the courtroom generally, rather than by the presence of the defendant, the denial of face-to-face confrontation would be unnecessary because “the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present.” Id. 497 U.S. at 856 , 110 S.Ct. at 3169 .

On remand from the Supreme Court, the Maryland Court of Appeals announced certain guidelines for the trial judge to follow in determining whether the use of closed-circuit television was warranted. The Court of Appeals held that the trial judge ordinarily should determine the question of the child’s ability to testify in front of the defendant “by personally observing and interviewing the child, on the record, either in ³⁷³ or outside the courtroom.” Craig v. State, 322 Md. 418, 433 , 588 A.2d 328 (1991). The Court of Appeals held that the “prudent trial judge” should consider expert testimony when offered as an aid in determining whether to use closed-circuit television, but that such testimony is not essential to the court’s determination. Id. at 426-28 , 588 A.2d 328 .

Maryland Code (1957, 1996 Repl.Vol., 1997 Supp.), Art. 27, § 774(c), prescribing procedures for the use of closed-circuit television, provides that the judge “may” observe and question the child either inside or outside the courtroom and hear testimony of a parent or a custodian of the child or any other person including a person who has dealt with the child in a therapeutic setting. We are mindful that the instant case does not involve the testimony of a child abuse victim via closed-circuit television nor does it involve removal of all of the spectators from the courtroom. The public may only be excluded, however, “pursuant to a narrowly tailored order necessary to protect an overriding State interest.” Watters v. State, 328 Md. 38, 45 , 612 A.2d 1288 (1992). It may be, in the case sub judice, that the State could have established an overriding State interest sufficiently important to outweigh the defendant’s right to face his accusers had there been efforts to adduce evidence beyond a vague proffer of intimidation by members of the defendant’s family.

As the Court of Appeals concluded in Craig and as § 774(c) of Art. 27 prescribes, Tuleeya and her sister, Salaunah, could have been observed or questioned either inside or outside of the courtroom regarding the alleged intimidation. Similarly, any other member of the family of the victims who were privy to the alleged intimidation could have been examined by the trial judge. It is incumbent upon the trial judge to make more than a general finding that all children suffer trauma when testifying or, as in this case, not to encroach upon the defendant’s right of confrontation by clearing the courtroom of all of the defendant’s family members without conducting an examination to ascertain the accuracy or validity of the State’s proffer. ³⁷⁴ We hold that, in the absence of such evidence, we cannot determine from this record whether the trial judge’s order was narrowly tailored to the exigencies of the case at hand and, as a consequence thereof, the court abused its discretion. ii During closing argument, the prosecutor argued: [PROSECUTION]: ... Think about it — indicates, indicates to you what [sic] these children were repeatedly sexually molested by that [appellant].

The evidence reveals to you that — that he’s an animal. [APPELLANT’S COUNSEL]: Objection, Your Honor. [PROSECUTION]: That he’s a pervert and that he sexually molested babies. I want you to concentrate on that evidence and I want you right now to — about the testimony of Tuleeya and Salaunah____ I want you to close your eyes right now and to reflect upon the testimony of Tuleeya and Salaunah. Juror Number 1, can you hear the silent screams of Tuleeya as she asks for help? She’s only eight years old— Juror Number 2, can you hear the silent screams of Tuleeya as she turns 10 years of age and the [appellant] forces his way into the bedroom and places his penis in her mouth?

Juror Number 3, can you hear the silent screams of a baby that’s only 10 years old when the person she calls Daddy places his penis in her vagina and it hurts, and she starts to bleed and she cries and no one comes in assistance? Juror [sic] Number 4 and 5, can you see, can you see Tuleeya as the [appellant] ejaculates his sperm all over her face — her cries for help go unanswered? Juror Number 7, can you see the baby Tuleeya as she pushes her bureau against the door to protect herself? But there’s no protection