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Devincentz v. State

Court of Appeals of Maryland

August 13, 2018


          Argued: April 9, 2018

          Circuit Court for Cecil County Case No.: 07-K-15-001678

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


          ADKINS, J.

          "[T]he trial of any case is a search for truth. The strength of each side of an issue rests upon the believability of the evidence offered as proof." State v. Cox, 298 Md. 173, 178 (1983). It is a fundamental principle of Maryland law that, in a criminal case tried before a jury, assessing a witness's credibility is a matter solely for the jury. Bohnert v. State, 312 Md. 266, 277 (1988). One method of attacking a witness's credibility is impeachment. In this opinion, we address two questions of Maryland evidentiary law pertaining to impeaching witness credibility. First, we consider whether a witness's statement that another witness "would not tell the truth about certain things[, ]" was admissible as a personal opinion about that witness's character for untruthfulness. Second, we explore the admissibility of out-of-court threats as nonhearsay evidence of bias.


         In 2008, Julius Devincentz, Jr. and Y.D. began a romantic relationship. Y.D., her daughter K.C., and her son S., moved into Devincentz's home in Elkton, Maryland from Pennsylvania. Devincentz's children, Brianna, Joshua, and Kenny also lived at the house. Devincentz and Y.D. lived together with their children as a blended family until the couple separated in November 2015.

         In April 2015, K.C. left the Devincentz home and went to the Maryland Salem Children's Trust, a residential facility for juveniles. Some months into her stay, in September 2015, K.C. told her therapist that Devincentz had sexually abused her when she was six or seven years old. The therapist reported K.C.'s allegations.

         The State charged Devincentz with one count of continuing course of conduct against a child, two counts of sexual abuse of a minor, one count of second-degree sexual offense, one count of third-degree sexual offense, one count of fourth-degree sexual offense, and one count of second-degree assault. In 2016, Devincentz was tried in the Circuit Court for Cecil County.

         K.C. was the State's primary witness. She testified that, on multiple occasions, when she was about seven years old, and nobody else was home, Devincentz

would watch porn on our desktop computer in the living room, and he would ask me to come over and sit on his lap, and I would be scared and sometimes I would say no, and he would force me to sit on his lap, and he would touch me in my private area.

         K.C. testified that Devincentz placed his hand underneath her clothes and underwear and touched the inside of her vagina for approximately 10 or 15 minutes. Afterward, Devincentz told her not to tell anyone. She also testified that Devincentz watched pornography on the computer while other members of the household were present. Two or three weeks after the first incident, Devincentz again digitally penetrated K.C. while she was in bed. K.C. told Devincentz that she did not like it, asked him to get away from her, and threatened to tell her mother. Devincentz gave K.C. a five-dollar bill and told her not to say anything.

         K.C. also alleged that when she was around 10 or 12 years old, on several occasions, Devincentz offered her money to lift up her shirt. She always refused to do so. She testified that on one occasion he slapped and grabbed her bottom. K.C. explained that she did not report Devincentz's actions out of fear that she "was going to get physically hurt" and because she did not want to ruin her mother's relationship with Devincentz.

          K.C. testified that she and Devincentz argued about her attitude, disputes with others in the household, her noncompliance with his requests to do chores, and her failure to do things the way he wanted. On cross-examination, K.C. acknowledged that she "was a very angry person," and that she "would butt heads a lot." K.C. explained that she clashed with Devincentz because "he was very demanding," she "didn't like the tone of voice he would use[, ]" and "because he hurt" her. She attributed her difficulties with others in the house to the strain of keeping the abuse secret. K.C. stated that she did not get along with Joshua because he was "hardheaded," and he did not like her family. K.C. wanted to move back to Pennsylvania and live with her father. K.C. explained that she did not disclose the abuse earlier because she was afraid of Devincentz and Joshua. She stated that Joshua "posed a threat" to her, but that "nobody threatened [her]." Joshua would "scream at her and [get] in [her] face."[1]

         After the State rested, defense counsel called Joshua. The State objected because defense counsel had not provided prior notice of the witnesses he planned to call and refused to proffer the subject matter of their testimony. Defense counsel contended that the State received notice because both witnesses were issued subpoenas. The State explained that it sought a proffer "because if these witnesses are character witnesses, this may open the door for impeachment purposes." The trial judge overruled the State's objection and permitted the defense to call its witnesses.

         Joshua testified consistently with K.C. about the composition of the Devincentz household. He explained that K.C. "never really liked [Devincentz]," she "didn't like [Devincentz's] rules . . . [and s]he wanted to be able to do whatever she wanted . . . ." Joshua witnessed arguments between Devincentz and K.C. Defense counsel attempted to elicit testimony about an argument that occurred after K.C. stole a cell phone. The State objected on the grounds of relevance. Defense counsel proffered that Joshua witnessed the argument and that "[i]t goes to motive." The trial judge ruled that Joshua could testify about the argument, but not about K.C.'s alleged theft because he lacked first-hand knowledge. The following exchange occurred:

[Defense Counsel]: I asked you a question about the cell phone situation. Without characterizing how that came up, as a result of that argument, what occurred?
[Joshua]: [K.C.] was unhappy with [Devincentz]'s decision on the argument. And once it was resolved by a third party[, K.C.] was yelling and screaming and saying things that she could do that would get him in trouble.
[Prosecutor 1]: Objection.
[Prosecutor 2]: Objection.
The Court: Sustained.
[Defense Counsel]: Now, were those things that you heard?
[Joshua]: Yes.

(Emphasis added). Defense counsel did not make a proffer after the trial judge sustained the objection.

         Joshua testified that he never saw anyone using the family computer to look at pornographic material and never saw such material stored on the computer. Defense counsel then asked about K.C.'s relationships with other family members.

[Defense Counsel]: Now, would it be fair to say that [K.C.] had problems not only with [Devincentz, ] but with other people in the family?
[Joshua]: Yes.
[Defense Counsel]: Would you describe what you mean by that?
[Joshua]: [K.C.] had a problem with her mouth. [K.C.] would say things to people, about people, and then she would like to argue with you. And she would not tell the truth about certain things.
[The State]: Objection.
The Court: I'll sustain that. But [K.C.] would argue with people, right?
[Joshua]: Yes.
The Court: Okay.
[Joshua]: And [K.C.] would give her side[, ] and then there would be the other person's side.
[Defense Counsel]: I have nothing further, Your Honor.

(Emphasis added).[2]

         The jury found Devincentz guilty of sexual abuse of a minor and second-degree assault, but acquitted him of the charge of a continuing course of conduct against a child. The trial court sentenced him to 25 years in prison for the sexual abuse of a minor, and a consecutive 10 years for second-degree assault.[3] Devincentz appealed. In an unreported decision, the Court of Special Appeals affirmed his conviction. See Devincentz v. State, No. 1297, Sept. Term 2016, 2017 WL 4231583 (Md. Ct. Spec. App. Sept. 25, 2017).

         We granted certiorari to resolve the following questions[4]:

1. Whether Devincentz preserved the issues for review.
2. Whether the trial court erred by prohibiting a witness's testimony regarding the complainant's truthfulness.
3. Whether the trial court erred by prohibiting a witness's testimony about threats the complainant made during an argument with Devincentz.

         We shall answer yes to all three questions.



         The State raises a recurrent appellate theme-preservation of issues. An appellate court will not "decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court . . . ." Md. Rule 8-131(a). The Court of Special Appeals concluded that Devincentz had not preserved either issue relating to Joshua's testimony for review because defense counsel did not make a proffer regarding the relevance or substance of the excluded testimony. Devincentz, 2017 WL 4231583, at *3. Devincentz and the State agree that the absence of a proffer does not bar appellate review when the substance and relevance of the excluded evidence is apparent from the context. Devincentz avers that Joshua's testimony and the circumstances of the trial satisfied these criteria, and the State disagrees. Maryland Rule 5-103(a)(2) requires that, to preserve a claim that a trial court erroneously excluded evidence, the party must be prejudiced by the ruling and "the substance of the evidence was made known to the court by offer on the record or was apparent from the context within which the evidence was offered." (Emphasis added).

         The most common method of preserving a claim that the trial court erred is to proffer the substance and relevance of the excluded evidence. Merzbacher v. State, 346 Md. 391, 416 (1997); see also Mack v. State, 300 Md. 583, 603 (1984), abrogated on other grounds by Price v. State, 405 Md. 10 (2008). A proffer makes "the grounds for a different ruling manifest to the trial court at a time when the court can consider those grounds and decide whether to make a different ruling." Peterson v. State, 444 Md. 105, 124-25 (2015).

         But a proffer is not an absolute requirement for preservation. Before the Maryland Rules of Evidence were adopted, in Peregoy v. Western Md. Ry. Co., 202 Md. 203, 209 (1953), we explained that although

ordinarily a proffer is desirable and sometimes indispensable to indicate the significance of the question and of the court's action in sustaining the objection, nevertheless, where the tenor of the questions and the replies they were designed to elicit is clear, a proffer in the record is not a necessary prerequisite for a review of the ruling.

(Emphasis added). Maryland Rule 5-103(a)(2) retains this exception by permitting review if "the substance of the evidence . . . was apparent from the context within which the evidence was offered."

         We have examined the application of the preservation rule in Maryland. In Merzbacher, 346 Md. at 416, defense counsel attempted to elicit testimony from an Archdiocese official regarding whether any complaints had been filed against the defendant. Before the official could answer the question, the State objected, and the trial court sustained the objection. Merzbacher conceded the lack of proffer on appeal but insisted that the question elicited an obvious answer. We were unconvinced because the witness "could have answered the question in any number of ways," and it was not evident that the witness's answer would have been relevant. Id.

         Similarly, in Conyers v. State, 354 Md. 132, 163-64 (1999), Conyers contended that two of his witnesses should have been allowed to testify about a State witness's purported motive for testifying against Conyers, and that they warned Conyers about the witness's motives. We pointed out that the trial court sustained the State's objections before the witnesses could answer and Conyers never established the substance or the importance of the excluded evidence. Id. at 164. Despite Conyers's contentions, the likely answers were not at all "obvious." Id. His evidentiary presentation was riddled with defects that rendered the excluded testimony likely inadmissible, and ultimately, under the circumstances, even if the exclusion was in error, it was harmless. Id. at 165-66.

         In Peterson, 444 Md. at 162, we held that defense counsel did not preserve the issue of whether the state could question a witness about his expected benefit from his testimony, when the witness had pending charges in Maryland and Virginia and had agreed to work as a police informant in Virginia. The trial court sustained the State's objections before the witness could answer the questions. Id. at 131-32. Defense counsel proffered the pending Virginia charges but nothing else. Id. at 131. We explained that "the proffer that made defense counsel's intention clear emerged in pieces and spurts," and in legal arguments before any witness had testified and after the witness had concluded his testimony. Id. at 141. Nor was it apparent that defense counsel had an adequate foundation to question the witness about an expected benefit. Id. at 141-42.

         But Peterson, Conyers, and Merzbacher do not stand for the proposition that a proffer is mandatory. Rather, they illustrate when the contents and relevance of excluded evidence are insufficiently clear to preserve an issue for appellate review. In Conyers and Merzbacher, we declined to speculate about the contents of the excluded testimony. Conyers, 354 Md. at 164; Merzbacher, 346 Md. at 416. In Peterson, we observed that defense counsel's incomplete and drawn out proffer did not make it clear to the trial court what defense ...

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