"Jane Doe" - 7 yo (2009)/ Accused: Kenneth Stabb - Salisbury MD

http://www.delmarvanow.com/apps/pbcs.dll/article?AID=/20111127/NEWS01/111270303/New-trial-ordered-child-sex-abuse-case?odyssey=nav%7Chead

SALISBURY -- A Salisbury man convicted of molesting a 7-year-old girl will get a new trial after the state's highest court overturned his conviction and sent the case back to Wicomico County Circuit Court.

The Court of Appeals reversed the lower court's decision, stating "the trial court abused its discretion in providing essentially a preemptive jury instruction that there was 'no legal requirement for the State to utilize any specific investigative technique or scientific test to prove its case.' "

The court opinion focused on a jury instruction given during a trial for 48-year-old Kenneth Gerald Stabb in 2009. The jury instruction included the following wording:

"You should consider all the evidence or lack of evidence in deciding whether a defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven based upon all the evidence the defendant's guilty beyond a reasonable doubt."

After the instruction was given by the judge, the jury deliberated for two hours before it returned to the courtroom and delivered its verdict. Stabb was found guilty of third-degree sexual assault and second-degree assault in April 2009. He was sentenced to eight years in prison; four years of the sentence were suspended.

The case moved to the state intermediate appellate court, the Court of Special Appeals, in 2009. In an unreported opinion, the judges affirmed the judgment of the Circuit Court, stating the jury instruction regarding scientific evidence was appropriate.

The Court of Appeals reversed the trial and intermediate appellate courts' rulings after determining that the trial judge's instruction to the jury regarding evidence was inappropriate.

"An improper, objectionable instruction includes one that serves to relieve the state of its burden to prove a defendant's guilt beyond a reasonable doubt," wrote the judges in the opinion filed on Nov. 22.

The state declaration of rights guarantees criminal defendants the right to a fair trial and requires judges refrain from making statements that could unfairly influence jurors, according to statements made in the court's written opinion. The declaration also prohibits judges from giving jury instructions that comment on evidence before a jury.

When deciding if a lower court abused "its dis-cretion in deciding whether to grant or deny a request for a jury instruction," the appellate court takes into consi-deration if the instruction correctly stated the law, whether it applies to the case and whether it was fairly covered in the instructions.

"It was up to the jury to weigh the absence of physical evidence corroborating Stabb's alleged assault on (the victim), Stabb's alibi defense and the testimony of the other defense witnesses," wrote the judges in the published opinion. "Further, Stabb did not advance a "missing evidence" argument that implied that "missing" evidence would favor him; rather, counsel alluded to the absence of corroborating physical evidence because the State chose not to administer a SAFE (sexual assault forensic exam)."