Posted On: January 29, 2009 by Brian G. Thompson

Can the State prosecute a domestic violence assault case without the victim in Maryland

Any experienced criminal attorney in Maryland will tell you that the answer to this question is yes, at least in cases where the State has evidence other than the testimony of the alleged victim. In fact, in a non-domestic violence assault case that was recently decided by the Court of Appeals, Edmund v. State, the Court held that the State need not even identify the victim by name. The only requirement, according to the COA is that the victim be "substantially identified". http://mdcourts.gov/opinions/coa/2007/94a06.pdf
In the Edmund case, which incidentally I tried in the Baltimore County Circuit Court for the trial of this case, the defendant was alleged to have fired 5 shots from a handgun at nearly point blank range at a man whom the defendant claimed had been bullying him for some time. Remarkably, the victim was apparently not hit and he fled the scene. The police canvassed the area and checked the local hospitals with negative results. The police recovered the gun and shell casings and my client and his brother (a correctional officer) both gave written statements describing the incident. My client was indictment on attempted first degree murder, first degree assault and various handgun offenses.

In the charging document the alleged victim was only identified as a black male, five feet eight inches tall with a beard and a mustache. The COA held that there was simply no requirement that the victim be named or even identified beyond the vague description contained in the indictment and upheld his conviction. The good news for my client is that he was facing life in prison but I secured him a sentence of just eight years. He'll be home in four.

Now back to the more common situation where an alleged victim of domestic violence refuses to cooperate in the assault prosecution of her husband or boyfriend. This situation presents itself in courts across the State every day. The majority of these cases are simply dismissed because more often than not the State needs the testimony of the alleged victim to prove the case. Most domestic assaults occur in private and therefore most often there are no witnesses other than the victim and the defendant. In some cases, the State can introduce certain statements made to the police by the victim at the scene or to the 911 operator. These situations were severely limited by a recent Supreme Court decision (Crawford v. United States) but there are still a few situations in which the State can introduce these out of court statement which, when coupled with observations and photographs of injury to the victim, can be sufficient for the State to secure a conviction.

More commonly though are situations where there are so called "independent" witnesses to the incident. I have a case currently pending in Baltimore County Circuit Court that falls into this category. My client was at home one evening when his live in girlfriend returned from a night out drinking with her friends. They got into an argument that became physical. The victim has subsequently recanted her statement but at the time gave a written statement to the police that my client had violently choked her to the point of unconsciousness. Under the rules of evidence, because this statement was reduced to writing and signed, it can be admitted as evidence but only if the victim testifies in court in a manner that contradicts the statement. Moreover, the statement isn't simply admissible to impeach her credibility, it comes in as substantive evidence. The alleged victim has refused to cooperate with the State and the State has been unable to subpoena her so it is unlikely that she will come to court. The only other evidence the State has is the testimony of a neighbor who claims to have witnessed the choking which she says occurred outside of the apartment in the hallway.

Many people wrongly believe that because the victim is not present in the court to testify that the person was either placed in fear or that the assault was non-consensual and offensive, that the State will not be able to prove this element of assault. The COA has ruled on many occasions that this type of information can be "inferred" from the evidence. In the Edmund case, for example, the COA held that the jury could have inferred that the victim had been placed in fear by the fact that he was shot at five times at point blank range as well as the fact that he fled the area afterwards.

Fortunately for my client, the alleged victim had zero injury to her neck or elsewhere as a result of this alleged assault. This lack of injury seemed terribly inconsistent with both the victim's written statement as well as the statement of the witness who both claimed that my client had lifted her off of the ground by the neck and choked her to the point unconsciousness. (My client has consistently maintained that he never choked her and that all he did was hold her arms and shoulders to prevent her from striking him. The alleged victim now agrees with this version stating that what she put in the written statement was untrue and that she only wrote it because she was both upset and intoxicated and that the police had urged her to corroborate the statement of the witness.)

As a result of this inconsistency, I decided to hire an expert witness to review the case facts along with the photos. The expert is an emergency room physician who has a particularly expertise in strangulation. Basically she is going to testify that had the alleged victim been choked in the manner described by the witness, that she would likely have died as a person generally reaches "the point of no return" within 30 seconds of being strangled. The doctor will further testify that even if a person who was choked in this manner were to survive, that the victim would without question exhibit one or more of the telltale physical signs of strangulation, such as red marks or bruising on the neck, broken blood vessels in the face and eyes to name just a few.

The case goes to trial in April. I will update this blog at that time.

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