Davies v. State

MEREDITH, J. After a jury trial in the Circuit Court for Montgomery County, John C. Davies, appellant, was convicted of felony theft, embezzlement, and unauthorized use of a credit card. The circuit court sentenced Davies to five years’ imprisonment, with all but eighteen months suspended. Davies noted a timely appeal. On appeal, Davies presented six questions for review, including the following three, which we have renumbered: [1] Did admission of an out-of-court written statement that certain credit-card charges were “unauthorized” (which unidentified declarants prepared at the request of the State for use in the prosecution) violate the hearsay rule and the Confrontation Clause? [2] Did the court erroneously quash a defense subpoena for evidence of bias and motive regarding the State’s key witnesses on the grounds that the State, which did not obtain this evidence, allegedly provided in discovery the evidence that it had obtained? [3] Did the court erroneously exclude evidence and prevent cross-examination regarding the bias and motive of the State’s key witnesses to discredit Mr. Davies and to falsely accuse him of unauthorized credit card use [where the evidence would show that] he had previously accused them of financial irregularities and mismanagement?

We answer the first question in the affirmative, and we will reverse the circuit court’s judgment. Because the second question is likely to arise again in the event of a new trial, we will address it, and answer in the affirmative. The third question has not been adequately preserved for our review, but can be pursued by Davies at the time of new trial. 1 ⁴⁰⁵ Facts and Procedural History Immanuel Church has approximately 4000 members and eight pastors. Located in Montgomery County, Maryland, it has annual revenues of approximately $8 million.

In March 2007, the Church hired John Davies to manage its finance department. The Church’s finance department has several employees who “handle receivables, payables, payroll, [and] various other duties.” The finance department administered the Church’s credit card accounts, including one with Capital One VISA. If Church employees wanted to make a purchase using the Capital One card, they were supposed to submit request forms (sometimes referred to as “authorized user documents”) for the finance department’s approval, and then sign out the credit card. After making a purchase, the employees were expected to return the card to the finance department with the receipt for the purchase.

A finance department staff member was then supposed to enter the authorization information into the Church’s computer accounting system. In July 2008, Davies resigned from his position as finance manager. Pastor Guy Carey — who oversaw the finance department and was a member of the Church’s executive team— assumed the duties of the finance manager, and began reviewing the credit card statements for the Capital One account. Upon reviewing these statements, Pastor Carey noticed charges which he questioned.

According to Pastor Carey, he also became aware for the first time that Davies had been ⁴⁰⁶ added to the list of persons authorized by Capital One to use the Church’s credit card. The Church reported to the Montgomery County Police Department that Davies had made unauthorized credit card purchases. The police requested that the Church prepare a spreadsheet summarizing which of the charges on the Capital One account were unauthorized. In response, the Church gave the police a spreadsheet “prepared by the finance department and others,” which was comprised of six columns labeled: “Date,” “Vendor,” “Description,” “Charge amount,” “Payments,” and “Employee Dishonesty.” Pastor Carey said that the Church took the following steps to compile the spreadsheet.

The Church obtained credit card statements from Capital One for the period of February 2008 to September 2008. The chart’s “Date,” “Vendor,” “Charge amount,” and “Payments” columns were copied directly from the Capital One statements. Church staff reviewed each of the charges listed on the statements to determine which of the charges were not supported by proper documentation in the Church’s records of approved credit card purchases. In order to do so, Church staff reviewed various finance department records to determine whether the required authorized user documents existed for each of the purchases.

If the forms could not be found, Church staff listed the dollar amount of the purchase in the “Employee Dishonesty” column. Church staff also attempted to learn the purpose for each of the charges by calling the vendor at which the credit card was used and/or by referring to the Church’s own records. If Church staff could find information regarding the purpose for the charge, that information was listed in the “Description” column. For instance, one entry in the Description column indicated that, on March 24, 2008, there was a charge of $227.00 for “3rd Party Collection J. Dav,” and the corresponding amount $227.00 appears in the column under Employee Dishonesty.

Based on the information provided to them by the Church, the police obtained and executed a search warrant at Davies’s ⁴⁰⁷ home. Police recovered evidence of items that had been purchased or paid for with the Church’s Capital One VISA. The evidence that was seized included life insurance documents, car insurance documents, a bill from a plumber who had performed work on Davies’s home, and bottles of mail-order acne medication. Prior to trial, Davies served the Church with a subpoena to produce, among other information, the “[f|orms or other documents reflecting requests for permission to use, or approval of the use of, the Church Credit Cards.” Davies also served a subpoena upon the Church’s outside accountant commanding the accountant to produce, among other documents, the Church’s 2006 and 2007 financial statements, its correspondence "with Davies, and reports made to the accountant by Davies during his tenure.

The State successfully moved to quash the subpoenas. The State used the Church’s spreadsheet described above to create two charts that were offered as exhibits at trial. The first chart, which was admitted into evidence over Davies’s objection as State’s Exhibit 3, is a 6-page document that contains the same information as the spreadsheet, but the label of the “Employee Dishonesty” column had been changed to “Unauthorized Charges.” The second chart, which was admitted into evidence over Davies’s objection as State’s Exhibit 4, is a one-page summary, derived from State’s Exhibit 3, listing the subtotal of unauthorized charges for each statement period. Davies moved in limine to exclude State’s Exhibits 3 and 4.

The circuit court reserved ruling on the motion. At trial, the State elicited testimony from Pastor Carey to lay a foundation for the introduction of the charts. Pastor Carey explained that unidentified persons at the Church gathered the information shown in the “Description” and “Unauthorized Charges” columns in State’s Exhibit 3. During this direct examination, the testimony was as follows: [The State]: Okay.

Now, this column here, “description,” what is in that column? ⁴⁰⁸ [Pastor Carey]: Description was entered by staff is, if they were able to determine something in either a phone call to a vendor or from direct records. [Defense Counsel]: Objection. Move to strike. THE COURT: I’ll sustain the objection. [The State]: Okay. BY [The State]: Q. The information in the “description” column that is— phrase it this way.

Where the church was able to confirm what the purposes of charges that were on the initial credit card statement, were you able to find out, this is a legitimate charge, basically. Did the church then make a notation in this “description” column as to why that was a legitimate charge about, that appeared on the credit card statement? [Defense Counsel]: Objection. [Pastor Carey]: There were two functions. THE COURT: Overruled.... [Pastor Carey]: There were two functions actually occurring in the description, and with the reconciliation. In that none of these items had been posted properly to the financial records of the church, there was also an attempt to distinguish what expenses, if they were approved, they related to; and if they were unapproved, what they might have been. [The State]: Okay.

All right. Then the last column here of “unauthorized charges,” how was it decided if an entry was made in that unauthorized column? [Pastor Carey]: All of the records that we have that would indicate approval to purchase with credit card would require approved purchase request, and approved credit card use request. Those records were consulted to determine whether or not the paperwork existed for approval. If the paperwork existed for approval, it was ⁴⁰⁹ searched.

If an item was not there, then the vendor was contacted. [The State]: Okay. All right. And— [Defense Counsel:] Objection. Move to strike.

THE COURT: Overruled. BY [The State]: Q. And where you were not able to find any records supporting the payment, it was then put, listed in the unauthorized charge [column], is that correct? [Defense Counsel]: Objection. THE COURT: Overruled. [Pastor Carey]: That’s correct. (Emphasis added.) Over Davies’s repeated objection, the circuit court admitted State’s Exhibits 3 and 4.

In addition, the court admitted, without objection by Davies, the monthly credit card statements which the Church had used to complete portions of the charts. No authorization forms were introduced by the State. Nor did the staff members who were said to have conducted the searches for authorization forms testify regarding their inability to locate authorization forms. Two Church pastors testified at trial that Capital One had told them that its records reflected there were three approved users of the credit card: Davies, and two other Church employees — Pastor Charles Schmitt and Terry Golden.

Pastor Carey testified that, during the investigation of credit card charges, the Church distinguished Davies’s usage of the card from the other two approved users by a review of “signatures and merchant receipts and/or from the authorized user documents that [the Church retains] when it authorizes a purchase.” No such documents were offered in evidence, however. Pastor Carey said that these documents “weren’t requested” by the police when the Church submitted its report. Davies was never given the opportunity to review the referenced documents. ⁴¹⁰ Davies sought to introduce into evidence as Defense Exhibit 7 a report he had authored as the finance manager shortly before his termination. In the report, Davies made numerous criticisms of the management of the Church’s finances by its leadership, including Pastor Carey.

Davies alleged in his report that the Church administration had improperly concealed a $340,828 discrepancy in its 2006 financial statements. The circuit court excluded this evidence, and sustained objections to Davies’s attempt to elicit testimony concerning allegations of the Church’s financial mismanagement. Discussion Summary Exhibits The decision to admit evidence is ordinarily left to the circuit court’s sound discretion. Bern-Shaw Limited Partnership v. Baltimore, 377 Md. 277, 291 , 833 A.2d 502 (2003).

Nevertheless, if the circuit court’s “ruling involves a pure legal question, we generally review the [ ] court’s ruling de novo.” Id. Accord Hall v. UMMS, 398 Md. 67, 82-83 , 919 A.2d 1177 (2007); J.L. Matthews, Inc. v. Park & Planning, 368 Md. 71, 92-93 , 792 A.2d 288 (2002). Statutory interpretation and the admission of hearsay are legal questions subject to de novo review. As the Court of Appeals explained in Bernadyn v. State, 390 Md. 1, 7-8 , 887 A.2d 602 (2005) (citation omitted): 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 reviewed de novo. ⁴¹¹ Similarly, in a criminal trial, the court has no discretion to admit “testimonial evidence” that would violate the defendant’s Sixth Amendment rights under the Confrontation Clause.

Crawford v. Washington, 541 U.S. 36, 68 , 124 S.Ct. 1354, 1374 , 158 L.Ed.2d 177 (2004) (“Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”). As we noted in Snowden v. Slate, 156 Md.App. 139 , 143 n. 4, 846 A.2d 36 (2004), aff'd, 385 Md. 64 , 867 A.2d 314 (2005): “We ... apply the da novo standard of review to the issue of whether the Confrontation Clause was violated----” In the present case, the circuit court admitted State’s Exhibits 3 and 4 pursuant to Maryland Rule 5-1006, which permits, upon certain conditions, a summary of the contents of voluminous documents to be admitted into evidence in lieu of the voluminous documents. Pertinent to this case, the documents which are summarized must themselves be “otherwise admissible.” Here, because of (1) the investigators’ commentary added to State’s Exhibit 3 under Description, and (2) the exhibit’s representation of the investigators’ conclusions as to which charges were “unauthorized,” State’s Exhibit 3 did not satisfy the requirement of Rule 5-1006 that it summarize only “writings, recordings, or photographs, otherwise admissible.” State’s Exhibit 4 was a summary derived from State’s Exhibit 3, and was, therefore, not admissible because State’s Exhibit 3 was not admissible. Rule 5-1006 states: The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, calculation, or other summary.

The party intending to use such a summary must give timely notice to all parties of the intention to use the summary and shall make the summary and the originals or duplicates from which the summary is compiled available for inspection and copying by other ⁴¹² parties-at a reasonable time and place. The court may order that they be produced in court. Rule 5-1006 is derived from Federal Rule of Evidence (“FRE”) 1006. 2 Like FRE 1006, Maryland Rule 5-1006 does not require that the summarized writings, recordings, or photographs themselves be introduced into evidence even though the underlying documents must nevertheless be “otherwise admissible.” Milton Co. v. Bentley Place, 121 Md.App. 100, 121 , 708 A.2d 1047 (1998) (for purposes of admitting a summary under Rule 5-1006, “the original ... records were not required”), aff'd on other grounds, 354 Md. 264 , 729 A.2d 981 (1999). See United States v. Bakker, 925 F.2d 728, 736 (4th Cir.1991) (FRE 1006 “does not require that the original voluminous material be introduced into evidence”).

Further, under