Marquardt v. State

KENNEY, Judge. A jury sitting in the Circuit Court for Talbot County convicted Joseph William Marquardt, Jr., appellant, of two counts of second degree assault, two counts of fourth degree burglary, three counts of malicious destruction of property, and one count of false imprisonment. Appellant was sentenced to a total of twenty-three years and four months’ incarceration and ordered to pay restitution in the amount of $490.75. He presents four questions on appeal, which we have slightly rephrased as follows: 1.

Did the circuit court err in admitting hearsay in violation of appellant’s right to confrontation? 2. Did the circuit court err in refusing to instruct the jury on the defenses of necessity, self-defense, and mistake of fact? 3. Did the circuit court err in refusing to propound appellant’s requested voir dire questions? 4. Did the circuit court err by not merging appellant’s sentences for malicious destruction of property into his sentences for burglary?

We agree that, under the facts of this case, separate sentences for malicious destruction of property and fourth degree burglary should not have been imposed. In all other respects, we affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL HISTORY Appellant met his wife, Catherine Burns, about three years prior to the night of March 16, 2003. When they met, they ¹¹⁰ both abused alcohol and drugs.

Appellant entered a treatment program in September 2002, and testified that he had not used drugs since that time. Appellant also attempted unsuccessfully to obtain help for Burns, calling her parole officer, his parole officer, his rehabilitation counselor, the Family Assistance Network, Social Services, Memorial Hospital at Easton, the State’s Attorney’s Office, and Burns’ parents. He asked clerks at the District Court of Maryland for Talbot County and the Circuit Court for Talbot County about an emergency petition, but was told such an order could not be issued unless Burns had been suicidal in the last 48 hours. Appellant was told to stay away from Burns and to “worry about [his] own self.” In the weeks leading up to March 16, 2003, appellant decided to stop calling Burns and would not take phone calls from her.

On March 12, 2003, Burns left a message on appellant’s cell phone saying she was at the hospital. Appellant originally “wasn’t going to return the call and then ... said no, I got to call her at the hospital. I’ve got to see what’s wrong with her.” He went to the hospital and learned that Burns was pregnant. Appellant was initially unhappy about the pregnancy because he thought Burns was a “crack addict.” He had a prior experience with a girlfriend’s grandson who was a “crack baby” who was “almost eight years old and never walked, talked ... [and was] fed through a tube in his stomach.” But, appellant reconciled with Burns, and the two made plans to celebrate the pregnancy on March 14, 2003.

When appellant returned from work that night, Burns was missing and would not return his phone calls. He searched for two days, and on March 16, 2003, he called a number that Burns had stored in his cell phone for the residence of Robert Lambert. When the man who answered denied knowing Burns, appellant told him: “I’m the last person that you want to get riled up right now. I’m not in no mood for it.

I’ve been looking for her for two days.” Appellant offered $100 to anyone who could provide him with the location of his wife. Shortly thereafter, he was told ¹¹¹ he could find Burns at an apartment building on Bay Street in Easton, Maryland. At around 9:30 p.m. on the night of March 16, 2003, appellant broke the glass of the front door at 17 Bay Street, put his hand inside the house, and tried unsuccessfully to unlock the door. Appellant “thought that was the place where [Burns] would be at.

Because her car was parked closer to that building several weeks before.” William Lacates, who lived at that address, asked appellant who he was and what he was doing. Appellant told Lacates he was looking for Burns. Lacates replied that no one by that name lived there. Lacates’ mother, Robin Patrick, also told appellant that Burns had never been at their residence.

Appellant told them that Burns was pregnant with his child, smoking crack cocaine, and that he “wanted to put her into rehab.” After 10 or 15 minutes, appellant realized he was at the wrong address, apologized, and offered to pay for the damage to the door. He also requested that Lacates and Patrick not call the police. Appellant’s demeanor was described as “[a]ggressive, angry perhaps,” but he never threatened to injure anyone in the house. Appellant proceeded to an apartment building located at 13 Bay Street.

Burns was visiting Lambert in apartment 1, and, according to Lambert, the two had smoked crack cocaine that night. Appellant recalled that there was a set of doors in front of going into the apartment, into the hallway like a vestibule there. I knocked one of the panes out because it was locked. I unlocked that door and went in ...

As soon as I got through the french doors, I went to Apartment 1 and there was like four big panels on the door and I knocked one out closest to where, away from the hinges, closest to where the locks would be up top. Appellant used a baseball bat to break through the door and saw Burns sitting on the couch with what he believed to be a crack pipe in her hand. 1 As appellant was reaching through ¹¹² the door, Lambert “jumped up off the other end of the couch” and started running toward him. Appellant testified that he saw something in Lambert’s hand and “wasn’t going to take a chance,” so he hit him once in the head with the baseball bat. Lambert testified that the last thing he could remember from the night of March 16, 2003, was fixing food in the kitchen.

His next memory was waking up at the University of Maryland’s Shock Trauma Center with “total loss of hearing in [his] left ear.” 2 During trial, Lambert testified that he was still deaf in his left ear, and he was suffering from depression. Lambert recalled a telephone call from appellant a few days earlier during which appellant had threatened, “if I come over and find Cathy in your apartment I will kill you,” but he had never met appellant before. Lambert was asked at trial whether he had a knife in his hand when he was preparing food in the kitchen, and he replied that he “may have had a butter knife with [him] at the time.” After appellant struck Lambert, he grabbed Burns and “halfway drug” her back to his truck. The two struggled with each other inside the truck.

According to appellant, [Burns] kept trying to struggle. We were going down the road and I was hollering. You know, I lost it. I was, I was screaming.

I was hollering. And she was trying to get away from, I thought she was going to jump out of the truck. I was trying to hold on [to] her. And I slapped her a few times to try to calm her down, stop her from what, from trying to get out or whatever.

Appellant “slapped her” on “the upper body, the upper torso [area].” 3 Eventually, near Route 50 and Chapel Road, Burns knocked the truck out of gear, and when appellant tried to ¹¹³ grab the gearshift, Burns reached over and shut the ignition off. While appellant was trying to restart the truck, Burns jumped out. She ran toward the median, and appellant drove away. At approximately 10:06 p.m., Officer James Cathcart was driving down Chapel Road toward Route 50 in a marked patrol vehicle when a motorist flagged him down. 4 As a result of information he received from the motorist, Officer Cathcart drove west on Route 50.

He saw a man get into a small white truck on the shoulder of eastbound Route 50 and drive away. When Officer Cathcart stopped his vehicle, he heard a woman’s voice calling for help. He found Burns lying on a grassy portion of the median. Burns was without clothes from the waist up and had “what seemed to be blood on her face.” She was “emotionally upset,” crying to “the point where she was hysterical,” and would not talk to Officer Cathcart.

He radioed for an ambulance and for an additional unit to come to the scene. Officer Cathcart put Burns into his patrol car and attempted to calm her down. Still crying, she only gave “bits of information.” She told Officer Cathcart that her name was Catherine, that appellant had “assaulted her,” that he lived on “Chapel Road,” and that “she was at her friend’s house, Robert Lambert, on Bay Street.” An ambulance arrived and took Burns to the hospital. Officer Cathcart interviewed Burns at the hospital about one half hour after he had found her.

Burns told Officer Cathcart the following: [S]he was over a friend’s house, Robert Lambert. Her husband came over. Kicked down the door. Hit Mr. Lambert in the head with a baseball bat.

She continued to .tell me that after Mr. Lambert got hit with the baseball bat he had fell. And then [appellant] hit Ms. Burns with the baseball bat and dragged her out to his truck. Which was ¹¹⁴ located outside. She said they got into the truck.

They headed onto Route 822 which was the bypass. [Appellant] stopped the truck around Ruby Tuesday’s that area. Pulled her out of the truck. Started hitting her some more. Ms. Burns told me that she dialed 911 and left the cell phone on so that way the dispatch or whoever could hear her screaming, so she could yell out a location where they were at.

They got back in the truck headed back, headed onto Route 322 northbound towards Route 50, heading towards Black and Decker area. They made a right onto Route 50 heading eastbound. Ms. Burns told me they stopped the truck, [appellant] stopped the truck. After clarifying that Burns’ account of the incident was in response to a question, Officer Cathcart continued, Okay, they made a right on Route 50. [Appellant] stopped the truck in between Route 322 and Joppa Road on the eastbound lane of Route 50 on the shoulder.

He then, Ms. Burns then told me that [appellant] dragged her out of the truck into the ditch and started hitting her again. Started choking her. Ms. Burns told me that when [appellant] was choking her that he said, I’m going to kill you. Started choking her again.

Ms. Burns said that [appellant] fell. She got up, ran across eastbound traffic into the median, and that’s when I pulled up. And that’s when [appellant] got into his truck and left. Sergeant Jarrell of the Easton Police Department, along with several other police officers, went to appellant’s home to arrest him.

The officers located appellant’s vehicle behind the house and were given consent by appellant’s house-mate to enter the residence. When Patrolman First Class Robert Bayliss announced that he was going to send his K-9 partner “Nitro” into the house, appellant “came out of the living room with his hands up stating that he was surrendering.” Officer Charles Frampton transported appellant to the police station. Appellant told Officer Frampton that his wife had been smoking crack with Lambert and that he had called Lambert earlier that day and told him to stay away from her. As ¹¹⁵ Officer Frampton was placing appellant in a holding cell, appellant asked: “[W]hat would you have done?” Officer Greg Fellow testified that he responded to 13 Bay Street and “[s]aw that the glass double doors that lead into the apartment building had one pane broken out of it.

There was glass all over the floor.” 5 He also “noticed that the apartment number 1, which is the first door on the left, had the top panel broken out of it and there was wood pieces all over the ground, all over the floor, inside and outside the apartment.” A steak knife and blood were observed on the floor in the living room and more blood was found in the kitchen. Officer Fellow saw Lambert and described him as having “cuts on his head and hands and ... a j shaped red mark star[t]ing from the corner of the eye and working its way out to the ear. He also had blood coming out of his [left] ear.” Lambert “[c]ouldn’t recall a lot of things. He had problems processing questions.” No evidence of drugs or drug paraphernalia was recovered from Lambert’s residence.

Detective Yvonne Freeman met with Burns at the hospital. According to Detective Freeman, “Ms. Burns was very upset. She was crying____ She had bruises on her, I think around [the] neck. She had some bruises on her face ... [and] there were some bruises on her arms.” After Detective Freeman left the hospital, she proceeded to the Easton police station where appellant was being detained.

Appellant was read his Miranda rights and interviewed by Detective Freeman and Detective Gregory Hall. 6 Appellant’s statement was consistent with the facts set out above. A transcript of the statement was admitted into evidence at trial. As the investigating officer, Detective Hall went to the 911-call center and received a tape recording (“the 911 recording”) ¹¹⁶ of a phone call made on the night of March 16, 2003. In the 911 recording, the dispatcher attempted to establish a conversation with the caller, but all that can be heard is appellant’s and Burns’ discourse inside the truck.

Appellant yelled at Burns, asking her where she has been, and shouted numerous times, “You want to smoke crack and you’re pregnant?” Burns asks appellant throughout the 911 recording to “please stop hitting” her and not to hurt her. Appellant also stated, “I will kill you” several times, to which Burns replied, “Don’t kill me, Joe. Don’t kill me.” On December 29, 2003, appellant moved in limine to preclude admission of the 911 recording. At the motions hearing, appellant averred that Burns was not expected to testify.

He argued that the recording was not admissible because the State could not lay a foundation as to who was on the tape; even if the 911 recording was a public record, the statements within it constituted hearsay; the statements on the tape could not be shown to be excited utterances; the dispatcher made inadmissible statements; and its admission would violate appellant’s “right to cross examination, his constitutional right.” 7 The State responded that the recording was a record kept in the ordinary course of business; Burns’ statements were excited utterances; and the tape contained admissions of a party opponent. The prosecutor further argued that there was no confrontation problem because “[i]f hearsay is deemed admissible because it is a recognized exception to the rule, then the opportunity for cross examination [sic] is simply not afforded.” 8 The motions court found that the statements on the 911 recording were “obviously an excited utterance on the part of ¹¹⁷ the victim. And it was a recording made by the victim who was not- acting as a police agent and not made during the custody or interrogation of the [appellant].” The motions court concluded that the 911 recording was admissible and the identity of the voices on the recording was a question of fact to be resolved by the jury. The case proceeded to trial on January 20, 2004, and lasted for three days.

The 911 recording was admitted into evidence and played for the jury. 9 In his testimony at trial, appellant acknowledged that he heard himself on the 911 recording threatening to kill Burns, but maintained that he did not recall saying it. He conceded that he was “probably more mad at her at that point for what she did than [he] ever [was before],” but stated that he was not mad enough to kill her or the “unborn baby” she was carrying. He maintained that he did not desire to harm anyone, but just wanted to stop Burns from using crack cocaine to protect the “baby” she was carrying. Burns invoked the spousal privilege and refused to testify against appellant. 10 Her medical records from March 12 and March 13, 2003, were admitted into evidence to prove her toxicology levels and pregnancy.

Additionally, her medical records from March 16, 2003, were admitted to show the injuries she suffered that night. The parties stipulated that April Bishop, Burns’ probation officer, Carolyn George, appellant’s probation officer, Lauren Carter of the Talbot County Addictions Program, and Sharon Dundin, appellant’s addictions counselor, would have testified, if called, that appellant had telephoned them prior to the incident on March 16, 2003, to obtain help in getting Burns off crack cocaine. George would testify that she received numer ¹¹⁸ ous calls from appellant, and Dundin would testify that appellant called and spoke to her two to three times a week. Carter would confirm appellant’s testimony that he was told that an emergency petition would not work unless Burns was suicidal.

The parties further stipulated that George, Carter, and Dundin had all told appellant that there was nothing he could do for Burns and that he should worry about himself. The parties also stipulated that Lionel H. Howland, an investigator employed by the State’s Attorney’s Office, would have testified, if called, that “some man called him ... [and] explained to him that his wife was doing crack and that she was pregnant and that he told this individual that based on the information he’d given him there was nothing that [the State’s Attorney’s Office] could do and advised him not to do anything stupid.” Corporal Ronald Mills of the Easton Police Department would have testified that, on March 15, 2003, he responded to the Atlantic Budget Inn for a report of an unwanted subject. He encountered appellant “who was very upset [and] informed the officers that he was looking for his wife who was three months pregnant and who he believed was smoking crack ... Corporal Mills told [appellant] that if he did find his wife he should let the law handle it.” Edward James Tyler, appellant’s former employer, testified that appellant had told him that Burns was smoking crack and staying away from home for days at a time.

Tyler stated that, in the beginning of 2003, appellant told him that Burns was pregnant and that he did not want her to smoke crack any more. He said that appellant was angry, but mainly concerned for Burns and the baby. He advised appellant that “he needed to get away from [Burns].” The jury convicted appellant of second degree assault on Lambert, second degree assault on Burns, false imprisonment of Burns, fourth degree burglary at 17 Bay Street, fourth degree burglary at 13 Bay Street, malicious destruction of property at 17 Bay Street, and two counts of malicious de ¹¹⁹ struction of property at 13 Bay Street. 11 Additional facts will be presented in our discussion of the issues presented. DISCUSSION I. Admission of Evidence Appellant’s first contention is that the circuit court erred in admitting three pieces of evidence: the 911 recording; Officer Cathcart’s testimony concerning statements Burns made to him while in his patrol car; and Officer Cathcart’s testimony concerning statements Burns made to him at the hospital.

Appellant argues that each piece of evidence contained hearsay, and that its admission violated appellant’s right to confrontation. He contends that none of the statements was an excited utterance, and asserts that all were testimonial in nature, and, thereby, precluded by the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). The State counters that the recording of the 911 call was admissible as a statement by a party opponent and that “[Burns’] statements were admissible, not for their truth, but to put [appellant’s] statements in context.” The State further contends that appellant’s objections to Officer Cathcart’s testimony were not preserved for appellate review on Confrontation Clause grounds, and that the statements were admissible under the excited utterance exception to the hearsay rule. Finally, the State argues that any error in permitting the three statements was harmless beyond a reasonable doubt. a.

Statements Made in the 911 Recording 1. The Confrontation Clause The Confrontation Clause of the United States Constitution provides that, “[i]n all criminal prosecutions, the ac ¹²⁰ cused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend.

VI

The protections of the Confrontation Clause are applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965). The Confrontation Clause’s counterpart in Maryland’s Constitution is found in Article 21 of the Maryland Declaration of Rights, which provides that, “in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him,” and the two clauses are read in pari materia. Md.Code (1958, 2003 Repl.

Vol.) Art. 21 of the Constitutions Article. Craig v. State, 322 Md. 418, 430 , 588 A.2d 328 (1991). In Crawford v. Washington, the United States Supreme Court held that, [wjhere nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law____Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. 541 U.S. at 68 , 124 S.Ct. 1354 . The Court of Appeals recently reiterated this principle, stating that, “when an out-of-court statement qualifies as testimonial, the Constitution conditions its admission on the unavailability of the witness and a prior opportunity to cross-examine.” State v. Snowden, 385 Md. 64, 79 , 867 A.2d 314 (2005).

In determining whether a statement made by an unavailable declarant is precluded by the Confrontation Clause, the initial focus is directed to whether the statement is “testimonial” in nature. Id. If the statement is deemed testimonial, then it is subject to the strict rule enunciated in Crawford and reaffirmed by Snowden , but if it is nontestimonial, it need only conform to Maryland’s rules regarding hearsay. The Crawford Court declined to articulate a precise definition of a “testimonial” statement, but noted that “interrogations by law enforcement officers fall squarely within” the meaning.

Crawford, 541 U.S. at 53 , 124 S.Ct. 1354 . The ¹²¹ “uniting theme underlying the Crawford holding is that when a statement is made in the course of a criminal investigation initiated by the government, the Confrontation Clause forbids its introduction unless the defendant has had an opportunity to cross-examine the declarant.” Snowden, 385 Md. at 81 , 867 A.2d 314 . In Snowden , the Court of Appeals observed: In the context of “police interrogations [or their functional equivalent],” we are directed by Crawford to conclude that the proper standard to apply to determine whether a statement is testimonial is whether the statements were made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial. Id. at 83 , 867 A.2d 314 .

See also Crawford, 541 U.S. at 51 , 124 S.Ct. 1354 (stating that “various formulations of this core class of ‘testimonial’ statements exist: ‘ex-parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial interrogation, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially’ ”). 2. The 911 Recordings and Crawford Appellant asserts that the statements in the 911 recording were testimonial because “[i]t is common knowledge that by calling 911 an alleged victim of a crime creates a record which may be used in a subsequent prosecution.” He recognizes that since Crawford there is a split of authority regarding the admissibility of 911 recordings, but urges that we find the statements made on the 911 recording in this case to be testimonial. The State argues that the “better reasoned” cases find 911 calls to be nontestimonial, citing People v. Corella, 122 Cal.App.4th 461 , 18 Cal.Rptr.3d 770, 775 (2004), which held that 911 recordings “bear no indicia common to the official and formal quality of the various statements deemed testimonial by Crawford.” The State also asserts that, in this case, “it is unnecessary to resolve the question of whether recordings of ¹²² 911 calls generally should be considered ‘testimonial’ under Crawford.” Here, the recording was a conversation between appellant and Burns with occasional interjections by the dispatcher, and not the typical “report and/or request for help,” followed by a series of questions and answers between the caller and dispatcher. We need not decide whether 911 recordings in general are “testimonial” in nature to resolve the issue before us because it is sufficient to conclude that the 911 recording in this case clearly was nontestimonial.

Burns dialed 911 and allowed the phone to remain on while she struggled with appellant. Neither her statements nor the statements of appellant were in response to police questioning or the functional equivalent thereof. There was no “knowing” response to a line of structured questioning taking place in an investigative environment. Cf.

Snowden, 385 Md. at 84 , 867 A.2d 314 (finding under the facts of that case a child’s statements to a sexual abuse investigator with the express purpose of creating testimony for a later prosecution constituted the functional equivalent of formal police questioning, and, accordingly, the statements were deemed testimonial). Furthermore, we disagree with appellant that Burns knew of the evidentiary significance of such a recording when she dialed 911. To the contrary, the primary concern of a reasonable person in Burns’ situation would have been escaping or, at the very least, obtaining help, not creating evidence for use in a future prosecution of her assailant. That is consistent with her statement to Officer Cathcart.

The evidence at trial established that, in the moments leading up to the 911 recording, appellant dragged Burns out of Lambert’s apartment to his truck. Appellant then struggled with Burns in the truck, striking her in the upper body and threatening several times to kill her. We find nothing in the record that suggests Burns knew, or had any objective reason to know, that the statements made during the 911 call could be later used against appellant during his prosecution. ¹²³ 3. The 911 Recording and Hearsay Generally, hearsay is inadmissible as evidence because of its inherent untrustworthiness.

Parker v. State, 365 Md. 299, 312 , 778 A.2d 1096 (2001); Md. Rule 5-802 (“Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.”). If a nontestimonial out-of-court statement made by an unavailable declarant contains hearsay, the hearsay must fall within an exception to the hearsay rule or bear “particularized guarantees of trustworthiness” in order to be admitted into evidence. Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). 12 See also Rollins v. State, 161 Md.App. 34, 60 , 866 A.2d 926 (“the introduction of hearsay will not violate a defendant’s right to confrontation if the hearsay is within a ‘firmly rooted’ exception to the rule against hearsay or bears ‘particularized guarantees of trustworthiness’ ”), cert. granted, 387 Md. 462 , 875 A.2d 767 (2005). Maryland Rule 5 — 803(b)(2) defines the excited utterance exception to the hearsay rule as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” In Parker , the Court of Appeals stated: The essence of the excited utterance exception is the inability of the declarant to have reflected on the events about which the statement is concerned.

It requires a startling event and a spontaneous statement which is the result of the declarant’s reaction to the occurrence. The rationale for overcoming the inherent untrustworthiness of hearsay is that the situation produced such an effect on the declarant as to render his reflective capabilities inoperative. The admissibility of evidence under this exception is, therefore, ¹²⁴ judged by the spontaneity of the declarant’s statement and an analysis of whether it was the result of thoughtful consideration or the product of the exciting event. 365 Md. at 313 , 778 A.2d 1096 (quoting Mouzone v. State, 294 Md. 692, 697 , 452 A.2d 661 (1982) (internal citations omitted)). It is up to the proponent of a statement claimed to be an excited utterance to establish that the statement was spontaneous rather than a result of reflection.

Parker, 365 Md. at 313 , 778 A.2d 1096 . “ ‘[I]t must [also] be established that the exciting influence has not lost its sway or been dissipated by meditation.’” Harmony v. State, 88 Md.App. 306, 320 , 594 A.2d 1182 (1991) (citations omitted). In making the determination of whether a statement is properly characterized as an “excited utterance,” we examine the “totality of the circumstances.” West v. State, 124 Md.App. 147, 163 , 720 A.2d 1253 (1998) (quoting State v. Harrell, 348 Md. 69, 77 , 702 A.2d 723 (1997)). The lapse in time and spontaneity of the statement are factors to be considered in the analysis, but neither is dispositive. Id. at 163-64 , 720 A.2d 1253 .

The determination of whether to admit a statement as an excited utterance lies within the discretion of the trial or motions court. Harmony, 88 Md.App. at 321 , 594 A.2d 1182 . “An appellate court should not reverse a trial [or motions] court’s decision on the admissibility of an excited utterance absent an abuse of discretion.” West, 124 Md.App. at 163 , 720 A.2d 1253 . In this case, the motions court found that “obviously [the statements in the 911 recording are] an excited utterance on the part of the victim. And it was a recording made by the victim who was not acting as a police agent and not made during the custody or interrogation of the [appellant].” Indeed, the discourse between Burns and appellant occurred during the commission of an ongoing crime.

Burns’ supplications for appellant to stop hitting her were in direct response to actions taken by appellant inside the truck. Nothing suggests that the statements were not made spontaneously while under the stress of excitement cased by an “exciting ¹²⁵ event.” In fact, the 911 recording occurred during the “exciting event,” i.e., the assault on Burns inside appellant’s truck. 13 Consequently, there was no abuse of discretion in ruling that the statements made by Burns on the recording were excited utterances. b. Statement to Officer Cathcart in the Patrol Car The jury heard Officer Cathcart’s testimony concerning the statements Burns made to him while in his patrol car. Appellant asserted that the remarks made in the patrol car constituted “hearsay,” and that Burns had calmed down so that “enough time had passed, [and the remarks were] no longer an excited utterance.” 14 The circuit court ruled that ¹²⁶ Burns was “still in a state of excitement and that her utterances were excited utterances at that time.” When Officer Cathcart found Burns, she was unclothed from the waist up and had blood on her face.

She could not provide an unbroken coherent statement, but rather gave “bits of information.” She was crying, “emotionally upset,” and “at the point where she was hysterical.” The event causing Burns’ hysteria had ended only minutes before. 15 Dennis v. State, 105 Md.App. 687 , 661 A.2d 175 (1995), is instructive. In Dennis , statements were made at the scene of the crime by the defendant’s wife, Robin. She invoked the spousal privilege and refused to testify against her husband, who was charged with first-degree murder, burglary, and unlawful use of a handgun. The officer that recorded the statement testified that he arrived “ ‘within two minutes after he was called,’ ” and that Robin was “ ‘very upset, crying, screaming, almost to the point where she was hysterical.’” Id. at 700 , 661 A.2d 175 .

Based solely on the officer’s testimony concerning Robin’s demeanor and state of mind, the circuit court found that the statements were “excited utterances.” This Court affirmed stating that, “based on [the officer’s] testimony, we can find no error in the court’s determination that her immediately contemporaneous statements to the officer related to what obviously was a startling event and were made while she was still under the stress of the excitement caused by that event.” Id. In this case, Officer Cathcart testified concerning Burns’ demeanor and mental state. He stated that when he appeared on the scene and attempted to question her, Bums was “emotionally upset” and “hysterical.” We are not persuaded that the circuit court abused its discretion in admitting Burns’ statements as an excited utterance. ¹²⁷ c. Statements to Officer Cathcart at the Hospital Appellant objected to the statements made by Burns at the hospital, without specifying a basis.

The circuit court initially sustained the objection “without some foundation as to what we’re speaking of with respect to time frame.” The prosecutor established that the statement had been made about a half hour after the incident and Officer Cathcart testified that Burns “was cooperating as far as, she was answering the questions. She was crying off and on. But as far as her mental state she was telling me what she wanted to tell me as far as what happened.” The circuit court then overruled the objection and granted appellant’s counsel a continuing objection. A general objection, like the one appellant made to the circuit court, “is sufficient to preserve all grounds of objection which may exist.” 16 State v. Jones, 138 Md.App. 178, 218 , 771 A.2d 407 (2001) (quoting Grier v. State, 351 Md. 241, 250 , 718 A.2d 211 (1998)) (emphasis added).

Compare footnote 14, supra (when there is a specific objection only the grounds specifically stated are preserved for appellate review). On appeal, appellant argues that Burns’ statements at the hospital violated his right to confrontation and asserts that they do not fall within any exception to the hearsay rule. We agree that the statements are “testimonial” in nature. See discussion, supra, Part 1(a)(1).

Officer Cathcart visited Burns at the hospital during his investigation of that night’s incident. Burns’ statements were elicited by a direct question from Officer Cathcart at least a ¹²⁸ half hour after she had been assaulted. Officer Cathcart was clearly investigating the incident and questioning Burns to further the investigation. Although Burns was “crying off and on” she did not “break down in tears ... to any questions [Officer Cathcart] might have asked her.” The circumstances were such that a reasonable person would realize that their statements to the police incriminating appellant would be “available for use at a later trial.” Snowden, 385 Md. at 83 , 867 A.2d 314 .

In fact, the Court of Appeals has said that statements are testimonial when elicited by government officers “with an eye toward trial,” and that “statements made to police officers in the course of an investigation [are] especially testimonial.” Id. at 81 , 867 A.2d 314 . When statements are “testimonial,” Crawford dictates that the witness be unavailable and that the accused have a right to cross-examine. Crawford, 541 U.S. at 68 , 124 S.Ct. 1354 . Because Burns invoked the spousal privilege at trial, appellant was not given the opportunity to cross-examine her.

Therefore, the statements made by Burns at the hospital were erroneously admitted into evidence. Even if the statements were not testimonial, they encompassed inadmissible hearsay. Although Burns was “still a little upset” and “crying,” “the essence of the excited utterance exception is the inability of the declarant to have reflected on the events about which the statement is concerned.” Parker, 365 Md. at 313 , 778 A.2d 1096 . Although the circuit court found the relatively short, half hour time period between the incident and Burns’ statement persuasive, time .alone is not dispositive.

See Mouzone, 294 Md. at 701 , 452 A.2d 661 (observing that, although the declarant “may still have been somewhat shaken by the incident, it was beyond credibility to suggest that her coherent and descriptive responses” were “impulsive or spontaneous”). There is nothing in Officer Cathcart’s description of Burns’ mental or emotional state to suggest that she was reacting without deliberation. In fact, Officer Cathcart’s testimony was that Burns told him “what ¹²⁹ she wanted to tell [him].” The detailed nature and amount of information given to Officer Cathcart also indicates that the statement did not constitute an excited utterance. Nevertheless, the State contends that any error in admitting the statements in this case was harmless. “In order for the error to be harmless, we must be convinced, beyond a reasonable doubt, that the error in no way influenced the verdict.” Weitzel v. State, 384 Md. 451, 461 , 863 A.2d 999 (2004).

We must “ ‘be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.’ ” Rosenberg v. State, 129 Md.App. 221, 253 , 741 A.2d 533 (1999) (quoting Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976)). Maryland Code (2002) § 3-203 of the Criminal Law Article (“C.L.”) prohibits a person from committing an assault. C.L. § 3-201 instructs that “assault” encompasses the crimes of assault, battery, and assault and battery, which retain their judicially determined meanings. Battery is traditionally defined as the unlawful application of force against another, either directly or indirectly.

Lamb v. State, 93 Md.App. 422, 446-48 , 613 A.2d 402 (1992). Battery includes “kissing another without consent, touching or tapping another, jostling another out of the way, throwing water upon another, rudely seizing a person’s clothes, cutting off a person’s hair, throwing food at another, or participating in an unlawful fight. On the other hand, a battery may take the form of a severe beating.” State v. Duckett, 306 Md. 503, 510-11 , 510 A.2d 253 (1986) (internal citations omitted). The crime is committed no matter how slight the injury to the victim.

Lamb, 93 Md.App. at 447 , 613 A.2d 402 . False imprisonment, a common law offense, is the “unlawful detention of another person against his [or her] will.” Midgett v. State, 216 Md. 26, 39 , 139 A.2d 209 (1958). ¹³⁰ “Although there are other possible catalytic agents for the unlawful confinement, such as fraud or a false claim of legal authority, false imprisonment is most frequently the product of either an assault or a battery.” Lamb, 93 Md.App. at 470-71 , 613 A.2d 402 (footnote omitted). 17 Burns’ recollection of the night, for the most part, mirrors that of appellant’s own testimony and police statement. Burns told Officer Cathcart-that while she was visiting Lambert, appellant “[k]icked down the door” and “[h]it Mr. Lambert in the head with a baseball bat.” The only contradictory assertion made by Burns was that appellant threw her out of the truck (he says that she jumped out of the truck) and that appellant also hit her with the baseball bat. Appellant admitted during trial and in his statement to the police, which was admitted into evidence, that he broke into the homes located at 13 and 17 Bay Street, that he hit Lambert with the baseball bat, that he dragged Burns out to his truck, and that he would not let her leave.

These admissions by appellant provided ample evidence to convict him of the second degree assault on Lambert and the false imprisonment of Burns. Appellant also admitted, both at trial and in his statement to the police, to striking Burns in the upper body with his hands. These admissions, along with Burns’ medical records from the night of the incident, clearly established that appellant was guilty of the second degree assault on Burns. Defense counsel stated in his opening argument, “[ijt’s really not a question so much of what happened but why it happened.” In closing argument, he summarized the essence of the defense theory by asking the jurors “what would you have done differently.” We are convinced beyond a reasonable doubt that the statements made by Burns at the hospital in no way influenced the verdict in this case.

Consequently, any error was harmless. ¹³¹ II. Jury Instructions Maryland Rule 4-325(c) provides, in pertinent part, that “[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law.” When requested to do so by a party, the trial court is required to give an instruction that correctly states the applicable law if it has not been fairly covered in the instructions actually given. State v. Martin, 329 Md. 351, 356 , 619 A.2d 992 (1993); Mack v. State, 300 Md. 583, 592 , 479 A.2d 1344 (1984). The circuit court need not give the instruction, however, unless the defendant has produced “some evidence” sufficient to give rise to a jury issue on the defense.

Dykes v. State, 319 Md. 206, 216 , 571 A.2d 1251 (1990). The phrase some evidence, “calls for no more than what it says — ‘some,’ as that word is understood in common, everyday usage. It need not rise to the level of ‘beyond a reasonable doubt’ or ‘clear and convincing’ or ‘preponderance.’ ” Id. at 216-17 , 571 A.2d 1251 . “Whether the evidence is sufficient to generate the desired instruction is a question of law for the judge.” Roach v. State, 358 Md. 418, 428 , 749 A.2d 787 (2000). Our review is limited to determining “whether the criminal defendant produced that minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired.” Id.

There must be “some evidence,” to support each element of the defense’s legal theory before the requested instruction is warranted. Cantine v. State, 160 Md.App. 391, 411 , 864 A.2d 226 (2004) (holding that a renunciation instruction for the crime of conspiracy was not warranted when “although the record provide[d] sparse evidence of [appellant’s] involvement in the conspiracy ... there [was] no evidence of an affirmative withdrawal from the conspiracy”), cert. denied, 386 Md. 181 , 872 A.2d 46 (2005); Sutton v. State, 139 Md.App. 412, 428-29 , 776 A.2d 47 (2001) (holding that a voluntary intoxication instruction was not warranted when “no evidence was established at trial of any impairment of [appellant’s] ability to form the specific intent to commit robbery at the time of the murder”). ¹³² a. Necessity Appellant requested that the circuit court instruct the jury-on the defense of necessity. The instruction appellant requested was: An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil; that no more was done than was reasonably necessary for that purpose; and that the evil inflicted by it was not disproportionate to the evil avoided.™ 1 If you find that the Defendant acted out of necessity or out of duress of circumstances, then you must find the Defendant not guilty.

FNl Frasher v. State of Maryland, 8 Md.App. 439, 449 [n. 6], [ 260 A.2d 656 ] (1970) (quoting Stephen, Digest of the Criminal Law, art. 32). Appellant argues that the defense was applicable because he faced a choice between acting to prevent his wife from abusing drugs or doing nothing, “thereby risking that his wife’s placenta would break loose and she would bleed to death and/or that their child would die or be born with serious disabilities.” The State counters that the defense was not applicable because “the crimes were disproportionate to the threat,” and “the threatened harm is future, rather than immediate, personal injury.” Furthermore, the State asserts that the defendant had other alternatives than resorting to violence, such as continuing to convince Burns to seek treatment. We begin with a discussion of the defense of necessity. The Court of Appeals held in State v. Crawford, 308 Md. 683, 698-99 , 521 A.2d 1193 (1987) (footnote omitted), that necessity is a valid defense to the crime of unlawful possession of a handgun when five elements are present: (1) the defendant must be in present, imminent, and impending peril of death or serious bodily injury, or reasonably believe himself or others to be in such danger; (2) the defendant ¹³³ must not have intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct; (3) the defendant must not have any reasonable, legal alternative to possessing the handgun; (4) the handgun must be made available to the defendant without preconceived design, and (5) the defendant must give up possession of the handgun as soon as the necessity or apparent necessity ends.

We emphasize that if the threatened harm is property damage or future personal injury, the defense of necessity will not be viable; nor can the defense be asserted if the compulsion to possess the handgun arose directly from the defendant’s own misconduct. Similarly, this Court determined that a limited defense of necessity is available to an individual charged with the crime of escape if the following conditions exist: ‘(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) There is no time for a complaint to the authorities or there exists a history of futile complaints which makes any result from such complaints illusory; (3) There is no time or opportunity to resort to the courts; (4) There is no evidence of force or violence used towards prison personnel or other ‘innocent’ persons in the escape; and (5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the