Craig Williams v. State of Maryland, No. 13, September Term, 2018. Opinion by Greene, J.
CRIMINAL PROCEDURE – MARYLAND RULE 4-331(a) – MOTION FOR NEW
TRIAL
The Court of Appeals held that the error of supplying the jury with an instruction that was an
incorrect statement of law was not harmless. The instruction was on the sole charge, first-degree child abuse, lodged against the Petitioner. We cannot say beyond a reasonable doubt
that the error in no way influenced the verdict. Therefore, we reverse and remand the case for
a new trial.
Circuit Court for Montgomery County IN THE COURT OF APPEALS
Case No. 128680C
Argued: October 3, 2018 OF MARYLAND
No. 13
September Term, 2018
______________________________________
CRAIG WILLIAMS
v.
STATE OF MARYLAND
Barbera, C.J.
Greene,
*Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
Watts and Getty, JJ. dissent.
______________________________________
Filed: January 18, 2019
*Adkins, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the MD. Constitution, Article IV,
Pursuant to Maryland Uniform Electronic Legal
Materials Act
Section 3A, she also participated in the decision
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
and adoption of this opinion.
2019-05-21
10:46-04:00
Suzanne C. Johnson, Clerk
In this case, we consider whether the trial court committed harmless error when it
denied the Petitioner’s motion for new trial where the trial court gave a pattern jury
instruction that erroneously omitted an element of the sole offense for which the petitioner
was convicted. On November 21, 2016, a jury in the Circuit Court for Montgomery County
convicted Petitioner Craig Williams (“Mr. Williams”) of first-degree child abuse. On
December 1, 2016, Mr. Williams filed a Motion for New Trial pursuant to Maryland Rule
4-331(a) (“Rule 4-331(a)”). The Circuit Court denied the motion on the grounds that the
erroneous jury instruction did not have an impact on the defense’s theory of the case. The
trial court found that it was not in the interest of justice to grant a new trial. Thereafter,
Mr. Williams noted an appeal to the Court of Special Appeals, which affirmed his
conviction. The Court of Special Appeals held that “the trial court did not abuse its
discretion in determining that the interest of justice did not require granting appellant a new
trial.” Before us, Mr. Williams seeks a reversal of that judgment on the grounds that the
erroneous jury instruction was prejudicial error and warranted a new trial.
FACTUAL & PROCEDURAL BACKGROUND
Facts Leading to Charge of First-Degree Child Abuse
Mr. Williams is the father of I.W., who was born on March 3, 2008 and was eight
years old at the time of trial in November 2016. Breana Mapp (“Ms. Mapp”) is I.W.’s
biological mother. Mr. Williams married Nicole Williams (“Mrs. Williams”), his current
wife, after the birth of I.W. Mr. and Mrs. Williams have three sons together. Mr. Williams,
in addition to I.W., has another son from a previous relationship. Mrs. Williams has two
children from a previous relationship. Altogether, Mr. and Mrs. Williams have seven
children between them. For the first four years of the Williams’s marriage, all children
except for I.W. lived with them.
In 2012, the Circuit Court for Washington County granted Mr. Williams sole
physical and legal custody of I.W. because that court found that Ms. Mapp had sexually
and physically abused I.W. Upon moving in with Mr. and Mrs. Williams, I.W.’s behavior
showed signs of the sexual trauma and abuse he had suffered at the hands of his mother.
For example, I.W. threw tantrums, hit himself and sexually attacked his siblings.1
Christopher Cofone (“Mr. Cofone”), a social worker, began working with I.W. in May of
2014. Monica Reaves (“Ms. Reaves”), a social worker with Child Protective Services,
investigated the report that I.W. had sexually abused his younger half-siblings, but she
never considered removing I.W. from the family home.
On November 19, 2015, Mr. Cofone determined that he could no longer help I.W.
and recommended that I.W. see a psychiatrist. Although an appointment was scheduled
for December 4, 2015, I.W.’s inappropriate behavior continued. According to Mr.
Williams, on November 29, 2015, he first wrapped I.W. in plastic at night in an effort to
stop I.W. from hurting himself and the other children. The following night, on November
30, 2015, Mr. Williams again wrapped I.W. in plastic wrap from his shoulder to the knee,
but also secured I.W.’s hands with zip ties. The following morning I.W.’s wrists were
chaffed and by the evening, I.W. had “puffy wrists, was drooling, and was not talking.”
1
I.W. would, among other things, insert objects into his rectum to force himself to defecate
and then hide the feces throughout the house.
2
Mr. Williams took I.W. to Shady Grove Hospital where I.W. was subsequently
transferred to the Children’s Hospital within Shady Grove. There, doctors diagnosed I.W.
with compartment syndrome2 and performed surgery on I.W.’s wrists.
Facts Leading to Motion for New Trial
On January 7, 2016, the grand jury for Montgomery County indicted Mr. Williams
on one count of first-degree child abuse. A conviction of first-degree child abuse requires
the State prove beyond a reasonable doubt that Mr. Williams abused I.W. and that the abuse
resulted in “severe physical injury.” Maryland Code Ann., Criminal Law Article § 3-
601(b)(1)(ii) (2002, 2012 Repl. Vol., 2018 Supp.) (“Crim. Law Art.”). “Severe physical
injury” is a physical injury that:
1. creates a substantial risk of death; or
2. causes permanent or protracted serious:
A. disfigurement;
B. loss of the function of any bodily member or organ; or
C. impairment of the function of any bodily member or organ.
Crim. Law Art. § 3-601(a)(5)(iii). For the jury instructions, at the request of both parties,
the trial court instructed the jury using the Maryland Criminal Pattern Jury Instructions
(“MPJI-CR”). The MPJI-CR defined “severe physical injury” in pertinent part as:
[P]hysical injury that (a) causes a substantial risk of death, (b) permanent or
protracted serious disfigurement, or (c) causes loss or impairment of a
member or organ of the body or its ability to function properly.
2
Dr. Martin explained at trial that muscles, muscle groups, and accompanying nerves,
which are surrounded by fascia, collectively constitute a compartment. According to Dr.
Martin, compartment syndrome occurs when swelling in the compartment becomes so
pronounced “that fascia, that thick covering, doesn’t expand and allow for more volume,
the muscle can actually collapse on itself due to the pressure and can’t receive its
appropriate blood flow, the muscles and the nerves.”
3
Maryland State Bar Ass’n, Maryland Criminal Pattern Jury Instructions 4:07.1, at 472-73
(2016). After the jury found Mr. Williams guilty, Mr. Williams’s counsel concluded that
the pattern instruction was incorrect because it did not make clear that the terms “permanent
or protracted” applied to both loss of function and impairment as well as disfigurement.
This error was confirmed by the Honorable Michael Mason, who was not the
presiding judge but at the time served as the Chair of the Maryland State Bar Association’s
Criminal Subcommittee of the Maryland Pattern Jury Instructions Standing Committee. In
an email exchange between Mr. Williams’s counsel and Judge Mason, Judge Mason
explained that the Criminal Subcommittee remedied the error by changing the pattern
instruction on “severe physical injury.” Compare MPJI-CR 4:07.1, at 472-73 (2d ed.
2017)3 with MPJI-CR 4:07.1 at 472-73 (2d ed. 2016). There is no dispute between the
parties that the instruction was erroneous. On December 1, 2016, Mr. Williams filed a
motion for new trial and referenced the email exchange between his counsel and Judge
Mason. At the close of that hearing, the trial judge denied the motion for new trial.
Appellate History
On February 17, 2017, Mr. Williams noted an appeal to the Court of Special Appeals
in which he questioned whether the trial court properly exercised its discretion in denying
his motion for new trial. On January 23, 2018, the Court of Special Appeals affirmed the
trial court decision in an unreported opinion, holding that the trial court did not abuse its
3
“Severe physical injury means: . . . (3) physical injury that (a) creates a substantial risk
of death, (b) causes permanent or protracted serious disfigurement, or (c) causes
permanent or protracted loss or impairment of the function of any bodily member or
organ.”
4
discretion in denying Mr. Williams’s motion for new trial. The Court of Special Appeals
first cited the broad discretion that is given to trial courts in granting motions for new trial.
It then noted that the trial court “reviewed the erroneous instruction in light of the defense’s
theory of the case and in conjunction with the evidence adduced at trial.” The intermediate
appellate court, however, failed to apply the appropriate standard of review in this case,
and mistakenly declared that the trial court properly weighed all factors in its interest of
justice determination.
This Court granted Mr. Williams’s petition for writ of certiorari on May 9, 2018.
We granted certiorari to answer the following question:
D[id the] circuit court abuse its discretion in denying a motion for new trial
where the court gave a pattern jury instruction and, after the jury render[ed]
its verdict, the court, prosecution, and defense all acknowledge[d] that the
instruction erroneously omitted an element of the offense for which the
defendant was convicted?
459 Md. 170,
185 A.3d 63 (2018).
DISCUSSION
Mr. Williams moved for a new trial under Maryland Rule 4-331(a). This Rule states
that the court may, on motion filed by the defendant within ten days after the verdict, order
a new trial if it finds that a new trial would be in the interest of justice. Md. Rule 4-331(a).
In his motion, Mr. Williams asserted that the faulty jury instruction warranted the granting
of a new trial because the instruction with regard to “severe physical injury” was unclear
and therefore lowered the standard under which the jury could convict Mr. Williams.
5
Specifically, according to Mr. Williams, the jury instruction did not make clear the
definition of “severe physical injury” as defined in Crim. Law Art. § 3-601.
Standard of Review
At the outset, we observe that the parties disagree about the appropriate standard of
review of the trial judge’s denial of the motion for new trial. Petitioner Mr. Williams argues
that because the jury had been misled as to the elements of the crime, the Circuit Court’s
discretion to deny the motion was non-existent. Mr. Williams also cites to Merritt v. State,
367 Md. 17,
785 A.2d 756 (2001), and contends that a harmless error standard is
appropriate for appellate review. Ultimately, Mr. Williams maintains that under either an
abuse of discretion or harmless error standard of review, the Court of Special Appeals and
trial court should be reversed. Respondent State of Maryland argues that the standard of
review in this case should be abuse of discretion. Respondent concedes that “in all but a
very [few] instances, none of which are present here, this Court reviews a trial court’s
ruling on a Rule 4-331(a) new trial motion for an abuse of discretion.”
Respondent’s argument that the abuse of discretion standard should apply in this
case is primarily based on a claim that this Court’s Opinion in Merritt is flawed. According
to Respondent, Merritt is flawed because the Court relied on cases that either had not been
queued up by a motion for new trial or did not “review[] the trial court’s interest of justice
determination.” Specifically, Respondent argues that Merritt’s references to Sherman v.
State, 288 Md. 636,
421 A.2d 80 (1980), Taylor v. State,
352 Md. 338,
722 A.2d 65 (1998),
State v. Stanley,
351 Md. 733,
720 A.2d 323 (1998), Pinkney v. State,
350 Md. 201,
711
A.2d 205 (1998), and Ware v. State,
348 Md. 19,
702 A.2d 699 (1997) are inapposite
6
because the trial court in those cases “either found error when it did not exist or found that
no error occurred when it had.”
Abuse of Discretion
Pursuant to Rule 4-331(a), a trial judge may order a new trial if the court finds it is
in the interest of justice to do so. This decision is ordinarily reviewed under the abuse of
discretion standard, which this Court made clear in Buck v. Cam’s Broadloom Rugs, Inc.
328 Md. 51, 57,
612 A.2d 1294, 1297 (1992) (“[A] trial court’s order denying a motion for
a new trial will be reviewed on appeal if it is claimed that the trial court abused its
discretion. However, an appellate court does not generally disturb the exercise of a trial
court’s discretion in denying a motion for a new trial.”) (quoting Mack v. State,
300 Md.
583, 600,
479 A.2d 1344 (1984)). Generally, abuse of discretion is the appropriate standard
because the decision to grant or deny a motion for new trial under Rule 4-331(a) “depends
so heavily upon the unique opportunity the trial judge has to closely observe the entire trial,
complete with nuances, inflections, and impressions never to be gained from a cold
record[.]” Buck,
328 Md. at 59,
612 A.2d at 1298.
The abuse of discretion standard is largely deferential to the trial judge’s decision.
To reverse the denial of a new trial on appeal, when utilizing the abuse of discretion
standard, the reviewing court must find that the “degree of probable prejudice [was] so
great that it was an abuse of discretion to deny a new trial.” Merritt, 367 Md. at 29,
785
A.2d at 763 (quoting Wernsing v. General Motors Corp.,
298 Md. 406, 420,
470 A.2d 802,
809 (1984)). “Abuse occurs when a trial judge exercises discretion in an arbitrary or
7
capricious manner or when he or she acts beyond the letter or reason of law.” Campbell v.
State, 373 Md. 637, 666,
821 A.2d 1, 18 (2003) (citation omitted).
An Exception to the Abuse of Discretion Standard: Merritt v. State
This Court in Merritt made an exception to the general rule that a trial court’s
decision on a motion for new trial is reviewed for an abuse of discretion. 367 Md. at 30-
31,
785 A.2d at 764. Merritt explained:
[W]hen an alleged error is committed during the trial, when the losing party
or that party’s counsel, without fault, does not discover the alleged error
during the trial, and when the issue is then raised by a motion for a new trial,
we have reviewed the denial for the new trial motion under a standard of
whether the denial was erroneous. . . . Also, in these criminal cases where
we concluded that error did occur, the matter of prejudice was reviewed
under the harmless error standard of [review].
Id. at 31,
785 A.2d at 764-65 (citing Taylor v. State,
352 Md. 338, 344, 354,
722 A.2d 65,
68, 72–73 (1998); State v. Stanley,
351 Md. 733, 749,
720 A.2d 323, 330–331 (1998);
Pinkney v. State,
350 Md. 201, 217–218,
711 A.2d 205, 213–214 (1998); Ware v. State,
348 Md. 19, 34–35, 54–55,
702 A.2d 699, 706–707, 716 (1997)).4
Merritt queued up for this Court the question of whether the denial of a motion for
new trial can be erroneous given “the fact that prejudicial documentary evidence which
was never entered into evidence was erroneously submitted to the jury at the start of its
deliberations.” 367 Md. at 23,
785 A.2d at 760. In that case, the State discovered two days
after the trial ended that an exhibit that had been marked for identification, but had not been
admitted into evidence, was present in the jury room during the jury’s deliberations.
Id. at
4
Respondent contends that Merritt does not apply in this case because “the trial court
assumed the error and considered its effect on the balance of [Mr.] Williams’s trial.”
8
21-22, 785 A.2d at 759. The exhibit “included the application for the search and seizure
warrant for Merritt’s home, the warrant, the affidavit in support of the warrant, the
inventory return, and a copy of Merritt’s taped statement to police[.]”
Id. The presence of
the exhibit in the jury room was the result of the courtroom clerk’s “erroneous belief that
the exhibit had been admitted into evidence” and was not the fault of either party.
Id. at
22,
785 A.2d at 759. The trial court denied Merritt’s motion for new trial and concluded
that there was “overpowering evidence” in the case to convict him.
Id. at 23,
785 A.2d at
760. We reversed.
Id. at 35,
785 A.2d at 767.
In analyzing our appellate review of rulings on motions for new trials, we observed
that “sometimes a trial court has virtually no discretion to deny a new trial motion[.]” Id.
at 30,
785 A.2d at 764. Merritt’s holding recognized the limitation of an abuse of discretion
standard, such as in the situation where an error occurred at trial and was not discovered
by either party until after the trial, neither party was at fault for not discovering the error,
and the error was raised by a motion for new trial. We ultimately concluded in Merritt that
“the result would be the same whether the denial of the motion for a new trial is reviewed
under an abuse of discretion standard or under an error standard.”
Id. at 31-32,
785 A.2d
at 765.
Maryland appellate courts have applied the Merritt standard in various contexts
since 2001. Nero v. State, 144 Md. App. 333, 365-66,
798 A.2d 5, 24 (2002) (“[T]he denial
of appellant’s motion for new trial with respect to the police report should be reviewed
under the standard of whether there was error committed and, if so, whether it was harmless
error.”); Jenkins v. State,
375 Md. 284, 299,
825 A.2d 1008, 1017 (2003) (“Thus, the
9
standards of review in Merritt and in this case are different. We will review the trial judge’s
denial of petitioner’s motion for a new trial in the case sub judice under an abuse of
discretion standard.”). Due to the high burden set by Merritt, our appellate courts have
generally reviewed the trial court’s decision for an abuse of discretion. See id.
Applying a Harmless Error Standard is Appropriate in the Present Case
Here, there is no debate that an error, the delivery of the faulty jury instruction,
occurred during the trial. Respondent and Mr. Williams agree that based on the MPJI-CR
jury instruction that was given, the jury could convict Mr. Williams of first-degree child
abuse as long as he “cause[d] loss or impairment of a member or organ of the body or its
ability to function properly.” The instruction did not make clear that the loss or impairment
must be either “permanent or protracted serious” as required by Crim. Law Art. § 3-
601(b)(1)(ii). Thus, the trial court committed error when it gave the jury an instruction that
effectively lowered Respondent’s burden for establishing Mr. William’s guilt beyond a
reasonable doubt.
Under the harmless error standard of Dorsey v. State, 276 Md. 638,
350 A.2d 665
(1976), applied in Merritt, we next consider whether the losing party, without fault, did not
discover the alleged error during trial. See Merritt,
367 Md. at 31,
785 A.2d at 765. Here,
the erroneous jury instruction was “given at the behest of both parties.” Before us, Mr.
Williams argues that he is not at fault because the use of pattern jury instructions is
encouraged by this Court. Additionally, Mr. Williams argues that he was not the only party
to rely on the pattern jury instructions.
This Court, in State v. Brady, noted that:
10
[T]he appellate courts of this State have often recognized error in the trial
judge’s instructions, even when there has been no objection, if the error was
likely to unduly influence the jury and thereby deprive the defendant of a fair
trial. The premise for such appellate action is that a jury is able to follow the
court’s instructions when articulated fairly and impartially. It follows,
therefore, that when the instructions are lacking in some vital detail or convey
some prejudicial or confusing message, however inadvertently, the ability of
the jury to discharge its duty of returning a true verdict based on the evidence
is impaired.
393 Md. 502, 507,
903 A.2d 870, 873 (2006) (citing State v. Hutchinson,
287 Md. 198,
204,
411 A.2d 1035, 1039 (1980)). In Brady, Terrell Brady (“Mr. Brady”) was charged
with attempted murder and the court delivered an erroneous jury instruction on the doctrine
of transferred intent.
393 Md. at 504-06,
903 A.2d at 871-73. On direct appeal, Mr. Brady
challenged the jury instruction.
Id. at 506,
903 A.2d at 873. We reversed Mr. Brady’s
conviction and observed that the “responsibility for avoiding such circumstance rests with
the trial judge who must advise the jury on every matter stemming from the evidence which
is vital to its determination of the issues before them.”5
Id. at 507-08,
903 A.2d at 873. As
such, in the present matter, we do not ascribe any fault to either Mr. Williams or
Respondent.6
5
The Dissenting Opinion suggests that “Maryland Rule 4-325(e) is devoid of any exception
that alleviates the responsibility of a defendant’s counsel to object where a trial court
employs a pattern jury instruction.” Yet, the last sentence in Rule 4-325(e) provides that
“[a]n appellate court, on its own initiative or on the suggestion of a party, may however
take cognizance of any plain error in the instructions, material to the rights of the defendant,
despite a failure to object.” Although plain error is not an issue in this case, Brady is
significant in its recognition of the court’s role in giving proper jury instructions.
6
The Dissenting Opinion contends that fault for the erroneous jury instruction must be
placed with a particular party and that in this case, fault should be attributed to Mr.
Williams. We maintain that fault need not be attributed in this case. If we were to assign
fault, it should be placed with the trial court because this Court and the Court of Special
(continued . . .)
11
The last element of the harmless error review under Merritt requires that the issue
be raised in writing via a motion for new trial. Mr. Williams’s pleading fulfills this
requirement.
Merritt provides a guide for when we will review “denials of new trial motions []
under a standard of whether the court erred rather than under an abuse of discretion
standard.” 367 Md. at 30-31,
785 A.2d at 764. Three elements must be present: an alleged
error occurred during trial that was not discovered during trial, the losing party was without
fault for not discovering the error during the trial, and the error is raised in writing. Here,
the three elements are present, and we, thus, review the trial court’s denial of Mr.
Williams’s motion for new trial under the harmless error standard.
Respondent contends that Merritt does not apply in this case because “the trial court
assumed the error and considered its effect on the balance of Williams’s trial[.]”
Alternatively, Respondent suggests that any reliance on Merritt would be misguided and
argues that the analysis within Merritt is flawed. Respondent points out factual differences
between Merritt and the cases cited therein7 to support its proposition that harmless error
review is inappropriate in the immediate instance. Respondent does not adequately explain
why these factual differences amount to a flawed inferential step between the standard
(. . . continued)
Appeals have been steadfast in encouraging that trial counsel and our trial courts rely on
the pattern jury instructions. See, e.g., Minger v. State, 157 Md. App. 157, 161 n. 1,
849
A.2d 1058, 1060 n.1 (2004) (“Appellate courts in Maryland strongly favor the use of
pattern jury instructions.”).
7
Taylor v. State,
352 Md. 338,
722 A.2d 65 (1998); State v. Stanley,
351 Md. 733,
720
A.2d 323 (1998); Pinkney v. State,
350 Md. 201,
711 A.2d 205 (1998); Ware v. State,
348
Md. 19,
702 A.2d 699 (1997).
12
applied in Merritt and the cases used to support it. We, nevertheless, explore the cases that
we relied on in Merritt.
In Taylor, the defendant, Lisa Taylor (“Ms. Taylor”), was convicted of conspiracy
to distribute heroin and possession with intent to distribute. 352 Md. 338, 340,
722 A.2d
65, 66 (1998). The jury raised questions while deliberating and the trial judge answered
the questions out of the presence of the defendant, the State, and defense counsel.
Id. The
trial court deemed the error harmless and denied a new trial.
Id. at 344,
722 A.2d at 73.
We reversed and stated that “if the record is silent as to prejudice resulting from a violation
of the defendant’s right to be present, an appellate court will not ‘speculate’ as to harm;
instead prejudice will be presumed, and the conviction will be reversed.”
Id. at 349,
722
A.2d at 70. Additionally, we stated that “an ambiguous record does not affirmatively show
anything and, consequently, cannot support an harmless error argument.”
Id. at 351,
722
A.2d at 71.
In Stanley, Larry D. Stanley (“Mr. Stanley”), was convicted of various assault-
related crimes. 351 Md. 733, 737,
720 A.2d 323, 324 (1998). During a bench trial, the
trial judge asked the State’s attorney if she had threatened the witness with perjury charges
in order to chill the witness’s testimony.
Id. at 740-41,
720 A.2d at 325-26. The State’s
Attorney was not a sworn witness at the time of the judge’s inquiry.
Id. Mr. Stanley argued
that this was error on the part of the trial judge and warranted a new trial.
Id. at 740,
720
A.2d at 326. We noted that the State’s Attorney not being a sworn witness was irrelevant
and therefore a “harmless error” because the trial judge accepted as true the witness’s
13
account of her conversation with the State’s Attorney. Id. at 749,
720 A.2d at 331. The
State’s Attorney’s unsworn statement therefore was not improper, “was a general
admonition, not a threat,” and did not harm the defendant enough to warrant a new trial.
Id. at 754,
720 A.2d at 333.
In Pinkney, the trial judge erred in finding that the defendant, Eric Pinkney (“Mr.
Pinkney”), had waived his right to be present at trial. 350 Md. 201, 205-06,
711 A.2d 205,
207 (1998). We held that there was error in not properly investigating why Mr. Pinkney
had failed to appear for trial. Id. at 223,
711 A.2d at 216. Additionally, we held that the
record must reflect that an adequate inquiry was made to ensure that a defendant’s absence
was not in fact involuntary.
Id. We could not presume from a silent record that a waiver
had occurred.
Id. at 217,
711 A.2d at 213.
In Ware, the defendant, Darris Ware (“Mr. Ware”), was convicted of first-degree
murder. 348 Md. 19, 24,
702 A.2d 699, 701 (1997). During the trial, a witness who was
testifying against Mr. Ware had a sentence reconsideration motion pending.
Id. at 32-33,
702 A.2d at 705. The State did not disclose the pending sentence reconsideration and
emphasized in closing that the witness had no reason to lie.
Id. at 54,
702 A.2d at 716. We
held that the potential impact of this non-disclosed information was sufficient to
“undermine [the] confidence in the outcome of the proceeding.”
Id.
These four cases all provide an adequate foundation for the rule stated in Merritt
and which we rely on today. Although Respondent attempts to discredit Merritt and its
progeny based on procedural differences in the cases, we reject this argument. Our review
of error is not causally related to the procedural posture of the trial court’s decision. In
14
other words, we review error no differently when the error is presented in a motion pursuant
to Rule 4-331(a) than we do in a case involving a direct appeal from a verdict. Although
the four cases are procedurally distinct from the instant case, they all involve scenarios in
which an error was committed and then determined either to be “harmless” or “prejudicial.”
We determined that the error in Merritt was prejudicial. Likewise, we review the
prejudicial effect of the error in the present case. For these reasons, we are neither
persuaded that our analysis in Taylor, Stanley, Pinkney, and Ware was improper, nor that
the analysis in Merritt was flawed.
Respondent also argues that Merritt is flawed in its reliance on Sherman v. State. In
Sherman, the appellant, Robert Sherman (“Mr. Sherman”), was tried on five counts related
to the unlawful and willful use of funds. 288 Md. 636, 637,
421 A.2d 80, 80-81 (1980).
Despite the defendant’s objection, the jury had before it during deliberations Mr.
Sherman’s indictment, which included two counts that he had been acquitted of at the close
of evidence.
Id. at 638,
421 A.2d at 81. The State first argued that the issue was not
properly preserved for appellate review because only the “count” was referenced in the
defense’s objection rather than the “indictment.”
Id. at 640,
421 A.2d at 82. This Court
determined that the issue was properly before it and that the availability of the indictment
in the jury room was reversible error and remanded the case for a new trial.
Id. at 640, 642,
421 A.2d at 82, 83.
In the present case, Respondent contends that “[t]he problem with the Court’s
reliance on Sherman to apply a harmless error review to the trial court’s Rule 4-331(a)
ruling, however, is that, in Sherman, the Court was not reviewing a trial court’s decision
15
on a new trial motion.” The Court in Sherman was “determining on direct appeal whether
the jury’s review of a charging document containing ‘dead counts’ was erroneous in the
first instance[.] Consequently, the Sherman Court only considered whether the error was
harmless.” Respondent asserts that Sherman is not relevant because it fails to analyze
harmless error in the context of a Rule 4-331(a) motion. Sherman never reached the interest
of justice determination. According to Respondent, therefore, Merritt’s reliance on
Sherman for an interest of justice analysis was flawed. Because Respondent rejects the
analysis in Merritt, it rejects Merritt’s application in the instant case.
Respondent concludes that in the present case, a new trial is not warranted. We
disagree. “When we have determined that the trial court erred in a criminal case, ‘reversal
is required unless the error did not influence the verdict.’” Porter v. State, 455 Md. 220,
234,
166 A.3d 1044, 1052 (2017) (quoting Bellamy v. State,
403 Md. 308, 333,
941 A.2d
1107 (2008)). In other words, “an error is harmless only if it did not play any role in the
jury’s verdict.” Id. at 234,
166 A.3d at 1052 (emphasis omitted). As we do in all cases,
where a party has alleged error, we look to see if there was error and inquire into whether
the error prejudiced the defendant. If our answer is no, the inquiry ends. If we determine
that the error prejudiced the defendant, we analyze how the error prejudiced the defendant.
If, as in this case here, we cannot say beyond a reasonable doubt that the error in no way
influenced the verdict, we reverse and remand the case for a new trial. In the instant case,
Mr. Williams was charged with, and the jury was instructed on, one crime, first-degree
child abuse. For this reason, we are not persuaded that the error in the instruction in no
way influenced the jury’s verdict of first-degree child abuse.
16
Furthermore, in reviewing Merritt, we emphasize that “See” citations were used for
support of the holding in that case. A “See” citation indicates that “there is an inferential
step between the authority cited and the proposition it supports.” THE BLUEBOOK: A
UNIFORM SYSTEM OF CITATION R. 1.2(a), at 54 (Columbia Law Review Ass’n et al.
eds., 19th ed. 2010). Although not procedurally identical cases, Merritt and Sherman were
factually similar such that an inference was reasonable to support the holding in Merritt.
Specifically, Sherman applied the Dorsey standard and the Court was unable to “upon its
own independent review of the record, declare beyond a reasonable doubt that the error in
no way influenced the verdict.” Sherman, 288 Md. at 641,
421 A.2d at 82. Whereas,
Merritt considered whether an error that had occurred at trial was harmless error beyond a
reasonable doubt, and, if so, was the error prejudicial. The inference is that review of an
error under Merritt is no different than review of an error under Sherman, i.e., the harmless
error standard we applied in Dorsey. For the reasons explained herein, we re-affirm Merritt
and hold that our review of the Circuit Court’s denial of the motion for a new trial in this
case is subject to the harmless error standard.
The Dorsey Standard
Having established that harmless error is the appropriate standard of review of the
trial court’s denial of Mr. Williams’s motion for new trial, we must now determine whether
the erroneous jury instruction was prejudicial. Dorsey provides the standard for
determining whether an error is prejudicial or not:
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing
court, upon its own independent review of the record, is able to declare a
17
belief, beyond a reasonable doubt, that the error in no way influenced the
verdict, such error cannot be deemed “harmless” and a reversal is mandated.
276 Md. 638, 659,
350 A.2d 664, 678 (1976). Dorsey, in its analysis of harmless error
review, cited to the United States Supreme Court case Chapman v. California,
386 U.S.
18,
87 S. Ct. 824 (1967). Id. at 648,
350 A.2d at 671. In Chapman, the prosecutor’s
argument and trial judge’s instruction impressed upon the jury that it may imply guilt on
behalf of the petitioners because of the petitioners’ failure to testify.
386 U.S. at 18,
87 S.
Ct. at 825. The Supreme Court held that the harmless error standard applied and concluded
that the error was not harmless.
Id. at 24,
87 S. Ct. at 828. In that case, the Supreme Court
noted that “there may be some constitutional errors which in the setting of a particular case
are so unimportant and insignificant that they may, consistent with the Federal
Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.”
Id. at 22,
87 S. Ct. at 827. In other words, Dorsey is consistent with Chapman in analyzing
whether an error is great enough to warrant a new trial, or “so unimportant . . . that [it] be
deemed harmless[.]”
Id.
Respondent argues, much like the trial judge concluded, that because Mr. Williams
did not contest the extent of I.W.’s injuries at trial, the instruction did not impact the
defense’s theory of the case, and the error was, therefore, not prejudicial. Respondent notes
that the crux of Mr. Williams’s trial strategy was to emphasize Mr. Williams’s desire to
protect his family. In other words, Respondent asserts that the extent of I.W.’s injuries
were ancillary to Mr. Williams’s main defense. According to Respondent, it was almost
18
presumed at trial that I.W.’s injuries were sufficient to be considered “permanent or
protracted serious.”
The trial judge, in her ruling on the motion for a new trial, stated that “it seems to
me that the error . . . did not have a substantial impact on the defense theory in the case in
my view.” Thus, the trial judge ruled that it was not in the interest of justice to grant Mr.
Williams a new trial. In her interest of justice analysis, the trial judge failed to analyze Mr.
Williams’s defense in conjunction with Respondent’s burden to prove beyond a reasonable
doubt the elements of first-degree child abuse. The interests of justice analysis should not
discount Respondent’s burden to prove the “permanent or protracted serious” element of
first-degree child abuse. In other words, Respondent is not relieved of its burden of proof
because of a perceived failure to contest an element of the crime. It is in the lowering of
Respondent’s burden of proof that Mr. Williams was prejudiced, and that error warrants
granting him a new trial.
Application of the Dorsey Standard to the Present Case
Jury instructions are meant to “direct the jury’s attention to the legal principles that
apply to the facts of the case.” General v. State, 367 Md. 475, 485,
789 A.2d 102, 108
(2002). “Accurate jury instructions are also essential for safeguarding a defendant’s right
to a fair trial. The court’s instructions should fairly and adequately protect an accused’s
rights by covering the controlling issues of the case.” Robertson v. State,
112 Md. App.
366, 385,
685 A.2d 805, 815 (1996). In the present case, the jury was not properly
instructed on the charge of first-degree child abuse.
19
Consistent with the Dorsey standard, unless we determine beyond a reasonable
doubt that the error in no way influenced the verdict, the error cannot be deemed harmless
and a reversal is mandated.8 276 Md. at 659,
350 A.2d at 678. We first point out that the
only crime for which Mr. Williams was charged was first-degree child abuse. As such, it
was the only crime on which the jury received instruction. Respondent argues that this
case turns on Mr. Williams’s trial strategy—that he did not contest the extent of I.W.’s
injuries. The record, however, suggests otherwise. The exact nature and extent of I.W.’s
injuries were contested at trial during the direct examination of Dr. Martin by Respondent.
During Dr. Martin’s direct examination, the following exchanges occurred:
[RESPONDENT]: So can you give us an idea – given what happened to
[I.W.], he was diagnosed with compartment syndrome? You have to answer
verbally.
[DR. MARTIN]: Yes. He had compartment syndrome for sure.
[RESPONDENT]: Okay. Can you tell us what some of the long-term effects
that you’ve seen in compartment syndrome? What happens long term when
someone has compartment syndrome in three compartments of the forearms?
[DR. MARTIN]: I mean, the outcome of a compartment syndrome depends
on what the function of the muscles are. So you can open a compartment
8
The question presented on certiorari was:
Does a circuit court abuse its discretion in denying a motion for new trial
where the court gave a pattern jury instruction and, after the jury renders its
verdict, the court, prosecution, and defense all acknowledge that the
instruction erroneously omitted an element of the offense for which the
defendant was convicted?
In contrast, the Dissenting Opinion presents the issue as “. . . whether there is any
reasonable doubt that the jury still would have found Williams guilty if the Circuit Court
had correctly defined ‘severe physical injury.’” This reframing misstates the issue which,
pursuant to Merritt, is whether we can, upon independent review of the record, declare
beyond a reasonable doubt that the error in no way influenced the verdict. In the instant
case, we are unable to declare that the error was harmless.
20
syndrome, and the person can have completely normal function if it’s
released in time and all that.
The consequences of compartment syndrome where there’s damage to the
muscles is usually the muscles get contracted and you’re left with a rigid
extremity that doesn’t work because the muscles no longer function
normally. The question is if the nerve was impacted as well. You could have
sensory loss as well.
Following this exchange, Mr. Williams’s counsel objected as to the foundation of Dr.
Martin’s testimony. The trial judge sustained the objection and Respondent continued on
with its direct examination:
[RESPONDENT]: So let’s look at it this way. Based on your review of the
records, have you developed an opinion about the functioning of [I.W.]’s
hands today?
[DR. MARTIN]: His function is nowhere near normal.
[RESPONDENT]: Okay. Given the fact that his surgery to relieve the
pressure associated with compartment syndrome was in December of 2015
and today his function is nowhere near normal, what is his long-term
prognosis in your medical opinion?
[DR. MARTIN]: I don’t think he’s going to make any miraculous recoveries
from where he is now. I think that most people – like I said if you get to
compartment syndrome early, most people have normal function and you’ll
see that pretty quickly after their soft tissue wounds heal. So if somebody
almost a year later has contracture[, he/she] is going to make very little I
think progress from here on out most likely.
…
I mean if they’re working on trying to get a few degrees of motion here and
there in his wrist, the chance of ever having a normal function of his arms is
highly unlikely.
Again, following this exchange, Mr. Williams’s attorney objected to the foundation of Dr.
Martin’s testimony. The objection was again sustained. Later, on cross-examination, Mr.
21
Williams’s counsel questioned Dr. Martin on the possibility of permanency of I.W.’s
injuries:
[WILLIAMS’S COUNSEL]: Are you ruling out the possibility of normalcy?
[DR. MARTIN]: I’d probably say yes.
[WILLIAMS’S COUNSEL]: What do you mean you’d probably say yes?
[DR. MARTIN]: Well, I mean people always hang on to hope, but I don’t
think he’s going to have normal function if he doesn’t one year after his
injury.
[WILLIAMS’S COUNSEL]: It is true, though, is it not that early
intervention, early medical care or treatment of compartment syndrome can
lead to – a prompt diagnoses and treatment can lead to a recovery, correct?
[DR. MARTIN]: Correct.
[WILLIAMS’S COUNSEL]: Is it similarly true with Volkmann’s
Contracture that prompt treatment and diagnosis such as we had here can
lead to a recovery?
[DR. MARTIN]: Well, Volkmann’s Contracture, once you have that, it’s
hard – you can’t recover from it because it’s a consequence of muscle that
dies related to compartment syndrome. So basically, Volkmann’s
Contracture is a complication of compartment syndrome.
[WILLIAMS’S COUNSEL]: But the symptoms of it, you’re saying they’re
incurable?
[DR. MARTIN]: In the sense that you can’t create normal function out of it,
yes. There are things that you can do to try to maximize someone’s function
that has Volkmann’s Contracture, but to restore normal function is pretty
much impossible to do.
The above testimony indicates that early intervention can lead to recovery from
compartment syndrome, that normalcy is possible for I.W. but not likely, and that things
can be done to maximize someone’s function who has Volkmann’s Contracture. This
testimony indicates that the exact nature and extent of I.W.’s injuries were up for debate
22
by the jury.9 The severity of the injuries was not only objected to on direct examination
but also contested on cross-examination. Respondent argues that questioning the
foundation of an expert’s testimony does not amount to contesting the substance of the
expert’s testimony. We disagree. Because the extent of I.W.’s injuries was a contested
element, as the finder of fact, the jury would have had to resolve the issue upon
deliberation.
According to the jury instruction that was given, it was unclear if “permanent or
protracted serious” applied to both disfigurement and loss or impairment of the function of
an organ of the body. The lack of clarity in the instruction clearly prejudiced Mr. Williams
and lowered Respondent’s burden to establish Mr. Williams’s guilt. The prejudice to Mr.
Williams was that Respondent pursued only the charge of first-degree child abuse as
opposed to the charges of first and second-degree child abuse.10 Upon our review, we
9
During deliberations the trial court received a note from the jury. The jury requested a
transcript of Dr. Martin’s in-court testimony. In response, the trial judge, without obtaining
the specifics of their inquiry, directed the jurors to rely upon their collective memory of the
doctor’s testimony. This is significant because Dr. Martin’s testimony was offered to prove
the element that was erroneously instructed on, the “severe physical injury” element of
first-degree child abuse. Accordingly, we will never know the precise impact of the
erroneous jury instruction on Dr. Martin’s testimony or the ultimate effect on the verdict.
Pursuant to the erroneous jury instruction, the jury could have concluded that the loss or
impairment of I.W. was not “permanent or protracted serious” and still have found Mr.
Williams guilty of first-degree child abuse. In order to be properly convicted of first-degree
child abuse, any loss or impairment must be “permanent or protracted serious.” Because
we are not privy to the specific deliberation of the jury, we cannot say beyond a reasonable
doubt that the erroneous instruction had no impact on the jury’s verdict.
10
We note that a second-degree child abuse instruction was not requested by either
Respondent or Mr. Williams. Had a second-degree child abuse instruction been requested
and given, and the jury returned a verdict for second-degree child abuse, the error in the
first-degree child abuse instruction would have been harmless. The “permanent or
(continued . . .)
23
cannot say that Mr. Williams was not harmed by this error beyond a reasonable doubt. As
such, the error cannot be deemed harmless and we reverse the judgments of the Court of
Special Appeals and the Circuit Court for Montgomery County.
CONCLUSION
The trial court erred in denying Mr. Williams’s motion for new trial. The error of
supplying the jury with an instruction that was an incorrect statement of the law was not
harmless, particularly given that Respondent presented the jury with only the charge of
first-degree child abuse. We cannot say that the error in the jury instruction in no way
influenced the verdict. Therefore, we reverse the judgment of the Court of Special Appeals
and direct the remand of the matter to the Circuit Court for a new trial.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED. CASE
REMANDED TO THAT COURT WITH
DIRECTIONS TO REMAND THE CASE
TO THE CIRCUIT COURT FOR
MONTGOMERY COUNTY FOR A
NEW TRIAL. COSTS IN THIS COURT
AND THE COURT OF SPECIAL
APPEALS TO BE PAID BY
MONTGOMERY COUNTY.
(. . . continued)
protracted serious” language is not included in the instruction for second-degree child
abuse. The trial judge found it significant that the defense did not seek a second-degree
child abuse instruction. Likewise, we note that Respondent also did not seek an instruction
on second-degree child abuse.
24
Circuit Court for Montgomery County
Case No. 128680C
Argued: October 3, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 13
September Term, 2018
______________________________________
CRAIG WILLIAMS
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
Greene,
*Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Dissenting Opinion by Watts, J., which Getty,
J., joins.
______________________________________
Filed: January 18, 2019
*Adkins, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the MD. Constitution, Article IV,
Section 3A, she also participated in the decision
and adoption of this opinion.
Respectfully, I dissent. I disagree with the Majority as to both the standard of review
and the merits. I would hold that this Court should review the Circuit Court for
Montgomery County’s denial of the motion for a new trial for abuse of discretion, as
opposed to reviewing it for harmless error. Regardless of the standard of review, I would
affirm the Court of Special Appeals’s judgment. In other words, even assuming for
argument’s sake that the standard of review is harmless error, I would determine that the
record establishes, beyond a reasonable doubt, that the incorrect jury instruction did not
affect the verdict.
The Majority correctly observes that an appellate court reviews for harmless error a
trial court’s denial of a motion for a new trial where “an alleged error occurred during trial
that was not discovered during trial, the losing party was without fault for not discovering
the error during the trial, and the error is raised in writing.” Maj. Slip Op. at 12. In my
view, although fault for an erroneous jury instruction will not always be placed on a
particular party, the Majority is incorrect in reasoning that Craig Williams, Petitioner, was
without fault in not discovering the error in the jury instruction at trial. See id. at 11.
The error in the jury instruction was patent, in that the jury instruction failed to
identify all of the elements of first-degree child physical abuse. Specifically, the jury
instruction—which defined “severe physical injury” as “physical injury that (a) causes
permanent or protracted serious disfigurement or (b) causes loss or impairment of a
member or organ of the body or its ability to function properly”—did not accurately reflect
Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) (“CR”) § 3-601(a)(5)(iii)2, which
defines “severe physical injury,” in pertinent part, as “physical injury that . . . causes
permanent or protracted serious: A. disfigurement; B. loss of the function of any bodily
member or organ; or C. impairment of the function of any bodily member or organ.” In
other words, the jury instruction plainly failed to convey that, under CR § 3-601(a)(5)(iii)2,
like disfigurement, loss or impairment of a member or organ of the body or its ability to
function properly must be serious and either permanent or protracted. At the time of trial,
Williams’s counsel was well-aware of CR § 3-601(a)(5)(iii)2’s definition of “severe
physical injury.” Indeed, before jury selection, Williams’s counsel expressly cited CR §
3-601(a)(5)(iii)2 while contending that it would be improper for Benjamin Martin, M.D.,
a medical expert witness for the State, to testify that I.W. suffered permanent or protracted
serious disfigurement or impairment of the function of any bodily member or organ, as,
according to Williams’s counsel, the words “protracted,” “severe,” and “functioning” are
legal terms, not medical terms.
Williams’s counsel cannot be absolved of fault for failing to object to the jury
instruction just because it was a pattern jury instruction. The record demonstrates that
Williams’s counsel was well-aware of the elements of first-degree child physical abuse,
and would have been aware that the jury instruction did not properly set forth the elements.
Maryland Rule 4-325(e) makes clear the need for a defendant’s counsel to promptly object
to an alleged error in a jury instruction, stating in pertinent part: “No party may assign as
error the giving or the failure to give an instruction unless the party objects on the record
promptly after the court instructs the jury, stating distinctly the matter to which the
party objects and the grounds of the objection.” (Emphasis added). Maryland Rule 4-
325(e) is devoid of any exception that alleviates the responsibility of a defendant’s counsel
-2-
to object where a trial court employs a pattern jury instruction.
This Court’s holding in State v. Brady, 393 Md. 502, 507-08,
903 A.2d 870, 873
(2006) does not support the Majority’s determination that Williams’s counsel was without
fault in not discovering the error in the jury instruction at trial. See Maj. Slip Op. at 11.
The Majority quotes part of the following dicta in Brady,
393 Md. at 507-08,
903 A.2d at
873:
[W]hen the [jury] instructions are lacking in some vital detail or convey some
prejudicial or confusing message, however inadvertently, the ability of the
jury to discharge its duty of returning a true verdict based on the evidence is
impaired. The responsibility for avoiding such circumstance rests with the
trial judge[,] who must advise the jury on every matter stemming from the
evidence [that] is vital to its determination of the issues before them.
(Quoting State v. Hutchinson, 287 Md. 198, 205,
411 A.2d 1035, 1039 (1980)). Maj. Slip
Op. at 11. In each of Brady,
393 Md. at 509,
903 A.2d at 874, and Hutchinson,
287 Md.
at 202,
411 A.2d at 1037, the issue was whether a trial court committed plain error in failing
to correctly instruct the jury. Thus, Brady and Hutchinson are not dispositive where, as
here, the question is not whether a trial court committed plain error in failing to correctly
instruct the jury; instead, the question is whether a defendant’s counsel was without fault
in failing to discover an error in a jury instruction at trial.
Immediately after quoting part of the above dicta in Brady, 393 Md. at 507-08,
903
A.2d at 873, the Majority states: “As such, in the present matter, we do not ascribe any
fault to . . . Williams[.]” Maj. Slip Op. at 11. The Majority implies that, no matter the
circumstances, a defendant’s counsel is always without fault where he or she fails to
discover an error in a jury instruction at trial, as the responsibility for discovering such
-3-
errors always rests with the trial court. Such an outcome would be at odds with Maryland
Rule 4-325(e)’s recognition that a defendant’s counsel bears responsibility for discovering
errors in jury instructions and bringing them to the trial court’s attention.
Given that Williams’s counsel was not without fault in failing to discover the error
in the jury instruction at trial, I would review the circuit court’s denial of the motion for a
new trial for abuse of discretion. As this Court explained in Merritt v. State, 367 Md. 17,
30-31,
785 A.2d 756, 764 (2001), an appellate court reviews a trial court’s denial of a
motion for a new trial for abuse of discretion, as opposed to reviewing it for harmless error,
unless, among other things, “the losing party or that party’s counsel, without fault, does
not discover the alleged error during the trial[.]” (Citations omitted).
That said, regardless of whether this Court reviews the circuit court’s denial of the
motion for a new trial for abuse of discretion or for harmless error, the result would be the
same—namely, that the circuit court’s decision should be affirmed.
Given the terms of the erroneous jury instruction, and given that the jury found
Williams guilty of first-degree child physical abuse, the jury necessarily found that
Williams caused a physical injury that either: (1) caused permanent or protracted serious
disfigurement, or (2) caused loss or impairment of a member or organ of the body or its
ability to function properly. The issue that is before this Court is whether there is any
reasonable doubt that the jury still would have found Williams guilty if the circuit court
had correctly defined “severe physical injury,” in pertinent part, as “physical injury that . .
. causes permanent or protracted serious . . . loss of the function of any bodily member or
organ[] or [] impairment of the function of any bodily member or organ.” CR § 3-
-4-
601(a)(5)(iii)2B, C. In other words, the question is: If the circuit court had correctly
defined “severe physical injury,” would the jury have found that any loss or impairment of
a member or organ of the body or its ability to function properly was serious and either
permanent or protracted?
From my perspective, an examination of the record demonstrates that, if the proper
instruction had been given, the verdict would have been the same. The evidence
demonstrated that, in a misguided attempt to prevent his son I.W. from acting out at night,
on multiple occasions, Williams wrapped him with plastic wrap, bound his arms and legs
with zip ties, left him that way overnight, and freed him in the morning. On the last such
occasion, Williams wrapped I.W. with plastic wrap so tightly that both of his arms swelled.
Williams was eventually taken to Children’s National Medical Center, where Dr. Martin
was the orthopedist1 on call.
Notably, Dr. Martin’s testimony unequivocally established that the loss or
impairment of a member or organ of I.W.’s body or its ability to function properly was
both serious and permanent or protracted. Dr. Martin testified that he had diagnosed I.W.
with compartment syndrome, which occurs when a muscle swells so much that it collapses
in on itself, depriving the muscle and nerves of blood flow. Dr. Martin and another doctor
simultaneously performed surgery on both of I.W.’s arms. After the surgery on I.W.’s
arms, a plastic surgeon, Dr. Albert Oh, performed skin grafts. Dr. Oh diagnosed I.W. with
1
An orthopedist is “a doctor who specializes in the branch of medicine concerned
with the correction or prevention of deformities, disorders, or injuries of the skeleton and
associated structures[.]” Orthopedist, Merriam-Webster, https://www.merriam-webster.
com/dictionary/orthopedist [https://perma.cc/BS25-2H5J].
-5-
Volkmann’s Contracture, which, according to Dr. Martin, occurs where compartment
syndrome leaves muscles so rigid that they “no longer function normally.”
Critically, Dr. Martin testified that I.W.’s hands’ functioning was “nowhere near
normal[,]” that his prognosis was “poor[,]” and that “the chance of ever having normal
function of his arms is highly unlikely.” During his cross-examination, Dr. Martin did not
retreat from this conclusion. In response to Williams’s counsel’s questions, Dr. Martin
acknowledged that a prompt diagnosis of compartment syndrome and treatment could lead
to a recovery, but testified that Volkmann’s Contracture cannot be recovered from because
it is a complication of compartment syndrome. Williams’s counsel then asked whether the
symptoms of Volkmann’s Contracture were “incurable[.]” Significantly, Dr. Martin
responded: “In the sense that you can’t create normal function out of it, yes. There are
things that you can do to try to maximize someone’s function [who] has Volkmann’s
Contracture, but to restore normal function is pretty much impossible to do.”
(Emphasis added).
In light of Dr. Martin’s unequivocal testimony about I.W.’s symptoms and
prognosis, it is clear that the evidence demonstrated, beyond a reasonable doubt, that I.W.’s
injuries were serious and either permanent or protracted.
Williams raises a red herring by pointing out that Dr. Martin did not expressly
characterize I.W.’s injuries as “serious” or “permanent or protracted.” Dr. Martin was not
required to use the terms “serious” or “permanent or protracted” to provide ample evidence
that I.W.’s injuries were serious and permanent or protracted. Dr. Martin’s testimony that
I.W.’s hands’ functioning was “nowhere near normal” unequivocally established that his
-6-
injuries were serious. And Dr. Martin’s testimony that “restor[ing] normal function is
pretty much impossible to do” clearly showed that I.W.’s injuries were permanent or
protracted.
Tellingly, during Williams’s opening statement and closing argument, his counsel
did not contest the proposition that I.W.’s injuries were serious and permanent or
protracted.2 Instead, Williams’s counsel contended that Dr. Martin did not testify that
2
During William’s closing argument, his counsel addressed Dr. Martin, in pertinent
part, as follows:
Dr. Martin is important. Dr. Martin is in the field of pediatric
medicine, but I don’t get the sense that he’s got an abuse training background
or something like that. So he seems like a perfectly personable surgeon with
experience. But he gives you an opinion about [I.W.]’s current situation.
First[,] he never says in an expert opinion way that he thought what little he
knew about the events of the night -- remember, he said yes, somebody said
something about he was wrapped. He never connected whatever it was he
knew about the wrapping with the injuries [that] he was observing. So he
didn’t give an opinion based on a reasonable degree of medical probability
or based on anything else. He didn’t even address it.
But what he does do is he said yes, I did this operation. I did this. I
saw [I.W.] maybe -- I don’t remember, maybe even as late as December 3lst.
Have you ever seen [I.W.] since? No. Well, what are you talking about then?
Well, I read a note of [I.W.’s] last visit. But he was in Children’s [National
Medical Center,] and Dr. Martin didn’t see [I.W.] And whoever did see
[I.W.] didn’t come in here and talk about it. How hard is it? It’s proof
beyond a reasonable doubt, a critical element of the case. How hard is it to
have somebody come in who has just seen [I.W.] and tell you what the
situation is instead of a good guy who’s saying, well, I haven’t seen [I.W.], I
read a note from a plastic surgeon -- not an orthopedist -- and so I think it’s
pretty ugly. [I.W.]’s not going to regain his use.
How about examining [I.W.]? How about sharing some truth with us
about it? Are they hiding something? I don’t know. But why aren’t they
just telling us? I don’t see the doctors at Children’s [National Medical
Center] having any reluctance to come out here and testify in this case. But
not so much -- to help you, I’ll ask you this -- if Dr. Martin was advising you
(Continued...)
-7-
Williams’s wrapping of I.W. with plastic wrap caused I.W.’s injuries, and that Dr. Martin
had not seen I.W. recently enough as of the time of trial for his opinion about I.W.’s
“current situation” to have much weight. Williams’s counsel’s contentions in no way
indicated that, contrary to Dr. Martin’s opinion, I.W. would lack full function of his hands
for the rest of his life. During closing argument, Williams’s counsel indicated that he did
not dispute the extent of I.W.’s injuries, stating: “[A]gain, we’re not challenging that the
injuries were not very bad. You’d be foolish to do that. They were. They were awful.
But they were unimagined and they were unintended.” (Emphasis added).
In sum, at no point during Williams’s opening statement or closing argument did
his counsel contest that I.W.’s injuries were serious and permanent or protracted. To the
contrary, during Williams’s opening statement, his counsel stated that he did not “dispute
. . . that the injuries have turned out to be what they are.” And, during Williams’s closing
argument, his counsel acknowledged that I.W.’s injuries were “significant, regrettable,
about some serious surgery that you were considering, and the best he could
say to you was yeah, I remember I saw you about a year ago, and I read a
note, and I’m not saying anything about the surgery that’s related to what the
earlier condition is, but here’s what I think. I think you should have the
surgery. Would you do it? Would that be enough for you? Do you think
you might get a second opinion? Would you might say, doc, could you be a
little more specific? That’s what we’re demanding, is that you don’t go back
there and go, what the heck happened? Does anybody know what happened
between then and then or what does that -- remember, [Dr. Martin]’s an
expert because he’s a medical doctor. He’s an expert because he’s got
training and studying in this specific field, so he can give an opinion. But
just like the doctor who treats you, if you don’t like what you’re hearing, you
don’t have to listen to that.
But in a case like this, with so much on the line, with the State bent to
punish [] Williams, we want you to look at it, upside down, inside out, in
every line.
-8-
unimaginable[,]” “very bad[, and] awful.”
The Majority is incorrect in determining that Williams’s counsel “contested” “the
extent of I.W.’s injuries[.]” Id. at 22. The Majority quotes Dr. Martin’s cross-examination,
see id. at 21, during which Williams’s counsel asked Dr. Martin whether he was “ruling
out the possibility of normalcy”; whether “a prompt diagnosis and treatment can lead to a
recovery” from compartment syndrome; whether “prompt treatment and diagnosis such as
we had here can lead to a recovery” from Volkmann’s Contracture; and whether “the
symptoms of” Volkmann’s Contracture are “incurable[.]” I disagree with the Majority’s
assessment that Dr. Martin’s testimony in response to Williams’s counsel’s questions
“indicates that the exact nature and extent of I.W.’s injuries were up for debate by the jury.”
Maj. Slip Op. at 22-23. To properly find Williams guilty, the jury needed to find that I.W.’s
injuries were serious and permanent or protracted. While cross-examining Dr. Martin,
Williams’s counsel challenged only the idea that I.W.’s injuries would be permanent—i.e.,
“incurable” or incapable of “recovery”; Williams’s counsel in no way contested the
evidence that I.W.’s injuries were both serious and protracted.3 And, as noted above,
during Williams’s opening statement and closing argument, his counsel made clear that he
did not contest the extent of I.W.’s “significant, regrettable, unimaginable[,]” “very bad[,
and] awful” injuries.
3
Curiously, the Majority concedes: “[W]e will never know the precise impact of the
erroneous jury instruction on Dr. Martin’s testimony or the ultimate effect on the verdict.”
Maj. Slip Op. at 23 n.9. The jury instruction given after Dr. Martin’s testimony obviously
had no impact on the witness’s opinion; and, with this statement, the Majority appears to
acknowledge that the instruction may have had no impact on the verdict.
-9-
Contrary to the Majority’s reasoning, it is appropriate to consider the circumstance
that Williams’s counsel did not contest that I.W.’s injuries were serious and permanent or
protracted. See Maj. Slip Op. at 19. The Majority notes that “the State is not relieved of
its burden of proof because of a perceived failure to contest an element of the crime.” Id.
Although that statement is accurate, it has no application here. The issue is not whether
the State was relieved of its burden of proof; the issue is whether there is any reasonable
doubt that the jury still would have found Williams guilty if the circuit court had correctly
defined “severe physical injury.”4 As discussed above, Dr. Martin’s testimony eliminates
any such reasonable doubt.
In conclusion, the evidence demonstrates, beyond a reasonable doubt, that I.W.’s
injuries were serious and either permanent or protracted, and that the giving of the incorrect
pattern jury instruction did not affect the verdict.
For the above reasons, respectfully, I dissent.
Judge Getty has authorized me to state that he joins in this opinion.
4
The Majority frames the question in a similar manner, stating that the issue is
“whether we can, upon independent review of the record, declare beyond a reasonable
doubt that the error in no way influenced the verdict.” Maj. Slip Op. at 20 n.8. Contrary
to the Majority’s determination, in this case, the error was harmless beyond a reasonable
doubt and did not influence the jury’s verdict.
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