Gross v. State

Daniel Jay Gross v. State of Maryland, No. 32, September Term, 2021. Opinion by
Biran, J.
CRIMINAL LAW – HARMLESS ERROR – CUMULATIVENESS – The Court of
Appeals reaffirmed that, when analyzing a trial court’s erroneous admission of evidence
for harmlessness, the reviewing court’s harmless error analysis is governed by the
framework established in Dorsey v. State, 276 Md. 638 (1976). Dorsey’s standard requires
the State to show beyond a reasonable doubt that the error in no way influenced the verdict.
When reviewing for harmlessness, a court examines the full trial record and, among other
things, considers whether the erroneously admitted evidence was cumulative of properly
admitted evidence. In this case, the jury heard the victim’s account of being abused by
Petitioner five times, including once by way of a video of the victim describing the abuse,
which was admitted as a prior consistent statement. Upon review of the entire trial record,
including evidence introduced by the defense, the Court concluded beyond a reasonable
doubt that the admission of the video did not contribute to the rendition of the guilty verdict
and, therefore, was harmless.
Circuit Court for Montgomery County
Case No.: 128021C
Argued: February 7, 2022
IN THE COURT OF APPEALS
OF MARYLAND
No. 32
September Term, 2021
DANIEL JAY GROSS
v.
STATE OF MARYLAND
*Getty, C.J.
*McDonald
Watts
Hotten
Booth
Biran
Gould,
JJ.
Opinion by Biran, J.
Gould and McDonald, JJ., dissent.
Filed: August 26, 2022
*Getty, C.J. and McDonald, J., now Senior
Judges, participated in the hearing and
Pursuant to Maryland Uniform Electronic Legal
Materials Act
conference of this case while active members of
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
this Court. After being recalled pursuant to
2022-08-26 17:06-04:00 Maryland Constitution, Art. IV, Section 3A, they
also participated in the decision and adoption of
this opinion.
Suzanne C. Johnson, Clerk
In 1976, this Court established the standard for harmless error review in Maryland
criminal appeals, holding that, “unless a reviewing court, upon its own independent review
of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way
influenced the verdict, such error cannot be deemed harmless and a reversal is mandated.”
Dorsey v. State, 276 Md. 638, 659 (1976). This standard, so far, has withstood the test of
time. The Petitioner in this case, Daniel Jay Gross, asks us to reassess the standard for
harmless error review, arguing that we must make the State’s burden to establish harmless
error more onerous in order to avoid appellate courts usurping the role of the jury as the
trier of fact.
In April 2019, in the Circuit Court for Montgomery County, a jury convicted
Petitioner of two counts of second-degree sexual offense and one count of sexual abuse of
a minor by a household or family member. The victim was Petitioner’s adopted daughter.
At trial, the victim testified that, when she was in kindergarten and first grade, Petitioner
made her perform oral sex on him on multiple occasions. In addition, the victim’s
biological grandmother testified at trial about the victim’s initial disclosure of the abuse to
her on June 27, 2015. The State also introduced a video recording of an interview the victim
gave to a social worker on June 30, 2015, in which the victim reported the sexual abuse by
Petitioner. Further, the State introduced the testimony of a child abuse pediatrician, who
provided the jury with the account of the abuse that the victim gave her on July 8, 2015.
Before us, Petitioner does not challenge the admission of the victim’s account of abuse
through the victim’s live testimony and these other sources.
However, there was a fifth source of evidence introduced at trial through which the
jury heard the victim’s allegations of sexual abuse. Over defense objection, the State
introduced a video recording of a conversation the victim had with her biological
grandmother on June 27, 2015, immediately after she first disclosed the abuse to her
grandmother. The victim repeated her allegations of abuse in that recorded conversation.
The recording showed the victim crying throughout the conversation with her grandmother,
as she begged her grandmother not to put Petitioner in jail. The trial court ruled that the
video recording containing the victim’s out-of-court statement to her grandmother was
admissible as a prior consistent statement.
The Court of Special Appeals held that it was error to admit the video recording of
the victim’s disclosure to her grandmother, but concluded that the error was harmless
beyond a reasonable doubt because the video evidence was cumulative of other evidence
through which the jury heard the victim’s account of sexual abuse. We agree. As discussed
below, we reaffirm that the standard for harmless error analysis in Maryland is whether the
reviewing court is convinced, beyond a reasonable doubt, that the error in no way
influenced the jury’s verdict. We also reaffirm this Court’s longstanding approach of
considering the cumulative nature of an erroneously admitted piece of evidence when
conducting harmless error analysis. After reviewing the complete trial record, we are
convinced that the admission of the challenged video was harmless beyond a reasonable
doubt. Accordingly, we affirm the judgment of the Court of Special Appeals.
2
I
Background
A. A.M.’s Adoption and Subsequent Accusations of Abuse
J.M. gave birth to her daughter A.M.1 in October 2007, when J.M. was 18 years old.
J.M. is developmentally disabled. For this reason, J.M.’s mother, C.M., was A.M.’s
primary caregiver for approximately the first 18 months of her life. Due to personal
difficulties that C.M. was experiencing in approximately 2009, A.M. was placed in foster
care at that time. Ultimately, J.M.’s parental rights were terminated, and A.M. was adopted
by Petitioner and his wife, Emma Silvia Gross (“Ms. Gross”).
A.M. was two years old when she began living with Petitioner, Ms. Gross, and their
two minor sons. During the winter of A.M.’s first grade school year, she told a playmate
that her father was “ticklish in the nuts.” The friend’s mother told Ms. Gross what A.M.
had said. According to A.M., when Ms. Gross asked her about this statement, she told Ms.
Gross (using children’s terminology) that she had performed oral sex on Petitioner. After
speaking with A.M., Ms. Gross had a conversation with A.M. and Petitioner during which
Petitioner denied that he had engaged in oral sex with A.M. According to A.M., she cried
and “said he did.” Petitioner’s denial made A.M. feel “sad” because “he wasn’t telling the
1
The victim in this case has had three different legal names during her childhood.
We will refer to her as A.M., which are the initials of her current legal name. We will refer
to A.M.’s biological mother as J.M. and to A.M.’s biological grandmother as C.M., to
protect A.M.’s identity.
3
truth.” After this discussion, an “open door policy” was instituted in the Gross household
and Petitioner no longer spent time alone with A.M.
Before this open-door policy was put into effect, A.M. had supervised visits with
her biological mother and grandmother (J.M. and C.M.) once or twice a year, and always
in a public place. After implementing the open-door policy, Ms. Gross and Petitioner began
to allow A.M. to spend more time with J.M. and C.M., including multiple unsupervised
weekend stays at C.M.’s home in the spring of 2015. During this time, C.M. consulted an
attorney about potentially adopting A.M., with the assistance of Ms. Gross.
On June 27, 2015, while A.M. was spending the weekend at C.M.’s home (where
J.M. also lived), A.M. disclosed Petitioner’s alleged sexual abuse to C.M. After A.M. told
C.M. that she had performed oral sex on Petitioner, C.M. immediately called J.M. from her
room and had J.M. record two videos on J.M.’s tablet device in which A.M. repeated her
allegations to C.M. In addition to stating that Petitioner made her perform fellatio on him,
A.M. said in one of the videos that Petitioner licked “[her] legs, [her] private.”
On June 30, 2015, C.M. reported A.M.’s allegations to police.
B. Investigation and Charges
Later in the evening on June 30, 2015, Britney Colandreo, a social worker employed
by Montgomery County Social Services, interviewed A.M. The interview was video
recorded. During the interview, among other things, A.M. told Ms. Colandreo that she had
sucked Petitioner’s “nuts” when he was putting her to bed in her bedroom. Ms. Colandreo
did not ask A.M. if Petitioner ever performed cunnilingus on her, nor did A.M. say that
Petitioner engaged in that conduct.
4
On July 8, 2015, A.M. met with Dr. Evelyn Shukat, a child abuse pediatrician and
the medical director of The Learning Tree Advocacy Center. A.M. told Dr. Shukat that she
performed oral sex on Petitioner, and that Petitioner also performed cunnilingus on her.
Police subsequently obtained a warrant to search Petitioner’s home. They
discovered a stain on the carpet next to A.M.’s bed that they believed might contain bodily
fluid. Subsequent testing confirmed the presence of seminal fluid and spermatozoa in the
stain, and revealed that the source of the semen had a DNA profile that was consistent with
Petitioner’s DNA profile.
Petitioner was subsequently charged with one count of sexual abuse of a minor by
a household or family member, two counts of second-degree sexual offense (fellatio), and
one count of second-degree sexual offense (cunnilingus).
C. Trial
Shortly before the start of his trial, Petitioner filed a motion in limine to preclude
the State from introducing the video evidence containing A.M.’s statements to C.M. and
J.M. (the “June video”2). Defense counsel asserted that the June video was neither
admissible as a prior consistent statement nor as a prompt complaint of sexual abuse. The
parties and the trial court briefly discussed this motion prior to the start of the evidence.
The trial court did not rule on the motion at that time.
2
J.M. made two separate video recordings in quick succession in which A.M.
repeated her allegations to C.M. For ease of reference, and similar to how the parties and
the Court of Special Appeals have referred to this evidence, we will refer to the two videos
collectively as the “June video.”
5
The State’s first witness was A.M., who was 11 years old at the time of trial. A.M.
testified that Petitioner would “ask me to put my mouth on his man part ... and suck it”;
that “white goo” would come out of Petitioner’s “man part”; and that these incidents
occurred while she was in her bed following bedtime prayers. A.M. also testified that
Petitioner would reward these acts by letting A.M. stay up late to play with her toys.
According to A.M., the abuse occurred throughout her kindergarten school year and into
the winter of first grade. It stopped after she told Ms. Gross that Petitioner “was coming in
my room and making me suck his man part.” Notably, when asked whether Petitioner “ever
[did] anything with his mouth on your body,” A.M. answered “No.”
The State next called Ms. Gross as a witness. She testified that she heard from a
neighbor that A.M. had told the neighbor’s daughter that Petitioner was “ticklish in the
nuts.” According to Ms. Gross, when she asked A.M. about this statement, A.M. said she
was kidding. Later, Ms. Gross had a conversation with Petitioner and A.M. in which
Petitioner denied having engaged in any sexual acts with A.M. Ms. Gross testified about
the “open door policy” that was instituted in the home going forward, and stated that
Petitioner subsequently did not spend time alone with A.M. Ms. Gross also acknowledged
that, following this incident, she allowed C.M. and J.M. for the first time to have overnight
unsupervised visits with A.M., and that she helped C.M. find a lawyer who could advise
C.M. regarding possibly adopting A.M.
C.M. then testified. She told the jury that on June 27, 2015, while A.M. was
spending the weekend at her home, A.M. told her about Petitioner’s sexually abusive acts.
According to C.M., she and A.M. were reading together when C.M. asked A.M. whether
6
“your dad and your mom usually do this.” At that point, A.M. became “really quiet.” Over
the objection of defense counsel, C.M. recalled the next part of the conversation:3
And she just you know, say well she say my dad usually is the one who comes
you know to my room. I said really. And I was you know, like okay. And she
say, yeah, he does. But the only thing that I don’t, she say, she say specifically
like this, the only thing that I don’t like when my dad come to the room is
that my dad takes his - at that time, you know, of course, she didn’t know
what you know, what the private part for a man or woman was called. I don’t
know. But she didn’t say specifically you know the penis. She say, she just,
my daddy gets something from his boxer and he make me massage first that
and … then she say that he make her, you know, that he put his thing in her
mouth and she say that when she said that, that he finish in her mouth and
she say that the only thing that I don’t like is that something sticky or gooey
come from his part. But she say, that’s okay, she say you know, he just go to
the bathroom and clean himself with paper towel, with paper, you know.
C.M. testified that, after A.M. made these statements to her, she immediately called J.M.
from her room and had J.M. make a video of her conversation with A.M.
The State then offered the June video into evidence. Consistent with the motion in
limine the defense had filed previously, defense counsel objected on the grounds that the
video was inadmissible hearsay not subject to the exceptions for a prior consistent
statement or a prompt complaint of sexually assaultive behavior. After a lengthy argument
outside the presence of the jury, the trial court admitted the June video under the hearsay
exception for prior consistent statements. The State then played the June video for the jury.
A.M. cried continuously during the recorded conversation. She told C.M. that Petitioner
made her “suck his private parts” and that Petitioner licked her “[her] legs, [her] private.”
A.M. repeatedly implored her grandmother not to tell anyone about Petitioner’s conduct,
3
C.M. is not a native English speaker. We quote her statements as they appear in
the transcript of Petitioner’s trial.
7
telling C.M.: “I just don’t want him to go to jail. I want him to be okay. Just please don’t
put him in jail. I love him.”
Next, the State called Ms. Colandreo to testify regarding her conversation with A.M.
on June 30, 2015. Over Petitioner’s objection, the State entered the video recording of this
interview into evidence and played it for the jury. In that conversation, A.M. told Ms.
Colandreo that she sucked Petitioner’s “nuts” when he was putting her to bed in her
bedroom. She told Ms. Colandreo that this happened “maybe 20” times, and that the last
time was in the winter of her first grade year. A.M. also recounted to Ms. Colandreo that
Petitioner did not “tell the truth” about what had happened when Petitioner, Ms. Gross, and
A.M. talked about it. Ms. Colandreo did not ask A.M. if Petitioner ever performed oral sex
on A.M., and A.M. did not mention such conduct in this interview.
The State then called several law enforcement witnesses to establish the facts
concerning the discovery and testing of the stain on the carpet next to A.M.’s bed. A crime
lab forensic specialist explained that, using an alternate light source, he looked for
substances that fluoresce, which indicates that they may contain certain bodily fluids.
Using this method, he identified a spot of suspected bodily fluid on the carpet next to
A.M.’s bed. He saw no other fluorescing spots in A.M.’s bedroom. The police removed the
section of carpet that contained the suspected fluid and submitted it for testing. Crime lab
personnel conducted serology testing on a sample taken from the stain and found that it
contained seminal fluid and spermatozoa. From that sample, a single-source DNA profile
was obtained. The analyst who recovered that profile then compared it with the DNA
profile obtained from a buccal sample collected from Petitioner. The two profiles matched.
8
The defense conceded at trial that the carpet stain contained semen, and that Petitioner was
the source of that semen.
The State concluded its case-in-chief by calling Dr. Shukat to testify. Over
Petitioner’s objection, Dr. Shukat explained that she met with A.M. on July 8, 2015. She
first interviewed A.M. and then conducted a medical examination. During the interview,
A.M. told Dr. Shukat that
she and her father make deals. And the deals [are] that if, and using her
language, if she sucks her father’s nuts she’ll be able to stay up, and I assume
that means stay up later, and watch television. And she described that as oral
sex and gooey stuff coming out of his nuts. And one time she said it went in
her mouth. As well as her father licks her all over and indicated that she was
licked in between her labia of her vagina.
According to Dr. Shukat, A.M. told her that “the gooey stuff went either into toilet paper
or a paper towel.” The abuse, as reported by A.M. to Dr. Shukat, began in kindergarten.
A.M. told Dr. Shukat that Petitioner said “not to tell anybody.” According to Dr. Shukat,
A.M. told her that she felt what her father did “was disgusting.” She also reported to Dr.
Shukat that “she felt lonely” and “that she cried at night and she talked to her stuffed
animals.”
Petitioner called several witnesses in the defense case, including several experts. Dr.
Karl Reich testified for the defense as an expert in the fields of forensic DNA and forensic
biology. Dr. Reich opined that the semen on the carpet next to A.M.’s bed was transferred
inadvertently to that location on the bottom of a sock or other footwear. Dr. Reich also
opined that the absence of saliva and a second DNA contributor in the semen found on the
carpet did not support A.M.’s allegation of fellatio.
9
The defense also called Dr. Leigh Hagan as an expert in forensic psychology. Dr.
Hagen viewed the June video, as well as three other earlier videos made by C.M. in
February and March 2015, during which A.M. made statements about how Petitioner and
Ms. Gross disciplined her and otherwise discussed her life with the Gross family. The
February and March videos contained no allegations of sexual abuse. With respect to the
last of the pre-June videos, Dr. Hagan opined that C.M. was “directing the conversation to
criticisms of the Grosses, and would ask the child a question, and then the child would
answer, and then the grandmother’s restatement of what the child said, the grandmother
added to it, that is made it worse criticism, and changed the child’s words.” Dr. Hagan
further opined that the videos C.M. made with A.M. (including the June video) were
“influential” in terms of “process” and “substance.” With respect to process, A.M. “was
aware that the video was being made, that this was important to her grandmom to record
these things.” With respect to “the substance of the conversations that took place across
the … videos [from] February to June 27, the grandmom became more assertive, aggressive
in her questioning, more directive, and [there was] more of a propensity to change the
child’s answers in response to what the child had said to the grandmother.”
After the defense rested, the State put on a brief rebuttal case, including expert
testimony from Jennifer Breaux, the lead forensic scientist in the Forensic Biology Unit of
the Montgomery County Police Crime Laboratory. Ms. Breaux testified that if Dr. Reich’s
transference theory were correct, she would “expect to see more areas of florescence
entering in that room, as opposed to one.” For Dr. Reich’s theory to make sense, Ms.
Breaux continued, an individual with “a wet semen stain on the bottom of their shoe” would
10
need to “hop on one foot the entire way in, and then put both feet down, meaning the foot
down that has the wet semen stain, then you could just have one stain in there[.]”
In their closing arguments, both the prosecutor and defense counsel directed the
jury’s attention to the June video.
The prosecutor first quoted portions of A.M.’s trial testimony and her statement to
Dr. Shukat and then told the jury:
She told [Ms. Gross] what the defendant was doing to her. She and [Ms.
Gross] then confronted the defendant, and he denied it. She then told [C.M.]
six months later. She then told Britney Colandreo from Child Welfare
Services. She then told Dr. Evelyn Shukat from The Tree House. And then
she came here, and she sat in front of then 14 strangers, and told you exactly
what was happening, and she was consistent in each and every one of those
disclosures. There’s been no variation, there’s been no adding elements, none
of that, consistent in what she told everybody.
The prosecutor then brought up the June video: “The Defense wants you to believe that
this videotaped disclosure by [C.M. and J.M.] was rehearsed, or staged, or whatever word
you want to put there. I would submit to you that those disclosures are powerful, and they
are heart-wrenching, and they’re very different from the other videos that were admitted
into evidence. And I encourage you to watch all of them, but I would like to show you the
disclosure again.” The prosecutor then played the June video for the jury, after which the
prosecutor continued: “The Defense wants you to believe that that was staged…. This isn’t
something that was said to this child to say. This is this child relaying the experience of
what happened to her to her grandmother.” Later in her closing argument, the prosecutor
asked the jurors to watch the video of the interview between A.M. and Ms. Colandreo and
11
suggested that they compare that disclosure “to the disclosure that you just watched,”
meaning the June video, “and to what [A.M.] told you when she came to court.”
In his closing argument, defense counsel first referred to the February and March
2015 videos, which he argued were part of C.M.’s plan to try to adopt A.M. by getting
A.M. to say negative things about Petitioner and Ms. Gross. Then, he discussed the June
video, which he called “the final production”:
Now comes June 27th, the video in which [A.M.], for the very first
time, … 2011, 2012, 2013, 2014, 2015, all in this period of time five years,
five and a half years, now suddenly out of the [blue] here is [A.M.] saying
he puts his penis in my mouth. Right then and there. Never one reference to
anybody, other than [C.M.] at that time….
And we do know that [C.M.] wanted [A.M.] back. We know that from
the videos, and we know that from the evidence. And if you look at the video
that the State played for you, we kind of adopt that video as our own to a
certain extent, because it comes in the middle of this enormously emotional
interchange between [C.M.] and [A.M.] We don’t know what was happening
before that period of time, what [C.M.] may have said to her.
You saw her resisting, pushing back, oh, don’t put my daddy in jail,
he loves me, he had the courage to adopt me. Well, who said anything about
jail? Where did the concept of jail come from? She didn’t make that comment
to Dr. Shukat. She didn’t make that comment to Britney Colandreo. What
was [C.M.] telling her? Just look at the dynamics how she’s shaking and
compare that demeanor in that video with what she says when she talks to
Britney Colandreo…. Now, we have this June 27th video orchestrated and
produced by [C.M.]
…. This didn’t come spontaneously. If that had a been a spontaneous
disclosure, [C.M.] would have picked up that phone, on June the 27th, and
said, police, get over here right now, because my granddaughter’s in
jeopardy. She didn’t do that. That’s not what the evidence shows happened.
Where does [C.M.] go? She goes to go in to get a protective order, not on
June the 27th, not on the 28th, not on the 29th, but on the 30th, three days
later. What happens in that intervening three days? We know one thing that
12
didn’t happen, she never told the commissioner that she had a videotaped
interview what [A.M.] purportedly told her.
(Some paragraph breaks omitted.)
Later in his argument, defense counsel returned to the June video, again contrasting
it with what A.M. told Ms. Colandreo on June 30, and also noting its similarities to what
A.M. told Dr. Shukat on July 8:
And many of the details that are contained in the June 27th video production
by [C.M.] are not said to Colandreo. There’s no talk about any ejaculation.
There’s no talk about anything going in the mouth. There’s no talk about any
gooey stuff. None of that is said. And compare her demeanor, compare how
she’s acting when Colandreo’s talking to her…. And it’s just a completely
different person. So, in my mind, I’m asking you to consider what was she
exposed to when [C.M.] was talking to her on June the 27th.
And then nine days later, [A.M.]’s statement to Shukat mimics what [A.M.]
said to [C.M.]. And there’s no record, no evidence about what happened in
those intervening nine days. Who did [A.M.] talk to? Where was she housed?
Did she talk to the police? Did somebody confront her with her statements?
Did somebody confront her with the video?
In her rebuttal argument, the prosecutor argued that the jury should believe A.M.’s
testimony that she told Ms. Gross that Petitioner made her perform oral sex on him. The
prosecutor asked rhetorically, why else would Petitioner never again have alone time with
A.M. and why else would Ms. Gross and Petitioner “reintroduce [C.M. and J.M.] back into
their daughter’s life to such an extreme extent if it wasn’t exactly true what [A.M.] had told
[Ms. Gross].” In the course of making this argument, the prosecutor said that family photos
the defense had introduced into evidence showed that A.M. loved Petitioner and “tell you
exactly why [A.M.] is telling the truth.” The prosecutor then added, “She loved him, and
13
if that raw, powerful heart-wrenching video doesn’t convince you of that fact, [the pictures]
are another reason[.]”
The jury convicted Petitioner of two counts of second-degree sexual offense based
on fellatio and one count of sexual abuse of a minor. The jury acquitted Petitioner of the
count charging him with second-degree sexual offense based on cunnilingus. The trial court
subsequently sentenced Petitioner to concurrent terms of 17 years in prison, with a
mandatory minimum of 15 years of imprisonment, for the two second-degree sexual
offense convictions. The trial court also sentenced Petitioner to a consecutive term of 10
years in prison, with all but five years suspended, for sexual abuse of a minor.
D. Appeal
Petitioner appealed his convictions and sentence to the Court of Special Appeals. In
an unreported opinion, the intermediate appellate court affirmed Petitioner’s convictions
but vacated his sentence. Gross v. State, No. 1413, Sept. Term, 2019, 2021 WL 1929292(Md. Ct. Spec. App. May 13, 2021).
The Court of Special Appeals first rejected Petitioner’s contention that the trial court
erred in admitting A.M.’s out-of-court statements to Ms. Colandreo and Dr. Shukat under
Maryland Code, Crim. Proc. (“CP”) (2001, 2018 Repl. Vol.) § 11-304.4 Id. at *4-*5. The
4
Under CP § 11-304, a trial court in a criminal case may admit an out-of-court
statement to prove the truth of the matter asserted in the statement made by a child under
the age of 13 who is the alleged victim of child abuse or certain sex offenses. The child
must have made the statement to a physician, psychologist, social worker, or another
enumerated professional acting lawfully in the course of the person’s profession. To be
admissible under § 11-304, the statement must not be admissible under any other hearsay
exception, and the child victim must testify at trial.
14
Court then held that the trial court erred in admitting the June video, but that the error was
harmless. Id. The Court agreed with Petitioner that the video contained hearsay evidence
that was not subject to the exception for a prior consistent statement under Maryland Rule
5-802.1(b)5: “Here, the defense’s theory at trial was that [C.M.] coerced [A.M.] into
making the accusations against [Petitioner] and that [A.M.]’s motive to fabricate had arisen
before [C.M.] made the June 2015 video. Because the charge of fabrication predated
[A.M.]’s statements in the June 2015 video, those statements were inadmissible as prior
consistent statements.” Id. at *5. In a footnote, the Court rejected the State’s alternative
argument that the June video was admissible as a “prompt complaint” of sexual assault
under Maryland Rule 5-802.1(d),6 stating that the Court was not persuaded that “statements
[A.M.] made to her Grandmother several months after the abuse ended qualify as prompt.”
Id. at *5 n.5.
However, the Court of Special Appeals concluded that the error was harmless
beyond a reasonable doubt. Id. at *6. The Court reasoned that, by the time the June video
was admitted in Petitioner’s trial,
[A.M.] had testified both on direct and cross that she told her Grandmother
that [Petitioner] had abused her. In fact, during her direct testimony, [A.M.]
stated specifically that she told her Grandmother that [Petitioner] wanted her
“to suck his man part.” When the June 2015 video was admitted, the jury had
5
Under Maryland Rule 5-802.1(b), a trial witness’s prior out-of-court statement is
not excluded as inadmissible hearsay if it “is consistent with the declarant’s testimony,
[and] if the statement is offered to rebut an express or implied charge against the declarant
of fabrication, or improper influence or motive.”
6
Maryland Rule 5-802.1(d) provides an exception to the hearsay rule for a
“statement that is one of prompt complaint of sexually assaultive behavior to which the
declarant was subjected if the statement is consistent with the declarant’s testimony.”
15
been exposed to the substance of the statements contained in the video.
Moreover, the point that the statements tended to prove – that [Petitioner]
made [A.M.] perform oral sex on him – was well-established by other
evidence presented at trial, most notably [A.M.]’s testimony, her statements
to Ms. Colandreo and Dr. Shukat, and the DNA evidence linking [Petitioner]
to the semen stain found near [A.M.]’s bed. The marginal cumulative impact
of admitting [A.M.]’s statements to her Grandmother in the June 2015 video
was negligible, and the error harmless.
Id.
The Court of Special Appeals also rejected Petitioner’s arguments based on alleged
errors in the voir dire process, id. at *8-*9, and on the trial court’s denial of his motion to
suppress evidence. Id. at *11-*12. However, the Court agreed with Petitioner’s claim of
error involving the two mandatory minimum sentences imposed for the second-degree
sexual offense convictions. Id. at *9. Accordingly, the Court vacated Petitioner’s sentences
and ordered a remand for resentencing. Id.
Petitioner sought further review in this Court, challenging the Court of Special
Appeals’ ruling that the admission of the June video was harmless beyond a reasonable
doubt. The State filed a conditional cross-petition concerning the intermediate appellate
court’s determination that the “prompt complaint” hearsay exception was inapplicable to
A.M.’s statements to C.M. in the June video. On September 13, 2021, we granted both
parties’ petitions. Gross v. State, 476 Md. 237 (2021).
16
Rephrased based on Petitioner’s briefing, the questions he asks us to resolve are:7
1. To meet its burden to show that an error was harmless beyond a
reasonable doubt, must the State establish that, in addition to the
erroneously admitted evidence, there was “other overwhelming
and largely uncontroverted evidence properly before the trier of
fact”?
2. When an out-of-court statement is erroneously admitted as a prior
consistent statement, should a court conducting harmless error
review consider whether the information contained in the prior
statement is cumulative of other properly admitted evidence?
3. Based on a review of the full trial record, including evidence
adduced by Petitioner in the defense case, was the admission of
the June video harmless beyond a reasonable doubt?
7
In his petition for certiorari, Petitioner asked us to decide:
I. Under Dorsey v. State, 276 Md. 638 (1976), did the Court of Special
Appeals err when it:
a. reviewed for harmless error and only analyzed the evidence put forth
by the state when the petitioner controverted the evidence at the trial
through multiple witnesses, including experts?
b. analyzed an improperly admitted prior consistent statement for its
cumulativeness since, although prior consistent statements are
cumulative, it is their consistency that is the very nature of the harm?
Petitioner also included a second question challenging the Court of Special Appeals’
determination that the trial court properly admitted the testimony of Ms. Colandreo and Dr.
Shukat under CP § 11-304. When we issued the writ of certiorari, we agreed to take up
that question as well as the questions concerning harmless error relating to the June video.
However, in his opening brief, Petitioner informed us that he was withdrawing his claim
of error concerning the admission of Ms. Colandreo’s and Dr. Shukat’s testimony. As such,
Petitioner has waived further review of that issue, and we assume for purposes of this
opinion that the trial court properly admitted Ms. Colandreo’s and Dr. Shukat’s testimony.
17
In its cross-petition, the State asks us to decide this question:
1. Did the Court of Special Appeals wrongly conclude the June 2015
video was not admissible under the prompt complaint exception to
the hearsay rule?[8]
II
Standard of Review
In his briefing, Petitioner asks us to reassess the standard for harmless error review
in Maryland criminal cases. What the correct standard for harmless error review should be
is a question of law that we review de novo. See, e.g., State v. Robertson, 463 Md. 342, 358
(2019).
When an appellate court considers the State’s argument that an error is harmless,
the court conducts “its own independent review of the record.” Dorsey v. State, 276 Md.
638, 659 (1976). Thus, we consider whether an error is harmless beyond a reasonable doubt
without deference to the Court of Special Appeals’ prior determination of that question.
III
Discussion
Petitioner argues that Maryland appellate courts have allowed the harmless error
standard to become, in essence, a toothless tiger. According to Petitioner, this Court has
long overlooked language in Younie v. State, 272 Md. 233 (1974), that makes the State’s
burden to prove harmlessness more difficult to meet. Petitioner asks us to recognize Younie
8
Because the State has not asked us to review the Court of Special Appeals’
determination that the June video did not qualify as a prior consistent statement under
Maryland Rule 5-802.1(b), we assume that it was error to admit the June video under that
hearsay exception.
18
as stating the standard for harmless error review in Maryland, and hold that the State must
establish that, in addition to the erroneously admitted evidence, there was other
overwhelming and largely uncontroverted evidence properly before the trier of fact.
Petitioner contends that without the heightened burden purportedly set forth in Younie,
harmless error review frequently leads appellate courts to usurp the jury’s role as the trier
of fact. Further, Petitioner asserts that the current regime of harmless error review
encourages prosecutors to knowingly seek the admission of inadmissible evidence because
they can be confident that any error in admitting the evidence will be deemed harmless on
appeal.
In addition, Petitioner argues that, in considering the harmfulness of evidence that
was erroneously admitted as a prior consistent statement, a reviewing court should not
deem the evidence’s cumulativeness to be a factor in favor of determining that the error
was harmless. According to Petitioner, it is the very cumulativeness of a prior consistent
statement that makes the erroneous admission of such a statement harmful.
Finally, Petitioner contends that the application of the correct standard for harmless
error review, including consideration of the evidence he offered to contradict the State’s
proof, compels the conclusion that the admission of the June video was not harmless
beyond a reasonable doubt.
The State, in contrast, argues that Dorsey has been and should remain the lodestar
for harmless error analysis in Maryland, and that Younie did not establish a different
standard than that which has been applied by Maryland appellate courts for almost 50 years
since this Court decided Dorsey. The State contends that cumulativeness is always a valid
19
consideration in harmless error analysis, and that in this case, A.M.’s statements in the June
video were cumulative of information the jury received several other times through
properly admitted evidence. The State concludes that, reviewing the trial record in full, the
admission of the June video was harmless beyond a reasonable doubt. We agree with the
State on all of these points.9
A. Dorsey Provides the Standard for Harmless Error Review in Maryland.
Petitioner argues that harmless error analysis in Maryland is, or should be, governed
by language in this Court’s 1974 decision in Younie v. State that, according to Petitioner,
imposes a higher burden on the State to prove harmlessness than this Court has required in
the half century that has since passed. We disagree. The standard this Court announced in
1976 in Dorsey remains the foundation of harmless error review in Maryland and is fully
consistent with Younie. We reaffirm the Dorsey standard today.
In Dorsey, this Court carefully considered, and formally adopted, the harmless-
beyond-a-reasonable-doubt standard for harmless error review in Maryland. The Court
derived this standard from the Supreme Court’s standard for harmless error review of
constitutional errors in Chapman v. California, 386 U.S. 18 (1967), as well as its own prior
cases, including the then-recent case of Younie v. State. See Dorsey, 276 Md. at 657-59.
Unlike the Supreme Court, this Court decided to apply the harmless-beyond-a-reasonable-
doubt standard to all trial errors, not just constitutional errors. See id. at 659.
9
Because we conclude that the admission of the June video was harmless beyond a
reasonable doubt, we do not reach the State’s alternative argument that the June video was
admissible as a prompt complaint of sexually assaultive behavior.
20
The Dorsey Court described the test it was adopting as follows:
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing
court, upon its own independent review of the record, is able to declare a
belief, beyond a reasonable doubt, that the error in no way influenced the
verdict, such error cannot be deemed harmless and a reversal is mandated.
Such reviewing court must thus be satisfied that there is no reasonable
possibility that evidence complained of – whether erroneously admitted or
excluded – may have contributed to the rendition of the guilty verdict.
Id. (quotations omitted).
Petitioner notes the Dorsey Court’s reference to Younie and calls attention to a
particular passage in Younie that he claims is part of, or should be added to, the Dorsey
standard for harmless error. Younie involved the erroneous admission of a pretrial
statement in which the defendant exercised his right under the Fifth Amendment not to
answer certain questions. 272 Md. at 236-38. After analyzing Chapman v. California and
other Supreme Court cases, the Court in Younie distilled from them the standard of
harmlessness review that applies to constitutional errors:
What is of importance, from an examination of the cases which discuss
harmless error, is the realization that if the error goes to a substantial
constitutional right (e.g. … right not to self-incriminate – fifth amendment)
then unless the State can prove beyond a reasonable doubt, as the prosecution
did in Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174, 22 L.Ed.2d 1(1972) (where an invalid confession accompanied three valid ones and other
substantial evidence of guilt), that a tainted confession in no way influenced
the verdict such that the defendant would undoubtedly have been found
guilty even if that evidence had not been received, its employment will
always be error. Conversely, if the State can show beyond a reasonable doubt
that the violation was technical in nature, as well as that the erroneously
admitted evidence was merely cumulative, and that there was other
overwhelming and largely uncontroverted evidence properly before the trier
of fact, then the error would be harmless.
21
Id. at 246-47 (emphasis adjusted). The passage we have italicized above contains the
language that Petitioner argues is, or should be, a required part of the State’s showing of
harmlessness.
We do not believe that the Younie Court intended the italicized language to describe
the State’s burden in every case where it seeks to establish that an error is harmless. After
stating the federal standard as described in Chapman and other cases, the Younie Court
went on to say that “if the state can show beyond a reasonable doubt that the violation was
technical in nature, as well as that the erroneously admitted evidence was merely
cumulative, and that there was other overwhelming and largely uncontroverted evidence
properly before the trier of fact, then the error would be harmless.” Id. (emphasis added).
The Court included this language to articulate and particularize some of the relevant
considerations that a reviewing court should take into account and to provide an example
in which an error would clearly be deemed harmless. As we read this passage in Younie,
the Court did not establish a series of necessary prerequisites to a finding of harmlessness
or an independent test that the State must meet in order to prevail.
In the part of the opinion in which the Court decided the case before it, the Younie
Court concluded that the “error committed ... was not harmless beyond a reasonable doubt”
because “the good evidence standing alone must be sufficient to convict” and the Court
was not “convinced beyond a reasonable doubt that the jury was in no way influenced by
the” erroneously admitted “bad” evidence. Id. at 248-49. The Court did not reference its
earlier example regarding “overwhelming and largely uncontroverted evidence.” That is,
the Court did not indicate that the State failed to show the error was harmless because it
22
did not establish that there was “overwhelming and largely uncontroverted evidence
properly before the trier of fact.”
In Dorsey, this Court cited Younie, including the language italicized above, in
describing the case. See Dorsey, 276 Md. at 655-56. But when it came time to state the
harmless error standard that would apply to all errors in Maryland, the Dorsey Court, while
again mentioning Younie, did not repeat the language from Younie that Petitioner deems
critical. See id. at 659. Rather, the Court held that “unless a reviewing court, upon its own
independent review of the record, is able to declare a belief, beyond a reasonable doubt,
that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and
a reversal is mandated.” Id. Putting it another way, the Court continued: “Such reviewing
court must thus be satisfied that there is no reasonable possibility that the evidence
complained of – whether erroneously admitted or excluded – may have contributed to the
rendition of the guilty verdict.” Id. It is telling that neither of these formulations included
the language from Younie that Petitioner highlights.
Also telling is the absence of that part of Younie from all Maryland appellate cases
that have described the harmless error standard ever since Dorsey was decided. This Court
and the Court of Special Appeals have repeatedly cited Dorsey and its formulations of the
harmless error standard. See, e.g., State v. Miller, 475 Md 263, 302 (2021) (holding that
there was “no reasonable possibility that [the error] may have contributed to the rendition
of the guilty verdict” and citing to Dorsey) (internal quotation marks omitted); Taylor v.
State, 473 Md. 205, 235, 238 (2021) (citing to Dorsey’s harmless error standard and
holding that the “record does not establish beyond a reasonable doubt that the erroneous
23
instruction had no influence on the verdict”); Paydar v. State, 243 Md. App. 441, 457-58
(2019) (citing Dorsey for the proposition that “[i]n a criminal case, an error by a trial court
is harmless only when a reviewing court is able to declare a belief, beyond a reasonable
doubt, that the error in no way influenced the verdict”) (quotations removed); Cox v. State,
51 Md. App. 271, 284 (1982) (citing to Dorsey extensively and concluding: “Applying the
clear dictates of the harmless error test established in this State, upon our own independent
review of the record we cannot declare a belief, beyond a reasonable doubt, that the error
here in no way influenced the verdict.”).10 While we have occasionally used additional
language to flesh out the Dorsey standard without changing its fundamental meaning, see,
e.g., Bellamy v. State, 403 Md. 308, 332-33 (2008) (“To say that an error did not contribute
to the verdict is … to find that error unimportant in relation to everything else the jury
considered on the issue in question, as revealed by the record.”) (internal quotation marks
and citations omitted), we have never cited Younie for the proposition that the State must
show that “other overwhelming and largely uncontroverted evidence” supports the guilty
verdict to meet its burden to establish harmlessness.
Nor do we perceive any reason to incorporate that language from Younie into the
standard for harmless error at this time. We disagree with Petitioner’s contention that the
Dorsey standard is not sufficiently rigorous. The cases are legion in which this Court and
the Court of Special Appeals, after applying the Dorsey standard, have held errors not to
be harmless beyond a reasonable doubt. See, e.g., Taylor, 473 Md. at 238; Williams v. State,
10
This Court and the Court of Special Appeals have cited Dorsey more than 800
times.
24
462 Md. 335, 354-59 (2019); State v. Simms, 420 Md. 705, 738-40 (2011); Dove v. State,
415 Md. 727, 750-52 (2010); Hutchinson v. State, 406 Md. 219, 227-29 (2008); Paydar,
243 Md. App. at 463-64; Cox, 51 Md. App. at 284. Prosecutors who convince trial courts
to admit what the prosecutors know to be inadmissible evidence, or to take some other
action that is likely to be found to be erroneous on appeal, do so at their peril. Retrials are
very likely to be part of their future.
That said, we take issue with Petitioner’s characterization of the State’s introduction
of the June video as “prosecutorial misconduct.” The State made its argument to the trial
court, which agreed that the June video was admissible. The Court of Special Appeals
disagreed. This is not an instance of a prosecutor withholding exculpatory evidence or
otherwise acting unethically. Given the time constraints under which trial judges must
make evidentiary rulings, those determinations are often very challenging, even for the
most experienced trial judges. Not surprisingly, then, such matters are often also unclear
to prosecutors and defense counsel. The inadmissibility of the June video, either as a prior
consistent statement or as a prompt complaint of sexually assaultive behavior, was far from
obvious.11
Prosecutors do not know for sure which pieces of evidence a jury will find
compelling and which items they will discount. And prosecutors (as well as trial judges)
lack a crystal ball that tells them what an appellate court subsequently will find to have
11
As noted above, we assume for purposes of the opinion that the June video was
not properly admissible as a prior consistent statement. We do not make any assumption
about its status as a “prompt complaint.”
25
been admitted erroneously. With the benefit of hindsight, it is tempting to say that a
prosecutor should have known that they had enough evidence to convict without
introducing a piece of evidence that they also should have known would be deemed
inadmissible by an appellate court. In the real world of trials, these matters are seldom
clear. The Dorsey standard safeguards a defendant’s right to a fair trial – not a perfect trial12
– while at the same time allowing prosecutors appropriate leeway to make legitimate
arguments.
We also reject Petitioner’s argument that we must embrace the Younie language to
ensure that Maryland appellate courts do not usurp the role of the jury. According to
Petitioner, “[i]t is impossible to recreate the atmosphere of a trial at the appellate level.
Appellate judges, nor appellate lawyers, can compare their knowledge to that of the
commonsense experience of twelve members of the community.” To be sure, reading the
cold record of a trial through its transcripts does not replicate the jury’s experience in seeing
and hearing the witnesses live. For this reason, we do not make credibility determinations
when conducting harmless error analysis or any other form of appellate review. However,
we do not need to make credibility determinations to decide whether a defendant received
a fair trial. Appellate courts around the country conduct harmless error analyses every day,
applying the same standard that we use under Dorsey. Contrary to Petitioner’s claim,
application of this standard does not “invade[] … an accused’s right to a trial by a jury.”
12
See Dorsey, 276 Md. at 647 (noting that “it is firmly established that an accused
has a constitutional right to a fair trial but not necessarily to that seldom experienced rarity,
a perfect trial”) (cleaned up).
26
In 2008, this Court stated that Dorsey’s standard for harmless error “remains
unchanged today.” Hutchinson, 406 Md. at 227. We reaffirm the Dorsey standard once
again today and reiterate that, in order to establish that an error was harmless, the State
must show beyond a reasonable doubt that the “evidence admitted in error in no way
influenced the verdict.” Dorsey, 276 Md. at 659. No more, no less.13
B. Evidentiary Cumulativeness Is a Relevant Factor in Harmless Error Analysis.
The cumulative nature of erroneously admitted evidence has long been recognized
as an important factor in considering whether, beyond a reasonable doubt, the trial error at
issue in no way influenced the verdict. Indeed, in Dorsey, this Court described several post-
Chapman Supreme Court harmless error cases as recognizing cumulativeness as one of
two bases for concluding that an error was harmless beyond a reasonable doubt:
In Harrington v. California, 395 U.S. 250 (1969), Schneble v. Florida,
405 U.S. 427 (1972), Milton v. Wainwright, 407 U.S. 371 (1972) and Brown
v. United States, 411 U.S. 223 (1973), the Supreme Court invoked the
Chapman test in finding “harmless error.” In each of these cases, that Court,
upon an independent review of the record, found the properly admitted
evidence to have been “so overwhelming,” and the prejudicial effect of the
erroneously admitted evidence so insignificant by comparison, or to have
been cumulative, that it was able to conclude, beyond a reasonable doubt,
that the erroneously admitted evidence – even though of constitutional
import – constituted “harmless error.”
13
Petitioner points us to no other jurisdictions that have made the State’s burden on
harmless error review more onerous than Dorsey currently requires. Our own research
reveals that Maryland is not an outlier in maintaining this standard of harmless error
review. Rather, the Chapman standard (which is equivalent to the Dorsey standard) is
seemingly the standard around the country with respect to constitutional errors. See Daniel
Epps, Harmless Errors and Substantial Rights, 131 HARV. L. REV. 2117, 2133-42 (2018).
Maryland has gone farther than the federal courts by applying the beyond-a-reasonable-
doubt standard to non-constitutional errors. We decline to make Maryland an outlier by
adopting an even more rigorous standard for harmless error review.
27
Dorsey, 276 Md. at 649 (emphasis added). In Dorsey itself, the Court held that the trial
court’s error in allowing a detective to testify to his record in obtaining convictions
following arrests was not harmless, among other reasons, because it “was certainly not
cumulative.” 276 Md. at 659 (internal quotation marks and citations omitted).
Since Dorsey was decided, cumulativeness has remained an important analytical
consideration in this Court’s harmless error analysis. See, e.g., Dove, 415 Md. at 743-44(noting that “[i]n considering whether an error was harmless, we also consider whether the
evidence presented in error was cumulative evidence.... [C]umulative evidence tends to
prove the same point as other evidence presented during the trial or sentencing hearing. For
example, witness testimony is cumulative when it repeats the testimony of other
witnesses[.]”); see also Simms, 420 Md. at 739-40; Morris v. State, 418 Md. 194, 221-22
(2011); Yates v. State, 429 Md. 112, 119-124 (2012); Hutchinson, 406 Md. at 227-28.
In Hutchinson, a rape prosecution, a nurse gave an expert opinion about the
complaining witness’s injuries; the State had failed to provide the required discovery
concerning such expert testimony to the defense. 406 Md. at 225. This Court held that the
error in admitting the expert testimony was not harmless because it was “not merely
cumulative” as argued by the State. Id. at 227-28. As the nurse was the only examiner of
the victim’s injuries and was the only witness who testified that the victim’s injuries were
consistent with forced intercourse, we concluded that “[the nurse’s] testimony may well
have been given significant weight” by the jury. Id.In Dove, we held that information regarding the defendant that was only available
on an inadmissible fingerprint card (his weight, height, and other identifying
28
characteristics, as well as direct linkage to a prior conviction) was not cumulative, as much
of this information was not present in any other properly admitted evidence. 415 Md. at
749-51. We also recognized that, in its sentencing of the defendant, the trial court explicitly
stated that it had relied on the fingerprint card. Id. at 749-50. Because the court explicitly
relied on this erroneously admitted, prejudicial, and non-cumulative evidence, the error
was not harmless beyond a reasonable doubt. Id. at 749-51.
In Simms, the Court also considered whether the cumulative nature of erroneous
evidence can contribute to a finding that the error was harmless. 420 Md. at 739-40. In that
case, the evidence admitted in error was an alibi notice. The defendant ultimately chose
not to pursue an alibi defense. Id. at 738. The State used this alibi notice to build inferences
of circumstantial “consciousness of guilt.” Id. at 739. While the State presented additional
and separate evidence contributing to the overall inference of consciousness of guilt, the
Court reasoned that the alibi notice was non-cumulative and presented unique information
in the trial. Id. at 739-40. As such, its admission constituted harmful, reversible error. Id.
at 740 (“In this case, we cannot say that the alibi notice was sufficiently cumulative so as
to not impact the jury.”).
In Morris, this Court again employed Dove’s articulation of an error’s cumulative
nature as an important consideration in the Court’s overarching harmfulness analysis. 418
Md. at 221-22. In that case, the evidence at issue was a taped statement by a co-defendant
that violated the defendant’s right to confrontation. However, part of the statement was
cumulative, as it was duplicative of testimony offered by officers who also testified. Id. at
222. That being the case, we “consider[ed] it no further in our harm analysis.” Id. We cited
29
Dove for the proposition that “‘cumulative evidence,’ which ‘tends to prove the same point
as other evidence presented during the trial or sentencing hearing,’ may render harmless
otherwise reversible error.” Id. (quoting Dove, 415 Md. at 743-44).
However, we determined that the other, non-cumulative information in the
erroneously admitted statement was harmful because it was potentially misleading as to
the defendant’s whereabouts at the time of the crime. Id. at 223. Where the case hinged on
a defendant’s “unwitting participant” defense, the non-cumulative, erroneously admitted
evidence regarding the defendant’s location likely affected the jury verdict. Id. Therefore,
we could not find the error to be harmless. Id. at 223-24.
In Yates, a felony-murder case, the defendant (Yates) allegedly chased and shot at a
man (Kohler) who had tried to cheat him in a drug deal. 429 Md. at 117. The bullet struck
and fatally wounded an innocent bystander. Id. Yates and Kohler were tried together for
their roles in the drug transaction and shooting. Id. Two of Yates’s associates (Jagd and
Griffin) testified that they saw Yates fire the weapon and that Yates admitted to them that
he fired at Kohler, but said that he was not sure if had hit Kohler or anyone else. See id. In
addition, a detective testified (over Yates’s objection) that Jagd said in a pretrial statement
that Yates had told Jagd he had “popped that n---a,” meaning Kohler. See id. at 117-18.
The State conceded that the double hearsay statement that was elicited through the
detective should not have been admitted. See id. at 119 & n.1. However, this Court held
that the error in admitting this testimony was harmless beyond a reasonable doubt because
the detective’s testimony was cumulative of the trial testimony of Jagd and Griffin. Id. at
122-23. In this regard, we rejected Yates’s argument that the detective’s testimony was
30
harmful because the associates’ testimony was “not of the same quality as the statement
relayed by [the detective].” Id. at 122-23. Yates claimed that “his supposed admission to
Jagd that he ‘popped that [n---a]’ was ‘far more powerful’ than the other statements
admitted at trial because the statement was callous and made it seem as if [Yates] had
‘coolly bragged’ about the crime.” Id.
We rejected Yates’s contention that “it is not merely the content but also the manner
in which that content is delivered that matters to whether the evidence is cumulative.” Id.
at 122-23. Thus, it was immaterial to the Court’s analysis that a “boastful, unambiguous
statement that [Yates] ‘popped’ someone … would have more of an impact on the jury than
[Yates’s] statements that he was unsure if he hit anyone.” See id. at 123. As we explained:
The substance of [the detective’s] statement is that [Yates] told Jagd that he
fired a gun and shot someone. Jagd separately testified that [Yates] said “I
don’t know if I got him” or “I think I got him,” even while he denied (to some
extent) making the provocative statement to [the detective]. In addition, Jagd
testified that he saw [Yates] run out of the house with a gun and saw [Yates]
discharge it. Griffin testified similarly that [Yates] fired the gun and said to
Griffin that he, [Yates], was not sure if he hit anyone. These statements,
although using different words, reach the same conclusion: that [Yates] fired
a gun shortly after chasing Kohler out of the house.
[Yates] places too great an emphasis on the fact that the challenged hearsay
statement came through [the detective]. It is conceivable that the jury found
[the detective] more credible than Jagd and concluded that [the detective]
correctly recalled what Jagd had said. But in order to convict [Yates], the
jury would have had to believe not only that [the detective] was correct in
remembering Jagd’s statement to him, but that Jagd himself was credible in
relating to the detective what [Yates] told him. For the jury to believe that
the statement was credible it would need to believe both [the detective] and
Jagd. Ultimately, though, the jury would had to have focused on the
credibility of Jagd and Griffin in connection with their statements implicating
[Yates]. There were three such statements: two from Jagd (one relayed
through [the detective]) and one from Griffin. Jagd testified that [Yates] ran
out of the house with a gun and fired in the direction of Kohler. Both Jagd
31
and Griffin testified that [Yates] admitted that he fired his gun and thought
he hit something or was unsure if he hit something…. [T]his testimony
establishes the “essential contents” of the hearsay from Jagd that [the
detective] repeated to the jury.
Id. at 123-24 (citation omitted). We concluded that “the admission of the hearsay evidence
did not ultimately affect the jury’s verdict given the cumulative nature of the similar
statements offered at trial.” Id. at 124.
We perceive no reason why the cumulativeness of a prior statement would be
irrelevant to the harmlessness analysis when the statement was admitted erroneously as a
prior consistent statement. The point of the harmless error inquiry is to determine whether
the erroneously admitted evidence could have influenced the verdict. In some instances, a
reviewing court will not be able to rule out the possibility that hearsay erroneously admitted
as a prior consistent statement influenced the verdict. See, e.g., Thomas v. State, 429 Md.
85, 111 (2012) (erroneous admission of trial witness’s prior statement to police as a prior
consistent statement was not harmless where the “State’s case depend[ed] virtually
exclusively on the credibility of [the] witness”) (internal quotation marks and citations
omitted); Newman v. State, 65 Md. App. 85, 97-98 (1985) (statement of complainant to her
mother’s friend was erroneously admitted as a prior consistent statement; Court of Special
Appeals held the error was not harmless because portions of the statement were not merely
cumulative of the complainant’s trial testimony, but also included allegations of other
uncharged criminal acts and of the defendant’s bad character; in addition, because the case
depended “exclusively on the victim’s credibility,” the statement to the friend’s mother
bolstered the complainant’s testimony and was not harmless); see also Muhammad v. State,
32
223 Md. App. 255, 272-73 (2015); McCray v. State, 122 Md. App. 598, 610-11 (1998). In
other instances, a reviewing court will be able to conclude beyond a reasonable doubt that
the information contained in the erroneously admitted statement did not influence the
verdict because the jury heard the same information from multiple other sources. As
discussed below, that was the case here.
C. The Admission of the June Video Was Harmless Beyond a Reasonable Doubt.
Based on our review of the full trial record,14 we conclude beyond a reasonable
doubt that the admission of the June video was harmless. We have no doubt that, had the
trial court excluded the June video, the verdict would have been the same.
We reach this conclusion because, with respect to the allegations that Petitioner
made A.M. perform oral sex on him, the substance of A.M.’s statements to C.M. in the
June video is materially indistinguishable from the evidence the jury heard from other
sources and that Petitioner does not challenge before us. First, the jury heard A.M.’s live
testimony in which she described how, during her kindergarten and first grade years,
Petitioner asked her “to put [her] mouth on his man part ... and suck it”; that “white goo”
would come out of Petitioner’s “man part”; and that these sex acts occurred while she was
in her bed following bedtime prayers.
Second, the jury heard from C.M. that, prior to recording A.M. on June 27, 2015,
A.M. told C.M. that “my daddy gets something from his boxer and he make me massage
first that and … he make her … put his thing in her mouth” and “she say that … he finish
14
We agree with Petitioner that harmless error analysis requires the reviewing court
to consider the full trial record, including evidence adduced in the defense case.
33
in her mouth and … that the only thing that I don’t like is that something sticky or gooey
come from his part. But she say, that’s okay, … he just go to the bathroom and clean
himself with paper towel, with paper[.]”15
Third, the State introduced the video recording of Ms. Colandreo’s interview of
A.M. on June 30, 2015, in which A.M. stated that she sucked Petitioner’s “nuts” when he
was putting her to bed in her bedroom. She told Ms. Colandreo that this happened “maybe
20” times, and that the last time was in the winter of her first-grade year. A.M. also told
Ms. Colandreo that Petitioner did not “tell the truth” about what had happened when
Petitioner, Ms. Gross, and A.M. talked about it, which also mirrored A.M.’s testimony at
trial.
Fourth, Dr. Shukat recounted her interview of A.M. on July 8, 2015, in which A.M.
told Dr. Shukat that “she and her father make deals. And the deals [are] that if, and using
her language, if she sucks her father’s nuts she’ll be able to stay up, and I assume that
means stay up later, and watch television.” Dr. Shukat explained that A.M. “described that
as oral sex and gooey stuff coming out of his nuts. And one time she said it went in her
15
When the State began questioning C.M. about her pre-video conversation with
A.M., Petitioner’s counsel objected on the grounds that A.M.’s statements were not
“spontaneous” or “prompt.” The trial court overruled the objection. As stated above,
Petitioner does not challenge the admission of C.M.’s testimony about A.M.’s pre-video
statements in this appeal.
34
mouth.” A.M. told Dr. Shukat that “the gooey stuff went either into toilet paper or a paper
towel.” A.M. also told Dr. Shukat that the abuse began in kindergarten.16
Thus, separate and apart from the June video, the jury heard several times over that
A.M. performed oral sex repeatedly on Petitioner during her kindergarten and first-grade
years. A.M.’s statements to C.M. in the June video describing the oral sex were cumulative
of all of this evidence that Petitioner does not challenge before us.
In addition, the DNA evidence introduced at trial was devastating to Petitioner. He
conceded that he was the source of the semen found on the carpet next to A.M.’s bed. The
presence of one spot of seminal fluid on the carpet corroborated A.M.’s live testimony and
her earlier statements to Ms. Colandreo and Dr. Shukat. The jury easily could infer that, on
one occasion, Petitioner failed to ensure that his ejaculate went completely “either into
toilet paper or a paper towel.” It is not surprising that the jury rejected Dr. Reich’s
transference theory, given that there were no other fluorescing spots discovered in A.M.’s
bedroom.
This case, thus, differs from Thomas, Newman, and other cases in which a trial court
erroneously admitted an out-of-court statement as a prior consistent statement when the
entire case hinged on the credibility of a witness’s trial testimony. In those cases, the
erroneously admitted statement provided the only corroboration of the witness’s live
testimony. See, e.g., Thomas, 429 Md. at 111; Newman, 65 Md. App. at 97-98. Here, in
16
As discussed above, Petitioner objected at trial to the admission of A.M.’s
statements to Ms. Colandreo and Dr. Shukat, and maintained that position in the Court of
Special Appeals. However, Petitioner abandoned that claim of error before us.
35
addition to the June video, the State introduced the two other prior statements that A.M.
made to Ms. Colandreo and Dr. Shukat, as well as the DNA evidence, all of which
corroborated A.M.’s trial testimony. It is true that the June video differed from the video
of Ms. Colandreo’s interview in that A.M. cried throughout the former and was composed
during the latter. However, as this Court explained in Yates, 429 Md. at 122-24, it is the
substance of the erroneously admitted statement, not its different manner of delivery
compared with the properly admitted evidence, that matters in the cumulativeness
analysis.17
Also relevant is the defense’s affirmative use of the June video. The June video
provided a tangible reference point for the defense to use in suggesting to the jury that C.M.
manipulated A.M. into making false allegations against Petitioner. Indeed, defense counsel
told the jury during his closing argument that “we kind of adopt that video as our own to a
certain extent, because it comes in the middle of this enormously emotional interchange
between [C.M.] and [A.M.].” The video allowed defense counsel to show C.M. directing
the conversation with A.M. as C.M. saw fit. Using the testimony of Petitioner’s expert, Dr.
Hagan, defense counsel walked the jury through the pre-June videos, which the defense
17
In his Reply Brief, Petitioner inaccurately states: “The direct testimony of A.M.
was on April 2, [Dr.] Shukat’s testimony about what A.M. told her was on April 9, and
finally, the June 2015 video evidence was introduced on April 10.” The June video was
introduced during C.M.’s direct examination on April 2, 2019, shortly after A.M.
concluded her testimony that day. That was before the jury saw the video recording of Ms.
Colandreo’s interview of A.M. and before Dr. Shukat testified about her interview of A.M.
Thus, Petitioner is incorrect when he claims that, until the June video was played, “the jury
only had heard the relatively dry trial testimony of A.M. followed by what a bunch of other
people said A.M. said.”
36
claimed C.M. made to facilitate adopting A.M., and then discussed the June video at length,
calling it “the final production.”
Defense counsel also used the date of the June video – June 27, 2015 – as a reference
point by which the jury should assess the events that came afterwards:
You saw [A.M.] resisting, pushing back, oh, don’t put my daddy in
jail, he loves me, he had the courage to adopt me. Well, who said anything
about jail? Where did the concept of jail come from? She didn’t make that
comment to Dr. Shukat. She didn’t make that comment to Britney Colandreo.
What was [C.M.] telling her? Just look at the dynamics how she’s shaking
and compare that demeanor in that video with what she says when she talks
to Britney Colandreo…. Now, we have this June 27th video orchestrated and
produced by [C.M.]
…. This didn’t come spontaneously. If that had a been a spontaneous
disclosure, [C.M.] would have picked up that phone, on June the 27th, and
said, police, get over here right now, because my granddaughter’s in
jeopardy. She didn’t do that. That’s not what the evidence shows happened.
Where does [C.M.] go? She goes to go in to get a protective order, not on
June the 27th, not on the 28th, not on the 29th, but on the 30th, three days
later. What happens in that intervening three days? We know one thing that
didn’t happen, she never told the commissioner that she had a videotaped
interview what [A.M.] purportedly told her.
(Some paragraph breaks omitted.)
Later in his argument, defense counsel returned to the June video, again contrasting
it with what A.M. told Ms. Colandreo on June 30, and also noting its similarities to what
A.M. told Dr. Shukat on July 8:
And many of the details that are contained in the June 27th video production
by [C.M.] are not said to Colandreo. There’s no talk about any ejaculation.
There’s no talk about anything going in the mouth. There’s no talk about any
gooey stuff. None of that is said. And compare her demeanor, compare how
she’s acting when Colandreo’s talking to her…. And it’s just a completely
different person. So, in my mind, I’m asking you to consider what was she
exposed to when [C.M.] was talking to her on June the 27th.
37
And then nine days later, [A.M.]’s statement to Shukat mimics what [A.M.]
said to [C.M.]. And there’s no record, no evidence about what happened in
those intervening nine days. Who did [A.M.] talk to? Where was she housed?
Did she talk to the police? Did somebody confront her with her statements?
Did somebody confront her with the video?
Before us, Petitioner argues that the June video was “inflammatory,” “highly
charged hearsay, an emotional interview of the minor child by her grandmother,” which
“critically affected the fairness of the trial.” There is no doubt that the June video captured
A.M. in a very distraught state. However, we find it telling that, at trial, the defense objected
to the admission of the June video only on hearsay grounds. Defense counsel did not argue,
under Maryland Rule 5-403, that the June video should be excluded because the probative
value of this cumulative evidence was substantially outweighed by the danger of unfair
prejudice.
We acknowledge that the State replayed the June video in its closing argument and
alluded to the June video again in its rebuttal argument. However, we have no doubt that,
if the State had omitted all mention of the June video from its arguments (and the trial as a
whole), the verdict would have been the same, given the other sources of the same
information that the State also referenced.
Finally, the jury’s acquittal of Petitioner on the sexual offense count based on the
allegation of cunnilingus is significant. In the June video (and in her interview with Dr.
Shukat), A.M. stated that Petitioner engaged in cunnilingus. In her interview with Ms.
Colandreo, A.M. did not mention cunnilingus. And, at trial, A.M. answered “No” when
asked if Petitioner “ever [did] anything with his mouth on your body.” The jury’s acquittal
of Petitioner on the charge based on cunnilingus reflects that the jury did its job
38
dispassionately and was not swayed by the emotional nature of the June video. The jury
considered and rejected Petitioner’s theory that C.M. pressured A.M. into falsely accusing
Petitioner of sexual abuse in 2015, and that A.M. persisted in advancing such false claims
at trial almost four years later. There is no reason to believe that, without the June video,
the jury would have been any more receptive to the defense’s theory. Indeed, without the
June video, which showed that C.M. was able to evoke an emotional response from A.M.,
we believe the defense’s theory would have gained less traction with the jury than it did
with the June video in evidence.
In sum, our review of the full trial record convinces us beyond a reasonable doubt
that the admission of the June video was “unimportant in relation to everything else the
jury considered on the issue in question.” Bellamy, 403 Md. at 332-33 (internal quotation
marks and citations omitted). In other words, the June video did not contribute to the
verdict. Its admission was harmless beyond a reasonable doubt.
IV
Conclusion
We reaffirm the analysis articulated in Dorsey as the standard for harmless error
review in Maryland. In order for an error to be deemed harmless, the reviewing court must
be convinced, beyond a reasonable doubt, that the error in no way influenced the verdict.
Our review of the full trial record of this case convinces us beyond a reasonable doubt that
the admission of the June 2015 video was harmless. It was cumulative of evidence that the
jury heard from several other sources. In addition, the State introduced DNA evidence that
39
connected Petitioner to the crimes. Accordingly, we affirm the judgment of the Court of
Special Appeals.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED. COSTS
TO BE PAID BY PETITIONER.
40
Circuit Court for Montgomery County
Case No.: 128021C
Argued: February 7, 2022
IN THE COURT OF APPEALS
OF MARYLAND
No. 32
September Term, 2021
DANIEL JAY GROSS
v.
STATE OF MARYLAND
*Getty, C.J.
*McDonald
Watts
Hotten
Booth
Biran
Gould,
JJ.
Dissenting Opinion by Gould, J., which
McDonald, J., joins.
Filed: August 26, 2022
*Getty, C.J. and McDonald, J., now Senior
Judges, participated in the hearing and
conference of this case while active members of
this Court. After being recalled pursuant to
Maryland Constitution, Art. IV, Section 3A, they
also participated in the decision and adoption of
this opinion.
Although I agree with the Majority’s reaffirmation of Dorsey v. State, I respectfully
dissent from the Majority’s holding that the admission of the June video constituted
harmless error.
As the Majority notes, this Court articulated the harmless error standard as follows:
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing
court, upon its own independent review of the record, is able to declare a
belief, beyond a reasonable doubt, that the error in no way influenced the
verdict, such error cannot be deemed harmless and a reversal is mandated.
Such reviewing court must thus be satisfied that there is no reasonable
possibility that evidence complained of – whether erroneously admitted or
excluded – may have contributed to the rendition of the guilty verdict.
Dorsey, 276 Md. 638, 659 (1976) (quotations omitted). Although the Majority reaffirms
this standard in its opinion, it applies a different one - one that puts this Court in the position
of speculating how the jury would have decided this case if the June video had not been
admitted. Gross v. State, No. 32, Sept. Term 2021, slip op. at 33 (Md. Aug. __, 2022)
(“We have no doubt that, had the trial court excluded the June video, the verdict would
have been the same.”); at 39 (“There is no reason to believe that, without the June video,
the jury would have been any more receptive to the defense’s theory. Indeed, without the
June video, which showed that C.M. was able to evoke an emotional response from A.M.,
we believe the defense’s theory would have gained less traction with the jury than it did
with the June video in evidence.”).
Whether the jury would have reached the same verdict without the June video in
evidence is not the test. As the Supreme Court stated in Sullivan v. Louisiana,
The inquiry, in other words, is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was surely unattributable to the
error. That must be so, because to hypothesize a guilty verdict that was never
in fact rendered—no matter how inescapable the findings to support that
verdict might be—would violate the jury-trial guarantee.
508 U.S. 275, 279 (1993).
Having pocketed the conviction, it is easy and risk-free for the State to now insist
that the video did not contribute to the guilty verdict. But let’s look at it from the State’s
perspective once the evidence was closed, just before closing arguments. The State had to
assess the strength of the evidence in the same way, and on the exact same information, as
we do here, albeit without the benefit of hindsight. The State had to make judgment calls
about what to argue and which evidence to emphasize. The State knew that the video’s
admissibility was vigorously contested, and that the issue would likely be revisited on
appeal. The State had to have known, therefore, that the more it emphasized the video, the
greater the chance a resulting conviction could be reversed on appeal if the appellate courts
concluded that the video was inadmissible.
With all that information, the State evidently concluded that the risk of reversal was
outweighed by the value the jury would likely attach to the video. And the State went all
in, arguing at closing:
The Defense wants you to believe that this videotaped disclosure by [C.M.
and J.M.] was rehearsed, or staged, or whatever word you want to put there.
I would submit to you that those disclosures are powerful, and they are heart-
wrenching, and they’re very different from the other videos that were
admitted into evidence. And I encourage you to watch all of them, but I
would like to show you the disclosure again.
And then after playing the video, the State continued in its closing: “The Defense
wants you to believe that that was staged . . . . This isn’t something that was said to this
2
child to say. This is this child relaying the experience of what happened to her to her
grandmother.” And then in rebuttal, the State returned to the video, this time arguing that
the video and other pictures show that A.M. loved the petitioner: “She loved him, and if
that raw, powerful heart-wrenching video doesn’t convince you of that fact, [the pictures]
are another reason[.]”
Thus, when the State did not have the benefit of hindsight and had to choose between
emphasizing or omitting the June video in its closing, the State was not willing to risk an
acquittal by doing the latter. Clearly, the State hoped and intended that the video would
contribute to a guilty verdict even though there was other evidence on which the jury could
have convicted Mr. Gross. Because I cannot fathom that the video did not have such an
effect on at least one juror, I respectfully dissent.
Judge McDonald has authorized me to represent that he joins this dissent.
3