Cloyd James Holmes v. State of Maryland, No. 2575, September Term 2016. Opinion by
Alpert, Paul E., J. (Senior Judge, Specially Assigned).

MD. WIRETAP ACT – EXCLUSION OF RECORDING – ORAL
CONVERSATION – PARENT-CHILD – VICARIOUS CONSENT DOCTRINE.
The trial court did not err in excluding, under the Maryland Wiretap Act, Md. Code, § 10-
401 et seq. of the Courts & Judicial Proceedings Article, a recording made by an eight-
year-old sexual abuse victim’s mother, who used her cell phone to secretly record her face-
to-face conversation with the child. A parent’s surreptitious cell phone recording of her
child falls within the plain language and broad reach of the Maryland Wiretap Act. This
recording cannot be admitted under the vicarious consent doctrine because even if
Maryland recognized that doctrine in the circumstances here, appellant failed to establish
that the mother made the recording in good faith to protect her child, rather than to protect
the defendant. The trial court did not erroneously decide the admissibility of the recording
on the basis of disputed credibility proffers. The recording is not admissible substantively
or as impeachment evidence.
Circuit Court for Montgomery County
Case #129068

                                                     REPORTED

                                        IN THE COURT OF SPECIAL APPEALS

                                                  OF MARYLAND

                                                       No. 2575

                                                September Term, 2016

                                      ______________________________________


                                              CLOYD JAMES HOLMES

                                                           v.

                                              STATE OF MARYLAND

                                      ______________________________________

                                           Eyler, Deborah S.,
                                           Graeff,
                                           Alpert, Paul E.
                                              (Senior Judge, Specially Assigned),

                                                        JJ.
                                      ______________________________________

                                                 Opinion by Alpert, J.
                                      ______________________________________

                                           Filed: April 5, 2018
       In this appeal, we consider whether a parent’s surreptitious use of her cell phone to

record a face-to-face conversation with her child may be used as evidence in a criminal

trial of a third party. We shall hold that in the circumstances presented here, the recording

was prohibited under the Maryland Wiretap Act, Md. Code (2013 Repl. Vol., 2017 Supp.),

§ 10-401 et seq. of the Courts and Judicial Proceedings Article (“CJP”). Moreover, we

conclude that even if we were to recognize a narrow “vicarious consent doctrine” under

which a parent may be deemed to have consented to a recording on behalf of his or her

child, the recording in this case would not be admissible because appellant failed to

establish that it was made in good faith for the benefit of the child.

       A jury in the Circuit Court for Montgomery County convicted Cloyd James Holmes,

appellant, of sexually abusing an eight-year-old girl and a related third-degree sex offense.

Appellant was sentenced to a total of twelve years, with all but six years suspended, plus

five years of supervised probation. He presents three questions for our review:

       1. Did the circuit court err in preventing the defense from introducing a cell
          phone recording on the grounds that the recording violated Maryland’s
          wiretap statute?

       2. Did the circuit court err in limiting the defense’s questioning of the lead
          detective?

       3. Did the circuit court err in excluding other relevant evidence?

       Concluding there was no error or abuse of discretion, we shall affirm appellant’s

convictions.
                            FACTS AND LEGAL PROCEEDINGS

       Because appellant does not challenge the sufficiency of the evidence supporting his

convictions, our summary of the trial record provides context for the issues raised in this

appeal. See Washington v. State, 180 Md. App. 458, 461 n.2 (2008).

       The charges against appellant stemmed from a single incident of sexual assault

reported by B.B., who is the daughter of appellant’s girlfriend, Ashley B. At the time of

the incident, appellant and Ashley B. lived in an apartment, together with the couple’s one-

year-old son, eight-year-old B.B., and her five-year-old brother. The State’s prosecution

theory was that while B.B. was sleeping in her bed one night, appellant woke her; touched

her vagina with his mouth, finger, and penis; then asked her to touch his penis. In support,

the State presented testimony from B.B. as well as individuals to whom she reported the

assault, including three family members, a police detective, and a pediatrician.

       B.B. recounted that the incident occurred between Christmas 2015 and New Year’s

Day. That night, while the rest of the family was asleep in other bedrooms, appellant

entered her bedroom wearing a robe and “went under [her] cover for the tablet,” which was

“a pink Kindle.” He pulled down her pajama pants and underwear, put a pillow over her

face, got on his knees between her legs, touched his “private part” to her private part, used

his index finger to touch the outside of her private part, and “licked” her private part. She

used an anatomical drawing to identify her vagina as her private part and appellant’s penis

as his private part.

       When appellant asked her to go to the living room, she put her clothes back on and

did so. B.B. testified that appellant then took a “vinegary color” substance out of a little
                                              2
glass cup, put it on his “private part,” “asked [her] to rub it[,]” and rubbed it “[a] little bit”

with his own hand. When she refused to touch his private part, he asked again. After she

said no a second time, appellant “said I’m sorry” and asked if she wanted to play on her

tablet. The next day, when B.B. got home from school, appellant repeated his apology and

warned her that if she told anyone, there “will be consequences,” which “scared” her

because she understood him to mean that “[s]omething bad will happen.”

       Around Valentine’s Day, B.B. reported the incident to her grandmother and great-

aunts. That day, she first told her Aunt Alandria (also known as Aunt Langie), who then

called Aunt Eboni (also known as Aunt Bebe) and her grandmother Pamela Walters. All

three women testified that on February 13, 2016, each individually spoke with B.B., who

recounted the incident consistently during separate conversations. Pam Walters testified

that B.B. told her that “after Christmas” appellant

       came into my room looking for the tablet. So then he went to pull my
       underwear down, but I was pulling them back up. Then he got them down.
       He took them off, and she said he played with me down there, then he kissed
       me down there, and he tried to use his finger, but his fingernail was hurting
       me, so I started to cry. And she said he took a pillow and he put it over her
       face to muffle her crying, and then she said he went and got some type of
       ointment and put it on his penis and tried to get her to touch it, but she was
       reluctant to touch it. But she said he attempted to bend her over, but she
       wouldn’t bend when he was attempting to.

       B.B. talked to a police officer the day after she reported the abuse to her family

members.      Montgomery County Police Detective Leonor Diaz, the lead investigator

assigned to the case, interviewed B.B. Later, B.B. also recounted the incident to Dr. Evelyn

Shukat, a pediatrician who testified at trial as an expert in child abuse reporting and

evaluation.
                                                3
       On cross-examination, B.B. testified that she talked to her mother after coming

home from the police station. When her mother asked why B.B. did not first tell her about

the incident, the child answered, “because I was scared.” Although she denied asking her

mother “what would happen if . . . [she] had lied in [her] statement to the police,” she then

recalled that she asked, “will I go to jail if I lie?” B.B. later explained on re-direct that she

asked her mother, “if I ever lie about something, will I have to go to jail. And then she said

I won’t.” B.B. also recalled that during that conversation, Ashley B. went to the kitchen

cupboard, “took out the cup” that appellant used during the incident, and asked “was this

the cup that the stuff was in and [B.B.] said it was.” When her mother asked “if it was just

a dream,” B.B. “said it wasn’t.”

       On cross-examination, B.B. also acknowledged that during a Christmas party at her

grandparents’ house around the time of the incident with appellant, there was a heated

argument between appellant and her aunts, after appellant told B.B. that if she took another

piece of cake, he would “drop kick it out of [her] hand.”

       Appellant, testifying in his defense, denied any sexual contact with B.B. He

suggested that after the Christmas Day altercation, B.B. fabricated the incident with the

encouragement of her grandmother and aunts.

       By Christmas 2015, appellant and B.B.’s mother had been in a relationship for two

to three years. The “blended family” lived in a three bedroom apartment in Silver Spring.

Although B.B. initially told him that he would never be her father, they eventually grew

closer, and he read books to her, helped her with homework, and watched television

together.
                                               4
       But there was friction with Ashley B.’s aunts and mother, which was evident in the

Christmas Day 2015 altercation at the residence of Ashley B.’s aunt, Alandria Walters.

During that family gathering, appellant admitted that he told B.B. that if she took more

cake, he would knock it out of her hand. Alandria Walters yelled at him, saying, “You’re

not even her real father.” Appellant, who had been drinking, became upset, spoke with

Pam Walters and her husband, then left.

       Ashley B., mother of B.B., testified in appellant’s defense. According to both

Ashley B. and appellant, when B.B.’s school break began around December 21, the child

stayed with her grandmother, Pam Walters, and did not return home to sleep until after

New Year’s.

       As detailed below in Part I of our discussion, after B.B. reported the incident, Ashley

B. used a “voice recorder” application installed on her cell phone to record a conversation

she had with B.B. Ashley B. told Detective Diaz about the recording but never sent it to

her. When police came to search her home, Detective Diaz took Ashley B.’s cell phone

into another room. When the phone was returned, the recording was no longer stored on

it. But by then, Ashley B. had sent the recording to appellant’s mother and his defense

lawyer.

       Although the trial court granted the State’s motion to exclude that recording, Ashley

B. testified about her conversation with B.B. According to Ashley B., her daughter

discussed the incident, then asked “what would happen to her if it really didn’t happen,”

and asked whether she would go to jail if she lied, while looking down and away from her

mother. Ms. B. told her that she did not know what would happen. Based on that
                                        5
conversation, Ashley B. did not believe B.B.’s accusation of appellant. But she did not ask

B.B. whether she lied.

       We shall add facts in our discussion of the issues raised by appellant.

                                       DISCUSSION

                          I.     Exclusion of Cell Phone Recording

       Under Md. Rule 5-104(a), admissibility of evidence is preliminarily decided by the

trial court. Appellant contends that the trial court erred or abused its discretion in excluding

Ashley B.’s recording of her oral conversation with her eight-year-old daughter, B.B. It

was undisputed that the recording was made by Ashley B. using an application (commonly

referred to as an “app”) on her cell phone, without her daughter’s knowledge or permission.

       The State moved to exclude the recording on the grounds that it was both

inadmissible hearsay and an unlawful interception under the Maryland Wiretap Act, CJP §

10-402(a). Appellant countered that the wiretap statute does not apply to a recording made

in these circumstances and that even it if does, the recording should have been admitted

under the doctrine of vicarious consent and Md. Rule 5-806, the impeachment exception

to the rule against hearsay.

       Declining to reach the hearsay question, the trial court excluded the recording as an

unlawful interception under CJP § 10-402(a). The court also declined to decide whether

Maryland recognizes a doctrine of vicarious consent that would allow a parent to consent

to any recording made in good faith for the benefit of her child. Based on voir dire

testimony and proffers from counsel, the court determined that even if the vicarious consent


                                               6
doctrine were available, it would not apply to Ashley B.’s recording because appellant

failed to establish that she made it for the protection of B.B.

       Appellant asserts that “the circuit court erred in preventing the defense from

introducing [the] cell phone recording on the grounds that the recording violated

Maryland’s wiretap statute.”      He offers several alternate theories in support of its

admissibility. First, he contends that the statute “does not apply to a parent’s recording of

his or her minor child in the privacy of the home.” If the statute does apply, he maintains

that the court erred in failing to admit the recording under the doctrine of vicarious consent.

Finally, appellant maintains that even if the recording was unlawful, the trial court abused

its discretion in ordering exclusion rather than a lesser remedy and in refusing to allow it

to be used for impeachment purposes under Rule 5-806.

       The State advances two reasons to affirm the trial court’s decision, arguing that

“[e]ither rationale represented an independent bar to the admission of the audio

recording[.]” First, the State asks us to affirm on the ground not reached by the trial court,

i.e., that the recording was inadmissible hearsay, not subject to the impeachment exception

in Md. Rule 5-806. Alternatively, the State argues that the trial court did not err in

excluding the recording as a violation of Maryland’s anti-wiretapping statute, based on

evidence and proffers that Ashley B. did not make the recording for the protection of B.B.

       For the reasons explained below, we hold that the trial court did not err or abuse its

discretion in excluding the recording under the Maryland Wiretap Act.




                                              7
    A. Standards Governing Evidence Challenged Under the Maryland Wiretap Act

       In this appeal, we review the trial court’s exclusion of evidence under the Maryland

Wiretap Act, which provides that unless expressly exempted under the statute, an oral

communication recorded in Maryland without the consent of all parties to the conversation

is not admissible at trial, either as substantive evidence or impeachment evidence. See Seal

v. State, 447 Md. 64, 71-72 (2016). CJP § 10-402(a)(1) states that, “[e]xcept as otherwise

specifically provided in this subtitle, it is unlawful for any person to . . . [w]illfully intercept

. . . any . . . oral . . . communication[.]” To “intercept” means “the aural or other acquisition

of the contents of any . . . oral communication through the use of any electronic,

mechanical, or other device.” CJP § 10-401(10). “[A]ny conversation or words spoken to

or by any person in private conversation” qualifies as an “oral communication.” CJP § 10-

401(13)(i). The willfulness mens rea does not require a showing of “bad motive” or

“knowing unlawfulness.” See Deibler v. State, 365 Md. 185, 199 (2001). It is sufficient

to show that there was an intentional, rather than inadvertent or negligent, interception. Id.

Cf. Boston v. State, 235 Md. App. 134, 150-51 (2017) (when jail unintentionally recorded

a third person who was added to an inmate call after notice was given that the call was

being recorded, the conversation was not “willfully intercepted”).

       Although the statute has an exemption for oral communications, it requires the

consent of all participants to the recorded conversation. Pursuant to § 10-402(c)(3),

       [i]t is lawful under this subtitle for a person to intercept a[n] . . . oral . . .
       communication where the person is a party to the communication and where
       all of the parties to the communication have given prior consent to the
       interception unless the communication is intercepted for the purpose of

                                                 8
      committing any criminal or tortious act in violation of the Constitution or
      laws of the United States or of this State.

(Emphasis added.)

      In this respect, Maryland’s statute is more restrictive than the analogous federal

statute and other state laws that require the consent of only one party to the recorded

conversation. As the Court of Appeals has explained,

      the two-party consent provision of the Maryland Wiretap Act is “a departure
      from the federal act” and is “aimed at providing greater protection for the
      privacy interest in communications than the federal law.” Indeed, we have
      recognized that the provisions of the Maryland Wiretap Act constitute a
      declaration of the public policy of this State. In explaining its importance
      and history we stated:

           The requirement of consent by all parties for the recording . . . by a
           private individual has been a fundamental part of Maryland law
           since at least 1956, and the one attempt by the Legislature, in 1973,
           to modify that provision met with a veto in which the Governor
           expressed his deep concern that the “opportunity for unwarranted
           spying and intrusions on people’s privacy authorized by this bill is
           frightening.” . . . Under long-standing Maryland law, therefore, a
           party to a telephone conversation does not take the risk that another
           party, not acting as, or under the direction of, a government agent,
           will record and divulge the contents of the conversation[.]

      The “departure” by the Maryland Wiretap Act in the consent exception – “the
      most important exception” in wiretap statutes – demonstrates a clear
      legislative intent that Maryland law afford greater privacy than does the
      federal wiretap statute.

Seal, 447 Md. at 73-74 (citations and footnotes omitted).

      In addition, the Court of Appeals has repeatedly instructed that “the procedures

underlying the Maryland Wiretap Act and its exceptions must be strictly followed.” Id. at

71. Accordingly, “[w]henever one unlawfully intercepts such a communication, it is



                                             9
inadmissible in any court proceeding.” Id. See CJP § 10-405 (“no part of the contents of

the communication . . . may be received in evidence in any trial”).

       Because “[a] communication that is intercepted unlawfully under the Wiretap Act

may not be received in evidence at trial[,]” we conduct a de novo review to determine

whether the trial court was legally correct in its interpretation of that law. Boston, 235 Md.

App. at 145. See Seal, 447 Md. at 70. In doing so, “[w]e give no deference . . . to the

question of whether, based on the facts, the trial court’s decision was in accordance with

the law.” Seal, 447 Md. at 70.

                                  B. Appellant’s Challenges

       Appellant argues that that the trial court erred in excluding Ashley B.’s recording of

her conversation with B.B. because that recording “was outside the reach of Maryland’s

wiretap statute.” In support, appellant maintains that (1) the statute does not apply to a

parent’s surreptitious audio recording of a private conversation with her child, using a

standard app on a cell phone; (2) even if the wiretap act applies to a parent’s recording of

her child, the recording by Ashley B. is admissible under the doctrine of vicarious consent;

(3) exclusion was an unwarranted and excessive remedy for any violation of the wiretap

act; and (4) the recording is otherwise admissible as impeachment evidence under Md.

Rule 5-806. We shall address – and reject – each of appellant’s contentions in turn.

                             1. Scope of Maryland Wiretap Act

       Appellant argues that “[n]othing suggests that the General Assembly intended to

preclude the type of recording at issue here, concluding otherwise would lead to absurd

results, and any ambiguity must be resolved in [his] favor.” In his view, “it is absurd to
                                          10
contend that the General Assembly intended for the wiretap statute to cover recordings

made by a parent of her child within the privacy of their home.”

       When interpreting the Maryland Wiretap Act, our

       goal is “to discern the legislative purpose, the ends to be accomplished, or
       the evils to be remedied.” We must begin with the well-established canon of
       statutory construction that the starting point for interpreting a statute is the
       language of the statute itself. If the language is clear and unambiguous on
       its face, that is the end of our inquiry. If, however, the language is
       ambiguous, we move on to examine case law, the structure of the statute,
       statutory purpose, and legislative history to aid us in ascertaining the intent
       of the General Assembly. Additionally, statutes “should be read so that no
       word, clause, sentence or phrase is rendered superfluous or nugatory.”

Seal, 447 Md. at 70-71 (citations omitted).

       Subject to exceptions not pertinent here, CJP § 10-402(a)(1) makes it “unlawful for

any person to . . . [w]illfully intercept . . . any . . . oral . . . communication[.]” Appellant

tacitly concedes that the conversation between Ashley B. and her daughter qualifies as an

oral communication but contends that the recording itself was not an unlawful interception

because of the electronic device used to make it. Specifically, appellant relies on the

definition of “intercept” as “the aural or other acquisition of the contents of any . . . oral

communication through the use of any electronic, mechanical, or other device[,]” CJP

§ 10-401(10) (emphasis added), which in turn is defined as

       any device or electronic communication other than:

       Any telephone or telegraph instrument, equipment or other facility for the
       transmission of electronic communications, or any component thereof,
       (a)    furnished to the subscriber or user by a provider of wire or electronic
       communication service in the ordinary course of its business and being used
       by the subscriber or user in the ordinary course of its business or
       furnished by the subscriber or user for connection to the facilities of the
       service and used in the ordinary course of its business[.]
                                              11
CJP § 10-401(8)(i) (emphasis added). In appellant’s view, “[i]t is difficult to conceive of

how Ms. B.’s use of a pre-installed ‘app’ on her cell phone, to record a conversation with

her daughter in the privacy of their home, is anything other than ‘ordinary’ use of the

device.”

       We disagree. To the contrary, we find it difficult to conceive how the use of a cell

phone by a private citizen to secretly record a face-to-face oral conversation without the

consent of all participants is anything other than a presumptive violation of Maryland’s

wiretap law.

       The “ordinary course” language that appellant has “cherry-picked” out of the

definition of “electronic, mechanical, or other device” does not apply in this scenario. This

is the so-called “extension line” exemption that is designed to ensure that recording on a

“landline” phone “in the ordinary course of business,” from an extension phone, does not

qualify as interception of an oral communication. See generally Adams v. State, 289 Md.

221, 227-29 (1981) (holding that a telephone extension is not an “electronic, mechanical,

or other device” when used to intercept oral communications). Using a recording app

installed on a cellular phone to record a face-to-face personal conversation is not using the

telephone function of the device in “the ordinary course of business,” as contemplated by

this exclusion.

       The ease and popularity of cell phone recordings does not suspend the protections

afforded by the statute. The clear purpose of the Maryland Wiretap Act is to prohibit secret

recordings of private oral communications, without regard to which device may be used to

accomplish that task. To be sure, this provision of Maryland’s wiretap law was enacted
                                           12
long before it was technologically possible to record private conversations with equipment

as omnipresent, multifunctional, and compact as the modern cell phone. Yet we see

nothing in the language or purpose of the statute to distinguish secret recordings made with

the devices of yesteryear from those made with today’s smart phones.

       Nor do we find any basis to distinguish between recordings made at home and those

made elsewhere. Appellant cites nothing in the text, history, or purpose of the statute to

suggest that it has such geographic limits.

       Moreover, we are not persuaded by appellant’s claim that failing to exempt parental

recordings “would lead to absurd consequences.” Appellant posits that

       [i]f Ms. B.’s recording of B.B. is the type of recording that falls under the
       scope of the wiretap statute, then so too does a parent recording a child
       opening presents during the holiday season, a child playing with friends
       during a birthday party, a child uttering her first words, and myriad other
       circumstances. Adding to the absurdity is the fact that . . . parents who make
       such recordings would be criminally liable under § 10-402(b). Nothing
       indicates that the General Assembly intended for such extraordinary
       consequences.

       The recording made by Ashley B. was a secret measure intentionally undertaken to

capture B.B.’s statements about her report of sexual abuse.        Ashley B.’s deliberate

concealment of the recording and the intimate nature of the conversation materially

distinguishes this recording from the birthday party and comparable scenarios cited by

appellant. In each of those circumstances, children are likely to be aware of the recording,

so that they fairly may be understood to tacitly consent to it. Moreover, a video recording

without audio or without oral communication is not prohibited under the wiretap statute.

See, e.g., Deibler, 365 Md. at 200 (“a video surveillance, though in many respects a greater

                                              13
intrusion on privacy than an audio surveillance, was not prohibited by § 10–402”); Ricks

v. State, 312 Md. 11, 20 (1988) (“there is nothing in either [the federal or Maryland

Wiretap] Act, express or implied, which prohibits or in any way undertakes to regulate

video surveillance”).

       We found no Maryland precedent applying CJP § 10-402(a) to a recording secretly

made by a parent during a face-to-face conversation with her child. Nevertheless, this

Court rejected an analogous argument seeking an exemption for surreptitious telephone

recordings of one spouse by another. In Standiford v. Standiford, 89 Md. App. 326 (1991),

we explained, in language we find equally appropriate to the parent-child recording at issue

in this case, that

       the statutory language is clear and, therefore, it is unnecessary to examine
       the legislative history for interpretation. The Maryland statute clearly and
       unambiguously prohibits all willful interceptions and endeavors to intercept
       any wire, oral or electronic communication. There is no explicit exception
       regarding the interception of a spouse’s communication.

Id. at 335.

       To the extent appellant seeks to narrow the broad reach of the wiretap statute by

substituting policy arguments for the plain meaning of its language, his arguments should

be directed to the legislature rather than the courts.1 “[I]t is within the legislative wisdom

to carve out an exception in the law where the General Assembly did not believe the law



       1
         Similarly, whatever policy arguments may be made against holding parents
criminally responsible for pushing the record button on their cell phones, the issue here is
the exclusion of this recording, not prosecution of the recorder. We leave the task of
enforcing the statute to the State’s Attorney and the task of establishing the law to the
General Assembly.
                                            14
should operate.” Adams, 289 Md. at 228. As we pointed out in rejecting a judicially-

created exception for spousal communications, “[h]ad the General Assembly intended an

exception for the interception of [such] communications . . . , it would have specifically

provided one, as it did with respect to the use of extension telephones.” Standiford, 89 Md.

App. at 337.

       For these reasons, we agree with the trial court and the State that the statutory

prohibition against surreptitious interception of private conversations applies to Ashley

B.’s cell phone recording. Indeed, a contrary construction of the statute would effectively

gut its core “declaration of . . . public policy” that “‘a party to a . . . conversation does not

take the risk that another party, not acting as, or under the direction of, a government agent,

will record and divulge the contents of the conversation.’” See Seal, 447 Md. at 73-74

(quoting Perry v. State, 357 Md. 37, 61 (1999)). We hold that the trial court did not err in

determining that Ashley B.’s recording is inadmissible under CJP §§ 10-402(a) and 10-

405.

                                2. Vicarious Consent Doctrine

       Seeking an alternative ground for admitting the recording, appellant invokes the

judicially-created doctrine of vicarious consent, under which a parent may be deemed to

have consented to a recording on behalf of his or her child, without the child’s knowledge

or consent, if the parent “has a good faith, objectively reasonable basis for believing that it

is necessary and in the best interest of the child to consent on behalf of his or her minor

child[.]” Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998). See generally In re Trever

P., 14 Cal. App. 5th 486, 496-501 (Cal. Ct. App. 2017), review denied (Nov. 15, 2017)
                                          15
(surveying judicial development of doctrine); Daniel R. Dinger, Should Parents Be

Allowed to Record a Child’s Telephone Conversations When They Believe the Child Is in

Danger?: An Examination of the Federal Wiretap Statute and the Doctrine of Vicarious

Consent in the Context of a Criminal Prosecution, 28 Seattle U. L. Rev. 955, 968-87

(Summer 2005) (collecting and analyzing cases). As appellant observes, this vicarious

consent doctrine, in theory, could provide some protection for “the fundamental

constitutional rights” of a parent “in raising his or her children as he or she sees fit, without

undue interference by the State.” In re Yve S., 373 Md. 551, 565 (2003).

       Yet appellant acknowledges that no Maryland court has adopted the vicarious

consent doctrine and that its application under our statute would necessarily be limited.

Although most courts applying the vicarious consent doctrine have done so under a statute

that requires the consent of only one party to the recorded communication,2 Maryland



       2
         For a recent and thorough review of federal and state jurisdictions that have
adopted some version of the vicarious consent doctrine, see In re Trever P., 14 Cal. App.
5th 486, 496-501 (Cal. Ct. App. 2017), review denied (Nov. 15, 2017). In adopting the
doctrine under its one-party consent wiretap statute, the California appellate court shared
the following research:

              Pollock appears to be the only federal appellate decision on the issue.
       Some district courts in the Eighth and Tenth Circuits have followed
       Thompson and Pollock. (Babb v. Eagleton (N.D. Okla. 2007) 616 F.Supp.2d
       1195, 1205-1206; Wagner v. Wagner (D. Minn. 1999) 64 F.Supp.2d 895,
       899-901; Campbell v. Price (E.D. Ark. 1998) 2 F.Supp.2d 1186, 1189.) We
       have found no other federal cases deciding the issue, and thus none rejecting
       the doctrine.



                                                                                    (continued)
                                               16
requires consent from all parties to the communication, meaning that the doctrine could

not be applied to any conversation involving a third party other than the consenting parent

and his or her child. See generally Dinger, supra, 28 Seattle U. L. Rev. at 967 (“As it has

developed, the vicarious consent doctrine is available only in those jurisdictions that enact

one-party consent exceptions.”).

       Appellant nevertheless contends that the trial court erred in failing to admit Ashley

B.’s recording under such a vicarious consent theory, arguing that

       the facts of this case warrant applying the vicarious consent doctrine in
       Maryland. Unlike the typical vicarious consent case, which involves a parent
       and/or police surreptitiously recording his or her child speaking with a third
       party, see Dinger at 968-79, this case involves a parent recording her own
       conversation with her child in the privacy of her home. This is exactly the
       type of situation where parents should be allowed to consent on behalf of

(continued)

               Five state supreme courts have adopted the doctrine for purposes of
       state anti-interception statutes, in each instance finding a parent could
       consent vicariously despite the lack of an express parental consent provision
       in the statute. (People v. Badalamenti (2016) 27 N.Y.3d 423, 54 N.E.3d 32,
       37-40 (Badalamenti); Griffin v. Griffin (Me. 2014) 92 A.3d 1144, 1152;
       Commonwealth v. F.W. (2013) 465 Mass. 1, 986 N.E.2d 868, 873-875
       [adopting doctrine and extending it to adult sibling of child victim]; State v.
       Whitner (2012) 399 S.C. 547, 732 S.E.2d 861, 864-865; State v. Spencer
       (Iowa 2007) 737 N.W.2d 124, 133-134 (Spencer).) Intermediate appellate
       courts in several other states have done the same. (Lawrence v. Lawrence
       (Tenn. App. 2010) 360 S.W.3d 416, 418-420; Alameda v. State (Tex. Crim.
       App. 2007) 235 S.W.3d 218, 221-223; Smith v. Smith (La. App. 2005) 923
       So.2d 732, 740; State v. Morrison (Ariz. App. 2002) 203 Ariz. 489, 56 P.3d
       63, 65; In re Marriage of Radae (1991) 208 Ill.App.3d 1027, 153 Ill. Dec.
       802, 567 N.E.2d 760, 763-764; State v. Diaz (N.J. App. 1998) 308 N.J. Super.
       504, 706 A.2d 264, 269-270; Silas v. Silas (Ala. Civ. App. 1996) 680 So.2d
       368, 370-372.)

Id. at 498.

                                             17
       their children, or, at the very least, where it should be presumed parents are
       acting in their children’s best interests. Viewed in this way, being able to
       consent to a recording of a child is comparable to other situations where
       parents may consent on behalf of their minor children. In re Yve S., 373 Md.
       [at 566] (summarizing various circumstances where parents may make
       decisions on behalf of their children). To hold otherwise would allow the
       government to infringe on the constitutional rights of parents.

       After hearing argument and reviewing case law, the trial court asked defense

counsel for his “representation of why Ms. [B.] was making this recording[.]” Defense

counsel proffered as follows:

               Ms. [B.], in our personal interviews with Ms. [B.] we asked that very
       question and Ms. [B.] said that her concern was that if, if [B.B.] had lied then
       that meant that a person who was harming her may still be out there. That if
       a person who had been touching her inappropriately, if she lied about Roy,
       as [B.B.] calls him. If she lied about . . . Mr. Holmes, then Ashley was
       concerned that whoever actually was touching her might still be able to do it
       if everyone was focusing on Roy and that [B.B] was now sort of stuck with
       that story because she told it to police. And so she was concerned about
       [B.B.].

               She also was concerned . . . because of the nature of the way that . . .
       the statement came about to Pam and Alandria and Eboni that . . . it was
       harmful to [B.B.] . . . if people in her family were sort of putting ideas in her
       head, then that would also be harmful to her because it would . . . harm her
       relationship with the only father she’s even known was Mr. Holmes. And
       she was concerned that would be psychologically damaging to [B.B.]. And
       also that she was concerned that if [B.B.] had guilt over . . . being untruthful
       in her statements that that would also be psychologically damaging. So, she
       was concerned for her child’s welfare and that’s why she recorded the
       statement.

       In response, the prosecutor proffered that appellant’s jail calls with Ashley B.

indicated that she did not make the recording to protect her child:

             Your Honor, we have listened to hundreds and hundreds of jail calls
       between the defendant and Ms. Ashley [B.]. Many of those calls in the
       beginning were about this recording. She stated basically that she, pretty
       much, was recording her because she thought that this was made up.
                                              18
      She says, maybe she was dreaming. The defendant says about 8,000 times,
      I think she was dreaming. I think she had a wet dream and then basically the
      aunts filled in the blanks. Never once does she ever posture that there may
      be another random person out there that assaulted her.

             In fact, she says pretty much the exact opposite. That [B.B.] was fine.
      That there was no issue. That if anyone had assaulted her there would have
      been physical signs of injury. She, she in fact, literally, said the opposite.
      She could not have been less concerned with her daughter. Which, by the
      way, is why Child Protective Services took her away. I mean it’s incredibly
      disingenuous to stand before the Court and say that those actions of
      surreptitiously recording her child were there for protection. I mean there’s
      no possibility of that.

(Emphasis added.)

      The trial court concluded that even assuming arguendo that the doctrine of vicarious

consent may be available under the Maryland Wiretap Act, it would not apply to Ashley

B.’s recording, explaining:

              I think the more pertinent argument is, that the parent may have or
      could theoretically have vicariously consented to the tape recording such that
      there would be two party consent. A parent and a child. So that that
      exception to the wiretap statute would be met. It seems to me that, first of
      all there is no, there really is not a lot of law, specifically in Maryland about
      this. I think there is some federal law from other places. There’s one case
      that the defense has cited, I believe called Campbell and Price from
      Arkansas, which is the defense[’]s papers. There’s another case, Pollock and
      Pollock from the 6th Circuit.

             Both of these cases envision that a parent, in some circumstances,
      could consent vicariously or their vicarious consent could be applicable for
      taping under the federal statutes. You know, assuming that it is appropriate
      to graft onto the State statute the exceptions, so to speak, that apply to the
      federal statute, which is an issue that I don’t decide because . . . I assume for
      the sake of argument that that exception might be applicable in Maryland.
      What that exception tells us is that (unintelligible) a parent’s good faith
      concern for the minor child’s best interest may be a reason for vicariously
      consenting.



                                             19
               I asked the question today, why she had recorded it? And the
       parties offered me, by way of proffer, evidence about that and based on
       that evidence, as well as . . . what I heard from the Detective, I’m not
       satisfied, in this case that Ms. [B.] was acting in the child’s best interest.
       And the reason is as follows: We heard from the Detective that [t]he mother
       was belligerent when the search warrant was being executed. Which seems
       to me that, it suggests that . . . her interests are somewhat adverse to the child,
       even immediately. But then, after the fact, we have argument from both
       sides, proffer from both sides and you know the defense is proffering that she
       was doing it for the child’s safety. The State is proffering that there were
       many calls from the jail between the defendant and Ms. [B.] That none of
       those safety concerns were merited or warranted or safety concerns were
       brought up.

              I have to say that in light of the Detective’s testimony, I find that
       the State’s proffer is more persuasive to me about what Ms. [B’s] intent
       was and I have to say that based on that I accept the State’s proffer on
       that. And so having accepted the State’s proffer and the veracity of the
       State’s proffer, it precludes me from finding that Ms. [B] was acting in the
       child’s best interest in tape recording this. And so, for that reason, even if
       the exception that applies in the federal statute would apply in Maryland, I
       don’t think it’s been met here. And so, I’m not going to allow the tape to
       come into evidence for that reason.

(Emphasis added.)

       In appellant’s view, the trial court’s analysis was “flawed” because it impermissibly

rested “solely on [the court’s] evaluation of proffers by the respective parties[,]” without

considering any “actual evidence.” In support, appellant cites Dorsey v. State, 356 Md.

324, 355 (1999),3 reversing a criminal contempt conviction premised on “absolutely no

evidence,” because the court relied on unsworn statements and documents that, even had

they been admitted as evidence, were insufficient to find the defendant guilty. Appellant



       3
         Although appellant cites the Court of Appeals decision in these consolidated
appeals as Craft v. State, we shall refer to that opinion in its official “bluebook” form, by
the name of its primary appellant, Paul Dorsey.
                                              20
acknowledges that the Dorsey Court did not resolve whether the defendant waived his right

to complain by making the proffer relied on by the trial court and failing to object to the

lack of evidence. Id. According to appellant, however, defense counsel’s lack of objection

in this case poses “no waiver problem” “because the court on its own elicited proffers from

the defense[,]” which equates to proceeding “on absolutely no evidence[,]” as in Dorsey.

       Appellant mischaracterizes and misunderstands the trial court’s decision. As a

threshold matter, the excerpted transcript establishes that the court’s ruling was not

premised solely on proffers. To the contrary, the court twice stated that it was relying on

the testimony of Detective Diaz, who testified under oath in the State’s case-in-chief, then

was re-called by the defense and voir dired without the jury present regarding matters

relevant to the State’s motions to exclude both the cell phone recording and DNA test

results (see infra Part II). In ruling on the admissibility of the recording, the court was

entitled to consider and credit Detective Diaz’s testimony that after appellant was arrested,

when police returned a second time to the apartment to execute a search warrant, “Ashley

[B.] became uncooperative” and “was yelling out belligerent things[.]”. See Md. Rule 5-

104(a).

       Likewise, the court also was entitled to consider and credit the proffers by counsel.

Id. In contrast to Dorsey, where the trial court convicted the defendant based solely on

proffers, here the court merely decided whether evidence was admissible based in part on

proffers. As we have explained, the court may make such an admissibility determination

on the basis of proffered evidence. See Crane v. Dunn, 382 Md. 83, 92 (2004). Indeed,


                                             21
Rule 5-104(a) expressly authorizes the court to determine whether such evidence is

admissible without strictly applying the rules of evidence.

       In these circumstances, moreover, appellant cannot complain that the court relied

on evidentiary proffers. By the time the trial court decided the State’s motion to exclude

Ashley B.’s recording, the State had rested its case and Detective Diaz had been voir dired

outside the presence of the jury. After making his proffer regarding why Ashley B.

recorded her conversation with B.B., and listening to the State’s proffer regarding Ms. B.’s

statements pertaining to that recording, defense counsel did not request an opportunity to

present additional evidence before the court ruled on the State’s motion in limine. Nor did

he object to the court determining admissibility on the basis of that record. In the absence

of any objection or request to present additional evidence, the trial court did not err or abuse

its discretion in premising its decision to exclude the recording on both the evidence

elicited from the detective and the proffers made by counsel.

       We also find no merit in appellant’s corollary complaint that the court

impermissibly resolved “dueling proffers” that presented a credibility dispute. Citing

Taylor v. State, 388 Md. 385, 398 (2005), holding that “the procedure of having all of the

evidence presented through stipulation” may not be used “when there are material disputes

of fact that hinge on credibility determinations,” appellant argues that it was error to credit

one proffer over the other because “the parties adamantly disagreed about Ms. B.’s

motive[.]” Yet none of the facts proffered by defense counsel as to what Ashley B. told

appellant’s attorneys about her conversation with B.B. were necessarily inconsistent with


                                              22
the facts proffered by the State as to what Ashley B. said to appellant during their phone

conversations.

       According to the State’s proffer, when discussing the recording with appellant

shortly after it was made, Ashley B. voiced no concern that B.B. had been abused by

someone else and reported that her daughter was “fine.” Moreover, Ms. B. expressed

concern that B.B. had been influenced by her relatives, who had “filled in the blanks” of

the child’s “wet dream.” She also told appellant that she recorded her conversation with

B.B. “because she thought that this was made up.”

       According to the defense proffer, Ashley B. reported to appellant’s lawyers that she

was concerned that her daughter may have been abused by someone else, that the child

may have been influenced by relatives, and that B.B. might be feeling trapped into her story

or guilty for accusing the only father she had ever known. Nothing in that defense proffer

was incompatible with the State’s proffer or the detective’s testimony. Indeed, it is entirely

plausible that Ashley B. expressed her concerns differently to appellant than she did to his

lawyers.

       The issue before the trial court was not whether to believe one set of proffered facts

over the other, but to decide whether, viewing all of those proffered facts in light of

Detective Diaz’s testimony, the defense satisfied its burden of establishing by a

preponderance of the evidence that Ashley B. recorded her conversation with B.B. in a

good faith effort to protect her daughter, and not for any other purpose, such as collecting

evidence to use in appellant’s defense. See generally Boston, 235 Md. App. at 151 (“as the


                                             23
proponent of the motion [to exclude the recording] it was [appellant’s] burden to produce

evidence to show that the Wiretap Act was violated and to persuade the court to so rule”).

       As the trial court recognized, the critical difference between the two proffers was in

what they revealed about whether Ashley B. secretly recorded her conversation with B.B.

to protect the child or whether she did so to protect appellant. According to the State’s

proffer, Ashley B. discussed the recording during her many calls with appellant and “stated

basically that she, pretty much, was recording her because she thought that this was made

up.”   When defense counsel proffered that Ashley B. was concerned about B.B.’s

psychological welfare, that information merely explained why she had this conversation

with B.B. Nothing in appellant’s proffer explained why, in addition to discussing the

incident with her daughter, Ashley B. felt it was necessary to record their face-to-face, one-

on-one conversation.

       Unlike most cases that have addressed the vicarious consent doctrine, the reason for

Ashley B.’s recording is not readily apparent from the circumstances in which it occurred.

Indeed, this case differs materially from the typical vicarious consent cases arising in one-

party consent jurisdictions. Many of those cases involve a custodial parent who recorded

his or her child’s telephone conversation with a third party (often the non-custodial parent),

citing concern for the child’s physical or emotional welfare. See footnote 2, supra

(collecting cases). In such cases, the recording parent did not record her own face-to-face,

one-on-one conversation with the child after the child’s report of abuse. To the contrary,

in most vicarious consent cases, the recording parent did not participate in the recorded

conversation – and that is why he or she recorded it. The purpose of such recordings
                                         24
typically is to listen in on the child’s telephone conversation with another person, in order

to investigate whether that person is abusing the child. None of these circumstances were

present in this case.

       In our view, the trial court did not reject the defense proffer as untrue or make

credibility determinations.    As the court explained, it simply found “in light of the

Detective’s testimony, . . . that the State’s proffer is more persuasive to me about what

Ms. [B.’s] intent was” and “precludes me from finding that Ms. [B.] was acting in the

child’s best interest in tape recording this.” (emphasis added). Based on this ruling, we are

satisfied that the court determined that appellant failed to satisfy his burden of establishing

a factual and legal basis for his vicarious consent claim. Specifically, the court concluded

that the defense did not establish, by a preponderance of the evidence that was given under

oath and by proffer, that Ashley B. recorded the conversation to protect her daughter, rather

than to protect appellant. In turn, the court did not err or abuse its discretion in declining

to apply the doctrine of vicarious consent.

                                     3. Exclusionary Rule

       Appellant next asserts that “[e]ven if a wiretap violation occurred, the circuit court

still erred in electing, as a remedy, to exclude the cell phone recording.”             Citing

Massachusetts v. Barboza, 763 N.E.2d 547 (Mass. Ct. App. 2002), he argues that

“[e]xcluding the cell phone recording in this case did nothing to deter illegal conduct by

law enforcement because police did not help create the recording.”

       The Massachusetts wiretapping statute applied in Barboza makes that case

inapposite because that statute does not include a mandatory exclusion provision
                                        25
comparable to CJP § 10-405. See id. at 551 (although “the Massachusetts wiretap statute

… strictly prohibits the secret electronic recording by a private individual of any oral

communication[,] ... the statute does not mandate that all unlawfully intercepted

communications should be suppressed.”)(citations and quotation marks omitted).                In

contrast, because § 10-405 unequivocally states that an unlawful recording may not be

admitted at trial, the trial court did not err or abuse its discretion in excluding Ashley’s B.’s

recording.

                           4. Admissibility Under Md. Rule 5-806

   Appellant mistakenly relies on Md. Rule 5-806, which creates an impeachment

exception to the rule against hearsay,4 as an alternative ground for allowing defense counsel

to use Ashley B.’s recording to impeach B.B.’s out-of-court statement. This exception is

not available to appellant because the bar of § 10-405 extends to both substantive and

impeachment uses. See, e.g., Sun Kin Chan v. State, 78 Md. App. 287, 306 (1989)

(Maryland wiretap statute “totally prohibits . . . the use of illegally obtained

communications as either substantive or impeachment evidence”).


       4
           Md. Rule 5-806(a) provides:

       When a hearsay statement has been admitted in evidence, the credibility of
       the declarant may be attacked, and if attacked may be supported, by any
       evidence which would be admissible for those purposes if the declarant had
       testified as a witness. Evidence of a statement or conduct by the declarant at
       any time, inconsistent with the declarant’s hearsay statement, is not subject
       to any requirement that the declarant may have been afforded an opportunity
       to deny or explain. If the party against whom a hearsay statement has been
       admitted calls the declarant as a witness, the party is entitled to examine the
       declarant on the statement as if under cross-examination.

                                               26
               II.     Restriction on Defense Examination of Detective Diaz

       Appellant next contends that the trial court “erred in hindering the defense from

exploring the fact that police did not conduct any follow-up investigation after they learned

that [appellant] was excluded as the source of semen found on B.B.’s bed sheet.”

Specifically, appellant challenges the trial court’s decision to preclude defense counsel

from questioning Detective Diaz about her investigation following receipt of what he

contends were “exculpatory” DNA test results. For the reasons that follow, we conclude

that the trial court did not err or abuse its discretion in restricting the defense examination.

                                   A. The Relevant Record

       This issue arose after the State rested its case-in-chief without calling the author of

a DNA test report, dated June 13, 2016, prepared by Bode Cellmark Forensic Laboratories.

That report, which was attached to a memorandum received by Detective Diaz, revealed

that DNA testing was done on bodily fluid found on a pink bed sheet recovered during a

warrant search of appellant’s apartment in February 2016, weeks after the incident of

sexual contact reported by B.B. The test results apparently exclude both appellant and B.B.

as contributors to a sample suspected of containing seminal fluid.

       Defense counsel, who did not subpoena the author of the report, was surprised and

frustrated that the State would not be calling her as a witness, because counsel had planned

to cross-examine the witness regarding what counsel viewed as critically exculpatory DNA

test results. When defense counsel recalled Detective Diaz as a defense witness, he

proposed to ask about her response to the DNA report, in an effort to impeach the State’s


                                              27
investigation by suggesting there was no effort to follow up to determine whether B.B.’s

abuser was someone else.

       When the State objected that the inquiry was designed to elicit the inadmissible

hearsay report, the trial court asked for a defense proffer as to the admissibility and

relevance of Diaz’s response. Defense counsel proffered that he “want[ed] to ask the

detective . . . what, if any actions were taken,” based on the DNA test report, including

whether police “look[ed] at other suspects[,]” “ask[ed] for further testing on that DNA” or

“ran it in Codis” in order “to determine race” and “narrow down a list of suspects[.]”

Defense counsel argued that the contents of the report, if not the document itself, were

admissible through Detective Diaz to show its effect on her investigation. The court then

allowed defense counsel to question Detective Diaz outside the presence of the jury, in

order to establish a foundation for the proposed inquiry.

       After that voir dire was complete, the court agreed with the prosecutor that defense

counsel was trying to get the inadmissible DNA test results into evidence through the

“backdoor.” Although the court permitted defense counsel to elicit from the detective that

she was present when the bed sheet was recovered and that she ordered DNA testing on it

in order to determine whether it incriminated appellant, counsel was precluded from asking

questions that revealed the substance of the report or required the detective to explain her

response to it.

                  B. Standards Governing Restriction of Defense Examination

       Under the Sixth Amendment to the United States Constitution and Article 21 of the

Maryland Declaration of Rights, a criminal defendant has the right to present witnesses
                                         28
and evidence to establish his defense. See Taneja v. State, 231 Md. App. 1, 10 (2016), cert.

denied, 452 Md. 549 (2017). This right “is not absolute” because the “‘accused does not

have an unfettered right to offer testimony that is . . . inadmissible under standard rules of

evidence.’” Id. (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)). In particular, “‘[t]he

proffered evidence must be sufficiently relevant, rather than ‘cast[ing] a bare suspicion

upon another.’” Id. (quoting Holmes v. South Carolina, 547 U.S. 319, 323-24 (2006)). As

this Court has explained,

       the right to present a defense, albeit fundamental, is nonetheless subject “to
       two paramount rules of evidence, embodied both in case law and in Maryland
       Rules 5-402 and 5-403. The first is that evidence that is not relevant to a
       material issue is inadmissible. The second is that, even if relevant, evidence
       may be excluded if its probative value is substantially outweighed by the
       danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Id. at 11 (quoting Muhammad v. State, 177 Md. App. 188, 274 (2007), and Smith v. State,

371 Md. 496, 504 (2002)).

       Evidence is relevant if it has “any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Md. Rule 5-401. “Evidence that is not relevant is not

admissible.” Md. Rule 5-402. Even if the proffered evidence is relevant, it “may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Md. Rule 5-403.

We review a decision to exclude evidence on relevance grounds for abuse of discretion.

See Brooks v. State, 439 Md. 698, 708-09 (2014).

                                             29
       “‘Hearsay’ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule

5-801(c). Unless the out-of-court statement in question fits within an established exception

to the rule against hearsay, it “is not admissible.” Md. Rule 5-802. This Court determines

de novo whether evidence constitutes inadmissible hearsay. See Parker v. State, 408 Md.

428, 436 (2009).

                                  C. Appellant’s Challenge

       Appellant argues that the trial court abused its discretion in restricting defense

counsel’s proposed inquiry about the detective’s response to the DNA test results, because

the inquiry “would not have elicited hearsay and would have been relevant to cast doubt

on the thoroughness of the police investigation in this case.” We disagree.

       Our recent decision in Taneja is instructive. In that case, defense counsel requested

permission to examine a witness, Mr. Singh, whom defense counsel sought to implicate in

the murder for which his client was on trial. After conducting a preliminary hearing outside

the presence of the jury, the trial court precluded defense counsel from calling Mr. Singh.

This Court affirmed that ruling, emphasizing that “[t]he proffered evidence must be

sufficiently relevant, rather than cast[ing] a bare suspicion upon another.” Taneja, 231 Md.

App. at 10 (citations and quotation marks omitted).

       Here, as in Taneja, the trial court did not err or abuse its discretion in foreclosing

defense counsel’s persistent attempts to “cast a bare suspicion upon another.” See id. By

the time this issue arose, the court had heard evidence that B.B., who lived with appellant

and had no trouble recognizing him, reported that he touched her vagina while she lay in
                                          30
her bed. She did not describe anything that might indicate that he ejaculated or emitted

seminal fluid on her bedsheet during that incident. Moreover, the incident occurred during

Christmas week, but the sheet was not recovered until weeks later, after B.B. talked to

police on February 14, 2016.

       Based on this record, neither the absence of appellant’s DNA on the sheet six weeks

after the incident, nor the possible presence of someone else’s DNA, made it significantly

more likely that someone other than appellant abused B.B. In turn, because the DNA

results did not exonerate appellant, Detective Diaz’s response to those results was

marginally relevant at best. In focusing on the detective’s response to such equivocal

information, defense counsel’s proposed line of inquiry was also confusing to the jury.

       In these circumstances, we reach the same conclusion as in Taneja, that the excluded

       evidence would have been, at best, only tangentially relevant and had a high
       probability of confusing, distracting, and misleading the jury. We are
       mindful that evidentiary questions are left to the sound discretion of the trial
       court, and are not to be disturbed—even if we were inclined to rule
       differently—absent a clear abuse of discretion. In sum, the evidence [defense
       counsel] sought to introduce through Singh was disconnected and remote. It
       had no other effect than to raise the barest of suspicion that Singh might have
       killed [the victim].

Taneja, 231 Md. App. at 18.

       On this record, we are satisfied that the trial court did not err or abuse its discretion

in restricting the defense examination on this point. The court resisted defense efforts to

get the hearsay DNA test results into evidence, first as impeachment evidence, and then

through the proverbial “backdoor” by questioning Detective Diaz about them. Although

the trial court allowed defense counsel to question the detective about her investigation, it

                                              31
refused to allow questions about how she responded to those test results, because that line

of questioning sought marginally relevant evidence that would have confused the jury, by

suggesting that the mystery DNA contributor committed the crime for which appellant was

on trial. See Md. Rule 5-403; Taneja, 231 Md. App. at 18.

             III.   Restrictions on Defense Examination of Other Witnesses

       In his final assignment of error, appellant challenges rulings that restricted defense

counsel’s examination of three other witnesses, arguing that these limitations collectively

excluded relevant evidence and therefore constituted reversible error. We address each

challenge in turn, explaining why none merits reversal.

                       A. Limitations on Cross-Examination of B.B.

       Pointing out that “whether or not [appellant] got along with B.B.’s aunts had a

bearing on whether the aunts had an independent reason to ‘have it out for’” him, appellant

argues that the trial court abused its discretion in sustaining the State’s objection when

defense counsel asked B.B. whether she had “discussed with Aunt Langie ‘what was going

to happen today here in Court.’” In appellant’s view, B.B.’s answer was relevant and

admissible because it “had a bearing on witness credibility” given that “a response of ‘yes’

would have helped the defense raise the possibility that Aunt Langie influenced B.B.’s

testimony or made sure her own testimony matched B.B.’s testimony.”

       A criminal defendant’s right to cross-examine a prosecution witness is guaranteed

by the Confrontation Clause of the Sixth Amendment, made applicable to the States

through the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights.

See Martinez v. State, 416 Md. 418, 428 (2010). As the Court of Appeals has explained,
                                           32
      “[t]he right of confrontation includes the opportunity to cross-examine
      witnesses about matters relating to their biases, interests, or motives to testify
      falsely.” That principle is incorporated in Maryland Rule 5–616(a)(4), which
      provides that “The credibility of a witness may be attacked through questions
      asked of the witness, including questions that are directed at: . . . Proving that
      the witness is biased, prejudiced, interested in the outcome of the proceeding,
      or has a motive to testify falsely.” To comply with the Confrontation Clause,
      a trial court must allow a defendant a “threshold level of inquiry” that
      “expose[s] to the jury the facts from which jurors, as the sole triers of fact
      and credibility, could appropriately draw inferences relating to the reliability
      of the witnesses.”

Peterson v. State, 444 Md. 105, 121-23 (2015) (citations omitted).

      That standard was satisfied here. Defense counsel was permitted to ask B.B.

whether she “g[o]t to talk to [Alandria] about what you were going to do today here in

Court[,]” to which B.B. responded, “Yes.” Subsequent questions prompted objections that

were properly sustained, as follows:

      [DEFENSE COUNSEL]: Did [Alandria] tell you anything about what you
      should do today?

      [PROSECUTOR]: Objection, hearsay. . . .

      THE COURT: Sustained.

      [DEFENSE COUNSEL]: Did you have a discussion with Aunt – without
      telling me what she said, don’t say that, but did you have a conversation with
      your Aunt Langie about what was going to happen today here in Court?

      [PROSECUTOR]: Objection.

      THE COURT: Sustained.

      [DEFENSE COUNSEL]: Did you talk to Aunt Langie today?

      [B.B.]: Yes.

      [DEFENSE COUNSEL]: Okay. She came by Pam’s house, your grandma’s
      house?

                                             33
       [B.B.]: Yes, she did.

(Emphasis added.)

       The court’s initial ruling was correct because defense counsel’s question invited

hearsay (i.e., an out-of-court statement regarding what Alandria told B.B. she should do at

trial). See Md. Rule 5-801, 5-802. The second ruling was within the court’s discretion

because the question repeated the same inquiry and B.B. had already testified that she

talked with Alandria about testifying. See Md. Rule 5-403.

       Appellant also challenges the trial court’s subsequent ruling sustaining the State’s

objection when defense counsel asked B.B.: “So I would be right if I said that [appellant]

and your aunts don’t get along, would I be right?” This question was patently rhetorical,

given that it was asked immediately after the child testified that appellant got into a

“yelling” argument with her aunts at a family Christmas party, as a result of telling B.B.

that he would “drop kick” a piece of cake out of her hand. Moreover, defense counsel had

ample opportunity to question B.B.’s Aunt Alandria and Aunt Eboni, as well as their sister

(B.B.’s grandmother, Pam Walters) and appellant himself.           In these circumstances,

appellant was afforded his right of confrontation on this issue.

                    B. Limitation on Direct Examination of Ashley B.

       Appellant next maintains that the trial court erred when it restricted defense counsel

from asking Ashley B. on direct whether she “did” or said “anything to [B.B.] to encourage

her to make these statements” alleging abuse. Appellant argues that “whether or not

[Ashley] B. did anything to influence B.B.’s statements during the recorded conversation

obviously speaks to the legitimacy of those statements.”
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       The record does not support appellant’s complaint. To the contrary, it establishes

that defense counsel was permitted to elicit Ashley B.’s testimony that she did not influence

B.B.’s report, as follows:

       [DEFENSE COUNSEL]: Did she ask you if she’d go to jail if she lied?

       [ASHLEY B.]: Yes.

       [DEFENSE COUNSEL]: Okay, and what was your response to that
       question?

       [ASHLEY B.]: I told her I’m not sure what would happen.

       [DEFENSE COUNSEL]: Okay. Did you, in the course of that
       conversation, ever try to encourage her to make these statements?

       [ASHLEY B.]: No.

(Emphasis added.)

       It was only when defense counsel repeated the same question that the trial court

sustained the State’s objection. A court may reasonably exercise its discretion to exclude

cumulative evidence. See Md. Rule 5-403. Because that is what happened here, the trial

court did not err or abuse its discretion in sustaining the State’s objection.

                  C. Limitations on Re-direct Examination of Appellant

       Appellant’s final challenge stems from his re-direct examination, when the trial

court sustained the State’s objections after defense counsel asked appellant whether he

“was surprised when the detective informed him of the charges.” Appellant contends this

was error because appellant’s responses “would have provided the jury with more

information to gauge his overall credibility.”



                                              35
       Appellant ignores that by that point in the trial, he already had been given an

opportunity to express such surprise. On cross-examination, he testified:

       [PROSECUTOR]: You remember telling Detective Diaz, regarding the
       allegations in this case, that [B.B.] must have been dreaming?

       [APPELLANT]: Yes, along with, I had – I didn’t know.

       [PROSECUTOR]: Along with you didn’t know?

       [APPELLANT]: Yeah, it was a big shock to me.

(Emphasis added.)

       On re-direct, appellant confirmed that he did not know why he was arrested until

Detective Diaz interviewed him. At that point, defense counsel again attempted to elicit

appellant’s surprise, leading to the challenged rulings, as follows:

       [DEFENSE COUNSEL]: Well, what was your reaction to that?

       [APPELLANT]: It’s – I couldn’t even – I think about it sometimes and I get,
       you know, I get that feeling –

       [PROSECUTOR]: Objection.

       THE COURT: Sustained.

       [DEFENSE COUNSEL]: Okay. When Detective Diaz finally told you, did
       that take you by surprise?

       [PROSECUTOR]: Objection.

       THE COURT: Sustained.

       [DEFENSE COUNSEL]: Okay. Were you upset when you –

       [PROSECUTOR]: Objection.

       [DEFENSE COUNSEL]: -- when you were informed of the –

       THE COURT: Sustained.

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       [DEFENSE COUNSEL]: Your Honor, may we approach?

       THE COURT: No. The objection is sustained.

(Emphasis added.)

       We are not persuaded that the trial court deprived appellant of his right to “bolster

his credibility” by foreclosing evidence about his “surprised” reaction. At this stage in the

trial, the jury had already heard that appellant was surprised when he was charged with

sexually abusing B.B. The court reasonably exercised its discretion to prevent defense

counsel from asking repetitive questions that solicited cumulative evidence and needlessly

prolonged appellant’s testimony. See Md. Rule 5-403.

                                     CONCLUSION

       Because the trial court did not err or abuse its discretion in the rulings challenged

by appellant, we shall affirm his convictions.

                                          JUDGMENTS AFFIRMED. COSTS TO BE
                                          PAID BY APPELLANT.




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