Clarke v. State

WENNER, Judge. Appellant, Marvyn Junior Clarke, was convicted by a jury in the Circuit Court for Montgomery County of battery 1 and sentenced to two years of imprisonment. The sentence was suspended in favor of one year of supervised probation. On appeal, appellant asks: I. Did the lower court err in refusing to admit relevant evidence proffered by the defense; II.

Did the lower court err in permitting improper closing argument by the prosecutor? Finding no error, we shall affirm the judgment of the circuit court. ⁴²⁸ FACTS On the evening of April 26, 1992, appellant and Alexander Anderson (Anderson) became involved in a dispute over the use of a 1982 Honda automobile. 2 Their eight month friendship ended abruptly after appellant stabbed Anderson in the shoulder, arm, and chest. Anderson was admitted to Suburban Hospital, and appellant was charged with battery and assault with intent to maim. At trial, a number of witnesses testified about what they had observed on the evening of the incident.

As most of the testimony bears no relation to the issues presented by appellant, we shall recount only that portion of the record relevant to the questions presented by appellant. Anderson denied using drugs on the evening of the incident, but said that his friends were smoking marijuana and that he confronted appellant before “it was his turn.” Appellant subsequently attempted to introduce into evidence Anderson’s medical records from Suburban Hospital. Specifically, appellant sought to introduce the results of blood tests showing that the test for marijuana in Anderson’s blood stream was “presumptive positive.” Appellant sought admission of the records without offering expert testimony to explain the “presumptive positive” results of the test. According to counsel for appellant, the medical records were admissible as business records under the business records exception of the hearsay rule, requiring no testimony other than that of the custodian of the records.

Nonetheless, the trial judge denied admission of the records. During closing argument, the prosecutor said: ... [appellant] very easily could have killed Mr. Anderson; in fact the State could have charge [sic] assault with intent to kill. We did not. Why?

Because— ⁴²⁹ After the trial judge overruled counsel for appellant’s objection, the prosecutor continued: if he wanted to, he could have, but he did not. He got scared that he had gone so far ... Appellant was convicted, sentenced, and this appeal followed. I. Appellant first contends that the trial judge erred in excluding Anderson’s medical records.

Appellant believes that the records were admissible under the business records exception to the hearsay rule. Md.Code (1973, 1989 Repl.Vol.) § 10-101 of the Courts and Judicial Proceedings Article. He is only half correct. Hearsay is an out-of court assertion offered in court for the truth of the matter asserted.

In re Rachel T., 77 Md.App. 20 , 549 A.2d 27 (1988). Under the business records exception to the rule, medical records are ordinarily admissible if they are kept in the ordinary course of the hospital’s business and the entries contained in the records are pathologically germane. State v. Garlick, 313 Md. 209 , 545 A.2d 27 (1988). Thus, we agree that the medical records offered by appellant would ordinarily have been admissible under the business records exception to the hearsay rule.

When, however, the medical records are being offered to impeach the victim, an additional hurdle must be cleared. To be sure, evidence that the victim can neither perceive nor recollect the incident about which he is testifying because he had been using drugs at the time of the incident may ordinarily be used for impeachment. See Lyba v. State, 321 Md. 564 , 583 A.2d 1033 (1991). But when the victim denies on cross-examination that he had been using drugs at the time of the incident, the inquiry is ended unless evidence to contradict the victim’s denial is proffered.

If such evidence is proffered, further inquiry may be permitted. Id. In a situation such as this, the trial judge is vested with discretion ⁴³⁰ to permit or deny further inquiry. Id.

These principles are the same, whether the evidence is proffered for the purpose of questioning the victim’s credibility by suggesting that the victim is lying about his use of drugs, or that the victim’s ability to recollect the incident was actually impaired by the use of drugs. While this precise question has not yet been decided in Maryland, 3 we find guidance in a neighboring jurisdiction. In Durant v. United States, 551 A.2d 1318 (D.C.App.1988), the District of Columbia Court of Appeals reversed a conviction for assault with intent to rob because of error in admitting in evidence, for the purpose of impeaching the defendant, a lab report showing an unspecified amount of PCP in his urine the day after the alleged offense. The defendant denied having used PCP on