Devincentz v. State

JULIUS DEVINCENTZ, JR. v. STATE OF MARYLAND

No. 74

COURT OF APPEALS OF MARYLAND

Argued: April 9, 2018

September Term, 2017

August 13, 2018

PRESERVATION FOR APPELLATE REVIEW — EXCLUSION OF EVIDENCE — MARYLAND RULES 5-103(A)(2) AND 8-131(A): The Court of Appeals held that where the trial court sustains an objection to testimony that a witness has already given, excluding the testimony, and the substance and relevance of the testimony are apparent from the context, the proponent is not required by Maryland Rule 5-103(a)(2) to make a proffer regarding admissibility because the issue has been raised in and decided by the trial court and is preserved for review.

EVIDENCE — EXCLUSION OF EVIDENCE — CHARACTER WITNESSES — CJP § 9-115 — MARYLAND RULE 5-608: Md. Code (1974, 2013 Repl. Vol.), § 9-115 of the Courts and Judicial Proceedings Article ("CJP") and Md. Rule 5-608(a)(1) permit a character witness to testify either that another witness has a reputation for truthfulness or, in the character witness's opinion, the witness is an untruthful person. Provided that such testimony has an adequate basis, and the evidence is relevant, it is admissible. The Court of Appeals held that the trial court abused its discretion by excluding personal opinion testimony from a witness about another witness's character for truthfulness because an adequate basis existed, and witness credibility was relevant.

EVIDENCE — EXCLUSION OF EVIDENCE — HEARSAY — MARYLAND RULE 5-616(B)(3) — NONHEARSAY EVIDENCE OF BIAS: Maryland Rule 5-616(b)(3) permits impeachment by extrinsic evidence of bias, prejudice, interest, or other motive to testify falsely. Use of statements demonstrating a witness's bias for such impeachment purposes is not hearsay provided that the proponent offers it for the fact that the statement was made, not the truth of the statement and the testimony is relevant. The Court of Appeals held that the trial court erred by excluding a witness's statement that the State's witness was saying things she could do that would get the defendant in trouble because it was offered to show her bias and attack her credibility, rather than for the truth of the matter asserted. For that reason, the statement was not hearsay.

CRIMINAL TRIALS — WITNESS CREDIBILITY — HARMLESS ERROR: The Court of Appeals held that the exclusion of evidence pertaining to a witness's credibility was not harmless error. When credibility is an issue, particularly in cases in which the only evidence is testimony, the jury's assessment of which witnesses are truthful is critical. Because the evidence was critical to assessing the credibility of the State's witness, the exclusion of such evidence was not harmless error.

Circuit Court for Cecil County

Case No.: 07-K-15-001678

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

Opinion by Adkins, J.

Watts, J., concurs and dissents.

"[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.

FACTS AND LEGAL PROCEEDINGS

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 sexualoffense, 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.

[Josh

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