Circuit Court for Montgomery County Case No. 126978, Case No.
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
Carl Otto ("Petitioner") was charged in two
separate indictments with three counts of second-degree rape
of S.L., 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.  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. For reasons to be explained, we shall
affirm the judgment of the Court of Special Appeals.
AND PROCEDURAL BACKGROUND
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
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
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.
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.
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,
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. 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
[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
[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 - -
[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]: Stay close to her and the kids.
[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,
[PETITIONER]: Yeah, keep working on it
[MOTHER]: Yeah. And the [A] thing, issue has gotten so much
[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 - -
[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
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You have a call at no expense to you from - -
[PETITIONER]: Albert Otto
Automated Speaker: - - an inmate at Montgomery County
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Solutions. You may begin speaking now.
Unidentified Speaker: Hi,
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?
Unidentified Speaker: I didn't hear what you
[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,
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