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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1394 September Term, 1998

ROSE MARY FISHER, MARY UTLEY and FRANK E. SCARPOLA

v.

STATE OF MARYLAND

Murphy, C.J., Moylan, Wenner, JJ.

OPINION BY MOYLAN, J.

Filed: September 8, 1999

At 2:41 P.M. on June 25, 1997, nine-year-old Rita Fisher was pronounced dead at the Johns Hopkins Hospital. The subsequent post

mortem report of the Office of the Chief Medical Examiner revealed that she had died of dehydration and malnutrition, conditions resulting from inadequate water and food intake. The post mortem

report indicated that she had been admitted to the Johns Hopkins Hospital on June 25, the day of her death, and had "expired as a result of abuse and negligence." Rita "retarded." pounds, Fisher's physical development was described as

Her weight at the time of her death was forty-seven was, in the opinion of the assistant medical

which

examiner, considerably less than the average weight of a nine-yearold girl. Other medical records indicated that at an earlier

period in her life she had weighed as much as 54-1/4 pounds. The evidence of physical abuse included "numerous recent and old abscesses buttocks." and bruises to her head, chest, extremities, and

There were "multiple rib fractures exhibit[ing] a

pattern of healing consistent with a severe chest injury several weeks prior to death." There was evidence of internal bleeding and In addition, there were

of subdural bleeding of the brain.

"multiple ligature marks on her wrists and ankles" which "indicate that she had recently been bound." There was also evidence that "a

ligature [had been] placed recently around the chest." On the next day, June 26, 1997, Rita Fisher's fifteen-year-old sister, Georgia Fisher, was admitted to the Northwest Hospital

- 2 Center. Nurse Martha Chinery described Georgia, at the time of her

admission, as "frightened, emaciated, malnourished, bruised, and scarred." The appellants in this case were the three adult members of the household at 4106 Old Milford Mill Road in the Pikesville area of Baltimore County. Both Rita Fisher and Georgia Fisher had been The three appellants are 1) forty-

members of that same household.

nine-year-old Mary Utley, the head of that household and the mother of both Rita Fisher and Georgia Fisher; 2) twenty-year-old Rose Mary Fisher, daughter of Mary Utley and older sister of Rita and Georgia Fisher; and 3) twenty-one-year-old Frank E. Scarpola, Jr., the live-in boyfriend of Rose Mary Fisher.1 The three appellants

were jointly tried by a Baltimore County jury, presided over by Judge Dana M. Levitz, and convicted of a number of charges. three appellants were convicted of: 1) 2) The murder in the second degree of Rita Fisher; The child abuse of Rita Fisher during the period of April 15, 1997 through June 23, 1997; The child abuse of Rita Fisher on June 24 and June 25, 1997; The child abuse of Georgia Fisher during the period of April 15, 1997 through June 23, 1997; All

3) 4)

1

The respective ages of the appellants are given as of June 25, 1997, the date of Rita Fisher's

death.

- 3 5) 6) Conspiracy to commit child abuse on Rita Fisher; and Conspiracy to commit Georgia Fisher. child abuse on

Rose Mary Fisher alone was additionally convicted of the child abuse of Georgia Fisher on June 24 and June 25, 1997. Frank Scarpola received a combined sentence of ninety-five years imprisonment; Mary Utley received a combined sentence of seventy-five years imprisonment; and Rose Mary Fisher received a combined sentence of thirty years imprisonment. All three

appellants raise the following five joint contentions: 1) That Maryland does not recognize the offense of second-degree felony-murder predicated on the felony of child abuse; That Judge Levitz erroneously failed to instruct the jury with respect to the necessary causal connection between the underlying felony and the death of the victim; That Judge Levitz erroneously refused to compel disclosure to the defense of certain confidential and privileged records and in refusing to have the disputed records sealed and made a part of the record for this appeal; That Judge Levitz erroneously refused to compel the State to reveal to the appellants the whereabouts of Georgia Fisher prior to trial and facilitate access to her on the part of the appellants; and That Judge Levitz erroneously joined the appellants for trial.

2)

3)

4)

5)

Mary Utley alone raises three additional contentions:

- 4 6) That Judge Levitz erroneously admitted three out-of-court statements in violation of the rule against hearsay and the confrontation clause; That Judge Levitz erroneously admitted evidence of misconduct on the part of Mary Utley for which she was not on trial; and That Judge Levitz erroneously permitted counsel for Frank Scarpola to crossexamine Mary Utley as to whether other witnesses were lying or telling the truth and erroneously denied the resulting motion for a mistrial.

7)

8)

The appellant Rose Mary Fisher alone raises the additional contention: 9) That Judge Levitz erroneously refused to permit her to introduce expert testimony in her defense.

The appellant Frank Scarpola alone raises the additional contention: 10) That the evidence was not legally sufficient to support his convictions on the two conspiracy charges. The Factual Background In the course of a ten-day trial, the State called fourteen witnesses, including one of the victims, Georgia Fisher. defense called twenty-two witnesses, including the The three

appellants.

The only undisputed facts were that prior to November

of 1995, the residents of that address were Mary Utley, Rose Mary

- 5 Fisher,2 Georgia Fisher, and Rita Fisher. In November of 1995,

Frank Scarpola moved into the residence as well. The key witness for the prosecution was Georgia Fisher.

Georgia related the abuse that she and her sister Rita had suffered at the hands of her mother, Mary Utley, for years before Scarpola moved in and the abuse that continued once Scarpola became a part of the household. With respect to the time period after Scarpola

moved in, Georgia explained how she and Rita had to perform chores such as cleaning the house and looking after the pets and if those chores were not performed, "we would get a beating." When asked

who, specifically, inflicted those beatings, Georgia answered, "Frank, Rosie and my mom." Georgia explained that the beatings

would sometimes be with a yardstick and that sometimes the girls would be hit, kicked, or punched by the appellants. Scarpola would

sometimes take Georgia and Rita into the basement and would use boxing gloves to hit them. When either of the girls fell down from

being hit, Scarpola would order them to get back up so she could be hit again. Georgia also described the many hours and days that she and Rita spent in "the hole." According to Georgia, "the hole" was "a

small place [in the basement] that had a toilet and it had a stall and they locked us in there for punishment." Georgia explained

that the "they" to whom she referred were "Frank, Rosie and my
2

As will be discussed herein, Rose Mary Fisher moved out of the residence for a brief period of time and resided with Frank Scarpola and his father.

- 6 mom." The girls would be locked in "the hole" for "days at a time"

with no light and only an occasional drink brought by the appellant Utley. When asked how often the girls were fed while in "the Neither Rita nor In

hole," Georgia replied, "once in a blue moon."

Georgia was permitted to go into the refrigerator for food.

fact, at one point a lock was placed on the refrigerator door to prevent just that. Georgia testified that, pursuant to Scarpola's orders, she was not permitted to help Rita with her homework. On one occasion when

she did so and was caught, Scarpola beat her over the head with a metal flashlight. The beating resulted in a "big gash." Scarpola

then proceeded to shave Georgia's head, pour wine over the open wound, and sew the wound with a needle and thread. Georgia did not Georgia also

go to school for several days after the incident.

described for the jury an occasion, a few months before Rita died, when she had been tied to her bed, gagged, and blindfolded by Scarpola so that he could rape her.3 Georgia stated that she and Rita had been locked in their room for five consecutive days before Rita died. During those five

days they were fed "sometimes" and permitted to use the bathroom once every other hour. At such times, one of the appellants would

unlock the girls' bedroom door and accompany the girls into the

The charges relating to the sexual abuse of Georgia by Scarpola were severed from those that were a part of this trial because those charges related only to Scarpola. During the course of the trial, however, defense counsel made no objection to the questioning of Georgia about the rape.

3

- 7 bathroom. If either of the girls could not "perform" and use the While in their bedroom, Rita

toilet, she would be hit in the face.

was forced to sleep on the wooden floor because her mattress had been removed by Scarpola. Rita was required to sleep "with her

arms straight up above her head and [with] her legs straight . . . face up." Georgia was given the responsibility of seeing that Rita

did not move from that particular position. If Rita did move, Georgia would be "held responsible for it" and would be beaten. Georgia testified that both she and Rita were kicked in the ribs by Scarpola the week prior to Rita's death. Scarpola then smashed or threw away the girls' toys, including a dollhouse to which Rita was very attached. Scarpola told Rita and Georgia that

they would not need the toys any longer because the girls were going "to go someplace" until they were twenty years old," i.e., an institution. The night before Rita died, Scarpola tied Rita up because she had been picking at a wound that Scarpola had earlier inflicted on her chin. her shoes. Scarpola ordered Georgia to remove the shoestrings from He then proceeded to tie Rita's hands to the dresser Scarpola

and her feet to the bed post with those shoestrings. ordered Georgia to watch her sister.

Georgia testified that during

the course of that night and early the next morning, "[Rita] kept yelling [because she had to go to the bathroom] and Frank hit her and she couldn't be quiet so Frank taped her mouth shut." Georgia

- 8 briefly untied her sister in the middle of the night to give Rita some relief, but then, fearing repercussions, she retied Rita after about an hour so that neither of the girls would be caught and punished. Georgia then described what transpired on the morning of June 25. Rita "was blue, I banged on the doors because she kind of Scarpola came into the They

mumbled she wanted something to drink." room and struck Georgia.

The other appellants then entered.

tried to give Rita a warm bath and they laid her on the floor on a blanket. Georgia then lay down beside her dying sister and "told Georgia

her to hang in there," only to be pushed away by Utley.

was then ordered by the appellants to "get dressed and to hurry up." She was ordered by all three appellants "to lie." Dr. James Locke, the assistant medical examiner who performed the autopsy on Rita on June 26, 1997, catalogued the numerous signs of extensive physical abuse that Rita had suffered. Those injuries included: a bruise on the forehead with bleeding underneath the scalp; abrasions and bruises on the cheek and face; subdural bleeding of the brain; a ligature mark on the chest; abrasions and scratches on the chest; scratches and bruising over the abdomen; a bruise over the left hip; bleeding in the chest cavity; fractures of four separate ribs with two of those ribs containing more than one fracture; bleeding internally within the abdomen; bruises and abrasions on both arms; ligature marks on both wrists; bruises and abrasions on both legs; ligature marks on the left ankle; a group

- 9 of bruises along the mid-back; numerous abrasions in the back region; and numerous bruises to the buttocks. Dr. Locke also read

to the jury the opinion portion of his autopsy report, wherein he wrote: This nine-year-old white female, Rita Fisher, died of dehydration and malnutrition, conditions resulting from inadequate food and water intake. She had been admitted to Johns Hopkins Hospital on June 25th, 1997 and expired as a result of abuse and neglect. Her physical development was retarded, whereas, she weighed 47 pounds, approximately one-half of the average weight of a nine-year-old girl. Evidence of physical abuse included numerous recent and old abrasions and bruises to her head, chest, extremities, and buttocks. Multiple rib fractures exhibited a pattern of healing consistent with a severe chest injury several weeks prior to death. Multiple ligature marks on her wrist and ankles indicated that she had recently been bound. There was also a ligature placed recently around the chest. Test for drugs and alcohol were negative. And no evidence of sexual abuse was seen. The manner of death is homicide. Dr. Locke concluded that Rita Fisher was "deprived of food and water and physically abused." Martha Chinery, a nurse at Northwest Hospital Center,

testified that she admitted Georgia Fisher to the hospital on June 26, 1997 at approximately 11:30 p.m. Ms. Chinery described

Georgia's physical and emotional condition on being admitted: She was just a very scared, withdrawn little girl. Very emaciated. Painfully thin. Malnourished. Her hip bones were sticking out, just a mess. ... There were bruises all over her body of varying age. ... [W]e got her

- 10 off the stretcher into the bed and she just kind of hovered in the fetal position.... She wouldn't talk unless spoken to. Ms. Chinery testified about an occurrence on the evening June 27, when Frank Scarpola and Rose Mary Fisher came to visit Georgia at the hospital. Well, it was Mr. Scarpola and Rose Fisher. They had come, and I remember him saying, "don't give the nurses a hard time. Don't try and run away." Basically that was what they said. ... He [Scarpola] also questioned me as [to whether] a pregnancy test been done. Ms. Chinery also testified that Scarpola admitted to having locked Georgia and Rita in their room on prior occasions. Numerous social workers, teachers, and administrators in the girls' respective schools testified for the State. Mary Friedman,

an instructional assistant in Rita's class the spring before Rita died, testified that on January 7, 1997, Rita came to school with a bruise on her face. When questioned about the cause, Rita School personnel

ultimately stated that "My mother hit me."

notified the Department of Social Services of the abuse. All three appellants testified in their own defense. Each, in

essence, blamed the others for the crimes committed on the two girls. Rose Mary Fisher testified that she had moved out of the residence at 4106 Old Milford Mill Road for a period of several months and that when she returned in November of 1995, she brought her boyfriend of approximately two years, Frank Scarpola, with her.

- 11 She stated that when she and Scarpola first moved into the home, it was her mother, Mary Utley, who still had the responsibility for disciplining Georgia and Rita. Later, however, Scarpola took over

the primary responsibility for disciplining the girls. Rose Mary Fisher admitted to having inflicted a very limited amount of physical abuse on the girls, as well as to having locked them in their bedroom and in "the hole" on at least one occasion when Scarpola was out of town. Rose Mary Fisher admitted that she

had hit Georgia on the buttocks with a yardstick once because Georgia had stolen some money. She denied, however, ever having

punched or kicked the two girls, ever having withheld food or water from them, ever having had any knowledge that the girls were being deprived of food and water, or ever having had an awareness of the multitude of bruises that were found on Rita's and Georgia's bodies on June 25 and June 26, 1997. With respect to the night of June 24, the night before Rita died, Rose Mary Fisher testified that she and Frank went out to dinner to celebrate the third anniversary of their having begun to date and that, upon their return from a restaurant, she went upstairs and went directly to bed. knowledge that Frank had tied Rita up. She explained she had no The following morning, Rose

Mary Fisher went into her sisters' bedroom and noticed that Rita's hands were tied to the dresser. loose with a pair of scissors. She proceeded to cut the ties

At the direction of Scarpola, she Shortly thereafter,

helped him place Rita in a tub of warm water.

- 12 either Scarpola or Mary Utley told her to tell the authorities that Rita had fallen down the steps. The three appellants then

proceeded to the hospital where Rita had been taken.

Rose Mary

Fisher denied every having had any intention to harm either Georgia or Rita. With respect to her relationship with Scarpola, she testified that Scarpola made all of the decisions. She also stated that

Scarpola had struck her on more than one occasion and that he had locked her in unspecified rooms in the house on more than one occasion. Mary Utley, the mother, next testified. She laid much of the blame for the abuse committed on the girls on Scarpola. Utley

testified that in early 1996 Scarpola "took control" over Rita's and Georgia's schedules, including the chores they were to do, their homework, and their discipline. According to Utley,

Scarpola's punishments increased in harshness and, when Utley expressed her disagreement with such punishing, he responded by calling her an "unfit mother," "dumb," or "stupid." sometimes strike Utley. Scarpola would

Utley also detailed that as part of

Scarpola's exercise of control over the entire household, he took the phone cord off the downstairs phone so that Utley could not use it, he locked Utley in her room, and he imposed a curfew on her. Utley denied ever having locked Rita or Georgia in "the hole," although she did acknowledge an awareness that the girls were being put down there. Utley testified that she did not intervene because

- 13 she was "afraid of making things worse for them." Utley did

contend that she took the girls food and water while they were in "the hole." Mary Utley admitted that she realized that there were

"problems in the home." Social Services. explained:

She ultimately called the Department of

When asked why she had resorted to doing so, she

For the main fact that things were really out of control, it -- Frank was totally in control. And there was no reasoning with him and [no] talking to him about anything. And the fact that he wanted to put the girls in an institution. Utley met with a social worker, Tear Plater, at Utley's place of employment on June 24, 1997. She explained that, prior to the

June 24 meeting with Tear Plater, "I couldn't do it at home because Frank made clear that if I went over his head that he would see to it that I was put into an institution and my house would be taken away." At that meeting between Utley and Ms. Plater, a home visit It never took place because Rita died

was scheduled for June 26. the day before.

On the evening of June 24, Utley returned from work to find Rita and Georgia in their room, with Rita "sitting Indian style up against the bureau." was tied up. Utley denied having any knowledge that Rita

Scarpola informed Utley that the girls "had just been After questioning the girls about

repunished" for lying to him.

why they had lied, Utley went downstairs to fix dinner for herself,

- 14 Rita, and Georgia. She gave the food for the girls to Scarpola and She concluded that Rita The following

she later received back two empty plates. and Georgia had eaten. morning when she awoke:

Thereafter, she went to bed.

Frank unlocked my door and told me to go downstairs and call [Kennedy Krieger Institute] to say that Rita would not be in [presumably for an appointment], that she was still sick with the flu. Utley complied. When she later went to the girls' bedroom, Utley testified that

she noticed that Rita was "looking very bad."

she intended to call the pediatrician to obtain help for Rita but "she died before I had a chance to." She then called 911. When

questioned about that 911 call, she replied that she "told them that I found her at the bottom of the steps" because she had been "told to say that." She elaborated:

I told doctors and police [that Rita had fallen down the stairs], yes. ... I was scared... Frank had said that if we didn't tell the same story that we would all answer to him. Utley then went to the Johns Hopkins Hospital where she was informed that Rita had died. Utley also testified in some detail about Scarpola's exercise of control over the household. She explained that she never called

the Department of Social Services or anyone for help because Scarpola had "made it very clear that if I would call or contact anyone that I would be put in a mental institution and my children would live with him and Rose." Scarpola would occasionally make

- 15 the girls stand in a corner with their hands straight up in the air. When Utley objected, Scarpola would either hit her or call During the days leading up to Rita's death,

her an "unfit mother."

Utley admitted that she never checked on the girls to ensure their well-being. She explained that she failed to do so because "Frank Utley exonerated She testified

would not allow anybody in the room but himself."

her daughter Rose Mary Fisher to a large extent.

that Scarpola did all of the punishing of Rita and Georgia and that Rose Mary only did so "when he demanded Rosie to do it." Frank testify. Scarpola was the last of the three appellants to

He stated that he moved into the Old Milford Mill Road

home in November of 1995 and that at that time, the house "looked like a junkyard" and was a "complete wreck" with "mice and roaches" throughout the house. disciplining Rita and He acknowledged having become involved in Georgia Fisher in the spring of 1996,

approximately three months after he had moved in, largely because Mary Utley could not handle the two children on her own. Scarpola

painted a picture of himself as the Good Samaritan, entering an already unstable and chaotic household for the purpose of trying to restore some kind of order. According to Scarpola, in early 1997

he contacted the Department of Social Services in an effort to get help for the family, and he further arranged for Rita to be seen at the Kennedy Krieger institute. Scarpola denied ever having hit the He denied ever flashlight.

girls with boxing gloves or having punched them. having hit Georgia over the head with a

metal

- 16 According to Scarpola, Georgia made up the story as to how she received the injury. He did, however, admit to shaving her head, pouring alcohol over the wound and sewing it, because he thought he could take care of it himself without seeking medical attention. He insisted that he "loved [Rita] like she was my daughter" and that he would never do anything intentionally to harm either Rita or Georgia because he "cared about both of them too much." Scarpola did, however, admit to having inflicted numerous punishments on both girls. He explained that when efforts at

"normal punishments" failed, he would then resort to measures such as spanking with a belt or a paddle and "occasionally" smacking the girls. He admitted to placing a lock outside of the girls' bedroom

to lock them in because he could not trust them any longer. On the night before Rita's death, Scarpola admitted to having tied her to a dresser with shoestrings. According to Scarpola,

Rita had fallen and hit her chin on the floor, causing her chin to bleed. Rita would not stop "picking at" the wound on her chin, so Scarpola

Scarpola tied her up to "stop her from hurting herself." explained that he tied the strings very loosely.

He insisted that

it was Georgia who, after briefly untying her sister in the middle of the night to play with her for about an hour, had retied the strings too tightly. Scarpola denied having any knowledge that He further claimed that he back. Scarpola

Rita was dehydrated or malnourished.

only knew of a few bruises on Rita's buttocks and

- 17 added that it was Mary Utley's idea to lie to the authorities and tell them that Rita had fallen down the stairs. Second-Degree Felony Murder All three appellants contend that they should not have been convicted of second-degree felony murder based on the underlying predicate felony of child abuse. They do not seem to question, as

a more abstract generality, the fact that the residual common law felony murder doctrine, as an integral part of Maryland common law, is broader and embraces more potential predicate felonies than the limited number of more egregious, or at least more high profile, felonies chosen as first-degree aggravators by Art. 27,

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