Wong Wing v. State

HOLLANDER, Judge. Junior Wong-Wing, appellant, was convicted by a jury sitting in the Circuit Court for Baltimore City of second degree sexual offense, two counts of third degree sexual offense, two counts of child sexual abuse, and five counts of second degree assault. 1 He was sentenced to a total term of imprisonment of ten years. ⁶⁰¹ Appellant presents two questions for our review, which we have reworded slightly: I. Did the trial court commit plain error when it allowed the State to admit into evidence a recording and transcript of an allegedly confidential communication between appellant and his wife?

II

Did the trial court err in failing to allow appellant to offer testimony on statements made by his wife in order to establish her bias against appellant, as well as statements made by his aunt to show that appellant acted in accordance with those statements? Finding no error, we shall affirm. FACTUAL SUMMARY Appellant married Sherri Frazier in 1996. Frazier has a daughter, Christina M., who was born on May 24, 1988; she was thirteen years of age at the time of trial.

During the marriage, appellant, Frazier, and Christina lived with Frazier’s mother, Shirley Griffin, on Edison Highway in Baltimore City. Appellant and Frazier separated in February 1998, attempted a reconciliation in April 2000, and then divorced in June 2001. During the separation, appellant rented an apartment on Harford Road. However, he continued to have contact with Christina, because he sometimes cared for her on the weekends.

Christina testified that appellant took care of her before and after the separation. Further, Christina stated that after appellant and her mother separated, she sometimes went to appellant’s apartment on Harford Road, and he sometimes visited her at her house on Edison Highway. According to Christina, when she was about ten years old, appellant began watching pornographic videotapes with her and touching her sexually. She claimed that appellant last touched her sexually when she was eleven years old. ⁶⁰² Christina stated that the sexual incidents occurred between April 1999 and April 2000.

In her testimony, Christina said: “[Appellant] touched me on my vagina, my breasts, and that’s it.” She also claimed that appellant “would lick my vagina, he would lick my breasts, and I would tell him to stop, and he would just keep on going.” Christina recalled that, on some occasions, appellant’s conduct was painful. Christina added that appellant “rubbed his penis against [her] vagina,” ejaculated, removed his pants, and had her “touch him on his penis” and “stroke his penis.” Christina was asked if appellant ever said anything to her about informing anyone as to what he was doing. She responded: “He would say that if you told anybody, then he would be in trouble, and that I would get in trouble, and that it would mess his life up, and he would go to jail, and all this other stuff.” Despite appellant’s admonition, on April 24, 2000, Christina told her grandmother, Shirley Griffin, what had occurred. The next morning, Griffin told Frazier what she had learned from Christina, and Frazier notified the police.

In her testimony, Frazier recalled that she contacted appellant at his place of work. Recalling the conversation, Frazier said: “I told him that I was aware of what had occurred. And he denied it. And he also said that he knew what he did, but what about what my daughter did to him.” Appellant also told Frazier that he did not want to live and that he had wanted to tell Frazier about it but he did not know how.

During a subsequent telephone conversation, appellant informed Frazier that he had tried to kill himself with an overdose of pills. Frazier told appellant that he should turn himself in, but appellant stated that he wanted to speak to his aunt first. In addition, Frazier testified that, on April 27, 2000, she returned home from work to find a message on her telephone answering machine from appellant. Frazier contacted Detective Ethan Newberg, a member of the child abuse unit of the ⁶⁰³ Baltimore City Police Department who had been assigned to the case.

He listened to the message and made a recording of it. The tape recording was played for the jury, and a transcript of the recording was admitted into evidence. The transcript provides: Sherry [sic] I know (inaudible) I don’t (inaudible) think they’re wrong, so (inaudible)!.] At this point, I don’t want to hear anything that happened before but I just want to say that (inaudible) cause a lot of pain and grief. (beep) Sherry, I just want to say good bye again.

Sorry for all the pain and grief I caused in your life. I mean its [sic] too late to say that now, but, anyway, I ain’t feel like living anymore. I caused too much (inaudible) you know. (Inaudible) I wish I could die and I’m sorry.

Ok, bye bye. (beep) Sherry, there’s some money in (inaudible) suitcase in the apartment (inaudible) anything happens to me (inaudible)!.] Detective Newberg testified that on April 27, 2000, he obtained a warrant to search appellant’s apartment. When he arrived at the apartment, appellant was gone. The evidence also showed that, on or about May 1, 2000, appellant terminated the lease on his apartment, leaving behind his furniture and the return of his security deposit, in the amount of $299.04.

In appellant’s written notice to his landlord, he indicated that his mother was ill. A week later, on May 8, 2000, appellant was arrested in Highland Park, New Jersey. He had in his possession a cashier’s check for $10,000 and $2,350 in cash. In the defense case, appellant’s aunt, Michelle Thomas, testified that she lived in Highland Park, New Jersey.

On or about April 28, 2000, Thomas called the Edison Highway residence in order to inform appellant that his mother, who lived in Trinidad, had suffered a stroke. At that time, Thomas spoke with Frazier, who told her of the accusations against appellant. Thomas eventually called appellant at his Harford Road apartment and suggested that he come live with her ⁶⁰⁴ because he had kidney problems and she would care for him. Appellant went to stay with Thomas on May 1, 2000, and she suggested that he visit his mother.

Thomas then made the arrangements for appellant’s trip to Trinidad, and purchased a round trip ticket for him. Appellant testified that he suffered from kidney problems and from sexual impotency. His hospital records were introduced in evidence to support his claims. Further, appellant explained that he had planned to travel to Trinidad to visit his mother and that the money he had in his possession at the time of his arrest was to pay for her care.

He denied abusing Christina or touching her in an inappropriate manner. We shall include additional facts in our discussion. DISCUSSION I. Appellant claims that the trial court erred in admitting the transcript of the message he left on Frazier’s answering machine, because it was “intended solely for his wife.” He asserts that the message constituted a confidential spousal communication protected by Maryland Code (1974, 2002 Repl. Vol.), § 9-105 of the Courts and Judicial Proceedings Article (“C.J.”).

In his view, the court’s ruling “flies in the face of important public policy [codified in the statute] and requires reversal.” While recognizing that defense counsel objected to the admission of the message, appellant concedes that his lawyer did not invoke the marital communication privilege. Rather, defense counsel argued that the tape had not been timely disclosed; the recording did not indicate the date that it was made; and it was not relevant. 2 The following colloquy at trial is pertinent: ⁶⁰⁵ [DEFENSE COUNSEL]: We had an objection to this tape. You said you were going to, I believe, reserve your ruling on this. THE COURT: What was your objection? [DEFENSE COUNSEL]: The objection was several-fold.

One, this tape was only turned over ... THE COURT: All right. Well, beside the date issue, the time and date, what other position do you have? [DEFENSE COUNSEL]: Just the relevancy of that. That’s a great leap of faith on the State’s part to say, well, this is what it shows.

THE COURT: Okay. It’s up to the jury. I’ll put it in. [PROSECUTOR]: Your Honor, my other question goes to whether or not I’m going to admit this part and parcel of the tape, the transcription which counsel (inaudible). THE COURT: What’s your reaction to that? [DEFENSE COUNSEL]: I’d really rather not. [PROSECUTOR]: It’s very difficult (inaudible). [DEFENSE COUNSEL]: Well, I take it my objection to the tape is overruled.

THE COURT: Yes, it is. [DEFENSE COUNSEL]: Okay. You can barely hear the tape itself and I have a problem with it coming in but, I understand your ruling on it. If I’m going to have to swallow ... THE COURT: Excuse me.

We’re beyond that. This is the issue of the transcript. [DEFENSE COUNSEL]: Then I would submit the transcript rather than the tape. THE COURT: So, you want the transcript? ⁶⁰⁶ [DEFENSE COUNSEL]: I don’t want the transcript in. I really don’t want anything to do with that.

But, I understand your ruling. Your Honor. But, if I have to swallow the poison, I’d swallow it in this direction. THE COURT: You can have the transcript come in. [DEFENSE COUNSEL]: Yes.

But, you understand, I object to it. THE COURT: I want you to preserve your objection. All right. Later, during Frazier’s testimony, the tape recording and the transcript of appellant’s phone message were admitted in evidence.

Defense counsel renewed his objection, and the court granted defense counsel a continuing objection on the grounds previously raised. We conclude that appellant failed to preserve the spousal privilege question for our review; despite articulating several grounds to support his objection, appellant never asserted the statutory spousal communication privilege. “First and foremost among the things that one claiming a privilege must do is actually to assert the privilege.” Ashford v. State, 147 Md.App. 1, 65 , 807 A.2d 732 , cert. denied, 372 Md. 430 , 813 A.2d 257 (2002). See also Klauenberg v. State, 355 Md. 528, 541 , 735 A.2d 1061 (1999) (“It is well-settled that when specific grounds are given at trial for an objection, the party objecting will be held to those grounds and ordinarily waives any grounds not specified that are later raised on appeal.”); Thomas v. State, 104 Md.App. 461, 465 , 656 A.2d 799 (1995)(where party asserts specific grounds for an objection, all other grounds not specified are waived); Maryland Rule 8-131(a). In the alternative, appellant urges us to review the matter under the plain error doctrine.

We need not address the question of whether to consider the issue under the plain error doctrine, as we discern no error in the admission of the recording and transcript. We explain. ⁶⁰⁷ C.J. § 9-105 is one of two privileges that protects confidential communications between husband and wife. Ashford, 147 Md.App. at 59 , 807 A.2d 732 ; see also Brown v. State, 359 Md. 180 , 753 A.2d 84 (2000). 3 C.J. § 9-105 provides: “One spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage.” (Emphasis added). As Judge Moylan explained for this Court in Ashford , the spousal privilege embodied in C.J. § 9-105 is available in both civil and criminal trials, and “may be asserted by the spouse who uttered the confidential communication.” Ashford, 147 Md.App. at 59 , 807 A.2d 732 ; see also Joseph F. Murphy, Jr., Maryland Evidence Handbook (3rd ed.1999), § 903, at 374-378; Lynn McLain, Maryland Evidence (2001), § 505:2, at 152-155. “Communications between husband and wife occurring during the marriage are deemed confidential if expressly made so, or if the subject is such that the communicating spouse would probably desire that the matter be kept secret, either because its disclosure would be embarrassing or for some other reason.” Coleman v. State, 281 Md. 538, 542 , 380 A.2d 49 (1977) (citation omitted).

In State v. Enriquez, 327 Md. 365, 372 , 609 A.2d 343 (1992), the Court said that “there is a rebuttable presumption that marital communications are confidential and privileged.” See State v. Mazzone, 336 Md. 379, 384 , 648 A.2d 978 (1994). But, that “presumption is rebutted ... where it is shown that the communication was not intended to be confidential.” Enriquez, 327 Md. at 372 , 609 A.2d 343 (citation omitted). Moreover, appellant had the burden of establishing “the element of confidentiality.... ” Ashford, 147 Md.App. at 69 , 807 A.2d 732 . When “the communication is made with the contemplation or expectation that a third party will learn of it, the ⁶⁰⁸ confidential communication privilege does not apply.” Matthews v. State, 89 Md.App. 488, 502 , 598 A.2d 813 (1991) (citation omitted).

For example, in Coleman, 281 Md. at 543 , 380 A.2d 49 , the Court explained that “the fact that a husband knew that his wife was unable to read without the assistance of a third party would rebut the presumption that a letter which he sent to her was intended to be confidential. Similarly, ... a husband’s communication to his wife to discuss a matter with certain other individuals was held not confidential.” (Citations omitted). See also Gutridge v. State, 236 Md. 514, 516 , 204 A.2d 557 (1964) (concluding that “message sought to be sent to the appellant’s wife through another cannot