Ali v. State

³⁴² MOYLAN, Judge. The appellant, Najee Shadeed Abdul Ali, a/k/a William Thompson, was convicted by a Baltimore County jury, presided over by Judge Joseph F. Murphy, Jr., of first-degree murder and related charges, involving several victims. Upon this appeal, he raises the following two contentions: 1) That Judge Murphy erroneously refused to admit in evidence written reports of a police officer’s interviews with a State’s witness; and 2) That Judge Murphy erroneously permitted a physician to testify as an expert witness on the potential effect of medication upon a State’s witness. The first contention presents a twinkling gem of an evidentiary problem containing hearsay, hearsay exceptions, and non-hearsay.

Its flaw is that it blurs into a single face what should be two distinct facets. It has failed to appreciate that: “If B asserts that A asserted x, the admissibility of x will depend upon qualifying not only A’s assertion but B’s assertion as well.” A key State’s witness was Debbie Rae McNally Waligora, one of the assault victims and herself a drug user. The defense sought to impeach her testimonial credibility by showing that she had on prior occasions given statements inconsistent with her trial testimony. Those statements had been given to Baltimore County Police Officer Robert R. Ash, who had interviewed Ms. Waligora at the hospital, where she was recovering from gunshot wounds, on June 3, June 4, and June 5, 1981.

Officer Ash, who had conducted the interviews at the request of another officer, filed written reports of the interviews. The defense sought to introduce those reports. Judge Murphy rejected them. The appellant claimed that Ms. Waligora’s testimony in the State’s case-in-chief was materially different from the statements she had made in her interviews with Officer Ash.

He contends, therefore, that those statements were admissible for impeachment purposes as prior inconsistent ³⁴³ statements. The appellant, of course, is absolutely right as to the admissibility of those statements if, indeed, such statements were ever made. Their admissibility is one matter; their very existence, quite another. Hearsay may be defined as an out-of-court assertion offered in court for the truth of the matter asserted, resting for its value upon the credibility of the out-of-court assert-er.

The statements made by Ms. Waligora in her hospital room were out-of-court assertions. They were offered by the appellant in court, however, not for the truth of the matter asserted. They were offered, rather, simply for the fact that they had been made. Their value did not rest upon the credibility of the out-of-court asserter, Ms. Waligora; on the contrary, their putative value was in trying to demonstrate her non-credibility.

For the purpose for which they were offered, therefore, the assertions made by Ms. Waligora were non-hearsay. Their truth was immaterial. The propriety under Maryland law of impeaching a witness by showing a prior inconsistent statement is well established. Smith v. State, 273 Md. 152 , 328 A.2d 274 (1974).

The appellant, however, has confused the admissibility of Ms. Waligora’s out-of-court assertions with the admissibility of Officer Ash’s out-of-court assertions. The two have nothing in common. Ms. Waligora’s out-of-court assertions narrated events at the crime scene; Officer Ash’s out-of-court assertions narrated the statements made by Ms. Waligora in her hospital room. Ms. Waligora’s assertions were made to Officer Ash; Officer Ash’s assertions were made to a piece of paper.

The value of Ms. Waligora’s assertions did not rest upon her credibility; the value of Officer Ash’s assertions did rest upon his. Ms. Waligora’s assertions were not offered for the truth of the matter asserted; Officer Ash’s were. Ms. Waligora’s assertions, for the purpose for which they were offered, were non-hearsay; Officer Ash’s, for the purpose for which they were offered, were hearsay. ³⁴⁴ The admissibility of Ms. Waligora’s out-of-court assertions, if made, is clear. That is not the issue.

The question is what competent evidence was offered to prove that the out-of-court assertions were ever made by Ms. Waligora? The most reliable evidence as to the making of such assertions was obviously the testimony of Officer Ash himself. As a witness to the assertions, he should ideally have testified. He would thereby have been subjected to the classic trustworthiness-conditioning devices of having his demeanor and manner of testifying observed by the jurors, of being placed under oath, and of being subjected to cross-examination.

Officer Ash was available to testify and there was no reason, therefore, to dispense with the trustworthiness-conditioning devices. As a matter of