Dansbury v. State Of Md..

193 Md.App. 718

1 A.3d 507

Tranell DANSBURY

v.STATE of Maryland.

No. 1464, Sept. Term, 2008.

Court of Special Appeals of Maryland.

July 6, 2010.

Reconsideration Denied Sept. 14, 2010.

Michael E. Thakur of Washington D.C. (Elizabeth Julian, Acting Public Defender of Baltimore, MD, O'Melveny & Myers LLP of Washington D.C., on the brief), for appellant.

Michelle W. Cole (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: HOLLANDER, ^* JAMES P. SALMON, J. FREDERICK SHARER, (Retired, specially assigned), JJ.

HOLLANDER, J.

Following a trial in June 2008, a jury in the Circuit Court for Baltimore City convicted Tranell Dansbury, appellant, of one count of second degree rape of Shallie M. (“Ms. M.”). The incident occurred more than eleven years earlier, on November 17, 1997, when Ms. M. was eighteen years old and appellant was fifteen. The jury also convicted appellant of related offenses, including one count of second degree sexual offense; two counts of fourth degree sexual offense, and three counts of second degree assault. ¹ The court subsequently sentenced appellant to a total of thirty years imprisonment. ²

On appeal, appellant poses two questions, which we quote:

1. Did the trial court err by giving a missing witness instruction over the defense counsel's multiple objections and drawing the jury's attention to the fact that particular defense witnesses were not called to testify without inquiring whether such witnesses were peculiarly available to the Appellant?

2. Did the trial court err in permitting an inconsistent jury verdict of guilty on three charges of second degree assault and not guilty of one charge of second degree [assault] when the charging documents and the verdict sheet do not differentiate among different acts that could be the basis for separate assault charges?

For the reasons set forth below, we answer the first question in the affirmative and shall reverse and remand. Because the second question is not likely to recur on remand, we decline to address it.

FACTUAL AND PROCEDURAL BACKGROUND

At trial, Baltimore City Police Detective Chester Norton testified that he worked in the Sex Crimes Unit from 1998 to July 2007. He became involved in this case on April 9, 2007, when he received a DNA match linking appellant's DNA to vaginal swabs obtained from Ms. M. on November 18, 1997, shortly after she reported that she was raped. Detective Norton explained that he then contacted Ms. M. in California and interviewed her on the telephone. Ms. M. told him that she had been raped in November 1997; she was also forced to perform fellatio; and the assailant had a gun. Detective Norton indicated, without objection, that what Ms. M. told him on the phone was consistent with what she had reported in 1997.

Ms. M. returned to Baltimore in August 2007 in connection with the investigation. According to Detective Norton, Baltimore City detectives Joseph Peters and Caprice Smith showed her a photo array on August 3, 2007. ³ The investigators also obtained a search warrant to “get a confirmation swabbing of the defendant, to compare it against the case evidence to be sure.”

Detective Smith, of the Sex Offense Unit, testified that she was a witness to a six-person photo array at which Ms. M. identified the person depicted in photograph five as the individual who attacked her. She also indicated that Ms. M. signed her name next to the photograph. However, Detective Smith did not know whether photograph five depicted appellant.

Reginald Webb testified that he is the father of Ms. M.'s children, has known her since 1996, and they are friends. According to Mr. Webb, in a telephone conversation with Ms. M. on the night of November 17, 1997, she told him she was going to take a cab from her aunt's house on Washington Street to his mother's house, which was nine or ten blocks away on Monument Street. Mr. Webb recalled that “[t]ime just started going by and she wasn't there yet....” Noting that Ms. M. is a “prompt person”, Mr. Webb thought that perhaps she had started walking while “trying to flag a cab down.” Mr. Webb called Ms. M.'s aunt, who indicated that Ms. M. had left about thirty minutes earlier. Mr. Webb then “waited some more,” but Ms. M. “never came.” He went outside to look for Ms. M. but did not see her, so he again called Ms. M.'s aunt. She indicated that she had not seen Ms. M. since she and Webb last spoke. Webb again walked outside, and this time he saw Ms. M. He recalled:

[She] was running into [his] mother's backyard, and she didn't have on any pants, no pants, no shoes, she was crying. She had dirt all over her face, and her shirt was like real wet. So I grabbed and pulled her in the house, and I was asking what happened. And when she got in the house, she just-she collapsed, she fell, and I didn't know what was going on.

She was trying to talk, but she couldn't talk. So I went and got a washcloth, and wiped her face off, and when I got close to her, I could smell her, she smelt [sic] like urine. So I had called the police, and the ambulance, and the police had came over. And she was telling me that-she was trying to say that she had got raped, but she couldn't. I don't know if she was in shock or what was going on. But she was shaking like she was outside in the cold, so she couldn't get it out.

According to Mr. Webb, on the night in question, Ms. M. recounted the details of what had occurred. He stated, without objection:

She had told me that she called a cab, and she said that she left out, and the cab had came, but it kept going. And then she said she tried to flag a couple of cabs down, they wouldn't stop. So she said she started walking.... And she said when she got near Church Square Mall, she said this guy came up behind her and told her to come here. And she said no. And she said he put a gun to her back, and made her walk over ... [to] Water Towers. I think it's a retirement home or something like that.

And there's a wall over there, she said he made her walk behind the wall, and she kept telling him she didn't want to go with him, and she said she started screaming out for help, there's nobody outside, and he told her if she kept screaming, he was going to hurt her. Took her behind the wall, and she said he pushed her on the ground, and made her give him oral sex, and took her pants off, and ... he

urinated on her, he had-he tried to have sex with her anally, and he didn't, but he had sex with her vaginally, and he took-after-she said he put dirt in her mouth and put a sock in her mouth while he was doing it.

And I remember her saying that he kept telling her over and over again, that she was his girlfriend or something like that. And she said she heard some police cars or squad cars, something, a siren, and he stopped, and she said she had a bag of clothes, because she had went shopping, and he took the clothes, and he walked off, and she said, once he left, she said she laid there for, I don't know how long, but she got up, and looked around the wall, to see if he was there, and he wasn't, and that's when she said she ran to my mother's house.

Jennifer Ingridson, a DNA analyst for the Baltimore City Police Department, testified as an expert in serology. In April 2003, Ms. Ingridson analyzed swabs that were taken from Ms. M.'s vagina in the early morning hours of November 18, 1997. Her report of April 28, 2003, was admitted into evidence. According to Ms. Ingridson, the “testing of the vaginal swabs revealed that there was seminal fluid present, as well as sperm.” The State also introduced Ms. Ingridson's report of November 2007, containing serological findings as to the underwear worn by Ms. M. on the night of the alleged attack. Ms. Ingridson noted that “[t]wo of the stains were positive for the presence of creatine, which is just the possible presence of urine.” ⁴

Jocelyn Carlson, of the Baltimore City Police Department, testified as an expert in DNA analysis. She analyzed the “suspect standard,” and then compared it to the vaginal swabs previously analyzed” by BRT Laboratories (“BRT”). ⁵ Ms. Carlson testified:The sperm fraction of the vaginal swab A from BRT, which is in my table, sample 2S, yielded a DNA profile consistent with the known standard from Tranell Dansbury. The chan[c]es of selecting an unrelated individual from a random population, possessing a stained profile as the evidence sample at the tested LOSI [sic] are approximately 1 in 74.6 quintillion individuals in the American Caucasian population, 1 in 6.99 quintillion individuals in the African American population, and 1 in 164 quintillion individuals in the southeast Hispanic American population.

* * *

Basically that means that [appellant's] profile, all the alleles he has matched all the alleles that were in the sperm fraction of the vaginal swabs, and the statistics are such that it's highly unlikely that anyone else would've developed-would've contributed to that profile. A quintillion is a very large number, and the population of Earth right now is only 6.5 billion.

But, Ms. Carlson indicated that the sample also “contained a minor allele.” The following exchange is relevant:

[APPELLANT'S COUNSEL]: So it's my understanding that [the minor allele] could indicate another person; is that correct?

[MS. CARLSON]: Minor alleles are just when the amount of DNA has not

reached the same level as the amount from another person.

In this case, the sperm fraction sample that [the prosecutor] was talking about, there was one minor allele.

[APPELLANT'S COUNSEL]: So let me understand that, basically would it be fair to say that you cannot say that that minor allele of sperm belongs to Tranell Dansbury; is that correct?

[MS. CARLSON]: Well, that minor allele does not belong to Tranell, yes.

Mary Davidson testified that she has worked as a “SAFE” ⁶ nurse since 1994. She explained that “[a] safe nurse is a nurse who has a special training in collecting evidence from persons who report...