This case involves two legal questions: (1) whether prior consistent statements are admissible under Maryland Rule 5-802.1(b) if the declarant had multiple reasons to fabricate the statements and the statements predated at least one of the declarant’s motives to fabricate; and, (2) whether statements relied upon at trial as substantive evidence, nonetheless, are admissible under Maryland Rule 5-616(c) to rehabilitate a witness. We shall hold that the prior consistent statements, elicited through the testimony of police officers in this case, were not admissible under Rule 5~802.1(b) because they were made after the declarant had an expressed or implied motive to fabricate the statements, and the alleged motives were presented as such at trial before the trial judge made a determination as to the statements’ admissibility. In addition, we shall hold that the prior consistent statements were inadmissible hearsay and were neither relevant nor admissible under Rule 5-616(c) to “detract from the impeachment,” or “rebut logically” the impeachment undertaken.
I.
In the Circuit Court for Montgomery County, a jury convicted Petitioner, Kenneth Thomas, of distribution of a controlled dangerous substance. The trial judge sentenced Petitioner to five years incarceration, suspending all but eighteen months. On appeal, the Court of Special Appeals affirmed that judgment. The intermediate appellate court reasoned that a witness’s prior consistent statements are admissible even if the witness had multiple motives to fabricate, so long as the witness made the statements before any one of the motives to fabricate. Alternatively, the court held that the witness’s prior consistent statements were admissible as rehabilitative evidence under Rule 5-616(c). Thomas v. State,
1. Did the Court of Special Appeals incorrectly interpret Maryland Rule 5-802.1(b) when it held that if a declarant had multiple motives to fabricate, the declarant’s prior consistent statement was admissible at trial under Rule 5-802.1(b) so long as it predated at least one of the declarant’s motives?
2. Applying this incorrect interpretation of Rule 5-802.1(b), did the Court of Special Appeals then err when it ruled admissible prior consistent statements by a declarant that came after the declarant had a motive to fabricate?
3. Did the Court of Special Appeals incorrectly rule that the declarant’s prior consistent statements were admissible at trial pursuant to Maryland Rule 5-616(c)?
II.
On December 9, 2009, Officer Peter Johnson, of the Montgomery County Police Department, parked his unmarked vehicle on the lot of the Milestone Shopping Center located in Germantown, Maryland. Officer Johnson set up surveillance at that location to observe activities occurring on the parking lot near the Blockbuster Video store. As he watched, a white Cadillac Eldorado driven by Richard Benjamin drove onto the lot, followed approximately thirty minutes later by a gold Saturn automobile driven by Petitioner. Benjamin got out of the Cadillac and approached the passenger side of the Saturn. Officer Johnson noticed the interaction between the two drivers, which he described as “an exchange,” when Benjamin reached inside the vehicle driven by Petitioner. From this interaction, Officer Johnson surmised that Benjamin and Petitioner had just engaged in a drug transaction. Although he did not actually witness any “exchange [of drugs or money] because his view was partially obscured by the dashboard of [Petitioner’s] car[,]” Officer Johnson did see Benjamin reach inside the passenger compartment of Petitioner’s car. There
Officers Alfred Dzenkowski, Jeffrey Rea and Johnson were involved in conducting the stop of Benjamin. After stopping Benjamin’s car, two of the officers questioned Benjamin about where he was coming from and where he was going. In Benjamin’s words, “They said [the stop] was for traffic although there w[ere] three cops behind me ... I knew something was wrong.” According to Officer Johnson, “[i]n speaking with Mr. Benjamin, he had said that — his initial story was that he was just going shopping and somebody had asked him directions.” Benjamin also stated that he went to the Giant and Blockbuster stores before leaving the shopping center parking lot. While the officers questioned Benjamin outside of his car, he consented to a search of his car and his person. In conducting the search, the officers directed Benjamin to remove his shoes. According to Officer Johnson, after removing his shoes, “[Mr. Benjamin] kicked his shoes into a wooded area behind” him. Officer Dzenkowski retrieved the shoes and found located inside the left shoe a white rock that later tested positive for crack cocaine. When asked where he had gotten the crack cocaine, Benjamin responded, “I bought it from a guy named Kenny” — “I, I got it from a guy named Kenny at the Blockbuster, who drives a gold Saturn.” According to Benjamin, he paid for the drugs with two twenty-dollar bills and one ten-dollar bill. The police recovered no other drug paraphernalia from Benjamin or from inside his car.
Officer Jason Cokinos was involved in the traffic stop of the Saturn driven by Petitioner. In response to questioning, Petitioner told the officer that he was coming from Frederick and was on his way to Pep Boys. A search of Petitioner revealed that he was in possession of $275, fifty of which was in his left jacket pocket separated from the rest of his money. The fifty dollars consisted of two twenty-dollar bills and one ten-dollar bill. Officer Cokinos did not recover any drugs from Petitioner or from inside the Saturn.
The defense counsel’s theory of the case was that Benjamin was the one selling drugs on December 9, 2009, and Petitioner went to Blockbuster intending to purchase drugs. At the last minute, however, Petitioner decided not to make the purchase and left the parking lot. During trial, the defense emphasized that no drugs were found on Petitioner or in his vehicle.
On cross-examination of Benjamin, defense counsel inquired about the details of the unauthorized use charge. Counsel asked if Benjamin actually returned the vehicle or if the owner came to get it after the police got involved. Benjamin said that he did not return the vehicle and that the owner came and got it. In addition, defense counsel asked Benjamin if he told the prosecutor about the unauthorized use charge before he testified in the present case, and Benjamin said he had. Further, defense counsel asked Benjamin if he went to the Blockbuster on December 9 to sell drugs; and whether Petitioner was the buyer but changed his mind at the last minute. Benjamin denied that he went to the Blockbuster to sell drugs.
The State called Officer Johnson who testified that Benjamin told him that he bought drugs from Kenny. The State also called Officer Jeffrey Rea to testify that Benjamin told him that he purchased the drugs from “a black guy at a nearby shopping center.” During the direct examination of Officer Johnson, the following occurred:
*94 Q. Okay. And did you have an opportunity to speak with [Benjamin]?
A. I did. I asked Mr. Benjamin, “Okay”—
[DEFENSE COUNSEL]: Your Honor, I’m going to object to the hearsay nature of any responses to his questions. [Emphasis added].
[THE PROSECUTOR]: Your Honor—
THE COURT: Overruled.
[THE PROSECUTOR]: — may we approach? Oh.
By [the prosecutor]:
Q. What did Mr. Benjamin say?
A. I asked Mr. Benjamin, I told him, I was like, “Look, we know more than you think, this is not just a traffic stop, where did you get this, where did you get this crack cocaine?” and he said, “I bought it from a guy named Kenny”—
[DEFENSE COUNSEL]: I object again, Your Honor.
THE COURT: Overruled
THE WITNESS: — “I, I got it from a guy named Kenny at the Blockbuster, who drives a gold Saturn.”
The direct examination of Officer Jeffrey Rea reveals the following:
Q. Okay, thank you very much. Now, did you have an opportunity to speak at all "with Mr. Benjamin after the crack cocaine was seized?
A. Yeah. After I came out of the car and Officer Dzenkowski had the, had the crack, I asked Mr. Benjamin where he got it from, and he said he—
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
THE WITNESS: — he said he bought it from a black guy at a nearby shopping center.
The State recalled Officer Johnson and the following occurred:
*95 Q. Officer Johnson, when you were speaking with Mr. Benjamin, did he tell you how he paid for the rock of crack cocaine?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Overruled.
THE WITNESS: He did. On the scene initially, after we had him out, we found — Officer Dzenkowski found the rock of crack cocaine; I asked him, “Okay, you know, let’s, let’s talk,” and he said that he bought the, the crack from a man he knew as Kenny that was in a gold Saturn at the Blockbuster.
THE WITNESS: Okay. He told me that he paid for the crack cocaine with $50.
BY [THE PROSECUTOR]:
Q. Did he tell you the denomination that he used?
A. He did later—
[DEFENSE COUNSEL]: Objection.
THE WITNESS: — at the—
THE COURT: Overruled.
THE WITNESS: Okay. He did later at — at the German-town Station, I advised him of his rights. Mr. Benjamin— [DEFENSE COUNSEL]: Objection. Again, Your Honor, that is not responsive to the question.
THE COURT: All right. Just tell us if, at any time, he advised you as to the denominations with which he paid for the crack cocaine.
THE WITNESS: He did. He told me there was two 20s and a 10 to make $50, that’s what he paid for the crack cocaine that was found in his shoe.
III.
Generally, in order for evidence to be admissible, it must be relevant. Andrews v. State,
“Generally, statements made out of court that are offered for their truth are inadmissible as hearsay, absent circumstances bringing the statements within a recognized exception to the hearsay rule.” Su v. Weaver,
Under Md. Rule 5-616(c)(2), a witness’s prior consistent statements are admissible, not as substantive evidence, but for nonhearsay purposes to rehabilitate the witness’s credibility. See Holmes,
Our cases point out that, on review, we will not disturb the trial court’s evidentiary rulings absent error or a clear abuse of discretion. Conyers v. State,
Maryland Rule 5-802 states that “[e]xcept as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” We discussed the standard of review for hearsay rulings in Bernadyn v. State,390 Md. 1 , 7-8,887 A.2d 602 , 606 (2005):
*98 We review rulings on the admissibility of evidence ordinarily on an abuse of discretion standard. Review of the admissibility of evidence which is hearsay is different. Hearsay, under our rules, must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule excluding such evidence or is “permitted by applicable constitutional provisions or statutes.” Md. Rule 5-802. Thus, a circuit court has no discretion to admit hearsay in the absence of a provision providing for its admissibility. Whether evidence is hearsay is an issue of law.... (Emphasis in original).
Although the parties in this case dispute the correct standard of review, as Petitioner suggests, it is clear from our case law that in deciding whether a hearsay exception is applicable, we review the trial judge’s ruling for legal error rather than for abuse of discretion; that is because hearsay is never admissible on the basis of the trial judge’s exercise of discretion. See Dulyx v. State,
IV.
Petitioner challenges the admission into evidence at trial, through the testimony of two police officers, the prior consis
Respondent disagrees. According to Respondent, “Benjamin’s prior consistent statements ... were properly admitted as either substantive evidence or rehabilitative evidence under the applicable Maryland Rules.” Respondent asserts that the trial judge admitted Benjamin’s prior consistent statements because Thomas’s attorney tried to impeach Benjamin’s credibility. As to the unauthorized use charge, Respondent posits that Benjamin’s “prior consistent statements rebutted defense counsel’s charge that Benjamin’s testimony resulted from fabrication or improper influence or motive,” because the alleged motive to fabricate arose after Benjamin spoke to the police about Petitioner’s involvement in the drug transaction. Furthermore, Respondent maintains that “to the extent that defense counsel [alleged] that Benjamin had several motives to fabricate before and after his prior consistent statements, these statements were still properly admitted as substantive evidence” because defense counsel specifically alleged that Benjamin was motivated to fabricate his testimony in light of the pending unauthorized use of a motor vehicle charge.
A more accurate characterization of Petitioner’s argument to the jury, however, was that Benjamin’s and Thomas’s roles in the drug transaction were reversed; Benjamin was the seller and Petitioner was the buyer. Thus, Petitioner maintains that Benjamin is not a credible witness because he had a motive to lie to the police from the moment the police discovered crack cocaine on his person. Further, Petitioner asserts that Benjamin’s character is such that he will say anything to make himself look better. According to defense counsel, when Benjamin was stopped by the police and they asked what was going on, he lied. Also, defense counsel pointed out that, when Benjamin testified in court, he lied and that he will lie whenever “it’s going to elevate him in the eyes of whoever is asking the questions.”
On the basis of the record before us, we know that when the State sought to introduce Benjamin’s prior statements, through the testimony of the police officers involved, defense counsel objected on the grounds of hearsay. The trial judge overruled the objections. There was no discussion with the
V.
Generally, prior out-of-court statements by a witness that are consistent with the witness’s trial testimony are not admissible to bolster the witness’s credibility. Holmes,
Maryland Rule 5-802.1 provides in relevant part:
The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule:
(b) A statement that is consistent with the declarant’s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive[.]
In Holmes,
[t]he rationale behind the common-law, “premotive” rule was that if a witness has been attacked by a charge of “bias, interest, corrupt influence, contrivance to falsify, or want of capacity to observe or remember, the applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.” (Emphasis in original).
Holmes,
Further acknowledging that Md. Rule 5-802.1(b) is derived from Federal Rule of Evidence 801(d)(1)(B), we adopted the United States Supreme Court’s interpretation of Rule 801(d)(1)(B) that the rule “embodies the common-law rule requiring a prior consistent statement, introduced to rebut a charge of ... fabrication or improper influence or motive to have been made before the alleged fabrication or improper influence or motive came into existence.” Holmes,
The timing of the alleged fabrication is crucial to the application of Md. Rule 5-802.1(b). Therefore, consistent with Tome, we now adopt expressly the “view, which appears to be more in line with the clarity of Tome’s approach, ... that when the witness is obviously under investigation or has been arrested when the statements were made, [the witness’s prior statements] are generally inadmissible because the motive to fabricate has already arisen.”
As these cases make clear, the trial court’s focus should be on when the prior consistent statements arose. If the prior consistent statements were made at a time prior to the existence of any fact which would motivate bias, interest, or corruption on the part of the witness then the prior consistent statements are admissible to rebut the alleged bias
In the present case, the Court of Special Appeals, in reliance on People v. Hayes,
In People v. Hayes, the Supreme Court of California held that a statement that a witness, James, made to law enforcement officers was admissible as a prior consistent statement because “it was made before the existence of any one or more of the biases or motives that, according to the opposing party’s express or implied charge, may have influenced the witness’s testimony.” People v. Hayes,
Notably, in the present case, Benjamin’s statements to the investigating police officers were made before he was charged with unauthorized use; nevertheless, Benjamin made the statements after he was stopped by police and under investigation for his alleged participation in a drug transaction. Thus, his prior consistent statements were inadmissible because the motive to fabricate, as alleged by Petitioner, had already arisen.
VI.
Maryland Rule 5-616(c)(2) provides:
(c) Rehabilitation. A witness whose credibility has been attacked may be rehabilitated by:
(2) Except as provided by statute, evidence of the witness’s prior statements that are consistent with the witness’s present testimony, when their having been made detracts from the impeachment[.]
A prior consistent statement “must meet at least the standard of having some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with his trial testimony.” United States v. Simonelli,
Prior consistent statements used for rehabilitation of a witness whose credibility is attacked are relevant not for their truth since they are repetitions of the witness’s trial testimony. They are relevant because the circumstances under which they are made rebut an attack on the witness’s credibility. Thus, such statements by definition are not offered as hearsay and logically do not have to meet the same requirements as hearsay statements falling within an exception to the hearsay rule.
Holmes,
In the present case, defense counsel’s attempt to impeach Benjamin was in the lawyer’s cross-examination of Benjamin and was summarized in her argument to the jury. According to counsel, Benjamin lied to the jury about his role in the drug transaction, he lied about the circumstances surrounding the unauthorized use offense, and he lied about his expectation of leniency, in this case. Defense counsel suggested to the jury that it should not believe Benjamin because “he [will] lie[ ] to make himself look better.” The mere fact that Benjamin gave police the same information he testified to at trial, or what he stated to each officer, does not detract from the impeachment undertaken. Repetition of Benjamin’s in-court testimony by police officers does not make Benjamin’s testimony any more believable, nor does it undermine the argument presented by the defense, that Benjamin will say anything to look good in the eyes of the jury. Therefore, because the consistent statements do not “detract from the impeachment” or “rebut logically the impeachment,” they cannot be admitted under Md. Rule 5-616(c)(2).
Everything [Benjamin] said has been consistent from day one, consistent when the officers initiated the traffic stop and pulled him over, consistent when he was advised of his right to remain silent and elected to give a statement, and consistent, again, when he was testifying here in court yesterday, consistence.” (Emphasis added).
The law is settled that “[i]f the proponent of the evidence is asking the jury to rely on what the declarant said, out-of-court, as true (accurate), it is hearsay.” Lynn McLain, Md. Rules of Evidence 182 (2d ed.2002). In the present case, the prosecutor could not have been relying on Rule 5-616(c)(2) by offering the testimony of the police officers with regard to the statements Benjamin made to them at the time of the stop.
The testimony of the officers with regard to what Benjamin told them was not admissible under Md. Rule 5-802.1(b) to attack an implication of fabrication or improper influence or motive because Benjamin made the statements after at least one of the alleged motives to fabricate existed. Nonetheless, the State claims even if we assume that Benjamin’s statements to the arresting police officers were improperly admitted, any error was harmless because their testimony “tracked [Benjamin’s] testimony, and was therefore cumulative.” Notably, the State made this same argument to the Court of Special Appeals in McCray,
In McCray, the trial judge improperly allowed Ms. Burgess, the mother of McCray’s accomplice to testify about what the accomplice told her about the murder.
The bolstering in McCray was allowed under circumstances similar to those in the present case where “the State’s case depended] virtually exclusively on the credibility of a witness.” Id.; see State v. Cox,
Judge BATTAGLIA joins in the judgment only.
Notes
. We note that the alleged pre-statement motive to fabricate must have been "raised in the case,” e.g. expressly or impliedly, but before the trial judge’s determination as to the admissibility of the prior consistent statement.
. The State argues that when Petitioner objected to the State’s request to introduce the prior consistent statements, Petitioner had not yet alleged Benjamin’s motive to fabricate at the time of his arrest. We find that the record indicates otherwise. At the very least, during Petitioner’s cross-examination of Benjamin, Petitioner asked a series of
. In Holmes, we pointed out that, ''[t]he State is not required to assert the purpose for which it is seeking admission of a prior consistent statement unless asked by the court.” We also said that “the trial judge ordinarily is not required to give a limiting instruction in the absence of a request.” Holmes,