Petition for Writ of Certiorari — Jeremy S. Cochran, Petitioner v. Maryland

Supreme Court briefJul 10, 2019

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JEREMY S. COCHRAN

IN THE

COURT OF APPEALS

OF MARYLAND

COA-PET-0436-2018

CSA-REG-0086-2013

(No. 12-K-12-000458, Circuit

Court for Harford County)

STATE OF MARYLAND

ORDER

Upon consideration of the petition for a writ of certiorari to the Court of Special

Appeals and the supplement filed thereto, in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that the petition and the

supplement be, and they are hereby, dismissed on the grounds of lateness.

Is! Mary Ellen Barbera

Chief Judge

DATE: July 26, 2019

RECEIVED

AUG 1 3 2019

OFFICE OF THE OLERK

SUPREME COURT, U.S.

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UNREPORTED.

IN THE COURT OF SPECIAL APPF.AT.S

OF MARYLAND

No. 86

September Term, 2013

JEREMY S. COCHRAN

STATE OF MARYLAND

Eyler, Deborah S.,

Nazarian,

Salmon, James P.

(Retired, Specially Assigned),

JJ.

Opinion by Eyler, Deborah S., J.

Filed: July 2, 2014

Jeremy Shane Cochran, the appellant, was convicted by a jury in the Circuit Court for

Harford County of sexual abuse of a minor - continuing course of conduct, sexual abuse of

a minor, and conspiracy to commit sexual abuse of a minor. The court sentenced Cophran

to 85 years’ incarceration. He appeals, posing eight questions for review, which we have

rephrased slightly:

Did the trial court err in admitting evidence of telephone conversations

Cochran placed while in jail?

II.

Did the trial court err in finding the victim competent to testify?

III.

Did the trial court err in permitting hearsay testimony concerning the

victim’s claims of abuse?

IV.

Did the trial court err in limiting cross-examination of the victim?

Did the trial court err in limiting the testimony of the defense expert?

VI.

Did the trial court commit plain error by instructing the jurors they were

the judges of the law?

VII.

Did the State’s closing argument improperly appeal to passion and

emotion?

VIII. Did the State’s discussion of reasonable doubt during its rebuttal

closing argument constitute plain error?

For the following reasons, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

The following facts were adduced at trial, which took place between D ecember 10 and

17,2012.1 S. is the child of Harold Harris (“Father”) and AngelineFeazelle (“Mother”). She

Cochran had been tried in September 2012, but the jury hung and a mistrial was

(continued...)

was 10 years old at the time of trial. Father and Mother were married in 2002, around the

time S. was born. They separated in 2003, and were divorced in 2005. Father and Mother

shared custody of S.,withFather having custody every Wednesday night and every weekend,

and Mother having custody the rest of the time.

Father testified that, after the separation,Mother moved three or four times, and he'

Became concerned that S. was not in a stable environment when she was staying withy

Mother. There was drug activity in one of the apartments Mother lived in. S. was not living

; in a clean environment or sleeping in a clean bed.

'According to Father, when S. was three years old, she told him that David Hurst,

whom Mother was dating at the time, “had rubbed himself on the oustide [sic] of [S.] before

the was getting ready to put her in the bathtub.” Father immediately took S. to the hospital

yfor an examination. The results were normal Father claimed that Hurst was a “known child,

molester.” An investigation of Hurst was undertaken but he disappeared after he was ordered

to give a DNA sample.

Mother began a relationship with Cochran sometime in 2006. In 2007, the two began

living together at Cochran’s mother’s house in Jarrettsville. S. lived in that house with

Cochran and Mother when she was in Mother’s custody. S. was five at the time, and had

started elementary school. S. sometimes called Cochran “daddy,” which Father found

(...continued)

declared.

upsetting. In 2008, S. stopped living with Mother and Cochran, and had no contact with

Mother and Cochran after that. She lived in protective care for a time before moving in with

Father full time.

S. testified that Mother met Cochran on the internet, and she and Mother went to live

with Cochran and Cochran’s mother. S. was in kindergarten and first grade when she lived

in the house with Cochran and Mother. She slept in her own bedroom, and Cochran and

Mother shared another bedroom. The State introduced photographs of the exterior and

interior of the house, including photographs of Mother and Cochran’s bedroom, and of S.’s

bedroom. The photographs show a sign Mother made that was hung outside S.’s bedroom

door. It read: “Beware, {S.’s] room, no boys allowed and that includes daddies.” Mother

and Cochran both had guns in the house.

Using drawings depicting the front and back of a naked male and female human

figure, S. testified that Cochran touched her chest and her leg with his hand.2 She also

testified that Cochran touched her vagina - which she called her “beanie hole” - and her

mouth and bottom with his “private part,” indicating his penis. She testified that Cochran

touched her lips and her chest with his lips, and touched her lips and her “beanie hole” with

his tongue. S. said that this happened on her bed in her room in the house she was sharing

with Cochran and Mother. She said it happened “[l]ike three or four times.”

2 Throughout her testimony, S. referred to Cochran as “Shane.” For the sake of

consistency, we shall refer to him throughout our opinion as Cochran, unless there is a direct

quote that refers to Cochran as Shane.

S. testified that she told Mother what Cochran did. Mother questioned Cochran, who

said he did not do anything. S. testified that Mother knew what Cochran was doing to her,

because she (Mother) “was doing it, too . . . she was doing like kissing me and stuff.”

According to S., Mother was in the room while Cochran was doing these things to her, and

“after [Cochran] was done [Mother] kept on doing it. . . [l]ike kissing me and stuff.”

S. further testified that when Cochran’s “private part” touched her “private part,

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[i]t

didn’t feel real comfortable” and it “felt like rubber was going in me,” but his “private” did

not go “all the way in.” She said he was “pushing” and “rubbing” his penis underneath her

“private part.” She also said that when Cochran’s penis touched her bottom, “[i]t felt weird

. . . like cold just running through me. . . . It felt cold and wet.” She said that when

Cochran’s penis touched her lips “[i]t tasted like rubber.” She testified that Cochran would

touch his penis “when these things would happen,” and that he peed on her mouth.

S. also testified that Cochran told her that if she told Father what he had done to her,

he would kill Father. She believed him. She told her school counselor about the things

Cochran had done to her, however. She said she told her counselor that Cochran had

“humped” her, and by that she meant “laying on top of each over [sic]. His private thing m

[her] private thing.”

Theresa Mitchell was the school counselor at the elementary school S. was attending

while living with Mother and Cochran. Mitchell testified that she met with S. on October 1,

2007, when S. was in kindergarten. The meeting took place because S. was exhibiting

behavioral problems in the classroom. While in Mitchell’s office, S. began playing with the

dolls Mitchell kept, and narrated scenes of sexual abuse. Specifically, S. told Mitchell that

the daddy doll took the girl doll’s clothes off, including her panties, and the girl doll took the

daddy’s clothes off, including his underwear. S. said the daddy then humped the girl.

Mitchell asked where the daddy humped the girl, and S. pointed to the crotch of the girl doll.

Mitchell asked what the daddy humped the girl with, and S. responded “his humper.”

Mitchell asked S. where the daddy’s humper was, and S. pointed to the crotch of the daddy

doll. S “then put the daddy doll on the girl doll and said see, he’s humping her as she

demonstrated with the dolls the daddy repeatedly thrusting in the little girl.”

Mitchell asked S. if “this happened every night,” but S. did not respond. Then

Mitchell asked how many times it happened, and S. “held up four fingers indicating multiple

times.” Mitchell asked S.-to give the name of the daddy doll, and S. Responded “Joe-Joe and)

tthen nonsensical partial vocalizations.” Mitchell reported this meeting to Harford County

Child Protective Services (“CPS”), and also submitted a written report.

Mitchell again met with S. on January 16, 2008, after S. told her teacher about the

sexual abuse and asked to speak with Mitchell. During that meeting, Mitchell asked S. why

she was so tired. S. responded “he took my hand. He woke me up. He humped me.”

Mitchell asked her who had humped her, and S. responded, “his name is Shane. He woke

me up and kissed my kitty. And she demonstrated with the doll as she talked. He humped

my privates, indicating with the dolls that she had been approached from behind.” Mitchell

asked S. where she was when this happened. S. said, “I was in the bed.... He humped me

with his pee-pee.” Mitchell asked where Mother was at the time, and S. responded “my

mommy watched how he did it. He took me in his bed and mommy’s bed and mommy

watched.” S. told Mitchell she was afraid of Cochran.

S. then demonstrated what had happened, using the dolls in Mitchell’s office. S. told

Mitchell that Cochran made her hold his hand and showed her where his bed was. “Then

when he goes in his room, and then he humps me. He didn’t let go. He just threw me down.

He hit me in the eye with a branch.” S. told Mitchell she was going to hide because Cochran

might hump her again. Mitchell again reported the matter to CPS.

Mitchell’s next meeting with S. took place on March 19, 2008, after S. again

requested to speak with her. S. told Mitchell that “something bad had happened to her. She

said she wanted to play a video game but “daddy took her pants, underpants and shirt off,

then took his shirt off, and “humped” her. Mitchell asked her who daddy was and S. replied

that it was Cochran. S. drew a picture for Mitchell depicting what had happened. The

drawing was published for the jury. Mitchell explained that S. told her the drawing depicted

S.’s bed, and S. and Cochran, and Cochran’s “humper” in S.’s “kitty,” which was S.’s term

for her vagina. S. said Cochran was angry with her because he humped her and she did not

like it. S. also told Mitchell that Mother

had to stop my Daddy Shane from humping me and Shane went to jail and I

told the cop I’m all right but I don’t want Shane to hump me anymore. I don’t

like it. And I have another daddy who doesn’t hump me or don’t do nothing

to me ’cause he likes me.

S. again requested to speak with Mitchell on April 1,2008, and told her that Cochran

had humped her, Snd someone named “Joey.” S. was “unable to tell [Mitchell] exactly who

'Joey was.” S. told Mitchell that Joey was humping her when Mother came in to thebedroomj

and “saved” her, and S. said she “wish[ed] that Joey wouldn’t hump me anymore. I will

never, never come back and I would go to mommy’s house. I wish that mommy saved me.”

Mitchell again spoke with S. on May 5,2008. S. told Mitchell that she felt very angry

when Cochran humped her. S. enacted “humping” using two stuffed bears in Mitchell’s

office, and said “[t]he man smells your neck while you are humping.” Mitchell again made

a report to CPS.

Mitchell did not see S. during the following summer, but met with her on September

2, 2008, when S', returned to school to begin the first grade. S. told Mitchell that that

morning, Cochran had “kissed her at the bus stop .. . with his tongue.” S. also told Mitchell

that Cochranthadhad sex with her that morning. When Mitchell asked S. what that meant,

S. said “it means he humped me.” She demonstrated using two puppets in Mitchell’s office,

placing one on top of the other. Mitchell asked S. where Mother was during the incident.

S. said she was “in bed sleeping.” S. told Mitchell that Cochran “came into her bedroom and

said come here, I want to enjoy you.”

Mitchell again met with S. on September 17,2008. S. told Mitchell that Cochran had

had sex with her that morning, explaining that “he put his peepeenis on mypee-peeV’ S. also

reported that an incident had happened the previous night in her bedroom “while mommy

was sleeping in the other room.” S. told Mitchell that Cochran had kissed her with his

tongue, and that he had told her she “would get in trouble, deep trouble if she told anyone.”

S. also told Mitchell that Cochran “let [her] lick his pee-pee” and that she was ‘ upset and

scared.”

Another meeting took place on September 23,2008. S. told Mitchell that Cochran had

“humped” her the previous night, and put his “pee-pee” in her mouth. He then took her to

her bed, and took his shirt off and pulled his pants and boxers down. Cochran let S. “lick his

boob.” S. said Mother did not know, and she did no.t tell Mother because Cochran “won’t

let me out.” Mitchell asked S. to make a drawing of what happened. While S. was drawing,

she told Mitchell that she was “standing on my knees and (Cochran] put his pee-pee in my

Obutt all the way to the front and it hurt.” S. also used the dolls in Mitchell’s office to

demonstrate what had happened. S. narrated “here is me with my legs open and he did this.

And he said open my legs. Then he took his pee-pee and hold onto it and pushed it all the

way in there.” S. took the dolls and “demonstrated kneeling down and being mounted from

behind.” Mitchell again made a report to CPS. She testified that her reports always went to

both the Harford County Department of Social Services (“DSS”) and the Harford County

State’s Attorney’s Office. After this last meeting, Mitchell placed a telephone call to the

State’s Attorney’s Office. At some point thereafter, S. was.removed from school. Mitchell

did not see her again.

On cross-examination, Mitchell testified that she met with S. on September 25,2007,

because of S.’s behavioral problems in school. This, was shortly before S. first reported the

abuse to Mitchell. In her report from that meeting, Mitchell wrote that S. had been diagnosed

with a urinary tract infection. Mitchell testified that S. had not told her about the infection,

however. It is imclear who did tell her about the infection. Mitchell also reported that S. had

told her “that she slaps and spanks her one year old brother because she doesn’t want a baby.

She said I’m always mean to him, I don’t like him, I don’t want a baby brother, I don’t like

boys at all, I only like girls, I don’t like my baby brother.” Mitchell said that, in total, she

made nine reports concerning S. to DSS.

Dione White, a social worker with CPS, testified that she became involved with the

investigation concerning S. in October 2008. She referred S. to Paul Lomonico, M.D., for

an examination. S. was seen by him on October 2, 2008.

Dr. Lomonico was accepted by the court as an expert in pediatric medicine with a

specialty in conducting examinations of children for suspected sexual abuse. Dr. Lomonico

examined S. on October 2, 2008, with a foster mother present. His examination of S.’s

genitals revealed a “three millimeter pimple or papule or a little tuft” on the edge of S.’s

hymen. Near that, Dr. Lomonico observed a “little red erythematous patch,” and, in addition,

“an area that sort of looked like a little plaque, but it was fairly white.” Dr. Lomonico stated

the “little red patch” looked “rather haggered” and indicated a “trauma type episode” and

“irritation of some sort.” The white area “looked like a little bit of healing tissue.”

Dr.

Lomonico illustrated his findings on a drawing of female genitalia, which was admitted into

evidence. He opined that “there was some type of trauma to that specific area.” He stated

there was “no indication” that what he had observed on S.’s genitalia was due to a rash,

infection, or poor hygiene. He testified that he conducted a rectal exam of S., which was

: normal. He did not diagnosis S. with a urinary tract infection.

On October 16, 2008, Dr. Lomonico performed a follow-up examination of S. He

observed that the papule had “disappeared” and the red and white area had grown “very, very

faint to the point that you couldn’t see it at all.” On January 17, 2008, Dr. Lomonico

performed a third examination of S. The results were entirely normal.

Dr. Lomonico

opined that a normal examination does not “rule out sexual abuse” because [t]he area can

heal very, very quickly.” Also, the nature of the abuse - for example, “having a penis rub

the outside of the child’s genitalia” or “slight penetration of the labia majora of a child by an

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adult male” or “slight penetration of the penis into the rectum of the anus of a child [of S.’s]

age” — might not cause an abnormality.

Detective Keith Roach and Detective Kenneth Smith, of the Harford County Sheriff s

Office, testified that on October 1, 2008, they executed a search warrant on the Jarrettsville

home where S. was residing with Mother and Cochran. The warrant had been issued as part

of an ongoing investigation by the Harford County Child Advocacy Unit (“CAC”). Detective

Smith took photographs of the exterior and interior of the home, including of S.’s bedroom,

S.’s bed, Cochran and Mother’s bedroom, and the guns Cochran and Mother kept inside the

house. These photographs were admitted into evidence.

While conducting his search, Smith used a UV light and protective goggles to detect

the presence of “certain types of bodily fluids” on S.’s bed. If such fluids were present, they

would fluoresce under the UV light. Smith testified that the UV light detected several areas

that fluoresced on S.’s wood bed frame, box spring, and on the sheet covering the mattress.

Smith swabbed these areas to collect samples. He also seized several items from S.’s

bedroom, including a pink princess comforter from S.’s bed; three pillows and some items

of clothing on the bed; a washcloth from S.’s bedside night stand; and a pair of underwear

from the floor of S.’s bedroom.

Trooper Michelle Workman of the Maryland State Police was assigned to the CAC

and was involved in the abuse investigation concerning S. In July 2011, she obtained search

warrants to collect DNA from Mother and Cochran. She obtained samples from both of them

on August 1, 2011. A few days later, she obtained a DNA sample from S., after Father

provided his consent. Trooper Workman submitted the samples to the Maryland State Police

Forensic Science Division for analysis. She also submitted the evidence that had been

gathered from S.’s bedroom during the 2008 search. After receiving the results of the

analysis, she applied for an arrest warrant for Cochran.

Jessi Brown, a forensic scientist with the Maryland State Police was accepted by the

court as an expert in serology. Brown tested the items seized from S.’s bedroom, including

a pair of child’s underwear, a washcloth, a comforter, and swabs from the box spring and

■

wooden frame of S.’s bed, for the presence of bodily fluids such as urine, semen, blood,

saliva, and fecal matter. The tests revealed fecal matter on the washcloth, but no blood or

Semen. The swabs taken from the side of the box spring and the wooden bed frame revealed

the presence of semen and sperm cells. Browm forwarded these swabs for DNA analysis.

Brown found areas of the comforter that were stained with semen, sperm cells, and blood.

She took four cuttings from these areas of the comforter and forwarded them for DNA

analysis. Brown opined that the sperm cells on the comforter had been deposited there, and

were not secondary transfer, meaning “[i]t did not rub off from another item or in the wash.

In her opinion, the comforter had not been laundered after these stains were deposited.

•.'Aw' ‘ 7

Tiffany Keener, a forensic scientist with the Maryland State Police, testified that she

performed DNA analysis on the items forwarded by Brown. The DNA profile from the

swabs taken from the box spring and bedframe matched Cochran’s DNA profile. The DNA

profile for the sperm fractions of certain cuttings taken from the comforter also matched

Cochran. The non-sperm fractions of those cuttings contained DNA profiles consistent with

both Cochran and S.

Trooper Workman was recalled to the stand and testified that she had monitored

Cochran’s telephone calls while he was being held at the Harford County Detention Center

after his arrest. On September 27, 2012, and October 1, 2012 (during the course of the first

trial in this case), Cochran placed calls to his mother. Recordings of the two phone calls

were moved into evidence and played for the jury. The jurors also were given transcripts of;

the phone calls.

In the first call, Cochran told his mother that the “DNA really hurt us.” He continued:

tomorrow, when you get up on the stand, when [Defense counsel] asks you

how long was that bed in [S.’s] room before they took her, make sure you say

a month, a month and a half before they took [S.] away from us . . . and if he

asks you about the comforter, say yes, me [Cochran] and Angie [Mother] had

it on our bed from when we’s getting ready to do clothes and we made love on

it. And if he asks you if I was ever alone with [S .] or take, giving her a bath,

you say no.

In the second phone call, Cochran’s mother mentioned something about the “detail

work” on S.’s dresser and bed, and said “how does [the State’s Attorney] know that I didn’t

have my nephew Robby do the detail work? He has a pinstriper and shit.” Cochran

responded that he just told his attorney that he, Cochran, did the detail work and the

“woodworking and everything.”

The defense called Theodore Hariton, M.D., who was accepted as an expert in the

field of forensic gynecology. In relevant part, Dr. Hariton testified that he had reviewed Dr.

Lomonico’s examination of S. on January 17, 2008, which took place the day after S. had

told Mitchell that Cochran had abused her the previous night (January 15,2008). Dr. Hariton

■ opined that that examination showed “no medical evidence of any penetration of [S.] by

anybody.

He defined penetration” as “[t]he tip of the penis going to and into the hymenal

ring.” He further opined that “if [S.] had been penetrated less than forty-eight hours [before

Dr. Lomonico s examination on January 17, 2008], she would have a history of bleeding, a

^history of pain and she would have had physical finding of redness, swelling, bruising or

some variation thereof.”

Dr. Hariton also reviewed Dr. Lomonico’s October 2, 2008 examination of S., in

which Dr. Lomonico had found the red and white patches and the red papule on S.’s

genitalia. Dr. Hariton opined that anything could have caused such signs, including irritation

from “bubble baths” or “poor hygiene” or laundry soap. In Dr. Hariton’s opinion, the

condition was unlikely to have been caused by trauma, because trauma “gives you injuries,

gives you tears, bruising.” Dr. Hariton opined that there was no evidence of sexual abuse in

S.’s October 2, 2008 examination.

On cross-examination, Dr. Hariton acknowledged that he is not a pediatrician, has

■ never performed an abuse examination on a prepubescent child, and did not speak with or

examine S.

S. was called to testify in the defense case. She stated that she did not remember

telling a Ms. Francis that someone named David touched her “kitty” or put his penis in her

“butt-butt,”(although she did remember saying that David took her clothes off. She did not

remember saying that someone named James did these things to her.

cS. testified that she remembered telling a “Ms. Sera” that David Hurst and Father had

humped her, and that Cochran had never humped her.'S. remembered telling a Ms . Alethea

Miller that a David Albert had touched her, but she did not remember saying that David

Albert had kissed and humped her. She also did not remember telling Ms. Miller that

Cochran’s penis had the words pee-pee written on the side of it.

On cross-examination, S. explained that David Albert “knew my mom after all this

happened . . . my mom told me to say that my dad . . . did it and that Shane didn’t do it and

that David Albert did it.” S. said she had been lying when she told Ms. Miller that David

Albert kissed and humped her, and that it was David Hurst who had done these things

instead. S. further explained that she was lying when she told Ms. Sera that Father humped

her and that Cochran never humped her; she said she told Ms. Sera those things because

Mother had told her to.

The defense called Sera Rothwell, a social worker with the DSS who had interviewed

S. at the CAC in January of 2008. Rothwell testified that when she asked S. “did anything

happen last night with Daddy Shane,” S. responded “Nope.” Rothwell further testified that

S', responded “No” when asked “has anyone else ever done this to you other than [Father].”

On cross examination, Rothwell stated that S. said David had humped her a “long time ago.”

She also stated that Mother had driven S. to the interview.

The defense also called Alethea Miller, a forensic interviewer and family advocate at

the CAC who had interviewed S. in October 2008. S. told Miller that she had seen Cochran’s

penis and that “[i]t looked like it has brown and it says pee-pee on the side of it.” S. also told

Miller that when Cochran humped her, “he says do you want to like suck my pee-pee and

[she] said no.”

Cochran testified in his own defense. He met Mother in September 2006 through a

telephone “chatline.” Mother moved in with him a few days later. They both were

unemployed. S. moved in with Cochran and Mother in May 2007. Also living in the same

house were Cochran’s mother, aunt and.uncle, and two cousins. S. lived with Cochran for

a little more than a year. Eventually, Mother and Cochran were married and had two children

together.

With regard to S.’s comforter, on which his DNA was found, Cochran stated that

Mother removed it from S.’s bed to wash it and placed it on their bed, along with other

clothes. He and Mother “wound up making love onit twice.” His mother put it back on S.’s

bed, even though it had not been washed. This all happened about two weeks before the

house was searched.

Cochran explained that the bed frame and box spring that S. used had been in his room

since 2005, before he met Mother, and that he and his then-wife had been “intimate” on that

furniture about two times per week before it was moved to S.’s room. Cochran modified the

furniture for use in S.’s room by “ma[king] the bedposts ... for a canopy to make it a

princess bed and I painted the princess and the fairies on the bed.”

Cochran heard the telephone calls that were played in court, and claimed that he

“wasn’ t telling my mom what to say.” Rather, he “was trying to remind her what she was

going to say.” He claimed that his mother “had a brain tumor the size of a golf ball.”

Cochran denied having had any inappropriate contact with S.

On cross-examination, Cochran stated that he had been married before he met Mother,

and that the twin bed in S.’s bedroom had originally been purchased in 2005 by his mother

for use by him and his then-wife, Jessica. He and Jessica had used that bed for about nine

months before Jessica moved out. He claimed they had “made love” in it.

Cochran stated that about three months before S. moved in, he had moved the box

spring and the bedframe into S.’s room. He claimed that had happened in 2008. When

reminded that S. had moved in during 2007, Cochran claimed that S. had slept on a blowup

mattress between the time she moved in and the time he moved the bed into her room m

2008. He and Mother had been sleeping in the bed in the meantime, for “a little over a year.”

Cochran and his mother purchased the dressers and the night stand in S.’s room in

2008 from Penn Dutch Structures in Shrewsbury, Pennsylvania. Cochran put a princess,

fairy, and flower design on the bed to match the new furniture. Cochran acknowledged that

he did not have the invoices for the bed or for the other furniture, and had no medical

evidence of his mother’s alleged brain tumor or memory problems.

On rebuttal, the State called Melissa Hostler, owner of Hostler’s Furniture Store in

New Park, Pennsylvania. Hostler testified that on November 4, 2007, Cochran and his

mother had visited her store and purchased several pieces of furniture, including a “little

girl s bedroom suit [sic] which would have been a twin bed, a dresser, a mirror and

nightstand.”

The invoice from that transaction was admitted into evidence.

Hostler

described the twin bed as consisting of four posters, with an attachment for a canopy, a

headboard, footboard, and rails. Hostler obtained a photograph of the bedroom set - called

“Ashley Blossoms”- from the manufacturer, which was admitted into evidence.

We shall include additional facts as relevant to our discussion of the issues.

DISCUSSION

Recorded Telephone Calls

As discussed, the State moved into evidence and played for the jury a recording of two

telephone calls between Cochran and his mother that Cochran placed from the Harford

County Detention Center during the first trial in this case. Each call is prefaced by an

automated message that alerts the participants that “this call will be recorded and is subject

to monitoring at any time,” and also identifies Cochran as an inmate.

After jury selection, the prosecutor brought to the court’s attention that the State

intended to move the recorded telephone calls between Cochran and his mother into

evidence. The prosecutor argued that Cochran was “coaching” his mother’s testimony,

which tended to show a consciousness of guilt. Defense counsel objected. The court ruled

that the recordings would come in, with certain portions excised. The following colloquy

then took place:

[DEFENSE COUNSEL]: Your Honor, there are two other points if I

may. One, it is going to be obvious to the jury that Mr. Cochran is

incarcerated. I think that is going to be prejudicial.

More importantly, the jury will know , that there was some other

proceeding and I think it is going to be obvious that there was, in fact, another

trial. ...

* * *

THE COURT: ... I agree with [Defense Counsel] we don’t want the

jury sitting there speculating about a prior trial, mistrial or whatever. We can

say a proceeding prior to this trial or something which would give the

impression it was just a pretrial matter, not another trial. I think that kind of

cleanses everything, doesn’t it?

[PROSECUTOR]: I agree.

[DEFENSE ATTORNEY]: That’s acceptable, Your Honor.

THE COURT: You still have the whole issue on the phones of where

he is at the time and certainly I don’t know any way around that. I know that

this has come up in the past in trials and in a perfect world I would rather them

not know it and we do everything in the courtroom so it does not appear that

he is incarcerated, but Mr. Cochran is entitled to a fair trial and the State is

entitled to a fair trial, and the statements are certainly highly probative. The

probative value I believe does outweigh the prejudicial impact. I’m wide open

for any creative way to sanitize it from that. I’m a willing audience if we can

come up with something. I know that this has come up in the past and it has

come out. Frankly ... I would being [sic] shocked if there is any juror that

doesn’t think that somebody charged with something as serious as this isn’t

being detained.

The prosecutor went on to explain that the portions of the calls to be played for the

jury needed to include the automated message alerting the participants that the calls were

being recorded and monitored; otherwise, the jurors would speculate that the State had acted

illegally by recording the telephone calls. The court agreed, stating, “I understand. Because

if we didn’t have that, [the jury] would [speculate]. They would be back there for three hours

debating whether the State violated a wiretap statute or something. I agree with that.”

Immediately before the State moved the recordings into evidence, the following

colloquy took place:

THE COURT: My only concern is I think we also discussed the other

day and I wanted to remind everybody that obviously [the recording] interjects

that Mr. Cochran was in jail, but you may want to . . . maybe phrase the

question along the lines at a time when Mr. Cochran was being held on these

charges. How do you want to do it [Defense counsel]?

[DEFENSE COUNSEL]: It’s obvious that [Cochran] is in the D etenti.on

Center. I guess that says it as well as anything else.

THE COURT: I mean, we can just let it be what it is or what we have

done in other cases is it was at a time when he was being held in the Detention

Center pending charges. However you want to say it.

[DEFENSE COUNSEL]: Right. I would ask that there be very little

comment on that.

* * *

THE COURT: I’m talking about how it is that [Cochran] is in the

Detention Center.

[DEFENSE COUNSEL]: Yes.

THE COURT: In other words, there was a period of time when he was

being held on these charges at the Detention Center. Is that okay?

[DEFENSE COUNSEL]: Yes, that’s fine.

Before the recording was introduced, the prosecutor asked Trooper W orkman if “there

came a time . .. that you began monitoring telephone calls from the defendant while he was

being held at the Harford County Detention Center.” Trooper Workman responded yes, and

the recorded calls were introduced and played for the jury. Defense counsel did not object

when Trooper Workman was asked about Cochran being held at the Detention Center, or

when the recording was introduced and played.

On appeal, Cochran contends the trial court erred in admitting the recording of the

telephone conversations because it “obviously made the jury aware that Cochran was

incarcerated. This was unduly prejudicial and outweighed any incremental probative value

the content of the calls may have had for the State’s case.” Cochran asserts that “[a]ny

concern over the propriety of the recording of the calls by the State could have been

addressed by a neutral instruction or stipulation.”

The State responds that Cochran did not preserve this issue for review because he did

not renew his objection before the recording of the telephone calls was introduced at trial.

We agree.

Rule 4-323, entitled “Method of making objections,” states that “[a]n objection to the

admission of evidence shall be made at the time the evidence is offered or as soon thereafter

as the grounds for objection become apparent. Otherwise, the objection is waived.” Md.

Rule 4-323(a). The Court of Appeals often has stated its “commitment to the requirement

of a contemporaneous objection to the admissibility of evidence in order to preserve an issue

for appellate review.” Brown v. State, 373 Md. 234, 242 (2003). And it has often

reiterated the general rule in Maryland that “where a party makes a motion in

limine to exclude irrelevant or otherwise inadmissible evidence, and that

evidence is subsequently admitted, the party who made the motion ordinarily

must object at the time the evidence is actually offered to preserve [its]

objection for appellate review.”

M. (quotingReedv. State, 353 Md. 628,637 (1999)) (emphasis added) (alterationingrown).

Here, defense counsel did not make a contemporaneous objection when the State

sought to introduce the recording of the telephone calls through the testimony of Trooper

Workman. It was the judge who raised the concern that the recording “interjects that Mr.

Cochran was in jail.”

. Moreover, even if this issue were preserved, defense counsel agreed with the court’s

proposal to preface the introduction of the recording by stating “there was a period of time

when [Cochran] was being held on these charges at the Detention Center.” Obviously, that

preface made clear that Cochran was incarcerated, quite apart from the automated message

that prefaced each call. Defense counsel did not at any time argue for an alternative way to

introduce the recording, such as with a “neutral instruction or stipulation,” as he now argues

on appeal. Thus, this issue has been waived.

Finally, the issue lacks merit in any event. The prefatory language merely stated that

Cochran was in the Detention Center pending the charges in this case. This communicated

to the jurors that he was incarcerated awaiting trial, not because he had been found guilty of

any crime. The trial court did not err in allowing this prefatory language to be used to

explain why and where the calls were recorded.

II.

S.’s Competence To Testify

Before S. testified, she was examined outside the presence of the jury to determine

whether she was competent. She was sworn and the prosecutor asked her a number of

questions, including her parents’ names, the school she was attending, and the grade she was

in. She answered the questions correctly. The prosecutor continued:

[PROSECUTOR]: What is a promise?

[S.]: A^promise is something that you tell someone - you tell

■something that is true.

[PROSECUTOR]: And if you make a promise?

[S.]: It is something that you can keep.

* * *

[PROSECUTOR]: If you make a promise, does that mean that you can

maybe do it or you have to do it?

[S.]: I have to do it.

[PROSECUTOR]: Now, you made a promise to tell the truth. Is that

right?

[S.]: Yes.

[PROSECUTOR]: What is the truth?

[S.]: The truth is something that you have to tell that you believe in.

[PROSECUTOR]: So, can you make up the truth?

[S.]: No.

[PROSECUTOR]: If I said to you, [S.], my jacket that I’m wearing is

purple, would that be the truth or would that be a lie?

[S.]: A lie.

[PROSECUTOR]: Why is it a lie?

[S.]: Because you jacket is really red.

[PROSECUTOR]: So what does it mean to tell a lie? What is a lie?

[S.]: A lie is something that is not true.

[PROSECUTOR]: Is a lie something that is real or something that is

made up?

[S.]: Something that is made up.

* * *

[PROSECUTOR]: . . . What happens to you if you were to tell a lie?

[S.]: If I told a lie here I would probably go to jail, but when I tell a lie

, at home I get punished . . .

* * *

[PROSECUTOR]: Now, there was just a holiday a few weeks ago. Is

that right?

[S.]: Yes.

[PROSECUTOR]: Do you remember what it was?

[S.]: Thanksgiving.

[PROSECUTOR]: Did you go anywhere for Thanksgiving?

[S.]: I just stayed at home with just me and my dad.

[PROSECUTOR]: What did you do? Did you do anything special?

[S.]: Well, we like had turkey and I had a casserole. I don’t like onions,

but he give [sic] me onions. It had onions on it and that is how the casserole

was made. Then we watched T.V. and we watched a movie.

The prosecutor asked the court to find S. competent to testify. The court asked

defense counsel if he wanted to be heard. Defense counsel stated, “Your Honor, just one

statement concerned me where [S.] said truth is something that you believe. So, that could

certainly imply something that she really believes, really believes to be true even if it is not

the truth.” The court responded “I agree with you I was a little concerned with that and then

[the prosecutor] asked the follow-up and [S.] then said you can’t make up the truth. I did

hear that and my antennas were up. Is there anything else?” Defense counsel responded,

“No, Your Honor.”

The court found S. competent to testify, explaining

That certainly got my attention when [S.] said that [about the truth being

something you believe in], butthen she immediately followed up and indicated

that you can’t make up the truth.

The factors and standards are set forth in Perry versus State and Jones

versus State. This young lady has indicated that she does know the difference

between the truth and a lie. She has indicated through her testimony so far the

ability to observe, to understand/to recall, to relate happenings while

conscious of a duty to speak the truth, which are I think the factors set forth in

those cases. So, the Court does find that [S.] is competent to testify.

After the jury returned to the courtroom, the prosecutor again asked S. the competency

questions, and she gave substantially similar responses. The prosecutor asked the court to

find S. “qualified to testify” and the court responded “[o]kay.” S. then testified.

Cochran contends the trial court abused its discretion in finding S. competent to

testify, because the questions posed elicited that S. thought that her belief in a fact was a

component if its [sic] truth,” and also because the questions posed were “inadequate to

support the finding that [S.] was sufficiently able to observe, recall, and relate events.”

The State responds that defense counsel did not object to the court’s competency

finding, and that Cochran’s argument is not preserved for review. Even if preserved, the

court did not abuse its discretion in deciding that S. was competent to testify. We agree with

the State on both points.

Md. Rule 8-131(a) provides that appellate courts ordinarily will not decide an

issue not raised in or decided by the trial court. In other words, the appellate

' courts will only address issues that are properly preserved for review, and

issues that are not preserved are deemed to be waived.

Bryant v. State, 436 Md. 653, 659 (2014) (footnote omitted). As discussed in section I,

supra, Rule 4-323(a) requires “[a]n objection to the admission of evidence” to be made “at

the time the evidence is offered .... Otherwise, the objection is waived.”

Defense counsel did-not argue below that S. was not competent to testify. He stated

instead that “just one statement concerned me where [S.] said truth is something . . . that she

really believes, really believes to be true even if it is not the truth.” The judge agreed that

this statement was concerning, but noted that upon further questioning, S. had said “you can’t

make up the truth.” Defense counsel had no further comment, and made no argument that

S. was insufficiently able to observe, recall, and relate events, as Cochran now argues on

appeal. He also did not object when, in the presence of the jury, the prosecutor offered S. as

competent to testify. Accordingly, Cochran’s argument is not preserved for review.

Even if preserved, the trial court did not abuse its discretion in finding that S. was

competent to testify.

The determination of a child's competence to testify is generally left to the

sound discretion of the trial judge, whose judgment will not be disturbed on

appeal, absent an abuse of that discretion. ... In determining a child's

competency, the test is not the age of the child, but the child's reasonable

ability to observe, to understand, to recall, and to relate happenings while

conscious of a duty to speak the truth. When the issue is raised, the trial judge

should conduct an examination out of the presence of the jury to develop the

factual basis for a competency determination.

Matthews v. State, 106 Md. App. 725, 740-41(1995)(intemal citations omitted).

“A

competency determination, based upon the application of a test, requires that the trial court

make findings of fact. ... We apply the ‘clearly erroneous’ standard of review to that factual

finding.” Jones v. State, 410 Md. 681, 699 (2009) (emphasis omitted).

Based on S.’s examination, the court found she “doesrknow the difference between

the truth and a lie. She has indicated through her testimony so far the ability to observe, to

understand, to recall, to relate happenings while conscious of a duty to speak the truth.” This

• finding was supported by the answers S. gave in response to the prosecutor’s questions. S.

correctly identified her parents, her school, and her grade. She stated that if she made a

promise, she “[had] to do it,” and acknowledged that she had promised to tell the truth. She

said that one cannot “make up the truth,” and correctly described as a lie the prosecutor’s

representation that she (the prosecutor) was wearing a purple jacket, when her jacket was red.

S. stated that she “would probably go to jail” if she told a lie in court. She was able to recall

her recent Thanksgiving holiday, and narrated events that happened on that day. Based upon

these responses, the court’s factual findings regarding S.’s competency were not clearly

erroneous, and it therefore did not abuse its discretion in finding S. competent to testify.

III.

Mitchell’s Hearsay Testimony

Before Mitchell testified, the prosecutor informed the court that she was offering

Mitchell’s testimony about S.’s reports of abuse “as prompt reports of sexual assault,” an

exception to the rule against hearsay. See Md. Ruie 5-802.1(d).3 She proffered that “you will

hear things like this morning and last night Shane humped me. It is that reason.”

The prosecutor explained that Mitchell’s testimony also was admissible “through the

child hearsay statute,” but that the statute only would apply if there were no other applicable

hearsay exceptions.

See Md. Code (2001, 2008 Repl. Vol., 2013 Supp.), section 11-

304(d)(l)(i) of the Criminal Procedure Article (“CrP”).4 She suggested that the court

conduct a hearing on the issue out of the presence of the jury, “just in case the Court decides

3That Rule provides as an exception to the rule against hearsay “[a] statement that is

one of prompt complaint of sexually assaultive behavior to which the declarant was subj ected

if the statement is consistent with the declarant's testimony.”

4That statute provides, in relevant part, that “an out of court statement by a child

victim may come into evidence in a criminal proceeding ... to prove the truth of the matter

asserted in the statement: (i) if the statement is not admissible under any other hearsay

exception . . . .”

it is not a prompt report.” The court agreed, explaining “it does sound like a prompt report,”

but noting that “[i]t doesn’t hurt to have two basis [sic] for it, does it?”

The court then held a hearing outside the presence of the jury. Mitchell was examined

about the various statements S. made to her concerning Cochran. At the conclusion of

Mitchell’s testimony, the following ensued:

[PROSECUTOR]: Your Honor, I guess listening to the statements, I

think there are several that are clearly coming in under the prompt report of a

recent sexual assault. There were several where [S.] talked about it being last

night.

THE COURT: Right.

[PROSECUTOR]: I think actually the majority of them would fall

under that exception.

“In case they [didn’t],” the prosecutor argued that Mitchell’s testimony about S.’s

reports of abuse also met the factors set forth in Cr.P. section 11-304. The court asked for

defense counsel’s input. He responded, “Your Honor, I would just request of the Court if

Your Honor does allow these reports in that I be allowed to question them in its entirety and

be able to cross examine Ms. Mitchell regarding anything she may have written in that

report.” The prosecutor clarified that she was not introducing the “paper reports” but

Mitchell’s testimony about the reports. The court told defense counsel, “If [Mitchell] touches

on certain things you can certainly cross examine it.”. Defense counsel responded, “Very

well.”

The court ruled as follows on the admission of Mitchell’s testimony:

... [T]he State is offering these statements under two basis [sic]. The first one

is prompt report of rape or sexual offense. Certainly I think the vast majority

of them do satisfy that exception to the hearsay rule and would be admissible

under that. There may have been one of them in there where it is hard to tell

if it was or wasn’t, namely the context of the later ones that would seem to

indicate that, yes, it would be when you take a look at all of them.

The court further explained that the statements also met the criteria for admission under

Cr.P. section 11-304, in that they contained “specific guarantees of trustworthiness.” The

court concluded, “So ... I will admit the statements] under both theories.”

On appeal, Cochran contends Mitchell’s testimony about the reports of abuse S. made

to her was hearsay that “was not admissible under the statute [Cr.P. section 11-304] because

the hearsay statements of [S.] lacked the particularized guarantee of trustworthiness required

by § 11-304(e).”

The State counters that this issue is not preserved for review. It argues further that the

court admitted Mitchell’s testimony under Cr.P. section 11-304 and Rule 5-802.1(d) and

Cochran did not object to the admission of Mitchell’s testimony under the latter. Therefore,

we need not consider whether the court’s analysis of the relevant Cr.P. section 11-304 factors

was correct. We agree-with the State on both points.

Defense counsel did not object to the court’s admission of Mitchell’s testimony under

either Cr.P. section 11-304 or Rule 5-802.1(d); rather, he requested only to “be able to cross

examine Ms. Mitchell regarding anything she may have written” in her reports. For this

reason, Mitchell’s argument is not preserved for review.

Furthermore, Cochran only argues on appeal against the court’s decision to admit

Mitchell’s testimony under Cr.P. section 11-304, leaving unchallenged the court’s ruling that

the testimony also was admissible under Rule 5-802.1(d).

IV.

Cross-Examination

On cross-examination of S., defense counsel asked, “When you were four years old,

do you remember an interview when you were talking to someone about someone touching

you?” The prosecutor objected and a bench conference ensued:

[PROSECUTOR]: This is not relevant. When [S.] was four years old

it was 2006. The testimony from her father is that [Cochran] wasn’t even in

the picture.

* * *

[DEFENSE ATTORNEY]: Your Honor, whatthis is intended to show

is that she could have gained knowledge of inappropriate sexual knowledge at

a very early age. At the last proceeding she indicated that she did remember

that conversation when she was four.

THE COURT: But let’s assume that she had been victimized by David

Hurst when she was - I thought the testimony from the father was when she

was three.

[PROSECUTOR]: Three.

[THE COURT]: What is the relevance of that to her accusation against

this man when she didn’t even know him?

[DEFENSE COUNSEL]: I understand that, Your Honor. The relevance

is it would show age inappropriate knowledge, that at a very young age she is

gaining this carnal knowledge. It could also show confusion.

THE COURT: Haven’t you already developed that through the father?

[DEFENSE COUNSEL]: Well, yes, but it would be nice to .reinforce

it with this witness.

THE COURT: But in reenforcing it there has to be an element of

fairness and I think all you are doing now is confusing her. She is still a ten

year old girl on the stand. I mean, I understand the importance of that

information, but have you not developed it so that you certainly can have that

stocked away to argue in your closing?

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: I understand the value of that. So, I’m not taking that

away from you. That is certainly an issue. As it pertains to asking this girl

now as it relates to her direct examination, I think it would at least go beyond

the scope of the direct if nothing else, not to mention some fundamental

fairness in cross examining a ten year old girl.

[DEFENSE COUNSEL]: That is the difficult part.

THE COURT: And I don’t envy you at all. But at this point it is at least

beyond the scope of direct.

[DEFENSE COUNSEL]: That’s fine.

THE COURT: It certainly deals with a timeframe where . . . Mr.

Cochran wasn’t even on the scene yet. So, I understand what you wanted to

develop, but I think you have gotten it already out of one witness. So, it is

there in your hip pocket for closing argument.

Cochran argues that the trial court erred in “unduly limiting cross-examination of [S.]

as to her recollection of statements by her relating sexual abuse by others before Cochran and

her mother met.” He contends that this line of inquiry was relevant because it would have

developed “evidence that would have supported [his] defense theory that there was a prior

source for [S.’s] ability to relate details of abuse.” He also argues that “[s]uch questions, in

(

the context of this case, were the equivalent of cross-examination questions directed as

uncovering a witness’s bias, which is always permissible and within the scope of direct.”

The State responds that we need not address the question of error, because defense

counsel asked these very questions of S. during his direct examination of her during the

defense case. Therefore, regardless of whether the court erred in limiting the scope of

Cochran’s cross-examination of S. during the State’s case in chief, there was no prejudice

because the defense directly examined S. on the contested issue of S.’s reports of abuse

before Mother met Cochran. We agree.

Defense counsel called S. to testify as the first witness for the defense. The following

colloquy ensued:

[DEFENSE ATTORNEY]: Now, [S.], I know that you have talked to

a lot of people about what happened, about Mr. Shane and about other people.

Right?

[S]: Yes.

[DEFENSE ATTORNEY]: I know that for some of those conversations *■

you were pretty young. You were maybe four or five years old. Right?

[S]: Yes.

* * *

[DEFENSE ATTORNEY]: I’m going to take you back a little ways to

when you were about four or five years old. Do you remember saying that

David and James did bad things to you?

[S]: No, I do not.

[PROSECUTOR]: Your Honor, could I have a reference as to which

one you are questioning her from?

A bench conference then took place, during which the following colloquy ensued:

[PROSECUTOR]: [Defense Counsel] is referring to the interview that

done

about David Hurst. That’s what he is referring to and that’s what I

was

was afraid of. It is going to confuse [S.], do you remember the one that

happened before Shane was even in the picture.

[DEFENSE COUNSEL]: You Honor, it goes to age inappropriate

knowledge. [S.] could have gained age inappropriate knowledge from these

activities. If you recall, Mr. Harris the father testified THE COURT: I think it is only fair if you’re going to do that that you

point out to her that this was before she ever knew Mr. Cochran.

[DEFENSE COUNSEL]: That’s fine.

Defense counsel then resumed his direct examination of S.:

[DEFENSE COUNSEL]: [S.], I know this can be a little confusing

because you talked to so many people about this. Let me try to be as helpful

as possible, because I know you want to be helpful. What I’m talking about

now is when you spoke to a Ms. Francis, and you may not remember her, but

you may remember talking about it. Now, this was before you met Mr. Shane.

Do you remember saying that David touched your kitty?

[S]: No.

[DEFENSE COUNSEL]: Do you remember saying David took your

close [sic] off?

[S]: Yes.

[DEFENSE COUNSEL]: Do you remember saying that David put his

penis in your butt-butt?

[S]: No.

[DEFENSE COUNSEL]: Do you remember saying James did this, too,

to you?

[S]: No, I do not.

[DEFENSE COUNSEL]: . . Now, this time I’m going to talk about

something a little more recent after you met Mr. Shane. You were speaking

to a Ms. Sera. . . . Did you say that David humped you?

[S]: Which David?

[DEFENSE COUNSEL]: David Hurst.

[S]: Yes.

[DEFENSE COUNSEL]: Do you remember saying Harold humped

you?

[S]: Yus.

* * *

[DEFENSE COUNSEL]:... Now, another time ... you spoke to aMs.

Miller and this was a little later in 2008. So, you were probably about six

years old. Okay?

* * *

[DEFENSE COUNSEL]: . . . Do you remember saying that David

Albert touched you?

* * *

[S]: Yes.

[DEFENSE COUNSEL]: D o you remember saying D avid Albert kissed

and humped you?

[S]: No.

It is clear from the foregoing that defense counsel, on direct examination, asked S.

about the abuse she reported that involved men other than Cochran, and before Mother met

Cochran. This was the same line of inquiry the court prohibited defense counsel from

pursuing during cross-examination in the State’s case, and that defense counsel argued was

relevant to show how S. may have gained “age inappropriate knowledge” apart from her

experience with Cochran. Because the defense was permitted to pursue this inquiry on direct

examination of S., Cochran could not have suffered prejudice even if the scope of his crossexamination of S. was unduly limited.

Defense Expert’s Testimony

As noted, Dr. Hariton testified for the defense as an expert in the field of forensic

gynecology. Dr. Hariton was voir dired outside the presence of the jury. The following

relevant information was adduced. Dr. Hariton is a licensed medical doctor who is board

certified in the area of obstetrics and gynecology. He is not a pediatrician. He is a member

of several gynecological associations, including the North American Society for Pediatric and

Adolescent Gynecology, and the American Professional Society on the Abuse of Children.

At that time, he had practiced for 44 years, and estimated that he had performed 100,000

gynecological exams, of which 250 to 300 involved prepubescent girls. He had examined

these girls because they had suffered “trauma. Not sexual, but for trauma; they fall on

bicycle bars, they fell on a fence, infection.” He never had performed a sexual abuse

examination on a prepubescent girl.

Dr..Hariton had attended educational classes about the sexual abuse of children. He

' had been retained approximately 350 to 400 times in the past to review sexual abuse cases,

at least a third of which concerned examinations for child sexual abuse. %e had received

' training in sexual abuse examinations, and had lectured on the topic.

Defense counsel offered Dr. Hariton as an expert “specifically dealing with sexual

abuse exams.” The prosecutor objected, and the following colloquy ensued:

THE COURT: Well, why don’t you proffer to me what [Dr. Hariton]

will opine.

[DEFENSE COUNSEL]: <Your Honor, what he would opine is, one,

photographs should have been taken in [Dr. Lomonico’s] exam [of S.]. That

that is the standard of care. Dr. Lomonico simply made drawings and

photographs are what should be used.

Secondly, there could be other causes of the so-called trauma that was

noted in the October exam and if there would have been sexual activity on

January 16th, 2008, the day when [S.] reports the abuse to Ms. Mitchell'at the

school, that there would have been something showing up there in the exam

from Dr. Lomonico on January 17th. That’s it.

THE COURT: . . . [Dr. Hariton] certainly has qualifications, but here

we’re talking about he’s going to critique the standard of care of a

gynecological exam relating to sexual abuse of a prepubescent female child

when he has never done that. So, how does he testify to the standard of care

when he has never done that?

* * *

[DEFENSE COUNSEL]: As a matter of routine in exams involving

any kind of trauma, whether sexual or trauma, that photographs should be

■ taken.

THE COURT:... I have had tons of these cases in the past twenty-five

years and I have had plenty of them without photographs because it just further

traumatizes the young girl. So, that doesn’t even make sense to me. I mean,

I don’t see what that is based on.

What was the other thing? The standard of care is one thing. That’s a

medical malpractice issue.

[DEFENSE COUNSEL]: That there would have been some kind of

physical evidence.

THE COURT: How does that tie into'that [Dr. Lomonico] should have

taken photographs? How does that tie in with the opinion?

[DEFENSE COUNSEL]: I can stay away from the photographs if Your

Honor doesn’t feel that is appropriate.

* * *

THE COURT: If you want to offer him, offer him in forensic

gynecology. As to the standard of care for the photograph, I don’t see where

he is qualified to comment on that on sex abuse or alleged sex abuse

examinations on victims who are prepubescent girls. That is why I have a

problem with that. ... I think he is qualified on [the issue of whether there

would be physical evidence if abuse had occurred the night before] .. . but as

to the photography I don’t think he is qualified.

Cochran contends the trial court erred by prohibiting him from eliciting Dr. Hariton’s

opinion that Dr. Lomonico should have taken photographs during his examinations of S. He

argues that, although Dr. Hariton had never performed a child sex abuse examination, he had

‘^extensive experience reviewing sex abuse cases, including child sex abuse ... had received

training on the subject, and ... had lectured and taught on the subject.” Therefore, the court

should have found Dr. Hariton qualified to opine on the standard of care in child sex abuse

examinations -uncluding the taking of photographs - pursuant to Rule 5-702.

Cochran further argues that this error was not harmless because

Dr. Lomonico’s finding of physical evidence of trauma was a crucial element

of the [Sjtate’s case. rHis failure to photograph what he claims to have seen

made it impossible for Dr. Hariton to persuasively challenge his finding. The

State relied on this inability in both cross examination and argument by

stressing that Dr. Hariton had not personally examined [S.]. Given the lack of

a photographic record of the examination, it was of course impossible for Dr.

Hariton or the defense to respond. If, in fact, the defense had been able to

persuade the jury that there were no physical signs whatever of any abuse, the

jury’s evaluation of the totality of the evidence, including the credibility of [S.]

and Cochran, might have been different.

Rule 5-702, entitled “Testimony by experts,” provides:

Expert testimony may be admitted, in the form of an opinion or otherwise, if

the court determines that the testimony will assist the trier of fact to understand

the evidence or to determine a fact in issue. In making that determination, the

court shall determine (1) whether the witness is qualified as an expert by

knowledge, skill, experience, training, or education, (2) the appropriateness of

the expert testimony on the particular subject, and (3) whether a sufficient

factual basis exists to support the expert testimony.

“It is the general rule that the admissibility of expert testimony is within the sound discretion

of the trial judge and will not be disturbed on appeal unless clearly erroneous.” Wilson v.

State, 370 Md. 191, 200 (2002).

The trial court’s decision not to permit Dr. Hariton to testify that Dr. Lomonico

breached the standard of care by failing to take photographs during his examinations of S.

was not an abuse .of discretion. The court pointed out, and emphasized, that Dr. Hariton

never had performed a sexual abuse examination on a prepubescent girl.

The court

concluded that, without having any experience actually performing such an examination, Dr.

Hariton was not qualified to opine that the examination as performed by Dr. Lomonico —

who had extensive experience performing such examinations - was substandard because it

was documented by means of drawings, not photographs. The trial court concluded that,

despite his other experience, Dr. Hariton was not qualified to offer such standard of care

testimony. Having made that finding, the trial court appropriately concluded that the

proposed opinion testimony would not assist the trier of fact in understanding the issues or

the evidence, and ruled the proposed opinion inadmissable. This was not an abuse of

discretion.

VI.

Jury Instruction

At the close of all the evidence, the court gave the following instructions, in relevant

part:

Members of the jury, the time has come to explain to you the law that applies

to this case. The instructions that I give you about the law are binding on

you. In other words, you must apply the law as I explain it to you in

arriving at your verdict. On the other hand, any comments that I may

make about the facts are not binding upon you and are advisory only. It

is your duty to decide the facts and apply the law to those facts.

* * *

Each of you must decide the case for yourself, but do so only after an impartial

consideration of the evidence with your fellow jurors. In the course of your

deliberations, do not hesitate to reexamine your own views and change your

opinion if you are convinced it is erroneous. But do not surrender your honest

conviction as to the weight or effect of evidence solely because of the opinion

of your fellow jurors, or for the mere purpose of returning a verdict. You are

not partisans. Since this is a criminal case, you are judges, judges of both

the law and the facts. Your sole interest is to ascertain the truth from the

evidence in the case.

The question of punishment or penalty in the event of conviction is no

concern of the jury and should notenter into or influence your deliberations in

any way. ...

(Emphasis added.)

Cochran contends that by instructing the jurors that they were “judges of both the law

and the facts” the court violated Cochran’s right to due process and a fair trial. See Unger

v. State, 427 Md. 383 (2012). He acknowledges that defense counsel did not object, but

argues that we should recognize the instruction as plain error and grant him a new trial.

Article 23 of the Maryland Declaration of Rights states, in relevant part: “In the trial

of all criminal cases, the Jury shall be the Judges of Law, as well as of fact.” At one time,

ibased on this language, courts in criminal trials routinely instructed jurors that they were the

“judges of the law,” and that the court’s instructions about the law were advisory only and

not binding on them. However, in Stevenson v. State, 289 Md. 167 (1980), the Court of

Appeals

refused to interpret Article 23 in accordance with the plain meaning of its

language. Instead, the Stevenson opinion construed Article 23 as limiting the

jury's role of deciding the law to non-constitutional “disputes as to the

substantive Taw of the crime,’ as well as the ‘legal effect of the evidence^]’”

The Stevenson opinion stated “that all other legal issues are for the judge alone

to decide.”

Unger, All Md. at 387-88 (quoting Stevenson, 289 Md. at 179-80) (internal citation omitted).

;

“The ‘failure to object to a jury instruction ordinarily constitutes a waiver of any later

claim that the instruction was erroneous.’” Unger, 427 Md. at 390 (quoting Walker v. State,

343 Md. 629, 645 (1996)). However, “the failure to raise an issue at trial fis] not a waiver

of the issue when there [is] a relevant post-trial United States Supreme Court or Maryland

Court of Appeals ruling changing the applicable legal standard.” Id. at 391. In Unger, the

Court of Appeals held that its decision in Stevenson “substantially changed the state

constitutional standard embodied in Article 23”; therefore, in criminal trials prior to

Stevenson, the failure to object to instructions informing jurors that they were “judges of the

law” and that the court’s instructions on the law were “advisory only” and not binding did

not constitute a waiver. Id. The obvious corollary to the Court’s holding in Unger is that in

criminal trials after Stevenson, the failure to object to a court’s instruction informing jurors

that they are “judges of the law” is a waiver of that issue for review on appeal.

Here, Cochran does not and cannot argue that he did not waive this issue; his trial took

place in 2012, long after the Court’s decision in Stevenson. Defense counsel’s failure to

object to the court’s instruction to the jurors that they were “judges of both the law and the

facts” therefore constitutes a waiver of the error.

Rule 4-325(e) provides that “[a]n appellate court, on its own initiative or-on'the

suggestion of a party, may ... take cognizance of any plain error in the instructions, material

to the rights of the defendant, despite a failure to object.” ‘“[Ajppellate review under the

plain error doctrine 1) always has been, 2) still is, and 3) will continue to be a rare, rare

phenomenon.Robinson v. State, 209 Md. App. 174,203 (2012), cert, denied, 431 Md. 221

(2013) (alteration and some internal quotation marks omitted) (quoting Kelly v. State, 195

Md. App. 403, 431-32 (2010)). This is so because

both fairness and judicial efficiency ordinarily require that all challenges that

a party desires to make to a trial court's ruling, action, or conduct be presented

in the first instance to the trial court so that (1) a proper record can be made

with respect to the challenge, and (2) the other parties and the trial judge are

given an opportunity to consider and respond to the challenge.

Id. at 202 (quoting Kelly, 195 Md.. App. at 431). Accordingly, we will review an unpreserved

error under the plain error doctrine “only when the unobjected to error is compelling,

extraordinary, exceptional or fundamental to 'assure the defendant a fair trial.” Id. at 203

(quoting Kelly, 195 Md. App. at 43 2) (alteration and some internal quotation marks omitted).

We perceive no such error here. Although the judge did tell the jurors that they were

the judges of both the law and the facts, this remark came after the judge had correctly

informed them that the court’s instructions on the law were “binding” and had to be applied

as explained to them. The instructions were free from the “advisory only” language of

concern to the Stevenson and Unger Courts.

Cochran argues that the court’s erroneous remark “empowered [jurors] to decide the

case in accordance with what they believed to be the truth and not in accordance with the due

process requirement that the State prove its case beyond a reasonable doubt.” We disagree.

The remark was made after the judge correctly instructed the jury regarding the State’s

burden of proving Cochran’s guilt beyond a reasonable doubt, and what that standard

entailed. It is highly unlikely that the court’s isolated “judges of the law” remark would have

led any juror to disregard the court’s earlier admonition about the binding nature of the

court’s legal instructions, and the court’s proper explication of the reasonable doubt standard.

VII.

Appeal to Passion or Prejudice During Closing Argument

Cochran contends the following portion of the prosecutor’s closing argument was an

impermissible appeal to the passion, prejudice, or emotion of the jury:

[S.] is now ten years old and she has come to court to share with you her

childhood memories, her childhood memories of being abused and molested

and sodomized really and being raped by the Defendant over and over and

over and over again. I told you in my opening that this was a case about a

stolen childhood. [S.] had her childhood taken away from her and stolen by the

Defendant and her mother, and now she has come here to court to ask all of

you to give her I guess justice is the best word, to give her justice.

Ladies and gentlemen, when you go back into the jury room deliberate,

go over the evidence, go over the Defendant’s evidence, his complete and total

lack of credibility, review the case, review the facts, and when you come back

for [S.’s] sake please find him guilty.

Defense counsel objected, arguing “[ijt’s close to a public safety type argument. I

don’t think that last comment was necessary for [S.’s] sake.” The judge overruled the

objection, explaining that she “didn’t hear it as a public safety argument,” but as tying into

the preceding portion of the closing argument in which the prosecutor was “asking for . . .

justice.”

Cochran also contends the following portion of the prosecutor’s rebuttal closing

argument was an improper appeal to the jury’s passion or prejudice:

You know, I know that you have been sitting here a long time and I know that

you are ready to go back and deliberate on this case. I know that there is a lot

to go over. But it is really very simple, ladies and gentlemen, because it comes

down to this. As I said before, [S.] came into this court and she shared with

you some of her earliest childhood memories. Her earliest childhood

memories consist of being systematically brutalized by this man, Mr. Cochran.

Those are her earliest childhood memories. That is something that she has to

live with the rest of her life, the abuse and the brutal sexual behavior that she

suffered at his hands.

It’s time, ladies and gentlemen. It’s time. It’s time for her to get justice

for each and every time that Shane Cochran took her by the hand, took her into

her bedroom, stripped her clothes off her, stripped his close [sic] off him, said

to her I want to enjoy you and brutally and sexually assaulted her when she

was five and six years old. It’s time for her to get her justice. Go back in that

jury room and find him guilty of each and every count.

Defense counsel did not object to that portion of the State’s argument.

The State responds that this issue is not preserved for review, because defense counsel

objected only to the first part of the State’s closing argument, and stated a ground for his

objection that is not the ground on which he seeks reversal on appeal. We agree.

Defense counsel objected only to the prosecutor’s request to the jury to “review the

case, review the facts, (and when you come back for [S’sjsake please find him guilty.” He

argued that this was “close to a public safety type argument.” He did not argue that any of

the prosecutor’s comments impermissibly appealed to the passions, emotions, or prejudices

of the jury.

“It is well-settled that when specific grounds are given at trial for an objection, the

party objecting will be held to those grounds and ordinarily waives any grounds not specified

that are later raised on appeal.” Klauenberg v. State, 355 Md. 528, 541 (1999). Cochran

plainly waived the ground he now argues on appeal, i.e., that the prosecutor impermissibly

appealed to the passions, emotions, or prejudices of the jury.

Even if this issue were not waived, we would reject it on its merits. The prosecutor’s

request to the jurors that they find Cochran guilty on the evidence before them and give

justice to S. for the acts perpetrated against her was not an appeal to emotion, passion, or

prejudice.

VIII.

Reasonable Doubt Comment In Rebuttal Closing Argument

Cochran contends the prosecutor made an improper comment about reasonable doubt

in her closing argument, as follows:

You heard [defense counsel] talk to you about reasonable doubt. Proof beyond

a reasonable doubt is the standard in this country and in this state. Reasonable

doubt does not mean all doubt. It doesn’t mean it is impossible for the State

ever to prove a case, because certainly we do. Certainly we put cases on every

day, every week in this courthouse where people are found guilty beyond a

reasonable doubt. It is not an impossible burden. As the Court instructed you,

it is not all doubt and it is not to a mathematical certainty, it is a doubt based

on reason. There is no kind of magical formula for reasonable doubt. It is a

decision that you need to make. I suggest to you and I submit to you that we

"have surpassed our burden in this case, that we have surpassed proof beyond

a reasonable doubt in this case, because we have.

Cochran acknowledges that defense counsel did not object to the prosecutor’s

comment. He requests us to determine that it constitutes plain error. We already have

discussed the rarity of recognizing plain error, see section VI, supra.

recognize plain error on this issue.

We decline to '

The State did not misstate the law of reasonable doubt, as was the case in CarreroVasquezv. State, 210 Md. App. 504 (2013), upon which Cochran relies. There we held the

prosecutor’s remarks were improper because they equated reasonable doubt to “[t]rust[ing]

your gut.” 210 Md. App. at 510-11. Here, the State did little more than restate the court’s

own correct reasonable doubt instruction, i.e. that “the State is not required to prove guilt

beyond all possible doubt or to a mathematical certainty. Nor is the State required to negate

ever y conceivable circumstance of innocence.” To this correct explanation of the law, the

prosecutor merely added the truism that reasonable doubt “is not an impossible burden” and

has been satisfied in other cases. The comments were not error, let alone plain error.

JUDGMENTS OF THE CIRCUIT COURT

FOR HARFORD COUNTY AFFIRMED.

COSTS TO BE PAID BY THE APPELLANT.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.