Fair v. State

JAMES A. KENNEY, III (retired, specially assigned), J. Appellant, Arnell Fair, was arrested and charged with possession of a firearm by a convicted felon, carrying or transporting a handgun in a vehicle, and possession of marijuana, a controlled dangerous substance. A jury, sitting in the Circuit Court for Baltimore City, convicted appellant of possession of a firearm by a convicted felon and possession of marijuana. He was sentenced to five years without the possibility of parole for the firearm conviction and to a consecutive one year ³ for the marijuana possession conviction. He presents the following issues for our review, which we have slightly reworded: I. Did the circuit court err by denying appellant’s pretrial motion to suppress the key and the remote to the Cadillac automobile, the marijuana, or the firearm found in the Cadillac under the Fourth Amendment of the United States Constitution and Article 26 of the Maryland Declaration of Rights?

II

Did the circuit court err by denying appellant’s trial motion to exclude the City of Baltimore paycheck to appellant found in the Cadillac on the basis of hearsay? For the following reasons, we affirm the judgment of the circuit court. FACTS AND PROCEEDINGS Appellant was arrested for possession of marijuana by Detective Steven Mahan of the Baltimore City Police Department. While appellant was in his custody, the detective observed a vehicle with suspected marijuana in plain view that he had reason to believe had been driven by appellant.

He searched the vehicle and found a firearm in the center console next to a combined paycheck and pay-stub (collectively, “the paycheck”) in appellant’s name. Appellant was charged with possession of marijuana along with the firearm charges. Before trial, appellant moved to suppress the marijuana found inside the vehicle, the handgun, and the remote and the keys to the vehicle. At the suppression hearing, Detective Mahan testified to the following: On the evening of June 30, 2007, he was working security as a second job for Central Parking Agency at a garage located at 414 Water Street in Baltimore, Maryland.

At approximately 10:20 p.m., he observed, from approximately ten or fifteen feet away, appellant and Scott Tanner, walking down a garage ramp toward him “drinking and smoking a brown hand-rolled cigar.” He saw appellant pass the cigar to Tanner, and both were smoking it. Upon seeing Detective Mahan, Tanner ⁴ dropped the cigar saying, “Yo, the police.” Appellant and Tanner also poured out their drinks. Detective Mahan placed them under arrest, handcuffed them, and searched them. He found a remote along with a set of keys to a Cadillac on appellant and a set of keys to a Lexus on Tanner.

He also recovered the cigar. After advising both men of their Miranda rights, Detective Mahan asked Tanner where he parked his car. Tanner told him that “he drove in with the Lexus;” appellant said that “he drove in with Mr. Tanner.” Detective Mahan, with both men in his vehicle, then drove to locate Tanner’s vehicle in the garage. Tanner identified his vehicle when they came to it.

Detective Mahan’s testimony on direct examination as to the sequence of events after Tanner identified his vehicle was somewhat inconsistent with his testimony on re-direct examination. On direct examination, Detective Mahan testified that, at this point in time, he separated the men, and, after being separated from appellant, Tanner told him that “he drove the Lexus and that his friend, [appellant], drove the Cadillac in behind him.” Tanner identified the Cadillac that was parked next to the Lexus as appellant’s vehicle. Detective Mahan “hit ... either the panic button or the lock button” on the remote to the Cadillac, “and the horn sounded.” He looked inside the Cadillac, and, in the center console, “in plain view” saw “a clear sandwich bag that contained a green substance of suspected marijuana.” Detective Mahan testified that he then performed a “search inventory to tow.” Inside the vehicle’s center console, he found a “Hungrade (sic) .9 millimeter handgun” and “a paycheck stub” in appellant’s name. On re-direct examination, Detective Mahan testified as follows: [Prosecutor]: And when in the sequence of events did ...

Mr. Tanner [] advise you that [appellant] drove the Cadillac that was next to his car? ⁵ Detective Mahan: Once I was able to separate them and had some distance between Mr. Tanner and I, when he was out of earshot of Mr. Fair. Q. Was that before or after you looked in the Cadillac and saw the marijuana? A. I believe it was after. Q. Okay.

And was it before or after you hit the button? A. I think it was after. I believe it was after. The motion court denied the motion to suppress.

It concluded that the search of appellant incident to his arrest for possession of the marijuana cigar “was constitutionally permitted,” and that “[booking in the Cadillac, opening it, and seizing the marijuana visible from the exterior of the Cadillac was [ ] constitutionally protected.” According to the motion court, “[t]he question [was] really whether opening the console where the gun was found [was] also constitutionally permitted.” The court, through the following analysis, determined that the search of the console was permissible: The facts suggest strongly that Detective Mahan had every intention of towing the cars of the arrestees, Tanner and [appellant], before he ever saw the cars or before he ever observed the marijuana in [appellant’s] car. When the detective and the two arrestees were still downstairs in the garage away from [appellant’s] car, Detective Mahan seized the keys with the remote. Both Mr. Tanner and [appellant] had keys to different cars and Detective Mahan asked both about how they got there and quizzed Tanner out of [appellant’s] presence about how [he] got there. So it is clear that Detective Mahan was focused on finding those cars, given the policy of Central Parking Garage to have them removed.

In addition, as to the Defendant’s car, the need for it to be towed was heightened when Detective Mahan observed the marijuana in plain view in the car. ⁶ The bottom line here is that there is no subterfuge. Detective Mahan was not engaged in subterfuge to search the Defendant’s car. Rather, knowing that the car was going to be towed, either because that was the policy of Central Parking or because contraband had been found there, Detective Mahan knew the car was going to be towed. Given this knowledge, Detective Mahan’s opening of the console where the gun was observed was constitutionally permissible, the inventory search was necessary to protect the police from claims and disputes over lost property, and to protect the Defendant’s property while it remained in police custody.

Therefore, there was a bona fide inventory and not an investigative search. Before trial, appellant moved to exclude from evidence the paycheck based on hearsay, arguing that it would be offered to prove the truth of its contents, most specifically, the date. The State argued that it was “going to be arguing that ... because the piece of paper was found with his name and the paycheck and everything with the gun, that he had to have gone in that console at some point with the piece of paper there, not that he definitively owns the car or anything else.” Defense counsel explained that use of the paycheck to prove the date it was written was hearsay, unless the check came in pursuant to a business records exception. The circuit court held that “[t]he document is not being offered for the truth of the matter asserted, it’s being offered to show the Defendant’s possessory interest in the vehicle,” and denied the motion.

Appellant then moved to redact the date on the paycheck, which the court denied without comment. Detective Mahan was the State’s only witness at trial, and he testified substantially as he had at the suppression hearing. In addition to his previous testimony, he testified that the Cadillac was registered to Dashae Mariano, but that it was not considered stolen. On direct examination, the State questioned the detective on finding the paycheck in the center console.

He testified to finding the paycheck, but, at that time, did not testify as to the ⁷ date on the paycheck. The prosecutor then moved the paycheck into evidence. At that time, defense counsel stated, “And Your Honor, I would just renew my objection.” The court admitted the paycheck into evidence. On redirect-examination, the prosecutor returned to the topic of the paycheck and the following exchange took place: [Prosecutor]: And Mr. Fair at some point had left his paycheck in there? [Detective Mahan]: Yes, ma’am. [Prosecutor]: And what is the date on the paycheck? [Defense counsel]: Your honor, just object for the record, pursuant to bench conference, Your Honor, that we already had. [The Court]: Overruled. [Detective Mahan]: The pay period began 6/18/07 through 6/24/07, the pay date was 6/29/07. [Prosecutor]: The day before this incident? [Detective Mahan]: Yes, ma’am.

It was stipulated that appellant “is prohibited from possessing a firearm or ammunition because of a prior disqualifying crime;” that the “gun in this case was found to be operable;” and that “the substance recovered and tested was marijuana.” In closing, the prosecutor argued to the jury: Nobody else had access to that vehicle that night. The only person who had access to that vehicle is Mr. Arnell Fair. Mr. Arnell Fair, who knew that there was a gun in that car because he was trying to distance himself. Mr. Arnell Fair who knew that there was a gun in there when he put his paycheck in there within the last 24 hours, because the paycheck was dated the day before and it had to be within 24 hours. ⁸ The jury found appellant guilty of the counts of possession of marijuana and possession of a firearm by a convicted felon.

He noted this timely appeal. DISCUSSION I. Suppression Motion We are first asked to consider whether the circuit court erred by denying appellant’s pretrial motion to suppress the keys and the remote to the Cadillac automobile, the marijuana, and the firearm found in the Cadillac under the Fourth Amendment of the United States Constitution and Article 26 of the Maryland Declaration of Rights. In Daniels v. State, 172 Md.App. 75, 87 , 913 A.2d 617 (2006), we addressed the standard of review of rulings on suppression motions: In reviewing the denial of a motion to suppress evidence under the Fourth Amendment, we look only to the record of the suppression hearing and do not consider any evidence adduced at trial. Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999).

We extend great deference to the findings of the hearing court with respect to first-level findings of fact and the credibility of witnesses unless it is shown that the court’s findings are clearly erroneous. Reynolds v. State, 130 Md.App. 304, 313 , 746 A.2d 422 (1999), cert. denied, 358 Md. 383 , 749 A.2d 173 (2000), cert. denied, 531 U.S. 874 , 121 S.Ct. 178 , 148 L.Ed.2d 122 (2000). Moreover, we view those findings of fact, and indeed the record as a whole, in the light most favorable to the State. Id.

We review the court’s legal conclusions de novo, however, making our own independent constitutional evaluation as to whether the officers’ encounter with appellant was lawful. Id. The circuit court, in its analysis, addressed the propriety of Detective Mahan’s search of the Cadillac and whether it was an inventory or investigative search. However, appellant’s argument, at trial and on appeal, centers on whether Detective ⁹ Mahan had the right to utilize the keys and remote of the Cadillac that were in his possession as a result of the initial arrest to establish a connection between the appellant and the Cadillac.

At the pre-trial suppression hearing, defense counsel argued: What happened here is the detective sees that both of these individuals have keys on them and then the detective attempts to really do a further investigation based upon what’s found on that person. Instead of really doing a earetaking function and making sure that whatever personal items on him are catalogued and turned in to protect the Defendant, he goes on a further search. He admits that he does that. That, in fact, he was looking for more fruits of some crime and then they go onto the third floor.

Once they get to the third floor, Your Honor, the officer states that, in fact, that it was some testimony from the co-Defendant that causes him to look in the window. He also states that, in fact, that it was marijuana that was in plain view. Nonetheless, Your Honor, what the officer does to connect this particular — to connect the possession of the marijuana with Mr. Fair is he presses the button on the remote control. At that point, he realizes that, in fact, that the key and the remote that was taken from Arnell Fair is, in fact, has a connection with this particular car. [I]f the personal items that he takes off of Mr. Fair are not ... incriminating items, such as keys, such as a car remote, then the officer does not have a right to then take that car remote or take that key and go on some whole expedition in terms of another search.

In essence, appellant argues that he retained a Fourth Amendment expectation of privacy in the keys and remote, and that, in the absence of a warrant, the detective’s role with respect to them was only that of caretaker. ¹⁰ First, appellant claims that his Fourth Amendment rights were violated when he was taken to locate Tanner’s vehicle after he was arrested and given his Miranda rights. We disagree. Because the detective would be responsible for having Tanner’s vehicle towed, locating that vehicle was appropriate. Viewing the record in the light most favorable to the State, Tanner voluntarily directed Detective Mahan to where his vehicle was after having been advised that he had the right to remain silent.

That appellant was also taken to the location of Tanner’s car was in no way a violation of appellant’s rights. Appellant had, and apparently exercised, a continuing right to remain silent, but, once he was arrested, he was in Detective Mahan’s custody and simply along for the ride. The second alleged violation of appellant’s Fourth Amendment rights is related to Detective Mahan’s utilizing the keys and remote already in his possession from the search incident to appellant’s arrest to determine whether the vehicle containing marijuana in plain view was appellant’s vehicle and to gain access to the vehicle. Appellant argues that Detective Mahan was only in possession of the keys and remote as part of his “care taking function” and that the keys and remote could not be utilized in an investigation unrelated to his initial arrest.

The State argues that the use of the keys and remote was justified under Holland v. State, 122 Md.App. 532, 539 , 713 A.2d 364 , cert. denied, 351 Md. 662 , 719 A.2d 1262 (1998), where we stated: When the property is taken from the arrestee, the Fourth Amendment intrusion is a fait accompli. When, hours later, a crime lab technician picks up a gun from a storage locker to check it out ballistically, that is not a fresh Fourth Amendment intrusion requiring either a fresh exigency or a warrant for its justification. The danger of destruction is at an end once an arrestee’s property has been seized. That is the seizure, and the only seizure, that has Fourth Amendment significance.

The property may then be dusted for fingerprints, examined for bloodstains or DNA, checked for ¹¹ serial numbers, or otherwise processed on a more leisurely basis as an investigation unfolds. Every time that an item, already in police hands, is physically picked up and examined or reexamined, that is not a fresh Fourth Amendment intrusion requiring a fresh justification. In Holland , we concluded that the Fourth Amendment intrusion is complete when property is taken from an arrestee, and further examination and processing of that evidence does not violate Fourth Amendment protections. Id. at 540 , 713 A.2d 364 .

Likewise, in Wallace v. State, 373 Md. 69, 98 , 816 A.2d 883 (2003), the Court of Appeals held that an incarcerated individual, generally, does not have a reasonable or legitimate expectation of privacy in property legally seized and lawfully stored in police custody by law enforcement officials. Subsequent searches or seizures of that property by law enforcement officials normally do not violate that individual’s Fourth Amendment protections.... At issue here is not a “subsequent search” of the keys and remote. Therefore, we need not decide whether Holland and Wallace would authorize the use of keys included among the inventoried belongings of an arrestee to carry out a search of a place or an automobile without probable cause to obtain a warrant.

As we explain, a warrant was not necessary to search the vehicle in this case. Clearly, the focus of the investigation shifted from the original violation to the marijuana inside the vehicle when Detective Mahan observed the marijuana in plain view inside the Cadillac next to Tanner’s vehicle. In State v. Cabral, 159 Md.App. 354, 372-73 , 859 A.2d 285 , (2004), we explained: A warrantless search of a vehicle is permitted if there is probable cause to believe that the vehicle contains contraband. In general, the automobile exception to the warrant requirement is premised upon the exigencies associated with the mobility of a vehicle, and the diminished expectation of privacy with regard to a vehicle.

(Internal citations and quotations omitted.) Moreover, in England v. State, 274 Md. 264, 272-273 , 334 A.2d 98 (1975), the Court of Appeals stated that “there is no ¹² absolute requirement that an occupied car be stopped on the ‘open highway’ to invoke the ‘automobile exception.’ ” (Citing Scales v. State, 13 Md.App. 474, 481-82 , 284 A.2d 45 (1971) (search of an unoccupied automobile on apartment house parking lot); United States v. Church, 490 F.2d 353, 354-55 (9th Cir.1973), cert. denied, 416 U.S. 983 , 94 S.Ct. 2385 , 40 L.Ed.2d 760 (1974) (search of an unoccupied automobile parked on public street); United States v. Cohn, 472 F.2d 290, 292 (9th Cir.1973) (unoccupied automobile parked on public street)). The Cadillac was parked directly next to Tanner’s vehicle. Tanner and appellant had just been arrested for smoking marijuana. Either before or after the suspected marijuana was observed in plain view, Tanner identified the Cadillac as the vehicle appellant was driving.

That information was consistent with the fact that Detective Mahan had confiscated keys to a Cadillac from appellant incident to his earlier arrest. Clearly, Detective Mahan had probable cause to believe that the Cadillac was driven by appellant, and, had he not already been under arrest, to arrest him and search the Cadillac under the automobile exception to the warrant requirement. See Nair v. State, 51 Md.App. 234, 237 , 442 A.2d 196 (1982) (A warrantless search of an automobile was proper where police were informed that the vehicle contained illegal firearms that were to be sold that day.); United States v. Newbourn, 600 F.2d 452, 454 (4th Cir.1979) (Upholding the warrantless search of the trunk of a vehicle loaded with stolen firearms under the automobile exception to the warrant requirement); Jarrell v. State, 36 Md.App. 371, 374 , 373 A.2d 975 (1977) (Upholding the warrantless search of a vehicle for marijuana upon receiving information that a sale was to occur within two hours.). Detective Mahan did not have to effect an arrest or physically seize the keys and remote because they were already in his possession.

Under these circumstances, Detective Mahan had the right, without a warrant, to utilize the Cadillac keys and remote already in his possession to confirm his belief that the vehicle had been driven by appellant and to gain access to the vehicle and carry out a search. ¹³ II. Hearsay Question We next consider whether the circuit court erred by admitting the paycheck issued to appellant by the Mayor and City Council of Baltimore’s Central Payroll Division that was found in the center console of the Cadillac. Appellant argues that the paycheck should have been excluded as hearsay. To answer the question posed, a review of Maryland hearsay law and the doctrine of implied assertions is in order.

At common law, “the hearsay rule appliefd] when the probative value of the declarant’s statement rests on the out-of-court declarant’s sincerity and accuracy.” McLain, Maryland Evidence, § 801:1(b)(i). At common law, a statement could be deemed a hearsay statement if it was being offered to prove its literal contents or to prove an assertion which the utterance implied. See McLain at § 801:4(a). In Stoddard v. State, 389 Md. 681, 691 , 887 A.2d 564 (2005), the Court of Appeals summarized the English case of Wright v. Doe d.

Tatham, 112 Eng. Rep. 488 (Exch. Ch. 1837) and 47 Rev. Rep. 136 (H.L.1838), which the Court described as “[t]he starting point for a discussion of the implied assertion doctrine.” It explained, id.: The case [Wright v. Doe d. Tatham ] involved a will and the competency of the testator.

The decedent Marsden had left his estate to his steward Wright. Marsden’s heir at law, Admiral Tatham, challenged the will on grounds of testamentary incapacity. In defense of the will, before the Court of King’s Bench, Wright sought to introduce several letters that Marsden had received from various correspondents. One letter concerned a legal dispute, three concerned business or politics, one thanked Marsden for having appointed the writer to a curate ship, and one described a cousin’s voyage to America.

Wright, 112 Eng. Rep. 490-92. Wright did not seek to prove the truth of any explicit factual statement within the letters. Wright argued that the letters were composed in such a way as to indicate that their writers believed Marsden sane and of normal intelligence. ¹⁴ From the writers’ belief in Marsden’s competence, Wright argued, one could infer that Marsden was competent.

The letters were excluded as hearsay. On appeal in the Exchequer Chamber, Baron Parke explained as follows: “Proof of a particular fact ... implying a statement or opinion of a third party on the matter in issue, is inadmissable in all cases where such a statement or opinion not on oath would be of itself inadmissable; and, therefore, in this case the letters which are offered only to prove the competence of the testator, that is the truth of the implied statements therein contained, were properly rejected, as the mere statement or opinion of the writer would certainly have been inadmissable.” Id. at 516-17. In the testamentary capacity case of Waters v. Waters, 35 Md. 531, 543 (1872), the Court of Appeals considered whether two letters written by a tenant to the testator were admissible to show “the manner in which the testator was treated, in regard to matters of business, at the time when they were written, by one well acquainted with him, and for a long time his tenant, and were confirmatory of the testimony given by the writer of them, in regard to the sanity of the testator, and his competency to transact business.” The Court “examined with much care the case of Wright v. Doe, dem. Tatham, 7 Ad. & El. 313-408,” “and the same case on appeal,” and stated that it “yield[s its] unqualified assent to the rule of evidence established in that case.” Id. at 544-45 .

The Court held that “it is quite clear that the acts and sayings of third persons with reference to [the testator], even though they might be construed into an expression on their part of an opinion or belief touching his mental capacity, cannot be admitted in evidence; unless connected with some act on his part which indicates his competency or incompetency.” Id. at 543-44 . In 1973, the Federal Rules of Evidence were adopted, including Article VIII, Hearsay. Rule 801, which provides definitions applicable to the chapter, states, in part: Rule 801. Definitions ¹⁵ The following definitions apply under this article: (a) Statement.

A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. A “declarant” is a person who makes a statement. (c) Hearsay. “Hearsay” is 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 Notes of the Advisory Committee on Rules provide, in part: Subdivision (a). The definition of “statement” assumes importance because the term is used in the definition of hearsay in subdivision (c). The effect of the definition of “statement” is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.

Subdivision (c). The definition follows along familiar lines in including only statements offered to prove the truth of the matter asserted. McCormick § 225; 5 Wigmore § 1361, 6 id. § 1766. If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.

Emich Motors Corp. v. General Motors Corp., 181 F.2d 70 (7th Cir.1950), rev’d on other grounds 340 U.S. 558 , 71 S.Ct. 408 , 95 L.Ed. 534 [ (1951) ], letters of complaint from customers offered as a reason for cancellation of dealer’s franchise, to rebut contention that franchise was revoked for refusal to finance sales through affiliated finance company. The effect is to exclude from hearsay the entire category of “verbal acts” and “verbal parts of an act,” in which the statement itself affects the ¹⁶ legal rights of the parties or is a circumstance bearing on conduct affecting their rights. (Emphasis added.) After the Federal rules were adopted, but prior to the adoption of the Maryland Rules of Evidence, this Court decided Best v. State, 71 Md.App. 422 , 526 A.2d 75 (1987). In Best , police executed a search and seizure warrant for the premises of 688 Frenchtown Road in Cecil County, Maryland.

Id. at 425 , 526 A.2d 75 . While conducting their search, “the telephone in the house rang.” Id. at 430 , 526 A.2d 75 . A police detective answered the telephone. At trial, the detective testified to the conversation that ensued, id. at 430-31 , 526 A.2d 75 : “I picked up ‘phone.

I said, “Hello.” She said, “Horace?” I says, “Yeah.” She says, “This is Debbie. I got the money that I owe you” or something to that nature. She stated her name was Debbie. She said, “This is Debbie.” She said, “I got what I owe you.

Can I get the, can I get the same thing that I got last time?” And I said, “Yeah.” I says, “You got the money?” And she says, “Yeah. Can I get a gram?” I says, “Okay.” She said, “I’ll be right over.” And she said she was leaving from Delaware Park. At that point, that was the end of the ‘phone call.” He went on to testify that, “[s]hortly after the conclusion of this telephone conversation, a woman named ‘Debbie’ arrived at 688 Frenchtown Road looking for appellant.” Id. at 431 , 526 A.2d 75 . Best argued that the detective’s “testimony as to the substance of the telephone conversation was inadmissible hearsay.” Id.

The Court held, id. at 432 , 526 A.2d 75 : “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.” Ali v. State, 67 Md.App. 339, 343 , 507 A.2d 648 (1986). [The detective’s] testimony concerning his conversation with Debbie from Delaware was not offered in court for the truth ¹⁷ of what DeMie, the out-of-court asserter, said; rather, it was offered as evidence of the fact that the call was made. As such, [the detective’s] testimony was not hearsay at all, but evidence of a verbal act. United States v. Hansbrough, 450 F.2d 328, 329 (5th Cir.1971). Testimony concerning telephone calls made to or received at a particular location has been held admissible frequently in prosecutions for bookmaking and other gambling activities, where such testimony is offered not to establish the truth of what was said over the telephone, but as evidence that the calls were made to the location for the purpose of placing bets.

Courtney v. State, 187 Md. 1, 6 , 48 A.2d 430 (1946). See generally Annot., 13 A.L.R.2d 1409 (1950 & Later Case Service Supp. 1973), and cases there cited. Analogously, [the detective’s] testimony about the phone call in this case was offered as evidence that the call was made for the purpose of arranging an illegal drug transaction. The trial court did not err in admitting [the detective’s] testimony.

(Emphasis added.) Under Best , where testimony was not being offered to “establish the truth of what was said” but as “evidence” of a verbal act, such testimony did not meet the definition of a hearsay statement. After Best , the Court of Appeals adopted the Maryland Rules of Evidence which became effective on July 1, 1994, and which included Chapter 800, entitled “Hearsay.” The definitions applicable to Chapter 800 are set forth in Rule 5-801: (a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant.

A “declarant” is a person who makes a statement. (c) Hearsay. “Hearsay” is 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 Committee Note to Rule 5-801 provides: ¹⁸ 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. After adoption of the Maryland Rules of Evidence, this Court decided Holland v. State, 122 Md.App. 532 , 713 A.2d 364 (1998). In that case, a witness testified that, while in a motel room with appellant and others, either appellant or one of his companions announced, “We’re going down the strip to sell.” Id. at 545 , 713 A.2d 364 . The defense objected, arguing that the statement was hearsay.

Id. In its analysis, the Holland Court explored the definition of “assertion,” id. at 543-44 , 713 A.2d 364 : To qualify as hearsay, the words recounted in court must, for starters, constitute an assertion or statement of a fact. Many out-of-court utterances are self-evidently not assertions. If a "witness testifies to the out-of-court inquiry, “What time is it,” that inquiry is obviously not an assertion of anything.

For an out-of-court utterance to qualify as an assertion, it generally must be in the indicative or declarative mood, rather than in the interrogative mood, the imperative mood, or the subjunctive mood. An out-of-court assertion of a fact may be true or untrue. For that reason, its admissibility in evidence is problematic if offered to prove that fact. An out-of-court inquiry, “What time is it?” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem.

The out-of-court command, “Stop!” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem. The Court ultimately held, id. at 546 , 713 A.2d 364 : The words were offered as circumstantial evidence that either the appellant or the other codefendant who uttered them along with others who heard the words were privy to a ¹⁹ concerted plan to sell narcotics — on the strip or elsewhere, immediately or after the coast was clear. The very uttering of the words helped to show the state of mind of the one who uttered them and/or of others who heard them. As circumstantial evidence used to prove that collective state of mind, to wit, the conspiracy, the words were non-hearsay.

See L. McLain, Maryland Evidence, § 801.10. In 2005, the Court of Appeals decided Stoddard v. State, 389 Md. 681 , 887 A.2d 564 (2005). In that case, Erik Stoddard, the defendant, “was convicted of second degree murder and child abuse” resulting in the death of Calen DiRubbo. Id. at 683 , 887 A.2d 564 .

The evidence showed that Stoddard had been supervising DiRubbo and Jasmine Pritchett when the alleged incident occurred. Id. at 684 , 887 A.2d 564 . Jasmine’s mother testified, over appellant’s objection, that her daughter, after the incident, “asked [her] if Erik was going to get her.” Id. at 685 , 887 A.2d 564 . The State offered “this utterance as evidence that the child had witnessed Stoddard commit the murder,” id. at 683 , 887 A.2d 564 , and the defendant argued that the statement was inadmissible hearsay.

Id. at 685 , 887 A.2d 564 . The Court considered “whether the trial court erred in admitting testimony recounting an out-of-court utterance allegedly made by a non-testifying eighteen month old child.” Id. at 683 , 887 A.2d 564 . Before deciding this issue, the Court summarized the common law view of the “implied assertion doctrine” stating “that[,] where a declarant’s out-of-court words imply a belief in the truth of X, such words are hearsay if offered to prove that X is true.” Id. at 692 , 887 A.2d 564 . It explained, “In its original Wright v. Tatham form, the doctrine did not inquire into the declarant’s intent-beliefs communicated accidentally by implication are as much ‘implied assertions’ as beliefs expressed purposefully in an indirect manner.... [T]he doctrine also did not distinguish between words and non-verbal conduct.” Id. at 692-93 , 887 A.2d 564 .

According to the Court, “the 1973 adoption of the Federal Rules of Evidence, and the subsequent adoption by numerous ²⁰ states — including this State — of substantially similar rules” was “[p]erhaps the most significant development in the American judicial treatment of implied assertions.” Id. at 693 , 887 A.2d 564 . With the adoption of Federal Rule of Evidence 801(a) and its Advisory Committee Note, the drafters of the Federal Rules “expressly abolished the implied assertions doctrine with respect to non-verbal conduct not intended by the actor as a communication. As to words, the drafters were more equivocal while the Advisory Committee note to Fed.R.Evid. 801(a) states that ‘nothing is an assertion unless intended to be one.’ ” Id. Recognizing that “[t]he federal Advisory Committee note has been the source of disagreement in the courts and among scholars,” id. at 694 , 887 A.2d 564 , the Court then addressed the application of the implied assertion doctrine in Maryland, id. at 695 , 887 A.2d 564 : In the testamentary capacity case of Waters v. Waters, 35 Md. 531 (1872), this Court considered whether certain letters were admissible to show “the manner in which the testator was treated, in regard to matters of business ... by one well acquainted with him,” in order to establish the letter-writer’s opinions “in regard to the sanity of the testator, and his competency to transact business.” Id. at 543 .

In excluding the letters, the Court adopted the rule laid down in Wright v. Tatham, which had presented substantially the same factual scenario. Although “Maryland Rules 5-801(a), 5-801(c), and 5-802 are identical to the federal counterparts,” Maryland has adopted “the rule laid down in Wright v. Tatham,” while “many federal courts have rejected the Wright v. Tatham proposition that out-of-court words are hearsay when offered to prove facts that the declarant impliedly believed but did not intend to communicate.” Id. The Stoddard Court pointed out that “[t]he Committee note to Md. Rule 5-801