Zaal v. State

⁴³² ALPERT, Judge. We are called upon for the first time to decide whether a criminal defendant charged with child sexual abuse is entitled, pursuant to COMAR 13A.08.02.20, 1 to inspect the child’s school records. Iwan Zaal, appellant, appeals to us from a conviction of one count of child abuse that followed a jury trial in the Circuit Court for Montgomery County (the Hon. Peter Messitte, presiding).

FACTS The victim was born on July 27, 1977; she was twelve years old when this incident occurred. At trial, the victim testified that she was home alone when appellant, her grandfather, arrived on March 30, 1989, to take her for an outing. Appellant and the victim previously planned to go to the zoo together. When appellant arrived, he told her that he could not take her to the zoo because he had to work.

He proposed instead that they go to the movies and out to lunch. The victim telephoned her mother at work to ask permission to go to the movies. Her mother gave her permission to do so. Appellant and the victim returned to her home at about 3:30 p.m. that day.

The victim changed from a skirt into a pair of oversized shorts. She went into the living room and sat on the couch next to appellant. At that point, appellant started talking about prior sexual encounters that he had had. Appellant then put his hand on the uppermost part of the victim’s thigh.

The victim, in an attempt to change the ⁴³³ subject, asked appellant to come into her room so that she could show him what she had bought with the $20.00 which he had given her because of her good report card. Appellant laid down on the victim’s bed and pulled her on top of him. When she felt something go into her vagina, she jumped up, went back into the living room, and sat on the couch. Appellant sat down beside her and touched the victim’s vagina with his index finger for about two minutes.

He also took the victim’s hand and placed it on his penis. The victim jumped up, told appellant that he had to leave, and opened the door for him to do so. Once appellant had gone, the victim telephoned her mother at work, waiting until her mother came home to tell her everything. Her mother then called the police.

The detective who investigated the incident testified at trial. Appellant stated that he was born on April 19, 1929. Appellant told the detective that the victim took his hand, placed it between her legs, and said, “I did it for my daddy.” Later, she touched him and said “Now my father can get you.” Appellant’s brother, Phillip, testified at trial on appellant’s behalf. Phillip described the nature of the relationship that existed between appellant and appellant’s son, the victim’s father.

Phillip stated that the victim’s father visited Phillip at his place of employment and told Phillip that he was “going to get [appellant] one way or another.” PROCEEDINGS Before trial, appellant subpoenaed the victim’s school records from the Montgomery County Board of Education (the Board). Relying on COMAR 13A.08.02.20B, the Board responded by filing a motion for a protective order. At the hearing on the motion, appellant argued that the school records were integral to an effective cross-examination of the victim, i.e., to demonstrating the victim’s credibility as a witness by exploring motivation, bias, and veracity. Appellant proffered that the victim attended a “special class ⁴³⁴ room” because of an’ “emotional disturbance,” and suggested that this was an area to be explored because there could be “a physical basis that would relate to her capacity to observe and relate,” or “a mental deficiency leading to an inability to control actions.” Further, appellant indicated that “extreme antagonism had existed for a number of years between himself and the victim’s father.” Thus, if the victim were aware of that hostility, it could have biased her or even have caused her to fabricate the incident.

After an in camera review of the school records, the Circuit Court for Montgomery County denied appellant access to the records because the court found nothing in the record that would be admissible for impeachment purposes. As a result, the court concluded that the victim’s privacy interests weighed against disclosure of the records. At the end of the trial, a jury convicted appellant of one count of child abuse. The court declared a mistrial on the other counts of third degree sexual offense because the jury was unable to reach a unanimous verdict.

On February 23, 1990, the court sentenced appellant to eighteen months in prison, all but one year suspended, with a two-year probation period that was to begin upon appellant’s release. Appellant filed a notice of appeal on March 5, 1990 and asks the following questions: I. Was the evidence legally sufficient to permit any rational trier of fact to find that appellant had the permanent or temporary care, custody, or responsibility for supervision of the victim?

II

Did the trial court commit reversible error when it granted the Board of Education’s motion for a protective order, thus denying appellant access to the victim’s school records? I. Appellant contends that there was insufficient evidence to support his conviction of child abuse. ⁴³⁵ When an appellate court reviews the sufficiency of the evidence to support a criminal conviction, the standard that it must apply is “whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 , 99 S.Ct. 2781, 2788 , 61 L.Ed.2d 560 (1979); Tichnell v. State, 287 Md. 695, 717 , 415 A.2d 830 (1980). The standard does not require a court to “ ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Jackson, 443 U.S. at 318-19 , 99 S.Ct. at 2788-89 (emphasis in original) (citation omitted); Tichnell, 287 Md. at 717 , 415 A.2d 830 . Rather, the appellate court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 , 99 S.Ct. at 2789 (emphasis in original); Tichnell, 287 Md. at 717 , 415 A.2d 830 .

The standard is the same whether the evidence is direct or circumstantial. Wilson v. State, 319 Md. 530, 535-37 , 573 A.2d 831 (1990). Article 27, section 35A(b) states that “[a] parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child who causes abuse to the child is guilty of a felony and on conviction is subject to imprisonment in the penitentiary not exceeding 15 years.” Md.Ann.Code art. 27, § 35A(b) (1987 & Supp. 1990). Appellant argues that there was insufficient evidence to support the requirement that he have “permanent or temporary care or custody or responsibility for supervision” of his granddaughter.

The phrase “permanent or temporary care or custody” encompasses all persons who stand in loco parentis to a child, i.e., one who intentionally assumes the parental status and discharges parental duties, not just those who have custody by judicial decree. Pope v. State, 284 Md. 309, 321-23 , 396 A.2d 1054 (1979). The Court of Appeals has noted, however, that the phrase is not synonymous with “responsibility for the supervision of,” because the legisla ⁴³⁶ ture added the latter provision three years after it had enacted the former into law. Id. at 322 , 396 A.2d 1054 . “A person may have the responsibility for the supervision of a minor child in the contemplation of § 35A although not standing in loco parentis to that child.” Id. at 328, 396 A.2d 1054 .

It is self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility. Id. “[T]he existence of the requisite responsibility is a question of fact for the jury.” Newman v. State, 65 Md.App. 85, 99 , 499 A.2d 492 (1985). We hold that the evidence in this case, when viewed in the light most favorable to the State, was sufficient for the jury to conclude beyond a reasonable doubt that appellant had assumed responsibility for the supervision of the victim. The victim, a twelve-year-old girl, was at home alone while her mother was at work.

The victim called her mother for permission to go to the movies and out to lunch when the previously arranged — and presumably, previously approved — plan for appellant and the victim to visit the zoo did not work out. The victim’s mother subsequently granted the victim permission to accompany appellant. A jury might reasonably infer that the victim’s mother impliedly agreed to give responsibility for the victim to appellant when she gave the victim permission to accompany him and that appellant accepted that responsibility when he took the victim from her home. We hold that the record evidence is sufficient to reasonably support a finding of guilt beyond a reasonable doubt.

II

Appellant contends that the trial court erred when it granted the Board’s motion for a protective order. Appellant argues that by denying the motion, the court violated ⁴³⁷ his rights under the federal and state constitutions. Specifically, appellant claims that the trial court denied him his right to confront his accusers, his right to compulsory process, his right to effective assistance of counsel, and his right to due process. In State v. Runge, 817 Md. 613 , 614, 566 A.2d 88 (1989), the Court of Appeals recently addressed whether a criminal defendant charged with child abuse was entitled to the disclosure of the county department of social services’ records pertaining to the victim.

Because the defendant in that case based his claim of entitlement solely on the statute which regulates the disclosures of such records, the Court of Appeals did not apply disclosure principles established in other cases. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987). Thus, we find Runge inapposite to the instant case and rely on the Supreme Court’s analysis in Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987), to support our decision. A. In Ritchie , the Supreme Court addressed the question “whether and to what extent a State’s interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant’s Sixth and Fourteenth Amendment right to discover favorable evidence.” Id. at 42-43 , 107 S.Ct. at 993-94 .

The State had charged Ritchie with various sexual offenses against his 13-year-old daughter. Id. at 43 , 107 S.Ct. at 994 . During pretrial discovery, Ritchie subpoenaed records that pertained to his daughter from Children and Youth Services (CYS), a state agency responsible for the investigation of suspected child abuse. Id.

Ritchie hoped to find in those records a medical report, witness names, and other unspecified exculpatory evidence that he could use in his defense. Id. at 44 , 107 S.Ct. at 994 . CYS refused to release the records on the grounds that they were ⁴³⁸ privileged under Pennsylvania law. Id. at 43 , 107 S.Ct. at 994 .

The state statute provided that all information related to a CYS investigation must be kept confidential, subject to certain exceptions. Id. at 43-44 , 107 S.Ct. at 994 . One such exception was that CYS could release its records to “ ‘a court of competent jurisdiction pursuant to a court order.’ ” Id. at 44 , 107 S.Ct. at 994 . The trial court held a hearing on Ritchie’s motion for sanctions, which he filed when CYS failed to release the records.

Id. Without examining the records, the court accepted the agency’s assertion that there was no medical report in the records. Id. The trial court then denied Ritchie’s motion and refused to order CYS to disclose the records.

Id. At the end of trial, the jury convicted Ritchie on all counts and the court sentenced him to 3 to 10 years in prison. Id. at 45 , 107 S.Ct. at 995 . Ritchie appealed to the Pennsylvania Superior Court, contending that the lower court’s failure to disclose the CYS records violated his right to confrontation under the Sixth Amendment.

Id. The Superior Court held that there had been a constitutional violation and thus vacated the conviction and remanded the case. Id. On the confrontation issue, the court held that Ritchie was not entitled to full disclosure.

Id. The trial court was to review the records in camera and release only those verbatim statements that his daughter had made to the CYS counselor. Id. Then, the court was to make the entire record available to Ritchie’s lawyer to allow him to argue the relevance of those statements.

Id. On further appeal, the Supreme Court of Pennsylvania affirmed the Superior Court’s decision to vacate and remand the case to determine whether there should be a new trial. Id. at 46 , 107 S.Ct. at 995 . That court, however, concluded that Ritchie — through counsel — was entitled to review the entire record for useful evidence.

Id. The court concluded that the trial court had violated Ritchie’s rights under both the Confrontation Clause and the Compulsory ⁴³⁹ Process Clause 2 when it denied him access to the file because he lost “the opportunity to have the records reviewed by ‘the eyes and the perspective of an advocate,’ who may see relevance in places that a neutral judge would not.” Id. The United States Supreme Court affirmed in part and reversed in part. Id.

Confrontation Clause The Court began by noting that the Confrontation Clause gives criminal defendants “the right to physically face those who testify against [them], and the right to conduct cross-examination.” Id. at 51 , 107 S.Ct. at 998 . Ritchie alleged that the trial court violated his right of cross-examination when it denied him access to the records because he needed that information to formulate his defense. Id. That is, “he did not know which types of questions would best expose the weaknesses in her testimony” without the information in the CYS records.

Id. The Court explained that “the right to confrontation is a trial right”, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.[ ] The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Id. at 52-53 , 107 S.Ct. at 998-99 (citations omitted) (emphasis in original). Thus, the Court concluded that the lower court did not violate the Confrontation Clause when it withheld the CYS records.

Id. at 54 , 107 S.Ct. at 989 . Such a violation would have occurred only if the court had ⁴⁴⁰ prevented Ritchie’s lawyer from cross-examining Ritchie’s daughter. Id. Compulsory Process Clause The Court then turned to the Sixth Amendment’s guarantee of compulsory process.

Id. at 55 , 107 S.Ct. at 1000 . The Court found that prior cases had established, “at a minimum, that criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.” Id. at 56 , 107 S.Ct. at 1000 . The Court explained that it had “never squarely held that the Compulsory Process Clause guarantees the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence.” Id. (emphasis in original).

Rather, the Court indicated that it had traditionally evaluated claims such as Ritchie’s under the Due Process Clause of the Fourteenth Amendment. Id. As a result, the Court concluded that a due process analysis was a more appropriate framework for review. Because the applicability of the Sixth Amendment to this type of case is unsettled, and because our Fourteenth Amendment precedents addressing the fundamental fairness of trials establish a clear framework for review, we adopt a due process analysis for purposes of this case.

Although we conclude that compulsory process provides no greater protections in this area than those afforded by due process, we need not decide today whether and how the guarantees