Johnson v. State

1

JAMES E. JOHNSON v. STATE OF MARYLAND

No. 1445-2021

Court of Special Appeals of Maryland

September 16, 2022

Circuit Court for Anne Arundel County Case No C-02-CR-20-001566

Nazarian, Reed, Albright, JJ.

OPINION ^[*]

Nazarian, J. James Johnson was convicted in the Circuit Court for Anne Arundel County of second-degree assault he committed against a woman he met on Match.com. On appeal, Mr. Johnson argues the circuit court erred in excluding him from a portion of voir dire and in permitting two police officers to testify over a hearsay objection. He also argues that his sentence is illegal because it should be limited to the maximum term allowed for fourth-degree sex offense. The court sentenced him to ten years with all but eighteen months suspended. We disagree with Mr. Johnson's first two contentions, but we agree that his sentence is illegal. We affirm his conviction, reverse his sentence, and remand for resentencing.

I. BACKGROUND

In the early hours of August 15, 2020, Corporal Sean Slattery of the Carroll County Police Department pulled a driver over on suspicion of drinking and driving. She appeared upset, asked Corporal Slattery for help, and told him she had been sexually assaulted by Mr. Johnson. The State later indicted Mr. Johnson on four offenses: second-degree rape, third-degree sexual offense, fourth-degree sexual offense, and second-degree assault.

A. Voir Dire And Jury Selection.

The events precipitating the first issue on appeal arose during voir dire. On day one of trial, the court addressed Mr. Johnson before beginning the jury selection process. The court explained to him that he had a right to be present at bench conferences and that he would remain behind in the courtroom for the beginning of jury selection because of COVID-19 protocol:

I want to let you know that you have a right to be present at all bench conferences during the course of the jury selection. I'm going to want the State here. I'm going to want your attorney here. I'm going to want you over here if you want to come up. And I want you to stand back a little bit aways from, like, when we do the jurors when they come, I'm not going to the jurors that way. The jurors will be from there because I'm doing it individually, but when we come up here, you won't have to come up here for that. But if we ever come up here in front of the jury, if you want to come up, I want you over here. Okay? You don't have to, you're not required to, but you have the right to be brought up to there.

Next, the court discussed the jury selection process with defense counsel and the State:

THE COURT: Is the jury ready?

THE CLERK: I haven't heard back yet. Let me call.

[COUNSEL FOR MR. JOHNSON]: Your Honor, I'm guessing we're picking under the COVID rules, in the library and then coming back here?

THE COURT: Yes. Yes. Now, did you do one with me a while ago?

[COUNSEL FOR MR. JOHNSON]: I did.

***

THE COURT: Oh, you all stay here. Well, let me back up. Mr. Johnson stays here. Correct, Sheriff?

THE SHERIFF: I'm not sure how they do it.

THE CLERK: Your Honor, it's your preference. It's your preference.

THE COURT: Mr. Johnson stays here. I will give the attorneys the ability to come. You don't see just as much on this as you will-can we get the setup-

***

I want that on and I want to make sure the recording is on so you can hear what we do in there.

[COUNSEL FOR MR. JOHNSON]: You'll be able to see.

***

THE COURT: and so can we hear them? Can you stand around to make sure we can hear them?

THE CLERK: Yes.

The court then asked the voir dire questions to the entire pool with both defense counsel and the State in the courthouse library, but it appears from the record that Mr. Johnson was not present for this process and remained behind in the courtroom. Before leaving Mr. Johnson, the court stated, "I want that on and I want to make sure the recording is on so you can hear what we do in there." And defense counsel indicated that Mr. Johnson would "be able to see."

Once the pool was questioned, the presiding judge, defense counsel, and the State returned to the courtroom, rejoining Mr. Johnson. The circuit court then asked individual venire members to explain any possible biases or issues they may have based on their initial answers to the voir dire questions.

B. The Trial.

Because the issues raised in this case flow primarily from the trial itself, we recount the evidence and testimony as the parties presented it.

Mr. Johnson and the victim met on Match.com in 2020, exchanged messages, and made plans to meet in person. On August 14, 2020, the victim traveled to Mr. Johnson's home in Maryland to hang out. Over the course of the evening, both parties consumed alcohol. At the end of the evening, the parties engaged in intercourse and the victim left Mr. Johnson's house in her own vehicle. The dispute at trial centered around whether the sexual contact was consensual.

The victim testified that the sexual contact was not consensual, that "everything went black," and when she came to, Mr. Johnson was sexually assaulting her while holding her knees down with his arms. Mr. Johnson told a different story. He maintained that the encounter was consensual and, at trial, he testified to that effect. After leaving Mr. Johnson's house, the victim was pulled over by Corporal Slattery on suspicion of drinking and driving. The victim testified that she told the officer she needed help and that she had been assaulted. She then proceeded to give Corporal Slattery a detailed account of what she experienced at Mr. Johnson's house.

The victim went to the hospital and was visited there by Sergeant Roger Schwarb of the Maryland State Police around 8:00 a.m. Sergeant Schwarb testified on day one of the trial that he asked the victim questions about the assault. During this testimony, defense counsel objected without stating a specific reason, and the court asked the State what hearsay exception this testimony fell under:

[THE STATE]: And this was at 7:00 when you-or you got the call at 7:00. What time did you actually get to the hospital?

[SERGEANT SCHWARB]: It was approximately 8:00, between 8:00 and 8:15. It was around 8:14.

[THE STATE]: Okay. And when you responded to the hospital, did you encounter her-when you encountered her, did you speak with her with other people present or was it just you and her?

[SERGEANT SCHWARB]: It was she and I.

[THE STATE]: Okay. And can you tell us what, if anything, she advised you?

[COUNSEL FOR MR. JOHNSON]: Objection.

[THE STATE]: May we approach?

THE COURT: You may. . . .

What's the exception?

[THE STATE]: No. [Prompt] report, sexually assaulted behavior.

THE COURT: Did, can she report to a police officer or is it a report to medical? Isn't it medical?

[THE STATE]: No. The [prompt] report can be anyone and you can have any number witnesses. It's 801.1 and I forget I have-I have it pulled up, Your Honor. Do you have it with you?

THE COURT: I just want to make sure we get it right.

[THE STATE]: Sure. No, I understand. And then I was also going to argue, also in 801.1, it's a prior inconsistent statement because I believe Defense is attempting to impeach her by the mere fact of his cross examination from the DUI, but the prompt report that Your Honor wants us to-

During this sidebar, the State retrieved the Maryland Rules and confirmed that the prompt report exception was Maryland Rule 5-802.1(d).^[1] Defense counsel then argued that the victim's complaint to Corporal Slattery was not prompt:

[COUNSEL FOR MR. JOHNSON]: I would argue it's not prompt. This is-she don't know when it happened now, so I-

THE COURT: Well, it happened after 14.

[COUNSEL FOR MR. JOHNSON]: Happened after 14.

THE COURT: Probably after 17.

[COUNSEL FOR MR. JOHNSON]: And this is at-

THE COURT: 7:00-

[COUNSEL FOR MR. JOHNSON]: 8:00. 8:00 in the morning.

THE COURT: Okay. Overrule your objection. I'm going to let her speak.

After the objection was overruled, Sergeant Schwarb testified about what the victim told him after the alleged sexual assault, without further objection from defense counsel.

On day two of trial, the State called Corporal Slattery and asked him to describe his encounter with the victim:

[THE STATE]: And can you tell the ladies and gentlemen of the jury what, if anything, she said about the date, knowing that this was 12:35 a.m. on 8/15?

[COUNSEL FOR MR. JOHNSON]: Objection, Your Honor.

THE COURT: Overruled.

Do you want to approach?

[COUNSEL FOR MR. JOHNSON]: No, Your Honor.

THE COURT: Okay.

Once the State began to ask Corporal Slattery for specific details about what the victim told him, defense counsel noted a "continuing objection to any of the hearsay[,]" with the court surmising that this complaint was even closer in time:

[THE STATE]: And what, if any, information did she give you about those events?

[CORPORAL SLATTERY]: So she had-

[COUNSEL FOR MR. JOHNSON]: Objection. May we approach?

***

I understand Your Honor's ruling yesterday. I just, I was making an objection. We just have a continuing objection to any of the hearsay.

THE COURT: I understand. And then per the previous recent report of sexual abuse under 5-802.1, I think it comes into-

[THE STATE]: And I'd also, just also add today that it would be an excited utterance as well.

THE COURT: It would be. That's a closer call, but I think- but I would argue that if I'd be one of the attorneys.

[COUNSEL FOR MR. JOHNSON]: I just want just a continued objection to it so I don't have to-

THE COURT: I understand. You can have a continued objection, anything she says to third parties after the event. If for some reason we get way out in the world-

[THE STATE]: Certainly.

THE COURT: -we may talk, but this one's even closer in time than yesterday, so.

[COUNSEL FOR

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