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White v. State

Court of Special Appeals of Maryland

June 11, 2015


Meredith, Graeff, Leahy, JJ.


Leahy, J.

Science and technology play a vital role in the criminal justice system, especially in cold cases, by, for example, exonerating the innocent and identifying the guilty through advances such as forensic DNA testing. But technology can also trample important constitutional protections, as demonstrated by the incessant struggle to protect privacy rights. Technical innovations must, therefore, satisfy the perennial dictates of the United States and Maryland Constitutions before they may be utilized in a criminal case. In this appeal, we examine, among other things, whether use in the courtroom of a two-way video conference in lieu of physical, in-court testimony by one of the State's forensic technicians violated Appellant Robert Armstrong White's constitutional right to confrontation.

Two women-T.K. and E.L[1]-were raped during separate incidents in Montgomery County, Maryland in 1979. Despite the investigations launched in each case, their assailant was never identified. Approximately three decades later, the Montgomery County Police Department reopened these cold cases and sent the forensic evidence collected in each case to the lab for DNA testing-an investigative tool not available in the 1970s.[2] Those DNA analyses ultimately revealed a match with Appellant's DNA. Consequently, in the spring of 2012, Appellant was separately tried for each case before two different judges in the Circuit Court for Montgomery County. At trial, the State presented the testimony of Jeanne Hostetler, the serologist who examined the original rape kits in each case, via two-way video conference. The juries in each case ultimately convicted Appellant of the first-degree rapes, as well as other related offenses. In his timely appeal, [3] Appellant presents three questions for our review, which we have reordered:

I. Did the trial court err in denying Appellant's motion to dismiss based on Appellant's right to a speedy trial?
II. Did the trial courts err in admitting testimony via video conference in violation of Appellant's confrontation rights?
III. Did the trial court err in allowing the State to make improper and prejudicial statements at closing argument?

We hold that the circuit court properly denied Appellant's motion to dismiss filed in the second trial because Appellant's right to a speedy trial was not violated. Specifically, we conclude that, under the good faith standard applied to the government's dismissal of charges announced in United States v. MacDonald, 456 U.S. 1 (1982), the speedy-trial clock did not begin to run in this case until the filing of the second statement of charges and detainer, and the resulting delay did not impair Appellant's right to a speedy trial. We also hold that after conducting a fact-sensitive inquiry, the circuit court did not err in finding Ms. Hostetler unavailable to testify at trial, and correctly determined that under the circumstances, admission of her testimony via two-way video conference subject to full cross-examination in lieu of physical, in-court testimony did not violate Appellant's constitutional right to confrontation pursuant to the principles espoused in Maryland v. Craig, 497 U.S. 836 (1990). Appellant failed to preserve his argument that the State made improper and prejudicial arguments during closing, and we conclude that the prosecutor's statements did not deny Appellant his fundamental right to a fair trial as to warrant plain error review. Accordingly, we affirm the judgments of the trial courts.


In 2009, the Montgomery County Police Department re-opened two cold cases involving the 1979 rapes of T.K. and E.L. The DNA of the semen samples taken from each case was run through the Combined DNA Index System and revealed a match to Appellant's DNA.[4] The State then obtained a search warrant for the buccal swab of Appellant, and additional testing of the buccal swab with the samples taken from each cold case confirmed the DNA match.[5] In T.K.'s case, Appellant was charged with two counts of first-degree rape, two counts of second-degree rape, and robbery with a dangerous weapon. In E.L.'s case, Appellant was charged with two counts of first-degree rape, two counts of second-degree rape, first-degree sexual offense, and kidnapping.[6]Although the crimes relating to each victim were charged in the same indictment, Appellant requested, and the State ultimately agreed, that each case be tried separately.

A. Trial One-March 19-22, 2012-Judge McCormick Presiding

T.K. testified that in March of 1979, she was twenty years old, working at the National Bureau of Standards and at the Montgomery Ward, and attending a night class at Montgomery College in Rockville, Maryland. On March 12th, after her class ended at 8:30 p.m., she left the building and started walking toward her car in the parking lot. Suddenly a man grabbed her from behind and placed his arm across her mouth. He stuck a sharp object, which she thought was a knife, against her neck. The man told her not to make any noise and dragged her into the cover of nearby pine trees. The man made T.K. pull her pants down and forced her to engage in vaginal intercourse. He made her wear a sweater over her head so she could not see. After making her pull her pants up again, he dragged her to another location, still holding the sharp object to her neck. Again he forced her to pull her pants down, got on top of her, and repeated the rape. T.K. testified that she was a virgin, that she was scared, and that when she whimpered, he admonished her to be quiet. She related that she thought he was going to cut her neck and that she was probably going to die.

The man then made T.K. hand over a pack of cigarettes and her wallet, containing checks and $3.00. As he smoked a cigarette, and while holding her checkbook and driver's license, he asked her to affirm her address and that her name was T.K. He threatened her, stating, "if you tell anybody about this . . . . I will go back to this house . . . and fire up the house and burn everybody in it." Next he threw her car keys. After retrieving them, T.K. got into her car and drove to her parents' house where she lived. Her mother called the police.

When the police officer arrived, T.K. told him what had happened and provided a description of her assailant, although she admitted that she was unable to get a good look at him. She told the officer that the man had been masked, but could not remember other details. Once she arrived at Suburban Hospital, she met with a female officer and received a pelvic exam performed by a doctor.

Thomas Schirf, who at the time of trial was retired from the Montgomery County police force, testified that he was the primary detective involved in T.K.'s case. After refreshing his recollection by referring to a report that he prepared during the investigation, Detective Schirf testified that he received a phone call at around 11:15 p.m. regarding a rape on March 12, 1979, and that he drove over to T.K.'s home. T.K. described her attacker as a "Negro male, age unknown, 5'8", medium build, wearing a green Army field jacket, white knit hat pulled over face, white gloves or hands wrapped with a white cloth." Detective Schirf collected T.K.'s clothing for evidence. Then T.K. accompanied Detective Schirf to the crime scene, where she pointed out the pine trees and wooded area and recounted what had occurred. Immediately thereafter, Detective Schirf took T.K. to Suburban Hospital, where a doctor conducted a pelvic exam and collected samples for a rape collection kit in the presence of female officer, Sheila Rahn. After the evidence was gathered, Detective Schirf placed the evidence into sealed bags that ultimately went to the crime lab in a sealed box. He then gave the box to Detective Gibson, who delivered the box to Jeanne Hostetler, a serologist.

Sheila Feeney (maiden name Rahn), a retired Montgomery County police officer, testified that she witnessed T.K.'s pelvic exam and the doctor's collection of swabbings for T.K.'s rape kit. She obtained the samples and swabs from the doctor conducting the exam and placed them back into the kit.

Jeanne Hostetler then testified-via video conference-that she was a forensic serologist for the Montgomery County Police Department in 1979.[7] She received the box of evidence in T.K.'s case in sealed condition and opened the box to conduct a serological analysis of the items therein. To conduct this analysis, she cut small portions of the swabbings for her examination and replaced the remaining portions into the original containers. After her examination, she placed the containers back into the box, sealed it, and returned the box to another detective. T.K.'s assailant could not be identified during the initial investigation.

Detective Joe Mudano, a detective in Montgomery County Police Department's Cold Case Unit, testified that in May 2009, he reopened the investigation into T.K.'s rape. Detective Mudano began his investigation by collecting all of the materials from the original investigation, including the crime scene photographs and the old police files from the County's Archives. He also obtained the original evidence box from the secured Evidence Storage Facility. The box was closed, and the tape on the box was "kind of ragged, " but "still intact with the initials of who sealed it in all respects, top and bottom." It contained the victim's clothing from the night of the rape, and the forensic evidence obtained by the hospital, including vaginal and cervical swabs. Detective Mudano took the vaginal and cervical swabs, without opening the glass tubing or touching the swabs, and placed them into a sealed evidence bag, which he brought to Bode Technology, a private company that performed DNA testing for the County. He then obtained a buccal swab-a Q-tip swab from the inside of a person's cheek-from T.K.

After the initial DNA test results came back, Detective Mudano obtained a search warrant to obtain a buccal swab from Appellant. Detective Mudano testified that upon executing that warrant, Appellant responded that "it was not in his best interest to cooperate or comply with the warrant to provide us a sample." Appellant did, however, ultimately comply.

The State then called several Bode Technology analysts who assisted in the process for DNA analysis in T.K.'s case, including the cutting, extraction, amplification, and sequencing of the buccal and cervical swab samples.[8] Amy Baldwin, a forensic DNA analyst at Bode Technology Group, testified that the DNA analysis indicated that Appellant's DNA profile matched one of the DNA profiles extracted from the cervical swab from T.K. She testified that "[t]he probability of randomly selecting an unrelated individual with th[e] DNA profile [in TK's case] at 15 of the 15 areas tested is about 1 in 190 septillion in the U.S. Caucasian population, 1 in 1.2 septillion in the U.S. African-American population and 1 in 50 septillion in the U.S. Hispanic population." Barry Segelken, an employee with the Motor Vehicle Administration, testified confirming Appellant's address in 1979-a location demonstrated to be only five miles away from Montgomery College

On March 23, 2012, the jury convicted Appellant of two first-degree rapes of T.K. and robbery, but acquitted Appellant of robbery with a dangerous weapon.

B. Trial Two-April 10-13, 2012-Judge Greenberg Presiding

E.L., twenty-two years old in November 1979, testified that on November 16, 1979, she went to Walter Johnson High School to attend her younger brother's band performance. She pulled into the parking lot, and as she was turning her car off, her door suddenly flung open, and a man shoved her down and said, "Don't look at me. Keep your head down." After telling someone nearby to "get out of here, " he got into the car and began to drive away from the school. When the car came to a stop, the man directed E.L. to take her clothes off. E.L. briefly felt a cold piece of metal on her left side and thought it could have been a knife. The man instructed her not to look at him or she would "get it" and made her wrap her shirt around her head so she could not see him. He then "forced intercourse." Next he made E.L. engage in fellatio, threatening her to "do it nicely and you won't get hurt." He then instructed her to lay face down and again forced vaginal intercourse on her.

The man then drove E.L. back to the school and stopped the car. He said, "I'm going to leave you here now and don't look up or you're going to get it and everyone is going to get it . . . count to 50 and then you can get up." After he left, E.L. was afraid to move, but slowly dressed herself, went into the school, and went directly to a police officer to tell him she had been raped. She was then taken to Suburban Hospital, where she received a pelvic exam in the presence of a female officer. She remembered swabbings and her clothing being taken.

Catherine Stavely, a retired Montgomery County police officer at the time of trial, testified that she responded to the hospital on November 16, 1979 to investigate the rape of E.L. While there, she interviewed E.L. and obtained a statement about what had happened, which was recorded in her report and read aloud to the jury. She stated that she was unable to identify the suspect because E.L. only got a brief look at the suspect and that the fingerprint processing did not successfully reveal any latent prints. She was also present during the pelvic examination conducted at the hospital and witnessed the collection of swabbings and samples for the rape kit. She then put the items into the rape kit bag, sealed it, and delivered the bag to Jeanne Hostetler for serology testing.

Jeanne Hostetler testified via video conference that in 1979, she worked as a serologist at the Montgomery County Police Department. She received E.L.'s rape kit from Ms. Stavely and conducted an analysis of the items. This required her to take small cuttings from the swabs/clothing and then place them back into the containers in sealed condition. She then placed the containers back in to the evidence box and sealed it. Appellant's counsel cross-examined Ms. Hostetler about the items of clothing she examined. She agreed that she was unable to identify a suspect from her testing.

Detective Mudano, a detective in Montgomery County Police Department's Cold Case Unit, testified that in late 2009 or January 2010, he reopened the 1979 rape of E.L. He began by collecting the original evidence bag, including the rape kit, from the County's evidence storage facility. No clothing was located, although he had knowledge that E.L.'s clothing had been taken into custody. The bag was intact, taped, and sealed, bearing, among other things, the victim's name. The items therein were then transferred to another bag and resealed. Detective Mudano clarified that he only transferred the cervical and saliva swabbings from the rape kit, and did not fully open them. He then hand-carried the evidence bag to Bode Technology for DNA testing. He also obtained the original photos taken at the scene and all police reports.

Again, after learning that there was a male DNA profile obtained from the cervical swabbing in E.L.'s rape kit, Detective Mudano obtained a search warrant to obtain a buccal swab from Appellant.[9] Upon being served with the warrant, Appellant responded that "he did not think it was in his best interest to comply with the warrant." However, Appellant ultimately complied, and the sample was thereafter brought to Bode Technology for testing.

As in the prior trial, the State called several Bode Technology DNA analysts who assisted in the process for DNA analysis in E.L.'s case.[10] Julie Ferragut, a senior DNA analyst at Bode Technology qualified as an expert in the field of forensic DNA analysis, testified that she reviewed the work of the other analysts and produced a final report. She opined that the DNA profile extracted from the sperm fraction of the cervical swabbing matched the DNA profile obtained from Appellant's buccal swab. She testified that the "probability of randomly selecting an unrelated individual with this DNA profile at 11, at 15 lo[c]i is 1 in 500 trillion in the U.S. Caucasian population; 1 in 66 trillion in the U.S. African American population; and 1 in 150 trillion in the U.S. Hispanic population." Again, Barry Segelken from the Motor Vehicle Administration testified that Appellant's address in 1979 was five miles away from the school.

On April 13, 2012, the jury found Appellant guilty of two counts of first-degree rape of E.L., first-degree sexual offense, and kidnapping.

C. Sentencing

On May 30, 2012, in T.K.'s case, Judge McCormick imposed two consecutive sentences of life imprisonment for the first-degree rapes to run consecutively to any sentence Appellant was currently serving, [11] and consecutive sentence of 10 years for robbery. The second-degree rape offenses merged. That same day, in E.L.'s case, Judge Greenberg imposed two consecutive sentences of life imprisonments for first-degree rape, a consecutive sentence of life imprisonment for first-degree sexual offense, and a consecutive sentence of 30 years for kidnapping. All sentences were to run consecutive to any previously imposed sentence. Appellant filed an appeal of both convictions and sentences on June 4, 2012.

Additional facts are presented as they pertain the issues addressed in the discussion.



Constitutional and Statutory Speedy Trial Rights

Appellant contends the circuit court erred in denying his motion to dismiss for the State's failure to timely bring his case to trial in violation of (1) the Intrastate Detainer Act ("IDA"), 1999 Laws of Maryland, ch. 54 (H.B. 11) (codified at Maryland Code (1999, 2008 Repl. Vol.), Correctional Services Article ("CS") §§ 8-501 to -503); (2) Maryland Rule 4-271 (commonly known as the Hicks[12] rule); and (3) his constitutional right to a speedy trial. Appellant's motion to dismiss, filed on April 4, 2012, challenged only the timeliness of his second trial; therefore, only the timeliness of trial two before Judge Greenberg is preserved for our review.

The State initially obtained a district court statement of charges on November 23, 2010. A warrant was issued. Appellant was incarcerated at the time of the charges, so the warrant automatically converted into a detainer. But Appellant was never served with the arrest warrant because the State entered a nolle prosequi ("nol pros")[13] on April 15, 2011, claiming that due to the unavailability of a witness, the State could not go forward with the case. Appellant disputes the State's ground for entering the nol pros contending instead, that the State filed the nol pros to circumvent the Hicks rule. The State obtained a new statement of charges, warrant, and detainer on July 22, 2011.

The undisputed operative dates for our analysis include the following:

• November 23, 2010: The district court issued a statement of charges and an arrest warrant/detainer, because Appellant was serving a sentence on ...

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