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Appeals court overturns child sex abuse conviction

A Maryland appeals court has overturned the conviction and 41-year prison sentence of a man accused of sexually abusing a preteen neighbor, saying he was denied his constitutional right to adequately cross-examine the boy at trial and that the judge’s instruction to the jury improperly presumed a crime had been committed.

The linchpin of Michael David Brochu’s defense was that the boy’s father had compelled his son — identified in court papers as “D.G.” — to tell police that Brochu had abused him, the Court of Special Appeals said. But the trial judge in Prince George’s County prevented Brochu’s counsel from pursuing that argument by erroneously sustaining the prosecution’s objections to the line of questioning, the intermediate court held in ordering a new trial.

MichaelDavid Brochu (File photo)

Michael
David Brochu (File photo)

“Brochu understandably sought to establish that D.G.’s father said or did something to pressure or persuade him to change his story and to falsely implicate Brochu,” Judge Kevin F. Arthur wrote for the appellate panel. “The [trial judge], however, prevented Brochu from obtaining an answer to that important question. Because that question was critical to the jury’s assessment of who was telling the truth and could have cast sufficient doubt on D.G.’s credibility as to render him unworthy of belief in the mind of at least one juror, we are constrained to conclude that the error was not harmless beyond a reasonable doubt.”

Prior jurors’ deliberations, Prince George’s County Circuit Judge Krystal Q. Alves also wrongly gave the jurors pattern instructions by repeatedly referring to “the crime” or “criminal act” even though Brochu had personally testified he had never abused the boy, the Court of Special Appeals said in its 3-0 decision.

“In a case as close as this one, where one person’s testimony was pitted against another’s on the issue of whether any crime had occurred, we cannot countenance the court’s use of an inapplicable instruction that subtly endorsed one side of that dispute,” Arthur wrote in the unreported opinion, filed Thursday.

Maryland Attorney General Brian E. Frosh will “continue to review the decision, and possible next steps,” spokesman David Nitkin said Monday in response to whether Frosh will appeal the ruling to the state’s top court, the Court of Appeals.

Brochu’s trial attorney, James N. Papirmeister, hailed the appellate court’s ruling on what he called the “big deals” of cross examination and jury instruction.

“Prohibiting me from cross examining the main prosecution witness [was] not even to me a close call,” said Papirmeister, adding that the constitutional right of defendants to confront their accusers is “fundamental.”

A jury instruction that refers directly to “the crime” when the defense is that no crime was committed takes the jurors’ “focus off the ‘beyond a reasonable doubt’ instruction,” added Papirmeister, a Silver Spring solo practitioner. “When you give an instruction like that it has a great potential for leading to a wrong verdict.”

Assistant Maryland Public Defender David Kennedy, Brochu’s appellate counsel, said he is “happy on behalf of my client that he got some relief.”

The jury found Brochu culpable in one of six alleged incidents of sexual assault against D.G. and convicted him of one count of sexual abuse of a minor, one count of second-degree sexual offense and one count of unnatural or perverted sexual practice.

At the spring 2013 trial, D.G. testified that Brochu had touched the boy’s penis with his hands or mouth on six occasions between September 2011 and the following summer, when D.G. was 9 years old. The abuse occurred in the attic of Brochu’s house or in his daughter’s car, D.G. testified.

The boy said he did not tell his father of the incidents until the summer of 2012 because Brochu had told the boy he would be in trouble if he did. D.G. subsequently told police but not before telling a social worker, Kristine Herold, that nothing had happened.

On cross-examination, the prosecution objected when Brochu’s attorney began to ask D.G. whether his father had spoken to him about having told Herold nothing had occurred. Alves sustained the objection, telling the boy not to answer.

The Court of Special Appeals said Alves had erred.

“In sustaining these objections, [Alves] appears to have misunderstood the purpose of the questions: Counsel’s objective was not to introduce the father’s statements for the truth of the matters asserted, but for the non-hearsay purpose of establishing that he had pressured or persuaded D.G. to change his account and to falsely implicate Brochu,” Arthur wrote.

Judges Patrick L. Woodward and Christopher B. Kehoe joined Arthur’s opinion.

The Court of Special Appeals did not hear arguments in the case, opting instead to render its decision based on the legal briefs submitted in the case.

The case is Michael David Brochu v. State of Maryland, No. 1426, September Term 2013.