State v. Young

Argued before Barbera, C.J. Greene * , Adkins, McDonald, Watts, Hotten, Getty, JJ. Adkins, J. *¹⁶³ "The true nature of the hearsay rule is nowhere better illustrated and emphasized than in those cases which fall outside the scope of its prohibition." 6 John Henry Wigmore, Evidence in Trials at Common Law § 1766, at 250 (Chadbourn rev. 1976). Steven Young was convicted by a jury in the Circuit Court for Baltimore City of possession and possession with intent to distribute controlled dangerous substances. Before trial, the State filed a motion to suppress introduction of any supposed prescriptions for controlled substances, which the Circuit Court granted on hearsay grounds.

We consider whether the alleged prescriptions are barred by the rule against hearsay, or if instead, they are nonhearsay and admissible as a "verbal act." BACKGROUND In May 2014, Detective Manuel Larbi ("Larbi") and a team of officers executed a search warrant for 2580 Marbourne Avenue in Baltimore, Maryland. Larbi observed Steven Young and another male in front of the house. The officers handcuffed both individuals and entered the residence. Once inside, the officers observed a third individual, Angela Grubber, later identified as Young's wife.

After Larbi read Young his rights pursuant to Miranda v. Arizona , 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), Young advised that he had controlled dangerous substances in the bedroom. Larbi went into the bedroom and found 32 pills of methadone, 3.5 grams of heroin, seven Xanax pills, and "a digital scale containing a powder substance." In the kitchen cabinet, Larbi recovered 342 OxyContin *¹⁶⁴ pills, ten gel caps containing suspected heroin, and $1,498 in cash. ⁸⁰⁹ Young was arrested and charged with illegal possession of controlled substances and possession with intent to distribute controlled substances. Young filed a motion to suppress evidence of these drugs, asserting that he "attempted to provide [prescriptions] to police during the incident, and explained that he [had] valid prescriptions for [m]ethadone, Xanax, and Percocet." Young also claimed he had "shown that his wife had valid prescriptions for [m]ethadone, Xanax, and Percocet." He did not attach copies of the prescriptions to the motion or otherwise provide specific information about them. Young's trial in the Circuit Court began in January 2016.

Before jury selection, the parties met with the trial judge in chambers. No record of the conversation was made. Upon returning to the courtroom, the prosecutor moved to exclude all evidence that Young had a prescription for the drugs seized. The court granted this motion in limine , without providing Young an opportunity to respond: [PROSECUTOR]: And, Your Honor, the State's second motion that we spoke in chambers is the exclusion.

State's moving a motion in limine to exclude any prescription evidence as it is, number one, hearsay, and, number two, not admissible hearsay because it does not fall within the exception of [Maryland Rule] 803[ (b) ](6). Defense is trying to enter into evidence, number one, a prescription -- an alleged prescription of the defendant and, number two, a prescription by his wife, Angela Grubber, who is not going to testify today. These are copies of alleged prescriptions. They are not certified.

The doctor is not present. There's no certification or authenticity and it's excluded under [Maryland Rule] 803[ (b) ](6). I do have a case, Bryant v. State , [ 129 Md. App. 690 , 743 A.2d 814 (2000),] by the Court of Special Appeals where in a murder trial the defense tried to enter in a piece of paper that was the alleged toxicology report because it was murder. And *¹⁶⁵ the Court said it's hearsay, number one, even if the defendant took the stand -- THE COURT: Yeah.

I'm familiar with that law because I had the very same issues several times. Okay. That motion is granted. Defense counsel did not respond, object, or make a proffer in response.

The case proceeded to trial. 1 During its case-in-chief, the State called Detective Larbi, who was accepted as an expert in the field of narcotics identification and packaging. Larbi testified that, in his expert opinion, the substances, scale, and currency recovered were for distribution, not personal use. The detective recalled that during one conversation, "Mr. Young also stated that he does sell from time to time," and that aside from four pills that were recovered, Young took ownership of all the other drugs at the house. Larbi also testified that Young never claimed to have a prescription for the drugs.

The jury convicted Young of eight counts: possession of heroin, oxycodone, methadone, and alprazolam; and possession with intent to distribute heroin, oxycodone, methadone, and alprazolam. After merging the possession charges, the trial judge sentenced Young to multiple years of imprisonment for the four counts of possession with intent to distribute. ⁸¹⁰ Young timely appealed to the Court of Special Appeals, which affirmed in part and reversed in part. See Young v. State , 234 Md. App. 720 , 174 A.3d 481 (2017). The intermediate appellate court held that "[v]alid prescriptions provide the basis of a statutory defense to the charges for possession of and possession with intent to distribute methadone, alprazolam, and oxycodone.

Introducing them for such purpose, when properly authenticated, is not hearsay." Id. at 736 , 174 A.3d 481 . As a result, it reversed each of Young's convictions, except for his two convictions for possession of heroin and *¹⁶⁶ possession with intent to distribute heroin. See id. at 741 , 174 A.3d 481 . DISCUSSION 1.

Preservation We first address two preservation issues: (1) Young's claim that the State failed to preserve the issue of whether he authenticated the alleged prescriptions; and (2) the State's claim that Young failed to preserve his claim that the trial court erred in excluding the alleged prescriptions. Young's Preservation Argument-Authentication Young argues that the State failed to raise the issue of authentication at trial and therefore cannot raise that issue on appeal. He maintains that the State's sole reference to authentication was in the context of its business records argument. This reference is insufficient, Young continues, because the prescriptions are not hearsay, and no exception is needed to properly admit them.

Young further asserts that because he could self-authenticate the prescriptions, neither the physician nor her records custodian need testify. The State responds that the prosecutor raised the issue of authentication in five ways. First, the prosecutor argued that there was no "authenticity"-meaning authentication. Second, by referring to the "alleged prescriptions," the prosecutor asserted that they were not genuine.

Third, the prosecutor argued that "there's no certification," meaning that the prescriptions were not admissible without a sponsoring witness who could establish that they were authentic. Fourth, the prosecutor pointed out that "Young's wife is not going to testify today" and "the doctor is not present," meaning that Young was not calling witnesses who could potentially sponsor and authenticate the prescriptions. Finally, the prosecutor cited Bryant v. State , 129 Md. App. 690 , 743 A.2d 814 (2000), in which the only issue on appeal was authentication. We reject the State's arguments that it challenged authentication at trial because we do not ascribe the same meaning to *¹⁶⁷ the prosecutor's statements.

Rather, the prosecutor clearly spelled out her reasons for excluding the prescription evidence, and they all clearly focused on challenging the prescriptions as inadmissible hearsay. Specifically, the prosecutor made her motion in limine "to exclude any prescription evidence as it is, number one, hearsay, and number two, not admissible hearsay because it does not fall within the exception of [ Md. Rule 5-803(b)(6) ]," the business records exception. Nor was the prosecutor's citation to Bryant v. State supportive, as Bryant involved the question of whether "the trial court err[ed] in admitting the results of a toxicology report into evidence as a business record," and the authentication issue wholly related to the document's admission and authentication as a business record. Finally, simply naming absent witnesses was not sufficient to preserve the State's objection, because Young could potentially authenticate the prescriptions through his own testimony.

The trial court ⁸¹¹ granted the motion in limine without giving the defense any chance to proffer or authenticate the alleged prescriptions. 2 State's Waiver Argument-Exclusion of Prescriptions The State argues that Young failed to preserve his claim that the trial court erred in excluding the alleged prescriptions. It contends that where a prosecutor has presented two independently dispositive reasons why the trial court should not take an action, and the court relies on those reasons, it is incumbent on a defendant to object or demonstrate why the prosecutor's arguments are not dispositive. Young responds that the trial court was on notice of his position based on the crimes charged and his motion to suppress. Further, he contends that the court's ruling makes clear it was aware that he intended to introduce the prescriptions into evidence.

As to the State's remaining argument, Young asserts that he did not have an opportunity to object to the ruling-the court granted the motion to exclude before the *¹⁶⁸ State finished its argument, and the court moved to the next motion without giving Young a chance to respond. Under Maryland Rule 8-131(a), an appellate court will not decide an issue "unless it plainly appears by the record to have been raised in or decided by the trial court ...." To preserve an issue for appeal, Maryland Rule 4-323(a) requires a party to "object[ ] to the admission of evidence ... at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent," or the objection is waived. Maryland Rule 4-323(c) tempers strict application of this requirement, making clear that a proffer is not the only way a party may preserve an issue for appeal. The party need only "make[ ] known to the court the action that the party desires the court to take or the objection to the action of the court." Md. Rule 4-323(c).

Moreover, "[i]f a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does not constitute a waiver of the objection." Id. Based on the record below-Young's motion to suppress, the prosecutor's reference to the discussion in chambers, the prosecutor's motion in limine , and the judge's subsequent ruling-we are satisfied that the judge had sufficient notice of Young's intention to introduce the prescriptions into evidence, and that the judge's ruling excluding them was intended to be the "final word on the matter ...." See Prout v. State , 311 Md. 348 , 357, 535 A.2d 445 (1988) (applying current Rule 4-323(c) ). Additionally, although Young did not respond or object to the State's motion in limine , he had "no opportunity" to do so. Md. Rule 5-323(c).

Before the prosecutor finished making her argument, the trial judge cut her off midsentence and granted her motion. For these reasons, we hold that Young's objection to the trial court's motion in limine ruling is preserved for review. 2. Hearsay The State also argues that the alleged prescriptions are inadmissible hearsay because they would be introduced to prove the truth of the matter asserted. The State presents two *¹⁶⁹ iterations of this theory.

First, it reasons, the prescriptions go directly to the truth of the matter asserted. The State construes the word "prescription" in Md. Code (2002, 2012 Repl. Vol), ⁸¹² § 5-601 of the Criminal Law Article ("CR") 3 to mean "valid prescription," which necessarily means that it was also "from an authorized provider" and that the provider was "operating in the course of professional practice." When a doctor writes a prescription, the State contends, she is essentially asserting that "she has the authority to issue a prescription to the patient in order to obtain a controlled substance," or that the patient is permitted to possess the controlled substance. Second, citing Stoddard v. State , 389 Md. 681 , 887 A.2d 564 (2005), the State avers that even if the prescriptions do not explicitly state the information described above, they should still be excluded as hearsay because they are "implied assertions" inherent in the admission of the prescription.

Young counters that the prescriptions were not offered to prove the truth of the matter asserted within them. Rather, he says he sought to introduce the prescriptions as the basis for the statutory defense that he "legally possessed certain of the controlled substances." He argues that a prescription is a "legally operative document" and that CR § 5-601"only applies to drugs not obtained by valid prescription and does not require that the prescription be appropriate for the patient's medical condition" or that the patient in fact suffer from a given medical condition. Instead, says Young, legitimacy and authorization are authentication questions "irrelevant to the hearsay analysis." For these reasons, he argues, the trial court erred in ruling that the prescriptions were hearsay. 4 A trial court's ruling on the admissibility of evidence is generally reviewed for abuse of discretion. See *¹⁷⁰ Hopkins v. State , 352 Md. 146 , 158, 721 A.2d 231 (1998).

Yet, appellate review of whether a statement is hearsay is conducted without deference to the trial court. See Bernadyn v. State , 390 Md. 1 , 8, 887 A.2d 602 (2005) (trial court has no discretion to admit hearsay in the absence of a provision providing for its admissibility). 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." Md. Rule 5-801(c). There are two threshold questions when a hearsay objection is raised: "(1) whether the declaration at issue is a 'statement,' and (2) whether it is offered for the truth of the matter asserted.

If the declaration is not a statement, or if it is not offered for the truth of the matter asserted, it is not hearsay and it will not be excluded under the hearsay rule." Stoddard , 389 Md. at 688 -89 , 887 A.2d 564 . Maryland Rule 5-801(a) defines a "statement" as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." The parties do not contest that a prescription is an out-of-court statement-a written assertion. They focus instead on whether the prescriptions are offered for the truth of the matter asserted. It is hornbook law that out-of-court statements are generally not admissible to prove the truth of the matter asserted.

Yet, they can be admitted if the statements are "relevant and proffered not to establish the truth of the matter asserted therein, but simply to establish that the statement was made[.]" ⁸¹³ Lunsford v. Bd. of Educ. of Prince George's Cty. , 280 Md. 665 , 670, 374 A.2d 1162 (1977) (citations omitted). This depends on whether the "fact asserted in the out-of-court statement [must be] sincerely and accurately stated[ ] in order for the out-of-court statement to help to prove what it is offered to prove[.]" 6A Lynn McLain, Maryland Evidence State and Federal § 801:7, at 235 (3d ed. 2013). In most state and federal courts, this hearsay analysis is cabined to intentional assertions. This is significant because, in other jurisdictions, if the assertion was unintentional or merely *¹⁷¹ implicit, then it cannot be hearsay.

Maryland departs from this general rule. This departure is best explained by Stoddard v. State , 389 Md. 681 , 887 A.2d 564 (2005), the seminal Maryland case on implied assertion. The primary question in Stoddard was whether out-of-court statements are hearsay when offered to prove the truth of a factual proposition that was only implicitly-often unintentionally-communicated by the declarant. See id. at 689 , 887 A.2d 564 .

In Stoddard , the defendant, Erik Stoddard, was convicted of second-degree murder and child abuse resulting in the death of three-year-old Calen DiRubbo ("Calen"). Id. at 683 , 887 A.2d 564 . Stoddard was the only adult supervising Calen, her older brother, and her cousin, Jasmine Pritchett ("Jasmine"), for at least part of the time leading up to Calen's death. Id. at 684 , 887 A.2d 564 .

The central issue involved the testimony of Jasmine's mother, Jennifer Pritchett. Id. Over defense counsel's objection, the court admitted the mother's testimony that Jasmine asked her "if [Stoddard] was going to get her." Id. at 685 , 887 A.2d 564 . The prosecutor offered this as evidence that Jasmine witnessed Stoddard commit the murder.

Id. at 683 , 887 A.2d 564 . On appeal, Stoddard argued that Jasmine's utterance was hearsay because it was both a statement and offered for the truth of the matter asserted. Id. at 687-88 , 887 A.2d 564 . First, the Court determined that an implied assertion is, in fact, a statement, even though unintentionally made.

To justify this, we compared the Maryland Rules to the Federal Rules of Evidence. See id. at 693-96 , 887 A.2d 564 . Most courts have adopted the Committee note to the Federal Rules, which provides that "nothing is an assertion unless intended to be one." Fed. R. Evid. 801(a). Yet, we have not.

Instead, we observed the "Committee note to Md. Rule 5-801 departs substantially from its federal counterpart. Rather than restricting the definition of 'assertion,' the note does not attempt to define 'assertion' ...." Stoddard , 389 Md. at 696 , 887 A.2d 564 . From this, we explained, "[i]t is clear that in adopting the Maryland Rule, this Court did not intend to adopt the federal Advisory Committee's view that 'nothing is an assertion unless *¹⁷² intended to be one,' " but rather intended to leave it to the development of case law. Id.

Ultimately, the Court concluded that a verbal or written statement, even if unintentional, is still a statement under Maryland law. The Stoddard Court proceeded to evaluate whether Jasmine's question was offered for the truth of the matter asserted within it, turning to the wellspring of implied assertion doctrine, Wright v. Doe d. Tatham (1837) 112 Eng. Rep. 488; 7 Ad. & E. 313.

In Wright , a testator left his estate to his steward, Wright. The testator's heir at law, Tatham, filed suit to set aside the will, arguing that the testator was mentally incompetent at the time he made the will. Id. at 493; 7 Ad. & E. at 324. In response, Wright introduced several letters addressed to the testator, not for their truth, but so the court could infer from their content that the writers believed the ⁸¹⁴ testator was competent.

Id. at 493-94; 7 Ad. & E. at 325. None of the individuals who wrote the letters testified at trial. The English court ruled that the letters were hearsay, id. at 500; 7 Ad. & E. at 341, and we adopted its reasoning. First, the letters could not have been admitted for the truth of their literal content, because their content was not relevant to the proceeding.

The letters were only valuable inasmuch as the "tone and content impl[ied] a belief in [the testator's] competence[.]" Stoddard , 389 Md. at 692 , 887 A.2d 564 . "Thus, as offered, these letters express[ed] the proposition that [the testator] [was] competent[.]" Id. A letter stating as much would clearly be hearsay. Therefore, the Court concluded that the implied assertion doctrine excludes such evidence as hearsay "where a declarant's out-of-court words imply a belief in the truth of X , ... [and are] offered to prove that X is true." Id.

Like in Wright , Jasmine's statement would not have been relevant were it offered for the literal truth of the question, "Is [Stoddard] going to get me?" Id. at 689 , 887 A.2d 564 . Nor was Jasmine's ability to speak the words otherwise relevant. See id. Rather, her question was only relevant if offered for its implicit meaning: "that, by asking it, Jasmine *¹⁷³ may have revealed, by implication, a belief that she had witnessed [Stoddard] assaulting Calen." Id.

Even if a declarant possesses no intent to assert anything, "[i]t 'is a non sequitur to conclude from this, as the Advisory Committee [did], that the remaining dangers of perception, memory, and ambiguity are automatically minimized with this assurance of sincerity.' " Id. at 699 , 887 A.2d 564 (citations omitted). The State offered the question to prove the truth of the implied factual proposition that Jasmine had in fact witnessed Stoddard assaulting Calen. "[W]here the probative value of words, as offered, depends on the declarant having communicated a factual proposition, the words constitute an 'assertion' of that proposition," and are offered for the truth of the matter asserted, or implied. Id. at 703-04 , 887 A.2d 564 .

Accordingly, Jasmine's unintentional assertion was hearsay and should have been excluded. Since Stoddard , we have consistently resisted an overbroad interpretation of its holding. In its companion case, authored by the same judge 5 and published on the same date, the Court upheld a trial court's decision to exclude a medical bill as hearsay, but gave cautionary advice for future cases. See Bernadyn v. State , 390 Md. 1 , 887 A.2d 602 (2005).

There, a sheriff's deputy conducted a valid search of a residence. See id. at 3-4 , 887 A.2d 602 . When the officer entered, the defendant ("Bernadyn") was in the living room with a marijuana pipe and marijuana stems and seeds. Id. at 4 , 887 A.2d 602 .

While in the residence, the officer seized a medical bill addressed to "Michael Bernadyn, Jr., 2024 Morgan Street, Edgewood, Maryland 21040"-the address searched. Id. Over a defense hearsay objection, the trial court allowed the deputy to testify that he had seized the medical bill from 2024 Morgan Street. Id.

Counsel appealed to this Court. Id. at 7 , 887 A.2d 602 . Although we upheld the judge's decision to *¹⁷⁴ exclude the bill, we found it significant that the "State did not argue simply that an item bearing Bernadyn's name was found in the house and that Bernadyn probably resided at the house." ⁸¹⁵ Id. at 11 , 887 A.2d 602 . Instead, the State argued that the bill itself was "a piece of evidence that shows who lives there." Id.

According to the State's proffered use, the bill was an implied