Hubbert v. State

1

FREDERICK R. HUBBERT v. STATE OF MARYLAND

No. 491-2022

Court of Special Appeals of Maryland

August 4, 2023

UNREPORTED ^[*]

IN THE APPELLATE COURT OF MARYLAND ^[*]

Circuit Court for Cecil County Case No. C-07-CR-21-000918

Graeff, Zic, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ.

OPINION

GRAEFF, J.

A jury in the Circuit Court for Cecil County convicted appellant, Frederick R. Hubbert, of second-degree assault. The court sentenced appellant to a ten-year term of imprisonment, all but eight years of which were suspended.

On appeal, appellant presents two questions for our review:

1. Did the circuit court abuse its discretion when it refused to ask whether any juror had "strong feelings" about "the abuse of illegal drugs"?

2. Did the circuit court commit plain error when it permitted the prosecutor to argue facts not in evidence and to engage in prosecutorial vouching during closing argument?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

In connection with an incident that occurred on July 17, 2021, appellant was charged with first- and second-degree assault. A two-day jury trial began on April 27, 2022.

Gina Cooper testified that she and appellant had been involved in a romantic relationship that ended in 2019. On July 17, 2021, shortly before 1:00 a.m., appellant knocked on the door of her home. Ms. Cooper told appellant that he was "not supposed to be [t]here" and asked him to leave.^[1] She said that she was expecting a call from her friend, Joey, and as soon as he called, she would be going to his house. Appellant explained that he "just wanted to talk" to Ms. Cooper, but Ms. Cooper said that she did not want to talk.

Ms. Cooper was "fighting over the door" and "trying not to let [appellant] in," but appellant "won his way through the door."

Ms. Cooper testified that appellant took her phone, and then "drew back and punched" her in the face "as hard as he could," causing her to fall. Appellant then got on top of Ms. Cooper, put his knees on her arms, and punched her 10 to 15 times "as hard as he could with his fist." Appellant "kept putting his knee into [her] throat," and he choked her with his hands.

Appellant told Ms. Cooper that he was "going to have to kill" her because he "messed [her] face up so bad." He said that he was going to drag her body and get rid of it. Appellant then got up, took off his shirt, and "went back to strangling [her] again."

Ms. Cooper kicked appellant in an effort to get him off her. Appellant fell over and hit the back of his head on a piece of furniture. He then got up, sat down on a loveseat, and fell asleep. Ms. Cooper left the house and drove to her stepmother's house. Ms. Cooper's stepmother called 911, and Ms. Cooper was taken to the hospital by ambulance.

On cross-examination, defense counsel asked Ms. Cooper if she was actively addicted to drugs at the time of the incident. Ms. Cooper responded: "No." She denied that she had used heroin or fentanyl or "shot up" that day.

Nicole Possenti, an expert in forensic nursing and interpersonal violence, testified that she examined Ms. Cooper at approximately 3:00 a.m. on July 17, 2021. She was "concerned" about Ms. Cooper's injuries. Ms. Possenti stated that Ms. Cooper "was made a trauma alert," i.e., "a patient that has the potential for a life or limb threatening injury."

After hospital personnel completed a medical exam, Ms. Possenti conducted a forensic exam and took photographs of Ms. Cooper's injuries. There were multiple bruises and abrasions on Ms. Cooper's face, neck, breast, and arms. A lot of the bruises were purple and/or red, which indicated to Ms. Possenti that the injuries had occurred within the past 24 hours.

Ms. Cooper reported to Ms. Possenti that, during the assault, she had difficulty breathing and speaking, had changes in her voice and in her vision, and had an urge to urinate or defecate. Ms. Cooper also reported that she experienced memory loss, disorientation, and dizziness during the assault. In Ms. Possenti's opinion, Ms. Cooper's symptoms were "all consistent with non-fatal strangulation."

Defense counsel asked Ms. Possenti if she saw any indication of intravenous drug use during her examination of Ms. Cooper. Ms. Possenti responded that she "did not document any injuries," other than "acute injuries related to trauma." Counsel also asked Ms. Possenti whether Ms. Cooper appeared to be "under any influence of anything." Ms. Possenti responded that Ms. Cooper was able to complete the exam and answer all of Ms. Possenti's questions.

Corporal Todd Finch of the Elkton Police Department testified that, at approximately 4:30 a.m. on the date of the incident, he responded to Ms. Cooper's residence to look for appellant. When police arrived, the door to the home was slightly ajar. The police knocked on the door for approximately four minutes, and then announced themselves, shouted into the residence, and asked appellant to come to the door. According to Corporal Finch:

As that was happening, the door just suddenly slammed shut. So we knocked on the door some more. After a few moments, the door open[ed] slightly, and I could see [appellant] inside the residence talking to us from the door. We asked him to step outside to talk to us, and then he slammed the door shut again.

At that point, police entered the residence and arrested appellant. Appellant had blood on his hands, neck, and chest, and he had several scratches on his arms and back.

Appellant testified that he and Ms. Cooper were still "boyfriend and girlfriend" on the date of the incident. He stated that, at approximately 3:00 p.m. on July 16, 2021, Ms.

Cooper drove to his parents' house, where he was staying, and picked him up. Appellant's mother testified for the defense and corroborated appellant's testimony that Ms. Cooper picked him up that day.

Appellant stated that he and Ms. Cooper stopped for something to eat and then went to Ms. Cooper's house "to chill back, watch a movie, [and] get high." He testified that, at that time, he was actively using heroin intravenously, and so was Ms. Cooper.

Appellant claimed that Ms. Cooper's "veins [were] shot" from years of drug use, and it was difficult to "get a good vein." It took him almost two hours, but he finally "got her high."

After getting high, he and Ms. Cooper had sex. He stated that Ms. Cooper "liked to have rough sex" and liked him to put his hands around her neck and put pressure on it. He said that they "had sex like that that night," and they then fell asleep.

Sometime after midnight, Ms. Cooper woke him up and asked him to "sho[o]t her up again." He refused, and an argument ensued. Ms. Cooper jumped up and shoved him down, and then "jumped on top" of him, and "snapped" him "a few times." He grabbed Ms. Cooper's hands and tried to pull her off him. Appellant was able to stand up, but Ms. Cooper kicked him in the groin and stomach, causing him to fall down. Appellant said that "went on probably for three or four rounds," where she got up off the sofa, jumped on him, hit him, and punched him. Eventually, he and Ms. Cooper "called it quits," and they both fell asleep. Appellant woke up when the police came to the door.

Appellant denied that he intentionally hit Ms. Cooper. He said that, if he did hit her, "it would have been a slip through, trying to grab her hands and [his] hands hit her face." Appellant claimed that the bruises on Ms. Cooper's face had to be caused by her getting on top of him and fighting with him.

The bruises on Ms. Cooper's body were "from trying to get needles in and out of her." Appellant testified that Ms. Cooper "bruised so easy, it's unbelievable.... [Y]ou put a needle in her and it leaves a bruise like that."

As indicated, the jury convicted appellant of second-degree assault. Additional facts will be discussed as necessary in the discussion that follows.

DISCUSSION

I. Voir Dire

Appellant contends that the court abused its discretion in refusing to ask potential jurors whether they had strong feelings about illegal drug abuse. Appellant asked the court to include the following question on voir dire: "Does any juror have strong feelings one way or another in regard to the abuse of illegal drugs, or does any member of the panel have experience personally, or with family or personal friends and the abusive use of drugs?"

The court initially stated that it did not intend to pose the question because appellant was not charged with drug-related offenses. The court asked defense counsel if there were other grounds that might justify the inquiry. Defense counsel initially responded that it was "a big part of the case." The colloquy continued, as follows:

THE COURT: I mean, is that a defense or something that is going to be raised? ....

[DEFENSE COUNSEL]: It was just part - well, I don't know how this will affect. I mean, I just like to flesh it out. I mean, I don't know if it makes a difference or not to any of the jurors.

THE COURT: Well, I am not going to throw it out there. If it is an allegation in the case, I mean, I am not going to ask people about their . . . feelings about drug abuse if we are not dealing with a drug case.

[DEFENSE COUNSEL]: All right.... I will just note the objection, thanks.

On appeal, appellant argues that the strong feelings question regarding drug abuse "was designed to reveal bias related to [him] and his defense," which was "inextricably linked" to heroin because it "explained why Ms. Cooper attacked [him] and provided an explanation for a number of the marks and bruises on Ms Cooper's body." He argues that the court "should be required to ask a question . . . aimed at revealing whether a potential...