STATE OF MARYLAND v. STEVEN YOUNG
No. 2
IN THE COURT OF APPEALS OF MARYLAND
December 18, 2018
Opinion by Adkins, J.
Sеptember Term, 2018; Case No.: 114169016; Argued: September 6, 2018
State of Maryland v. Steven Young, No. 2, September Term, 2018, Opinion by Adkins, J.
PRESERVATION FOR APPELLATE REVIEW – MOTION IN LIMINE – AUTHENTICATION: The Court of Appeals held that, where a party merely references
PRESERVATION FOR APPELLATE REVIEW – MOTION IN LIMINE – OPPORTUNITY FOR OBJECTION – MARYLAND RULES 8-131 AND 4-323:
EVIDENCE – EXCLUSION OF EVIDENCE – HEARSAY – NON-HEARSAY “VERBAL ACTS” – PRESCRIPTIONS – POSSESSION OF CONTROLLED DANGEROUS SUBSTANCES: Defendants charged with possession of controlled dangerous substances under
Barbera, C.J. Greene *Adkins McDonald Watts Hоtten Getty, JJ.
Opinion by Adkins, J.
Filed: December 18, 2018
*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
BACKGROUND
In May 2014, Detective Manuel Larbi (“Larbi“) and a team of officers executed a search warrant for 2580 Marbourne Avenue in Baltimore, Maryland. Larbi observed Steven Young and another male in front of the house. The officers handcuffed both individuals and entered the residence. Once inside, the officers observed a third individual, Angela Grubber, later identified as Young‘s wife. After Larbi read Young his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Young advised that he had controlled dangerous substances in the bedroom. Larbi went into the bedroom and found 32 pills of methadone, 3.5 grams of heroin, seven Xanax pills, and “a digital scale containing a powder substance.” In the kitchen cabinet, Larbi recovered 342 OxyContin pills, ten gel caps containing suspected heroin, and $1,498 in cash.
Young‘s trial in the Circuit Court began in January 2016. Before jury selection, the parties met with the trial judge in chambers. No record of the conversation was made. Upon returning to the courtroom, the prosecutor moved to exclude all evidence that Young hаd a prescription for the drugs seized. The court granted this motion in limine, without providing Young an opportunity to respond:
[PROSECUTOR]: And, Your Honor, the State‘s second motion that we spoke in chambers is the exclusion. State‘s moving a motion in limine to exclude any prescription evidence as it is, number one, hearsay, and, number two, not admissible hearsay because it does not fall within the exception of [
Maryland Rule] 803[(b)](6) .Defense is trying to enter into evidence, number one, a prescription -- an alleged prescription of the defendant and, number two, a prescription by his wife, Angela Grubber, who is not going to testify today. These are copies of alleged prescriptions. They are not certified. The doctor is not present. There‘s no certification or authenticity and it‘s excluded under [
Maryland Rule] 803[(b)](6) . I do have a case, Bryant v. State, [129 Md. App. 690 (2000),] by the Court of Special Appeals where in a murder trial the defense tried to enter in a piece of paper thаt was the alleged toxicology report because it was murder. And the Court said it‘s hearsay, number one, even if the defendant took the stand --THE COURT: Yeah. I‘m familiar with that law because I had the very same issues several times. Okay. That motion is granted.
Defense counsel did not respond, object, or make a proffer in response. The case proceeded to trial.1
During its case-in-chief, the State called Detective Larbi, who was accepted as an expert in the field of narcotics identification and packaging. Larbi testified that, in his expert opinion, the substances, scale, and currency recovered were for distribution, not personal use. The detective recalled that during one conversation, “Mr. Young also stated that he does sell from time to time,” and that aside from four pills that were recovered, Young took ownership of all the other drugs at the house. Larbi also testified that Young never claimed to have a prescription for the drugs.
The jury convicted Young of eight counts: possession of heroin, oxycodone, methadone, and alprazolam; and possession with intent to distribute heroin, oxycodone, methadone, and alprazolam. After merging the possession charges, the trial judge sentenced Young to multiple years of imprisonment for the four counts of possession with intent to distribute.
As a result, it reversed each of Young‘s convictions, except for his two convictions for possession of heroin and possession with intent to distribute heroin. See id. at 741.
DISCUSSION
1. Preservation
We first address two preservation issues: (1) Young‘s claim that the State failed to preserve the issue of whether he authenticated the alleged prescriptions; and (2) the State‘s claim that Young failed to preserve his claim that the trial court erred in excluding the alleged prescriptions.
Young‘s Preservation Argument—Authentication
Young argues that the State failed to raise the issue of authentication at trial and therefore cannot raise that issue on appeal. He maintains that the State‘s sole reference to authentication was in the context of its business records argument. This reference is insufficient, Yоung continues, because the prescriptions are not hearsay, and no exception is needed to properly admit them. Young further asserts that because he could self-authenticate the prescriptions, neither the physician nor her records custodian need testify.
The State responds that the prosecutor raised the issue of authentication in five ways. First, the prosecutor argued that there was no “authenticity“—meaning authentication. Second, by referring to the “alleged prescriptions,” the prosecutor asserted that they were not genuine. Third, the prosecutor argued that “there‘s no certification,” meaning that the prescriptions were not admissible without a sponsoring witness who could establish that they were authentic. Fourth, the prosecutor pointed out that “Young‘s wife is not going to testify today” and “the doсtor is not present,” meaning that Young was not calling witnesses who could potentially sponsor and authenticate the prescriptions. Finally, the prosecutor cited Bryant v. State, 129 Md. App. 690 (2000), in which the only issue on appeal was authentication.
We reject the State‘s arguments that it challenged authentication at trial because we do not ascribe the same meaning to the prosecutor‘s statements. Rather, the prosecutor clearly spelled out her reasons for excluding the prescription evidence, and they all clearly focused on challenging the prescriptions as inadmissible hearsay. Specifically, the prosecutor made her motion in limine “to exclude any prescription evidence as it is, number one, hearsay, and number two, not admissible hearsay because it does not fall within the exception of [
State‘s Waiver Argument—Exclusion of Prescriptions
The State argues that Young failed to preserve his claim that the trial court erred in excluding the alleged prescriptions. It contends that where a prosecutor has presented two independently dispositive reasons why the trial court should not take an action, and the court relies on those reasons, it is incumbent on a defendant to object or demonstrate why the prosecutor‘s arguments are not dispositive.
Young responds that the trial court was on notice of his position based on the crimes charged and his motion to suppress. Further, he contends that the court‘s ruling makes clear it was aware that he intended to introduce the prescriptions into evidence. As to the State‘s remaining argument, Young asserts that he did not have an opportunity to object to the ruling—the court granted the motion to exclude before the State finished its argument, and the court moved to the next motion without giving Young a chance to respond.
Under
Based on the record below—Young‘s motion to suppress, the prosecutor‘s reference to the discussion in chambers, the prosecutor‘s motion in limine, and the judge‘s subsequent ruling—we are satisfied that the judge had sufficient notice of Young‘s intention to introduce the prescriptions into evidence, and that the judge‘s ruling excluding them was intended to be the “final word on the matter . . . .” See Prout v. State, 311 Md. 348, 357 (1988) (applying current
2. Hearsay
The State also argues that the alleged prescriptions are inadmissible hearsay because they would be introduced to prove the truth of the matter asserted. The State presents two iterations of this theory. First, it reasons, the prescriptions go directly to the truth of the matter asserted. The State construes the word “prescription” in
provider was “operating in the course of professional practice.” When a doctor writes a prescription, the State contends, she is essentially asserting that “she has the authority to issue a prescription to the patient in order to obtain a controlled substance,” or that the patient is permitted to possess the controlled substance. Second, citing Stoddard v. State, 389 Md. 681 (2005), the State avers that even if the prescriptions do not explicitly state the information described above, they should still be excluded as hearsay because they are “implied assertions” inherent in the admission of the prescription.
Young counters that the prescriptiоns were not offered to prove the truth of the matter asserted within them. Rather, he says he sought to introduce the prescriptions as the basis for the statutory defense that he “legally possessed certain of the controlled substances.” He argues that a prescription is a “legally operative document” and that
A trial court‘s ruling on the admissibility of evidence is generally reviewed for abuse of discretion. See Hopkins v. State, 352 Md. 146, 158 (1998). Yet, appellate review of whеther a statement is hearsay is conducted without deference to the trial court. See
Bernadyn v. State, 390 Md. 1, 8 (2005) (trial court has no discretion to admit hearsay in the absence of a provision providing for its admissibility).
Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
It is hornbook law that out-of-court statements are generally not admissible to prove the truth of the matter asserted. Yet, they can be admitted if the statements are “relevant and proffered not to establish the truth of the matter asserted therein, but simply to establish that the statement was made[.]” Lunsford v. Bd. of Educ. of Prince George‘s Cty., 280 Md. 665, 670 (1977) (citations omitted). This depends on whether the “fact asserted in the out-of-court statement [must be] sincerely and accurately stated[] in order for the out-of-court statement to help to prove what it is offered to prove[.]” 6A Lynn McLain, Maryland Evidence State and Federal § 801:7, at 235 (3d ed. 2013).
In most state and federal courts, this hearsay analysis is cabined to intentional assertions. This is significant because, in other jurisdictions, if the assertion was unintentional or merely implicit, then it cannot be hearsay. Maryland departs from this general rule. This departure is best explained by Stoddard v. State, 389 Md. 681 (2005), the seminal Maryland case on implied assertion. The primary question in Stoddard was whether out-of-court statements are hearsay when offered to prove the truth of a factual proposition that was only implicitly—often unintentionally—communicated by the declarant. See id. at 689.
In Stoddard, the defendant, Erik Stoddard, was convicted of second-degree murder and child abuse resulting in the death of three-year-old Calen DiRubbo (“Calen“). Id. at 683. Stoddard was the only adult supervising Calen, her older brother, and her cousin, Jasmine Pritchett (“Jasmine“), for at least part of the time leading up to Calen‘s death. Id. at 684. The central issue involved the testimony of Jasmine‘s mother, Jennifer Pritchett. Id. Over defense counsel‘s objection, thе court admitted the mother‘s testimony that Jasmine asked her “if [Stoddard] was going to get her.” Id. at 685. The prosecutor offered this as evidence that Jasmine witnessed Stoddard commit the murder. Id. at 683.
On appeal, Stoddard argued that Jasmine‘s utterance was hearsay because it was both a statement and offered for the truth of the matter asserted. Id. at 687–88. First, the Court determined that an implied assertion is, in fact, a statement, even though unintentionally made. To justify this, we compared the Maryland Rules to the Federal Rules of Evidence. See id. at 693–96. Most courts have adopted the Committee note to the Federal Rules, which provides that “nothing is an assertion unless intended to be one.”
The Stoddard Court proceeded to evaluate whether Jasmine‘s question was offered for the truth of the matter asserted within it, turning to the wellspring of implied assertion doctrine, Wright v. Doe d. Tatham (1837) 112 Eng. Rep. 488; 7 Ad. & E. 313. In Wright, a testator left his estate to his steward, Wright. The testator‘s heir at law, Tatham, filed suit to set aside the will, arguing that the testator was mentally incompetent at the time he made the will. Id. at 493; 7 Ad. & E. at 324. In response, Wright introduced several letters addressed to the testator, not for their truth, but so the court could infer from their content that the writers believed the
The English court ruled that the letters were hearsay, id. at 500; 7 Ad. & E. at 341, and we adopted its reasoning. First, the letters could not have been admitted for the truth of their literal content, because their content was not relevant to the proceeding. The letters were only valuable inasmuch as the “tone and content impl[ied] a belief in [the testator‘s] competence[.]” Stoddard, 389 Md. at 692. “Thus, as offered, these letters express[ed] the
proposition that [the testator] [was] competent[.]” Id. A letter stating as much would clearly be hearsay. Therefore, the Court concluded that the implied assertion doctrine excludes such evidence as hearsay “where a declarant‘s out-of-court words imply a belief in the truth of X, . . . [and are] offered to prove that X is true.” Id.
Like in Wright, Jasmine‘s statement would not have been relevant were it offered for the literal truth of the question, “Is [Stoddard] going to get me?” Id. at 689. Nor was Jasmine‘s ability to speak the words otherwise relevant. See id. Rather, her question was only relevant if offered for its implicit meaning: “that, by asking it, Jasmine may have revealed, by implication, a belief that she had witnessed [Stoddard] assaulting Calen.” Id. Even if a declarant possesses no intent to assert anything, “[i]t ‘is a non sequitur to conclude from this, as the Advisory Committee [did], that the remaining dangers of perception, memory, and ambiguity are automatically minimized with this assurance of sincerity.‘” Id. at 699 (citations omitted). The State offered the question to prove the truth of the implied factual proposition that Jasmine had in fact witnessed Stoddard assaulting Calen. “[W]here the probative value of words, as offered, depends on the declarant having communicated a factual proposition, the words constitute an ‘assertion’ of that proposition,” and are offered for the truth of the matter asserted, оr implied. Id. at 703–04. Accordingly, Jasmine‘s unintentional assertion was hearsay and should have been excluded.
Since Stoddard, we have consistently resisted an overbroad interpretation of its holding. In its companion case, authored by the same judge5 and published on the same date, the Court upheld a trial court‘s decision to exclude a medical bill as hearsay, but gave cautionary advice for future cases. See Bernadyn v. State, 390 Md. 1 (2005). There, a sheriff‘s deputy conducted a valid search of a residence. See id. at 3–4. When the officer entered, the defendant (“Bernadyn“) was in the living room with a marijuana pipe and marijuana stems and seeds. Id. at 4. While in the residence, the officer seized a medical bill addressed to “Michael Bernadyn, Jr., 2024 Morgan Street, Edgewood, Maryland 21040“—the address searched. Id.
Over a defense hearsay objection, the trial court allowed the deputy tо testify that he had seized the medical bill from 2024 Morgan Street. Id. Counsel appealed to this Court. Id. at 7. Although we upheld the judge‘s decision to exclude the bill, we found it significant that the “State did not argue simply that an item bearing Bernadyn‘s name was found in the house and that Bernadyn probably resided at the house.” Id. at 11. Instead, the State
with its seeming approval of an alternate theory favoring admission—offering the statement as “merely probative circumstantial evidence.”
We continued to limit Stoddard in Garner v. State, 414 Md. 372 (2010). There we resolved the issue of whether circumstantial evidence probative of a fact that does not rely on the declarant‘s impliеd assertion can be admissible—picking up directly where Bernadyn left off. Id. at 374. Garner involved a phone call to the defendant‘s number by someone who asked: “Yo, can I get a 40?,” which referred to $40 worth of cocaine. Id. at 376. An officer answered the phone, heard the unidentified caller make the request, and then later repeated the statement at trial. Id. at 376–77. Of course, Garner objected—claiming the testimony was hearsay, and arguing it was an implied assertion and inadmissible under Stoddard and Bernadyn. Id. at 381.
This Court held that the question, “Yo, can I get a 40?,” was not hearsay, because it was a verbal act and should have been admitted into evidence. See id. at 388 (“[T]he rule against hearsay does not operate to exclude evidence of [a] ‘verbal act’ that established a consequential fact[.]“). As Judge Joseph Murphy pointed out, “neither Stoddard nor Bernadyn presented the issue of whether the ‘verbal pаrt of an act’ or an out-of-court statement ‘that constitutes circumstantial evidence of the declarant‘s state of mind’ are subject to exclusion as hearsay.” Id. at 381. Accordingly, we characterized the statement in two different ways. First, we said that it was admissible as a “verbal part of an act“—in that case, an offer. We explained that “[t]he making of a wager or the purchase of a drug, legally or illegally, is a form of contract.” Id. at 382 (citing Little v. State, 204 Md. 518, 522-23 (1954)). Therefore, the anonymous caller‘s statement had legal significance (i.e.,
to prove the existence of a contract), regardless of whether the matter asserted was true. Alternatively, the Court concluded that the statements were non-hearsay circumstantial evidence of declarant‘s state of mind. Id. at 381–82. Under either rationale, the “telephoned words of the would-be bettor” were not hearsay.
We rejected the argument that the telephoned statements were an implied assertion, even though assertions may be implicit within them. “While there may be an ‘implied assertion’ in almost any question, . . . the only assertion implied in the anonymous caller‘s question was the assertion that the caller had the funds to purchase the drugs. . . .” Id. at 388. We declined to adopt the dissenting view of then-Chief Judge Bell, who would have interpreted the implied assertion as hearsay—a statement that Garner was selling drugs. See id. at 414 (Bell, C.J., dissenting). Instead, we reinforced Stoddard‘s boundaries.
Garner demonstrates that the Stoddard holding does not foreclose legally operative verbal acts from being admitted as non-hearsay, even if they contain an implied assertion. Professor Lynn McLain, in her treatise, Maryland Evidence State and Federal, summarizes the verbal acts doctrine as follows:
The substantive law gives certain types of out-of-court statements immediate
legal consequences. Such statements are termed “verbal acts” and are nonhearsay, because they have relevance even if the declarant was insincere or inaccurate. Most categories of verbal acts are necessary to the creation of certain types of claims, charges, and defenses.
McLain, supra, § 801:9, at 240 (footnote omitted) (emphasis in original). See also Wigmore, supra, § 1770, at 259 (“Where the utterance of specific words is itself a part of the details of the issue under the substantive law and the pleadings, their utterances may
be proved without violation of the hearsay rule, because they are not offered to evidence the truth of the matter that may be asserted therein.“) (emphasis in original).
Garner is hardly the first Maryland decision to apply the verbal acts doctrine. The Court of Special Appeals has recognized that verbal acts are non-hearsay when introduced as an element of a claim or defense. In Banks v. State, 92 Md. App. 422 (1992), the State sought to introduce testimony from the victim‘s mother reporting her son‘s statement that Defendant was, inter alia, “trying to hit him with a sickle” and “was tired of the arguing [with Defendant] and . . . was just ready to go.” Id. at 430. The State argued that these statements established the victim‘s fear and tendency to avoid conflict, which were relevant to rebut the Defendant‘s battered spouse syndrome defense and establish the State‘s murder and manslaughter charges. Id. The Court recognized that verbal acts are admissible when they establish the basis of a claim or defense. But in this circumstance, “[n]either fear nor conflict avoidance . . . [had] any legal significance in establishing the elements of murder or manslaughter,” nor were they “relevant in rebutting evidence of battered spouse syndrome or self-defense or hot-blooded provocation.” Id. at 433. Hence, these statements were not admissible as verbal acts. Id. at 434.
Maryland courts have applied the verbal acts doctrine in various other circumstances, as well. See, e.g., Hyatt v. Romero, 190 Md. 500, 505 (1948) (lease is admissible to prove the terms of a tenancy implied by law); Carozza v. Williams, 190 Md. 143, 150 (1948) (“‘Rejection’ of unsatisfactory materials . . . and other statements accompanying, and relating to, the performance of duties . . . are not hearsay but are verbal acts . . . .“); Heil v. Zahn, 187 Md. 603, 607–08 (1947) (in suit against the executor of an
estate, decedent‘s will was admissible because it was “not offered as testimony from the testator that he did not owe the amount claimed but merely to show the fact that by his will he made a bequest to the plaintiff-appellant“); Travelers Ins. Co. v. Needle, 171 Md. 517, 518-19 (1937) (although a proof of loss cannot be offered to show the fact or the extent of the plaintiff‘s loss or disability, it is one of the “necessary elements” in an insurance case that is admissible to shоw that proofs of loss or proofs of disability or death have been submitted to the insurer); Catalano v. Bopst, 166 Md. 91, 100–01 (1934) (letter memorializing terms of contract admissible to establish parties’ intent as to the meaning of ambiguous word in breach of contract action); Fair v. State, 198 Md. App. 1, 37 (2011) (“[T]reating the writing on the check as a verbal part of the act of issuing the check, we are persuaded that the check was merely circumstantial non-assertive crime scene evidence.“).
To review, the State argues that the prescription evidence, had it been admitted, would have been offered for the truth of the matter explicitly or implicitly
Young was charged under
Relying in part on legislative history, the State contends that the word “prescription,” as used in the statute, means “valid prescription.” It points out that
The Garner rationale is instructive. If the “making of a wager or purchase of a drug, legally or illegally, is a form of contract,” and admissible non-hearsay, Garner, 414 Md. at 382 (emphasis added), so too is a paper entitling an individual to legally purchase the drugs. The prescriptions could be admitted as a verbal act demonstrating something, similar to a contract or lease, that is “necessary to the creation of certain types of claims, charges, and defenses,” McLain, supra, § 801:9, at 240, not the truth of the matter asserted.
We have recognized that many statements can have both hearsay and non-hearsay uses. We conclude that introducing the alleged prescriptions to establish a statutory defense is a verbal act because the statute creates legal rights, and the fact of prescription is relevant regardless of whether its particular components are “true.” Cf. United States v. Davis, 596 F.3d 852, 857 (D.C. Cir. 2010) (“It would make no sense to ask whether the money order was true. [The money order] [‘]is, by its nature, neither true nor false and thus cannot be offered for its truth.‘” (internal citation omitted)). But this does not mean that Young has successfully or convincingly established his affirmative defense. The
have been hearsay.6 And that is all we must decide regarding the possession charges.7
Because the trial court erred in granting the motion in limine, we shall affirm the Court of Special Appeals and remand for a new trial on the specified possession charges, as we explain infra.
But the State perseveres, pointing out that Young was also charged under
controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance.”
The State characterizes the argument to admit the alleged prescriptions under
Like the Court of Special Appeals, we can quickly dispatch with this argument. Young was charged with possession with intent to distribute, under
Finally, we note that when evidence is offered for a limited purpose, such as a legally operative verbal act or circumstantial non-assertive evidence, a limiting instruction is likely appropriate. “If the proponent of a statement claims to offer the evidence for a purpose other than its truth, but also offers the statement to prove the truth of a matter
asserted therein, the court should either exclude the evidence or make clear that the evidence is admitted for a limited purpose.” Bernadyn, 390 Md. at 15. Thus, depending on the reason proffered to admit the prеscriptions, a limiting instruction is likely advisable.
3. Authentication—Guidance for Remand
Young was never given the opportunity to authenticate the alleged prescriptions because the trial judge—treating the prescriptions as hearsay—granted the State‘s motion in limine. This was error. The question then becomes what is the proper remedy in this case? During the off-the-record conference in chambers, defense counsel may have told the trial judge how he intended to introduce the prescriptions. Counsel may have further explained how he intended to prove that the prescriptions were from an authorized provider or that the provider was acting in the course of professional practice. Or maybe he said nothing at all. Absent a record of this conversation, however, we are unwilling to assume that Young admitted that he did not have any method to authenticate the prescriptions. He should have been given an opportunity to proffer his authentication method. For this reason, we affirm the Court of Special Appeals and remand the case for a new trial on the charges for which Young alleged he had a prescription.
Although the State failed to preserve the issue of authentication, it will surely do so on remand. For guidance, we offer the following. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
in Sublet v. State, “[t]he most straightforward approach to authenticating а writing is to ask an individual with personal knowledge about the document whether the matter was what it purported to be.” 442 Md. 632, 658 (2015) (citing Matthews v. J.B. Colt Co., 145 Md. 667, 672 (1924) (testimony of witness that he saw defendant sign contract was sufficient to warrant its admission)). There are potentially various people with “personal knowledge” about the prescription, depending on the specific reason it is introduced. “Familiarity with the purported author‘s signature also has been a basis for authentication, provided that such familiarity was proven prior to authentication.” Id. (citing Smith v. Walton, 8 Gill 77, 77 (Md. 1849) (“A witness who has seen a party write, or who has corresponded with him, is qualified to speak with respect to the genuineness of his signature.“)).
“In other circumstances, comparison to a known exemplar may be accomplished
These are the principles that should guide a court facing a defendant‘s proffer of a prescription as a statutory defense according to
CONCLUSION
We hold that the issue of whether Young‘s alleged prescriptions were properly authenticated was not raised in or decided by the trial court, and thus it is not preserved for review. Next, under the facts of this case, the trial judge had sufficient notice that Young intended to introduce the prescriptions into evidence, and the judge‘s ruling was intended to be the “final word on the matter.” Accordingly, Young had no opportunity to object and we treat the issue as preserved under
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.