Taylor v. State

BELL, Chief Judge,

dissenting in which ELDRIDGE, J., joins.

Todd Tyrone Taylor, the petitioner, was charged in the Circuit Court for Montgomery County with two counts of third-degree sexual offense for allegedly engaging in anal intercourse and fellatio with B.D., a 15 year old male. At trial, the State chose not to call B.D. to the stand to prove its case. Instead, it called witnesses to whom B.D. had related his story and used scientific and other circumstantial evidence for that purpose. Taylor sought to impeach B.D., a non-testifying hearsay declarant, by presenting the jury with evidence, through some of the witnesses the State called, that B.D. frequently lied when discussing his sexual history. By presenting this evidence, Taylor hoped to undermine the scientific evidence, which was dependent substantially on B.D.’s credibility. His strategy was to demonstrate to the jury that the conclusions reached by the State’s expert witnesses were not reliable because they were premised on the statements of a declarant who was not credible. The trial court ruled that Taylor’s attempt to impeach B.D. by cross-examining State’s witnesses was not permitted under Md. Rule 5-608^).1

*168I agree with the majority’s holding that, pursuant to Md. Rule 5-806,2 Taylor should have been permitted to impeach B.D. through the State’s witnesses that were called. Specifically, I agree that Md. Rule 5-608(b) does not pose a bar to the impeachment of a non-testifying hearsay declarant’s veracity when the State chooses not to call the declarant, because Md. Rule 5-806 permits the impeachment of a non-testifying declarant through testifying witnesses, which is the exact method of impeachment Taylor was erroneously prevented from using at trial. Majority slip op. at 38. As the majority correctly points out, “[t]o hold otherwise, would be to permit the State to insulate a non-testifying declarant from impeachment, by presenting his statements through other witnesses, instead of by calling the declarant to the stand.” Majority slip op. at 28-29. I do not agree with the majority’s conclusion that the trial court’s error in refusing to allow the impeachment attempted in this case was harmless beyond a reasonable doubt. Therefore, I dissent.

The jury reached a split verdict at Taylor’s trial, finding him guilty of the anal intercourse count but not guilty of the *169fellatio count. The Court of Special Appeals affirmed Taylor’s conviction in an unreported opinion. It is undisputed that on September 22, 2004, B.D. visited Taylor’s apartment. The issue for the jury to determine, however, was whether Taylor and B.D. had illegal sexual contact with each other in Taylor’s apartment, as B.D., through the witnesses that the State called, maintained, or, whether, as the petitioner claimed, Taylor and B.D. merely masturbated individually.

B.D.’s version of the facts was presented as indicated, through several witnesses. Bicie Walker, his mother, testified that B.D. admitted going to Silver Spring, Maryland and having a sexual encounter with another man. Marvin D., B.D.’s father and Ms. Walker’s ex-husband, testified that he demanded to be, and was taken, by B.D. to the apartment where the sexual encounter occurred, where they met law enforcement officials, who directed them to give statements to Detective Deana Mackie, an officer in the Family Crimes Division.

Detective Mackie confirmed that B.D. maintained that he had sex with the petitioner in his apartment. Heidi Bresee, a Forensic Nurse Examiner, conducted a sexual assault examination of B.D. That examination revealed an acute half-inch tear in B.D.’s anal verge that was consistent with a penile penetration at the time in which B.D. claimed to have had anal sex with Taylor. Bresee also collected swabs of possible forensic evidence from the inside of B.D.’s mouth, rectum and perianal buttocks as part of B.D.’s rape kit, also known as a physical evidence recovery kit (“PERK”). She also testified to what B.D. told her:

“He stated to me, I met this guy Tony in a telephone chat room. We agreed to meet and have sex. I told him I was 17 so he knew I was a minor. I went to his place after school. I performed oral sex on him first. His penis tasted weird, nasty. I spit after I did that. I can’t describe but it tasted gross. Maybe like he’d had sex with someone else before I got there. Then he had anal sex with me. He put his finger and his penis in my butt. He didn’t wear a condom. I don’t think he put anything on his penis. It *170hurt a little but not bad. When my mom found out, she called the police.”

Finally, Bresee indicated that B.D. told her that he had a bowel movement after his “encounter” with Taylor.

Karolyn Tontarski, a Forensic Scientist, analyzed the swabs collected by Bresee, finding that the “perianal” and “rectal swabs” contained Taylor’s DNA.3 The amount of sperm cells found on B.D.’s perianal and rectal swabs was consistent, Tontarski stated, with an internal ejaculation. That conclusion assumed that the bowel movement that B.D. testified he had, after his sexual encounter, had been a large bowel movement. She conceded, on cross-examination, in that regard, that had B.D. had only a light bowel movement, it might be possible, although she thought highly unlikely, for the semen to have been deposited by an inanimate object.

Taylor testified in his own defense and vehemently denied B.D.’s version of events.4 While agreeing that B.D. came to his house in response to a message he left on an adult gay hotline that was for adults only, he disputed that he had sex with him. According to Taylor, he agreed only to watching a pornographic tape on his bed while he and B.D., individually and separately, masturbated. Nothing more occurred, he maintained.

When he ejaculated on his chest and stomach, Taylor stated, B.D., who was lying next to him, reached over and wiped the semen off of Taylor’s chest and stomach with his right hand, after which Taylor testified that he noticed B.D. putting his *171right hand in between his buttocks and using his left hand to masturbate himself. Although he admitted that he did not see B.D. use his fingers to penetrate his rectum, Taylor stated emphatically and, therefore, was absolutely certain, that the half-inch tear in B.D.’s anal verge was not caused by his penis because he never penetrated B.D. Taylor testified that, while B.D.’s behavior was “freaky,” he did not find it “weird.” Gay men, he explained, occasionally engage in this type of conduct for sexual pleasure and satisfaction.

I. Harmless Error Rule

In Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976), this Court outlined the test for harmless error in criminal cases:

“We conclude that when 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.”

Prior to Dorsey, this Court cautioned that the harmless error rule “should be carefully circumscribed” to discourage prosecutors from testing the bounds of our evidentiary rules in hopes of a reviewing court simply finding the error harmless in light of the substantial evidence of the defendant’s guilt. Younie v. State, 272 Md. 233, 248, 322 A.2d 211, 219 (1974)(quoting People v. Jablonski, 38 Mich.App. 33, 38-39, 195 N.W.2d 777, 780 (1972)). The majority’s perfunctory harmless error analysis takes this Court one step closer to the reality of which these cases warned and, while doing so, usurps the role of the trier of fact by simply and independently reweighing the evidence. Judges do not weigh evidence or find facts in a jury trial. “[WJhat evidence to believe, what weight to be given it, and what facts flow from that evidence *172are for the jury, not the judge to determine.” Dykes v. State, 319 Md. 206, 224, 571 A.2d 1251, 1260 (1990).

For an appellate court to find harmless error, it must be “able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict.” Dorsey, 276 Md. at 659, 350 A.2d at 678. The harmless error rule is not an open invitation for the appellate court to substitute its judgment as to whether there was sufficient evidence to convict the defendant. Instead, in a jury trial, the jury or trier of fact, is the entity that the Constitution entrusts with making that determination, in the first instance. U.S. Const, amend. VI; Md. Constitution, Declaration of Rights, Article 23.5 The court’s role, as articulated in Dorsey, is to determine whether, beyond a reasonable doubt, the “error in no way influenced the verdict.” Id. Given the facts presented here, it is impossible for the majority, or anyone else, to conclude, beyond a reasonable doubt, that the jury’s verdict would not have been influenced had it been presented with the erroneously excluded evidence that B.D. frequently lied about his sexual past.

The trial court made two significant erroneous evidentiary rulings. The first significant error made by the trial judge was in preventing Taylor from cross-examining B.D.’s father, one of the State’s main witnesses, on whether B.D. had previously lied about his sexual past. The second erroneous ruling was in preventing Taylor from playing a tape of B.D.’s interview with Detective Mackie. He proffered that the tape would have shown the following:

*173“Mr. Chappie: Your Honor, I have on the tape when she [Detective Mackie] interviewed him [B.D.J that she asked him, “Why do you feel bad about this?” Because she said, “Do you feel bad about this incident?” He [B.D.] said yes. He said, “Because this is my first time.” And she said, “Anal sex, then?” He said yes. Later in that interview, he admits that he had anal sex with someone else previously to this. It shows that he lied about this incident and about his sexual activities[.]”

These two significant evidentiary rulings bear on, and, indeed, are critical to the assessment of the most important issue in the case, B.D.’s credibility. Their importance is accentuated by the fact that B.D. did not take the stand to testify about the alleged sexual acts that he engaged in with Taylor and so the petitioner was not able to confront him directly. Thus, the only insight the jury had, or could get, into the trustworthiness of B.D.’s testimony was through the testimony of those State’s witnesses to whom past discrepancies had been revealed or who, through experiences, were aware of the victim’s tendency to prevaricate. It is pertinent, in this regard, to note that those witnesses did not view the alleged sexual act and, therefore, were relating, and, so, relying on what they were told, the most critical being that related by B.D.

II. Application of Harmless Error Rule

The holding that the trial judge’s error was harmless is premised on the majority’s interpretation of the split verdict returned by the jury. It reasons that the jury had to conclude that B.D. lied when discussing his sexual past in order to reach the split verdict. Thus, according to the majority, the jury had already concluded that B.D. lacked credibility when discussing his sexual history. Necessarily, therefore, it asserts that the verdict was not impacted by the trial judge’s error.

Its protestations to the contrary notwithstanding, all the majority has done is weigh the evidence itself and conclude *174that there was sufficient evidence for a jury to convict Taylor. This approach, however, impinges on the province of the jury, which has the sole responsibility of “[wjeighing the credibility of witnesses and resolving any conflicts.” State v. Stanley, 351 Md. 733, 750, 720 A.2d 323, 331 (1998). The majority’s approach pays mere lip service to the harmless error standard outlined in Dorsey.

The jury’s split verdict does not mean, necessarily or even logically, that it concluded that B.D. lacked credibility when discussing his previous sexual encounters. There are other possible reasons for the jury’s split verdict. For example, the jury could have been persuaded by the absence of scientific evidence relating to the fellatio count, when compared with the seeming plethora of scientific evidence that explained and confirmed the anal intercourse count. The jury also could simply have reached a compromise verdict. “How, or why, a jury may decide to resolve credibility or fact issues in a particular manner is a matter only it knows.” Rubin v. State, 325 Md. 552, 593, 602 A.2d 677, 697 (1992) (Bell, J., dissenting). One thing, however, is certain: it is impossible for the majority, or anyone else, to conclude beyond a reasonable doubt how the jury would have used the erroneously excluded evidence and resolved the credibility determinations that would have flowed from it.

We are not concerned here with whether the evidence is sufficient to sustain the jury’s verdict. It undoubtedly is. In fact, the evidence against Taylor is fairly strong. The Dorsey harmless error rule, however, requires that, in order for harmless error to be found, the majority must be able to conclude beyond a reasonable doubt that the jury’s verdict would not have been influenced by the erroneously excluded evidence. Thus, simply determining whether there was sufficient evidence to convict Taylor and weighing the evidence in that process is not the proper role for an appellate court. Instead, the reviewing court must be satisfied that there is no reasonable possibility that the evidence complained of—-whether erroneously admitted or excluded—may have contributed to *175the rendition of the guilty verdict. See Rubin v. State, 325 Md. 552, 592, 602 A.2d 677, 696 (1992) (Bell, J., dissenting).

In addition to relying on an interpretation of the jury’s split verdict, which it is not at all clear that the jury used, the majority leans too heavily on the expert testimony of Nurse Bresee and Karolyn Tontarski. This Court has recognized that an expert’s opinion “derives its probative force from the facts on which it is predicated,” State Dep’t of Health v. Walker, 238 Md. 512, 520, 209 A.2d 555, 559 (1965), and is no stronger. Jones v. State, 343 Md. 448, 461, 464, 682 A.2d 248, 255-56 (1996). It is significant, therefore, that Nurse Bresee conceded that her interpretation of the observations that she made during B.D.’s sexual assault examination was influenced by B.D.’s version of events.6 Thus, Nurse Bresee’s and Karolyn Tontarski’s expert opinions are only as good as the foundation—the factual context and the credibility B.D. provides for their observations—that undergirds their expert opinions. Because an expert’s opinion is only as good as the factual predicate on which it is based, Maryland juries are not required to give an expert’s opinion any weight at all. See Md.Crim. Pattern Jury Instr. 3:14 (2003).7

The scientific testimony presented to the jury could have been interpreted by the jury as consistent with either Taylor’s *176or B.D.’s version of events. Just as the weight to be given the expert’s testimony is for the jury to decide, how to strike the balance and assess a witness’s credibility is to be left to the jury.8 Therefore, because it is the jury that determines the matter, that one interpretation is logically stronger, is not dispositive.

Taylor’s strategy was to undermine B.D.’s credibility.9 By doing so, the scientific conclusions reached by Nurse Bresee *177and Karolyn Tontarski, who both based their conclusions on B.D.’s version of events, similarly would be undermined. Nurse Bresee testified that she observed an acute half-inch tear on B.D.’s anal verge. On cross-examination, Nurse Bresee gave contradictory testimony about whether it was possible for a finger to cause the tear that she observed outside of B.D.’s anus. On cross-examination, Nurse Bresee testified, in part, to the following:

[Defense Counsel]: So you testified that a finger could not make this tear. It was unlikely that a finger could make that tear, is that correct?
[Nurse Bresee]: In my experience it is unlikely. That’s correct.
[Defense Counsel]: Okay. But it’s possible?
[Nurse Bresee]: It’s possible.
* * $ $
[Defense Counsel]: Okay. Well, what I’m asking you is, is it possible that someone can use a finger and the fingernail can scratch the outside of the rectum?
[Nurse Bresee]: I’m stating it’s not my opinion that you could cause a half inch tear by a fingernail.
*178[Defense Counsel]: All right. Okay. I’m asking you is it possible, not—
[Nurse Bresee]: Then no.

Nurse Bresee’s statement that a finger could have made the tear that she observed in B.D.’s anal verge is helpful to Taylor. It provides a basis for the jury to credit his version of the events. Her later statement, perhaps an attempt to retract her earlier statement, does not negate that fact. Her later statement simply stated that a fingernail could not have made the tear. At no time did she retract her testimony that a finger “possibly” may have done so.

The forensic scientist testified that she performed DNA typing on the swabs that Nurse Bresee took from B.D.’s mouth, anus and rectum, finding Taylor’s DNA only on both the perianus and rectal swabs. She conceded on cross-examination, however, that it was possible for an inanimate object, such as a finger, to have deposited the semen that she observed on the perianal and rectal swabs taken from B.D. To be sure, she qualified that it was “highly unlikely” that it could have occurred that way, but how likely it was was for the jury to decide.

The scientific evidence presented to the jury relied significantly, if not entirely on B.D.’s credibility. If the jury believed B.D., that he had anal sex with Taylor, the scientific testimony supported that version of events. The jury did not have to believe B.D., however. Tontarski’s testimony that the amount of semen on the perianal and rectal swabs taken from B.D. was consistent with an internal ejaculation, was premised on B.D.’s testimony that he had a bowel movement after his sexual encounter with Taylor. Nurse Bresee’s testimony about whether it was possible for a finger to cause the acute half-inch tear she observed on B.D.’s anal verge was conflicting. The scientific testimony favorable to B.D. would be valid, therefore, only if B.D. was credible. If the jury did not believe B.D., the scientific testimony could be interpreted consistently with Taylor’s version of events. For instance, with regard to the DNA in B.D.’s anal and rectal area, Taylor *179testified that B.D. placed semen he got from Taylor’s stomach and chest in between his own buttocks. Although Taylor did not testify that B.D. used his fingers to penetrate himself with Taylor’s semen, he did deny emphatically that he caused the tear in B.D.’s anal verge. Significantly, Tontarski’s testimony that it was possible for a finger to have deposited the semen when coupled with Nurse Bresee’s concession, made B.D.’s credibility quite important.

Had the jury been given the opportunity to hear that B.D. previously lied to his father about his sexual past and to listen to the tape of B.D.’s statement to Detective Mackie about his sexual history, it might have had a different perspective on the scientific testimony, which likely might have resulted in a different verdict. As Nurse Bresee admitted on cross-examination, her interpretation of the observations that she made during her sexual assault examination of B.D. was based largely on B.D.’s version of events. Thus, without B.D.’s story, Nurse Bresee lacked any factual context to interpret her observations. Thus, B.D.’s credibility played a pivotal role for the jury, as well as for Nurse Bresee and Karolyn Tontarski, in determining how to interpret the scientific evidence.

In any event, how the erroneously excluded evidence would have impacted the jury’s verdict is for it to decide. Based on my review, I conclude that there is a “reasonable possibility” that the erroneously excluded evidence could have resulted in a different verdict for Taylor. Therefore, I would have granted him a new trial.

For the aforementioned reasons, I respectfully dissent.

ELDRIDGE, J. has authorized me to state that he joins in this dissent.

. Md. Rule 5-608. Evidence of Character of Witness for Truthfulness or Untruthfulness.

*168(b) Impeachment by Examination Regarding Witness's Own Prior Conduct Not Resulting in Convictions. The court may permit any witness to be examined regarding the witness’s own prior conduct that did not result in a conviction but that the court finds probative of a character trait of untruthfulness. Upon objection, however, the court may permit the inquiry only if the questioner, outside the hearing of the jury, establishes a reasonable factual basis for asserting that the conduct of the witness occurred. The conduct may not be proved by extrinsic evidence.

. Md. Rule 5-806. Attacking and Supporting Credibility of Declarant

In General. When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

Exception. This Rule does not apply to statements by party-opponents under Rule 5-803(a)(l) and (a)(2).

. As to the swabs that Bresee took from the inside of B.D.’s mouth, Tontarski testified that she was not able to "obtain any conclusive DNA typing results on what we call the sperm fraction.”

. According to Taylor, B.D. deceitfully used the hotline’s services, responding to Taylor’s message as a 21 year-old student at George Washington University. Taylor also complained that B.D. provided a flattering physical description of himself. Taylor also testified that he never suspected that B.D. was underage, but found it suspicious that B.D.’s actual appearance did not match the description that B.D. gave over the phone. Therefore, he testified that he repeatedly tried to persuade B.D. to leave, but B.D. was determined to have sex.

. U.S. Const, amend. VI provides, in relevant part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation[J

Md. Constitution, Declaration of Rights, Article 23 provides in relevant part:

In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.

. On cross-examination, Nurse Bresee stated the following:

[Defense Counsel]: Okay. You have no first hand knowledge of what happened to Brandon D., is that correct?
[Nurse Bresee]: I was not at the scene. No. I go based on what the patients report.
[Defense Counsel]: So, your testimony is based on what he told you that happened earlier that day, correct?
[Nurse Bresee]: That is correct.

. MPJI—Cr 3:14: EXPERT OPINION TESTIMONY

An expert is a witness who has special training or experience in a given field. You should give expert testimony the weight and value you believe it should have. You are not required to accept any expert’s opinion. You should consider an expert’s opinion together with all the other evidence. In weighing the opinion of an expert, you should consider the expert's experience, training and skills, as well as the expert's knowledge of the subject matter about which the expert is expressing an opinion.

. The importance of testing an accuser’s credibility was highlighted in State v. DeLawder, 28 Md.App. 212, 344 A.2d 446 (1975), where the Court of Special Appeals, in a postconviction proceeding, held that the Supreme Court’s decision in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) warranted granting DeLawder a new trial. Lee Franklin DeLawder, on re-trial, was convicted of carnal knowledge of a female under the age of 14. DeLawder, 28 Md.App. at 213, 344 A.2d at 447. At trial, DeLawder’s strategy was to show the jury that the prosecutrix falsely claimed she was raped by him because she thought she was pregnant and feared having to tell her mother that she was pregnant as a result of her voluntary sexual activity. DeLawder, 28 Md.App. at 220, 344 A.2d at 451. In order for DeLawder’s strategy to succeed, he attempted to introduce evidence that the prosecutrix had engaged in prior acts of sexual intercourse. The trial judge correctly refused to allow DeLawder to introduce this evidence under then existing legal precedent. DeLawder, 28 Md.App. at 215, 344 A.2d at 448. The Supreme Court's subsequent decision in Davis, however, required that DeLawder be allowed to attack the prosecutrix's credibility in order to preserve his Sixth Amendment Confrontation Right. DeLawder, 28 Md.App. at 227, 344 A.2d at 454-55. In applying the Davis decision, the DeLawder court recognized, unlike the majority here, that the credibility of a witness, especially one that is essential to the State's case, is everything, and that an appellate court "cannot speculate ... as to whether the jury, as the sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to present it fully.” DeLawder, 28 Md.App. at 226, 344 A.2d at 454. This same appreciation for the fragility of credibility determinations made by the jury should have resulted in Taylor receiving a new trial. Unfortunately, the majority has taken upon itself to usurp the role of Taylor’s jury and conclude that there was enough evidence to uphold his conviction.

. In State v. Cox, 298 Md. 173, 468 A.2d 319 (1983), this Court held that a defendant should be permitted to impeach a prosecutrix concerning prior misconduct in the form of a false accusation against another individual. In Cox, the defendant attempted to impeach the prosecutrix's credibility by inquiring about a previous accusation of assault that she made against another individual, which she later recanted. Cox, 298 Md. at 177, 468 A.2d at 320. The trial judge prohibited Cox from *177cross-examining the prosecutrix on this matter, and he eventually was convicted of numerous sexual offenses and sentenced to life imprisonment. Cox, 298 Md. at 175-77, 468 A.2d at 320-21. We reversed Cox’s conviction and rejected the State’s argument that prohibiting Cox from impeaching the prosecutrix’s credibility on her prior false accusation was harmless. Cox, 298 Md. at 184-85, 468 A.2d at 324-25. In holding that the trial judge’s error was not harmless, we noted that ‘‘[djespite some corroborating physical evidence, the prosecution’s case against Cox was based on the testimony of the victim.” Cox, 298 Md. at 185, 468 A.2d at 324. Consequently, the prosecution against Taylor was based almost entirely on B.D.’s testimony which was articulated through the State’s witnesses. Just like in Cox, B.D.’s credibility was critical to the State’s case. When the trial judge erroneously prevented Taylor's jury from hearing evidence that B.D. had a history of lying about his sexual past, the trial judge essentially guaranteed a guilty verdict for Taylor. This Court's refusal to vacate Taylor's conviction and grant him a new trial, in my opinion, only demonstrates the failure of the majority to appreciate the important role that credibility plays in a jury’s interpretation of the evidence.