Lapole v. State

GRASON LAPOLE v. STATE OF MARYLAND

No. 2169

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

June 27, 2016

UNREPORTED

Leahy, Reed, Raker, Irma S. (Retired, Specially Assigned), JJ.

Opinion by Reed, J.

Concurring Opinion by Leahy, J.

Dissenting Opinion by Raker, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

By criminal information filed on August 6, 2013, the State of Maryland charged Grason Lapole, appellant, with 13 counts of various sex offenses committed over a six-year span against his stepdaughter, Diana Lapole ("Diana"), who was 18 at the time of trial. After a two-day trial in the Circuit Court for Baltimore County, the jury found appellant guilty of four counts of sexual abuse of a minor and three counts of sex offense in the third degree. On November 12, 2014, the trial court sentenced appellant to 25 years of incarceration for the first count of sexual abuse of a minor, a consecutive ten years for the first count of sex offense in the third degree, and additional sentences that were either to run concurrently or were suspended.

Appellant poses two questions for our review, which we have reordered:

1. Did the circuit court err in refusing to ask prospective jurors whether they would give greater weight to the testimony of a police officer than to the testimony of other professionals?

2. Did the circuit court err in admitting hearsay testimony of a "prompt complaint" of sexual abuse, when the abuse had ended over a year before the complaint was made?

We answer the first question in the affirmative, the second question in the negative, and reverse and remand to the Circuit Court for Baltimore County for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

As appellant concedes in his brief, "the testimony of this case is disturbing and need not be recounted in minute detail, as the sufficiency of the State's evidence is not contested in this appeal." In light of the fact that this appeal ultimately hinges on a procedural mistake, we need not recount it in great detail either, but will provide the necessary andpertinent details from the agreed-upon statement of facts that have some bearing on appellant's contentions.

Appellant was charged by criminal information of sexually abusing his stepdaughter in an escalating fashion from 2005 to 2011, by the Baltimore County Police. The charges were organized both chronologically (by Diana's age at the time of the offenses) and geographically (where the family was living when the offenses occurred):

1. 1412 Hopewell Avenue - February 23, 2005, through February 22, 2006 - one count each of sexual abuse of a minor, sex offense in the second degree, and sex offense in the third degree;

2. 1603 Hopewell Avenue - February 23, 2006, through February 22, 2009 - same three offenses;

3. 5 North Hawthorne Road - February 23, 2008, through February 22, 2010 - same three offenses; and

4. 507 Grovethorn Road - February 23, 2010, through February 22, 2011 - one count each of sexual abuse of a minor and sex offense in the second degree.

Before trial, both the State and appellant submitted their proposed voir dire. As part of the State's voir dire, it attached a witness list that, in addition to family members and school staff (such as her school counselor), included two police officers (only one of whom, Detective Dan Kuhns, ultimately testified). Importantly, both parties proposed a question that specifically sought to identify any potential jurors who would give greater or lesser weight to the testimony of a police officer, merely because he was a police officer ("the police officer question").¹

Appellant's jury trial began on August 4, 2014. In its actual voir dire, the trial court, rather than using the language of the parties' proposed questions, propounded the following question:

QUESTION NO. 10: Another principle of law about which the jury will be instructed is what we call credibility of witnesses. In all jury trials, whether civil or criminal, the judge decides issues of law. That's where the judge makes rulings where he's, the judge sustains or overrules an objection but the jury decides issues of fact. You'll decide what happened. In that regard, based on the testimony and other admissible evidence the jury decides what evidence they find persuasive. My instructions will include some factors that you may consider in judging witness credibility. Ultimately if selected as a juror in this case it is for you to decide who you believe. That is to say who is right or wrong, who is truthful or untruthful, who is correct or mistaken. At the conclusion of the case, and during deliberations, the jury will have had the benefit of seeing and observing, listening to all the witnesses, viewing any other evidence that is . . . admitted, discussing all the evidence with their fellow jurors.

Mindful of that principle are there any prospective jurors who would automatically give more or less weight to the testimony of any witness . . .merely because of the witness['] title, profession, education, occupation, employment? This question is asked in a . . . vacuum and, . . . people get confused about it. So let me be . . . a little more down to earth.

The whole point of this question is[:] could you sit and listen objectively to the testimony of any witness, regardless of what side called them, and regardless of their title, profession, education, occupation or employment?

For example, and if anyone here is a physician I'm not picking on you, but I'm gonna give, make a simple example. We have two physicians [who] just walked out of lunch, they're walking down the street and they're talking about whatever physicians are talking about. They're standing at the street corner waiting to cross the street and a traffic accident happens and one of the physicians thought the light was green and the other one thought it was red. And if that was all you knew and you were asked to make a decision would you base that simply on their credentials?

Most people would say no, I've gotta hear all the testimony, all the evidence from all the witnesses. And that's kind of the point of this question.

So stated another way, if you're selected as a juror in this case[,] would you be able to judge the credibility of each witness'[] testimony based on the totality of their testimony rather than [based on] which, whichever side called them, or rather than relying on their title, profession, education, occupation or employment[?] For example, would any of you automatically give more or less weight to the testimony of a physician, a clergyman, a police officer, firefighter, a psychiatrist, social worker or other witness merely because of their title, profession, education, occupation[,] or employment? If so, please stand.

After the judge counted the responding jurors (of which there were three), a bench conference ensued, wherein the following conversation took place:

[Counsel]: Your Honor, I assume the general question that you asked about believing one witness over another is in reference to my Number 15?

THE COURT: Not only that, it's, it's to, it, not only that but it relates to just credibility of witnesses.

[Counsel]: Right. I believe, and . . . I don't have it in front of me, but I believe . . . Bowie v. State indicates that it has to be more clearly questioned. In other words, I think the question is[:] would you believe the police officer's testimony over a non-police officer[?] I think it has to be that specific because lumping it in with physicians,or golfers, or other people I don't think points out what, what the court is trying to prevent. [It's] that you have a uniformed police officer on the witness stand with his badge and his gun, are they gonna give that person, an authoritative person dressed in authority more weight than a civilian witness[?]

THE COURT: Well what about less weight?

[Counsel]: Or less weight. Either way. I'm not saying more, I'm just, either way. But I think it has to be just, you have to specifically say[:] would you give a police officer['s testimony] more or less weight merely because he's a police officer?

THE COURT: Okay. All right. Thank you.

[Counsel]: Thank you.

After finishing the remaining voir dire questions, the court invited both sides up to the bench, whereupon appellant's counsel reiterated his exception to the omission of the police officer question:

THE COURT: All right. Any exceptions or, [sic] by the State?

[The State]: No.

THE COURT: From the defense?

[Counsel]: Other than what I previously made.

THE COURT: All right. So you previously made, I mean so we're clear, your, your question was specifically if you are selected as a juror in the case you may hear the testimony of one or more law enforcement officers. Do any of you believe that a law enforcement officer['s] testimony is entitled to greater weight than any other witness just because he is a law enforcement officer? Is that the question you're referring to?

[Counsel]: Yes[,] Your Honor.

THE COURT: Okay. I declined to give that, I think I've adequately covered it. All right. . . .

The court then proceeded to conduct the individual voir dire at the bench. Relevant here are the discussions with the three jurors that responded to Question No. 10: Juror Numbers 84, 203, and 69. All three jurors were ultimately struck for cause; however, Juror Number 203 was the only one to be stricken for cause based specifically on Question No. 10, after the juror explained that, as a teacher, the juror would likely automatically believe the testimony of the guidance counselor. Juror Number 84 was dismissed for cause after explaining that, as a child psychiatrist that dealt with many victims of sexual abuse, the juror was concerned about the ability to remain impartial. Juror Number 69 was excused for cause after the juror expressed concern over the...