Argued February 7, 2014
Certiorari to the Court of Special Appeals (Circuit Court for Harford County. Case No. 12-K-08-001815), Angela M. Eaves, JUDGE.
ARGUED BY Jeffrey M. Ross. Assistant Public Defender (Paul B. DeWolfe. Public Defender, of Baltimore MD) on brief FOR PETITIONER.
ARGUED BY Susannah E. Prucka. Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland, of Baltimore MD) on brief FOR RESPONDENT.
ARGUED BEFORE: Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, and Watts, JJ. Opinion by McDonald, J. Adkins, J., concurs. Harrell and Greene, JJ., dissent.
[439 Md. 702] McDonald, J.
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.
[439 Md. 703]Background
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.
In the fall of 2008, Laura B., 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 fro 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."
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 [439 Md. 704] 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.
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. 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 [439 Md. 705] 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 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."
[439 Md. 706] 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.
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. 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 statute, leaving him " dazed."
Mr. Brooks denied hitting, striking, or assaulting Laura B. in any manner, but admitted that he threw " something" at her [439 Md. 707] " 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.
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.
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 [439 Md. 708] 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.
(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.
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 would be subject to review under [439 Md. 709] 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....
[439 Md. 710] While the report was consistent with Laura B.'s testimony that she was raped by Mr. Brooks, 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 ...