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Alford v. State

Court of Special Appeals of Maryland

March 2, 2018

ARMANDE SHELTEN ALFORD
v.
STATE OF MARYLAND

         Circuit Court for Somerset County Case No. 19-K-15-010582

          Berger, Reed, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Eyler, James R., J.

          Appellant, Armande Shelten Alford, was charged in the Circuit Court for Somerset County with second-degree sexual offense, third-degree sexual offense, unnatural or perverted practice, sexual abuse of a minor, and second-degree assault. Appellant was charged with committing the offenses from June 1, 2010 to July 26, 2010. This is relevant because appellant turned eighteen in May 2010.

         Tried by a jury, appellant was convicted on all counts. Appellant was sentenced to concurrent sentences of fifteen years, with all but seven years suspended, for second-degree sex offense and sexual abuse of a minor, with the remaining convictions merged. Appellant was also ordered to serve three years' probation upon release and to register as a sex offender for life. Appellant timely appealed and presents the following questions for our review:

1. Did the trial court err in excluding the defense's expert sua sponte and without a Frye-Reed hearing?
2. In a case where the evidence regarding jurisdiction was closely contested, did the trial court err by failing to make a finding regarding jurisdiction?
3. In a case where the evidence regarding jurisdiction was closely contested, did the trial court err in refusing to include the alleged possible dates of the offense on the verdict sheet?

         For the following reasons, we shall reverse and remand for a new trial.

         BACKGROUND

         Ten-year-old D.H., the daughter of Shayla H. and Devon Alford, testified that she had been living with her grandmother, Michelle H., in Hampton, Virginia, since she was five or six years old.[1] There was evidence that D.H. lived with her paternal grandmother, Lacolia Alford, and her uncle, appellant, in Crisfield, Maryland, from June 1, 2010 to July 25, 2010.

         D.H. testified that one time, when she was four or five years old and living in Crisfield, after her paternal grandmother had gone to the store, appellant asked her to come upstairs to his room to watch a movie. After that movie ended, appellant "tapped on [her] shoulder and said don't tell anyone what you are about to do. And then he - well, he pulled out his private part and said to put it in [her] mouth." Although D.H. was scared, she did as appellant ordered, got on her knees, and put appellant's penis in her mouth. D.H. offered further details of this incident, including that appellant was lying on the bed, wearing an "orangy red shirt and some blue jeans, " his penis was brown, "straight up, " and "kind of tall and it had a round - kind of like a round triangle top."

         One of the issues in this case concerned the timing of this event. D.H., who was born in October 2005, believed the assault occurred when she was either four or five years old. She remembered that the sun was shining and flowers were outside the window. On cross-examination, when asked whether the incident occurred during a "visit" to her grandmother's, D.H. replied that it did not. She knew that her father, Devon, was not living in Crisfield at the time of the incident. Also on cross-examination, D.H. agreed that she spoke to an investigator in Maryland about this incident and agreed she told that person that it happened "just before" she moved in with her maternal grandmother in Virginia.

         Lacolia Alford, appellant's grandmother, testified that appellant lived with her in Crisfield, Maryland from June 1, 2010 to July 26, 2010. According to Lacolia Alford, appellant never watched D.H., and was never alone with her. She confirmed that Devon Alford, appellant's brother, and his daughter, D.H., were also living with her during this timeframe. After July 2010, D.H. moved to Virginia to reside permanently with her maternal grandmother, Michelle H.

         Michelle H. testified that D.H. lived with her in Virginia "off and on" after she was born, and lived with her permanently after she was five or six years old. Michelle H. explained that there had been different custody arrangements before that, and at various times, D.H. had stayed with her, her own mother, Shayla H., or her father, Devon Alford, when he lived with Lacolia Alford.

         Until the summer of 2015, D.H. spent part of the summers visiting with Lacolia Alford at her home in Crisfield. It was during that summer that D.H. told Michelle H. that she did not want to go to Crisfield, explaining what appellant had done to her. After Michelle H. spoke to D.H., Michelle H. called Lacolia Alford, D.H.'s other grandmother, and told her D.H. was upset and crying. Eventually, Michelle H. came to Crisfield and spoke to the police concerning D.H.'s allegations.

         Corporal Johnathon Pruitt, of the Maryland State Police, spoke with Lacolia Alford on July 31, 2015, concerning the allegations in this case. Corporal Pruitt then met with appellant. On August 3, 2015, appellant provided a statement to the officer after he was advised of and waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966).[2] In that statement, which was played for the jury, appellant agreed that, when he was 18 years old, during the summer of 2010, D.H. was living with him and his grandmother in Crisfield. At first, appellant denied that he had been alone with D.H., but then confirmed that there was one occasion where, after his grandmother left the house to go to the store, that D.H. went upstairs to watch cartoons.[3] Appellant maintained that he never "watched" D.H., and he denied that anything inappropriate had occurred. Appellant repeated, several times, that "[n]othing happened."

         However, towards the end of the interview, when Corporal Pruitt suggested that D.H. may have touched his penis, appellant stated, "[m]aybe she did touch me or something" and "[m]aybe she touched me and I pushed her away[.]" He admitted that on one occasion, D.H. "walked up to me, something like that, touched me or something, and I said, get away from me, or something like that."

         Corporal Pruitt further testified that he drafted the initial charging document, charging appellant with the underlying crimes from June 1, 2010 to July 26, 2010. He explained that the latter date was based on the award of custody of D.H. to Michelle H. on July 26, 2010. On cross-examination, Corporal Pruitt agreed that appellant's date of birth was May 16, 1992, and that he was 18 years old on May 16, 2010.

          After the State completed its case-in-chief, appellant called a number of witnesses to testify on his behalf. His brother, Devon Alford, D.H.'s father, confirmed that he paid child support for D.H. when she lived in Virginia with her mother and maternal grandmother. The payment of child support was suspended when D.H. lived with him in Crisfield, when he resided with his mother, Lacolia Alford. The court admitted child support documentation which showed that: (1) child support for D.H. was suspended on October 30, 2006, when D.H. lived with her father; (2) child support was reinstated on June 4, 2007, when custody was granted back to D.H.'s mother; and, (3) primary custody was granted to D.H.'s mother on July 26, 2010. However, Devon also testified that D.H. would visit his grandmother in Crisfield.[4] Appellant's sister, also named Lacolia, confirmed that D.H. would visit her grandmother in Crisfield during the summers. Devon agreed that he was not present during those visits.

         We shall include additional detail in the following discussion.

         DISCUSSION

         I.

         Appellant first contends that the court erred in excluding his expert, sua sponte, and without a Frye-Reed hearing.[5] The State primarily responds that the expert was properly excluded based on Maryland Rule 5-702. In reply, appellant contends that the Rule 5-702 argument was not made below and should not be considered.

         Near the end of the jury trial, the appellant called his last witness, Dr. Maggie Bruck. At that point, the trial court asked the parties to approach, and the following ensued:

THE COURT: What kind of witness is this?
[DEFENSE COUNSEL]: She's an expert. She's a psychologist. She has a Ph.D. She's an expert in memory essentially, childhood memories, how memories are formed, how they are retrieved.
THE COURT: How in the world - she's not a physician?
[DEFENSE COUNSEL]: No, she's a Ph.D. in Psychology.
THE COURT: Well, how in the world does she qualify to testify about that?
[DEFENSE COUNSEL]: About memory?
THE COURT: Any more than a lay person?
[DEFENSE COUNSEL]: Because there are a lot of things that are very different than what lay people think about memories that are in fact the case. They do the studies. They interview children. They have controlled groups. They do scientific research. And then she's written books. She's written articles. She's -
THE COURT: I'm sorry to interrupt. But does this even meet the threshold of a Frye-Reed test. It's never been submitted to a Frye-Reed test.
[DEFENSE COUNSEL]: No one asked to have it submitted to a Frye-Reed. And she's been qualified as an expert in the State of Maryland and also several other States and other countries in her field.
THE COURT: What's your position?
[PROSECUTOR]: Her resumé generally says that she's been qualified as an expert in three cases in the State of Maryland and other States. It doesn't specifically say what she's been qualified as an expert in. I'm not quite sure (inaudible) there is an issue with memory that's been generated insofar as [D.H.'s] recollection of the events.
THE COURT: I don't see how her testimony is going to be any more probative than that of a lay person with respect to memory. . . .

         The trial court then continued: "I don't think she's qualified and I don't think this would meet the Frye-Reed test . . ." The court then accepted a written proffer of Dr. Bruck's credentials and her proposed testimony, as follows:

Dr. Bruck has a Ph.D. in Experimental Psychology from McGill University. She is currently a Professor at Johns Hopkins University, Division of Child and Adolescent Psychiatry. She written/co-written [sic] 92 Peer Reviewed Articles in her field of study, she also cowrote 2 books, one of which involved a scientific analysis of children's testimony. Dr. Bruck contributed to 24 other books in her fields of ...

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