Brooks v. State , 439 Md. 698 ( 2014 )

Wardell Monroe Brooks v. State of Maryland
No. 46, September Term 2013
Evidence - Impeachment of Witness - Prior Inconsistent Statement. To impeach a
witness with extrinsic evidence of a prior allegedly inconsistent oral statement, a party must
satisfy the conditions set forth in Maryland Rule 5-613. If the only extrinsic evidence offered
is a written summary of the prior oral statement, it must be a substantially verbatim version
of the oral statement unless the witness who made the oral statement has previously adopted
or ratified the writing as an accurate summary of the prior oral statement.
Evidence - Opinion Testimony - Expert Forensic Nurse - Veracity of Another Witness -
Harmless Error. In a case involving an alleged rape, a prosecutor may ask an expert
forensic nurse who examined the complaining witness whether the events that the
complaining witness reported to the nurse were “consistent or inconsistent with” the physical
injuries observed by the nurse during that examination. The nurse’s response that the
observed injuries “would verify” the story of the complaining witness, although in some
respects synonymous to an appropriate response to the question, might be construed as an
impermissible evaluation of the veracity of another witness. In a case in which the
prosecutor posed the question in the correct manner, in which the nurse’s testimony
otherwise concerned the details of the complaining witness’s physical injuries rather than her
credibility, in which the prosecution did not suggest in closing argument that the nurse had
vouched for the complaining witness’s credibility, and in which there was overwhelming
evidence of a violent sexual assault, the trial court’s decision not to strike the nurse’s answer
was, at worst, harmless error.
Sentencing - Merger of Convictions - Rape and False Imprisonment. Two convictions
merge for sentencing purposes if (1) they are based on the same act or acts and (2) one
offense is a lesser-included offense of the other under the required evidence test. Under
Nicolas v. State, 426 Md. 385, 44 A.3d 306 (2012), a court is to resolve factual ambiguities
in favor of the defendant. When the record was ambiguous as to whether the jury’s guilty
verdict on a false imprisonment court was based on the same act or acts as its guilty verdict
on a first degree rape count, the defendant’s conviction for false imprisonment should have
been merged into the conviction for first degree rape.
Circuit Court for Harford County
Case No. 12-K-08-001815
Argued: February 7, 2014
IN THE COURT OF APPEALS
OF MARYLAND
No. 46
September Term, 2013
W ARDELL M ONROE B ROOKS
v.
S TATE OF M ARYLAND
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Opinion by McDonald, J.
Adkins, J., concurs.
Harrell and Greene, JJ., dissent.
Filed: August 27, 2014
A jury in Harford County convicted Petitioner Wardell Monroe Brooks of one count
each of first degree rape, second degree rape, second degree assault, and false imprisonment.
Mr. Brooks was sentenced to life imprisonment, all but 50 years suspended, for the first
degree rape conviction, and a consecutive 40-year prison sentence, all but 20 years
suspended, for the false imprisonment conviction. The court merged the convictions for
second degree assault and second degree rape into the conviction of first degree rape. The
convictions were affirmed by the Court of Special Appeals.
Before us, Mr. Brooks asserts that his convictions should be reversed because the trial
court made erroneous evidentiary rulings when it: (1) declined to admit into evidence a
police report that contained a prior allegedly inconsistent oral statement of the complaining
witness and (2) failed to strike testimony of an expert forensic nurse who had examined the
complaining witness and who testified that the complaining witness’s physical injuries
“would verify” what she had told the nurse about her encounter with Mr. Brooks. In the
event that we do not reverse his convictions, Mr. Brooks argues that his conviction for false
imprisonment must be merged into his conviction for first degree rape for sentencing
purposes and that, accordingly, the consecutive sentence imposed for false imprisonment
should be vacated.
We hold that the Circuit Court properly excluded the police report. We further hold
that, even if the nurse’s statement that the injuries she observed “would verify” the account
of the complaining witness could be construed as an impermissible comment on the veracity
of another witness, it was harmless error under the circumstances of this case. Finally, we
hold that, under the facts of this case, Mr. Brooks’ conviction for false imprisonment should
be merged into his conviction for first degree rape.
Background
The Trial
We briefly summarize the evidence at trial. The circumstances surrounding the
rulings on the two evidentiary issues that are the subject of this appeal are described in
greater detail in conjunction with the analysis of those issues later in this opinion.
Prosecution Case
In the fall of 2008, Laura B.,1 a 62-year-old resident of Alabama, was staying at the
Harford County home of her deceased mother in order to prepare the home for auction.
While doing yard work one day, she met Mr. Brooks, a 53-year-old man who worked as a
“handyman,” when he walked by her mother’s home. Laura B. offered to hire him to weed
and clean up a ditch in the yard. Mr. Brooks agreed and returned the next day to do the work.
Laura B. hired Mr. Brooks several other times to perform odd jobs and, on several
occasions, drove Mr. Brooks home, approximately three miles from her mother’s house.
According to Laura B., Mr. Brooks would stop by to look for work from time to time, and,
when Laura B. told him that she did not have money to hire him, Mr. Brooks would “chit
chat” and “just kind of hung around.”
1
Consistent with the convention adopted by the Court of Special Appeals and the
parties in their briefs, we refer to the complaining witness in this case by her first name and
the first initial of her last name.
2
Laura B. testified that, in the early evening hours of October 9, 2008, she was taking
a nap in a bedroom in her mother’s house when she was awakened by a noise. She went back
to sleep, thinking that her sister had come in the house. When she next opened her eyes, Mr.
Brooks was standing beside her bed with his pants on the floor and demanding sex. She
asked Mr. Brooks why he was in her bedroom and told him he was not supposed to be in the
house. When she said, “You need to get out of here,” and tried to push him toward the
bedroom door, Mr. Brooks grabbed her hair and began to drag her. She picked up a ceramic
statue, which was being used as a doorstop, and struck Mr. Brooks on the head with it,
shattering the statue. Mr. Brooks began to beat and choke her. Pleading with him to stop,
Laura B. told Mr. Brooks that she would submit to his demands but that she needed a
moment. He stopped attacking her.
With Mr. Brooks behind her, Laura B. went to the living room, drank some water, and
smoked a cigarette. After a while, Mr. Brooks said “it was time,” and she went in the
bedroom, where Mr. Brooks forced her to have sexual intercourse. She testified that, during
intercourse, Mr. Brooks was bleeding from his head wound. Experiencing physical pain and
wondering when Mr. Brooks would stop, Laura B. asked for a “break.” Mr. Brooks allowed
her to get up and go to the living room. According to Laura B., he then followed her around
the house like a “shadow.” She asked Mr. Brooks to leave her alone. He responded that
“This is nothing” and told her not to call the police or anyone else.
3
Laura B. eventually ran back into the bedroom ahead of Mr. Brooks, dialed 911 on
the telephone, and immediately hung up. When the 911 operator called back, Mr. Brooks
told her not to answer it. Laura B. told him that the caller was probably her sister, who would
come to the house if she did not answer the telephone. Laura B. answered the call and
pretended to be speaking with her sister. The 911 operator, eventually realizing that Laura
B. might be in danger, informed her that the police would be dispatched.2 Laura B. laid the
telephone down, told Mr. Brooks that she needed a drink, and went to the kitchen. When she
realized that Mr. Brooks had remained in the bedroom, she ran down to the basement and out
of the house, grabbing some clothes from a clothesline. She hid outside the house until the
police arrived.
Mr. Brooks was arrested as he left the house through the back door. Laura B. was
subsequently taken by ambulance to Harford Memorial Hospital, where she was examined
by a nurse.
Deputy Sheriff Jesse Faby, the first officer to arrive at Laura’s B’s home, testified that
he was dispatched to the home while patrolling nearby. When he arrived, he found Laura B.
standing in her driveway. He remained at the scene until the investigation was completed.
During cross-examination, Deputy Faby stated that he spoke to Laura B. at the scene before
she went to the hospital and that he “jotted down basic information” after their conversation
2
A recording of the 911 call was played for the jury at trial.
4
and later generated a report using those notes. Defense counsel moved to admit Deputy
Faby’s report into evidence, but the trial court denied the motion.
Other law enforcement officers described how the sheriff’s office processed the scene
for evidence. Forensic scientists from the Maryland State Police Laboratory testified about
the collection of evidence at the house, the DNA profile developed on that evidence, and its
match to Mr. Brooks. Eighteen items, including a bed sheet, a quilt from the bed, and the
broken statue that Laura B. had used to strike Mr. Brooks, were retrieved from the house and
taken to the Crime Scene Unit where they were eventually packaged and sent to a lab for
testing. DNA swab samples were collected throughout the house and from Mr. Brooks.
DNA analysis established that Mr. Brook’s DNA profile matched the DNA profile obtained
from Laura B.’s shirt and the quilt. DNA from more than one individual was obtained from
penile swabs of Mr. Brooks, although Mr. Brooks was “the major contributor” to the DNA
obtained from those swabs.
The prosecution called nurse Phyllis Harden, a certified Sexual Assault Forensic
Examiner (“SAFE”), who examined Laura B. a few hours after Laura B. arrived at the
hospital. Nurse Harden had been a registered nurse since 1979 and a SAFE nurse since 2000.
As of the time of trial, she had conducted more than 200 sexual assault forensic
examinations. The Circuit Court qualified her as an expert in “forensic nursing examinations
with an emphasis in sexual assaults.”
5
Nurse Harden testified that she had interviewed Laura B. as part of the examination.
Her notes of that interview, in which Laura B. provided an account of that evening essentially
the same as her testimony in court, were admitted into evidence over a defense objection.
Nurse Harden then testified in detail about the injuries she observed on Laura’s face, arms,
knees, and thighs, and “a very profound” injury to her genitalia “caused by blunt force
trauma.” Her written report and photographs of Laura B.’s injuries were admitted into
evidence. At the end of her direct examination, the prosecutor asked Nurse Harden for her
opinion as to whether Laura B.’s statement to her was “consistent or inconsistent with” the
injuries she had observed in her physical examination of Laura B. Nurse Harden responded
that her examination “would verify” what Laura B. had told her. The defense objected and
moved to strike Nurse Harden’s statement, but the Circuit Court overruled the objection and
declined to strike the testimony.
Defense Case
The only defense witness was Mr. Brooks, who testified that he and Laura B. had
engaged in consensual sex. He testified that, on the night in question, he had walked from
a bar to Laura B.’s house to ask for a ride home. He knocked on her back door, and when
Laura B. came to the door, he asked her for a ride, at which point she invited him into the
house.
According to Mr. Brooks, once in the kitchen, he asked Laura B. if she had work for
him to do, and he agreed to clean her windows. Mr. Brooks testified that, because Laura B.
6
did not have any money, she agreed to have sex with him in exchange for the window
cleaning. According to Mr. Brooks, they then had consensual sex in the bedroom. When Mr.
Brooks informed Laura B. that he could not come back the next day to clean the windows,
but would come two days later, she became upset and hit him with a statue, leaving him
“dazed.”
Mr. Brooks denied hitting, striking, or assaulting Laura B. in any manner, but admitted
that he threw “something” at her “because she hit [him].” However, he said that he did not
remember much about what happened that night. He testified that he tried to leave Laura
B.’s house through the back door when he saw police lights because that was the door
through which he had entered the house. He denied telling Laura B. not to answer the phone
or following Laura B. around the house.
Verdict and Sentence
On January 29, 2010, after five days of trial, the jury returned a verdict finding Mr.
Brooks guilty of first degree rape by threat, second degree rape, second degree assault, and
false imprisonment. The jury acquitted Mr. Brooks of rape in the first degree with a
dangerous weapon, rape in the first degree in connection with a burglary, first degree assault,
and first degree burglary.3
3
The trial court had granted a motion for judgment of acquittal with respect to a charge
of wearing and carrying a dangerous weapon.
7
On April 13, 2010, the Circuit Court sentenced Mr. Brooks to life imprisonment, all
but 50 years suspended, for the first degree rape conviction, and a consecutive 40-year prison
sentence, all but 20 years suspended, for false imprisonment. The court merged the second
degree assault conviction and second degree rape conviction into the first degree rape
conviction for sentencing purposes, but declined to merge the false imprisonment conviction
into the first degree rape conviction.
Appeal
Mr. Brooks appealed to the Court of Special Appeals, which affirmed the judgments
of the Circuit Court in an unreported opinion. One member of the panel would have reversed
the convictions on the ground that it was error not to strike Nurse Harden’s statement that
Laura B.’s injuries “would verify” her version of events and that such an error was not
harmless.
Mr. Brooks filed a petition for certiorari, which we granted to consider two
evidentiary issues and, if the convictions are affirmed, one sentencing issue. In particular,
we are asked to consider the following three questions:
(1) Whether the Circuit Court should have admitted into evidence, under Maryland
Rules 5-613 and 5-616, extrinsic evidence of a prior allegedly inconsistent oral statement of
Laura B. in the form of a police report and, if so, whether the failure to do so was harmless
error.
8
(2) Whether the Circuit Court should have struck the statement of Nurse Harden
that her forensic examination of Laura B. would “would verify” what Laura B. had told her
about her encounter with Mr. Brooks and, if so, whether the failure to do so was harmless
error.
(3) Whether the Circuit Court should have merged the conviction for false
imprisonment into the first degree rape conviction for sentencing purposes.
Evidentiary Issues
A. Standard of Review
The standard of appellate review of an evidentiary ruling turns on whether the trial
judge’s ruling was based on a pure question of law, on a finding of fact, or on an evaluation
of the admissibility of relevant evidence. Questions of law are reviewed without according
the trial judge any special deference; findings of fact are assessed under a “clearly erroneous”
standard; and an assessment of the admissibility of relevant evidence is reviewed under an
abuse of discretion standard. See, e.g., J.L. Matthews, Inc. v. Maryland-National Capital
Park and Planning Comm’n, 368 Md. 71, 92, 792 A.2d 288 (2002); Ruffin Hotel Corp. of
Maryland, Inc. v. Gasper, 418 Md. 594, 620, 17 A.3d 676 (2011). For example, a ruling on
whether relevant evidence should be admitted or excluded under Maryland Rule 5-403 4
4
Rule 5-403 allows a court to exclude relevant evidence if “its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”
9
would be subject to review under an abuse of discretion standard while a determination of
whether a statement is hearsay is a legal question subject to de novo review. Compare State
v. Simms, 420 Md. 705, 724-25, 25 A.3d 144 (2011) with Parker v. State, 408 Md. 428, 437,
970 A.2d 320 (2009). Both of the evidentiary issues before us ultimately depend on a
question of law and accordingly we review the trial court’s rulings without according them
special deference.
B. Whether the Police Report was Admissible
Foundation Laid by Defense Counsel, Offer of Report, and Court Ruling
At trial, Laura B. testified on direct examination, that she was taking a nap on the
night of the alleged rape, and that she first knew that Mr. Brooks was in her house when she
heard a noise, awoke, realized an intruder was in her bedroom, and recognized Mr. Brooks.
On cross-examination, defense counsel sought to impeach Laura B. through a police report
by Deputy Faby. Among other things, that report summarized his brief conversation with
Laura B. that night after the police arrived at her home. The portion of that report that was
allegedly inconsistent with her trial testimony stated:
... Upon arrival on the scene, Dfc. Faby made contact with the
complainant [Laura B.]. When asked what had happened,
[Laura B.] advised the following. She advised that she had
Wardell Brooks over to her house at 1930 hrs. She advised that
during this time, Mr. Brooks said “I want some pussy.” She
advised that she told him no but he kept following her around
the house. She advised that she went into her bedroom to take
a nap. She was awoken by the sound of him stumbling through
the bedroom door. She saw that he was not wearing a shirt and
had his pants down around his ankles.…
10
While the report was consistent with Laura B.’s testimony that she was raped by Mr. Brooks,5
the defense argued that it could be interpreted to mean that Laura B. had invited Mr. Brooks
to her house that evening, which would be inconsistent with her testimony that he was an
unexpected intruder.
Defense counsel cross-examined Laura B. concerning her conversation with Deputy
Faby that night as follows:
[DEFENSE COUNSEL]: Do you remembering speaking to a
Deputy Faby, a uniformed deputy sheriff, that evening when [the
police] came to your house?
[LAURA B.]: I spoke to someone. I have no idea who it was.
[DEFENSE COUNSEL]: You just don’t remember his name,
right?
[LAURA B.]: Right.
...
[DEFENSE COUNSEL]: Do you remember telling this deputy
. . . that you had Wardell Brooks over your house about 7:30 that
evening?
[ASSISTANT STATE’S ATTORNEY]: Objection, your
Honor.
[LAURA B.]: I did not.
5
The second paragraph of the report recounted Laura B.’s struggle with Mr. Brooks,
his assault of her, her submission to his advances, and her escape in terms similar to her
testimony at trial. The third and final paragraph of the report concerned the apprehension of
Mr. Brooks, the transport of Laura B. to the hospital, and other details of the investigation
that night.
11
[ASSISTANT STATE’S ATTORNEY]: Objection.
THE COURT: Overruled.
…
[DEFENSE COUNSEL]: ... [D]id an officer ask you a question,
and did you respond that Wardell Brooks had come over to your
house at 7:30 that evening?
[LAURA B.]: I said that Wardell Brooks – they asked what
time he came in, and I said that I noticed him, I woke up at
approximately dusk. I didn’t know the time. It was 6:30 or
7:30.
[DEFENSE COUNSEL]: Ma’am, please listen to the question.
[LAURA B.]: I am trying to.
[DEFENSE COUNSEL]: Just listen to my question. Did you
or did you not tell Officer Faby or some other uniformed officer
that evening at your house when they arrived that you had
Wardell Brooks over your house about 7:30 that evening?
[LAURA B.]: No.
[DEFENSE COUNSEL]: Did you or did you not?
[LAURA B.]: No.
Counsel argued to the court their respective positions concerning the admissibility of the
prior allegedly inconsistent statement of Laura B. to Deputy Faby. Defense counsel relied
on Maryland Rules 5-613, while the Assistant State’s Attorney argued that the requirements
of Maryland Rules 5-802 and 5-802.1, concerning exceptions to the hearsay rule, also had
12
to be satisfied. Defense counsel did not offer the report in evidence during Laura B.’s
testimony.
The State called Deputy Faby as its next witness. During cross-examination, Deputy
Faby confirmed that he had written a police report concerning the incident. Defense counsel
produced a copy of Deputy Faby’s report, which was marked for identification as
Defendant’s Exhibit 1. Defense counsel then questioned Deputy Faby concerning the report
as follows:
[DEFENSE COUNSEL]: And as a result of your conversation
with [Laura B.], you indicated that you generated some notes,
and is it fair to say that you subsequently reduced that to the
document marked as Defense Exhibit 1?
[DEPUTY FABY]: That’s correct.
[DEFENSE COUNSEL]: And that is your signature at the
bottom, correct?
[DEPUTY FABY]: Yes.
…
[DEFENSE COUNSEL]: And is that a fair and accurate
representation of the information that you took from your notes
and put in that report?
[DEPUTY FABY]: Yes.
Defense counsel then moved that the report be admitted into evidence. The State objected.
A bench conference was held to discuss the admissibility of the report. Although the
13
prosecutor recognized that defense counsel was trying to impeach Laura B., his argument
centered around Rule 5-802.1 and defense counsel also focused on that rule:
[ASSISTANT STATE’S ATTORNEY]: There is no rule that
provides for a police report per se to be admitted into evidence.
. . . And, again, I have to refer back to the rules. 5-802.1 doesn’t
allow for that because the three sub areas that would allow that
would be, number one, a written statement signed by her, and it
was not; number two is that electronically recorded, essentially
verbatim statement of hers, and it’s not; and the third one is it’s
some other statement by her that maybe she didn't sign that
wasn’t recorded in some other fashion, but that she somehow
otherwise adopts it. . . [T]his doesn’t come in under any of
those.
[DEFENSE COUNSEL]: Under 5-802, as long as an adversary
party is introducing the statement of the officer into evidence,
then it is an exception to the hearsay rule.
The Circuit Court ultimately agreed with the State’s approach to the issue:
I still think [the State’s] interpretation of the rule is the correct
one. It hasn’t been adopted by the witness, the previous witness
in this case, as a prior statement. This is just the officer’s
recordation of what he believes he was told by the witness. So
it doesn’t come in.
…
But it doesn’t come in under this provision. It doesn’t come in
also because you have the officer in here testifying. It doesn’t
come in.
After that ruling, defense counsel did not ask Deputy Faby about his notes or about the
statement allegedly made to him by Laura B. that “she had [Mr. Brooks] over to her house.”
The State called two other police officers to testify, and the court adjourned the proceeding
for the day.
14
The next morning, defense counsel asked the trial court to reconsider its ruling on the
admissibility of Deputy Faby’s report. This time, defense counsel invoked Rules 5-613 and
5-616, and argued that the requirements of Rule 5-802.1 were not applicable because the
report was not being offered for the truth of the matter asserted, but was being offered for the
purpose of impeachment:
[DEFENSE COUNSEL] Yesterday Your Honor ruled on my
request to admit Defendant’s Exhibit Number 1, which was a
statement taken from [Laura B.] by Dfc Faby. We reapproached
the bench, and I made an argument that it should come in as a
prior inconsistent statement under Rules 5-613, 5-616, and 5-
801, and the appropriate sections, subsections, that we argued at
the bench yesterday.
I believe implicit in that, and without saying anything, that the
Court should have considered that statement should come in as
non hearsay, not offered for the truth, because it was being
offered for purposes of the lack of credibility of the witness,
who was [Laura B.].
Again, the prosecutor focused on Maryland Rule 5-802.1 concerning exceptions to the
hearsay rule:
[ASSISTANT STATE’S ATTORNEY]: Well, Your Honor, I
think we still go back to the requirements of Rule 5-802.1 under
subsection (a) that unless it’s a purported statement of a witness
which is otherwise signed, recorded verbatim, usually through
electronic means or otherwise adopted by a witness, that it’s not
subject to being admitted because it doesn’t meet the
requirements of that rule, and that has not changed.
Defense counsel once again argued that the requirements of the hearsay rules were not
applicable:
15
[DEFENSE COUNSEL]: Your Honor, 5-802.1(a) has nothing
to do with its admissibility, the admissibility of the statement as
a statement being admitted as non hearsay for purposes of
showing an inconsistent statement that would relate to the
credibility of the witness.
We have a witness who testified she gave no permission to have
Mr. Brooks come into her house that day, and she makes a
statement, at least it’s in Deputy Faby’s report, that she had Mr.
Brooks over that day, which is totally and completely
inconsistent. It’s not necessary to even address 5-802.1 for that
purpose, and, therefore, I think [the Assistant State’s Attorney]’s
argument is not appropriate on that issue.
Ultimately, the Circuit Court ruled that the report was not admissible because Laura B.
neither signed nor adopted the report. The Circuit Court also appeared to conclude that Rule
5-802.1 was applicable because the report was being offered for the truth of the matter
asserted in it:
My prior ruling will stand. In addition to those reasons that I
indicated earlier, but also because in this case, you still have to
get over the hurdle of the witness having adopted it or signed it,
and you are not over that hurdle in this case. And it really does
go, and it is being offered, really, to go to the heart of what's
being asserted, the truth of the matter asserted here: how did
Mr. Brooks get into the victim’s home? So the previous ruling
stands and the report is not admissible.
Analysis
Identifying the Applicable Rules of Evidence
Maryland Rule 5-802 provides generally that “[e]xcept as otherwise provided by these
rules or permitted by applicable constitutional provisions or statutes, hearsay is not
admissible.” (emphasis added.) For our purposes, the key phrase is the introductory clause
16
that allows the introduction of hearsay pursuant to other rules of evidence. The prosecutor,
and to some extent the trial court, focused on Rule 5-802.1, which permits some hearsay
statements to be admitted for substantive purposes. Both were correct in their assessment
that Deputy Faby’s police report was not admissible under that rule.6
But Rule 5-802.1 is not the only rule that allows for introduction of a prior
inconsistent statement into evidence. As Mr. Brooks’ counsel argued, Rules 5-616 and 5-613
independently allow for the introduction of evidence of prior inconsistent statements for the
purpose of impeachment. Before us, both the State and Mr. Brooks agree that the decision
whether to admit Deputy Faby’s report turned on the proper application of those rules.
6
In its opinion in this case, the Court of Special Appeals concisely and correctly
analyzed the issue of admissibility under that rule:
... Maryland Rule 5-802.1 provides for the admission of: “A
statement that is inconsistent with the declarant’s testimony, if
the statement was (1) given under oath ...; (2) reduced to writing
and was signed by the declarant; or (3) recorded in substantially
verbatim fashion by stenographic or electronic means
contemporaneously with the making of the statement.” Rule 5-
802.1(a).
Here, Deputy Faby’s report ... was not a statement given
by Laura B. under oath, was not adopted or signed by Laura B.,
and was not recorded contemporaneously with the making of the
statement. The report, therefore, was not admissible as
substantive evidence under rule 5-802.1.
17
Application of Rules 5-613 and 5-616
Rule 5-616 permits extrinsic evidence of a prior inconsistent statement to be used for
the purpose of impeachment, in accordance with Rule 5-613(b).7 In this case, the prior
allegedly inconsistent statement is an oral statement by Laura B. that was summarized in the
police report of Deputy Faby. There were potentially two forms of extrinsic evidence
available to defense counsel with respect to that oral statement that might be introduced to
impeach Laura B.’s testimony on direct examination: (1) testimony by Deputy Faby about
what Laura B. told him during the interview, and (2) Deputy Faby’s written report
summarizing that interview. Defense counsel chose to attempt to introduce only the latter
form of extrinsic evidence.
The threshold question is whether introduction of Deputy Faby’s written report would
satisfy the requirements of Rule 5-613. That rule reads as follows:
7
Rule 5-616 provides, in pertinent part:
Rule 5-616. Impeachment and rehabilitation – Generally.
(a) Impeachment by inquiry of the witness. The
credibility of a witness may be attacked through questions asked
of the witness, including questions that are directed at:
(1) Proving under Rule 5-613 that the witness has made
statements that are inconsistent with the witness’s present
testimony; ...
(b) Extrinsic impeaching evidence. Extrinsic evidence
of prior inconsistent statements may be admitted as provided in
Rule 5-613(b). ...
18
Rule 5-613. Prior statements of witnesses.
(a) Examining witness concerning prior statement.
A party examining a witness about a prior written or oral
statement made by the witness need not show it to the witness
or disclose its contents at that time, provided that at the end of
the examination (1) the statement, if written, is disclosed to the
witness and the parties, or if the statement is oral, the contents
of the statement and the circumstances under which it was made,
including the persons to whom it was made, are disclosed to the
witness and (2) the witness is given an opportunity to explain or
deny it.
(b) Extrinsic evidence of prior inconsistent statement
of witness. Unless the interests of justice otherwise require,
extrinsic evidence of a prior inconsistent statement by a witness
is not admissible under this Rule (1) until the requirements of
section (a) have been met and the witness has failed to admit
having made the statement and (2) unless the statement concerns
a non-collateral matter.
Parsing this rule to determine the basic conditions that must be satisfied in order for a party
to offer extrinsic evidence of a prior allegedly inconsistent oral statement of a witness, we
derive the following checklist:
1. The content of the statement and the circumstances under which it was made,
including the person(s) to whom it was made, must be disclosed to the witness who is being
impeached before the end of that witness’s examination. Rule 5-613(a)(1), (b)(1).
Here, defense counsel asked Laura B. about the allegedly inconsistent oral statement
during his cross-examination of her, disclosing both the circumstances of the statement (her
interview with Deputy Faby), and the person to whom it was made (Deputy Faby). This
requirement of the rule was satisfied.
19
2. The witness to be impeached must be given an opportunity to explain or deny
the allegedly inconsistent statement. Rule 5-613(a)(2), (b)(1).
During the cross-examination of Laura B., she was given the opportunity to explain
or deny the statement. She denied that she told Deputy Faby that she “had” Mr. Brooks over
to her house at 7:30 p.m. that evening. This requirement of the rule was satisfied.
3. The witness must have “failed to admit having made the statement.” Rule 5-
613(b)(1).
During cross-examination, Laura B. denied having made the allegedly inconsistent
portion of the statement. This requirement of the rule was satisfied.
4. The statement must concern “a non-collateral matter” – in other words, the
content of the statement must not be “collateral” to the issues at trial. Rule 5-613(b)(2).
The defense contended that the sexual encounter between Mr. Brooks and Laura B.
was consensual and not a rape. The alleged inconsistency in the prior oral statement
summarized in Deputy Faby’s report concerned whether Mr. Brooks was in Laura B.’s house
that evening at her invitation and not as an intruder, as she had testified. Although the
alleged prior oral statement was not directly inconsistent with the allegation of rape, it was
not collateral to the issues at trial. This requirement of the rule was satisfied.
Thus, the foundational requirements under Rule 5-613(b) for the introduction of
extrinsic evidence of the prior allegedly inconsistent statement of Laura B. were met. But
there remains the question of the appropriate form of that extrinsic evidence.
20
Form of Extrinsic Evidence under Maryland Common Law
Had defense counsel offered Deputy Faby’s testimony as extrinsic evidence of Laura
B.’s prior allegedly inconsistent statement, our analysis would be brief. Deputy Faby’s
testimony would have been admissible under Rule 5-613(b). See, e.g., Hardison v. State, 118
Md. App. 225, 702 A.2d 444 (1997) (officer’s testimony regarding an eyewitness’s statement
to him was admissible as extrinsic evidence of the witness’s prior inconsistent statement).
Instead of eliciting the statement as part of Deputy Faby’s testimony, however, the defense
elected to offer the police report as extrinsic evidence of Laura B.’s prior allegedly
inconsistent oral statement.8
Prior to the adoption of the Maryland Rules of Evidence, it was well established that
a witness could be impeached by extrinsic written evidence of a prior allegedly inconsistent
oral statement if the written evidence was a verbatim transcription of the witness’s oral
statement or if the witness had adopted or approved the written version. This principle was
discussed in two 1990 cases involving discovery of police interview notes or reports for the
purpose of impeachment of prosecution witnesses. See Collins v. State, 318 Md. 269, 289,
8
As a matter of trial tactics, this choice is perfectly understandable. The written
version of the statement was already known and, although it did not completely support the
defense version of events, was at least compatible with part of the defense. Attempting to
prove the prior oral statement through cross-examination of Deputy Faby would be subject
to the usual vagaries of live testimony, including the potential qualification or interpretation
by Deputy Faby of the written version in a way that might turn out to be completely
incompatible with the defense theory.
21
568 A.2d 1, cert. denied, 497 U.S. 1032 (1990); Bruce v. State, 318 Md. 706, 569 A.2d 1254
(1990), appeal after remand, 328 Md. 594, 616 A.2d 392, cert. denied, 508 U.S. 963 (1993).
In Collins, the defendant, who was convicted of murder in a jury trial, argued that the
trial court had erred in ruling that the defense was not entitled to obtain written notes of a
statement made by a State witness and recorded by a detective, prior to the cross-examination
of the witness. This Court affirmed the trial court’s ruling that the witness’s statement
“paraphrased in the police report” was not discoverable, stating, “[The witness] neither
signed, adopted [n]or approved of the facts contained in the summary. The detective drafted
the report subsequent to the actual interview…. If the witness has not expressly approved
of the statements, it would be unfair for the evidence to be used for impeachment purposes.”
318 Md. at 289. In Bruce, this Court addressed a similar discovery issue, and held that “it
is obvious that a witness could not be impeached with the police officer’s notes which were
never adopted by or approved by the witness.” 318 Md. at 725.
Although the type of police report at issue in Collins and Bruce is now discoverable
under the amended Rule 4-263,9 the Court’s discussion of the admissibility of police reports
for the purpose of impeaching a witness in those cases remains applicable to our analysis.
While both Collins and Bruce were decided prior to the adoption of Title 5 of the Maryland
9
Rule 4-263 governs discovery in criminal cases in the circuit courts. Rule 4-263(d)
requires the State’s Attorney to disclose “[a]ll written and all oral statements of the
defendant” as well as “all written statements of the witness that relate to the offense
charged.” The definition of “written statement” that was adopted in 2008 includes “a
statement in a police or investigative report.” Maryland Rule 4-263(b)(6)(C).
22
Rules, we take into account common law principles on the same subject matter when
interpreting the rules of evidence set forth in Title 5. “[A]bsent a clear indication to the
contrary, we shall assume that the [new] rule [of evidence] ‘was not intended to amend,
nullify, or supersede the common law.’” Holmes v. State, 350 Md. 412, 422, 712 A.2d 554
(1998) (citation omitted).
The Court of Special Appeals’ opinion in Hardison further supports the application
of the common law principle that a written summary of a witness’s statement must be
adopted or ratified by the witness – at some point, although not necessarily at trial – in order
for the written version to be admitted into evidence for the purpose of impeaching the
witness. In Hardison, a defendant was on trial for assault with intent to murder. The State’s
theory was that the defendant had deliberately shot the victim while the defense theory was
that the shot had been fired accidentally while the victim and the defendant were struggling
to gain control over the gun. An eyewitness to the altercation testified at trial that the
defendant had pulled out a gun and shot the victim. Defense counsel attempted to impeach
the witness by asking him whether he had told a police officer that the shot accidentally went
off during a struggle between the defendant and the victim; the witness denied making the
statement. The State called the police officer who had conducted the interview with the
eyewitness and had incorporated the witness’s statement into his police report. On cross-
examination, in an effort to impeach the witness, defense counsel asked the officer whether
the witness had told him that the defendant and the victim were “wrestling when the two
23
shots were fired.” 118 Md. App. at 233. The State objected to the question, and the trial
court sustained the objection on the basis that the officer’s answer to the question would be
hearsay.
At issue on appeal in Hardison was the admissibility of the officer’s testimony
regarding what the witness had told him. The Court of Special Appeals held that “[t]he fact
that [the witness] did not read, approve, or adopt [the officer’s] written report did not insulate
him from being impeached with his own oral statement,” and concluded that, under Rule 5-
613(b), the officer’s testimony as to what the witness told him during the interview was
admissible as a prior inconsistent statement for the purpose of impeaching the witness. 118
Md. App. at 241.
While the court did not rule on the admissibility of the officer’s written report – the
type of extrinsic evidence at issue in this case – the court analyzed the admissibility of such
a report: “When a person other than the witness reduces the witness’s spoken words to
writing, and the witness ratifies the writing by signing, adopting, or approving it , the writing
will be treated as it if had been prepared by the witness himself.... Thus, if [the witness] had
ratified [the officer’s] report, it could have been treated as if it had been written by [the
witness] and used to impeach him, under Rule 5-613.” 118 Md. App. at 241. Notably, the
court cited Collins and Bruce in its analysis. While neither Collins, Bruce nor Hardison offer
dispositive authority on the issue in the present case, they strongly suggest that if a written
version of a witness’s oral statement is not substantially verbatim, it must have been either
24
adopted or approved by the witness at some time in order to be admitted into evidence for
the purpose of impeaching the witness.
Case Law under Federal Rule 613 and Analogous Rules
Maryland Rule 5-613 is based on Federal Rule of Evidence 613. See A. D. Hornstein,
The New Maryland Rules of Evidence: Survey, Analysis and Critique, 54 Md. L. Rev. 1032,
1033 (1995).10 Federal cases applying Rule 613 can be instructive, as can cases from other
jurisdictions that have adopted analogous rules.11
In applying the analogous federal rule, federal courts have held that a witness may be
impeached with written extrinsic evidence of a prior inconsistent oral statement only if the
written evidence is a substantially verbatim version of the oral statement or if the witness
10
In creating Title 5 of the Maryland Rules of Practice and Procedure in 1994 and
adopting Maryland Rules of Evidence, the drafters used the Federal Rules of Evidence as a
starting point. Hornstein, supra, at 1033. The rules ultimately adopted in Title 5 “differ in
a few significant ways from the Federal Rules of Evidence. The differences, however, are
less matters of substance than clarifications of what had been intended, though not as artfully
expressed, in the Federal Rules.” Id. Professor Hornstein, who was the Special Co-Reporter
and Special Consultant to Evidence Subcommittee of the Rules Committee, explained that:
“Because so many jurisdictions have adopted evidence rules modeled on the Federal Rules,
the body of law available on evidentiary questions that share the federal format has expanded
substantially the base of wisdom and experience in evidentiary matters…. Although no
jurisdiction is bound by the decisions of others and each jurisdiction may have departed from
the precise language of the Federal Rules, the value of such a large body of persuasive
authority is impressive.” Id. at 1034.
11
The Maryland rule differs from the federal rule in one respect – under the Maryland
rule, the witness to be impeached must be given an opportunity to address the allegedly
inconsistent statement. See Hornstein, supra, at 1055 (“Unlike the Federal Rule, under the
Maryland Rule extrinsic evidence of the prior inconsistent statement is not admissible until
this requirement has been met and the witness has denied the statement”). That requirement
is not at issue in this case.
25
previously adopted or ratified the written version. For example, in United States v. Almonte,
956 F.2d 27 (2d Cir. 1992), a defendant was on trial for conspiring to distribute heroin. Drug
Enforcement Administration (“DEA”) agents testified that they had questioned the defendant
and the co-defendant separately, and that each had given self-incriminating responses. 956
F.2d at 28. The defendant sought to discredit the agents’ testimony about these admissions
by introducing notes that an Assistant United States Attorney had made during a debriefing
of one of the agents. In the notes at issue, the Assistant United States Attorney recorded one
of the DEA agents’ recollection of the defendant’s admission. Specifically, he wrote:
[CO-DEFENDANT]- I organized it. I put money together. ½
unit for 50,000 grand. Almonte works for me…
[DEFENDANT]- Yeah, that’s right.
Id. at 29. Defense counsel argued that the notes, including the notation “Yeah, that’s right,”
were a verbatim record of what the defendant told the agent, and that they could therefore
be used to impeach the agent’s testimony at trial that the defendant was questioned separately
from the co-defendant. The government opposed the introduction of the notes. Outside the
presence of the jury, the Assistant United States Attorney testified that the notes were not a
verbatim transcript, but rather a shorthand summary of the DEA agent’s statements, and that
he wrote the words “yeah, that’s right” as a “shorthand way for [him] to remember that the
substance of [the defendant’s] statement was the same as [the co-defendant’s] statement.”
Id. The trial court declined to admit the notes as a prior inconsistent statement to impeach
the DEA agent.
26
On appeal, the Second Circuit affirmed the trial court’s ruling, holding that a “‘third
party’s characterization’ of a witness’s statement” does not constitute a prior statement of
that witness unless the witness has subscribed to that characterization or it is a verbatim
transcript of the witness’s own words. Id. at 29. The court explained the rationale for the
rule: “The problem, in essence, is one of relevancy. If a third party’s notes reflect only that
note-taker’s summary characterization of a witness’s prior statement, then the notes are
irrelevant as an impeaching prior inconsistent statement, and thus inadmissible.” Id.
The Eleventh Circuit reached a similar conclusion in United States v. Saget, 991 F.2d
702 (11th Cir.), cert denied, 510 U.S. 950 (1993). In that case, the defendant was on trial for
conspiracy to distribute crack cocaine. Defense counsel attempted to impeach a government
witness on cross-examination by reading from an FBI report that summarized the witness’s
prior allegedly inconsistent oral statement. The trial court refused to allow defense counsel
to impeach in that manner, although it did permit the defense to question the agent who had
conducted the interview later in the trial concerning the allegedly inconsistent statements.
991 F.2d at 710.
On appeal, the Eleventh Circuit considered whether a witness could be impeached
pursuant to Rule 613 by an attorney reading from an FBI report. 991 F.2d at 710. In
affirming the trial court’s application of Rule 613, it relied on the same rationale as our
common law evidentiary decisions in Bruce and Collins: “Under the Jencks Act, non-
verbatim summaries of a witness’s prior oral statements are excluded from mandatory
27
production because it would be grossly unfair to allow the defense to use statements to
impeach a witness which could not fairly be said to be the witness’s own rather than the
product of the investigator’s selections, interpretations and interpolations.... For the same
reasons, we conclude that a witness may not be impeached with a third party’s
characterization or interpretation of a prior oral statement unless the witness has subscribed
to or otherwise adopted the statement as his own.” 991 F.2d at 710.
Relying on Almonte and Saget, courts have held that a written report summarizing a
witness’s prior inconsistent oral statement cannot be admitted into evidence to impeach the
witness if the report is not substantially verbatim or has not been approved of or adopted by
the witness as accurate. See, e.g., United States v. De La Cruz Suarez, 601 F.3d 1202, 1216
(11th Cir. 2010) (affirming the trial court’s decision not to admit an FBI summary of a
witness’s interview on the basis that a witness may not be impeached by a non-verbatim
version of a prior oral statement unless it can be fairly said that the version is the witness’s
own statement); State v. Graham, 764 N.W.2d 340, 352 (Minn. 2009) (“[I]f the witness has
not adopted the statement attributed to him as his own, counsel may not offer extrinsic
evidence in the form of reading verbatim from a third-party summary to impeach the
witness”); cf. United States v. Barile, 286 F.3d 749, 757-58 (4th Cir. 2002) (holding that
FDA documents containing a witness’s prior inconsistent statement may be admitted to
impeach a witness but only after the court determines that the witness “has adopted the
statements or whether they can be otherwise attributed to her”); United States v. Strother, 49
28
F.3d 869, 875 (2d Cir. 1995) (holding that a memorandum containing a witness’s prior
inconsistent statement was admissible to impeach the witness even though the witness did
not draft the memorandum herself because the witness “signed it and confirmed that she had
discussed the memorandum” and noting that “a third party’s characterization of a witness’s
statement can constitute a prior statement of the witness where the witness has ‘subscribed
to that characterization.’”).12 At least one state court has adopted a rule to that effect. See
Ohio Criminal Rule 16(B)(6) (requiring that prosecution provide defendant with reports by
law enforcement officers with the proviso that “a document prepared by a person other than
the witness testifying will not be considered to be the witness’s prior statement for purposes
of cross-examination of that particular witness ... unless explicitly adopted by the witness”).
We have found two contrary decisions by courts in other states construing rules
similar to Rule 5-613. In State v. Reid, 164 S.W.3d 296 (Tenn. 2005), the Supreme Court
of Tennessee considered whether a trial court had properly excluded the written summaries
12
Similarly, many courts have prohibited counsel from impeaching a witness by
reading from a report summarizing or paraphrasing the witness’s prior inconsistent
statement. See, e.g., United States v. Adames, 56 F.3d 737, 744-45 (7th Cir. 1995) (trial court
properly refused to allow counsel to impeach a witness by reading from an agent’s report
summarizing the witness’s prior inconsistent statement because the witness “testified he did
not adopt the statement, did not write and could not say that what was in it was everything
he had told the agents”); State v. Linder, 2002 WL 31123855 at *2 (Oh. Ct. App. 2002) (“A
summary of a witness’s oral conversation becomes a witness’s statement only if she has
reviewed and signed, or otherwise adopted it, or if it is a nearly verbatim account as opposed
to being merely the investigator’s own selections ....”); People v. Hood, 593 N.E.2d 805, 812
(Il. Ct. App. 1992) (“A witness cannot be impeached by a statement that is not in her own
words or substantially verbatim”).
29
of a police officer as extrinsic evidence for impeachment of two witnesses under Tennessee
Rule of Evidence 613, which, like Rule 5-613, is based on the like-numbered Federal Rule
of Evidence. In that case, the defendant was convicted of, among other things, the murder
and aggravated robbery of two ice cream store employees. At trial, one witness testified that
she saw a car similar to the defendant’s car near the store, and another witness testified that
he saw a car similar to the defendant’s car near the park where the bodies of the employees
were found. Defense counsel sought to impeach the witnesses’ testimony by calling the
officer who interviewed them and sought to introduce into evidence the police reports
summarizing his interviews with the witnesses. The trial court denied defense counsel’s
motion to admit the reports.
On appeal, the Tennessee Supreme Court held that the trial court erred in excluding
the summaries. It held that “the ‘only requirement’ for the use of extrinsic evidence is that
the witness must be ‘afforded an opportunity to explain or deny.’ The extrinsic evidence may
be the written or recorded content of the prior statement itself or the testimony of another
witness as to the content of the prior written or oral statement.” 164 S.W.3d at 313-14.13
The court noted that Tennessee Rule 613 “does not expressly limit the impeaching party to
13
The court in Reid quoted and relied on commentary provided by the Advisory
Commission on the Tennessee rules that the rule stated the “only requirement” for the use
of extrinsic evidence for impeachment of a witness with a prior inconsistent statement. 164
S.W.3d at 313-14. Neither the federal rule nor our rule was accompanied by similar
commentary.
30
one form of extrinsic evidence, nor does it require an impeaching party to choose between
two available forms of extrinsic evidence.” Id. at 314.
Similarly, in State v. Arrington, 738 So. 2d 1087 (La. Ct. App. 1999), the intermediate
appellate court in Louisiana held that a police report summarizing an officer’s interview with
the victim’s daughter was admissible as extrinsic evidence of a prior oral statement of the
daughter inconsistent with her trial testimony. In that case, the defendant was on trial for
aggravated battery of his wife. His daughter testified that the defendant was armed with a
knife, which he used to stab his wife. After the daughter testified, defense counsel sought
to have the jury review a police report stating that the daughter had indicated that the
defendant was armed with a screwdriver. The court held that because the foundation
requirement had been met, the trial court should have admitted the report into evidence. Id.
at 1093.
Summary
We find persuasive the rationale suggested in our prior decisions in Bruce and Collins
as well as the Eleventh Circuit’s decision in Saget – that it would be unfair to impeach a
witness with a statement “which could not fairly be said to be the witness’s own rather than
the product of the investigator’s selections, interpretations, and interpolations.” We hold that
a witness may not be impeached with extrinsic written evidence of a prior allegedly
inconsistent oral statement, unless the written evidence is a substantially verbatim version
of the oral statement or was previously acknowledged by the witness as an accurate version.
31
Although in this case, the prosecutor, and to some extent the trial court, were focused on the
wrong rule (Rule 5-802.1), the defense would have satisfied the requirements for admission
under Rule 5-613(b), if it had satisfied the more stringent requirements of Rule 5-802.1. In
any event, defense counsel did not establish that the statement in Deputy Faby’s report was
a substantially verbatim version of Laura B.’s statement to the deputy, nor had Laura B.
previously acknowledged it as an accurate version. It would have been unfair to admit the
written report into evidence and impeach Laura B. with what could be Deputy Faby’s own
“selections, interpretations, and interpolations” of what Laura B. had told him about the
events of that night. The trial court properly excluded the police report.14
C. Whether the Trial Court Should Have Struck the SAFE Nurse’s Statement
We next consider whether the trial court should have struck the testimony of the SAFE
nurse that the findings from her physical examination of Laura B. “would verify” what Laura
B. told her about her encounter with Mr. Brooks.
Nurse Harden’s Testimony
After she was qualified as an expert in sexual assault forensic examinations, Nurse
Harden testified about her examination of Laura B. at the hospital, including her interview
14
In his brief, Mr. Brooks argues that it is illogical to require the witness to both adopt
the statement authored by a third party and deny the statement – one of the requirements of
Rule 5-613. Mr. Brooks’ argument appears to assume that the witness must adopt the
statement at trial. That is not required, however. For purposes of Rule 5-613, Laura B. could
have approved the statement or adopted the written summary at any time prior to the trial and
during or after the interview.
32
of Laura B. and the physical injuries she observed on Laura B. Nurse Harden explained that
the interview was part of the examination because “I’m looking for a number of things both
medically and forensically, and it focuses me in on what I am looking for, what I need to
treat.” Her interview notes summarized what Laura B. told her, including that Mr. Brooks
had appeared beside her bed while she was napping and demanded sex; that Laura B. had hit
him with a ceramic statue; that, in response, Mr. Brooks had choked her, had forced her to
have sex with him, and had then followed her around the house; and that she had contacted
the police by dialing 911, and waited for the 911 operator to return her call. Nurse Harden’s
notes concerning the interview were admitted into evidence over a defense objection.
Nurse Harden then described the diagrams on which she noted Laura B.’s injuries, and
35 photographs of Laura B. that documented extensive bruising and lacerations on her face,
body, and genitals.15 At the conclusion of her direct examination, the following exchange
took place:
[ASSISTANT STATE’S ATTORNEY]: Mrs. Harden, given
your training as a forensic nurse examiner, were you able to
draw a conclusion based upon a reasonable degree of medical
15
Using the photographs and other demonstrative exhibits, Nurse Harden testified in
detail about the following injuries she observed on Laura B.: blood, lacerations, and bruising
on the side of her face, forehead, cheeks, nose, ears, and lips; bruising and swelling around
her eyes; bruising on her neck and hairline; bruising on her arms and blood around her
fingernails; abrasions on her forearm and upper back; blood, scratches, and bruising on her
knees and thighs; discoloration (purplish in color) and bruising on her labia; “very profound”
injuries to her labia majora, labia minora, posterior fourchette, including a laceration;
discoloration and bruising on her cervix; and hemorrhaging within her vagina.
33
certainty as to whether what [Laura B.] told you in the interview
was consistent or inconsistent with the injuries that you
observed?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[NURSE HARDEN]: What I found during my examination
would verify the story that she told me.
[DEFENSE COUNSEL]: Objection. Ask it be stricken.
THE COURT: Overruled.
On cross-examination, defense counsel asked Nurse Harden about her analysis of
Laura B.’s injuries, including whether they could have been caused by aggressive consensual
sex. Nurse Harden replied, “In this case, no, it cannot.” Nurse Harden explained that “no
woman [involved in the studies she had read as part of her training] has ever had injury to
more than one area during sex – anticipated sex.” Upon further questioning by defense
counsel on re-cross-examination, Nurse Harden conceded that only one study showed that
none of the women examined after consensual sex had injuries in more than one area of their
genitalia. Nurse Harden agreed that she had no personal knowledge of the cause of the
injuries to Laura B.’s genitalia.
Vouching for Credibility versus Assessing Consistency with Other Evidence
This Court has previously drawn a distinction between circumstances in which a
witness expresses an opinion that simply vouches for the the credibility of another witness,
and situations in which a witness assesses whether a statement of another witness is
34
consistent with other facts known to the testifying witness. An example of the former is
found in Bohnert v. State, 312 Md. 266, 539 A.2d 657 (1988); an example of the latter is
found in Conyers v. State, 354 Md. 132, 729 A.2d 910 (1999). The State urges us to follow
Conyers in this case while Mr. Brooks argues that Bohnert is the more pertinent precedent.
Bohnert
In Bohnert, this Court held that expert testimony is inadmissible as a matter of law
when it directly assesses the credibility of another witness. In that case, a child under the age
of 14 accused her mother’s boyfriend of sexual abuse. The credibility of the victim was the
central issue at trial because there was evidence that the child may have had improper
motives for accusing the boyfriend, the child recanted her allegations and then confirmed
them during her testimony, and there was no physical evidence to support the allegations.
The State called a social worker, who was qualified as an “expert in the field of child sexual
abuse.” 312 Md. at 271. The State asked the social worker whether she had “an opinion as
to whether or not this child…was sexually abused,” to which the social worker answered,
“It’s my opinion, based on the information that [the victim] was able to share with me, that
she was, in fact, a victim of sexual abuse.” Id.
The Court noted that cross-examination of the social worker revealed that her opinion
was based on her interviews with the victim, the victim’s mother, and “other people”; and
that the State emphasized that social worker’s testimony in both its opening and closing
arguments. 312 Md. at 271-74. The Court held that the trial court abused its discretion in
35
admitting the social worker’s opinion because her opinion was “not based on facts sufficient
to form a basis for her opinion.” Id. at 276. The Court also provided an “alternative reason”
for its holding, stating that “the [social worker’s] opinion was inadmissible as a matter of law
because it invaded the province of the jury in two ways. It encroached on the jury’s function
to judge the credibility of the witnesses and weigh their testimony and on the jury’s function
to resolve contested facts.” Id. at 279. The Court held: “a witness, expert or otherwise, may
not give an opinion on whether he believes a witness is telling the truth. Testimony from a
witness relating to the credibility of another witness is to be rejected as a matter of law.” Id.
at 278. Because the social worker’s testimony that the victim “in fact was sexually abused
was tantamount to a declaration by her that the child was telling the truth and that [the
defendant] was lying,” the testimony was inadmissible. Id. at 278-79. See also Hutton v.
State, 339 Md. 480, 504, 663 A.2d 1289 (1995) (in a trial concerning alleged child sexual
abuse, testimony by an expert psychologist that the alleged victim suffered post-traumatic
stress disorder as a result of sexual abuse was inadmissible, although such testimony might
be admitted to show lack of consent when the sexual contact itself was not at issue).
Conyers
In Conyers, the defendant was charged with, among other things, the premeditated
murder of his estranged girlfriend’s mother. A former cellmate of Conyers named Johnson
testified that Conyers told him that he had gone to the victim’s house for the purpose of
committing a burglary and had ended up shooting the victim. Defense counsel attempted to
36
undermine Johnson’s credibility by showing that Johnson had a plan to reduce his prison time
on pending charges by testifying against other inmates. 354 Md. at 152. In support of this
theory, defense counsel asked Johnson whether he had rifled through Conyers’ charging
documents, and called two other cellmates who testified that they had seen Johnson looking
through either their own case files or displaying to them the documents of other prisoners.
In response, the State called as a rebuttal witness a detective who had interviewed Johnson.
The State asked the detective whether there was any information that Johnson had given the
detective that was “above and beyond that which was contained” in the charging documents
and the search warrant. Id. The detective answered that there were a significant number of
factual statements made by Johnson that were not in those documents, stating, “These
statements which I knew upon hearing them from Mr. Johnson to be truthful, and I was able
to verify each and every statement that he gave us.” Id. at 153.
On appeal, the defendant argued that the detective’s rebuttal testimony should have
been excluded under Bohnert. The Court of Appeals held that the issue was not preserved
for review. In an alternative holding, the Court stated that Bohnert was distinguishable
because the detective “was not offering an opinion as to ... Johnson’s credibility as a
witness.” 354 Md. at 154. Instead, the Court noted, “[the detective] was stating that certain
information ... Johnson had supplied him with prior to trial was not contained in [Conyers’]
papers and, because he was able to confirm that information, he regarded it as accurate and,
therefore, truthful.” Id. The Court also noted that the purpose of the detective’s testimony
37
was twofold: (1) “to demonstrate that ... Johnson could only have obtained some of this
information from [Conyers] himself and not from ‘rifling through’ documents,” and (2) “to
show that some of [Conyers’] information was known only to the killer and those
investigating the murder, and thus Johnson could only have learned the information from the
person who committed the murder.” Id. The Court concluded that the detective’s testimony
“did not invade the province of the jury, which is charged with determining the credibility
of witnesses and the weight to accord their testimony.” Id.
Conyers does not stand for the proposition that a witness may testify that another
witness told the truth. The Court explicitly disclaimed such a holding, concluding that the
detective was not offering opinion as to Johnson’s credibility as a witness generally. Rather,
the detective was testifying that certain information provided to him by Johnson was
confirmed by other information known to the detective – and not available from Conyers’
charging papers. Such testimony, the Court held, did not invade the jury’s function of
determining the credibility of witnesses.
The Prosecutor’s Question
In the instant case, the prosecutor asked Nurse Harden an open-ended question –
whether the account that Laura B. had given the nurse during the examination was
“consistent or inconsistent with” the injuries she observed on Laura B. Unlike the question
posed to the social worker in Bohnert, this question did not ask Nurse Harden to reflect
generally on Laura B.’s credibility. Rather, the question asked the nurse to compare Laura
38
B.’s statement to other evidence directly observed by the nurse – Laura B.’s injuries. Given
that a person’s physical condition might be “consistent with” several versions of the past, the
question did not require Nurse Harden necessarily to endorse any particular version of the
truth. An answer that the injuries she observed were “consistent with” Laura B.’s statements
to her would mean Laura B.’s version was not excluded from the set of possible explanations
of her physical condition.16 (Indeed, the defense cross-examination of Nurse Harden
attempted to show that the injuries could be “consistent with” Mr. Brooks’ version of events).
In that case, the nurse’s testimony would serve as corroboration of other evidence heard by
the jury – primarily Laura B.’s testimony – and thus was effectively qualified or conditioned
on the jury’s acceptance of that evidence. See Hall v. State, 107 Md.App. 684, 693-95, 670
A.2d 962, cert. denied, 342 Md. 473 (1996) (although an expert may not testify as to personal
belief in the testimony of another witness, an expert may testify whether the expert’s
observations are consistent with the disputed testimony).17
16
On the other hand, an answer that the injuries were “not consistent” with Laura B.’s
statement to her would have suggested that Laura B.’s version was not correct.
17
Mr. Brooks cites a number of cases from other states in which courts have held
inadmissible testimony by psychologists or social workers that a child’s behavior or
statements are “consistent with” having been sexually abused. See, e.g., State v. Moran, 728
P.2d 248, 254-56 (Ariz. 1986); Nelson v. State, 782 P.2d 290, 299 (Alaska App. 1989); State
v. Chamberlain, 628 A.2d 704, 707 (N.H. 1993). In context, the testimony found
inadmissible in those cases was more analogous to the testimony elicited by the general
question posed in Bohnert, unlike in this case where the question asked about the consistency
of Laura B.’s statement to the nurse with the nurse’s observation of her physical injuries.
39
In our view, the State’s question was permissible and the trial court properly overruled
the defense objection to that question.
The Nurse’s Answer
Had Nurse Harden simply answered the prosecutor’s question in the way it was asked
– that is, whether Laura B.’s statements to her were “consistent or inconsistent with” the
injuries she observed – Nurse Harden’s answer would have been clearly admissible. But she
did not. Instead, she stated that the physical injuries she observed “would verify” what Laura
B. had told her. Considered in isolation, the word “verify” – which traces its origin to the
Latin word for “truth”18 – might well suggest that the nurse had assessed Laura B.’s
statement to her to be the one true version of events.
On the other hand, to hear Nurse Harden’s answer as the jury and trial court did, one
must consider it in the context they heard it and not focus on a single word. The verb
“verify” did not appear alone in Nurse Harden’s answer but was qualified by the auxiliary
verb “would,” which introduced a degree of conditionality to her testimony.19 In context, the
18
Oxford Latin Desk Dictionary (rev. ed. 2005) at 202 (“veritas”).
19
Used as an auxiliary verb, “would” expresses “contingency” or “possibility.” See
Webster’s Third New International Dictionary Unabridged at 2638, 5(a) (2002). Verb
constructions that use “would” as an auxiliary verb are also sometimes referred to as the
“conditional mood.” See . In Nurse
Harden’s testimony, the use of the word “would” qualifies the verb “verify” with an unstated
condition. In context, the condition would appear to be the jury’s willingness to accept Laura
B.’s version of events – i.e., the nurse’s physical examination “would verify” Laura B.’s
statement assuming the jury ultimately found that statement to be a credible version of
events. At the very least, the nurse’s use of this qualifying phrase expressed a reticence about
invading the jury’s province of deciding the facts.
40
nature of that condition is readily apparent. The prosecutor’s question required an either-or
answer – that is, either (1) the account that Laura B. gave to the nurse during the examination
“consistent” with Laura B.’s injuries or (2) it was “inconsistent.” It was clear, in context, that
the nurse chose option (1), although she expressed it in terms of a synonymous verb phrase.
This was not an instance where the witness responded to a question with an irrelevant answer
or embellished an answer beyond a reasonable response to the question.
Unlike the social worker’s testimony in Bohnert, Nurse Harden’s testimony was based
on a comparison of her observations of the complaining witness’s physical condition with
the statements of that witness and not simply an assessment of the witness’ general credibility
based on an interview. The most significant part of the nurse’s testimony –indeed, virtually
all of her testimony aside from her professional qualifications – was her description and
documentation of Laura B.’s injuries. One need not be an expert in the investigation of
sexual assaults to know that extensive bruising and lacerations throughout a woman’s face
and body, including profound “blunt force trauma” to her genitalia, would be consistent with
a violent sexual assault.20 The nurse’s affirmation that Laura B.’s statements matched her
20
Indeed, in the State’s closing argument, the prosecutor spent a significant amount
of time reminding the jury of Laura B.’s injuries, as described by Nurse Harden and
documented in photographs and other evidence, to make the obvious point that they
corroborated Laura B.’s testimony. The prosecutor did not even mention the nurse’s
statement that those injuries “would verify” Laura B.’s account.
41
physical condition was hardly surprising. At that point in the trial, no other theory explaining
those injuries had been presented to the jury.21
Even if it was error for the trial court not to strike Nurse Harden’s use of the word
“verify” in her answer, we have no difficulty finding that it was harmless error. This Court
has described the standard of review for harmless error:
[W]hen an appellant, in a criminal case, establishes error, unless
a reviewing court, upon its own independent review of the
record, is able to declare a belief, beyond a reasonable doubt,
that the error in no way influenced the verdict, such error cannot
be deemed ‘harmless’ and a reversal is mandated. Such
reviewing court must thus be satisfied that there is no reasonable
possibility that the evidence complained of – whether
erroneously admitted or excluded – may have contributed to the
rendition of the guilty verdict.
Dorsey v. State, 276 Md. 638, 659 (1976) (emphasis added).
In this case, at worst, the alleged error consisted of one brief answer in a lengthy
examination – an answer in which a witness responded to an appropriate question and used
a verb that was not quite a synonym for the appropriate verb. The nurse’s testimony was
completely focused, on both direct and cross-examination, on her assessment of Laura B.’s
physical injuries, and not some kind of assessment of Laura B.’s credibility generally. In the
21
At that point in the trial, the defense had not explicitly proposed a defense that Laura
B. had engaged in consensual sex with Mr. Brooks. (The defense counsel’s opening
statement, while stating that Mr. Brooks was innocent, was circumspect as to why that would
be so). The theory that Laura B. and Mr. Brooks had engaged in consensual sex was
subsequently raised in defense counsel’s cross-examination of Nurse Harden and in Mr.
Brooks’ testimony in the defense case.
42
context of her direct testimony and the question that was put to her, it was apparent that
Nurse Harden was essentially affirming that the injuries she observed on Laura B. were
consistent – as opposed to inconsistent – with Laura B.’s statements to the nurse. It is
inconceivable that the jury would believe that, in answering that question, Nurse Harden was
providing general testimony comparing the credibility of Laura B. with that of Mr. Brooks,
who, at that point, had not yet testified as to his version of events. Nor did the State argue
that the nurse endorsed the complaining witness’s credibility generally. The physical
evidence, the 911 recording, the circumstances of Laura B.’s escape and of Mr. Brooks’
apprehension generally corroborated Laura B.’s version of events. Mr. Brooks’ version –
that Laura B. had proposed to exchange sex for window-washing and had initiated the
violence due to a one-day delay in completing that task – was incredible on its face. In these
circumstances, there appears to be no reasonable possibility that the jury would think that the
nurse was functioning as some kind of human polygraph that was assessing Laura B.’s
general credibility.
Merger of Rape and False Imprisonment Convictions
The jury returned verdicts of guilty as to first degree rape by threat, second degree
rape, second degree assault, and false imprisonment. The Circuit Court merged Mr. Brooks’
convictions for second degree rape and second degree assault into the first degree rape
conviction for sentencing purposes. However, the court did not merge the false
43
imprisonment conviction and imposed a consecutive sentence for that offense. Mr. Brooks
contends that the convictions should have been merged for sentencing purposes.
The merger of convictions for purposes of sentencing derives from the protection
against double jeopardy afforded by the Fifth Amendment of the federal Constitution and
by Maryland common law. Nicolas v. State, 426 Md. 385, 400, 44 A.3d 396 (2012). Merger
protects a convicted defendant from multiple punishments for the same offense. Id.
Sentences for two convictions must be merged when: (1) the convictions are based on the
same act or acts, and (2) under the required evidence test, the two offenses are deemed to be
the same, or one offense is deemed to be the lesser included offense of the other. Id. at 400-
2; State v. Lancaster, 332 Md. 385, 391, 631 A.2d 453 (1993).
The Court of Special Appeals had occasion to consider whether a false imprisonment
conviction merges into a rape conviction in Hawkins v. State, 34 Md. App. 82, 92, 366 A.2d
421 (1976). In that case, the defendant approached the victim in a wooded area, seized her
by the throat, held a gun to her side, ordered her to undress and lie on the ground, and raped
her. The court noted that the victim was detained only for the time necessary to complete the
rape. Because “[a]ll of the facts necessary to prove the lesser offense were essential to
proving the greater one,” the court held that the defendant’s conviction for false
imprisonment merged into the rape conviction. Id. The court reasoned that “[t]o hold
otherwise would be to hold that in every case of rape, a conviction for false imprisonment
would also be proper,” but noted that “confinement after or before the rape is committed
44
would preclude the merger.” Id.
As the Circuit Court’s instructions in the instant case also demonstrate,22 the facts
22
On the false imprisonment charge, the court instructed the jury:
False imprisonment is the confinement or detention of a person
against that person’s will, accomplished by force or threat of
force. In order to convict the defendant of false imprisonment,
the State must prove:
1. That the defendant confined or detained [Laura B.];
2. That [Laura B.] was confined or detained against her
will; and
3. That the confinement or detention was accomplished by
force or threat of force.
On the charge of first degree rape by threat, the court instructed the jury:
In order to convict the defendant, the State must prove all of the
elements of forcible second degree rape, and must also prove the
defendant threatened or placed [Laura B.] in reasonable fear that
[Laura B.] would be imminently subject to death, suffocation,
strangulation, disfigurement, or serious physical injury.
On the charge of second degree rape, the court instructed the jury:
Rape is unlawful vaginal intercourse with a female by force or
threat of force and without her consent. In order to convict the
defendant of second degree rape, the State must prove:
1. That the defendant had vaginal intercourse with [Laura
B.];
2. That the act was committed by force or threat of force,
and
45
necessary to prove a rape also prove false imprisonment for the period of the rape. In
particular, in order to prove false imprisonment, the prosecution must prove the following
three elements, each of which is also an element of a first degree rape conviction:
(1) that the defendant confined or detained the victim;
as Hawkins indicated, confinement or detention of the victim is
necessarily part of the proof of a rape
(2) that the victim was confined or detained against the victim’s will;
a rape involves sexual intercourse without the victim’s consent
– i.e., against the victim’s will
(3) the confinement or detention was accomplished by force or threat of
force;
forcible second degree rape involves the use of force or threat
of force
Thus, if the jury convicted Mr. Brooks of false imprisonment for confinement coincident with
the rape, the convictions merge for sentencing purposes.
The critical question as to merger in this case is thus whether the rape conviction and
the false imprisonment conviction are based on the “same act or acts.” Laura B.’s testimony
in this case could support a finding that Mr. Brooks detained her against her will by force or
threat of force – i.e., falsely imprisoned her – before the rape when he beat and choked her
in the bedroom and followed her to the living room, confining her to the house in anticipation
of the rape, as well as after the rape when he followed her around the house and refused to
3. That the act was committed without the consent of
[Laura B.].
46
let her leave. While the false imprisonment conviction could have reasonably been based on
Mr. Brooks’ actions separate from the rape itself, it is not readily apparent whether the jury
actually came to that conclusion. In such circumstances, we are constrained by precedent
from assuming that the two convictions were not based on the same act or acts. In particular,
when the factual basis for a jury’s verdict is not readily apparent, the court resolves factual
ambiguities in the defendant’s favor and merges the convictions if those convictions also
satisfy the required evidence test. Nicolas, supra, 426 Md. at 410-413; Snowden v. State, 321
Md. 612, 618-619, 583 A.2d 1056 (1991); Nightingale v. State, 312 Md. 699, 708-709, 542
A.2d 373 (1988).
In Nicolas, police were called to investigate an alleged hit and run in Nicolas’
neighborhood. According to the testimony of the officers, when they attempted to question
Nicolas about the incident, he pushed and punched the officers. At that point, the officers
indicated their intention to place him under arrest, after which an additional altercation
occurred. At trial, Nicolas denied the initial attack. The jury found Nicolas guilty of both
assault and resisting arrest.
This Court held that, in returning those guilty verdicts, the jury could have believed
that the initial altercation – before the officers announced their intention to arrest Nicolas –
either occurred or did not occur. The Court also found that, even if the jury believed that the
initial altercation did occur, it could have found that it did not constitute a separate assault
from assault following the officers’ announcement of their intent to arrest Nicolas. After
47
examining the trial transcript, the jury instructions, and the verdict sheet, the Court
determined that the record was ambiguous as to the factual basis on which the jury found
Nicolas guilty of the assault charge. Nicolas, 426 Md. at 412. The Court held that, in
resolving a question as to whether convictions should merge, an ambiguity as to the factual
basis for a conviction should be resolved in the defendant’s favor. Accordingly, the Court
assumed that the factual bases for the assault and resisting arrest convictions were the same
and held that the convictions merged. Id.
Similarly, in Snowden, this Court merged convictions for assault and battery into a
conviction for robbery. In that case, the defendant entered a restaurant with the intent of
robbing it. When the restaurant manager appeared, the defendant immediately shot the
manager and subsequently demanded to know where he kept the money. The manager, with
the defendant pointing a rifle at his back, led the defendant to the office where the money
was located, and the defendant left the restaurant with $3,000. In a bench trial, the defendant
was convicted of, among other things, robbery and assault and battery.
The State argued that the assault and battery conviction should not merge into the
robbery conviction because there were two separate crimes – the shooting prior to the
robbery and the robbery itself. This Court stated that the trial court’s rationale for convicting
the defendant of both robbery and assault and battery was not readily apparent: “We do not
know whether the robbery charge was based on battery as a lesser included offense or on
assault as a lesser included offense with the battery considered separate.” 321 Md. at 619.
48
The Court noted that “had it been a jury trial we could have looked to the judge’s instructions
in hope of illuminating the rationale behind the verdicts. Because the case was tried by the
court, we must look to the judge’s rationale for the convictions.” Id. Because the trial court
could have based the convictions for assault and battery on the same acts as the robbery and
any ambiguity must be resolved in favor of the defendant, the Court held that the convictions
for assault and battery merged into the conviction for robbery.
Here, as in Nicolas, the jury may, or may not, have found that a detention of Laura B.
before or after the rape was the basis for the false imprisonment conviction. Laura B.
testified that Mr. Brooks choked her before the rape, but Mr. Brooks denied doing so. Laura
B. testified Mr. Brooks was “right behind me ... like my shadow” after the rape, but Mr.
Brooks denied trying to keep her from leaving her home, and said he did not remember
following her around the house. Even if the jury found that a detention did occur before or
after the rape, the jury may have not relied upon it as the basis for Mr. Brooks’ false
imprisonment conviction.
We look to the record for other indications that might resolve the ambiguity in favor
of non-merger. As suggested in Snowden, we have examined the jury instructions.23 While
23
In addition to jury instructions, the verdict sheet can be examined by a reviewing
court. Here, the Circuit Court provided the jury with a general verdict sheet. In cases in
which there could be an issue as to merger, a trial court could provide the jury with a special
verdict sheet. For example, in this case, a special verdict sheet might have stated something
like: “Answer the following question if and only if you find the defendant guilty of both first
degree rape and false imprisonment. Did the false imprisonment occur before, during, or
after the first degree rape? Circle ‘before,’ ‘during,’ or ‘after.’ Again, do not answer this
49
the court’s instructions properly defined the charged offenses in accordance with pattern jury
instructions, they did not specify that the jury must find that detention occurred either prior
to or after the rape to convict Mr. Brooks of false imprisonment if it also convicted him of
rape. There was no specific reference to detention before or after the rape in the jury
instructions.
In the State’s closing argument in this case, the prosecutor appeared to identify the
entire period of time that Mr. Brooks was with Laura B. in her house as the period of false
imprisonment. He told the jury:
The false imprisonment count. Requirements for that is that the
defendant confined or detained the victim against her will using
force or threat of force. The fact that he wouldn’t let her out of
his sight, he wouldn’t let her out of the bedroom, he followed
her everywhere that she wanted to go in the house, specifically
told her she couldn’t use the phone or call the police, these are
all indications that he meant to keep her where she was in the
bedroom. She wasn’t free to leave. She wasn’t even free to
make a phone call.
While this argument invited the jury to consider the entire period of the encounter between
Laura B. and Mr. Brooks that evening in relation to the false imprisonment count, the
prosecutor did not suggest that the jury should consider the time before or after the rape
separately in considering the false imprisonment count.
question if you find the defendant not guilty of either first degree rape or false
imprisonment.”
50
Finally, we note that, during its deliberations, the jury sent a question to the judge
asking “Is false imprisonment time dependent? If the victim was restrained for a brief
moment, is that considered false imprisonment?” The trial court responded by referring the
jury to its memory of the evidence in light of the instructions of the court. While we are loath
to draw any conclusions concerning a jury’s factual determinations from a question posed
to the judge during deliberations, it is difficult to infer from this question that the jury was
specifically focused on a time period separate from the rape itself.
Because the precise factual basis of the jury’s conviction of Mr. Brooks of false
imprisonment is not readily apparent and any factual ambiguities must be resolved in favor
of the defendant, we must assume that the false imprisonment conviction was based on the
same facts as the rape conviction – that is, the detention of Laura B. during the rape. As
indicated above, under the required evidence test, all the elements of the offense of false
imprisonment are included in the elements of the offense of first degree rape. Therefore, the
two offenses must merge for sentencing purposes.
Conclusion
For the reasons stated above, we hold:
1. Written extrinsic evidence of a prior inconsistent oral statement of a witness
is admissible at trial for the purpose of impeachment of the witness if the proponent of the
evidence satisfies the requirements of Maryland Rule 4-613 and if either the writing is a
substantially verbatim version of the prior oral statement or the declarant has previously
51
adopted or ratified the writing as an accurate summary of the prior oral statement. In this
case, the defense satisfied the foundational requirements of the rule, but failed to establish
that the police report was a substantially verbatim version of the prior allegedly inconsistent
statement of Laura B. or that she had previously adopted it. The Circuit Court properly
excluded that report from evidence.
2. It was permissible for the prosecutor to ask the SAFE nurse who examined
Laura B. shortly after the alleged rape whether the account given to the nurse by Laura B.
during the examination was “consistent or inconsistent with” the physical injuries observed
by the nurse. The nurse’s response that the injuries she observed on Laura B. “would verify”
Laura B.’s account was, in context, most likely understood as an affirmation that the injuries
were consistent with what Laura B. told the nurse and the trial court was not required to
strike the statement. Even if the nurse’s use of the word “verify” could be considered an
inadmissible comment concerning the general credibility of Laura B., the court’s failure to
strike the nurse’s answer was, at worst, harmless error.
3. Because it is not readily apparent that the factual basis for the jury’s guilty
verdict on the false imprisonment count was separate from that of the guilty verdict on the
first degree rape count and because all of the elements of false imprisonment are also
elements of a first degree rape, the conviction for false imprisonment should be merged into
the conviction for first degree rape for sentencing purposes.
52
J UDGMENT OF THE C OURT OF S PECIAL A PPEALS
A FFIRMED IN P ART AND REVERSED IN P ART.
C ASE R EMANDED TO THAT C OURT WITH
D IRECTIONS TO R EMAND TO THE C IRCUIT
C OURT FOR F URTHER P ROCEEDINGS
C ONSISTENT WITH THIS O PINION. C OSTS TO BE
S PLIT E VENLY B ETWEEN P ETITIONER AND
H ARFORD C OUNTY.
53
Circuit Court for Harford County
Case No.: 12-K-08-001815
Argued: February 7, 2014
IN THE COURT OF APPEALS
OF MARYLAND
No. 46
September Term, 2013
WARDELL MONROE BROOKS
v.
STATE OF MARYLAND
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Concurring Opinion by Adkins, J.
Filed: August 27, 2014
I agree with the Majority opinion, except with respect to its finding no error in the
trial court’s failure to strike Nurse Harden’s response to the prosecutor’s question,
indicating she could verify the victim’s accounting of the events that transpired.
I agree with Judge Harrell’s dissenting opinion when he concludes that refusing to
strike this testimony was error by the trial court. I disagree, though, with Judge’s Harrell’s
conclusion that this error was prejudicial. In my opinion, there was sufficient corroborating
evidence to render this error harmless. Such evidence includes the police officer’s
testimony about his arrival at the victim’s house, Nurse Harden’s non-objectionable
testimony about the significant physical injury to the victim, and the photographs of the
victim taken at the time of the crime. I agree with Judge McDonald’s analysis when he
concludes that if there were error, it was harmless.
Accordingly, I join in the judgment of the Majority, and some of its rationale, but
not its failure to strike Nurse Harden’s response as described above.
Circuit Court for Harford County
Case No. 12-K-08-001815
Argued: February 7, 2014
IN THE COURT OF APPEALS
OF MARYLAND
No. 46
September Term, 2013
______________________________________
WARDELL MONROE BROOKS
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
JJ.
______________________________________
Dissenting Opinion by Harrell, J.,
which Greene, J., joins.
______________________________________
Filed: August 27, 2014
Technically, I dissent, although I agree with much of the Court’s opinion. The only
point upon which I part company with the Majority is with regard to admitting Nurse
Harden’s testimonial response (to the prosecutor’s legitimate question) that her findings
from her physical examinations of Laura B. “would verify” what Laura B. told her.
Contrary to the analysis and conclusion of the Majority opinion that allowing the response
to be considered by the jury was not error and, if error, was harmless (Maj. slip op. at 41-
44), I would find error and a quite harmful one, to boot. Accordingly, I would reverse the
judgment of the Circuit Court and remand the case for a new trial.
As the Majority opinion concedes, “the word ‘verify’ . . . might well suggest that
[Nurse Harden] had assessed Laura B.’s statement to her to be the one true version of
events.” Maj. slip op. at 41. Yet, the Majority opinion engages thereafter in a
rationalization, based on linguistic gymnastics, that it could have meant something else in
the greater context here. Although such an analysis may beguile some jurists and lawyers,
one should not lose sight of who the fact finder was at Brooks’s trial – a jury of his peers.
I do not accept that they, unpracticed most likely in the ways of legal legerdemain, would
perceive what Nurse Harden said in such a caged manner as the Majority opinion imagines,
nor am I willing to assume, at Brooks’s expense, that was the case here.
As the Majority opinion must concede, “verify” usually means “to establish the
truth.” That is the sense most often associated with that word by lay people and
lexicographers. See, e.g., Merriam Webster’s Collegiate Dictionary 1312 (10th ed. 1993)
(“verify” – “to establish the truth, accuracy, or reality of”). This is what, for present
purposes, we must assume the jury understood. It was prejudicial error for the jury to have
been permitted to consider Nurse Harden’s answer. Her reply was more than simply saying
that Laura B.’s version was not excluded as an explanation of her injuries. The use of the
term “verify” suggested that it was the one “true” version. This was analogous to the social
worker’s testimony in Bohnert v. State, 312 Md. 266, 539 A.2d 657 (1988), based on a
child’s statements that the victim’s behavior showed that she was in fact a victim of sexual
assault. Both statements amount to telling the jury that the alleged victim was telling the
truth and, by strong implication, the defendant was not. See Bohnert, 312 Md. at 275-76,
539 A.2d at 661-62.
Just as this Court in Bohnert held that the trial court’s error in admitting the social
worker’s impermissible reflection on the victim’s testimony warranted a new trial, the trial
court’s error in admitting Nurse Harden’s testimony was not a harmless error and warrants
a new trial in this case. The standard of review for harmless error is:
[W]hen an appellant, in a criminal case, establishes error, unless a
reviewing court, upon its own independent review of the
record, is able to declare a belief, beyond a reasonable doubt,
that the error in no way influenced the verdict, such error cannot be
deemed “harmless” and a reversal is mandated. Such reviewing
court must thus be satisfied that there is no reasonable possibility
that the evidence complained of – whether erroneously admitted
or excluded – may have contributed to the rendition of the guilty
verdict.
Dorsey v. State, 276 Md. 638, 659 (1976) (emphasis added).
We have been reluctant to hold that an error was harmless when the error could have
affected the jury’s assessment of the credibility of either the defendant or the victim, and
when the outcome of the trial hinged on whether the jury believed the defendant’s or the
victim’s version of events. See, e.g., Clemmons v. State, 352 Md. 49, 720 A.2d 1170 (1998)
-2-
(finding that the trial court’s error in admitting evidence that a co-defendant had pled guilty
to the same crime was not harmless and stating that the outcome of the case “depended
largely on credibility – which of two versions the jury was going to believe); Beales v. State,
329 Md. 263, 619 A.2d 105 (1993) (holding that the trial court’s error in admitting evidence
of the defendant’s prior theft conviction was not harmless and noting that the relative
validity of the prosecution and defense’s different accounts of the incident “depended
largely on the credibility of the witnesses”).
Although there was other evidence to corroborate Laura B.’s testimony (e.g., the
observations of the law enforcement officers at Laura B.’s house when they arrested Brooks,
Nurse Harden’s testimony as to the injuries she observed on Laura B., and the photographs
of Laura B. taken on the night of the alleged rape), the evidence of physical injuries was
not itself conclusive as to whether a rape occurred, as evidenced by Nurse Harden’s
admission, on cross-examination, that “women can be injured during [unforced] sex.”
Because the outcome of the case depended largely on whether the jury believed Laura B.’s
or Brooks’s version of events, I am not prepared to declare that the trial court’s admission
of Nurse Harden’s testimony — that her findings would “verify the story” that Laura B. told
her—was harmless beyond a reasonable doubt.
Judge Greene authorizes me to state that he joins the views expressed here.
-3-