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Otto v. State

Court of Appeals of Maryland

June 21, 2018

ALBERT OTTO
v.
STATE OF MARYLAND

          Circuit Court for Montgomery County Case No. 126978, Case No. 126792

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          Hotten, J.

          Albert Carl Otto ("Petitioner") was charged in two separate indictments with three counts of second-degree rape of S.L.[1], the mother of his three children. S.L. accused Petitioner of raping her on January 1, 2015, January 8, 2015, and February 2, 2015. In November 2015, Petitioner was tried in a consolidated jury trial in the Circuit Court for Montgomery County. The jury found Petitioner not guilty of the January 1, 2015 charge, guilty of the January 8, 2015 charge, and a mistrial was declared regarding the February 2, 2015 charge. Petitioner was sentenced to a term of seven years incarceration and five years of supervised probation. The court suspended all but the 280 days time served. Petitioner also must register as a Tier II sex offender. [2] See Md. Code (2008 Repl. Vol., 2017 Suppl.), § 11-704 of the Criminal Procedure Article, ("Crim. Proc."). Thereafter, Petitioner noted a timely appeal to the Court of Special Appeals, which affirmed the trial court in an unreported decision. Otto v. State, No. 2758, SEPT.TERM, 2015, 2017 WL 2839150, at *9 (Md. Ct. Spec. App. July 3, 2017), cert. granted, 456 Md. 253, 173 A.3d 154 (2017). Petitioner now asks this Court to consider whether the trial court erred in allowing the State to admit redacted portions of telephone calls Petitioner made to his mother while in pre-trial detention, but denying Petitioner's request to admit the remaining telephone transcripts pursuant to the common law doctrine of verbal completeness.[3] For reasons to be explained, we shall affirm the judgment of the Court of Special Appeals.

         FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner and S.L. dated for several years and produced three children from the relationship. Petitioner and S.L. did not live together and were not married at the time of any of the alleged rapes. S.L. lived with the three children in a two-bedroom apartment in Montgomery County. S.L. did not speak English, and was not a United States citizen. Petitioner and S.L. discussed living together at Petitioner's home in Frederick County, Maryland; however, those plans were abandoned when S.L. learned that Petitioner was residing with another woman for the duration of S.L. and Petitioner's relationship.

         Between January 8, 2015 and February 2, 2015, Montgomery County police officers responded to S.L.'s apartment multiple times, where S.L. reported forcible sexual intercourse between her and Petitioner. On February 2, 2015, D.L., the seven-year old daughter of Petitioner and S.L., placed a 911 call stating that "my dad is hurting my mom." Thereafter, police arrested Petitioner on February 3, 2015, and later charged him with three counts of second-degree rape.

         On the first day of trial, the State called D.L. to the stand, anticipating that she would testify that she witnessed Petitioner hurt S.L. Prior to trial, D.L. was interviewed by Maggie Newton, a forensic interviewer employed by Montgomery County Child Welfare Services. During the videotaped interview, D.L. described how she watched through a crack in the door as Petitioner hurt S.L. D.L. told Newton that her father hurt her mother on more than one occasion. Notwithstanding the recorded interview, D.L. testified that she could not remember telling Newton that Petitioner hurt S.L. To refresh her recollection, the State played recorded portions of D.L.'s 911 call, but D.L. indicated that she still did not remember speaking to Newton.

         The State showed D.L. a still image from the videotape of D.L.'s interview with Newton, which depicted D.L. sitting in an interview room with Newton. After seeing the videotape image, D.L. testified that she recalled sitting with a woman, but did not remember the conversation. Outside of the presence of the jury, the State played an hour of the videotape to refresh D.L.'s recollection. The jury re-entered the courtroom and the State asked D.L. if she now remembered telling someone that Petitioner hurt S.L., to which D.L. replied, "[n]o. My dad did not hurt my mommy." Thereafter, the State moved to have the entire video admitted into evidence as a prior inconsistent statement pursuant to Maryland Rule 5-802.1(a). Petitioner initially objected to the videotape's admission in its entirety. However, after hearing the testimony he withdrew his objection to the videotape's admissibility, maintaining objection to certain portions of the video recording being redacted as improper evidence of other crimes, wrongs, or acts. See Md. Rule 404(b). Ultimately, the videotape was admitted into evidence and played for the jury.

         On the second day of trial, Petitioner requested that S.L. assert her spousal privilege in front of the jury. Petitioner was released pre-trial with the condition that he have no contact with S.L. Petitioner, however, violated the no contact order and married S.L. prior to trial. At trial, S.L. took the stand and proclaimed, "because of the fact that I am married to my husband, I can use that [marital] privilege and not to testify." Without S.L., the State offered various police officers as witnesses, who testified regarding the statements made by S.L. as a complaining witness, including S.L.'s original 911 call reporting a rape on January 8, 2015.

         On the fourth day of trial, the State sought to admit excerpted portions of telephone calls that Petitioner made to his mother while he was in pre-trial detention. Consistent with common practice, these calls were recorded.[4] Prior to trial, the State compiled a series of audio excerpts from the recorded calls and prepared a redacted paper transcript. Over Petitioner's objection, the trial court admitted the redacted paper transcript of the calls ("the redacted call transcript") into evidence as State's Exhibit 96 and the excerpted audio recording of the calls was played for the jury. During Petitioner's case-in-chief, he sought to admit the non-redacted paper transcript of State's Exhibit 6 ("the non-redacted call transcript") pursuant to the doctrine of verbal completeness. For analytical purposes, the non-redacted call transcript is included below in italic and the redacted call transcript was admitted as follows:

[PETITIONER]: All right. Well, today is Sunday. You have time for that. They won't do anything today. Definitely, look, you need to get in touch with [D.L.] and [S.L.] and take them out grocery shopping. Take some money over. You need to get an idea of where her head is at and if she intends to try to help with all of this, okay?
[MOTHER]: How is she going to tell me that? If I try to do that - -
[PETITIONER]: Mom, you'll get an idea. Just spend the time with her, okay, and get them out grocery shopping, take some money over.
[PETITIONER]: Mom, I am worried, I am worried about myself and my best chance is for her help out.
[MOTHER]: I know that, honey. I know that…. Are you still there?
[PETITIONER]: Yeah.
[MOTHER]: Okay. Well, talk while you can.
[PETITIONER]: All right. Let me just - - please do that…. I'm worried about the kids having food and I'm worried about where her state-of-mind is…and where it's going to stay.
[MOTHER]: Oh, I don't think, I didn't get a chance to ask. I was (unintelligible). I think they're going to keep Harry.
[PETITIONER]: They are. I, I talked to them. But please do that, take some money out of my wallet and, you know, three or [four hundred, ] take them grocery shopping, give her the rest of the money, okay, and, and try to spend some time with them and get some idea where her head is at and what she intends to do to help me with this.
****
[PETITIONER]: No, I have not been able to - -
[MOTHER]: Huh?
[PETITIONER]: - - get hold of my attorney. Tom won't answer the phone. I talked to Maria. Again, mom, if it works out, see how often the kids come there to the house and, you know, so be it. I need to keep an eye on them.
[PETITIONER]: I'm trying to find out through Maria and Harry, her attorney, if she's going to be willing to marry me still and - -
[MOTHER]: Well, we'll you haven't talked to Lauren or your dad, right?
[PETITIONER]: I just talked to [L]. My dad is busy on a conference call, supposedly. So - -
[MOTHER]: So did she, did you tell her I said that they were going to discuss with Harry today about you marrying her?
[PETITIONER]: I didn't, we didn't get into that. I just told her how important it is to me that my family open up and accept them right now. They're my kids and, and to do what we can for them - and I want them - -
[MOTHER]: Did you tell [L] you loved her?
[PETITIONER]: No, it's just - -
[MOTHER]: You need, you need to.
[PETITIONER]: If you can talk to Maria today and find out if this is going to happen or not, okay?
[MOTHER]: Maria and Harry? If she's willing to marry you? [PETITIONER]: Yeah.
****
[PETITIONER]: Stay close to her and the kids.
[MOTHER]: Huh?
[PETITIONER]: Stay close with her and the kids.
[MOTHER]: I know that. Why do you think I was trying to get her up to Frederick?
[PETITIONER]: I know.
[MOTHER]: You know, I'd like to see my grandchildren, too.
[PETITIONER]: Yeah, keep working on it
[MOTHER]: Yeah. And the [A] thing, issue has gotten so much better.
[PETITIONER]: Yes, she has.
[MOTHER]: Much, much better. I was surprised when I called yesterday. She was in the parking lot and said I'm here. Shall I come in and [go potty]? I said she's so - -
[PETITIONER]: You can, you can - -
[MOTHER]: (Unintelligible.)
[PETITIONER]: - - probe, probe, probe [D.L.] for information when you're with them too - and - -
[MOTHER]: Do what?
[PETITIONER]: I said probe [D.L.] for information when you're with them too.
****
Automated Speaker: Call number 59969874, inmate ID 1502305, date 2015, 3/7. Time 083006. Dialed number [redacted] from station 8113. The time is 8:30 a.m. No three-way calls are allowed. Any attempts to affect these types of calls may result in disciplinary action. Press 1 to place a - - please enter your PIN number, followed - - after the tone please say your first and last name.
[PETITIONER]: Albert Otto.
Automated Speaker: Please listen carefully as our menu options have changed. For calls within the United States - - your account balance is $41.50. The cost of this call will be an operator service charge of 85 cents, excluding taxes and other applicable fees. The time limit is 15 minutes. Hello. You have a call at no expense to you from - -
[PETITIONER]: Albert Otto
Automated Speaker: - - an inmate at Montgomery County Detention Center. To accept this call, press or say 5. To refuse this call, hang up now. This call will be recorded and subject to monitoring at any time. Thank you for using IC Solutions. You may begin speaking now.
[PETITIONER]: Hello?
Unidentified Speaker: Hi, A1.[5]
[PETITIONER]: Hey.
Unidentified Speaker: How are you holding up?
[PETITIONER]: Not good.
Unidentified Speaker: I have been running over all these scenarios in my head of what I should have done yesterday, but I'm so sorry. We heard this was the worst judge possible and I guess it played out to be true.
[PETITIONER]: Yeah, he was pretty nasty.
Unidentified Speaker: I, I'm sorry I didn't get your call last night either. Are you there?
[PETITIONER]: Yeah. Yeah. Sorry. Yes, I am. Anyway, I'm very sorry you guys have put out so much and they stuck me right back in here.
Unidentified Speaker: You know, I don't think, I don't think the judge really heard that it was sort of a double jeopardy, that there was an error. I don't, I think it all got confused.
[PETITIONER]: Yeah, my attorney did a terrible job.
Unidentified Speaker: Yeah, I wanted to say that too, but I mean it could still turn around on the 20th because what that was about was the CVS incident. So it, it doesn't seem fair to punish you twice for the same incident, the same, you know - -
[PETITIONER]: No, because that was already litigated at the bond hearing the other day and my attorney didn't even point that out, you know?
Unidentified Speaker: He mentioned it once because he did mention the high bail set because of it, but then the conversation just went in all these other directions and that didn't remain the focus.
[PETITIONER]: No, no, he really lost it and I don't, I don't know what to do. And, you know, I'm sorry I'm - -
Unidentified Speaker: What? You did what?
[PETITIONER]: Huh?
Unidentified Speaker: I didn't hear what you said.
[PETITIONER]: I said he really, you know, lost it. He let the whole thing lose direction and he didn't, didn't keep it on focus and - -
Unidentified Speaker: He didn't.
[PETITIONER]: - - you know, instead of pointing out, you know, again and again how she wasn't supposed to be the one there, I didn't violate this intentionally, it was supposed to be her sister, you know, and, and the State's Attorney said that the detective said that they caught us together inside the CVS. That's not even true. As soon as they showed up, I was arrested right at my car and, by one of the detectives. By the time that female detective showed up, I was already in handcuffs by those other detectives. And, and --
Unidentified Speaker: Yeah. Yeah.
[PETITIONER]: - - that one was gone.
Unidentified Speaker: Well, you see that - -
[PETITIONER]: That woman never even saw us together. So that's, you know, and the CVS security footage would show we were never in that store together and that's perjury on the State's part.
Unidentified Speaker: It sure seems like false, false statements in court. It's, it's unbelievable how bad the, your luck is on this. I just can't believe it.
[PETITIONER]: I know. I was talking to my attorney about me getting the CVS security footage or something because I mean that would prove the State lied on that and we ...

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