Gordon v. State

ADKINS, J. In order to convict Michael Gordon of third-degree sex offense, the State had to prove that he was at least twenty-one years old at the time he had the alleged inappropriate contact ■with a fourteen-year-old girl. The State sought to do that through the testimony of a police officer who had an opportunity to examine Gordon’s driver’s license and to see the date of birth listed there. Gordon objected to that testimony on hearsay grounds, but the State argued that, even if the date of birth was hearsay, it was admissible as an adoptive admission of a party-opponent under Maryland Rule 5-803(a)(2). Under the State’s theory, because Gordon provided the license to the officer upon request, it was as if he himself had stated his age.

The trial court agreed with the State and allowed the detective to testify. We affirm. STATEMENT OF FACTS The events giving rise to Gordon’s charges and convictions took place on January 10, 2010. That day, a fourteen-year-old girl was shopping at a Pacific Sunwear Store in the St. Charles Towne Mall, where Gordon worked.

In Gordon’s presence, she tried on a pair of pants in a fitting room. At one point, Gordon “asked to touch parts of [the girl’s] body and proceeded to insert his finger in her vagina.” He later ⁵³⁰ “pulled his penis out and asked if she would perform fellatio on him,” but she declined. Gordon was interviewed about this incident by Detective Kenneth Klezia on January 14, 2010. Detective Klezia did not recall expressly asking Gordon for his date of birth, but upon request for identification, Gordon produced his Florida driver’s license.

Additionally, Detective Klezia had an earlier opportunity to observe Gordon’s driver’s license, when he visited Pacific Sun on an unrelated incident on January 9, 2010. Likewise, on that day, Gordon produced his Florida driver’s license to Detective Klezia upon request. Gordon was charged with-and tried on the counts of third-degree sex offense and sexual solicitation of a minor. 1 In order to satisfy the age element of the charge for the third-degree sex offense, the State had to prove that Gordon was “at least 21 years old” at the time of the offense. Md.Code (2002 & 2010 Cum.Supp.), § 3-307 of the Criminal Law Article.

To satisfy that element, the State called Detective Klezia to the stand. He testified that he had “personal knowledge” of Gordon’s age from Gordon’s “Florida Driver’s License.” When Gordon objected to this evidence as hearsay, the State sought to justify the testimony under the adoptive admission by a party-opponent exception to the hearsay rule under Rule 5-803(a)(2). According to the State, by providing the driver’s license to Detective Klezia, Gordon was “manifesting a belief that [the driver’s license, prepared by the Florida Motor Vehicle Administration] is a true document,” and that the date of birth stated on it was correct. The Circuit Court for Charles County found this argument persuasive and overruled Gordon’s objection, allowing Detective Klezia to continue to testify about Gordon’s age. 2 At the ⁵³¹ conclusion of the trial, the jury convicted Gordon on both counts, and he was sentenced to ten years of imprisonment, with all but one year suspended.

Gordon appealed to the Court of Special Appeals. The intermediate appellate court affirmed Gordon’s convictions, holding “that Detective Klezia’s testimony was admissible pursuant to the exception to the hearsay rule for adoptive admissions set forth in Md. Rule 5-803(a)(2).” Gordon v. State, 204 Md.App. 327, 344 , 40 A.3d 1093, 1102 (2012). Gordon filed a petition for a writ of certiorari, which we granted, together with the State’s cross-petition. Gordon v. State, 427 Md. 606 , 50 A.3d 605 (2012).

The parties present three questions for our review: one dealing with the adoptive admission exception and two questions concerning the public records exception to the hearsay rule. We do not reach the two questions concerning the public records exception 3 because we resolve this case by answering the first question: Whether, and if so, under what circumstances, an individual who presents a driver’s license in response to a request for identification by a law enforcement officer manifests an adoption or belief in the truth of information contained in the license for purposes of the hearsay exception for adoptive admissions set forth at Maryland Rule 5-803(a)(2)? ⁵³² DISCUSSION The only evidence of Gordon’s age — a crucial element of his conviction of third-degree sex offense — was Detective Klezia’s testimony that, according to Gordon’s driver’s license, he was twenty-seven years old at the time of the offense. The trial court admitted that testimony over Gordon’s objections, finding that, when Gordon provided his license to the Detective, he “manifested an adoption or belief’ in the truthfulness of the information listed there, including the date of birth. The parties ask us to decide whether Gordon did indeed manifest such an adoption or belief, making his age admissible under the admission of a party-opponent exception to the hearsay rule set forth in Rule 5-803(a)(2). 4 Standard of Review Gordon and the State do not agree on the standard of review appropriate in this case.

Gordon argues that we should review the trial court’s entire ruling de novo, while the State advocates for an abuse of discretion standard for reviewing the trial court’s conclusion that Gordon manifested an adoption or belief in the truth of the information listed on the driver’s license. That the parties disagree is not surprising. Courts across the country have grappled with articulating the standard of review for hearsay rulings. Although the concept of hearsay evidence has been around for centuries, 5 there is “a split of authority among ... jurisdictions on how evidentiary rulings addressing admissibility under the hearsay rule and its exceptions are to be reviewed.” State v. Saucier, 283 Conn. 207 , 926 A.2d 633, 639 (2007). 6 There are also inconsistencies ⁵³³ ■within jurisdictions.

Just last year, a judge on the United States Court of Appeals for the Sixth Circuit observed with frustration that “decisions show one panel after another disagreeing with each other in published opinions discussing” the standard of review for hearsay rulings. United States v. Clay, 677 F.3d 753, 754 (6th Cir.2012) (Kethledge, J., dissenting). He urged his court “to clean up our law on this issue.” Id. In Maryland, the standard of review for hearsay rulings has undergone some evolution in the past decade.

As we analyze our precedents below, we discern that a judge’s hearsay ruling involving an adoptive admission has two components, and our standard of review differs as to each one. Gordon and the State concur on two basic points. First, they agree that ordinarily a trial court’s rulings on the admissibility of evidence are reviewed for abuse of discretion. See Hopkins v. State, 352 Md. 146, 158 , 721 A.2d 231, 237 (1998).

They also agree that “[w]hether evidence is hearsay is an issue of law reviewed de novo.” Bernadyn v. State, 390 Md. 1, 8 , 887 A.2d 602, 606 (2005). Beyond these general propositions, the parties’ views diverge. Unhappy with the trial court’s ruling, Gordon maintains that we should give the trial court’s ruling no deference and review it de novo. In support of this assertion, he cites our seminal case, Bernadyn, in which we held that a medical bill seized by police at a crime scene and addressed to “Michael Bernadyn” at the same address, constituted hearsay, when used to prove that Bernadyn lived there.

Id. at 3 , 887 A.2d at 603 . Judge Raker, writing for the Court, explained that — unless a hearsay exception applied — the trial court “has no discretion to admit hearsay” and explained that “[w]hether evidence is hearsay is an issue of law reviewed de novo.” Id. at 8 , 887 A.2d at 606 . ⁵³⁴ The State does not attach the same significance to this statement in Bemadyn as does Gordon. It reads Bemadyn narrowly — as setting forth a de novo standard of review only for legal determinations of whether evidence is hearsay, but not for decisions about whether a hearsay exception applies. 7 According to the State, “[t]he evaluation of whether Gordon adopted the statement through his conduct ... is not a legal question, [rather it] involves a weighing of the evidence, which is reviewed under the more deferential abuse of discretion standard.” In support of this argument, the State cites Brown v. The Daniel Realty Co., 409 Md. 565 , 599 n. 26, 976 A.2d 300 , 320 n. 26 (2009), in which we characterized a trial court’s determination that certain “deposition testimony was the vicarious admission of Petitioner” as a “factual determination,” and a pre Bemadyn case in which we utilized the abuse of discretion standard of review, Key-El v. State, 349 Md. 811, 813 , 709 A.2d 1305, 1305 (1998), overruled by Weitzel v. State, 384 Md. 451 , 863 A.2d 999 (2004). The State also cites several federal cases.

See, e.g., United States v. Pulido-Jacobo, 377 F.3d 1124, 1132 (10th Cir.2004) (“Our review is even more deferential where the evidentiary ruling concerns the admissibility of what is claimed to be hearsay evidence.” (citation and quotation marks omitted)). The parties’ divergent views about the standard of review likely stem from the nature of hearsay rulings. On the one hand, hearsay rulings are evidentiary rulings, which are typically subject to review for abuse of discretion. Accordingly, ⁵³⁵ Maryland’s older cases almost always treated the admissibility of hearsay evidence as an issue left to “the discretion of the trial judge” and spoke of reviewing hearsay rulings for abuse of discretion. 8 See Jacobs v. State, 45 Md.App. 634, 653 , 415 A.2d 590, 600 (1980) (“When dealing with the rule against hearsay and its exceptions according to common law evidentiary principles, admissibility is a question addressed exclusively to the discretion of the trial judge.... ”); Pratt v. State, 39 Md.App. 442, 456 , 387 A.2d 779, 788 (1978) (“[W]e are unable to say the trial judge abused his discretion in admitting the records.”), aff'd, 284 Md. 516 , 398 A.2d 421 (1979).

On the other hand, under the rules of evidence, hearsay rulings are not discretionary. See Md. Rule 5-802. (“Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.”). Judge Raker clarified in Bemadyn that we would review a trial court’s legal conclusions on hearsay evidence without deference: 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. ⁵³⁶ 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. (Citation omitted). 390 Md. at 7-8 , 887 A.2d at 606 ; see also J.L. Matthews, Inc. v. Md.-Nat’l Capital Park & Planning Comm’n, 368 Md. 71, 92 , 792 A.2d 288, 300 (2002) (trial court’s admission of hearsay “enjoys no presumption of correctness on review and is not entitled to any deference”) (alterations, citation, and quotation marks omitted).

Since Bemadyn, we have reiterated time and again that determinations of hearsay admissibility are subject to review on the law. See, e.g., Thomas v. State, 429 Md. 85, 97-98 , 55 A.3d 10, 17 (2012); Dulyx v. State, 425 Md. 273, 285 , 40 A.3d 416, 426 (2012); Parker v. State, 408 Md. 428, 436 , 970 A.2d 320, 325 (2009); Figgins v. Cochrane, 403 Md. 392, 419-20 , 942 A.2d 736, 752 (2008); Hall v. Univ. of Md. Med. Sys. Corp., 398 Md. 67, 82-83 , 919 A.2d 1177, 1186 (2007).

But not all aspects of a hearsay ruling need be purely legal. A hearsay ruling may involve several layers of analysis. Proponents of the evidence challenged on hearsay grounds usually argue (1) that the evidence at issue is not hearsay, and even if it is, (2) that it is nevertheless admissible. The first inquiry is legal in nature.

See Bernadyn, 390 Md. at 8 , 887 A.2d at 606 . But the second issue may require the trial court to make both factual and legal findings. For instance, in determining whether evidence is admissible under the excited utterance exception to the hearsay rule, codified in Rule 5-803(b)(2), the trial court looks into “the declarant’s subjective state of mind” to determine whether “under all the circumstances, [he is] still excited or upset to that degree.” 6A Lynn McLain, Maryland Practice: Maryland Evidence State & Federal § 803(2):l(c) (2d ed.2001). It considers such factors, as, for example, how much time has passed since the event, whether the statement was spontaneous or prompted, and the nature of the statement, such as whether it was self-serving.

Id. Such factual ⁵³⁷ determinations require deference from appellate courts. 9 This is not the first case in which we have examined how the multi-dimensional nature of hearsay determinations plays out in terms of appellate review. In State v. Walker, decided before Bernadyn, the Court held that rulings on the residual exception to the hearsay rule were subject to de novo review as a matter of law. 345 Md. 293, 325 , 691 A.2d 1341, 1356 (1997). In writing for the Court, Judge Wilner explained: “Some of the subsidiary determinations made by a trial court in arriving at its findings and conclusions [about the residual exception] may well be purely factual or discretionary ones, and, as to them, we will continue to apply a clearly erroneous or abuse of discretion standard.” 10 Id.

Many of our sister states take a two-part approach in reviewing hearsay rulings as well. For instance, the Iowa courts “review the admission of hearsay for errors at law, not for abuse of discretion[, but] give deference to the [trial] ⁵³⁸ court’s factual findings and uphold such findings if they are supported by substantial evidence.” State v. Long, 628 N.W.2d 440, 447 (Iowa 2001) (citation omitted). Likewise, the Nebraska courts “review[ ] for clear error the factual findings underpinning a trial court’s hearsay ruling and review[] de novo the court’s ultimate determination to admit evidence over a hearsay objection.” State v. McCave, 282 Neb. 500 , 805 N.W.2d 290 , 316 (2011); see also Brown v. United States, 27 A.3d 127, 130-31 (D.C.2011) (the de novo standard of review governs review of legal rulings on whether a hearsay statement falls within an exception, but “the underlying factual findings” are subject to the “clearly erroneous” standard (citations omitted)), cert. denied, — U.S.-, 133 S.Ct. 374 , 184 L.Ed.2d 221 (2012); Young v. Commonwealth, 50 S.W.3d 148, 167 (Ky.2001) (“[W]hen the determination [of whether a hearsay exception applies] depends upon the resolution of a preliminary question of fact, the resolution is determined by the trial judge ... on the basis of a preponderance of the evidence, and the resolution will not be overturned unless clearly erroneous, i.e., unless unsupported by substantial evidence.” (citation omitted)). Under this two-dimensional approach, the trial court’s ultimate determination of whether particular evidence is hearsay or whether it is admissible under a hearsay exception is owed no deference on appeal, but the factual findings underpinning this legal conclusion necessitate a more deferential standard of review.

Accordingly, the trial court’s legal conclusions are reviewed de novo, see Bernadyn, 390 Md. at 7-8 , 887 A.2d at 606 , but the trial court’s factual findings will not be disturbed absent clear error, see State v. Suddith, 379 Md. 425, 430-31 , 842 A.2d 716, 719 (2004) (and citations contained therein). The sticky wicket in this case is deciding whether the trial court made a factual or legal conclusion in ruling that, in handing the officer his driver’s license in response to a request for identification, Gordon made an adoptive admission. An examination of the evidentiary record is required. First though, a brief explanation of Rule 5-803(a)(2) is in order. ⁵³⁹ The Admission by a Party-Opponent Exception Rule 5-803 provides that a “[statement by party-opponent” is “not excluded by the hearsay rule, even though the declarant is available as a witness,” when the party-opponent “has manifested an adoption or belief in [the] truth” of that statement. 11 This exception, known as an “adoptive admission,” can apply in multiple situations.

For instance, in Richardson v. Anderson, the defendant’s statement that the accounting report “was correct except as to two items contained therein” made the report itself “admissible as an admission of the defendant.” 109 Md. 641, 649 , 72 A. 485 , 488 (1909). In Brandon v. Molesworth, the defendant employer adopted the statement of an employee by nodding in agreement, when the employee acknowledged that the plaintiff was fired, in part, because she was a woman. 104 Md.App. 167, 196 , 655 A.2d 1292, 1307 (1995), aff'd in part, rev’d in part, 341 Md. 621 , 672 A.2d 608 (1996); see also Ewell v. State, 228 Md. 615, 619-21 , 180 A.2d 857, 860-61 (1962) (defendant’s failure to respond, under the circumstances, when companion said “we just yoked a man,” was admissible). In many, if not most, circumstances, a trial court’s decision about whether a person made an adoptive admission will be factual. This is certainly so when there are disputed facts about whether a question was asked, what was said, and what ⁵⁴⁰ words or non-verbal conduct were involved in reply.

For instance, in Ewell v. State, it was not clear who asked the co-defendants “what they were doing” or who replied “we just yoked a man.” 228 Md. at 617 , 180 A.2d at 859 . Defendant Ewell testified “that no question had been asked and that neither he nor the codefendant had replied to a question.” 12 Id.; see also Brandon, 104 Md.App. at 177, 196 , 655 A.2d at 1297, 1307 (the defendant disputed both the statement and his nod in agreement). 13 Even if there is no dispute about what was said or done, the decision of whether there was an adoptive admission may still be factual when the circumstances allow different inferences depending on the trial court’s interpretation of those facts. In Darvish v. Gohari, the defendant was asked to confirm certain statements the plaintiff alleged were defamatory, but made no attempt to refute that he made the statements or that they were untrue. 130 Md.App. 265, 270 , 745 A.2d 1134, 1136-37 (2000), aff'd, 363 Md. 42 , 767 A.2d 321 (2001). The Court of ⁵⁴¹ Special Appeals affirmed the trial court’s conclusion that the defendant’s silence constituted tacit adoption of the statements because “a reasonable person under the circumstances” would have denied the statements.

Id. at 278-79, 745 A.2d at 1141 ; see also Henry v. State, 324 Md. 204, 240 , 596 A.2d 1024, 1042 (1991) (affirming the trial court’s admission into evidence of statements about recent murders, which were made in the defendant’s presence while the defendant and others were “dancing or jumping up and down, ‘pretending that they were like firing shots.’ ”); Burgess v. State, 89 Md.App. 522, 535, 537 , 598 A.2d 830, 837, 838 (1991) (defendant’s “giggling,” while “tossing a rock in his hand,” at the statement “let’s introduce my Man Mad Ball to the bridge” constituted an adoptive admission that defendant was familiar with the activity of throwing rocks at cars from a bridge). Gordon’s Adoptive Admission of His Date of Birth Although Gordon did not verbally state how old he was, the trial court found that, by handing his license to Detective Klezia in response to a request for some verification of his identity, Gordon manifested an adoption or belief in the truth of the information listed there, including the date of birth. 14 Thus, the trial court concluded, this hearsay statement fell within the party-opponent statement exception to the hearsay rule as an adoptive admission allowed under Rule 5-803(a)(2). The trial court’s ruling was two-fold: (1) the court found that Gordon’s act of handing the license to Detective Klezia manifested an adoption by Gordon of the date of birth listed on the license; and (2) the court concluded that the detective’s statement was admissible under the party-opponent statement exception set forth in Rule 5-803(a)(2). The following sets forth in full the evidence about Gordon’s age that the trial court had before it in making the first part of the ruling: ⁵⁴² [MR.

GRANADOS — Prosecutor]: Now, Detective Klezia, can you tell the ladies and gentlemen of the jury when you first came into contact with Mr. Gordon? [DETECTIVE KLEZIA]: That’s gonna be the — the 9th of January, 2010. Q: Now, when you spoke with Mr. Gordon on January 9th of this year did he give you his date of birth? A: I looked at his identification; so yes. Q: Okay.

How old is Mr. Gordon? MR. REVILLO [Defense Counsel]: Objection. THE COURT: Come up please Counsel.

(Counsel approach[ ] the bench.) MR. REVILLO: Well, Your Honor, his age would be an element of this case and therefore it requires ... firsthand information and the identification is hearsay. MR. GRANADOS: But this information was provided to him by the Defendant.

He showed him the I.D. That’s at most an adoptive admission. THE COURT: What type of I.D. are we talking about? MR. GRANADOS: I can ask the Detective.

I believe it’s a Driver’s License. THE COURT: I’m gonna sustain the objection at this point. Please go forward. Ask another question.

(Counsel return[ ] to trial tables.) [MR. GRANADOS]: Detective Klezia, do you have any personal knowledge of Michael Gordon’s age? [DETECTIVE KLEZIA]: Yes. Q: How did you come to know his age? A: From his Florida Driver’s license.

Q: Okay. Did you ever confirm his date of birth with him? A: Like specifically ask him? Q: Yes. ⁵⁴³ A: I don’t recall.

I don’t think. Q: When you interviewed him — when was the next time you had contact with him? A: I interviewed him on the 14th of January, 2010. Q: Okay.

And where did you interview him? A: At the Charles County Sheriffs Office Headquarters Building. Q: And who was there with you during the interview? A: It was just him and I. Q: And again, did you obtain a date of birth or an age for Mr. Gordon?

A: Yes, just through his Driver’s License. Q: Okay. Who provided the Driver’s License to you? A: Mr. Gordon did.

Q: Did you obtain any other personal identifying information from him? A: Not off hand; no. * * * Q: Okay. And the information that you obtained from Mr. Gordon how old was Mr. Gordon? MR.

RIVIELLO: Objection. THE COURT: Detective is — am I correct to assume you never asked him his — his—his birth? A: I don’t recall specifically asking him for a date of birth but. THE COURT: All right.

And the information you have is — is what he showed you; some document he showed you, a Driver’s License? A: Yes. Yes, Sir. 15 ⁵⁴⁴ Gordon maintains that there was “no basis in the record for inferring that [he] produced his driver’s license in response to Detective Klezia asking him his age.” He emphasizes that, for the exception under Rule 5 — 803(a)(2) to apply, the manifestation of an adoption or belief must be unambiguous. See Bellamy v. State, 403 Md. 308, 326 , 941 A.2d 1107, 1117 (2008) (speaking