Court for Somerset County Case No. 19-K-15-010582
Berger, Reed, Eyler, James R. (Senior Judge, Specially
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.
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
following reasons, we shall reverse and remand for a new
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
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.
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."
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.
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.
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.
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
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). 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. Appellant maintained that he never
"watched" D.H., and he denied that anything
inappropriate had occurred. Appellant repeated, several
times, that "[n]othing happened."
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."
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.
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. 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.
shall include additional detail in the following discussion.
first contends that the court erred in excluding his expert,
sua sponte, and without a Frye-Reed
hearing. 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.
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
[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. . . .
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
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