Bernadyn v. State

RAKER, Judge. We must decide in this case whether a medical bill seized by police at 2024 Morgan Street in Edgewood, Maryland, and addressed to “Michael Bernadyn, 2024 Morgan Street, Edge-wood, Maryland 21040,” when used by the State to establish that Bernadyn lived at that address, constitutes inadmissible hearsay. We shall answer that question in the affirmative and shall hold that the bill was inadmissible hearsay. I. Michael Bernadyn, petitioner, was convicted by a jury in the Circuit Court for Harford County of the offenses of possession of marijuana, possession with intent to distribute, and maintaining a common nuisance.

He was sentenced to a term of incarceration of five years on the possession with intent to distribute count and one year, consecutive, on the common nuisance count. In August 2001, Deputy Mark Burkhardt of the Harford County Sheriffs Office conducted late night surveillance at 2022 and 2024 Morgan Street in Edgewood, Maryland, for approximately one week. He saw numerous people coming to and going from the two residences, meeting on the street, and conducting hand-to-hand drug transactions. According to Deputy Burkhardt, one of these individuals was Michael Bernadyn, who often walked in and out of 2024 Morgan Street.

Deputy Burkhardt also saw several individuals whom he knew to be drug dealers entering 2024 Morgan Street on numerous occasions. On August 29, 2001, Harford County Narcotics Task Force officers executed a search and seizure warrant at 2024 Morgan ⁴ Street. When they entered, petitioner was alone in the living room. The officers seized a marijuana pipe, marijuana stems and seeds, and a Johns Hopkins Bayview Physicians medical bill dated August 16, 2001, containing the language “Responsible party: Michael Bernadyn, Jr., 2024 Morgan Street, Edge-wood, Maryland 21040.” In the master bedroom, they seized men’s clothing, approximately twenty-six bags of marijuana weighing approximately eight ounces and some marijuana stems and seeds.

At trial, Deputy Burkhardt testified that he had seized the Bayview Physicians bill from 2024 Morgan Street. The defense objected to admission of the bill in evidence, arguing as follows: “Reason for defense’s objection is the paperwork says it’s a billing statement from Johns Hopkins Bayview, has my client’s address, 2024 Morgan Street, which I have no idea where they got this address. To let this evidence in would be extremely prejudicial to my client.... This company, this hospital, it’s just a billing address.

It could have been a third party who gave that address, not him. It doesn’t say at some point he has reported this to be his address. That’s a pretty big element of their case, and I don’t think that’s good enough. It could have been a third party that gave that address.

We have no idea if it was him and who gave it.... That’s why the hearsay rulings are the way they are. They can’t say ‘ordinary course of business.’ ” The court asked defense counsel: “Is it your client’s position he didn’t live there or that was not his residence?” Defense counsel answered “Yes.” The court never asked the State the purpose for which the evidence was offered, and without articulating any reasons, the court overruled the objection and admitted the bill into evidence. In closing argument, the State argued to the jury as follows: “Now, the defendant would argue ... that the defendant didn’t live there.

Well, we’ve shown that he lives there, and look at the facts that were before you. Deputy Burkhardt for about a week prior to the warrant goes down and is ⁵ working surveillance. He’s in an apartment across from where the defendant lives. He sees the defendant coming in and out of that house or apartment.

When the warrant’s served, [Bernadyn is] the only one in there. He’s the only one in there, and he is found in the living room. Then you go to the officer who testifies, ‘When we go in, we look for mail.’ And I submit if you said to anyone, ‘Go in this certain house,’ and tell them no other information, ‘and tell me who lives there,’ odds are they are going to pick up a piece of mail and look at it, and they’re going to say, □Probably that person lives here because their mail is here.f] They pick a piece of evidence that shows who lives there, and what you have is a bill from Johns Hopkins Bayview Physicians, a statement date of August 16, 2001. That’s almost two weeks before the warrant, but it’s for services that are provided back in June of 2001.

Now we go back almost two months prior to the warrant being served. So I guess defense counsel and the defendant would have you believe that Johns Hopkins randomly picked an address of 2024 and just happened to send it there, and that’s where the defendant lived. It doesn’t happen, because you also — look, this is a bill, is what it is, and I am sure that any institution is going to make sure they have the right address when they want to get paid. There is also an argument that, [‘JWell, the utilities are in [someone else’s] name, they’re not in this defendant’s name; therefore, he must not live there.[’] I guess that argument would surprise my wife because my utilities are in my name, yet my wife and children live at the ⁶ house.[ 1 ] So I guess adopting that argument, and it applies to many people, if you will, roommates in college, generally one person will set up the utilities, but there would be multiple people who lived there.

And, again, go back to the facts of the case. The officer still places him coming in and out of that location from the week prior to the warrant. So the evidence is that he lives there, and the evidence is that he certainly had control over that apartment or house, that he could come and go as he pleased.” In rebuttal closing argument, the State again referred to the bill, arguing as follows: “If you walk into a house and somebody is standing there and you identify who that person is and you also find in the house personal mail for that individual, what is reasonable? What would you rely on in your every day decision making is that person lives there, and that is what the officers did.

This bill that was sent, this isn’t anyone else’s bill because it says, ‘Patient, Michael Bernadyn, Jr.’ She argues, [‘JWell, we don’t know where Johns Hopkins got that address from.[’] Michael Bernadyn, Jr., is the patient, and it says, ‘Responsible: Michael Bernadyn, Jr.’ Again, did they randomly pick that address? I don’t think so. The question you have to ask is: Why was the Defendant at that house? Was he just hanging out?

Was it just bad timing? He just happened to be there that day when they served the search warrant? No. He lived there. Where was Nicole Majerowicz?

They could have called her, too, as a witness. They could have called her to straighten everything up, and they didn’t. If you go in the house, again, you go back a week before the warrant, who does the officer see coming in and out of the ⁷ house? It’s this defendant.

He’s the person they see coming in and out of the house, not Nicole Majerowicz. It is this defendant who is in the house when the officers go in. It’s this defendant. He’s — the only person in that house is that defendant.

Again, was the State required to bring in every piece of documentation from the house? No. You know, how many pieces of paper are enough? How many pieces of paper are not enough? If I had brought in 20 pieces of paper with his name on it, would that have convinced anybody anymore?

As opposed to a single piece of paper, especially when he is found in the residence? Suppose there was no piece of paper. Does that mean he doesn’t live there? No. The evidence, the reasonableness of the evidence is he lives there, with or without the piece of paper.

Would 100 pieces of paper convince you? I don’t know. Probably not. Do I have to bring all that in?

No. It’s not a hundred percent certainty.” Bernadyn was convicted on all counts. Bernadyn noted a timely appeal to the Court of Special Appeals. That court affirmed. Bernadyn v. State, 152 Md. App. 255, 261 , 881 A.2d 532, 536 (2003).

We granted Bernadyn’s petition for writ of certiorari to consider the following question: Does a medical bill discovered at a crime scene and addressed to the defendant constitute inadmissible hearsay when introduced in evidence, without foundation or authentication under any exception to the hearsay rule, to prove that the defendant resided at the address on the bill? 378 Md. 613 , 837 A.2d 925 (2003).

II

We review rulings on the admissibility of evidence ordinarily on an abuse of discretion standard. See Hopkins v. State, 352 Md. 146, 158 , 721 A.2d 231, 237 (1998). Review of ⁸ 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 reviewed de novo. Petitioner argues that the trial court erred in admitting the medical bill because it is inadmissible hearsay. He reasons that the bill is hearsay because it was an out-of-court statement offered for its truth and that the State failed to establish that the statement satisfied any exception to the hearsay rule.

He contends that the sender’s conduct of addressing a letter is an implied assertion and is thus hearsay. In the alternative, he argues that even if the bill is admissible under the business record exception, the State failed to lay a proper foundation for that exception. The State argues that addressing a letter is nonassertive conduct, and, for this reason, the address on the letter is not a “statement,” which is requisite for application of the hearsay rule. Adopting the reasoning of the Court of Special Appeals, the State argues that the bill was circumstantial evidence of the belief of Bayview Physicians that Bernadyn lived at the address and that this belief likely was accurate because Bay-view Physicians had an interest in getting paid.

The State also maintains that the bill was “admissible as circumstantial evidence connecting Bernadyn with the residence at 2024 Morgan Street,” distinguishing between evidence offered for its truth and “circumstantial evidence” offered to fink the defendant to a location or certain circumstances.

III

The question before us is whether a medical bill containing the words “Michael Bernadyn, Jr., 2024 Morgan Street, Edgewood, Maryland 21040” is hearsay when used to establish that Michael Bernadyn lived at 2024 Morgan Street ⁹ in Edgewood, Maryland. The State does not contend that the bill, if hearsay, falls within any exception to the rule against hearsay. When the trial court ruled on Bernadyn’s objection, defense counsel argued the following: (1) the bill “has my client’s address”; (2) there was no basis for knowing how Bayview Physicians obtained the address; (8) the bill was hearsay; and (4) lack of foundation laid for the business record exception to the hearsay rule. The State was never asked by the trial court the purpose for which the evidence was offered, and the court simply overruled petitioner’s objection, thereby admitting the evidence generally.

Maryland Rule 5-801(c) defines “hearsay” as “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.” We therefore begin our inquiry by identifying the proposition that the medical bill was offered to prove. See, e.g., United States v. Hathaway, 798 F.2d 902, 907 (6th Cir.1986) (stating that “[i]n addressing the question of whether the documents at issue were hearsay, we begin by determining what the evidence offered to prove”); J.F. Murphy, Jr., Maryland Evidence Handbook § 702, at 259 (3d ed. 1999 & 2004 Cum.Supp.) (same). The State offered the bill to prove that Bernadyn lived at 2024 Morgan Street. 2 We examined whether implied assertions can be hearsay in Stoddard v. State, 389 Md. 681 , 887 A.2d 564 , 2005 WL 8309783 (2005). 3 In that case, we discussed the definitions under our rules of “statement” and “assertion” as follows: ¹⁰ “Maryland Rule 5-801 (c) defines ‘hearsay’ as ‘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.’ The threshold questions when a hearsay objection is raised are thus (1) whether the declaration at issue is a ‘statement,’ and (2) whether it is offered for the truth of the matter asserted. If the declaration is not a statement, or if it is not offered for the truth of the matter asserted, it is not hearsay and it will not be excluded under the rule against hearsay. ‘Statement’ is defined by Md. Rule 5-801(a) as ‘(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.’ The Rule does not define ‘asserted’ or ‘assertion.’ The Committee note to Rule 5-801 explains as follows: ‘This Rule does not attempt to define “assertion,” a concept best left to development in the case law.

The fact that proffered evidence is in the form of a question or something other than a narrative statement, however, does not necessarily preclude its being an assertion. The Rule also does not attempt to define when an assertion, such as a verbal act, is offered for something other than its truth.’ ” Stoddard, 389 Md. at 689 , 887 A.2d at 568-69 . In Stoddard, we considered the question of whether testimony recounting an out-of-court utterance allegedly made by a non-testifying eighteen month old child to the effect of “is Erik going to get me” was hearsay when offered to prove that the child had witnessed Erik Stoddard commit the murder for which he was on trial. In ruling that this evidence was hearsay, we rejected the intent-of-the-declarant approach suggested in the Advisory Committee note to Federal Rule of Evidence 801(a), and instead retained the common law approach to implied assertions.

We held as follows: “[WJhere the probative value of words, as offered, depends on the declarant having communicated a factual proposition, the words constitute an “assertion” of that proposition. The ¹¹ declarant’s intent vel non to communicate the proposition is irrelevant. If the words are uttered out of court, then offered in court to prove the truth of the proposition — i.e. of the ‘matter asserted’ — they are hearsay under our rules.” Stoddard, 389 Md. at 703-04 , 887 A.2d at 577 . Our discussion and reasoning in Stoddard determines the outcome of this case.

The bill contained two significant items: Bernadyn’s name, and his address. 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. Rather, the State argued that the bill itself was “a piece of evidence that shows who lives there.” In particular, the State suggested that Bayview Physicians had Bernadyn’s correct address because “any institution is going to make sure they have the right address when they want to get paid.” In order to accept the words “Michael Bernadyn, Jr., 2024 Morgan Street, Edgewood, Maryland 21040” as proof that Bernadyn lived at that address, the jury needed to reach two conclusions. It needed to conclude, first, that Bayview Physicians wrote those words because it believed Bernadyn to live at that address 4 , and second, that Bayview Physicians was accurate in that belief.

As used, the probative value of the words depended on Bayview Physicians having communicated the proposition that Michael Bernadyn lived at 2024 Morgan Street. The words therefore constituted a “written assertion” — and hence, under Md. Rule 5-801(a), a “statement”— that Michael Bernadyn lived at 2024 Morgan Street. When used to prove the truth of that assertion, the bill was hearsay under Md. Rule 5-801 (c), because it contained “a statement ... offered in evidence to prove the truth of the matter asserted.” The case of United States v. Patrick, 959 F.2d 991 (D.C.Cir.1992), is instructive. Patrick was indicted by a federal grand ¹² jury in the District of Columbia for possession with intent to distribute cocaine and firearm violations.

Id. at 994 . At trial, the government introduced into evidence a television sales receipt found in the bedroom where Patrick was arrested and allegedly living. The appellate court held that the receipt was inadmissible hearsay. Id. at 1001-1002 .

The court reasoned that if the sales receipt had been used to show only that an item belonging to Patrick had been found in the same bedroom where the cocaine and weapon were found, it would not have been hearsay, because it would not have been offered to prove the truth of any statement. The problem, the court pointed out, was that the prosecution did not limit the use of the receipt to Patrick’s name, but relied also on the address on the receipt to establish Patrick’s guilt by proving that he resided at that address. Id. at 999-1000 . The prosecutor stated the following in closing argument: “Take, for example, an argument that might be made that that’s not his apartment, that he doesn’t live there, and that’s not his bedroom, that he doesn’t stay in that bedroom.

Well, ladies and gentlemen, let’s look at a couple of things that were taken out of that bedroom. Look at government’s exhibit no. 14, the television receipt. You all had a chance to look at this closely before when it was admitted into evidence. G.A. Patrick, 818 Chesapeake Street, Southeast, Washington, D.C. 20020.” Id. at 1000 .

The court held that the receipt, as used by the prosecutor, constituted a statement that the defendant lived at 818 Chesapeake Street, and that the statement was hearsay. The court stated as follows: ¹³ Id. See also United States v. Watkins, 519 F.2d 294, 296 (D.C.Cir.1975) (holding that a rent receipt and utility payment receipt were inadmissible hearsay when argued by prosecutor as evidence that defendant lived at the apartment and was paying the rent for that apartment). ¹² “The receipt so used constituted a statement, namely that Patrick lived at 818 Chesapeake Street, Southeast, and that statement indisputably was hearsay. Unlike the use of the name on the receipt to show that an item belonging to Patrick was found in the bedroom, the prosecutor published Patrick’s address as it appeared on the receipt to prove the truth of the matter asserted, that is, the address of Patrick’s residence.” ¹³ The State argues that the bill was not hearsay and justifies its admission based upon the analysis of the Court of Special Appeals — that the bill was admissible because it was used as circumstantial evidence that Bayview Physicians believed Bernadyn lived at the address.

As an alternate basis, that court reasoned that the bill was offered not to establish the truth of its contents, but rather for its probative value as circumstantial evidence connecting Bernadyn to the residence wherein he, the bill, and the drugs were all found. The State argues that the bill was admissible for a non-hearsay purpose, i.e., as circumstantial evidence that Bayview Physicians believed Bernadyn lived at the address. It suggests that this belief — likely accurate because Bayview Physicians had an interest in being paid — was then properly used as evidence that Bernadyn in fact lived at the address. We do not agree that this use of the bill would constitute non-hearsay.

The State’s argument is based primarily on Wigmore’s view that “[i]f, then, an utterance can be used as circumstantial evidence, i .e., without inferring from it as an assertion to the fact asserted, the hearsay rule does not oppose any barrier, because it is not applicable.” 6 Wigmore, Evidence, § 1788 at 313 (Chadbourn rev.1976). For example, as to a statement used circumstantially to indicate the declarant’s state of mind, Wigmore says the following: “To such a use, then, the hearsay rule makes no opposition, because the utterance is not used for the sake of inducing belief in any assertion it may contain. The assertion, if in form there is one, is to be disregarded, and the indirect inference alone regarded.” Id. at 320. The non-hearsay theory of admissibility upon which the state relies permits the use of an utterance as circumstantial ¹⁴ evidence of a proposition different from the one asserted.

For example, the bill might be admissible non-hearsay if offered to prove that Bayview Physicians remained in business as of the issue date, or that Bayview extended credit typically to its patients. But the chain of reasoning put forth by the State serves to prove the proposition asserted in the bill — i.e. that Bernadyn resided at 2024 Morgan Street. As such, the bill was used “for the sake of inducing belief in,” or proving the truth of, an assertion contained within it. Therefore, the hearsay rule applies.

The State’s suggestion — that it is not hearsay to use a statement as “circumstantial evidence” of the declarant’s belief in the matter asserted and then to use that belief as evidence suggesting the truth of the matter asserted — would swallow the hearsay rule. See e.g., Roger C. Park, McCormick on Evidence and the Concept of Hearsay: A Critical Analysis Followed by Suggestions to Law Teachers, 65 Minn. L.Rev. 423, 433 (1981) (“[ajcceptance of this reasoning ... leads to a view that in effect abolishes the hearsay rule”). The use of a statement to prove the truth of the matter asserted almost always involves this two step inference, i.e. that the declarant believes the matter apparently asserted, and that the declarant’s belief is accurate.

The hearsay rule prevents using out-of-court statements for their truth because such statements are unreliable bases from which to infer the declarant’s beliefs (the declarant may have been insincere or used ambiguous language), or the accuracy of those beliefs (the declarant’s perception or memory may have been faulty). See Lawrence H. Tribe, Triangulating Hearsay, 87 Harv. L.Rev. 957, 958 (1974) (describing the link between an utterance and the matter asserted as involving first “a ‘trip’ into the head of ... (the declarant) to see what he or she was really thinking,” followed by “a trip out of the head of the declarant, in order to match the declarant’s assumed belief with the external reality sought to be demonstrated”).

The State also relies on the Court of Special Appeals’ alternative rationale, that the bill was offered not to establish the truth of its contents, but rather for its probative value as ¹⁵ circumstantial evidence connecting Bernadyn to the residence wherein he, the bill, and the drugs were all found. Pointing to case law from other jurisdictions in which courts have admitted documents as circumstantial evidence tending to prove a defendant’s connection with a location or with other people, the State maintains that the existence of an address on the bill makes no difference in the analysis. The State ignores the fact that evidence can serve more than one purpose. 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.

Defense counsel is then on notice that the evidence is admissible, albeit for a limited purpose, and may then request a limiting instruction. 5 The rationale of the Court of Special Appeals, as well as the State’s argument, is post hoc reasoning. The defense indicated that it was objecting because the bill “has my client’s address.” At no time did the prosecutor proffer to the trial judge the intended use of the evidence, nor did the trial court admit the evidence specially. The prosecutor’s closing argument demonstrates that the bill was used for the truth of the statement contained therein—that petitioner lived at the address reflected on the bill. The United States Court of Appeals for the Tenth Circuit discussed the impact of circumstantial evidence versus direct evidence in the hearsay context in United States v. Jefferson, 925 F.2d 1242 (10th Cir.1991).

The court held that the trial court had admitted improperly a pager bill which the govern ¹⁶ ment offered as circumstantial evidence to show “the character and involvement of the Defendant, and to corroborate the testimony of the cooperating witness.” Id. at 1252 . The court concluded that the government also offered the bill into evidence to prove the truth of the matter asserted — that the defendant had purchased pager service. The court stated: “Whether evidence is offered as circumstantial evidence as opposed to direct evidence has nothing to do with whether it constitutes inadmissible hearsay. Granted, the pager bill combined with agent Young’s testimony regarding the use of pagers by drug dealers was introduced as circumstantial evidence of [the defendant’s] intent to possess and distribute the cocaine.

However, the fact that the evidence was introduced to link circumstantially the accused to the crime does not render the hearsay violation any more acceptable.” Id. at 1252-53 . United States v. Mahar, 801 F.2d 1477 (6th Cir.1986), also illustrates the principle that the admissibility of documents depends on the purposes for which they are offered. Defendant Mahar, along with Inner-City Medical Clinic and others, was charged in a multi-count indictment, including conspiracy to distribute controlled dangerous substances. Mahar was the clinic’s president.

At trial, the government offered into evidence twelve pages of handwritten notes seized from the clinic. The notes were undated and unsigned, and were found among business records in an examining room. The notes focused on a Medicaid investigation into the clinic’s activities. The government argued that the notes were not offered to prove the truth of the matters asserted and thus were not hearsay.

The United States Court of Appeals for the Sixth Circuit rejected the government’s argument, holding that the evidence was hearsay. The court pointed out that the government’s argument on appeal that the notes were not hearsay appeared to be an after-the-fact justification for the admission of the notes. Id. at 1492 . The government’s use of the notes at trial, particularly in the prosecutor’s rebuttal closing argu ¹⁷ ment, showed that the government used the notes for the truth of the matters asserted.

Id. The court concluded, “Had government counsel similarly intended to use Exhibit 22A solely for non-hearsay purposes, and not to prove the truth of the matters asserted, then the government’s intent should have been explained to the court and defense counsel so that an appropriate limiting instruction could have been requested.” Id. at 1492 n. 23. See also United States v. Lieberman, 637 F.2d 95, 101 (2d Cir.1980) (holding that hotel registration card with address was admitted properly for the limited nonhearsay purpose of proving solely that the person who registered at the hotel was the same person who was arrested by a DEA agent, the agent having examined the same address on the driver’s license carried by the arrestee). United States v. McGlory, 968 F.2d 309 (3rd Cir.1992) is instructive.

McGlory and others were convicted of firearm violations and conspiracy to distribute heroin. The police seized notes and scraps of paper from McGlory’s trash and residences. The government argued that the notes were circumstantial evidence linking McGlory and the other defendants to a narcotic conspiracy and were not hearsay. Id. at 332 .

The defendants argued that they were offered for the truth of the matter asserted and as such, were hearsay. The United States Court of Appeals for the Third Circuit held that the notes, while technically not assertions by McGlory, were used to imply the guilt of the defendants, and were hearsay. They were inadmissible unless they fit within an exception to the hearsay rule. The court emphasized that statements, while not technically admitted for the truth of the matter asserted, nonetheless may violate the hearsay rule when used to imply the guilt of the defendant.

The court emphasized that it “has disfavored the admission of statements which are not technically admitted for the truth of the matter asserted, whenever the matter asserted, without regard to its truth value, implies that the defendant is guilty of the crime charged.” Id. The court explained: “In [US. v. ]Reynolds, 715 F.2d 99 [ (3rd Cir.1983) ], we held that statements containing express assertions not of ¹⁸ fered for their truth may contain implied assertions that qualify as hearsay because the truth of the implied assertions is at issue and relevant to guilt. We encounter this problem when: ‘the matter which the declarant intends to assert is different from the matter to be proved, but the matter asserted, if true, is circumstantial evidence of the matter to be proved.’ Id. at 103 (quotation omitted) (emphasis added).” Id. The court pointed out that in this situation, the statement is subject to a hearsay objection.

Id. The Bayview Physicians medical bill, when offered to prove the truth of its assertion that Bernadyn lived at 2024 Morgan Street, constituted hearsay and was inadmissible unless it satisfied an exception under the hearsay rule. Although the State never argued in the Circuit Court that the bill, although hearsay, was admissible as a business record pursuant to Rule 5-803(b)(6), defense counsel made clear that the source of the information was unknown and unverified and that the State failed to establish that the bill was made and kept in the “ordinary course of business.” The trial judge never required the prosecutor to proffer why the evidence was offered, but instead simply overruled defense counsel’s objection, and admitted the evidence. In any case, the statement is not admissible under the business record exception.

Maryland Rule 5-803(b)(6), derived from Federal Rule of Evidence 803, provides that evidence is not excluded by the hearsay rule, even though the declarant is available as a witness, if it qualifies as a record of regularly conducted business activity. Rule 5-803(b)(6) provides that the following are not excluded by the hearsay rule, even though the declarant is available as a witness: “Records of regularly conducted business activity. A memorandum, report, record, or data compilation of acts, events, conditions, opinions, or diagnoses if (A) it was made at or near the time of the act, event, or condition, or the rendition ¹⁹ of the diagnosis, (B) it was made by a person with knowledge or from information transmitted by a person with knowledge, (C) it was made and kept in the course of a regularly conducted business activity, and (D) the regular practice of that business was to make and keep the memorandum, report, record, or data compilation. A record of this kind may be excluded if the source of information or the method or circumstances of the preparation of the record indicate that the information in the record lacks trustworthiness.

In this paragraph, ‘business’ includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” The Rule sets out certain conditions precedent for admission. In order for a business record to be admitted into evidence, the Maryland Rules of Evidence require the proponent of the evidence to satisfy the requirements of Rule 5-803(b)(6) and to establish its authentication or identification. See Rule 5-901; Dept. of Public Safety v. Cole, 342 Md. 12, 29 , 672 A.2d 1115, 1123 (1996). Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to certain identified documents.

See Rule 5-902; State v. Bryant, 361 Md. 420, 426-27 , 761 A.2d 925, 928-29 (2000). A record of regularly conducted business activity, to be admissible as a self-authenticating document under Rule 5-902(11), must satisfy the notice requirement of the rule and contain a certification that it falls within the scope of Rule 5-803(b)(6). 6 In the instant case, the State did not call any witness from Bayview Physicians to show that the bill was made at or near the time of any event; that it was made by a person with ²⁰ knowledge, or from information transmitted by a person with knowledge; that the bill was made and kept in the course of regularly conducted business activity; or that it was the regular practice of Bayview Physicians to make and keep that record. Even assuming that the State had called a witness to establish the prerequisites under (A), (C), and (D) of Rule 5-803(b)(6), the State would still have had to show that the address on the bill was made by a person with knowledge or from information transmitted by a person with knowledge of the information. Moreover, the address on the bill is hearsay within hearsay.

There is no evidence whatsoever as to the source of the information contained on the bill and any conclusion would be speculation. The address on the bill, perhaps entered by an employee in the ordinary course of business, was from information supplied by another person. Rule 5-805 provides that “[i]f one or more hearsay statements are contained within another hearsay statement, each must fall within an exception to the hearsay rule in order not to be excluded by that rule.” See Lynn McLain, Self Authentication of Certified Copies of Business Records, 24 U. Balt. L.Rev. 27, 75 (1994).

No such proof was offered in this case. In United States v. Patrick, 959 F.2d 991 (D.C.Cir.1992), the court rejected the business record exception as a basis for the evidence’s admissibility, reasoning that the address on a Circuit City receipt was “double hearsay,” or hearsay within hearsay. The court concluded as follows: “We first note that the address on the receipt reflects not only the assertion of the Circuit City employee who made out the receipt but also the assertion of the customer who provided the address. The address was thus hearsay within hearsay, see Fed.R.Evid. 805, and was not admissible to prove Patrick’s residence unless both the customer’s statement and the employee’s recording of it were admissible.

See United States v. Baker, 693 F.2d 183, 188 (D.C.Cir.1982) (‘Double hearsay exists when a business record is prepared by one employee from information supplied by another’; ‘[an] outsider’s statement must fall within another hearsay ²¹ exception to be admissible because it does not have the presumption of accuracy that statements made during the