Green v. State

⁷⁴⁹ MOYLAN, Judge. In the late Professor Irving Younger’s classic illustration of forensic imprecision, the trial attorney, pressed to state a reason for objecting to an item of evidence, responds, “Because it is incompetent, irrelevant and immaterial.” That objection, of course, embraces the entire law of evidence. In Younger’s words, “It says absolutely everything and thereby says absolutely nothing.” In pursuit of greater particularity, the case now before us provides a textbook example of the differences among competence, relevance, and materiality. At issue is an out-of-court assertion which plausibly could have been offered for either of two pertinent purposes.

For one of those purposes, the assertion would have been hearsay; as such, it would have been both material and relevant but would also have been incompetent. For the other purpose, the same assertion would have been non-hearsay; in that very different capacity, it would have achieved competence and retained relevance but lost materiality. Either way, it was fatally flawed. The appellant, Richard Lee Green, was convicted by an Anne Arundel County jury of the armed robbery of a Texaco station in Glen Burnie on June 8, 1988, at approximately 9:25 P.M. At the consolidated trial in this case, the appellant was also being tried for an earlier armed robbery, that of another Texaco station in Ferndale that occurred just 25 minutes before the Glen Burnie robbery.

Because of the manner in which a courtroom identification was made by the victim of the Ferndale robbery, however, the trial judge granted a mistrial as to it. Upon this appeal, the appellant raises two contentions: 1. That the trial judge erroneously admitted into evidence an automobile license tag number offered to show probable cause for the appellant’s arrest; and 2. That the trial judge abused his discretion in granting a motion for a mistrial as to only one of two consolidated cases. ⁷⁵⁰ Because of our disposition of the first contention, the other is moot.

The Facts At approximately 9 P.M. on June 8, the armed robbery of the Ferndale Texaco station took place. Martin Springman, the attendant, was robbed of approximately $50 at gunpoint. Immediately after the robbery, a customer known to the attendant as “Al” (in fact, Alphonsis Fredicottis), ran to get a description of the getaway car. Al observed the license tag number and wrote it down on a folder, which he shortly thereafter gave to the police.

Al was not a witness at the trial. Thirty minutes after the Ferndale robbery, Martin Spring-man was taken by the police to Glen Burnie, where the appellant was then under arrest for the Glen Burnie robbery. In that show-up, Springman identified the appellant as the perpetrator of the Ferndale robbery. At approximately 9:25 that evening, less than half an hour after the Ferndale robbery, another Texaco station was held up in Glen Burnie.

James McMillan, the attendant at that station, was, at gunpoint, relieved of approximately $60 and a pair of gloves. When the appellant was arrested a few minutes after the Glen Burnie robbery and less than a block away, James McMillan was brought to the scene, where he promptly identified the appellant as his robber. McMillan also identified the appellant at trial. It was Officer Robert Martin who arrested the appellant almost immediately after the Glen Burnie robbery as the appellant’s car was stopped for a traffic light next to the Glen Burnie Texaco station.

The primary reason for Officer Martin’s stopping of the appellant was the police broadcast giving the description of the earlier Ferndale robber, a description of the getaway car, and the license tag number of that car. Approximately 30 minutes after having heard that broadcast, Officer Martin heard the radio report of the Glen Burnie robbery and its similar description of the robber there involved. When Officer Martin spotted the car ⁷⁵¹ bearing the license tag given for the getaway car of the similarly described Ferndale robber, he stopped the car and arrested the appellant. Following the arrest, a pellet gun, $132 in cash, and various items of clothing were recovered.

In short order, both robbery victims arrived at the arrest scene and identified the appellant. The appellant does not challenge the eminently proper consolidation of the two robberies for trial. The episodes were so intertwined that proof of involvement in either would have been admissible to help prove criminal agency with respect to the other. They were reciprocally relevant for purposes other than the showing of mere criminal propensity.

Harris v. State, 81 Md.App. 247 , 567 A.2d 476 , (1989). The Writing As An Out-Of-Court Assertion The only controversy in this case is over the admission into evidence of a piece of paper (possibly cardboard; it is described only as “a folder”) bearing the notation “VTB 983.” Officer Dennis Matteo testified that he responded to the scene of the Ferndale robbery and took the paper bearing the license number from the customer Al. When the State offered the paper in evidence, the trial judge, over the appellant’s objection, admitted it, stating, “I don’t think it’s hearsay. It’s an object ... physical object that was given to [the police officer].” At that point, the trial court seemed to be treating the paper as an item of real evidence rather than as a written assertion.

As a mere physical object, of course, the paper was meaningless and should have been rejected for its irrelevance alone. Without any accompanying explanation, the hieroglyphics contained thereon may have been, for all anyone knew, random scribblings, a winning (or losing) number on the Irish Sweepstakes, an Army serial number, an encrypted message, the combination to one’s bicycle lock, or a suite number at the Virginia Tourist Bureau (“VTB”). ⁷⁵² Without its contextual coloration and devoid of any assertive content, the thing itself had no more meaning than if A1 had handed the policeman a used candy bar wrapper. Its only significance was as a recordation of the Maryland license tag number of the getaway car. Its only value lay in that assertive character.

Deferring for the moment the issue of whether it was an out-of-court assertion offered for the truth of the thing asserted (and was, therefore, hearsay) or was an out-of-court assertion offered simply for the fact that it was heard or read by someone (the police team) and relied upon by them (and was, therefore, non-hearsay), we must first establish that it was, indeed, an out-of-court assertion. There is no difficulty in establishing the forum for the assertion as “out-of-court.” It emanated not from a witness on the stand on November 10, 1988, but from A1 at the Ferndale Texaco station on June 8, 1988. As an assertion, it was neither exclusively oral nor exclusively written but a combination of both. A1 began the assertion by saying to the policeman, in effect, “This is the Maryland license tag number of the getaway car I observed leaving the robbery scene____” The piece of paper handed to the policeman, in its turn, completed the message by adding, in effect, “... and that Maryland license number was ‘VTB 983.’ ” The fact that an assertion is wholly or partially in writing rather than oral does not erode its status as an assertion.

The treatise writers and the case law alike, largely in the context of defining “hearsay,” use the words “assertion” and “statement” essentially interchangeably. Federal Rule of Evidence 801(a) defines “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.” As Judge Eldridge noted for the Court of Appeals, in Kapiloff v. Locke, 276 Md. 466, 471 , 348 A.2d 697, 700 (1975), “The mere fact that the statement is reduced to ⁷⁵³ writing does not change its character as hearsay, or bring it within an exception to the hearsay rule.” See also Heil v. Zahn, 187 Md. 603, 608 , 51 A.2d 174, 177 (1947); L. McLain, Maryland Evidence § 801.1, at 271 (1987) [hereinafter cited as McLain ]. We ourselves observed in Gray v. State, 53 Md.App. 699, 712 , 456 A.2d 1290, 1298 (1983): “[T]he fact that the words on the note were written rather than spoken is of no significance. That a message was sent and was received is the thing of significance, not the medium of the message.

If an eavesdropper had overheard the very message that was contained in the note and had testified to that fact in court, the analysis that follows would not be different.” The out-of-court assertion made by Al, partly orally and partly in writing, was, “The driver of the car bearing Maryland tag number YTB 983 is the robber of the Fern-dale Texaco station.” That assertion might have been offered for two different purposes. For the Truth of the Thing Asserted If the out-of-court assertion had been offered for the truth of the thing asserted, it would have been, by definition, hearsay. Its admissibility would have depended upon 1) its relevance, 2) its materiality, and 3) its competence (or trustworthiness). A. Its Relevance: McLain § 401.1, at 261, defines “relevance”: “The term ‘relevance’ refers to the required relationship between the evidence offered and the fact it is offered to prove____ Evidence is relevant if it has any tendency to make existence of a material fact more probable or less probable than it would be without the evidence.” See also Kennedy v. Crouch, 191 Md. 580, 585 , 62 A.2d 582, 585 (1948); Blondes v. Hayes, 29 Md.App. 663, 668 , 350 A.2d 163, 165-166 (1976); Williamson v. State, 25 Md.App. ⁷⁵⁴ 338, 345, 333 A.2d 653, 657 (1975); Gray v. State, 10 Md.App. 478, 487 , 271 A.2d 390, 396 (1970).

The fact that the car of which the appellant was found behind the wheel at 9:30 P.M. was the getaway car that had carried the robber from the scene of the Ferndale robbery 30 minutes earlier would have been highly relevant or probative if offered to prove that the appellant had perpetrated the Ferndale robbery. The fact that the appellant, in that car, had perpetrated the Ferndale robbery would have been significantly relevant or probative if offered to prove that the appellant, in the same car, had also perpetrated the Glen Burnie robbery 25 minutes later. The relevance of the out-of-court assertion if offered to prove that the appellant had perpetrated either or both of those robberies would, thus, have been indisputable. B. Its Materiality: McLain § 401.1, at 261, defines “materiality”: “[T]he term ‘materiality’ refers to the required relationship between that fact and an issue which is the proper subject of proof in the case. ...

A material fact is a fact that is of legal consequence to the determination of the issues in the case.” (Footnote omitted). See also Paige v. Manuzak, 57 Md.App. 621, 632 , 471 A.2d 758, 763 (1984); Staley v. Staley, 25 Md.App. 99, 106 , 335 A.2d 114, 119 (1975). Upon the trial of the appellant for the Ferndale robbery, the issue of whether he perpetrated that robbery was quintessentially material; it was, indeed, the ultimate issue in the case. Upon the trial of the appellant for the Glen Burnie robbery, the issue of whether the appellant had perpetrated another robbery of another Texaco station 25 minutes earlier and in the same car would have been significantly material, even if not quite as quintessentially so.

Had the out-of-court declaration been offered as relevant evidence to prove either or both of those issues, the materiality of the issues would also have been indisputable. ⁷⁵⁵ C. Its Competence: That the out-of-court assertion under discussion was neither offered nor received to show the truth of the thing asserted does not foreclose our consideration of the hearsay question. Had the evidence been admissible as hearsay, we would affirm the trial judge’s ruling on admissibility even though he relied upon a different evidentiary theory. A ruling generally will be affirmed even when the ruling is right for the wrong reason. If it had been offered to show the truth of the thing asserted, however, this out-of-court assertion would have foundered on the shoals of the competence (trustworthiness) requirement.

It would have been, by definition, hearsay. A traditional definition of hearsay typically begins, “An out-of-court assertion, written or oral, offered in court to prove the truth of the thing asserted and then goes on to state the critical criterion for admissibility, “... and thus