Campbell v. State

Sebastian Albert Campbell v. State of Maryland, No. 156, Sept. Term, 2018. Opinion filed
on December 18, 2019, by Berger, J.
CRIMINAL LAW – TRIAL – COURSE AND CONDUCT OF TRIAL IN GENERAL –
COURTROOM SECURITY
Trial court did not abuse its discretion or violate appellant’s constitutional rights when,
during certain portions of trial, the court permitted courtroom security personnel to be
positioned near appellant, who, in addition to representing himself, was in custody. The
trial court duly recognized that appellant, as his own attorney, may need to move around
the courtroom during trial but that, as a prisoner, he was subject to certain protocols that
the sheriff’s deputies generally followed in those situations. In addition, the trial court
made assurances that the deputies would not be “disruptive;” that they would act in the
“least invasive way;” that they would “quietly move behind [appellant];” and that there
would be “no reference whatsoever to the fact that [appellant] was in custody.”
CONSTITUTIONAL LAW – DUE PROCESS – CRIMINAL LAW –
DISADVANTAGED PERSONS – INDIGENCY – EXPERT ASSISTANCE
Trial court did not violate appellant’s constitutional rights in ruling that he was not entitled
to funding from the Office of the Public Defender (“O.P.D.”) to pay for an expert witness.
Appellant could have obtained a state-funded expert witness had he accepted representation
by O.P.D., but he chose to reject that service and represent himself.
CRIMINAL LAW – REVIEW – PRESENTATION AND RESERVATION IN LOWER
COURT OF GROUNDS OF REVIEW
Appellant’s claim that the trial court erred in its handling of his request to have evidence
shown to the jury was either unpreserved or affirmatively waived because appellant failed
to lodge an appropriate and timely objection to the court’s actions.
CRIMINAL LAW – EVIDENCE – HEARSAY/FACTS IN ISSUE AND RELEVANCE
Trial court did not err in excluding the victim’s out-of-court statement that her step-father
had abused her. The statement was not admissible as a prior inconsistent statement under
the hearsay exception outlined in Maryland Rule 5-802.1(a)(2) because the statement was
not inconsistent with the victim’s trial testimony. The statement was also irrelevant.
CRIMINAL LAW – TRIAL – JURY INSTRUCTIONS
Trial court did not commit plain error in instructing the jury that evidence included
“testimony from the witness stand” where appellant had given part of his testimony from
the trial table. Not only was the given instruction identical to the Maryland pattern jury
instruction, but appellant affirmatively waived his objection to the instruction when, during
the parties’ discussion of proposed jury instructions, he expressly stated that he had no
objection to the court giving the pattern instruction as written.
Circuit Court for Montgomery County
Case No. 131730
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 156
September Term, 2018
SEBASTIAN ALBERT CAMPBELL
v.
STATE OF MARYLAND
Berger,
Leahy,
Shaw Geter,
JJ.
Opinion by Berger, J.
Filed: December 18, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-12-18 13:44-05:00
Suzanne C. Johnson, Clerk
A jury, in the Circuit Court for Montgomery County, convicted Sebastian Campbell,
appellant, of two counts of sex abuse of a minor and four counts of second-degree rape.
The Court sentenced appellant to a total term of 130 years’ imprisonment. In this appeal,
appellant presents several questions for our review, which we have rephrased and
renumbered for clarity. They are as follows:
1. Whether the trial court abused its discretion in permitting
courtroom security personnel to be positioned near
appellant during certain portions of his trial.
2. Whether the trial court violated appellant’s constitutional
rights in ruling that appellant, who was representing
himself at trial, was not entitled to funding from the Office
of the Public Defender to pay for an expert witness.
3. With respect to two recorded statements made by the
victim, whether the trial court erred in requiring appellant
to prove the admissibility of the two recordings before
agreeing to provide him with audio/visual equipment to
play the recordings for the jury; in refusing to allow him to
play one of the recordings in its entirety for the jury; and in
giving the jury the option of reviewing the other recording
during deliberations rather than publishing that recording
during the evidentiary portion of trial.
4. Whether the trial court erred in restricting appellant’s cross-
examination of the victim regarding a letter the victim had
written in which she claimed that another individual had
molested her.
5. Whether the trial court erred in restricting appellant’s cross-
examination of the victim regarding the victim’s past
sexual conduct.
6. Whether the trial court erred in instructing the jury that
evidence included “testimony from the witness stand”
where appellant had testified from the lawyer’s table and
not the witness stand.
For reasons to follow, we hold that several of the issues raised by appellant were
not preserved for our review. As to the issues that were preserved, we hold that the trial
court did not err. Accordingly, we affirm the judgments of the circuit court.
BACKGROUND
Appellant was arrested and charged after it was alleged that he had sexually abused
his daughter (the “victim”). At trial, the victim testified that, in February of 2012, when
she was 11-years-old and living with her mother in Michigan, she came to Maryland to live
with appellant at his Rockville apartment. Approximately one month later, while the victim
was asleep on the couch at his apartment, appellant pulled the victim’s pants down and had
vaginal intercourse with her against her will. In the months that followed, appellant
engaged in non-consensual sexual intercourse with the victim “at least twice a week.” At
some point, the victim became pregnant with appellant’s child, and, in August of 2013, the
victim gave birth. Additional facts will be supplied below.
DISCUSSION
I.
Appellant’s first claim of error concerns the trial court’s handling of courtroom
security. At the start of trial, but prior to jury selection, the court discussed several
procedural matters with the State and appellant, who at the time was representing himself.
During that discussion, the court addressed appellant regarding courtroom security:
THE COURT: The next issue Mr. Campbell that I want to take
up now so that we are all clear how that’s going to be handled
2
is you are in custody so each time you come up to the bench,
and we’re in this Courtroom to pick the jury, we’re going to be
going back to my Courtroom for the trial but each time you
come up to the bench, there is going to be a deputy standing
behind you so I want you to know that. They will take great
effort to make sure that it’s not in any disruptive fashion but
that is sheriff’s protocol and they’re going to follow [their]
protocol. When it comes to the time of the trial, as you know,
there will be witnesses or a witness will be called one at a time
by the State as the moving party, the witness will be in the
witness stand and they will have the ability to ask questions,
show exhibits and conduct themselves in that fashion and will
be moving around the Courtroom. You have two options Mr.
Campbell with regard to your positioning is the term I’m going
to use during any examination of a witness, whether it’s in
cross examination or if you choose to call any witnesses of
your own. You can number one, you can stay seated and then
the deputies will stay seated, that’s option one. Option two is
you can approach a witness if you would like with the
knowledge and understanding that there will be a deputy next
to you at all times. Again in the same least [] invasive way
they have but that is a security issue, so it’s one or the other.
So which way would you prefer to handle –
[APPELLANT]: Oh, I don’t mind the deputies, they can –
THE COURT: Okay, so I want to be sure we’re clear. You
would like to get up and approach the witness if need be.
You’d stay seated otherwise but if the need arises to get up,
you would approach the witness stand with the full
understanding that a deputy will be standing next to you.
[APPELLANT]: All right.
Following that exchange, the court took a five-minute recess. When the parties
returned to court, the following exchange occurred:
[APPELLANT]: How close are the deputies going to be to
me? I don’t understand. I mean, you didn’t really give me a
proximity.
3
THE COURT: I don’t have that proximity. They’re going to
probably . . . be in the proximity you see them right now.
They’re going to follow their protocol and they’re going to –
[APPELLANT]: I’m just concerned that it’s, is that going
to give the jury the impression that I’m in custody? It’s –
THE COURT: Well, there’s not going to be any reference
whatsoever to the fact that you’re in custody at all. In fact, I’m
glad you brought that up because there will be no reference by
anybody that you are in custody, and each time we take a break
the jury will be excused from the courtroom. Before anybody
takes one step towards moving anywhere, that will be at my
direction and my direction only. Is everybody clear on that?
[STATE]: Thank you, Your Honor.
THE COURT: And so, are you clear on that?
[APPELLANT]: Yes.
THE COURT: Okay. So, what will happen is when you get
up to move, they’re going to quietly move behind you because
that’s their job. So, I can’t tell you is it going to be 10 inches,
18 inches. They’re going to be in enough distance that they
follow their protocol for security, okay?
[APPELLANT]: Because I –
THE COURT: That’s the best I can tell you. That’s why I’m
telling you, you have two options, remain seated and they’ll
remain seated but if you feel the need to move around the
courtroom, you’ll do so with the deputy at a distance that
allows them to maintain courtroom security and for you to do
what you need to do approaching the witness stand.
[APPELLANT]: All right. I –
THE COURT: And that’s the best I can tell you.
[APPELLANT]: I understand that. So, I’m just going to object
because –
4
THE COURT: Okay, you –
[APPELLANT]: – I have –
THE COURT: – can object. I just need to know which way
you want to proceed.
[APPELLANT]: Well, either way, at this point is restriction
on my ability to effectively defend my case, I feel, and I would
object to the ultimatum itself. I have been in the courtroom
before and represented myself from custody and did not have
a guard following my footsteps in this very building. Maybe
not this courtroom but definitely on this site in front of [another
judge], so I understand that there is a certain security protocol
but I will just object to anything that would tend to lead the
jurors to believe that I am in custody or that I’m dangerous –
THE COURT: I think –
[APPELLANT]: – because if you’ve got a person following
me around, the jury’s going to look at me like I’m a dangerous
person, and I –
THE COURT: I think you’re going to find, Mr. Campbell, that
the deputies are going to maintain a distance that, as I’ve said
three times now, allows them to maintain courtroom security
and safety and allows you to represent yourself. That’s
why . . . I’ve told you you have two options and if you wish to
get up and feel the need to do that and pick up an exhibit or do
whatever you need to do, and if you wanted to remain seated
and you needed an exhibit, the clerk would make sure you had
the exhibit to ask your question. If you would like to move
around the courtroom, that’s the way it’s going to be and they
will act as professionally as they always do to make certain that
it is in a way that allows you to move about the courtroom
while they maintain security. That’s the best I can do to give
you an answer, so your objection is noted. It’s –
[APPELLANT]: Thank you.
THE COURT: – on the record. Thank you.
5
Appellant now argues that the trial court erred “by compelling him to present his
defense in a four-day trial before the jury while conspicuously restrained by a tactical
security team composed of at least three armed Montgomery County Sheriffs forming a
close proximity mobile perimeter.” Appellant maintains that this “spectacle unequivocally
suggest[ed] to the jury that the justice system itself [saw] a need to separate [him] from the
community at large.” Appellant also maintains that the court erred by “completely
relinquishing” its authority over courtroom security to the Montgomery County Sheriff’s
Office.
“The general rule, well settled in Maryland, is that ‘the conduct of a criminal trial is
committed to the sound discretion of the trial judge[.]’” Wiggins v. State, 315 Md. 232,
239 (1989) (citations omitted); see also Choate v. State, 214 Md. App. 118, 151 (2013)
(“‘The conduct of a criminal trial is committed to the sound discretion of the trial court,
and the exercise of that discretion will not be disturbed on appeal absent a clear showing
of abuse.’”) (quoting Bruce v. State, 351 Md. 387, 393 (1998)). “That control, however,
must safeguard the defendant’s constitutional rights.” Kelly v. State, 392 Md. 511, 543
(2006). In other words, “[e]ven though the trial judge ‘runs the court,’ the right of an
accused to a fair trial…is paramount.” Wiggins, 315 Md. at 239 (citations and quotations
omitted). “If the exercise of discretion results in the denial of a fair trial to a defendant, the
discretion is certainly abused.” Id. at 240.
In Estelle v. Williams, 425 U.S. 501 (1976), the United States Supreme Court held
that a defendant’s right to a fair trial is violated if he is “compelled to go to trial in prison
or jail clothing.” Id. at 504-506; accord Knott v. State, 349 Md. 277, 284, 292-93 (1998)
6
(holding that the defendant was prejudiced by being compelled to attend trial “while garbed
in his orange, prison-issued jumpsuit.”). In so holding, the Supreme Court noted that “the
constant reminder of the accused’s condition implicit in such distinctive, identifiable attire
may affect a juror’s judgment” and that such attire “is so likely to be a continuing influence
throughout the trial that … an unacceptable risk is presented of impermissible factors
coming into play.” Williams, 425 U.S. at 504-05. The Supreme Court further noted that,
although other similarly prejudicial measures may be permissible under certain
circumstances, such as physically restraining a disruptive defendant, “compelling an
accused to wear jail clothing furthers no essential state policy.” Id. at 505.
In contrast, the Supreme Court, in Holbrook v. Flynn, 475 U.S. 560 (1986), held
that the presence of four uniformed state troopers, who had been seen sitting behind the
defendant in the first row of the spectators’ section at trial, was not inherently prejudicial.
Id. at 562, 568-69. In so doing, the Supreme Court distinguished the circumstances of that
case from other practices, such as those presented in Estelle v. Williams, that it had deemed
unconstitutional:
The chief feature that distinguishes the use of identifiable
security officers from courtroom practices we might find
inherently prejudicial is the wider range of inferences that a
juror might reasonably draw from the officers’ presence.
While shackling and prison clothes are unmistakable
indications of the need to separate a defendant from the
community at large, the presence of guards at a defendant’s
trial need not be interpreted as a sign that he is particularly
dangerous or culpable. Jurors may just as easily believe that
the officers are there to guard against disruptions emanating
from outside the courtroom or to ensure that tense courtroom
exchanges do not erupt into violence. Indeed, it is entirely
7
possible that jurors will not infer anything at all from the
presence of the guards.
***
To be sure, it is possible that the sight of a security force within
the courtroom might under certain conditions create the
impression in the minds of the jury that the defendant is
dangerous or untrustworthy. However, reason, principle, and
common human experience counsel against a presumption that
any use of identifiable security guards in the courtroom is
inherently prejudicial.
***
We do not minimize the threat that a roomful of uniformed and
armed policemen might pose to a defendant’s chances of
receiving a fair trial. But we simply cannot find an
unacceptable risk of prejudice in the spectacle of four such
officers quietly sitting in the first row of a courtroom’s
spectator section. Even had the jurors been aware that the
deployment of troopers was not common practice in [that
particular court], we cannot believe that the use of the four
troopers tended to brand [the defendant] in their eyes with an
unmistakable mark of guilt.
Id. at 569-571 (internal citations, quotations, and footnote omitted).
Similarly, in Williams v. State, 137 Md. App. 444 (2001), this Court held that the
trial court did not err in refusing the defendant’s request to have his Department of
Corrections’ identification bracelet removed during trial. Id. at 453. After discussing the
facts and holdings of Estelle v. Williams and Knott v. State, supra, we noted that,
“[a]lthough a person in an orange jumpsuit might stand out like a proverbial sore thumb,
the same cannot be said when a person wears an institution’s identification bracelet.” Id.
at 449-52. We explained:
8
[W]e see no hint in the record that the bracelet worn by [the
defendant] branded him as a prisoner. To the contrary, the trial
judge stated that the jurors might think the bracelet was a
“hospital band.” … Moreover, there is no evidence in the
record as to the size of the courtroom or the distance between
the jurors and [the defendant], which might have shed light on
the question of the visibility of the bracelet. Therefore, we
cannot tell from the record whether the jurors could necessarily
see the bracelet. Nor do we know whether [the defendant]
wore the kind of clothing that would have helped to conceal
the bracelet[.]
Id. at 452.
Against that backdrop, we hold that the trial court did not err in its handling of
courtroom security during appellant’s trial. That is, we cannot say that the court’s placing
of security personnel near appellant at various phases of his trial was so inherently
prejudicial that appellant was denied his constitutional right to a fair trial. Unlike in Estelle
v. Williams, where the defendant “appeared at trial in clothes that were distinctly marked
as prison issue,” Williams, 425 U.S. at 502, and Knott v. State, where the defendant
“testified before the jury while garbed in his orange, prison-issued jumpsuit,” Knott, 349
Md. at 284, there is nothing inherently prejudicial about the presence of one or more
security guards near a defendant during trial. See Brown v. State, 132 Md. App. 250, 268
(2000) (“The mere presence of uniformed police officers [at trial] in itself does not appear
to be ‘inherently prejudicial[.]’”). Moreover, we can find nothing in the record to suggest
that the presence of the sheriffs was in any way remarkable or even noticeable by the jury,
much less an “unmistakable indication” that appellant was in jail or that he needed to be
9
separated from the community at large.1 To the contrary, the record shows that the court’s
use of security personnel was reasonable and not prejudicial to the Appellant. See Bruce,
318 Md. at 721-22 (“Our inquiry is … whether the [security] measures utilized were
reasonable and whether, given the need, such security posed an unacceptable risk of
prejudice to the defendant.”).
As the court explained when it first broached the subject at trial, the sheriffs would
only follow appellant if he chose to approach the witness stand, which he did not have to,
and that, if that happened, the sheriffs would stay at a distance that allowed them to
maintain courtroom security while also permitting appellant “to do what [he] need[ed] to
do approaching the witness stand.” The court also made clear that the deputies would not
be “disruptive;” that they would act in the “least invasive way;” and that they would
“quietly move behind [appellant].” Finally, the court stated emphatically that there would
be “no reference whatsoever to the fact that [appellant] was in custody.”
Even if we assume that the jury could observe and actually took note of the fact that
there were one or more security guards near appellant during trial, that circumstance is
fairly routine and subject to a wider range of inferences than other inherently prejudicial
indicators like shackles or prison garb. Compare to Wiggins v. State, 315 Md. 232, 239-
1
Appellant claims that he was “conspicuously restrained by a tactical security team
composed of at least three armed [sheriffs] forming a close proximity mobile perimeter;”
that the security measures were a “spectacular display of choreographed, close supervision
where multiple armed sheriffs shadowed every one of appellant’s movements, hands on
their weapons, eyes transfixed;” and that the sheriffs “perpetually stalk[ed] appellant’s
every move in close proximity as he conduct[ed] his defense.” The record is completely
devoid of any support for any of those assertions.
10
245 (1989) (holding that the trial court, in permitting guards to wear gloves for fear of
contracting AIDS from the defendant, committed reversible error because the court did not
have a sufficient basis to believe the defendant had AIDS and because the jurors could
easily have inferred, given the “contemporary climate,” that the defendant had AIDS and
should “be withdrawn from public circulation and confined to an institution with others of
his ilk.”). Although the jury in the present case could have inferred that appellant was in
jail based on the presence of the security guards, the jury could just as easily have inferred
that the officers were there “to guard against disruptions emanating from outside the
courtroom or to ensure that tense courtroom exchanges do not erupt into violence.”
Holbrook, 475 U.S. at 569. Again, there is no evidence in the record that the jurors inferred
anything from the positioning of security personnel at appellant’s trial, much less any
evidence to suggest that “what they saw was so inherently prejudicial as to pose an
unacceptable threat to [appellant’s] right to a fair trial[.]” Bruce, 318 Md. at 721 (citing
Holbrook, 475 U.S. at 572).
We also reject appellant’s claim that the trial court failed to exercise its discretion.2
In implementing the security measures, the court recognized that appellant, as his own
2
In setting forth his argument, appellant partly relies on a statement made by the
trial judge at trial, in which the court intimated that it had “absolutely nothing to do with
security protocol.” Our review of the relevant portion of the transcript reveals that those
comments were made the following day during a completely different discussion, in which
appellant had asked the court how someone could, if they wanted to, get him “some clothes
to change into.” In response, the court stated that such arrangements were made by the
prison and that the court had “nothing to do with [that] security protocol.” Thus,
appellant’s reliance on the court’s comment is inappropriate, as it was taken out of context
and is not germane to the issue presented here.
11
attorney, may need to move around the courtroom during trial. The court also recognized
that appellant was a prisoner and that there were certain protocols that the sheriffs generally
followed in those situations. Based on those factors, the court made the discretionary
decision to have security personnel stand near appellant when he approached the witness
stand, only deferring to the security guards with respect to how close the guards would
stand in relation to appellant. In so doing, the court made clear that the deputies would not
be disruptive and that appellant would be permitted “to do what [he] need[ed] to do
approaching the witness stand.” Moreover, when appellant expressed his concerns that the
placement of the security guards may give the jury the impression that he was in custody,
the trial judge stated that “before anybody takes one step, that will be at my direction and
my direction only.”
Accordingly, from the record in this case, it is clear that the court properly analyzed
the relevant facts and circumstances and then acted accordingly and within the bounds of
its discretion. See Maddox v. Stone, 174 Md. App. 489, 502 (2007) (noting that we “will
reverse a decision that is committed to the sound discretion of a trial judge if we are unable
to discern from the record that there was an analysis of the relevant facts and circumstances
that resulted in the exercise of discretion.”) (emphasis removed). As a result, for all the
reasons discussed herein, the trial court did not abuse its discretion in permitting courtroom
security personnel to be positioned near appellant during certain portions of the trial.3
3
In October of 2018, appellant filed in this Court a “Motion to Correct the Record,”
in which he claimed that the trial court had made several comments during trial that
supported his position but had been omitted from the trial transcript. In November of 2018,
(Continued)
12
II.
Appellant’s second claim of error concerns the denial of a pretrial motion in which
he asked the court to hold a hearing to determine whether he should be appointed a State-
funded expert witness. Shortly after being charged, appellant was appointed an attorney
by the Office of the Public Defender (“O.P.D.”), but he ultimately discharged that attorney
for a non-meritorious reason, refused substitute counsel from O.P.D., and decided to
represent himself. Following that discharge, appellant filed a pretrial “Motion for Ex Parte
Hearing to Establish Necessity for Appointment of Expert Witness,” which the State
opposed. The court then held a hearing on that motion to determine whether the State was
required to provide funding for an expert witness where the defendant, in this case
appellant, had refused to be represented by O.P.D. After hearing argument from both
parties, the court denied appellant’s motion for an ex parte hearing. The court found that,
pursuant to the relevant case law, appellant could not “pick and choose which of the State-
provided services he wishes to receive” but rather had to “utilize the [O.P.D.’s] complete
‘package’ of services or forego them entirely.”
appellant’s motion was denied. In September of 2019, the State filed its own “Motion to
Correct the Record,” claiming that the trial transcript “may be incomplete” with regard to
the issues raised in appellant’s motion and indicating that the omitted portions “would
likely be relevant to Campbell’s first question presented.” The State then asked that this
Court order appellant to correct the record “by ordering the missing portions of the … trial
transcript.” Appellant thereafter filed a response, arguing that the State’s motion should
be denied on the grounds that it would be “absurd” for him to be “responsible for providing
proof of errors or omissions when his proper motion attempting to do exactly that was
categorically denied.” From those facts, we see no need to address the State’s motion, as
the relief requested, namely, ordering appellant to correct the record, has already been
denied by this Court and would serve no useful purpose given that appellant has made clear
that he no longer wishes to correct the record.
13
Appellant now contends that the trial court erred in denying his motion. Appellant
maintains that “there is no statute or precedent that mandate[ ]s representation by the Office
of the Public Defender before the threshold showing of entitlement is made.” Appellant
also maintains that the court’s ruling violated his constitutional rights because it forced him
to surrender one’s constitutional right, namely, his right to present a defense, in favor of
another constitutional right, namely, his right to self-representation.
Appellant is mistaken, as the Court of Appeals rejected a virtually identical
argument in Moore v. State, 390 Md. 343 (2005). There, the defendant, who was indigent
and charged with murder, obtained private counsel to represent him at trial. Id. at 347.
Prior to trial, the State conducted DNA analysis on evidence found at the scene of the
crime. Id. Thereafter, the defendant filed a motion requesting “state-funded expert
assistance in the field of DNA analysis to prepare his defense.” Id. The trial court
ultimately rejected the request, finding that, despite the defendant’s indigency, there were
“no Court funds dedicated or available to provide in general for experts in cases where an
individual will have private counsel and, specifically, there are not … Court funds available
to provide for the expert in this case.” Id. at 352-53. The court also found that it “would
not direct the Office of the Public Defender to provide fees in this case since they are not
counsel of record in the case.” Id. at 353. The defendant was later convicted, and this
Court affirmed. Id. at 347.
After granting certiorari, the Court of Appeals affirmed, rejecting the defendant’s
claim that he was constitutionally and statutorily entitled to a state-funded expert witness.
Id. at 357-58, 378. The Court explained that “[t]he General Assembly of Maryland, in
14
setting up the O.P.D., declared that it was establishing that agency with the policy and
legislative intent to provide for representation of indigents in criminal and juvenile
proceedings, including related necessary services and facilities.” Id. at 372. The Court
noted, however, that “the statutory definition of ‘indigent’ … is that the defendant is
financially unable, without undue hardship, to provide for the full payment of an attorney
and all other necessary expenses of legal representation.” Id. at 374 (emphasis in original).
The court further noted that the services provided by the O.P.D., which included providing
legal representation and funding for expert witnesses, were not severable. Id. at 374. The
Court held, therefore, “that O.P.D. is not required to pay for expert assistance or other
ancillary services if the defendant is not represented by the O.P.D. (or a panel attorney
assigned by the O.P.D.).” Id. at 374.
Regarding the defendant’s constitutional claim, the Court held that the State had not
deprived the defendant “of any of his constitutional rights by requiring that he apply to the
O.P.D. for representation before he is entitled as an indigent to State funded expert witness
services.” Id. at 374. The Court noted that, “although an indigent criminal defendant
enjoys the right to assistance of counsel, this entitlement does not translate into an absolute
right to counsel of the defendant’s choosing.” Id. at 377. The Court further noted that,
“[i]n the absence of such a right to choice of counsel, there is no constitutional violation
when the State requires that an indigent defendant avail himself of the services of the
[O.P.D.] in order to obtain [certain services].” Id. at 377 (quoting State v. Miller, 337 Md.
71, 87-88 (1994)). The Court concluded:
15
Indigent defendants may utilize the O.P.D.’s complete
“package” of services, or forgo them entirely. While such
defendants may face difficult choices, the Constitution does
not bar the State of Maryland from requiring them to choose
between counsel of their choice and ancillary services provided
by the O.P.D.
Assuming arguendo that the assistance of a DNA expert was
necessary to an adequate defense in the instant case, the State
did not deny [the defendant] that assistance. Rather, expert
assistance was available to him so long as he complied with the
procedural requirement that he apply for legal representation
through O.P.D. Imposing this requirement on [the defendant]
did not violate his constitutional rights.
Id. at 378-79.
Here, appellant could have obtained a state-funded expert witness had he accepted
representation by O.P.D. Instead, appellant chose to reject that service and represent
himself. Pursuant to Moore, refusing to provide a state-funded expert witness under those
circumstances was consistent with the governing statute and appellant’s constitutional
rights. Further, assuming arguendo that assistance of an expert was necessary to the
defense in this case, the State did not deny the Appellant that assistance. Accordingly, the
court did not err in denying appellant’s motion.
III.
Appellant’s next several contentions concern two videos that he wanted played for
the jury. At trial, prior to cross-examining the victim, appellant informed the court that he
intended “to play two videos” and that he needed “accommodations to play [the] videos
for the jury.” The court then had the following exchange with appellant:
THE COURT: So, you’re going to need to tell the State what
it is you intend to play so that if they have an objection, I can
16
have a discussion with all of you about that, again, outside of
the presence of the jury. So, I don’t need to know right now.
[APPELLANT]: Oh, okay.
THE COURT: You’re going to write it down, you’re going to
put the dates, or whatever other identifying information there
is about what it is you will be intending to try to put into
evidence. And should that be deemed something appropriate,
because I don’t know what the evidence is, I haven’t heard the
evidence at all, so I’m learning the facts right along with the
jury, because this would be my opportunity to hear the
evidence.
So whatever it is, if it’s something that’s admissible or
parts of it are, certainly, the Court has the equipment to be able
to play it.
Later, after appellant had begun his cross-examination of the victim, the court,
outside of the presence of the jury, asked appellant about the videos. Appellant proffered
that the videos each contained an interview with the victim that had been recorded prior to
trial. The first video (the “Kids Talk” video) was recorded in July of 2016 and, according
to appellant, “completely contradicted everything that she said [at trial].” The second video
(the “Care House” video) was recorded in August of 2016 and, according to appellant, was
“almost wholly inconsistent with everything she said today.” Appellant stated that he
wanted to play both videos, in their entirety, to impeach the victim’s credibility.
After the State objected on hearsay grounds, appellant argued that the statements
were being offered under a hearsay exception, namely, as a prior inconsistent statement.
The court then informed appellant that the statements could potentially be admitted if there
was something in the recorded interviews that he could “pinpoint” as demonstrating “an
issue subject to cross-examination.” The court further informed appellant that he could
17
“not simply … turn on a video” but rather he would have to “inquire about these areas”
and “give the witness an opportunity to either admit the differing statement or deny it.”
The court added that it did “have the equipment available if the need arises.”
The court then directed appellant to review the transcripts of the two videos during
the impending lunch break and to indicate which portions of the videos he wanted to have
admitted as impeachment evidence. When the parties returned from the break, the court
asked appellant about his review of the transcripts, and appellant responded that “it was
just too much to go through in that short amount of time” and that he “didn’t get a chance
to really go through all of it.” After appellant again argued that the videos should be
admitted based on “numerous inconsistencies,” the court reiterated that, although a
recording could be admitted into evidence, “it doesn’t just come in on its own” because
“impeachment is different than evidence that’s substantive to the issues at hand.” The court
then instructed appellant to “ask [his] questions in cross-examination” and “lay the
foundation,” at which point the court would “get to that issue of whether or not there is a
denial or an admission.”
Appellant then resumed his cross-examination of the victim. During that
examination, appellant confronted the witness with statements she made during the “Kids
Talk” interview that someone other than appellant had raped her and was the father of her
child. The victim admitted that she had lied in making those statements.
Due to the protracted nature of appellant’s cross-examination, the court ended the
proceedings before appellant finished, and the court ordered the victim to return to court
the next morning so that appellant could conclude his cross-examination. Before recessing
18
for the day, the court stated that “the issue of whether or not these video interviews come
into evidence still remains one for [the court] to rule on.”
When appellant resumed his cross-examination the following day, he again asked
the victim about the “Kids Talk” interview, and the victim admitted that everything she
said in that interview was untrue and inconsistent with her sworn trial testimony. Appellant
then moved to have the “Kids Talk” video admitted into evidence, and a bench conference
ensued. Ultimately, the court ruled that the “Kids Talk” video would be admitted as
substantive evidence. In so doing, the court declared that, because appellant had already
cross-examined the victim about the interview and the victim had admitted that she had
lied in the interview, the video did not “need to be played here” but rather the jurors would
be given the video and the necessary equipment so that they could review the video during
their deliberations. Appellant did not object to the court’s ruling. At that point, the
following exchange occurred between the court and appellant:
THE COURT: All right, now, before we go any further, is
there anything you’re planning to offer as it relates to the
interview at Care House, Mr. Campbell, in the same avenue?
And understanding, I’m not repeating myself, but if [the Care
House interview] is centered around accusing you, then that
has nothing to do with what we’re talking about now. So I’d
like to hear from you if that’s where you’re planning to go so
we can have that part of the discussion now, if that’s where you
envision moving that in as well.
[APPELLANT]: No, I don’t.
THE COURT: Okay. Good. Thank you. And for the record,
that’s Exhibit No. 4, the CD for the [Care House] interview.
19
Appellant thereafter concluded the remainder of his cross-examination of the victim.
At no point did appellant ask for the “Care House” video to be accepted into evidence or
otherwise indicate that he wanted the court to take some additional action regarding either
the “Kids Talk” or “Care House” video.
A.
Appellant’s first appellate contention regarding the videos is that the trial court erred
in requiring him to prove the admissibility of both videos before agreeing to provide him
with audio/visual equipment to play the videos for the jury. Appellant maintains that the
court’s actions denied him “the opportunity to participate meaningfully in a judicial
proceeding in which his liberty was at stake.”
This issue was not preserved for our review. Appellant did not object at any point
when discussing the issue of the audio/visual equipment with the court. See Md. Rule 8-
131(a) (“Ordinarily, the appellate court will not decide any [non-jurisdictional] issues
unless it plainly appears by the record to have been raised in or decided by the trial
court[.]”).
Assuming arguendo that this issue is somehow preserved, appellant’s claim is not
supported by the record. The court made clear, on multiple occasions, that audio/visual
equipment would be made available if appellant needed it. The only “condition” imposed
by the court was that, before the videos could be played for the jury, appellant had to
disclose the substance of the videos so that, if the State objected, the court could discuss
the matter outside the presence of the jury. Thus, the court did not refuse to provide the
audio/visual equipment; rather, the court simply refused to permit appellant to play the
20
videos for the jury without first disclosing the contents of the videos to the State and the
court.
B.
Appellant’s next contention regarding the videos is that the trial court erred in
refusing to allow him to play for the jury the “Care House” video in its entirety. Appellant
maintains that the court’s error deprived him “of his opportunity to present substantive
evidence of the complaining witness in a videotaped interview with police making material
statements that she later testified under oath were lies.”
We hold that appellant’s claim was waived. Although appellant, during his cross-
examination of the victim, did indicate that he wanted both videos introduced into
evidence, the court never actually ruled on the videos’ admissibility. Rather, the court
repeatedly told appellant that he needed to first confront the witness with the statements
before the court would issue a ruling. In fact, when the court recessed for the day in the
middle of appellant’s cross-examination of the victim, the court expressly stated that “the
issue of whether or not these video interviews come into evidence still remains one for [the
court] to rule on.” Then, when appellant resumed his cross-examination the following day,
he confronted the victim with statements from the “Kids Talk” video, and the court
ultimately admitted that video as substantive evidence. In so doing, the court asked
appellant if there was “anything” he was “planning to offer as it relates to the interview at
Care House … in the same avenue” because the court wanted “to have that part of the
discussion now” if appellant was “moving that in as well.” Appellant responded: “No, I
don’t.”
21
Thereafter, appellant proceeded with the conclusion of his cross-examination of the
victim without asking for the Care House video to be accepted into evidence or otherwise
asking the court to make a determination as to the video’s admissibility. Thus, appellant’s
claim that the court erred in not admitting the Care House video was waived. See Young v.
State, 234 Md. App. 720, 741 (2017) (“[F]ailing to object to a court’s decision not to rule
on a motion waives the right to appeal that motion.”), aff’d, 462 Md. 159 (2018); See also
Md. Rule 8-131(a).
Even if not waived, appellant’s claim is unpreserved for our review. Although
appellant stated that the Care House Video contained statements by the victim that were
generally inconsistent with her trial testimony, appellant provided no insight into the
substance of those statements at any point during trial. In re Adoption/Guardianship Nos.
CAA 92-10852, 92-10853 in Circuit Court for Prince George’s County, 103 Md. App. 1,
33 (1994) (“[T]he proponent of evidence that has been excluded must proffer what that
evidence would have been.”). Absent such a proffer, appellant cannot now claim that the
court erred in excluding the video. See Md. Rule 5-103(a)(2) (“Error may not be predicated
upon a ruling that … excludes evidence unless … the substance of the evidence was made
known to the court by offer on the record or was apparent from the context within which
the evidence was offered.”).
C.
Finally, appellant contends that the trial court, in admitting the “Kids Talk” video
into evidence, erred in giving the jury the option of reviewing the video during
deliberations rather than publishing that video during the evidentiary portion of trial.
22
Appellant maintains that the court’s error denied him the opportunity to present the video
“to the jury for their evaluation of veracity in the course of his defense.”
Again, appellant failed to preserve his claim. When the court determined how the
Kids Talk video would be presented to the jury, appellant did not object or otherwise
indicate that he wanted to have the video played for the jury prior to deliberations.
Accordingly, the issue is not preserved for our review. Md. Rule 8-131(a).
IV.
Appellant’s fourth claim of error concerns allegations of abuse that the victim
purportedly made against her stepfather. During his cross-examination of the victim,
appellant questioned the victim about a letter she had written to a judge in 2012 while
appellant was incarcerated. In that letter, the victim alleged, among other things, that her
stepfather had molested her. In response to appellant’s questions regarding the letter, the
victim testified that, although she had written the letter, appellant had “told [her] what to
write” and that “everything in [the] letter is false.”
Later, when appellant attempted to have the letter introduced into evidence, the State
objected, and the court initially ruled that the letter would be received in evidence. The
trial court later clarified that only certain parts of the letter that relate to the victim’s
credibility would be admitted while “anything that is extrinsic” would be redacted. The
court then indicated that the portion of the letter concerning the allegations against the
victim’s stepfather would be redacted as not being relevant. Appellant did not object,
instead stating that the court’s actions made “perfect sense.” When the court reviewed the
redactions prior to appellant testifying, again appellant failed to object.
23
Appellant thereafter took the stand and attempted to testify about the victim’s
allegations against her stepfather. The State objected, and the court reminded appellant
that those allegations had been ruled inadmissible as “not relevant to these proceedings.”
The court also stated that the allegations contained in the letter were “nothing more than
speculation, hearsay.”
Appellant now argues that the trial court erred in excluding all evidence of the
victim’s prior allegations against her stepfather. Appellant maintains that the evidence was
admissible as a prior inconsistent statement and that it was relevant to show that the victim
was “a shameless liar fabricating false charges against him.”
We hold that the court did not err in excluding the victim’s statement. For an out-
of-court statement to be admissible as a prior inconsistent statement under the hearsay
exception outlined in Maryland Rule 5-802.1(a)(2), which is what appellant now argues,
the statement must be, at the very least, “inconsistent with the declarant’s testimony.” Id.Here, the victim never testified regarding any abuse at the hands of her stepfather. Thus,
her out-of-court statement that her stepfather had abused her was not inconsistent with her
testimony.
Even if the statement was somehow inconsistent, the evidence was irrelevant.
Whether the victim’s stepfather had abused her was of no consequence to the determination
of the action, namely, whether appellant had committed sexual abuse and second-degree
rape against the victim. See Md. Rule 5-401 (defining relevant evidence). To the extent
that the victim’s purportedly false allegation may have been germane to her credibility, the
victim had already admitted that everything in the letter was false and that appellant had
24
“told [her] what to write.” Thus, admitting the statement for the purpose of showing that
the victim had lied would have been cumulative. See Md. Rule 5-403 (“Although relevant,
evidence may be excluded … by considerations of undue delay, waste of time, or needles
presentation of cumulative evidence.”).
V.
Appellant’s fifth claim of error concerns the trial court’s restriction of his cross-
examination of the victim. During that cross-examination, appellant asked the victim if
she owned or had ever owned “a 7 ½ inch by 2-inch brown latex dildo.” The State objected,
citing “relevance,” and, at the bench conference that ensued, appellant proffered that part
of his defense was that “sexual intercourse did not take place” and that the victim had
“inseminated herself through masturbation.” After the court stated that it would grant
appellant “some leeway,” the bench conference ended, and appellant’s cross-examination
of the victim resumed:
[APPELLANT]: Did you own that dildo?
[VICTIM]: Currently?
[APPELLANT]: Have you ever?
[VICTIM]: Yes.
[APPELLANT]: How did you acquire it?
[VICTIM]: You gave me the money to pay for it.
[APPELLANT]: Do you now or have you ever used it for the
purposes of masturbation?
[STATE]: Objection, Your Honor.
25
THE COURT: Sustained.
Appellant now contends that the trial court erred in refusing to permit him to cross-
examine the victim about her use of a dildo. Appellant claims that that line of questioning
was relevant to his defense, which was based in part on the theory that he had not
impregnated the victim through sexual intercourse but rather that she had “unwittingly
impregnated herself while masturbating, utilizing a dildo and a used condom with a hole
in the tip.”
We hold that the trial court did not err in refusing to permit this line of questioning.
To begin with, the trial court did not restrict appellant’s entire line of questioning. The
court permitted appellant to ask the victim questions about her ownership of the dildo and
how that dildo had been acquired. The only restriction came when appellant asked the
victim: “Do you now or have you ever used [the dildo] for the purposes of masturbation?”
The State objected to that question, and the court sustained that objection.
Based on those facts, we cannot say that the trial court erred in sustaining the State’s
objection. Whether the victim had ever used the dildo for masturbation did not make it
more or less probable that she had, on one occasion several years prior to trial, “unwittingly
impregnated herself” while “utilizing a dildo.” See Smith v. State, 218 Md. App. 689, 704
(2014) (“Probative value [of evidence] relates to the strength of the connection between
the evidence and the issue[.]”). Moreover, even if the evidence was minimally relevant,
the trial court did not abuse its discretion in restricting appellant’s cross-examination as to
whether the victim had ever masturbated using the dildo. See Washington v. State, 191
Md. App. 48, 76 (2010) (“[T]rial courts retain wide latitude … to impose reasonable limits
26
on [] cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.”) (citations and quotations omitted).
VI.
Appellant’s final claim of error concerns an instruction given by the court to the
jury. Prior to appellant testifying, the court gave appellant the option of testifying from the
witness stand or from the lawyer’s table. Although appellant initially gave his testimony
from the witness stand, he ultimately decided, mid-testimony, to switch to the lawyer’s
table, where he stayed for the remainder of his testimony.
Later, when the parties’ discussed proposed jury instructions with the court, the
following colloquy ensued:
THE COURT: The next one the Court would be giving is
Maryland Pattern Instruction 3.0, What Constitutes Evidence.
It starts on the first page, it goes halfway down on the second
page. State, any objections?
[STATE]: No, Your Honor.
THE COURT: Mr. Campbell?
[APPELLANT]: I, I just haven’t read it.
THE COURT: Sure. Take a moment and take a look.
[APPELLANT]: No.
THE COURT: All right.
The parties then continued discussing proposed instructions, and at no time during
that discussion did appellant indicate that he had an issue with the court giving the jury
27
Maryland Pattern Instruction 3.0, What Constitutes Evidence. Ultimately, the court gave
the following instruction to the jury:
In making your decision, you must consider the evidence in
this case. That is, testimony from the witness stand and
physical evidence or exhibits that have been admitted into
evidence. In evaluating the evidence, you should consider it in
light of your own experiences. You may draw any reasonable
conclusion from the evidence that you believe to be justified
by common sense and your own experiences. The following
things are not evidence, and you should not give them any
weight or consideration: any testimony that I struck or that I
did not admit into evidence, and questions that the witnesses
were not permitted to answer or objections of the parties.
Appellant did not object at the time that instruction was given or at the close of the
court’s instructions.
Appellant now contends that the trial court erred in providing the above jury
instruction to the jury. Appellant maintains that the court’s instruction was erroneous
because it “tacitly instructed the jury that appellant’s testimony was not evidence” given
that appellant presented “the bulk of his testimony” from the lawyer’s table and not the
witness stand. Conceding that he failed to object to the instruction at trial, appellant asks
that we review the propriety of the instruction for plain error.
We decline appellant’s invitation. Maryland Rule 4-325(e) provides, in relevant
part, that an appellate court may “take cognizance of any plain error in the instructions,
material to the rights of the defendant, despite a failure to object.” “The appellate courts
of this State have often recognized error in the trial judge’s instructions, even when there
has been no objection, if the error was likely to unduly influence the jury and thereby
deprive the defendant of a fair trial.” State v. Brady, 393 Md. 502, 507 (2006) (citing
28
State v. Hutchinson, 287 Md. 198, 202 (1980)) (quotations omitted). “The premise for
such appellate action is that a jury is able to follow the court’s instructions when articulated
fairly and impartially.” Brady, 393 Md. at 507 (citations omitted). “It follows, therefore,
that when the instructions are lacking in some vital detail or convey some prejudicial or
confusing message, however inadvertently, the ability of the jury to discharge its duty of
returning a true verdict based on the evidence is impaired.” Id. (citations omitted).
Nevertheless, in order to recognize error in a court’s instructions absent an
objection, “the error must be plain, and material to the rights of the accused, and, even then,
the exercise of [appellate] discretion to correct it should be limited to those cases in which
correction is necessary to serve the ends of fundamental fairness and substantial justice.”
Brown v. State, 14 Md. App. 415, 422 (1972). The Court of Appeals has “characterized
the instances when an appellate court should take cognizance of unobjected to error as
‘compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial,’
and as those ‘which vitally affect a defendant’s right to a fair and impartial trial[.]’” Brady,
393 Md. at 507 (internal citations omitted). On the other hand, plain error review is
inappropriate “as a matter of course” or when the error is “purely technical, the product of
conscious design or trial tactics or the result of bald inattention.” Id. (citations and
quotations omitted).
Here, the instruction given by the court was identical to the Maryland pattern
instruction. See MPJI-Cr 3:00. Thus, we cannot say that the court, in giving that
instruction, deviated from a legal rule or that, even if it had, such an error was clear or
obvious. See Johnson v. State, 223 Md. App. 128, 152 (2015) (noting that “it is
29
well-established that a trial court is strongly encouraged to use the pattern jury
instructions.”); See also Yates v. State, 202 Md. App. 700, 724 (2011) (holding that “the
circuit court’s use of a pattern jury instruction, without objection, weighs heavily against
plain error review of the instructions given.”). Moreover, appellant affirmatively waived
his objection to the instruction when, during the parties’ discussion of proposed jury
instructions, he expressly stated that he had no problem with the court giving the pattern
instruction as written. Accordingly, under these circumstances, plain error review is
inappropriate. See State v. Rich, 415 Md. 567, 580 (2010) (addressing the distinction
between “forfeited rights” which “are reviewable for plain error,” and “waived rights,”
which ordinarily “are not”); Carroll v. State, 202 Md. App. 487, 513 (2011) (noting that
“[p]lain error review generally is not applicable” to an “affirmative waiver of [an] issue”),
aff’d, 428 Md. 679 (2012).
JUDGMENTS OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED; COSTS TO BE PAID BY
APPELLANT.
30