Stoddard v. State

CHARLES E. MOYLAN, Jr., Judge (retired, specially assigned). Old Marsden’s Ghost As the primary contention on this appeal intriguingly reveals, the ghost of Old Marsden, dominating central character of Wright v. Doe d. Tatham, 7 Adolphus & E. 313, 112 Eng. Rep. 488 (King’s Bench, 1837), aff'd, 5 Cl. & F. 559, 47 Rev. Rep. 136 (House of Lords, 1838), still rises periodically from an unquiet grave and, like old King Hamlet, is “doomed for a time to walk the night.” It was in the 1837 opinion of Baron Parke that the term of art “implied assertion” first saw the light of day. 1 John Marsden was possessed of a great country estate in Lancashire, including Hornby Castle as well as numerous ²⁵⁰ mines, fisheries, commons, and a variety of manorial rights.

The contest between Wright, Marsden’s steward and devisee, and Admiral Tatham, Marsden’s cousin and heir at law, hinged upon old Marsden’s testamentary capacity to make a will in 1822 and a codicil in 1825. Admiral Tatham challenged his cousin’s testamentary capacity by introducing evidence that Marsden was treated as a child by his own menial servants; that, in his youth, he was called, in the village where he lived, “Silly Jack,” and “Silly Marsden,” ...; that a witness had seen boys shouting after him, “There goes crazy Marsden,” and throwing dirt at him, and had persuaded a person passing by to see him home.... ” 112 Eng. Rep. at 490. In response, three letters to Marsden from three separate and then deceased correspondents were offered by Wright to prove that Marsden was, in fact, competent.

A letter from a cousin in America, in 1784, recounted the details of the trans-Atlantic voyage and described conditions in the former colonies. A second letter, from the local vicar, in 1786, discussed the settlement of a legal dispute between Marsden and the parish. A third letter, from a Reverend Ellershaw, in 1799, thanked Marsden for having obtained Ellershaw’s earlier appointment as a curate. The evidentiary theory of the proponent was that the tone of the letters indicated that the correspondents believed Marsden to be competent and that those beliefs by persons who knew him, in turn, proved that Marsden was competent. 2 ²⁵¹ The holding of Wright v. Tatham was that the letters were “implied assertions” of Marsden’s competency and were, therefore, inadmissible hearsay. 3 The imprimatur of the House of Lords was placed on that holding in 1838. 4 For more than a century after 1838, Wright v. Tatham assumed a generative lead role in the law of evidence comparable to that played by Palsgraf in torts, by Adams v. Lindsell in contracts, and by Shelley’s Case in the law of trusts.

Both 1) non-assertive non-verbal conduct and 2) non-assertive utterances were regularly held to be hearsay as “implied assertions” when they were offered for the two-step inferential process of 1) first implying a belief on the part of the declarants and 2) then implying the truth of the things believed. It was only 34 years after the House of Lords affixed its seal of approval that the Maryland Court of Appeals also signed on to Wright v. Tatham in Waters v. Waters, 35 Md. 531, 543-46 (1872), a case involving testamentary capacity. (“We yield our unqualified assent to the rule of evidence established in that case.”) Citing Waters v. Waters, the Court of Special Appeals continued to pursue the siren call in Eiland v. State, 92 Md.App. 56, 79-82 , 607 A.2d 42 (1992), rev’d on other grounds sub nom. Tyler v. State, 330 Md. 261 , 623 A.2d 648 (1993).

In Eiland , to be sure, we held three challenged ²⁵² utterances to be admissible, but we did so, not on the ground that they were non-hearsay, but on the very different ground that they qualified as trustworthy under four separate exceptions to the Rule Against Hearsay. 5 Notwithstanding a massive pull-back by the Federal Rules of Evidence in 1973, and by the Maryland Rules of Evidence in 1994, from what had been deemed hearsay in the case of non-assertive non-verbal behavior and an apparent, albeit less explicit, pullback in the case of non-assertive utterances and even some assertive utterances, the law of evidence still struggles to fence off the outer boundary of the “implied assertion” as an instance of possible hearsay, and there are still randomly reported sightings of Old Marsden along the forest edges of that boundary. The most recent alleged sighting was by the appellant in this case. The Murder of Three-Year-Old Calen The appellant, Erik Stoddard, was convicted by a Baltimore City jury, presided over by Judge Roger W. Brown, of the second-degree murder of three-year-old Calen DiRubbo and of child abuse resulting in death. The appellant was the live-in boyfriend of the victim’s mother and was regularly, albeit not exclusively, the daytime caretaker of Calen.

The immediate cause of death was multiple blunt force injuries. Although the time of Calen’s death was between 8:30 p.m. and 10:30 p.m. on June 15, 2002, the state of Calen’s body indicated to the medical examiner that the fatal injuries had ²⁵³ been inflicted at some time between 4:00 a.m. and 6:30 p.m. that day. The onset of vomiting by Calen at about noon, which the medical examiner opined would have followed shortly after the infliction of a “tremendous amount of force” to the abdomen, resulting in a severed bowel, further pinpointed the likely timing of the injury to shortly before noon. It was at noon that the appellant called Calen’s mother to report the vomiting.

Moving downward from the earliest end of the time range, the presence in the home of Calen’s mother until she went to work at 9 a.m., and the presence of Calen’s maternal grandfather until about 11 a.m., permits the inference that the ultimately fatal injuries were not inflicted before 11 a.m. Inferentially, the critical time period may well have been between 11 a.m. and noon. The medical examiner also established that there was evidence of numerous injuries on various parts of Calen’s body and that those injuries had been inflicted over a period of a month or more prior to Calen’s death. The maternal grandmother noticed, beginning in March, various bruises on Cal-en’s body, a “goose egg” on her forehead, and black eyes.

She warned her daughter that if she saw any more injuries to the child, she was going to call social services. In June, she testified, Calen became extremely upset about returning home when the appellant was there. Calen’s aunt also testified that, beginning in March, Calen became more withdrawn and began to regress in her speaking skills. The aunt also noticed a large bruise on Calen’s forehead, black eyes, and a bruise on the check.

Calen’s mother began noticing bruises on Calen’s body over a period of four or five months before she died. She recounted, in a statement to the police that was introduced as substantive evidence, that the appellant was toilet training Calen by spanking her so hard that it left bruises on her buttocks. The appellant ignored the mother’s admonishment that he was hitting Calen too hard. She stated that she heard Calen cry out in pain with “shrill shrieks” when Calen was ²⁵⁴ alone in the bathroom with the appellant.

She stated that the appellant once injured Calen by “whacking” her on the head. In any event, the appellant does not challenge the legal sufficiency of the evidence to support the convictions. He raises the two contentions, challenging evidentiary rulings, 1. that Judge Brown erroneously admitted an out-of-court implied assertion in violation of the hearsay rule, and 2. that Judge Brown erroneously permitted the State to question three separate witnesses about prior acts of violence on the part of the appellant. Ají Out-of-Court Utterance By Eighteen-Month-Old Jasmine Pritchett On June 15, Jennifer Pritchett, Calen’s aunt, dropped off her eighteen-month-old daughter, Jasmine, Calen’s cousin, to stay with Calen while she, the mother, was attending a wedding.

Jasmine arrived at between 11:15 and 11:30 a.m. At home were Calen and Calen’s five-year-old brother, Nick. Attending the three children was the appellant. The timing was such that Jasmine may well have been present when the fatal injuries were inflicted on Calen.

Jennifer Pritchett picked Jasmine up between 4:15 and 4:30 p.m. Jennifer Pritchett testified about dramatic changes in Jasmine’s behavior immediately following her visit to 2505 Moore Avenue on the day Calen died. She testified that, although Jasmine had never before in her life exhibited any such behavior, she suddenly began suffering nightmares, hives, unaccustomed fear of strangers or loud noise, and screaming fits. Q. Ma’am, have you noticed any behavioral changes in Jasmine since Saturday June 15th?

A. Yes, I have. Q. And would you describe just the behavioral changes for the jury, please? A. Jasmine has become- THE COURT: Keep your voice up. ²⁵⁵ A. Jasmine is very petrified, of any strangers introduced to her or if there is any form of loud mise, yelling, anything, she has gotten so upset that she’s broken out in hives. She has nightmares and screaming fits.

Q. Have you ever seen any of these behaviors prinr to June 15th? A. No. (Emphasis supplied). At that point Ms. Pritchett had not repeated a word that had been uttered by Jasmine and there was demonstrably no hearsay problem. The examination then proceeded: Q. Has she ever—you have never discussed this case with her, have you?

A. No, I have not. Q. And has she ever—has she ever asked you any questions about it? A. She asked me if Erik was going to- MR.McFADDEN: Object. THE COURT: No, Pm going to overrule it.

Q. Go ahead, ma’am. A. She asked me if Erik was going to get her. (Emphasis supplied). The issue is a very narrow one.

Is a frightened eighteen-month-old’s question to her mother, “Is Erik going to get me?” an instance of hearsay? In Holland v. State, 122 Md.App. 532, 543 , 713 A.2d 364 (1998), we at least anticipated the question. When a, witness testifies as to words spoken by some other person on some other occasion, it has becom,e, sadly, a Pavlovian reflex among lawyers to leap to their feet and yell, “Hearsay!” The reflex is frequently as nonsensical as it is automatic. (Emphasis supplied).

On this occasion, we are not suggesting that the reflex was nonsensical. It was, as the necessary complexity of our analysis will demonstrate, ingeniously clev ²⁵⁶ er. Like Scrooge on Christmas Eve, we are confronted by the Ghost of the Hearsay Rule Past. The ABC’s of Hearsay As a Point of Analytic Departure To a student first embarking on Evidence 101, the key to understanding hearsay is, long before venturing into the thicket of the hearsay exceptions, to develop a sure “feel” for the difference between those utterances that are hearsay and those that are not.

One must be able to negotiate the territory that McCormick called “the borderland of hearsay.” 6 It is not enough to know that a challenged statement is admissible. That can be a lucky guess. Is it admissible because the hearsay rule is satisfied?, or is it admissible because the hearsay rule is inapplicable? The classic classroom teaser posits a witness who testifies that he spoke by telephone with his brother in London, who said, “It is raining in London.” To the professor’s query as to whether that brotherly utterance is hearsay, the only intelligent answer is “I don’t have the foggiest.” It depends on the purpose for which the statement is offered.

If it is offered to prove that at a given time it was raining in London, it is, of course, hearsay. If it is offered to prove that at a given time the brother was alive and able to speak, it is, with equal certainty, non-hearsay. The first purpose needs the brother to be shown to be trustworthy. The second purpose is indifferent to trustworthiness, and the hearsay rule is only designed to guarantee trustworthiness.

In Ali v. State, 314 Md. 295, 304 , 550 A.2d 925 (1988), Judge McAuliffe gave a classic common law definition of hearsay. Hearsay is generally defined as 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. Thus, when a statement is offered for some purpose other than to prove the truth of the matter asserted therein, it is not hearsay. ²⁵⁷ See also Burgess v. State, 89 Md.App. 522 , 537 n. 12, 598 A.2d 830 (1991). The Maryland Rules of Evidence, § 5-801(c), promulgated six years after Ali v. State, defined “hearsay” in almost verbatim terms. “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.

Federal Rule of Evidence 801(c), from which the Maryland Rule is derived, is absolutely verbatim with the Maryland definition. At the most basic level, under both the common law and the new Federal and Maryland Rules, a hearsay statement consisted routinely of the speaking of a declarative sentence in the indicative mood, which sentence stated the very fact which the proponent of the statement sought to prove by its use. Early on, however, it was recognized that a hearsay statement could be a writing of an assertion as well as a speaking of it. It was also universally recognized, virtually ab origine, that a hearsay statement could consist of a non-verbal action if the action were intended by the actor to be an assertion.

The pointing of a finger at Suspect # 4 is just as assertive as are the words, “The man who robbed me is Suspect # 4.” Just as surely assertive, in response to a question, is a vertical shaking of the head (“Yes”), a horizontal shaking of the head (“No”), or a shrug of the shoulders (“I don’t know”). 7 Reflecting that common law understanding of a hearsay “statement” is Maryland Rule 5-801 (a). ²⁵⁸ 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. Federal Rule of Evidence 801(a), from which the Maryland Rule derives, is absolutely verbatim. To complete the three intertwined definitions that go into the collective definition of “hearsay,” both Maryland Rule 5-801(b) and Federal Rule of Evidence 801(b) define “declarant.” A “declarant” is a person who makes a statement. With the earlier, and essentially indistinguishable, common law counterparts of such definitions, the law of evidence had clean-cut paradigms of hearsay and of non-hearsay, and there was a well-marked boundary between them.

The hearsay rule, without disruptive aberrations, was “ship shape and Bristol fashion.” Then Admiral Tatham elected to challenge his cousin’s will, and, even as we write, we are still being assailed by the consequences of that caveat. At the most basic level (pre-1838 and post-1994), little Jasmine’s question to her mother, “Is Erik going to get me?” clearly would not fit the hearsay mold. In Holland v. State, 122 Md.App. at 543-44 , 713 A.2d 364 , we discussed the ordinarily tell-tale grammatical and syntactical characteristics of a hearsay statement. To qualify as hearsay, the words recounted in court must, for starters, constitute an assertion or statement of a fact.

Many out-of-court utterances are self-evidently not assertions. If a witness testifies to the out-of-court inquiry, “What time is it?,” that inquiry is obviously not an assertion of anything. For an out-of-court utterance to qualify as an assertion, it generally must be in the indicative or declarative mood, rather than in the interrogative mood, the imperative mood, or the subjunctive mood. An out-of-court assertion of a fact may be true or untrue.

For that reason, its admissibility in evidence is problematic if offered to prove that fact. An out-of-court inquiry, “What time is it?” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem. The out-of- ²⁵⁹ court command, “Stop!” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem. (Emphasis supplied).

In Burgess v. State, 89 Md.App. at 537-38 , 598 A.2d 830 , Judge Alpert quoted with approval from D. Binder, Hearsay Handbook 18 (3rd ed. 1991): Many out-of-court utterances fall within such categories as greetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions of joy, annoyance, or other emotion, etc. Such utterances are not intended expressions of fact or opinion. They are not assertions, at least for purposes of the hearsay rule. Thus they are not hearsay. “Hello.” “How are you?” “Have a nice day.” “Would you like to have lunch?” “I hope it doesn’t rain tomorrow.” “I wonder what he paid for that car.” “Thank you.” “Can you join me for a drink?” “Don’t do that, or else.” “Watch your step.” None of the above utterances is an intended expression of fact or opinion. None is hearsay.

(Emphasis supplied). And see United States v. Oguns, 921 F.2d 442, 448-49 (2d Cir.1990) (an inquiry is not an assertion); United States v. Long, 905 F.2d 1572, 1579-80 (D.C.Cir.1990) (questions are non-assertive). To say that little Jasmine’s frightened question to her mother does not fit within the classic paradigm of hearsay, however, is not to say that it might not be embraced by the bloated definition of hearsay spawned by Wright v. Tatham. Indeed, the appellant proposes just that.

He posits as an implied assertion the following attenuated inference: 1) From ²⁶⁰ Jasmine’s question we may infer that Jasmine was afraid of Erik; 2) from Jasmine’s fear of Erik we may infer that Erik had done something to generate that fear; 3) from that likely causation, plus the timing, we may finally infer that Erik had assaulted Calen in the presence of Jasmine. The appellant then concludes that such an implied assertion is inadmissible hearsay. This argument requires us to turn our attention to the rise and fall of the implied assertion. The Rise and Fall of the Implied Assertion A. The Implied Assertion at Perihelion Having revisited briefly the heartland of the hearsay rule, we now venture into what was, for 136 years, its borderland.

With the decision in Wright v. Tatum, Pandora’s Box was opened and implied assertions were loosed upon the law of evidence. Virtually any action or any utterance by someone not present in court to testify that had even circumstantial probative value could arguably be excluded as hearsay. Proceeding not from the holding of Wright v. Tatham, involving letters to Marsden which were at least verbal statements of something, but from Wright v. Tatham’s encyclopedic dicta, the notice of an implied assertion soon embraced not only non-assertive verbal utterances but, even more sweepingly, non-assertive non-verbal conduct as well. Wright v. Tatham’s illustrative hypothetical about a sea captain has become as famous as the decision in Wright v. Tatham itself.

On the issue of whether a ship was seaworthy, the hypothetical evidence was that its captain thoroughly inspected the ship and then boarded it for a long sea voyage accompanied by his wife and children. Wright v. Tatham gave this as an example of an implied assertion. It was the initial predicate for a classic two-step inference: 8 1) it could be inferred from the captain’s actions that he believed the ship ²⁶¹ to be seaworthy; 2) it could, in turn, be inferred from his belief that the ship was, indeed, seaworthy. With that dicta, the notion of implied assertions was loose and running in an open field.

Ronald J. Bacigal, “Implied Hearsay: Defusing the Battle Line Between Pragmatism and Realism,” 11 Southern Illinois L.J. 1127 (1987), observed, “The riddle of implied assertions has delighted academicians for 150 years with the subtleties of its intellectual challenges.” Almost every academic discussion of implied assertions now adds to the case of the sea captain the example of the raising of an umbrella as an implied assertion that it is raining. Circumstantial evidence of rain, to be sure, but an implied assertion? Does one who concluded that it was raining from looking out the window and seeing a dozen raised umbrellas need to produce the umbrella holders in court for cross-examination? 9 R. Lempert and S. Saltzburg, A Modem Approach to Evidence 367 n. 41 (2d ed.1982), wonders if “the issue would not have disappeared entirely by now if the problems were not so intriguing to commentators and teachers of evidence.” B. Academic Disenchantment with the Implied Assertion In the Twentieth Century academic criticism of the implied assertion as something necessarily covered by the hearsay rule became widespread. One such criticism was that the very term “implied assertion” drained the word “assertion” of almost all of its intended content. “Assertion” traditionally connoted a deliberate communicative intention, something that “implied assertion” totally lacked.

Mueller, “Post-Modern Hearsay Reform,” criticizes Baron Parke for having “broadly applied the term [implied assertion] across the board to any indication that any human behavior provides about acts, events or conditions, treating as hearsay all human conduct ²⁶² offered for the two-step inference.” Professor Mueller goes on: “[I]mplied assertion” is a singularly inept and artificial umbrella term. It requires us to understand “imply” in the weak sense of “suggest” or “indicate,” not in the usual strong sense of describing what a person means to convey. It divorces “assertion” from normal usage, making it mean essentially “evidence” and severing it from expressive or communicative purpose. If an ordinary letter is an implied assertion that its recipient is competent, then an overcast sky is an implied assertion that rain is in the offing.

Absent an intent to express or communicate competence, it is no more illuminating to describe a letter as an implied assertion of this point than it is to describe clouds as implied assertions that it will rain. 76 Minn. L.Rev. at 419 n. 153. Another criticism of the expanded definition of hearsay was that the evidentiary reception of a merely implied assertion did not threaten the special dangers, particularly that of testimonial deception, that the hearsay rule was designed to forfend. McCormick on Evidence, at 110, measures implied assertions consisting of non-assertive non-verbal conduct against “the dangers which the hearsay rule is designed to guard against,” and concludes that such implied assertions are nothing more than circumstantial evidence and should not be embraced within a proper definition of hearsay.

A satisfactory resolution can be had only by making an evaluation in terms of the dangers which the hearsay rule is designed to guard against, i.e., imperfections of perception, memory, and narration. It is believed that such an analysis can result only in rejecting the view that evidence of conduct, from which may be inferred a belief, from which in turn may be inferred the happening of the event which produced the belief, is the equivalent of an assertion that the event happened and hence hearsay. People do not, prior to raising their umbrellas, say to themselves in soliloquy form, “It is raining,” nor does the motorist go forward on ²⁶³ the green light only after making an inward assertion, “The light is green.” The conduct offered in the one instance to prove it was raining and in the other that the light was green, involves no intent to communicate the fact sought to be proved, and it was recognized long ago that purposeful deception is less likely in the absence of intent to communicate. (Emphasis supplied).

Even acknowledging that an opponent might wish, through cross-examination, to probe the actor’s perception and memory, McCormick still concludes that such evidence should not be subjected to the exclusionary sanction of the hearsay rule. Even though the risks arising from purposeful deception may be slight or nonexistent in the absence of intent to communicate, the objection remains that the actor’s perception and memory are untested by cross-examination for the possibility of honest mistake. However, in contrast to the risks from purposeful deception, those arising from the chance of honest mistake seem more sensibly to be factors useful in evaluating weight and credibility rather than grounds for exclusion. Moreover, the kind of situation involved is ordinarily such as either to minimize the likelihood of flaws of perception and memory or to present circumstances lending themselves to their evaluation.

Id. (Emphasis supplied). Maguire, “Around and Through the Thicket,” p. 773, sadly described evidence as “a field of probative law long befogged by memories of Wright v. Tatham and by fitful revival of like uncertainties in the minds of perplexed lawyers.” Mueller, “Post-Modern Hearsay Reform,” p. 418, characterized the term “implied assertion” as an “ancient formalism which once described all human behavior (both assertive and non-assertive) when offered for the two-step inference.” C. The Retreat of the Implied Assertion From Hearsay Coverage The reaction against the implied assertion as an instance of hearsay finally reached critical mass with the promulgation of ²⁶⁴ the Federal Rules of Evidence in 1973. By defining “hearsay” more tightly and precisely than the common law had done, Federal Rule of Evidence 801 effectively barred most, if not all, instances of what had been called “implied assertions” from the coverage of the hearsay rule. 10 Maryland Rule 5-801, effective in 1994, is based on Federal Rule 801(a), (b), and (c) and is indistinguishable from it.

McCormick on Evidence, at 97, points out that, as of 1992, the definition of “hearsay” in Federal Rule 801 was in effect in about half the states and had, in addition, been quoted with approval or been adopted outright on a case-by-case basis in a number of other states where the Federal Rules had not been adopted in their entirety. As far as the definition of hearsay is concerned, Maryland Rule 5-801 is identical to Federal Rule 801(a), (b), and (c), 11 and there is no remote suggestion anywhere that Maryland’s interpretation will not follow the interpretation of its federal model. If any passing phraseology in the Maryland caselaw might seem at odds with the federal rule, what is almost certainly revealed is simply an inadvertent lapse of understanding or careless phrasing by the Maryland opinions and not a deliberate policy decision to have Maryland depart from its federal counterpart. 1. Non-Assertive Non-Verbal Conduct Although the hearsay rule’s pull-back from the implied assertion has been a broad strategic retreat along the entire front, that front is divided into three separate sectors.

The retreat in each sector requires a slightly different analysis. Those separate sectors are 1) non-assertive non-verbal conduct, 2) non-assertive verbal utterances, and 3) assertive ver ²⁶⁵ bal utterances offered as a basis for inferring something other than the thing asserted (the two-step or attenuated inference). The exclusion from coverage of non-assertive non-verbal conduct is absolute and the easiest of the exclusions to analyze. Federal Rule 801(a) expressly provides that “nonverbal conduct of a person” qualifies as a “statement” only “if it is intended by the person as an assertion.” The Advisory Committee’s note to Federal Rule 801(a) explains in pertinent part: Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement.

Other nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. The sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct.

The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. (Emphasis supplied). 4 Stephen Saltzburg, Michael Martin, and Daniel Capra, Federal Rules of Evidence Manual (8th ed.), 801-14, unequivocally declares that the result of Wright v. Tatham’s hypothetical case of the sea captain would be different under Federal Rule 801 (and Maryland Rule 5-801). The result of the ship captain hypothetical changes under Rule 801. Conduct is not hearsay merely because it is offered to prove the truth of the belief that generated the ²⁶⁶ conduct.

Rather, under Rule 801, conduct can only be hearsay if the declarant intended by the conduct to communicate information. The Trial Judge has to determine whether conduct was intended to assert something or not. The Advisory Committee’s Note states that “[t]he rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases uñll be resolved against him and in favor of admissibility.'” (Emphasis supplied). Paul S. Milich, Re-Examining Hearsay Under the Federal Rules: Some Method for the Madness, 39 Kansas L.Rev. 893, 903, pronounces a similar obituary for the umbrella-opening example, as well as an obituary for the Wright v. Tatham approach generally.

The text of Rule 801 itself does not support a Wright v. Tatham approach. Subsection (a)(2) rejects this approach in cases of nonverbal conduct. For example, to prove that it was raining at the time, witnesses testify that they saw Mary opening her umbrella as she was walking out the door. Under the Wright v. Tatham approach, this evidence is hearsay because Mary’s conduct implies that she believed it was raining and her belief implies that it was, in fact, raining.

But the language of Rule 801(a)(2) points to a result at odds with the Wright v. Tatham approach: “Nonverbal conduct of a person” qualifies as a potential hearsay statement only “if it is intended by the person as an assertion.” Opening an umbrella normally is not intended to be an assertion about anything, and, thus, such nonverbal conduct does not fall within the federal definition of hearsay. (Emphasis supplied). Lynn McLain, Maryland Rules of Evidence (2d ed.2002), p. 183, was equally emphatic about the foreclosing effect of Maryland Rule 5-801 specifically. Non-assertive non-verbal conduct is not hearsay even if it can be characterized as an implied assertion.

An observation about vocabulary is here in order. It is not that such conduct has been ²⁶⁷ exempted from the category of “implied assertion.” It is rather that such implied assertions, notwithstanding their venerable label, have been exempted from the category of “hearsay.” Rule 5-801 is consistent with the pre-Title 5 Maryland law, with one clear exception. Under the Rule, a person’s nonverbal, nonassertive conduct (not obviously engaged in as a means to communicate particular, identifiable words) can never be hearsay, even if it is offered as an implied assertion by the out-of-court actor. For example, suppose that a ship has been lost at sea.

If evidence that the ship’s captain inspected the ship, then boarded it with his family, and sailed away, is offered to prove that the ship was seaworthy at the time of sailing, it is offered as an implied assertion on the part of the captain of his apparent belief that “the ship is seaworthy.” This type of evidence was considered to be hearsay, in dictum in the famous English case, Wright v. Doe dem. Tatham, 7 Ad. & E. 313, 112 Eng. Rep. 488 (1837), 5 Cl. & F. 136 (H.L. 1838), because its probative value to show the ship’s seaworthiness depended on the ship’s captain’s having had a particular belief (that the ship was seaworthy—not, for example, that he knew it was not seaworthy, but decided to take his chances, so as to escape a greater danger on his heels) and on his having been accurate as to the fact he apparently believed. Wright was followed by the Maryland Court of Appeals in Waters v. Waters, 35 Md. 531 , (1872), although Waters involved, as did the facts of Wright, an implied assertion from personal letters (verbal, not nonverbal, conduct).

Under Rule 5-801, the Wright dictum can no longer be followed in Maryland courts, when the actor was engaging in nonverbal, nonassertive conduct. (Emphasis supplied). Professor McLain further notes, at p. 187: By vil fue of Rule 5-801(a)(2), nonverbal, nonassertive conduct (conduct that was neither in words nor obviously ²⁶⁸ intended as a substitute for identifiable words, to convey a particular message) can never be hearsay, because it is not a “statement.” The Rule clearly rejects the reasoning of Wright v. Doe dem. Tatham, 7 Ad. & E. 313, 112 Eng.

Rep. 488 (1837), 5 Cl. & F. 136 (H.L. 1838), to the extent that Wright stands for the proposition that even nonverbal, nonassertive conduct will be hearsay, if it is offered as an implied assertion, i.e., as evidence manifesting the out-of-court actor’s belief, offered to prove the truth of the matter that the out-of-court actor apparently believed. (Emphasis supplied). With respect to non-assertive non-verbal conduct, the rules, Maryland and federal, have spoken. Even if arbitrary (which we are not suggesting), and even if to the chagrin of some academic commentators, that’s it!

The debate is over. There is but to salute and advance on Balaklava Heights. 2. Non-Assertive Verbal Utterances In that sector of the implied assertion front once garrisoned by non-assertive verbal utterances, there has also been a complete pull-back of hearsay coverage. In this sector, however, a slight fog over the terrain makes the perception of the pull-back a little less clear-cut than in the case of non-assertive non-verbal conduct.

To clear away the fog, we must first identify what is non-assertive. The Committee Note to Maryland Rule 5-801, for instance, states: This Rule does not attempt to define “assertion,” a concept best left to. development in the case law. The fact that proffered evidence is in the form of a question or something other than a narrative statement, however, does not necessarily preclude its being an assertion. (Emphasis supplied).

As the Committee Note points out, the fact that an utterance is in the form of a question “does not necessarily preclude its being an assertion.” (Emphasis supplied). Opportunistically, attorneys seize upon that last sentence as a ²⁶⁹ fog-generating device. In the overwhelming majority of cases, of course, a question will not be an assertion. There are, however, rare exceptions, and those exceptions may be better illustrated than they may be defined.

Professor McLain, at 183, offers the illustration that the question, “Did you know Scott stole my car?” is clearly an assertion that Scott stole the car. The “Did you know’s” generally are a fruitful source of assertive questions, as are questions beginning with “Why.” The sarcastic question can also be a bountiful source. Bacigal, “Implied Hearsay,” at 1139, offers the illustration of the declarant who, when asked, “Is that pure heroin?” sarcastically responds, “Do cops wear blue?” That clearly asserts that the substance being discussed is pure heroin. In Carlton v. State, 111 Md.App. 436, 443 , 681 A.2d 1181 (1996), Judge Salmon offered two additional examples of questions that could qualify as assertive.

Many questions asked by an out-of-court declarant can be implied assertions. For example, the question, “Do you need change?” impliedly asserts that the questioner has change. State v. Saunders, 23 Ohio App.3d 69 , 491 N.E.2d 313 (1984). The question, “Why did you stab me, Brutus?” impliedly asserts that the questioner was stabbed by Brutus.

A question that necessarily assumes a condition will almost always be an assertion of that condition. “Do you think it will stop raining within the hour?” necessarily asserts that it is raining now. The presence of the word “stop” in a question, or in a command for that matter, is a tell-tale clue of an assertion. It signals the difference between a non-declarative utterance that demands an inference and one that merely suggests an inference. Such assertive questions are, however, rare and they are not hard to identify.

The Committee Note does not open the floodgates to questions generally and must not be overread. Ordinarily,