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Bey v. State

Court of Special Appeals of Maryland

June 29, 2016


          Graeff, Friedman, Harrell, Glenn T., Jr. (Retired, Specially Assigned), JJ.


          Harrell, J.

         Appellant, Douglas Ford Bey, II, stood before the Circuit Court for Frederick County accused of sexual abuse of a minor. He was convicted, after a jury trial, on seventeen various counts, resulting in a cumulative sentence of 390 years in prison. Bey argues in this appeal that he is entitled to a new trial because of procedural errors, including the implicit denial of an alleged request to discharge his counsel and the admission of certain demonstrative evidence and testimony regarding DNA, and, in any event, his sentence was improper in significant regard. We disagree with Bey on the first two contentions, but agree that his sentence was improper. Therefore, he shall not receive a new trial, but rather is entitled to a new sentencing proceeding.


         The female victim, a minor at the time of the sexual abuse and at trial, testified that the abuse, all of which occurred in the family home, began in 2010 and continued until about February 2014. She recalled that the first instance of abuse was in the summer of 2010 (when she was ten years old) when Bey, the victim's putative father, performed cunnilingus on her. After this initial incident, the sex acts[2] continued multiple times a week during the ensuing four year span.

         In 2013, the victim, believing she was pregnant, told some friends that she had been molested. Following revelation to Bey of her pregnancy concern, he took her to a doctor, who confirmed the pregnancy. Ultimately, she had the fetus aborted at the University of Maryland Medical Center. Donna Young, a nurse from the hospital, testified that the abortion was performed on 3 February 2014, when the victim was 14 years old.

         After this procedure, the victim saw a therapist on 12 February 2014, whom she told about the abuse. The therapist reported the abuse to appropriate governmental and law enforcement authorities. An investigation ensued by the Frederick County Department of Social Services and the Frederick County Sheriff's Office. Detective Ronald Dement, a member of the Sheriff's Office, and Shannon Pulsipher, an investigator for Social Services, were responsible principally for the investigation by their respective agencies.

         The victim was brought to the Sheriff's offices to make a statement regarding the abuse. After recording her statement, including a representation that Bey forced her to perform oral sex on him earlier that very day, Detective Dement obtained promptly a search warrant to conduct a forensic sexual assault exam on Bey. Oral and genital swabs were taken from both Bey and the victim. Julie Kempton, a forensic scientist, concluded from testing of the swabs that, to a reasonable degree of scientific certainty, the victim's DNA was present on Bey's penis, according to her testimony at trial.

         Also analyzed for DNA evidence was the eleven week old aborted fetus. The fetal tissue was obtained by Detective Dement from Melissa Sheriff, a pathologist assistant for the pathology lab at the University of Maryland Medical Center, and delivered subsequently by him to the Sheriff's Office's property department. Sarah Shields, a DNA analyst, testified that, after conducting genetic tests, she was able to conclude, to a reasonable degree of scientific certainty, that Bey was the biological father of the fetus.

         The State introduced also a recorded jail telephone call in which an inmate, referring to himself as "Speedy, "[3] admitted to having his daughter perform oral sex on him. During this same phone call, the inmate requested the other party to the call to cause his backpack to be brought to him. When the law enforcement authorities intercepted Bey's backpack, additional evidence was uncovered from a cell phone found within. Detective Gene Alston testified that the cell phone contained data showing Bey's web history, which included visits to "about 65 pornography web sites, more than a thousand times, " between May 2013 and March 2014. Finally, Detective Dement testified that Bey asked him to tell the victim that he "was sorry for everything that he had done."

         A jury convicted Bey of seventeen of eighteen charged counts: five counts of sexual abuse of a minor, ten counts of a continuing course of conduct against a child, and two counts of third degree sexual offense.[4] The court sentenced Bey cumulatively to 390 years in prison. Bey filed a self-represented Motion for a New Trial, received by the circuit court on 16 September 2014, asserting ineffective assistance of counsel. The Public Defender's office, which represented Bey at trial, appealed to this Court on 4 May 2015. Additional facts will be provided as necessary to our analysis of Bey's appellate questions.


         Appellant presents three questions for our consideration, which we rephrase here:

1. Did the circuit court err in not granting Bey's request, made during trial, to discharge his counsel?
2. Was a proper chain of custody established to allow the circuit court to admit properly the fetal tissue DNA evidence against Bey?
3. Was Bey sentenced properly on multiple counts of continuing course of conduct with a child?

         For the following reasons, we hold that the circuit court did not err with regard to the questions directed to the conduct of Bey's trial, but hold that its sentencing of Bey, as challenged in his third question, was in error. Thus, we affirm the judgments of conviction, but vacate the sentence and remand for a new sentencing proceeding.


         I. Request to Discharge Counsel

         a. Contentions

         Bey contends that the circuit court erred in not granting his implicit trial request to discharge counsel when he stated that he and his attorney had a fundamental disagreement about the scope of cross-examination of the victim and that Bey believed his attorney was "winging it" generally during the trial to that point. The State responds that "Bey did not make any statement from which the trial court reasonably could have concluded that he wanted to discharge his counsel." Moreover, because the alleged disagreement was over a matter of trial strategy, there was insufficient meritorious basis given by Bey for his complaint to be worthy of relief. Additionally, the State maintains that, due to the timing of any perceived discharge request, it was within the circuit court's soundly exercised discretion to deny such during trial.

         b. Analysis

         How trial judges are obliged to address a defendant's request to discharge counsel made before trial commences is regulated by Maryland Rule 4-215(e). The Rule explains what mandatory action is to be taken by the circuit court when such a request is made and how appellate review is to be conducted. State v. Hardy, 415 Md. 612, 621, 4 A.3d 908, 913 (2010) (citing Williams v. State, 321 Md. 266, 272, 582 A.2d 803, 806 (1990)). When the request for discharge is made after voir dire and during the trial, however, this rule does not apply and we are asked instead to "evaluate the trial court's ruling on a motion to discharge counsel under the far more lenient abuse of discretion standard." Hardy, 415 Md. at 621, 4 A.3d at 913 (citing State v. Brown, 342 Md. 404, 429, 676 A.2d 513, 525 (1996)). Thus, we afford deference to the circuit court's judgment and will "find an abuse of discretion only when the court's act is so untenable as to place it beyond the fringe of what the [appellate] court deems minimally acceptable." Hardy, 415 Md. at 621-22, 4 A.3d at 913 (citation and internal quotation marks omitted).

         To constitute a request to discharge counsel, "'any statement by the defendant from which the court could reasonably conclude that the defendant desire[s to discharge his counsel is] sufficient' for the court to consider that statement as a request to discharge counsel." Hardy, 415 Md. at 622, 4 A.3d at 914 (quoting Snead v. State, 286 Md. 122, 127, 406 A.2d 98, 101 (1979)). Such a request will be sufficient "even when [the defendant's] statement constitutes more a declaration of dissatisfaction with counsel than an explicit request to discharge." Hardy, 415 Md. at 623, 4 A.3d at 914.

         In Hardy, the Court of Appeals concluded that a defendant's "declaration that he was 'thinking about changing the attorney or something' reasonably should have led a trial judge to conclude that Hardy wanted, or at the very least was inclined, to discharge his counsel." Hardy, 415 Md. at 623, 4 A.3d at 914. Even though Hardy's statement was conclusory, Maryland law required the "court to consider his statement a request to discharge counsel and address the matter accordingly." Hardy, 415 Md. at 623, 4 A.3d at 914. Thus, the statement made by a defendant does not need to be an "explicit request to discharge" in order to be understood as a request to do so.

         The timing of a request, however, is rather important in the appellate analysis of the circuit court's eventual decision as to whether the request should be granted. In Hardy, it was made clear that the timing of the request determined whether "the trial judge's consideration of that request is governed purely by its discretion, or whether it should be circumscribed by the procedural demands of Rule 4-215(e)." Hardy, 415 Md. at 624, 4 A.3d at 915. The Court of Appeals concluded in Hardy that Rule 4-215(e) "does not apply literally once voir dire begins, and, therefore, the trial judge was not obliged necessarily to adhere to the Rule's strict procedural requirements in considering [the defendant's] request." Hardy, 415 Md. at 624, 4 A.3d at 915. To prevent confusion on the part of a jury as to why a defense lawyer was first "in" the case and then "out, " and to reduce the potential for a mistrial, "the right to substitute counsel and the right to self-representation are, of necessity, curtailed once trial begins." Brown, 342 Md. at 426, 676 A.2d at 524.

         Assuming for the sake of argument Bey's comments could be understood as a request to discharge counsel, they occurred well into the trial proceedings. His comments about disagreeing with his attorney as to questions to put to the victim during cross-examination came between conclusion of the direct examination and before potential cross-examination of her. At this point, disposition of any request to discharge counsel would be within the circuit court's sound exercise of its discretion. The established rule in Maryland is "[g]enerally, the longer the defendant waits to request discharge of counsel, the stronger the rationale must be to warrant counsel's dismissal." Brown, 342 Md. at 429, 676 A.2d at 525. The Court of Appeals in Brown provided a non-exhaustive list of factors to be used by a circuit court judge in determining whether discharge is warranted in the course of a trial:

Therefore, in future proceedings, we suggest that the trial judge consider the following factors in deciding whether to permit discharge of counsel during trial: (1) the merit of the reason for discharge; (2) the quality of counsel's representation prior to the request; (3) the disruptive effect, if any, that discharge would have on the proceedings; (4) the timing of the request; (5) the complexity and stage of the proceedings; and (6) any prior requests by the defendant to discharge counsel.

Brown, 342 Md. at 428, 676 A.2d at 525.

         In reviewing the circuit court's handling of the assumed implied request by Bey, we shall not hold that the circuit court abused its discretion. Bey's counsel brought his client's concern to the attention of the circuit court and explained why he was choosing not to cross-examine the victim. He believed principally that to do as his client wished might destroy any possible sympathy for Bey (by risking being perceived as "attacking" anew the young victim) and that it was his strategy to focus on challenges to the DNA evidence linking Bey to the asserted sexual misconduct:

COUNSEL: Your Honor, pursuant to our discussion Mr. Bey and I are having a fundamental disagreement on how the strategy of the case should proceed, particularly at this point of the, ah, trial about the cross examination of the witness that is still on the stand. . . Practically speaking, um . . . it is my opinion that cross examining [the victim] could have a detrimental effect.

Bey's trial counsel explained that he had two main reasons for electing not to cross-examine the young victim:

[T]wo main reasons, one would be that it would give the State quite frankly an opportunity to perhaps clean up some of the testimony that [ ] I believe as we sit here was not fully elicited for some of the charges. Furthermore, there is going to be a recording of Mr. Bey from one of the jailhouse calls where he [ ] stated that he is going to break the witness down, meaning [the victim]. To the extent that there is a strain of sympathy or hope as we can relate our defense to the jury in this case, um [. . .] doing exactly what Mr. Bey had alluded to or said in the tape I think would do more harm than good in cross-examining [the victim].

         On the record, the circuit court listened to Bey's explanation for his objection to the decision made by his attorney not to cross-examine the victim:

THE DEFENDANT: He said character or, or reputation and that's what he said and that's not what my intention was. It was specifically regarding the, um, Ju-June 2010 incident as well as the, ah, area space that was in the upstairs floor where she said this incident happened at[sic], far as the space-wise. It was also, um, far as who was in the household, far as if [the victim] needed assistance or anything of that nature, um, did I prevent [the victim] by any way from, ah, making commotion, kicking, screaming, yelling or saying she needed assistance or did I refuse in any way by stopping her.
[A]ll my questions is solely regarding the evidence that they had gaven (sic) me. Nothing out of the way and I actually would like you to even take a look at the questions to find out if they are disrespectful, inappropriate, or by any nature like, um, you know, would not, would, would, would be irrelevant. That, that I would, I would actually ask you to look over that because I feel as though just because [the victim] did not state a specific date that still does not, ah, ah, ah, um without a reasonable doubt or say that the ah, what the State is trying to prove course of conduct and the time period that she's trying to say that all this has happened. So due to the fact that, you know, the, the, the, the State got to prove their case and I feel as though the questions that regarding strictly to what they gave me is irr – is irrelevant. But [the victim], I understand he, he, ah, the testimony that the State gave regarding [the victim]. So I would like you to look it over to see if they are disrespectful, trying to, ah, um, a, a dis, destroy her any way.

         The court heard further from Bey:

THE COURT: All right. Have you reviewed those questions with [your counsel]?
THE DEFENDANT: Actually yes I did and none of those ...

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