               REPORTED

  IN THE COURT OF SPECIAL APPEALS

             OF MARYLAND

                     No. 18

          September Term, 2016

______________________________________


        JESUS GARDUNO CRUZ

                       v.

        STATE OF MARYLAND

______________________________________

     Krauser, C.J.
     Graeff,
     Nazarian,

                  JJ.
______________________________________

           Opinion by Graeff, J.
______________________________________

     Filed: March 3, 2017
       Jesus Garduno Cruz, appellant, was convicted by a jury, in the Circuit Court for

Wicomico County, of first and second degree rape, third and fourth degree sex offenses,

first and second degree assault, kidnapping, and reckless endangerment.          The court

imposed a sentence of 40 years for the conviction of first degree rape, and the remaining

convictions were merged for sentencing purposes.

       On appeal, appellant raises the following question:

       Did the circuit court err by not striking the testimony of the main witness
       for the State?

       For the reasons set forth below, we answer that question in the negative, and

therefore, we shall affirm the judgments of the circuit court.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Because the sole issue on appeal involves the competency of a witness to testify,

we shall provide only a brief recitation of the facts.

       Ms. F. testified that, on May 22, 2015, she was abducted by appellant, who drove

her to a field, pulled her out of the vehicle, and raped her at gunpoint. She described how

she struggled with appellant during the rape and eventually managed to escape.

       On cross-examination, defense counsel asked whether the victim, who admitted

that she was a heroin addict, had used heroin the day of trial. The victim responded that

she had used $40 worth of heroin at 6:30 that morning. Defense counsel moved to strike

her testimony, stating: “She has used heroin today. She could be under the influence of it

now. She has obviously admitted to using it. I don’t believe she is competent to testify

due to the fact that she has been using heroin.” (emphasis added). The court denied the
motion, stating: “The witness[’] . . . answers to questions have been very responsive. She

has handled herself very well. She does not appear to be in any way under the influence,

so I’m going to deny your motion.”

       Molly Rollo, an expert in forensic serology and DNA analysis, testified that swabs

taken from the victim’s body contained appellant’s DNA.             She also found DNA

consistent with profiles of appellant and the victim on the interior of a condom found

behind a chicken coop at appellant’s house.

       Appellant testified that he saw the victim at approximately 11:00 p.m. on May 21,

2015, at a store along the “route” she worked, and he accepted her offer to have sex in

exchange for $20. Later that night, his brother called, and he learned that the victim was

trying to charge his brother $80 to engage in sexual activity. He told the victim that the

price was too high, and his brother was leaving. Appellant testified that the victim

became upset and left.

                                      DISCUSSION

       Appellant contends that the circuit court erred in denying his motion to strike the

victim’s testimony. He asserts that, “[b]ecause she used heroin earlier that morning and

was an admitted addict, one may only speculate about whether her drug usage interfered

with her ability to testify truthfully,” and therefore, “[a]s a matter of law, the victim was

not competent to testify.” 1


       1
        Appellant additionally contends that, even if the victim was competent to testify,
it was unfairly prejudicial to have the State’s case rest on the testimony of someone who
had used “a very debilitating drug only hours before testifying.” Because (continued . . .)

                                              2
       The State contends that “the trial court properly exercised its discretion when it

determined that the victim was competent to testify and refused to strike her testimony.”

It asserts that appellant did not meet his burden of showing that the victim was

incompetent to testify and “did not have ‘sufficient capacity to observe, recollect, and

recount’ the horrific events she experienced.” (quoting Perry v. State, 381 Md. 138, 145

(2004)).

       In Perry, 381 Md. at 145, the Court of Appeals summarized the law relating to

decisions regarding the competency of witnesses as follows:

              Md. Rule 5-601 notes that “[e]xcept as otherwise provided by law,
       every person is competent to be a witness.” This rule is derived from
       Fed.R.Evid. 601, and, like the federal rule, it “places the burden on the
       opponent of a witness to show that the witness is incompetent.” Lynn
       McLain, Maryland Rules of Evidence 103 (2d ed. 2002) (citing United
       States v. Odom, 736 F.2d 104, 112 (4th Cir.1984)). As stated by Professor
       McLain, under this rule, almost no one is per se incompetent to testify.
       Lynn McLain, Maryland Rules of Evidence 103 (2d ed. 2002).

In determining whether a witness is competent to testify, the trial court, in its discretion,

should determine “[1] ‘whether an individual witness has sufficient capacity to observe,

recollect, and recount pertinent facts’ and [2] whether that individual ‘demonstrates an

(. . . continued) appellant does not elaborate on that contention beyond that sentence, and
because this issue was not raised below, we shall not consider it. See Sutton v. FedFirst
Fin. Corp., 226 Md. App. 46, 80 n.18 (2015) (when party fails to adequately brief an
argument, court may decline to address it on appeal), cert. denied, 446 Md. 293 (2016);
Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any . . . issue unless it
plainly appears by the record to have been raised in or decided by the trial court.”). We
do note, however, that appellant was free to question the victim about the degree of drug
influence, see Lyba v. State, 321 Md. 564, 571 (1991) (defense counsel could delve into
degree of drug influence “so that the jury could decide the credibility of the victim and
how much weight to give her testimony”), and to argue to the jury that, because the
victim had used drugs that morning, her version of the events was unreliable.

                                             3
understanding of the duty to tell the truth.’” Id. (quoting Lynn McLain, Maryland Rules

of Evidence 103 (2d ed. 2002)).

       A trial court’s determination that a witness is competent to testify is a matter

within the trial court’s discretion, and a decision in that regard will not be disturbed

absent an abuse of discretion. Id. at 148. An abuse of discretion will be found only

“‘where no reasonable person would take the view adopted by the trial court,’” when the

court acts “‘without reference to any guiding principles or rules[,]’” or when the ruling is

“‘clearly against the logic and effect of facts and inferences before the court.’” Md. Bd.

of Physicians v. Geier, ___ Md. ___, No. 11, Sept. Term, 2016, slip op. at 14 (filed Jan.

23, 2017) (quoting Gallagher Evelius & Jones, LLP v. Joppa Drive-Thru, Inc., 195 Md.

App. 583, 597 (2010)).

       Maryland law is clear that issues relating to the credibility of a witness are

different from the requirements of a competency determination. For example, in Evans v.

State, 304 Md. 487, 509 (1985), cert. denied, 478 U.S. 1010 (1986), the Court of Appeals

addressed the admissibility of the testimony of a witness who “had given various

inconsistent versions of the relevant facts, had lied under oath, was a prostitute and a user

of drugs, had an unfortunate background and indicated that she would lie when it suited

her purposes.” Noting that “the evidence supported the conclusion that [the witness]

understood and appreciated the nature of an oath and possessed the capacity to observe

and describe correctly the facts about which she was called to testify,” the Court held that

the “issue was one of credibility, not of admissibility, and the trial judge correctly denied

the motion to exclude [the witness’] testimony.”

                                             4
       The parties have not cited, and we have not found, any Maryland case specifically

addressing whether a witness is competent to testify when he or she is under the influence

of drugs at the time of the witness’ testimony. Other jurisdictions, however, have held

that drug use, without more, does not render a witness incompetent to testify.

       In U.S. ex rel. Lemon v. Pate, 427 F.2d 1010, 1011 (7th Cir. 1970), the United

States Court of Appeals for the Seventh Circuit rejected the argument that a witness was

incompetent to testify because he was a narcotics addict and had used narcotics on the

day of the trial, prior to giving his testimony. The Court held that, where the trial judge

“had the opportunity to observe [the witness’] physical appearance, audible articulation

and continuity of testimony,” and it was satisfied that the witness was competent, “the

fact that [the witness] was an addict was a matter to be considered in connection with his

credibility and the weight which should be given his testimony but not his competency.”

Id. at 1014.

       Similarly, in Fox v. Nevada, 491 P.2d 35, 36 (Nev. 1971), the Supreme Court of

Nevada stated that “‘[a] witness cannot be excluded on the ground that he is a drug addict

unless it appears that he was so under the influence of a drug that he was not able to

observe what occurred or that his intellect was unbalanced.’” (quoting 3 Wharton on

Criminal Evidence § 758 (12th ed. 1955)). The court rejected the argument that the trial

court erred in failing to strike a witness’ testimony because the witness was under the

influence of heroin, and therefore, incompetent. Id. The court noted that it was within

the discretion of the trial court to determine whether a person is competent to testify, and

the trial court found that the witness did not appear to be “high on narcotics,” but rather,

                                             5
he had handled himself “very well” on cross-examination. Id. at 37. Under these

circumstances and where the jury was instructed regarding credibility and the weight to

be given witness’ testimony, the court found that “it was proper to permit [the witness’]

testimony to stand.” Id. 2

       Other courts have reached similar conclusions. See, e.g., State v. Moore, 213 P.3d

150, 160 (Ariz.) (a witness under the influence of drugs is competent to testify “unless

she is so impaired that she cannot coherently respond to questioning”), cert. denied, 558

U.S. 1053 (2009); Brown v. Commonwealth, 511 S.W. 2d 209, 211 (Ky. Ct. App. 1974)

(that “this witness was under the influence of different medications did not go to her

competency to testify but would affect only the credibility of her testimony”).

       We agree with the reasoning of these cases. Accordingly, we hold that the use of

drugs, without more, does not render a witness incompetent to testify. Thus, a witness

who is a drug addict, or who testifies while under the influence of drugs, is not

incompetent per se.       Rather, to be deemed incompetent to testify, there must be a

showing that the witness’ mental capacity is impaired to such an extent that the witness

lacks “sufficient capacity to observe, recollect and recount pertinent facts” or does not

understand the duty to tell the truth. Perry, 381 Md. at 145. See also 6 Lynn McLain,

       2
           Here, the jury was instructed on witness credibility as follows:

       In deciding whether a witness should be believed, you should carefully
       judge all the testimony in evidence as well as the circumstances under
       which the testimony was given. You should consider such facts as: the
       witness’ behavior on the stand and manner of testifying . . . .

                You are the sole judge of whether a witness should be believed.

                                               6
Maryland Rules of Evidence § 601:1(e) (3d ed. 2013) (“Even a person who is, for

example, mentally ill, or an abuser of alcohol or drugs, will be found competent, unless

the court finds a lack of capacity for reliable perception, memory, or communication.”).

In the absence of such a showing, a trial court does not abuse its discretion in determining

that a witness’ drug use presents an issue of credibility, not admissibility.

       Here, the trial judge, who had ample opportunity to observe the victim on the

stand throughout her direct and cross examination, found that her answers to questions

had been “very responsive,” that she had “handled herself very well,” and that she did not

appear to be “in any way under the influence” during her testimony. And there is nothing

in the record to suggest that the victim did not understand the duty to tell the truth.

Indeed, after taking the oath, she readily admitted to using heroin and engaging in

prostitution. Under these circumstances, the circuit court did not abuse its discretion in

determining that the witness was competent to testify and in denying the motion to strike

the witness’ testimony.



                                           JUDGMENTS OF THE CIRCUIT COURT
                                           FOR WICOMICO COUNTY AFFIRMED.
                                           COSTS TO BE PAID BY APPELLANT.




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