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Walter v. State

Court of Special Appeals of Maryland

November 2, 2018


          Circuit Court for Anne Arundel County Case No. C-02-CR-16-001246

          Arthur, Leahy, Beachley, JJ.


          Arthur, J.

         Following a three-day jury trial in the Circuit Court for Anne Arundel County, appellant Joseph Walter was convicted of sexual abuse of a minor, but acquitted of second-degree rape and of committing a third-degree sexual offense. The court sentenced Walter to 20 years' imprisonment and required him to register as a sex offender. He noted this timely appeal.

         Because we conclude that the court erred in allowing the jury to view the portions of a recorded interview in which a police detective repeatedly expressed her disbelief of Walter's claims of innocence and her opinions concerning his guilt, we reverse the conviction and remand for a new trial. We address several other matters to provide guidance on remand.

         Factual and Procedural History

         M.'s Testimony

         In the summer of 2012, M., then 12 years old, [1] lived with her two half-brothers, her mother ("Mother"), and her stepfather ("Stepfather"). While M., her younger brothers, and Mother visited family members for a month, Walter, who is Stepfather's brother, began living in M.'s family home.

         M. and the other family members returned to Maryland shortly before school started. M. testified that she was "very close" to Walter at that time and that she would spend time together with him and his son.

         According to M., one night while Walter was staying at the house, she had a nightmare. She asked Walter to come into her room. They lay down in her bed. He was "probably" wearing boxers; she was wearing sweat pants. She told him that she was going to bed, and he left. He did not touch her inappropriately.

         At some point thereafter, M. testified, Walter came into her room again, at night, without an invitation, when the door was closed. He lay down behind her and touched her breast with his hand, outside of her clothing. He said nothing and got up and left.

         The next night, she testified, Walter came into her room again, without an invitation, when the door was closed. He lay behind her and touched her breast and her buttocks, under her clothing. He got up and left again, saying nothing.

         The following night, M. testified, Walter came into her room yet again, without an invitation, when the door was closed. He touched her breast and buttocks over her clothes while she was lying on her side in bed. At some point, she got to her feet, and he put his penis inside of her while she was standing. He ejaculated into a towel that came from the bathroom.

         The next night, M. testified, Walter tried to come into her room again. In describing what happened next, M. testified: "I push him away and tell my mother." It is unclear from M.'s testimony what she told Mother, but a subsequent question implies that she said that Walter was trying to get into her room. The following day, Mother replaced the doorknob on M.'s door with a doorknob that had a lock. The next day, M. testified, Walter moved out of the house.

         After Walter moved out, M. continued to see him, go to his house, and hang out with his son. She testified that she said nothing more about what Walter had done because she did not want to tear apart the family.

         M. first told her parents about the abuse in early 2016.[2] She had been out past curfew and was brought home by a police officer, who insisted on speaking with her father. She was very upset, was crying, and was afraid that she was going to get into trouble. At that moment, she told Stepfather that Walter "had sex with [her]." In her testimony, M. admitted that she had lied to her parents to get out of trouble.

         M. testified that she and Stepfather waited a day before telling Mother about the abuse. At some point thereafter, they called the police. M. was punished for staying out past curfew.

         On cross-examination, the defense elicited testimony suggesting that M. might not be an entirely reliable narrator. M. had initially told the police detectives that Walter had had sexual intercourse with her on two occasions, but at trial she admitted that that was "not true." She had falsely told the detectives that, on one occasion when Walter tried to enter her room, she had pushed back against the door, screamed, and woke up her mother, who had pushed Walter away. She had told Stepfather that Walter choked her, but at trial she denied having done so. At first, she had told the detectives that she was "terrified" of Walter and "didn't really talk to him"; in a later interview, after asking whether she could call Walter, she told the detectives that she had already called him and that he had told her that she was lying; but at trial she admitted that she had invented her account of the call and that no such call ever took place.[3]

         The cross-examination of M. also suggested that she was having a great deal of trouble at school and at home when she first claimed that Walter had sexually abused her. She had been suspended from the eighth grade, apparently for bringing alcohol and a bong to school, and her grades were not good. She had been in trouble with the police, and she was having a hard time getting along with both of her parents. Her mother was at wit's end. She had been home-schooled for a while, and there was some discussion about sending her to school out-of-state. At the recommendation of Walter's wife, M. received counseling. But although the counseling was confidential, M. did not disclose the abuse to her counselor.

         The cross-examination established that M. continued to have contact with Walter after the abuse. She would see him at family gatherings. She called him, sent him text-messages, and talked to him on Facetime, and she went to his house and spent the night there on multiple occasions. She told Walter's wife, with whom she had become close, that she wanted to move out of her parents' house and live with her biological father.

         Finally, a few days or weeks before she accused Walter of abusing her, Stepfather gave Walter a used pickup truck that was supposed to be for her.

         Mother's Testimony

         Mother testified that before 2012 M. was doing well in school, played sports, and had a good group of friends.

         During the late summer or early fall of 2012, Mother testified, M. came to her and her husband and said that Walter "was going in and trying to wake her up in the middle of the night." Because M.'s doorknob did not have a lock, they took the doorknob from their bedroom door (which had a lock) and put it on hers. A day or two later, M. told them that Walter "was trying to get in after the locks were changed." The next day, they asked Walter to leave. Walter had told the police detectives that he had been sleepwalking while he lived at his brother's house, but Mother said that she never saw him sleepwalk.

         After Walter moved out, Mother testified, M. started to go downhill. Nonetheless, M. continued to have good interactions with Walter during that time, and she would sometimes go to his house.

         Mother agreed that M. sometimes lies, but said that she does not lie to get others in trouble. Mother said that M. is punished when she lies.

         Mother testified that, in January or February of 2016, M. disclosed the abuse. M. came to her and asked if she "knew." Mother responded, "I'm not quite sure what you're talking about." M. explained that Walter "had slept with her." According to Mother, M. was "very distraught."

         After M. disclosed the abuse, Mother conferred with her husband about what to do. After three or four days, she said, they called the police.

         On cross-examination, Mother testified that it was actually about four weeks before they spoke to the police detectives and that the delay occurred, in part, because M. was known to lie a lot. In addition, Mother confirmed M.'s testimony about the turmoil in her private life at that time: she had been suspended from school, she had run away, she had had multiple encounters with the police, and her parents had considered sending her out-of-state to a boarding school. Finally, Mother testified that, contrary to M.'s statement to the detectives, she had never heard M. screaming in the night and had never confronted Walter and pushed him away from M.'s door.

         Stepfather's Testimony

         Stepfather testified that, in the summer or fall of 2012, Walter had a "normal" relationship with M., and M. was a "normal" child. Stepfather said that he never saw any evidence of Walter sleepwalking before or during the summer or fall of 2012.

         As a result of a conversation with his wife, Stepfather changed the doorknob on M.'s bedroom door about a month after his wife and children returned from their vacation. On the morning after he changed the doorknob, Stepfather had another conversation with his wife. As a result of that conversation, he and his father told Walter that he had scared M. and that he had to leave. Over an objection, Stepfather testified that Walter looked as though he was "trapped" during that conversation. Walter moved out, but continued to come to Stepfather's house to visit.

         After Walter moved out, Stepfather testified, M.'s behavior began to change, but he did not elaborate on how. Like his wife, Stepfather agreed that M. sometimes lies, but does not lie to get others in trouble.

         In February of 2016, M. had run away. The police brought her home. Stepfather testified that he confronted her, asking "Where is this behavior coming from?," and "[A]re you okay?" She began crying and disclosed the abuse.

         Stepfather did not tell his wife what M. had said. Instead, a day or two later, he said, M. told her mother of the abuse.

         According to Stepfather, he and his wife called the police about a month later. In the interim, they had taken M. to a counselor. The counselor directed them to call the police.

         At the request of the police, Stepfather called Walter. Unbeknownst to Walter, the police were listening in on the call, which was played for the jury. In the call, Stepfather told Walter that, according to M., he had "fingered her" and "choked her out and had sex with her."[4] Walter categorically denied the allegations. He claimed that he sleepwalked into her room one night, lay down, woke up, and left the room. In addition, he remembered an incident when M. came to the couch where he was sleeping and lay down with him because she was having a nightmare.[5]

         On cross-examination, Stepfather could not recall telling the police that he had changed the locks because M. had said that Walter was sleepwalking. Nor could he recall telling the police that Walter had sleepwalked when he was a child.

         Testimony of Erin Lemon

         Over a defense objection, the State called Erin Lemon, whom the court accepted as an expert "in the fields of sexual child abuse generally, delayed disclosure [of sexual abuse], and child development."

         Ms. Lemon, a social work supervisor with the Anne Arundel County Department of Social Services, testified about factors that may cause a child to delay a report of sexual abuse. They include the child's age and development; the child's relationship with the alleged perpetrator; the "grooming process," in which a perpetrator subtly persuades or manipulates the child not to disclose the abuse; and the child's own understanding of what sexual abuse is. On the basis of her experiences, Ms. Lemon opined that "it is very common for children who have been sexually abused to delay reporting that abuse, especially when that abuse . . . was caused by a family member or someone who's ...

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