Shpak v. Schertle

ROSALYN B. BELL, Judge, concurring.

With respect to the result reached by the majority, I concur. I agree with the majority’s conclusion that defense counsel did not make a sufficient proffer to establish a relationship between “Schertle’s alleged cocaine abuse and her subsequent thefts as an adult.” The majority has not, however, focused on the more important aspect, that this failure to establish such a relationship renders the evidence of Schertle’s cocaine use collateral to the central issue and thus is inadmissible. See L. McLain, Maryland Evidence. § 607.4 (1987). While Shpak asserts that the evidence of Schertle’s cocaine use goes to the issue of Schertle’s motive to testify falsely, he does not indicate how this relieves him from liability. Indeed, Shpak’s request for the admission of cocaine use by Schertle may backfire against Shpak because the testimony of Dr. Spodak, as it is entered in the record, highlights the fact that the abuse by Shpak formed the basis of Schertle’s problems as an adult. That abuse could also include cocaine use.

When viewed against the backdrop of this basis for Dr. Spodak’s conclusions, in which he attributed Schertle’s criminal behavior to the early sexual abuse, the issue of her use of cocaine later in life becomes a “red Herring.” Dr. Spodak’s conclusions were based on data encompassing the period of Schertle’s life beginning with the original sexual abuse at age six and the continuing of that sexual abuse through her early adolescent years. The abuse predates any alleged cocaine use to such an extent that the use of cocaine later in her life was *230all but irrelevant to the true issue in the case, which was that Shpak’s sexual abuse of Schertle over a period of nine years caused her dysfunctional criminal behavior. By the same token, it is also inconsistent for Shpak to claim that the thefts were motivated by the alleged cocaine use.

Even if the evidence of cocaine use were relevant, it would be admissible only for the limited purpose of calculating the amount of damages Shpak owes Schertle and does not alter Shpak’s liability. Thus, under any circumstances, the decision on liability would stand and it would only be the damages that would be affected.