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Taylor v. State

Court of Special Appeals of Maryland

January 27, 2016


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[Copyrighted Material Omitted]

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         Appeal from the Circuit Court for Howard County, William Tucker, JUDGE.

         ARGUED BY Benjamin M. Miller (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD FOR APPELLANT.

         ARGUED BY Todd W. Hesel (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD FOR APPELLEE.

         Panel: Krauser, C.J., Wright, Arthur, JJ.


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         [226 Md.App. 322] Arthur, J.

         This appeal concerns whether a deaf criminal defendant has the constitutional right to confront the interpreter who interpreted his statements during a police interrogation, when the State offers those interpretations as evidence against him in a criminal prosecution.

         Clarence Cepheus Taylor III, who is deaf, was arrested on the allegation that he had sexually abused minors. With the [226 Md.App. 323] aid of sign-language interpreters, detectives interrogated him for almost five hours. Over Taylor's objection at trial, the court admitted a recording that included audio of an interpreter's English-language interpretations of Taylor's sign-language statements. A jury found Taylor guilty of abusing two of the seven complaining witnesses.

         Foremost among the issues raised in this appeal, Taylor contends that under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the admission of the interpreter's statements violated his constitutional right to be confronted with the witnesses against him. His contention is correct, and the judgments must be reversed.

         Factual and Procedural Background

         A. Taylor's Supervisory Role at the Maryland School for the Deaf

         Taylor was born without the ability to hear. He communicates primarily through American Sign Language (ASL). He can read and write in English, but he does not speak English or understand spoken English.

         In 2001, Taylor began working as a Student Life Counselor at the Columbia campus of the Maryland School for the Deaf. The Columbia campus, which serves students from pre-kindergarten through eighth grade, provides a residential dormitory to accommodate students who live far away from the facility. Taylor typically supervised groups of five or six male students in the afternoons and evenings. He later took on additional responsibilities as an after-school coordinator and basketball coach for both boys and girls.

         Taylor's employment came to an end in the fall of 2012. In November of that year, the School received a report from four female students, De., M., P., and S., who claimed that Taylor had touched them inappropriately at the Columbia campus between 2008 and 2011. The School placed Taylor on forced leave and reported the accusations to the Howard County police.

         [226 Md.App. 324] B. Criminal Investigation by Howard County Police

         Detective Penelope Camp served as lead investigator. Based on the results of her interviews of three students, she arrested Taylor and brought him to the police station for questioning on December 6, 2012.

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The nearly five-hour interrogation was recorded by video cameras and microphones.

         Because Detective Camp is unable to use or understand sign language, she arranged for a team of two interpreters to facilitate the questioning: Mr. Joe L. Smith, an ASL interpreter who could hear the detective's questions; and Ms. Charm Smith, a Certified Deaf Interpreter (CDI) who could not hear the questions. The detective asked questions in English, which the interpreters conveyed to Taylor through sign language; Taylor responded in sign language; the two interpreters converted his responses into English; and then Mr. Smith provided his spoken English interpretations of what Taylor had said in sign language. This collaborative interpretation process is known as relay interpretation or intermediary interpretation. State v. Wright, 2009 SD 51, 768 N.W.2d 512, 518 n.2 (S.D. 2009) (citing Linton v. State, 275 S.W.3d 493, 510 (Tex.Crim.App. 2009) (Johnson, J., concurring)); see also Vasquez v. Kirkland, 572 F.3d 1029, 1032-33 (9th Cir. 2009).[1]

         Through the interpreters, Detective Camp informed Taylor that he had " the right to remain silent," that " anything [he] sa[id] may be used against [him]," and that he had the right to have an attorney present. Taylor briefly inquired about the meaning of " the right of getting a counsel." Taylor then read and signed a written Miranda waiver form, indicating that he understood and voluntarily waived those rights.

          [226 Md.App. 325] Detective Camp told Taylor that his arrest was related to his conduct in his former role as a dorm counselor at the Maryland School for the Deaf. The detective stated that multiple students had accused Taylor of touching their breasts or buttocks on numerous occasions, of kissing them, and of exchanging intimate text messages with them. Before the detective had provided the names of the accusers, Taylor brought up students named Da., S., and M., two of whom were among the initial complainants. Later, the detective asked specific questions about De. and P.

         Through the interpreter, Taylor at first denied making any inappropriate physical contact with students. He stated that he may have made accidental contact with someone in the school hallways, which he described as crowded and narrow at certain points. He also stated that he would sometimes greet students with a handshake combined with a hug and that it was possible that his hand could have brushed against a person's chest. He admitted that he had exchanged text messages with a number of students and that some female students had sent him revealing photographs.

         According to the interpreter's account of Taylor's statements, Taylor also stated that on specific instances he had accidentally touched particular girls. For example, according to the interpreter, Taylor admitted that he actually had touched Da. on the buttocks, but that he had done so by accident and had immediately apologized to her. In another instance, the interpreter reported that Taylor gave this response to questions about touching De.'s breast: " Right, I mean, maybe it was the brushing like everything else but it wasn't an intentional touch or anything. It was accidental. It wasn't, maybe it wasn't a complete hug." At trial and on appeal,

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Taylor has contested the accuracy of the interpreter's assertion that he admitted to specific incidents of inappropriate touching: he contends that he never admitted to having actually touched any of the young women's breasts or buttocks, but merely to have stated that if he had done so, it would have been an accident, for which he would have apologized.

          [226 Md.App. 326] At the detective's request, Taylor handwrote five short letters of apology addressed to Da., De., M., P., and S. Each letter expressed remorse and asked for forgiveness without describing any of Taylor's actual conduct. For instance, in his letter to Da., Taylor wrote: " I said really am sorry about you. I know that you dislike talk to me. I said so sorry about it situation. I wonder you can forgive me no matter what! . . . I want to say to you 'Sorry'!"

         When he finished writing, Taylor, through the interpreters, asked: " I wanted to know is the lawyer going to be coming to meet with me or can I ask for a lawyer now?" At that point, Detective Camp ended the questioning.

         C. Pre-Trial Proceedings

         On January 16, 2013, the State filed seven indictments against Taylor. Each indictment corresponded to one of seven complainants: Da., De., K., M., P., S., and T.[2] The State charged Taylor with one count of sexual abuse of a minor for each of the minors. See Md. Code (2001, 2012 Repl. Vol.), Criminal Law Art., § 3-602(b)(1) ( " A . . . person who has permanent or temporary care or custody or responsibility for the supervision of a minor may not cause sexual abuse to the minor" ); id. § 3-602(a)(4)(i) ( " 'Sexual abuse' means an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not" ). The State also charged Taylor with four counts of solicitation of child pornography. Id. § 11-207(a).

         When Taylor's defense counsel first entered his appearance, he filed a generic " Omnibus Pre-Trial Defense Motion" that included a comprehensive list of unspecific and unsupported requests for relief. The State arranged for the detectives and the two sign-language interpreters from the interrogation to testify at the motions hearing. After the hearing was postponed for cause, however, Taylor's attorney failed to appear [226 Md.App. 327] on the rescheduled hearing date. An attorney with no knowledge of the case appeared for the sole purpose of requesting a postponement. After the court declined to postpone the hearing, the attorney withdrew all of Taylor's pre-trial motions.

         The court then denied a written motion for another hearing on the issue of whether Taylor's statements to police should be suppressed. Taylor later filed a motion to sever, which the court also denied after a hearing.

         D. The State's Case Against Taylor

         A jury trial on all charges against Taylor commenced on October 28, 2013, and continued for nearly three weeks. Because the defendant and many of the witnesses are deaf, much of the testimony was communicated through court-appointed interpreters.[3]

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          The female students themselves were the primary witnesses against Taylor. Each of the seven students testified about specific instances of Taylor's inappropriate touching while they were under his supervision. According to many of the State's witnesses, Taylor used handshakes and hugs that are similar to other greetings commonly used at the Maryland School for the Deaf. While none of the witnesses disputed that touching plays an important role in communication among the deaf community, particularly for greetings or to get a person's attention,[4] the students claimed that Taylor performed the embraces in an unusual manner.

         The other main source of evidence against Taylor was the recording of Taylor's interrogation. The recording included video of the sign-language communications between Taylor and the interpreters, as well as audio of the statements by the [226 Md.App. 328] ASL interpreter, Mr. Smith, interpreting what Taylor had said in sign language. The State called Detective Camp to establish a foundation for admitting the recording with an accompanying transcript.

         Taylor objected to the admission of the interpreter's words through the detective's testimony. He requested that the State call the interpreter, Mr. Smith, to verify his interpretations of what Taylor had told him. His counsel argued that " based on the Confrontation Clause" Taylor had the right to " confront the person who is saying these things" on the recording and to cross-examine " Mr. Joe Smith, as an interpreter interpreting what [Taylor] is saying." After commenting briefly that an interpreter was " not an accuser," the court overruled the objection. The detective then testified about some of the things that Taylor " said" to her in the interrogation even though she heard his words only as reported or interpreted by Smith.

         Taylor renewed his objection immediately before the State attempted to play the recording for the jurors. At that point, defense counsel asked the court to direct one of the sworn court interpreters to give a live interpretation of Taylor's sign-language responses, rather than permit the jury to hear the account of an absent witness, Smith, about what Taylor had said. The defense also asked " to put on the record" that in United States v. Charles, 722 F.3d 1319 (11th Cir. 2013), the United States Court of Appeals held that a defendant has the right to cross-examine an interpreter who interpreted the defendant's statements in a police interrogation. The court overruled the renewed objection.

         The court then permitted the State to play the nearly five-hour recording. The State provided jurors with an audio transcript that Detective Camp had prepared. The first page noted that " throughout the interview, all statements attributed to both Clarence Taylor and [Certified Deaf Interpreter] Charm Smith are as interpreted through Joe Smith." The jurors received copies of the transcript with a cautionary [226 Md.App. 329] instruction that they should consider only the video and audio as evidence.[5]

         E. Taylor's Defense and the Conclusion of Trial

         Taylor took the stand as the only witness in his defense. He denied any inappropriate touching of students. He testified

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that he could accidentally have made contact with a student's breasts or buttocks, but that he would have apologized if he had done so.

         With respect to the statements attributed to him by the interpreter, Taylor repeatedly asserted that there were many " misinterpretations" and " miscommunications" between him and the interpreters. Taylor claimed that he had difficulty communicating with Smith at the beginning of the interview and that he had asked to have an attorney present during questioning. Taylor also claimed that he had never admitted during the interrogation to any specific instance of physical contact with a student.

         The following exchange occurred during the State's cross-examination of Taylor:

Q: [D]uring your interview with [Detective Camp], you stated several times that you did touch these girls but it was an accident. Correct?
A: Well, let me clarify that first. There's some misunderstandings in that video. What I said is that it could have happened and if it did, it would have been an accident. I said it could have happened.

         The prosecutor asked Taylor to explain specific portions from the transcript in which the interpreter said that Taylor had said that he had apologized to specific students after accidentally touching them. Taylor consistently responded that the interpreter had not correctly interpreted his sign-language [226 Md.App. 330] statements. He testified that he told the interpreters that, if he had touched anyone, it would have been an accident, and he would have apologized.

         In its closing argument, the State encouraged the jury to " [r]eally analyze th[e] interview." The prosecutor argued that the jury should conclude that Taylor voluntarily made all of the statements attributed to him by the interpreter." She further contended that Taylor's assertions that the interpreters made errors were not credible. Although the prosecutor encouraged the jury to disbelieve many portions of Taylor's responses from the interrogation, she pointed out that " finally towards the end of [the interview], he acknowledge[d] what he did," when the interpreter reported Taylor as admitting that he had touched the students, but claimed to have done so accidentally.

         During its closing argument, the defense asked the jurors to remember that they " never heard from the actual interpreter." The State objected, and the court sustained that objection. Defense counsel then commented that, in assessing the weight of the interpreted statements, the jury should consider that the interpreter had been paid by the police. The State then raised an " ongoing objection to any mention of the interpreters during that interview." The court sustained the objection once again, asserting that it was " not relevant" that the interpreter had been solicited by the police. The judge then instructed the jury that it could not consider " the last two comments [from defense counsel] concerning the interpreter."

         After several days of deliberation, the jury reached a verdict as to three of the seven charges. The jury found Taylor guilty of sexually abusing two victims: Da. and De. The jury acquitted Taylor of the sexual abuse charge related to K. The jurors were unable to reach a verdict on the remaining counts for sexual abuse of P., M., S., or T.

         The court denied Taylor's motion for new trial and sentenced him on January 31, 2013. The court imposed two consecutive sentences of 15 years of imprisonment, with all [226 Md.App. 331] but three-and-a-half years of each sentence suspended, for a total term of

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seven years of incarceration. Taylor took a timely appeal from those judgments.

         Questions Presented

         Taylor now presents the following questions to this Court:

1. Was [Taylor's] constitutional right to confrontation violated when he was not given the opportunity to cross[-]examine the interpreter used by the police during his interrogation?
2. Did the trial court err in denying [Taylor's] requests for postponement and to reschedule a hearing on his motion to suppress statements?
3. Did the trial court err in joining the seven charges against [Taylor] into one trial?
4. Did the trial court err in refusing to permit [Taylor] to cross-examine the victims' parents about their pursuit of a civil suit?
5. Did the trial court err in denying [Taylor's] requests to subpoena witnesses?

         Answering the first question, we conclude that the trial court committed reversible error when it admitted the interpreter's extrajudicial account of Taylor's statements after Taylor had asserted his rights under the Confrontation Clause. We shall address the remaining issues to the extent that they are likely to recur at Taylor's second trial.



         Taylor contends that the trial court erred when it admitted Smith's English-language interpretations of Taylor's sign-language statements. According to Taylor, the admission of the interpreted statements, under circumstances where he had no opportunity to cross-examine the interpreter during the State's case against him, violated his constitutional right to be confronted with the witnesses against him.

          [226 Md.App. 332] We review the ultimate question of whether the admission of evidence violated a defendant's constitutional rights without deference to the trial court's ruling. See Hailes v. State, 442 Md. 488, 506, 113 A.3d 608 (2015) (applying de novo standard of review to appeal based on Confrontation Clause).

         A. Constitutional Right of Confrontation in Criminal Proceedings

         The Sixth Amendment to the United States Constitution provides: " In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" In this context, confrontation means more than simply a face-to-face meeting between accusers and the accused. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The " main and essential purpose" of the Confrontation Clause is to ensure that the defendant has an opportunity for effective cross-examination of adverse witnesses, " which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." Id. at 315-16 (citations and quotation marks omitted). During an in-person cross-examination, " the accused has an opportunity, not only of testing the recollection and sifting the conscience of witnesses, but of compelling him to stand face to face with the jury in order that they may look at him, and judge his demeanor upon the stand and in the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

          Because the safeguard of cross-examination is essential to a fair trial, the right of confrontation is a fundamental

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right that applies during state as well as federal prosecutions. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

         In Maryland, the constitutional right of confrontation predates the federal Constitution. Article XIX of the Maryland Declaration of Rights of 1776 declared that " in all criminal prosecutions, every man hath a right . . . to be confronted [226 Md.App. 333] with the witnesses against him[] . . . [and] to examine the witnesses for and against him on oath[.]" Identical language is currently embodied in Article 21 of the Maryland Declaration of Rights. Maryland's confrontation right is interpreted to " generally provid[e] the same protection to defendants" as its federal counterpart. Derr v. State, 434 Md. 88, 103, 73 A.3d 254 & n.11 (2013) (citations omitted), cert. denied, 134 S.Ct. 2723, 189 L.Ed.2d 762 (2014); see Cooper v. State, 434 Md. 209, 232, 73 A.3d 1108 (2013).

          The dual confrontation clauses of the Bill of Rights and the Maryland Declaration of Rights focus upon a singular category of persons: the " witnesses against" a defendant. This group naturally includes the persons formally called by the State to testify against the defendant at trial. The text of these provisions, however, does not indicate the extent to which a prosecutor may introduce the out-of-court statements of persons who do not testify in the prosecution's case at trial.

         In the landmark case of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court redefined many of the core principles for evaluating whether a criminal defendant has the right to require the prosecution to produce the declarants of extrajudicial statements so that the defendant can confront and cross-examine them. Our analysis begins with Crawford, the opinion that essentially " 'rewrote confrontation clause analysis.'" State v. Norton, 443 Md. 517, 524 n.8, 117 A.3d 1055 (2015) (quoting 6A Lynn McLain, Maryland Evidence: State and Federal § 800:5 (3d ed. 2013)).

         The defendant in that case, Michael Crawford, stabbed a man. Crawford, 541 U.S. at 38. Crawford's wife, Sylvia, witnessed the stabbing. Id. At trial, Crawford's wife did not testify, " because of the state marital privilege, which generally bars a spouse from testifying without the other spouse's consent." Id. at 40. The trial court nevertheless allowed the State to introduce a recording of statements from a police interrogation, in which Sylvia Crawford arguably undermined her husband's claim of self-defense. Id. The Supreme Court ultimately determined that [226 Md.App. 334] the use of Ms. Crawford's statements at Crawford's trial, where Crawford had no opportunity to cross-examine her, violated his rights under the Confrontation Clause. Id. at 68-69.

         In an opinion by Justice Scalia, the Supreme Court looked to the historical background of the Confrontation Clause in an effort to understand its meaning. Id. at 43. According to the Court, the Confrontation Clause emerged out of the response to controversial criminal trial practices in England and in the American colonies that departed from " [t]he common-law tradition . . . of live testimony in court subject to adversarial testing[.]" Id. (citing 3 William Blackstone, Commentaries on the Laws of England 373-74 (1768)). During the sixteenth, seventeenth, and eighteenth centuries, criminal tribunals sometimes admitted transcripts from pretrial examinations, in which witnesses had been questioned in private by judicial officers. Crawford, 541 U.S. at 43-48. " Through a series of statutory and judicial reforms,

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English law developed a right of confrontation that limited these abuses." Id. at 44. Declarations of rights adopted by Maryland and other states, and eventually the federal Bill of Rights, guaranteed a confrontation right to secure this common-law safeguard. Id. at 48-49.

         From this history, the Court inferred that " the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id. at 50. The Court then construed the Clause's text in light of that historical purpose:

The text of the Confrontation Clause reflects this focus. It applies to " witnesses" against the accused -- in other words, those who " bear testimony." 2 N. Webster, An American Dictionary of the English Language (1828). " Testimony," in turn, is typically " [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who [226 Md.App. 335] makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law ...

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