Worthen v. State

Lowe, J., delivered the opinion of the Court. Lesley Clint Worthen was charged with statutory child abuse and common law assault and battery, each charge relating to an injury sustained by his stepchild. He was tried by a jury in the Circuit Court for St. Mary’s County, which convicted him of assault and battery, but exonerated him from child abuse. The State’s evidence was admittedly thin, resting upon the two basic factors of underlying proof of a crime that were described to the jury by the State as being, 1. the proof that ²² “a crime has been corrimitted,” {i.e., the corpus delicti) and 2. the proof that appellant committed it {i.e., criminal agency).

At argument the prosecutor contended that he had proven the corpus delicti when “[t]he doctor got on the stand and told ... about examining the child, the determinations he made, and that this was in his opinion a battered, abused child.” The prosecutor acknowledged that proof of criminal agency was substantially more difficult, pointing out that when a victim is a two-year-old infant, there is no one to put on the witness stand and to point a finger — “the State’s sort of up the creek----” However, he also pointed out to the jury that the Court of Appeals has addressed the problem, and has somewhat lightened his burden. “So, the law recognizes that [neither] this Assistant State’s Attorney nor any can call up a small child to point the finger, but it provides a way to point the finger.” Properly prefacing the new found solution with the appropriate caveat that “you cannot convict somebody here today based on a prior conviction,” he said: “But in a situation where you have an essential factual material element to prove, like criminal agency, in a case which in fact involved a child abuse case, the Court of Appeals has said that it was admissible as evidence — this was referring to prior beatings — of other offenses which, ‘has a natural tendency to establish or offers a reasonable presumption or inference as to a principal fact or issue or matter in dispute.’ And, of course, we have an issue in dispute: Mr. Worthen being the guy that did it. So, I can show to you that he has a tendency to do that by his prior acts." (emphasis added). The direct evidence of criminal agency of the crime charged, was that appellant had punished the child, a fact he ²³ admitted but sought to explain as not having exceeded the bounds of parental propriety. Appellant sought to explain the child’s more severe injuries by attempting to prove that certain of the injuries were accidentally received from sources unrelated to the punishment administered.

The case thus portended to be a very close one, turning almost entirely upon the degree to which appellant was believed by the jury to have corporally punished his stepdaughter. To convince the jury that the sole cause of the injuries was that Mr. Worthen intentionally exceeded the bounds of proper parental punishment, the State produced a witness who testified that Worthen had inflicted a recent similarly abusive punishment upon the child and that the witness had reported the incident to the authorities. It was this witness through whom the State intended to show that Worthen “has a tendency to do that [abuse the child] by his prior acts.” That the State intended to produce this witness was not divulged to appellant until the evening before the trial despite discovery having been propitiously sought. A continuance was prayed by appellant to investigate and plan a defense or counterattack.

This was denied. Vehement objection was timely made to the introduction of the evidence but this too was overruled, and the testimony was as devastating as portended. The Trial Sequence —motion for change of venue— It is evident from the record that appellant was especially vulnerable to evidence of such a prior offense in St. Mary’s County, a rural community environment where he had lived and where he was to be tried. In a pretrial hearing on appellant’s motion for change of venue, appellant brought out that a series of front page articles had appeared in “The Enterprise” newspaper, “Southern Maryland’s Leading Weekly Since 1883.” The first of this series began under the headline “Child Abuse,” and a subheadline, “It Does Happen Here.” There followed the “lead” article reciting in bold print ²⁴ the facts of a pending case presumably taken from an arrest report.

The facts indicated it could have been none other than this case, although appellant’s name was not used. “On Jan. 22, 1978, 2-year-old Cathy H. lay in a hospital bed at Bethesda Naval Hospital, suffering from multiple bruises and abrasions and a blood clot on the brain. Eighty miles away her stepfather was incarcerated in the St. Mary’s County Jail, charged for the second time with child abuse. The arrest report said, ‘On 1-21-78 at 0900 hours the above named defendant took his 2-year-old stepdaughter to the Naval Air Station Hospital for medical treatment. The child was examined by (a doctor) and the doctor found the child to have multiple contusions about the face, ribs, buttocks and legs.

(The doctor) stated that the child has symptoms of a possible subdural hematoma caused by a blow to the head.’ ‘(The doctor) stated that his examination revealed that the child appeared to have been abused. (The doctor) ordered that a complete set of x-rays and photographs be taken of the victim. The child.was later transferred to the Bethesda Naval Hospital for further treatment.’ ‘The defendant ... stated that he disciplined the child on 1-21-78 prior to taking the child to the hospital for medical treatment. The defendant stated that the child was throwing a temper tantrum, so he struck the child with his hand on the child’s buttocks.’ The Navy man was charged with child abuse and assault and battery and is awaiting trial in St. Mary’s County Circuit Court.

T have a very deep concern in this case,’ Assistant State’s Attorney John Pleisse said during a bond hearing. ‘The same charge, involving the same child, was handled as an assault and battery in this court.’ ” ²⁵ The articles that had followed during the three succeeding weeks dealt with various, often emotional, aspects of the crime of child abuse and the ways it should be handled as seen by others quoted in the media. In explaining what the “average public response to a child abuser” was, the paper quoted a county coordinator as saying, “ ‘Most people’s reaction is to want to put them in jail.’ ” The articles quoted “authorities” in various human nature fields of endeavor. For example, a respected local doctor was quoted: “ ‘When a child is bruised by a parent, if that is not abuse, it borders on it ... I believe in physical punishment.

But I get very upset when I see a child that’s been bruised.’ ” Expert opinions were summarized pointing to primary cause: “ ‘Most experts agree that child abuse repeats itself from parent to child, in a brutal, and sometimes deadly cycle.’ ”, which set an identifying stage for Worthen’s trial where the State elicited that appellant had also been an abused child. Among the witnesses appellant produced to support his removal request was a parole and probation officer who had “cause to know” appellant officially. 1 The officer testified in favor of removal because he, like the prior witness, was certain that the facts outlined in The Enterprise were easily recognizable as appellant’s pending case, and that “Because the case just about outlined his present circumstances, and I feel that if I wasn’t in the capacity I am in and I just read the articles and I was on the jury, it would certainly be fresh in my mind as to how I would feel about the case when it came before me.” The trial judge inquired exclamatorily: “That would apply to any article about any crime being committed that somebody was charged with, wouldn’t it?”, ²⁶ to which the witness responded as expected: “Probably would, Your Honor, if it outlined the case.” Applying the testimony generally, the court asked: “You feel, then, if I understand your testimony to be that any such articles as to any defendant would deny him and he couldn’t get a fair trial if it was published in a local paper that has general circulation around the county.” This elicited the witness’ rationale that: “If it goes down the line as that one did outlining the emotional situations such as child abuse and it brings it fresh before the person’s mind, I feel that they would prejudge the situation, same as the wife-beating articles that appeared not too long ago. They’re very informative and I feel we need more of it; however, if someone’s case, if it was outlined in those articles, if someone came before the jury for wife-beating charges within two weeks or a month of that, I feel it would be fresh on the jury’s mind as to how they feel about the situation.” In other words: “It’s fresh in people’s minds and it does outline [t]his particular case.” In addition appellant called a clinical social worker from the St. Mary’s County (Mental) Health Department who felt that appellant could not get a fair trial because: “I think they may have read the facts in the articles and made some decisions themselves about the cases that were presented.” He gave as an example four persons with whom he had discussed the articles. “Of the four people that spoke to me about the series it was evenly split. Two of them were saying that ²⁷ child abusers should go to jail, should be punished, and the other two were just wanting to know how you work with that type of patient.” He was not inclined to believe that voir dire could eliminate the danger of preconceived prejudice.

He felt a juror would not intentionally answer dishonestly, but stated that after reading the series of articles: “I’m just saying it might be difficult for a prospective juror to be in touch with their feelings about child abuse. They may have some unconscious feelings about it.” The appellant himself then testified that in his own opinion he could not receive a fair trial in that county due to the series of articles — the first of which described him so vividly. The State’s Attorney was most candid, and probably more convincing than the witnesses, in stating that the case should be removed. “Your Honor, if the Court please, I feel incumbent to make some comments aboid' the articles, primarily and specifically the first article. I would like to be perfectly candid with the Court and state that the facts set forth in the first three and a half columns of that article, the short columns, are remarkably in detail similar to the Worthen case and in fact certainly must be the Worthen case: dates, times, places.

I must also in complete candor indicate to the Court that what is set forth in this article as to the types of injuries which at the time of this article are, of course, allegation or would amount to a series of allegations all of which may not be substantiated by factual testimony. So, what Counsel has said is in fact true, that some of these things did not happen or cannot be medically proven, and that is based on our investigation. ... [M]y concern is that the connection of this factual situation with this series of articles does give me ²⁸ some concern. Many times we very strenuously oppose removals. In this particular instance because of the most accurate or going beyond accuracy to the detriment of the Defendant in this case and then the following articles which deal with the general problem, which deals with psychological problems of the abuser and so forth, gives me some great concern.

Mr. Sparling and I have discussed this in detail not only today but even initially when Mr. Bailey indicated he would seek a removal some week or so ago, I indicated to him that I would not oppose it. And I don’t know whether, though the State or the Defense can apply for it, I didn’t feel that it was appropriate for us to make the motion, be the moving party, but yet I don’t oppose it and I would either stipulate to it or consent to it, whichever would be the appropriate terminology.” The trial judge was unconvinced. He summarized the evidence as he viewed it and then, exercising his discretion under Md. Rule 744 (b) (see Gibson, Tate & Austin v. State, 17 Md. App. 246, 260 (1973)), he denied the request: “The Court doesn’t see it that way. I think these articles are somewhat of a factual disclosure.

There’s nothing in the articles that has any indication of trying to raise an outcry against those who may be involved in practices of child abuse. As frankly pointed out in one of the articles that the general reaction of the public to one who abuses a child, that he ought to be put in jail, but that’s a normal reaction but that doesn’t indicate prejudice. The question is could this Defendant be tried by an unprejudiced jury? I don’t see any affirmative showing here other than these articles and the skimpy testimony of Dr. Donahue or Mr. Donahue and Mr. Brown that makes any showing that he can’t.

Certainly it would seem to the Court that the voir dire that’s permitted under our law is ample to weed out those who may be prejudiced against this ²⁹ Defendant and who have prejudged the case either from the first article or any of these articles or from other information that they have received or because of just being biased against anyone who may be charged with a crime of this type. The Court, therefore, denies the Defendant’s petition for removal.” — motion for continuance — The judge’s denial of a removal despite the damaging and detailed publicity, when coupled with the appellant’s counsel having heard for the first time the night before trial that the State planned to produce a witness for the apparent purpose of testifying to a prior offense, added up to a need for an alternative tactic. Appellant sought some defense to offset the State’s newly acquired witness and the prior offense boost to the State’s previously none too stable case. Appellant moved for a continuance.

He advised the judge that even though he had propitiously prayed continuing discovery, the prior afternoon the State had first advised him of the witness that, at the last moment, it had decided to call. 2 The witness was concededly a harmful one. He was to testify, among other things, about a similar incident of appellant’s abuse of the same child victim, a year before. That incident had resulted in the witness’ reporting the abuse to the authorities. The court denied the motion for a continuance, but permitted counsel to interview the witness during the court’s midmorning recess: “Well, I probably will take a recess as usual around ten thirty, eleven o’clock, give them an opportunity ³⁰ to, the Defense the opportunity to discuss the testimony, which is proper, and with his client, and at that time we fail to see any prejudice that would be given to the Defendant, so the motion for continuance will be denied.” — jury selection and voir dire — The court proceeded with the jury selection.

Nine of the jurors of the nineteen member panel remaining (after several were stricken for cause) had read The Enterprise articles but assured the court that this fact would not prevent them “from reaching.a fair and impartial verdict based upon the evidence in this case.” That alone might give pause to appellant, but he asserts a more serious concern. Among the many questions asked to assure “impartiality and lack of bias,” the court asked: “Do any of you disapprove of physical discipline in the rearing of children?” The court excused two jurors who indicated such belief might affect their decision. A third answered hesitatingly, but was not excused. “JUROR: Edward Smith, No. 24. THE COURT: You disapprove of the physical discipline in the rearing of children, is that correct, sir?

MR. SMITH: (No response) THE COURT: Would this fact prevent you from reaching a fair and impartial verdict based upon the evidence in this case? MR. SMITH: I would like to think not.

THE COURT: I can’t hear you. MR. SMITH: I think not. THE COURT: Very well, sir, yoü may be seated.” In light of the 9 jurors who admitted having read some of The Enterprise articles, appellant again renewed his motion ³¹ for removal before proceeding to exercise his peremptory strikes.

It was again denied. Appellant then asked: “I would move that Juror No. 24, Mr. J. Edward Smith, because of his answer to question number seven, he was very hesitant in answering that question and he indicated that he thought not, but I still feel, Your Honor, because of this hesitancy he has displayed to the Court a real reservation as to his ability to fairly sit on this trial, and I would ask that he be excused by the Court.” The court denied the motion with reasoning, the last part of which was not too reassuring: 3 “I think the mere fact that he hesitated shows that he’s given it reflection and thought, rather than just answering it offhand. Of course, the Court notes that you have your strikes, so that’s the reason we do allow certain people to get off.” The State then conceded one of its strikes of the 19 person panel, in order that the combined challenges would leave 12 jurors able to serve. Counsel then renewed the motion for a continuance relative to the surprise witness.

He asked for time to investigate the serious accusations of a previous incident of the same nature ³² and to “have the opportunity of possibly having rebuttal witnesses against them.” Although the State did not object to “passing the case” (pointing out that both Thursday and Friday of that week were open for the court and the State), the court denied the motion, suggesting that the defense counsel have an investigation conducted during the trial, before the State got to the witness. “THE COURT: Well, he’s going to take some time. Couldn’t you have your investigator go out now and check this out? You have one assigned to your department, don’t you? MR.

BAILEY: I have a fellow available to me, Your Honor, but, you know, a couple hours’ notice is not, would not give my man an adequate opportunity. I believe my schedule basically, I think my schedule is basically open for Friday. THE COURT: Well, the Court doesn’t feel inclined at this time to grant a continuance. Go ahead and see how things develop.

I don’t know what the fellow will testify to. So, the motion will be denied.” — the trial — The trial itself boded no better for appellant. His renewed motion for continuance and preliminary objections to prior offense testimony about to be elicited from the surprise witness were all denied. 4 Not only was the testimony of the prior offense devastating, but the newly discovered witness closed his direct testimony with a clearly objectionable ³³ remark relating to “the sexual assault on the baby, or whatever,” despite there being no evidence whatsoever of a sexual assault. Objection, followed by a motion to strike, were both denied. 5 But apparently during cross-examination the trial judge had some second thoughts.

He called counsel to the bench and had the reporter read the last two questions and answers given on direct examination. Upon hearing them, he decided to instruct the jury to strike the response: “Mr. Foreman, ladies and gentlemen of the jury, during the testimony of Mr. Palmer he made a remark relative to sexual assault. The Court feels that that is a conclusion and will ask you at this time to disregard that remark and it will be stricken from the record and you will not consider that when you consider your verdict in this case, nor will the ³⁴ attorneys, any of them, further make mention of this.” It is to be assumed that the jury followed the instruction, Gerstein v. State, 10 Md. App. 322, 329 (1970), although some of the finest legal minds have been the harshest critics of curative instructions, calling them “intrinsically ineffective,” Paoli v. United States, 352 U. S. 232, 247 (1957) (Frankfurter, J., dissenting), and referring to their penchant for purging prejudice as “unmitigated fiction.” Krulewitch v. United States, 336 U. S. 440, 453 (1949) (Jackson, J., concurring). See McKnight v. State, 280 Md. 604, 615 (1977).

Despite the merit of such reasoning (see Pearson v. State, 28 Md. App. 196, 203 (1975), dissenting opinion, cert. granted, 276 Md. 748 (1975)), it is wrong. Pearson v. State, 28 Md. App. 196 , cert. dismissed as improvidently granted, No. 113 (filed March 4, 1976). — the instructions — The case concluded as it began. Appellant’s attorney (John D. Bailey, Esquire) asked for a mitigating instruction which would have comported with his defense. He pointed out to the trial judge that: “The only other thing that I have, Your Honor, on page 203 of Maryland Jury Instructions, page 203 starting with ‘A person ...’, you read all of that section that applies to .the conviction, you know, but not those areas of mitigation.” 6 - What the judge instructed was verbatim from D. Aaronson, Maryland Criminal Jury Instructions and Commentary 203 (1975).

He said: “Under child abuse, ‘the offense of child abuse is committed when any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child maliciously beats, strikes or ³⁵ otherwise mistreats such minor child to such degree as to require medical treatment. In order for you to find the Defendant guilty of this offense the State must prove beyond a reasonable doubt that, one, the victim was a child under the age of eighteen; two, the accused is either the parent, the adoptive parent or other person having the permanent or temporary care or custody or responsibility for the supervision of the child; three, there was a physical injury or injuries sustained by the child; and, four, the physical injury or injuries resulted from cruel or inhumane treatment or as a result of a malicious act or acts. The Defendant must have knowingly and wilfully caused injuries, and these injuries must have required the care and treatment of a physician.’ ” 7 The court denied Mr. Bailey’s exception to the charge. “You can argue that to the jury. I think the gist of it is in there.” The portion omitted over appellant’s counsel’s objection was most significant.

It read: “A person is not guilty of this offense [child abuse] if he had good intentions but exercised bad judgment. If the child was injured in a fashion consistent with reasonable norms of parental control then the defendant is not guilty. Unless you find that the defendant substituted a willful and malicious desire to inflict harm and pain in place of a genuine effort to correct the child by acceptable means, you must find the defendant not guilty.” D. Aaronson, Maryland Criminal Jury Instructions and Commentary 203. — the argument — With no other recourse, Mr. Bailey took the advice of the court and argued the omitted instruction to the jury ³⁶ explaining that it was the next succeeding paragraph in the book from which the judge had read. Even then, it was turned to appellant’s disadvantage when the prosecutor pointed out in his closing argument that the judge had chosen not to read those instructions, thereby implying a judicial sanction of the State’s position. “Mr. Bailey talked about the fact that, and he read some additional instructions, ones which the Judge chose not to read, by the way, about this had to be done knowingly and wilfully by the Defendant.

You heard the Judge read the statute from Article 27, Section 35A. Nothing in that statute on child abuse that said it had to be wilful or knowingly done. It did say it had to be inhumane or maliciously done. Malice can be inferred from actions, the intentional doing of something can infer malice.

Doing something even without intent can show malice just by the mere action.” Having been convicted of assault and battery — but not of child abuse — appellant points to the denial of his motions in every instance, from removal to instructions, as an abuse of discretion. He adds as an additional reason for us to reverse that: “The child abuse statute, Article 27, Section 35A preempts and supersedes the common law crime of assault and battery upon a child by a parent or person acting in loco parentis and precludes Appellant’s conviction and criminal liability for the offense under the common law.” The Appeal — preemption — For purposes of this case, we can with short shrift dispose of appellant’s additional contention. It relies primarily on our borrowed observation in Dill v. State, 24 Md. App. 695, 703 (1975), quoting State v. Salafia, 29 Conn. Supp. 305 : “ ‘When there is disparity in the punishment ³⁷ applicable to the offense as a common-law crime and as a statutory violation, it would be a palpable absurdity to hold that the common law had not been supplanted by the statute.’ ” To carry appellant’s reasoning to its logical conclusion by judicially imputing such legislative intent in the instant case, would also be a “palpable absurdity.” If assault is