Chapman v. State

⁴⁵⁰ CHASANOW, Judge. In 1978, as part of a large-scale revision of Maryland’s theft and bad check laws, the General Assembly enacted S.B. 1153. Chapter 849 of the 1978 Acts of Maryland. One section of that comprehensive statutory scheme is now Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 142(c). 1 Section 142(c) provides a narrow exception to the hearsay rule, permitting the State to introduce an affidavit of a bank to establish dishonor of a check or the status of an account without requiring any of the bank’s employees to testify.

Article 27, § 142(c) provides: “§ 142. [Obtaining property or services by bad check]— Presumptions. * * Jk * * * (c) Dishonor of a check by the drawee, that the drawer had no account with the drawee at the time of utterance, and insufficiency of the drawer’s funds at the time of presentation and utterance may properly be proved by introduction in evidence of a notice of protest of the check, or a certificate under oath of an authorized representative of the drawee declaring the dishonor, lack of account and insufficiency, and this proof shall constitute presumptive evidence of the dishonor, lack of account and insufficiency.” Today, we are called upon to address whether this relatively recent exception to the hearsay rule violates an accused’s confrontation rights embodied in both the Sixth Amendment of United States Constitution and Article 21 of the Maryland Declaration of Rights. We hold that the admission of documentary evidence under Article 27, § 142(c), is neither per se unconstitutional nor unconstitutional under the facts of this case. We believe the evidence admissible under § 142(c) contains sufficient indicia of reliability so as not to offend a criminal defendant’s right of confrontation. ⁴⁵¹ I. In the evening of April 19, 1988, John Vernon Chapman entered the Sears, Roebuck & Co. catalogue store (Sears) in the Harford Mall. Chapman purchased a color television and a maintenance service agreement.

The total purchase price for the sale was $315.49, including tax and shipping and handling charges. The assistant manager, Jean Hightower, was operating the cash register at the time of Chapman’s purchase. Chapman tendered a check for $315.49, drawn on Fairfax Savings Bank, in exchange for the television and service agreement. Before accepting the check, Ms. Hightower requested identification from Chapman.

Chapman gave her a Maryland driver’s license. Ms. Hightower then examined the picture on the license and compared the signatures on the license and the check to verify Chapman’s identity. Satisfied that the drawer of the check was indeed John Vernon Chapman, Ms. Hightower accepted the check and inscribed the license number on the back of the check. Chapman then departed the store with the television and service contract.

The next day, Sears deposited the check along with its other receipts for the day. Later, the bank notified Sears that Fairfax Savings Bank had dishonored the check on April 21, 1988. The depository bank returned the check to Sears marked “DO NOT REDEPOSIT.” The face of the check also indicated that the account on which Chapman had drawn the check upon was closed. Sears made several attempts to contact Chapman at the telephone number and address printed on the check.

Approximately a year later, on September 7, 1989, after all efforts to contact Chapman failed, Sears filed an “Application for Statement of Charges,” and Chapman was subsequently charged with Obtaining Property or Services by Bad Check under Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 141. 2 ⁴⁵² Chapman was tried by jury in the Circuit Court for Harford County. At trial, the State’s case consisted of the testimony of Ms. Hightower and two pieces of documentary evidence, the dishonored check and an “Affidavit as to Account Status” from Fairfax Savings Bank. Ms. Hightower testified that the dollar amount of the transaction exceeded $300.00, that Chapman was the drawer of the check and presented it to her in exchange for the merchandise, and that the bank ultimately returned the check as dishonored. Next, the State introduced the affidavit under Article 27, § 142(c) to establish that Chapman did not have an account with the bank when he wrote the check on April 19, 1988.

The affidavit provided: “TO: State’s Attorney for Harford County AFFIDAVIT AS TO ACCOUNT STATUS RE: Account # 001150107 Drawer John V. Chapman Check # 148 Amount $315.49 Payee Sears_ Check Dated 4/19/88 Drawee (Bank) Fairfax Savings Date Uttered: 4/19/88 I Michael L. Stockman, of Fairfax Savings ... at 17 Light St., Baltimore, Maryland do hereby make oath to the following tacts: 1. That the above named drawer BIB/DID NOT have the above numbered account with this bank on April 19, 1988. 3. That the above referenced check was presented for payment on April 21, 1989. 4. That at the time of the presentation of the above referenced check there were INSUFFICIENT funds in the account and the said check was dishonored. 5.

That I am an authorized representative of the above named financial institution. Michael L. Stockman (signature)” ⁴⁵³ Chapman objected on the basis that the admission of the affidavit under § 142(c) violated his right of confrontation. In addition, Chapman argued that even if this was the type of hearsay that did not offend principles of confrontation, there was an apparent irregularity on the face of the document that cast sufficient doubt upon its reliability to necessitate the affiant’s live testimony in this case. The trial judge overruled Chapman’s objection and admitted the affidavit into evidence.

The jury subsequently found Chapman guilty of obtaining property or services by bad check, and following imposition of sentence Chapman appealed to the Court of Special Appeals. We granted certiorari before the intermediate appellate court heard the case. Chapman v. State, 329 Md. 168 , 617 A.2d 1085 (1993).

II

The question before this Court is whether the admission of the affidavit attesting to the status of his checking account under Article 27, § 142(c) violated Chapman’s right of confrontation. In deciding this issue, we must examine the interrelationship of the hearsay rule and the Confrontation Clause. As the Supreme Court has noted, the common law rule against the admission of hearsay and the Confrontation Clause protect similar interests and are closely related. See California v. Green, 399 U.S. 149, 155-56 , 90 S.Ct. 1930, 1933-34 , 26 L.Ed.2d 489, 495 (1970); Dutton v. Evans, 400 U.S. 74, 86 , 91 S.Ct. 210, 218 , 27 L.Ed.2d 213, 225-26 (1970).

Both express a preference for a personal examination of a declarant as a means of testing the veracity and accuracy of a witness’s testimony. See Ohio v. Roberts, 448 U.S. 56, 63-64 , 100 S.Ct. 2531, 2537-38 , 65 L.Ed.2d 597, 606 (1980); John W. Strong, 2 McCormick on Evidence § 245, at 93 (4th ed. 1992) (hereinafter “McCormick on Evidence”) (stating rule against hearsay was designed to insure compliance with three conditions of oral testimony: oath, personal presence, and cross-examination). As a result of this close relationship, a legislature’s ⁴⁵⁴ alteration of the hearsay rules may impinge upon Confrontation Clause protections. The important question, therefore, is at what point does the legislature’s enactment of a new hearsay exception cross the threshold and impermissibly limit the exercise of essential components of the criminal justice system—confrontation and cross examination.

Clearly, not every alteration of the common law scheme regarding the admissibility of hearsay will violate the Confrontation Clause. While the Supreme Court has noted that the prohibition against hearsay and the Confrontation Clause share common roots and protect similar values, it has been careful not to equate the two. Idaho v. Wright, 497 U.S. 805, 814 , 110 S.Ct. 3139, 3146 , 111 L.Ed.2d 638, 651 (1990); Green, 399 U.S. at 155 , 90 S.Ct. at 1933 , 26 L.Ed.2d at 495 ; Dutton, 400 U.S. at 86 , 91 S.Ct. at 218 , 27 L.Ed.2d at 225-26 . Indeed, the Supreme Court has clearly cautioned against regarding the Confrontation Clause as “nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.” Green, 399 U.S. at 155 , 90 S.Ct. at 1933-34 , 26 L.Ed.2d at 495 .

By refusing to equate the protections of the Confrontation Clause with the common law rules regarding the admission of hearsay in criminal trials, the Supreme Court has allowed the states some latitude to create new exceptions to the hearsay rule. See Green, 399 U.S. at 171 , 90 S.Ct. at 1941 , 26 L.Ed.2d at 504 (Burger, C.J., concurring) (emphasizing “the importance of allowing the States to experiment and innovate.... If new standards and procedures are tried in one State their success or failure will be a guide to others and to the Congress.”). Legislative latitude in altering the hearsay rule, however, is not limitless.

The United States Supreme Court, in Ohio v. Roberts and its progeny, has set out a general framework to determine whether the fundamental confrontation protections have been impinged upon. A legislature must comply with the principles embodied in the Roberts line of cases when modifying the rule governing hearsay in the context of a criminal trial. Cf. People v. Denning, 219 Ill.App.3d 428, 162 Ill.Dec. 129, 132-33 , 579 N.E.2d 943, 946-47 (1991), appeal denied, 143 ⁴⁵⁵ Ill.2d 641, 167 Ill.Dec. 403 , 587 N.E.2d 1018 (1992); People v. Rocha, 191 Ill.App.3d 529 , 138 Ill.Dec. 714, 721-22 , 547 N.E.2d 1335, 1342-43 (1989), appeal denied, 131 Ill.2d 565 , 142 Ill.Dec. 886 , 553 N.E.2d 400 (1990); State v. Myatt, 237 Kan. 17 , 697 P.2d 836, 842-43 (1985); State v. Wright, 751 S.W.2d 48, 51-52 (Mo.1988); State v. Sosa, 59 Wash.App. 678 , 800 P.2d 839, 842-43 (1990); see also 2 McCormick on Evidence § 252, at 128.

In Ohio v. Roberts, the Supreme Court considered the constitutionality of the admission of hearsay under the traditional former testimony exception in a criminal proceeding, where the declarant was unavailable to testify. There the Court held that cross-examination of a hearsay declarant can be dispensed with when a party demonstrates: (1) the necessity of introducing the out-of-court statement, and (2) the out-of-court statement bears adequate indicia of reliability. The Court stated: “The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity.

In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.7 The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’ Snyder v. Massachusetts, [291 U.S. at 107, 54 S.Ct. at 333, 78 L.Ed. at 679]. The principle recently was formulated in Mancusi v. Stubbs [ 408 U.S. 204 , 92 S.Ct. 2308 , 33 L.Ed.2d 293 ]: ‘The focus of the Court’s concern has been to insure that there ‘are indicia of reliability which have been widely ⁴⁵⁶ viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,’ Dutton v. Evans, [ 400 U.S. at 89 , 91 S.Ct. at 220 , 27 L.Ed.2d at 227 ], and to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,’ California v. Green, [ 399 U.S. at 161 , 90 S.Ct. at 1936 , 26 L.Ed.2d at 498 ],...’ 7 A demonstration of unavailability, however, is not always required. In Dutton v. Evans, 400 U.S. 74 , 27 L.Ed.2d 213 , 91 S.Ct. 210 (1970), for example, the Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness....” Roberts, 448 U.S. at 65-66 , 100 S.Ct. at 2538-39 , 65 L.Ed.2d at 607 (emphasis added) (citations omitted); see also Moon v. State, 300 Md. 354, 367 , 478 A.2d 695, 701-02 (1984).

III

On appeal before this Court, Chapman contends that his rights of confrontation were abridged when the trial judge admitted hearsay evidence under § 142(c) at trial. Chapman asserts that evidence admitted under § 142(c) fails the two-prong test enunciated under Roberts . He argues that the introduction of evidence under § 142(c) violates the Confrontation Clause since it permits the introduction of unreliable hearsay evidence and does not require the State to establish the unavailability of the affiant before the introduction of the Affidavit as to Account Status. We disagree.

A. Contrary to Chapman’s assertions, we believe evidence admitted under Article 27, § 142(c) generally possesses sufficient guarantees of trustworthiness so as to satisfy the reliability prong of Ohio v. Roberts. The Supreme Court has indicated “that the ‘indicia of reliability’ requirement could be met in either of two circumstances: where the hearsay statement ‘falls within a firmly rooted hearsay exception,’ or where it is supported by ‘a showing of particularized guarantees of trustworthiness.’ ” Idaho v. Wright, 497 U.S. 805, 816 , 110 S.Ct. 3139, 3147 , 111 L.Ed.2d 638, 653 (1990) (quoting Roberts, ⁴⁵⁷ 448 U.S. at 66 , 100 S.Ct. at 2539 , 65 L.Ed.2d at 608 ). Where the hearsay in question falls within a “firmly rooted” hearsay exception “no independent inquiry into reliability is required....” Bourjaily v. United States, 483 U.S. 171, 183 , 107 S.Ct. 2775, 2782 , 97 L.Ed.2d 144, 157 (1987). “Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.” 3 **** Wright, 497 U.S. at 817 , 110 S.Ct. at 3147 , 111 L.Ed.2d at 653 (citations omitted). However, where hearsay statements are admitted under an exception which is not considered “firmly rooted,” then they are “presumptively unreliable and inadmissible for Confrontation Clause purposes” and must be excluded, at least absent a “ ‘showing of particularized guarantees of trustworthiness.’ ” Lee v. Illinois, 476 U.S. 530, 543 , 106 S.Ct. 2056, 2063 , 90 L.Ed.2d 514, 528 (1986) (quoting Roberts, 448 U.S. at 66 , 100 S.Ct. at 2539 , 65 L.Ed.2d at 608 ).

These guarantees of trustworthiness must be such that the evidence is “at least as reliable as evidence admitted under a firmly rooted hearsay exception” so as to assure “that adversarial testing would add little to its reliability.” Wright, 497 U.S. at 821 , 110 S.Ct. at 3149 , 111 L.Ed.2d at 656 (citations omitted). Article 27, § 142(c) does not qualify as a “firmly rooted” hearsay exception. As the Supreme Court has noted, the codification of a hearsay exception does not alone qualify it for a presumption of reliability. See Wright, 497 U.S. at 817-18 , 110 S.Ct. at 3148 , 111 L.Ed.2d at 654 .

If that were the case, the Confrontation Clause would become a shallow vessel ⁴⁵⁸ whose contents are subject to rapid evaporation by way of legislative enactment. Accordingly, we must probe the foundation of Article 27, § 142(c) to determine whether it bears sufficient guarantees of trustworthiness so “that ‘there is no material departure from the reason of the general rule’ ” requiring cross-examination. Roberts, 448 U.S. at 65 , 100 S.Ct. at 2539 , 65 L.Ed.2d at 607 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107 , 54 S.Ct. 330, 333 , 78 L.Ed. 674, 679 (1934)). We recently discussed factors courts generally consider in determining the reliability of hearsay in Bailey v. State, 327 Md. 689 , 612 A.2d 288 (1992).

Although Bailey concerned the admissibility of hearsay in probation revocation proceedings, it provides a useful starting point for our analysis in the instant case. We noted in Bailey that it is “difficult for this Court to formulate any bright-line standards” with respect to determining the reliability of hearsay. Id., 327 Md. at 700 , 612 A.2d at 293 . We did identify, however, several factors to which courts often look in determining whether admitted testimony bears sufficient indicia of reliability so as not to offend principles of confrontation. “These factors include: the presence of any additional evidence which corroborates the proffered hearsay; the type of and centrality of the issue that the hearsay is being offered to prove; and the source of the hearsay, including the possibility of bias or motive to fabricate.

This is not an all-inclusive list, as other factors may affect a court’s evaluation of reliability. Furthermore, the facts and circumstances of a particular case may undermine the trustworthiness of hearsay evidence that otherwise might enjoy a high degree of reliability.” (Citations omitted). Id. In the instant case, the Affidavit as to Account Status, made admissible by § 142(c), is closely related to hearsay evidence routinely introduced under more traditional hearsay exceptions recognized in this State.

Section 142(c)’s most apparent analog is Maryland’s statutory business records hearsay ex ⁴⁵⁹ ception, which provides for the admission into evidence of a “writing or record made in the regular course of business as a memorandum or record of an act, transaction, occurrence, or event ... to prove the act, transaction, occurrence, or event.” Md.Code (1974,1989 Repl.Vol.), Courts & Judicial Proceedings Art., § 10-101(b). Hearsay evidence admitted under the business records exception is generally regarded as reliable since any risk of “insincerity will be minimized, because the business will want accurate records to rely on,” Lynn McLain, Maryland Evidence § 803(6).l, at 380 (1987) (hereinafter Maryland Evidence), and “[t]he very regularity and continuity of the records are calculated to train the recordkeeper in habits of precision.” 2 McCormick on Evidence § 286, at 265. Section 142(e) is a direct derivative of the business records exception. The information contained in the affidavit is gathered from records the bank generates and maintains for its own use and upon which it relies to conduct its business, thus lending credibility to the information contained therein.

Banks universally generate and maintain records concerning transactions affecting their customers’ accounts, as well as the status of their customers’ accounts. Ordinarily, a bank’s records of its accounts would qualify under the business records exception as long as the information contained therein is reported by an employee with a business duty to report and recorded by an employee with a business duty to record the information. See Advisory Committee Notes to Fed.R.Evid. 803(6), 56 F.R.D. 183 , 308-09 (1972) (indicating that where both source of information and maker of a business record operated under a duty of accuracy, due to their employment, that records ordinarily qualify under common law business record exception). In addition, there are circumstances where it may not be an abuse of discretion to admit business records even without the testimony of the records’ custodian.

As this Court held in Pine St. Trading Corp. v. Farrell Lines, Inc., 278 Md. 363, 373 , 364 A.2d 1103, 1110 (1976): “While a foundation must be laid for the introduction of evidence under [the business records exception] statute, the foundation need not always consist of testimonial evidence, ⁴⁶⁰ and in some cases the court may properly conclude from the circumstances and the nature of the document involved that it was made in the regular course of business.” (Emphasis added). Id.; see also Attorney Grievance Comm’n v. Keister, 327 Md. 56, 74-75 , 607 A.2d 909, 918 (1992). We also note that several cases have held that 18 U.S.C. § 3505 , which allows admission of foreign business records based on an affidavit of a foreign business employee attesting to veracity and source, does not violate a criminal defendant’s right of confrontation. See United States v. Sturman, 951 F.2d 1466, 1489-90 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2964 , 119 L.Ed.2d 586 (1992); United States v. Miller, 830 F.2d 1073, 1077-78 (9th Cir.1987); United States v. Gleave, 786 F.Supp. 258 , 279 (W.D.N.Y.1992); United States v. Chan, 680 F.Supp. 521, 522-25 (E.D.N.Y.1988).

For example, in United States v. Miller, which involved the admission of a certificate of the records of a foreign bank under 18 U.S.C. § 3505 , the Ninth Circuit found that such certificates bear adequate indicia of reliability. The court reasoned: “Banks depend on keeping accurate records and although, as we all know, they err occasionally, their records are among the most common type of business record routinely used in our courts. The novelty of the statute is to admit the records without confrontation by the defendant with the recordkeepers. No motive is suggested that would lead bank officials to change, distort, or manipulate the records at issue here.

The recordkeepers have, under criminal penalties in their own countries, asserted that the records are records kept in the course of business. Examination of the recordkeepers ... could not reasonably be expected to establish anything more or less than that.” Id., 830 F.2d at 1077 . In enacting § 142(c), the General Assembly quite simply took legislative notice of the strong indicia of reliability accompanying bank records, but altered the traditional procedure of placing their contents into evidence in two ways. First, the ⁴⁶¹ General Assembly decided to allow the State to forego the admission of the voluminous actual bank records and instead substitute a summary of the relevant information that those records would invariably reveal.

Second, the General Assembly also decided to forego the need for testimony of the bank employee who prepared the account summary of the account in question. We believe that the General Assembly made a valid judgment in thus expanding the manner in which the State may prove an account’s status, or its non-existence. These procedural “short-cuts” are well grounded and do not undermine the reliability and trustworthiness of data contained in account records created and maintained in the ordinary course of the bank’s business. Rather, the General Assembly, in enacting § 142(c), invoked well-accepted evidentiary practices to prove the status of an account by means of an account summary or the lack of an account through the absence of entries in business records.

First, the information derived from the bank’s records and contained in a § 142(c) affidavit concerning the status or lack of an account would also be admissible as an exception to the best evidence rule. Ordinarily, where documentary evidence is admissible into evidence, a party may not prove its contents with extrinsic evidence. Rather, the documents or records themselves must be introduced into evidence. This rule is not absolute, however, and parties may introduce summaries or compilations of voluminous or complex records, such as bank records, to prove the contents of otherwise admissible records.

Such summaries of complex or voluminous records may take two forms: summations or compilations of what the records contain, id., or statements as to what is not recorded in the records. See generally Maryland Evidence § 1006.1, at 545-46. As for the latter form, it is well established under Maryland law that a litigant may prove through negative inference, without the need of introducing the underlying records, the non-occurrence of an event or transaction from the absence of an entry in a business’s records where such records normally contain like information. Summons v. State, 156 Md. 382, 386-87 , 144 A. 497, 500 (1929); Hutchinson v. ⁴⁶² State, 36 Md.App. 58, 62-64 , 373 A.2d 50, 52-53 (1977).

In Summons v. State, for example, the defendant was convicted of obtaining money by false pretenses. The defendant represented to an investor that he was selling stock of a corporation, that all the proceeds of the sale would go directly to that corporation, and that he maintained a sum of money to repay any dissatisfied investors. At trial, the State introduced testimony of a director of the corporation that the defendant was allegedly representing. The witness testified that “he examined and investigated the accounts and records of the company ... and found no record of any deposit or fund provided by the [defendant] for the purpose of the reimbursement of the stockholders; ... and that a complete personal examination failed to reveal any record that the [defendant] had turned in to the company the proceeds of the sale of any of its common stock.” Summons, 156 Md. at 387 , 144 A. at 499 .

In rejecting the defendant’s objections to this testimony, the Court stated: “The objection to the testimony is that it is not the best evidence of the facts introduced; but we cannot agree with this contention, since the purpose was, not to establish the terms of the corporate records or accounts, but to establish facts about these documents other than their contents. The witness was giving primary evidence of facts within his personal knowledge as a result of the exercise of his own powers of observation. On this ground, or on that of the inconvenience of producing before the jury or trial court a large number of documents and accounts to be read and examined before a fact could be ascertained, a competent witness, who has investigated and is familiar with the contents of the entire mass, may testify that certain entries in the corporate records or accounts do not exist.” Id., 156 Md. at 386-87 , 144 A. at 500 . Section 142(c) deviates from the practice of using summaries of records in one way: the need to present a bank employee, as custodian of the records or as the one who prepared the summary, to lay the appropriate foundation.

This deviation from the admission of the bank’s business ⁴⁶³ records or summaries of those records, however, is not fatal to § 142(c). The General Assembly may properly excuse the testimony of an out-of-court declarant or custodian of records where it does not undermine the reliability of the proposed evidence, as it has for example in the case of public records under Md.Code (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Art., § 10-204. Under § 10-204 a court may admit a public record into evidence without the presence of the preparer of the record or custodian of records. Under the public records exception, records, reports, statements, or data compilations of public offices or agencies are admissible at trial absent circumstances indicating a lack of trustworthiness.

See Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581,