Thomas v. State

GREENE, J. This case involves two legal questions: (1) whether prior consistent statements are admissible under Maryland Rule 5-802.1(b) if the declarant had multiple reasons to fabricate the statements and the statements predated at least one of the declarant’s motives to fabricate; and, (2) whether statements relied upon at trial as substantive evidence, nonetheless, are admissible under Maryland Rule 5-616(c) to rehabilitate a witness. We shall hold that the prior consistent statements, elicited through the testimony of police officers in this case, were not admissible under Rule 5~802.1(b) because they were made after the declarant had an expressed or implied motive to fabricate the statements, and the alleged motives were presented as such at trial before the trial judge made a determination as to the statements’ admissibility. In addition, we shall hold that the prior consistent statements were inadmissible hearsay and were neither relevant nor admissible under Rule 5-616(c) to “detract from the impeachment,” or “rebut logically” the impeachment undertaken. I. In the Circuit Court for Montgomery County, a jury convicted Petitioner, Kenneth Thomas, of distribution of a controlled dangerous substance.

The trial judge sentenced Petitioner to five years incarceration, suspending all but eighteen months. On appeal, the Court of Special Appeals affirmed that judgment. The intermediate appellate court reasoned that a witness’s prior consistent statements are admissible even if the witness had multiple motives to fabricate, so long as the witness made the statements before any one of the motives to fabricate. Alternatively, the court held that the witness’s prior consistent statements were admissible as rehabilitative evidence under Rule 5-616(c).

Thomas v. State, 202 Md.App. 386, 398-99 , 32 A.3d 503, 509-10 (2011). We granted ⁹¹ certiorari, Thomas v. State, 425 Md. 227 , 40 A.3d 39 (2012), to answer the following questions: 1. Did the Court of Special Appeals incorrectly interpret Maryland Rule 5-802.1(b) when it held that if a declarant had multiple motives to fabricate, the declarant’s prior consistent statement was admissible at trial under Rule 5-802.1(b) so long as it predated at least one of the declarant’s motives? 2. Applying this incorrect interpretation of Rule 5-802.1(b), did the Court of Special Appeals then err when it ruled admissible prior consistent statements by a declarant that came after the declarant had a motive to fabricate? 3.

Did the Court of Special Appeals incorrectly rule that the declarant’s prior consistent statements were admissible at trial pursuant to Maryland Rule 5-616(c)?

II

On December 9, 2009, Officer Peter Johnson, of the Montgomery County Police Department, parked his unmarked vehicle on the lot of the Milestone Shopping Center located in Germantown, Maryland. Officer Johnson set up surveillance at that location to observe activities occurring on the parking lot near the Blockbuster Video store. As he watched, a white Cadillac Eldorado driven by Richard Benjamin drove onto the lot, followed approximately thirty minutes later by a gold Saturn automobile driven by Petitioner. Benjamin got out of the Cadillac and approached the passenger side of the Saturn.

Officer Johnson noticed the interaction between the two drivers, which he described as “an exchange,” when Benjamin reached inside the vehicle driven by Petitioner. From this interaction, Officer Johnson surmised that Benjamin and Petitioner had just engaged in a drug transaction. Although he did not actually witness any “exchange [of drugs or money] because his view was partially obscured by the dashboard of [Petitioner’s] car[,]” Officer Johnson did see Benjamin reach inside the passenger compartment of Petitioner’s car. There ⁹² after, Benjamin and Petitioner drove away from the parking lot in their respective cars, and Officer Johnson radioed for backup to stop the two vehicles.

Officers Alfred Dzenkowski, Jeffrey Rea and Johnson were involved in conducting the stop of Benjamin. After stopping Benjamin’s car, two of the officers questioned Benjamin about where he was coming from and where he was going. In Benjamin’s words, “They said [the stop] was for traffic although there w[ere] three cops behind me ... I knew something was wrong.” According to Officer Johnson, “[i]n speaking with Mr. Benjamin, he had said that — his initial story was that he was just going shopping and somebody had asked him directions.” Benjamin also stated that he went to the Giant and Blockbuster stores before leaving the shopping center parking lot.

While the officers questioned Benjamin outside of his car, he consented to a search of his car and his person. In conducting the search, the officers directed Benjamin to remove his shoes. According to Officer Johnson, after removing his shoes, “[Mr. Benjamin] kicked his shoes into a wooded area behind” him. Officer Dzenkowski retrieved the shoes and found located inside the left shoe a white rock that later tested positive for crack cocaine.

When asked where he had gotten the crack cocaine, Benjamin responded, “I bought it from a guy named Kenny” — “I, I got it from a guy named Kenny at the Blockbuster, who drives a gold Saturn.” According to Benjamin, he paid for the drugs with two twenty-dollar bills and one ten-dollar bill. The police recovered no other drug paraphernalia from Benjamin or from inside his car. Officer Jason Cokinos was involved in the traffic stop of the Saturn driven by Petitioner. In response to questioning, Petitioner told the officer that he was coming from Frederick and was on his way to Pep Boys.

A search of Petitioner revealed that he was in possession of $275, fifty of which was in his left jacket pocket separated from the rest of his money. The fifty dollars consisted of two twenty-dollar bills and one ten-dollar bill. Officer Cokinos did not recover any drugs from Petitioner or from inside the Saturn. ⁹³ At trial, the State called Benjamin to testify. According to Benjamin, he met Petitioner as planned at the Blockbuster store and purchased drugs.

He testified that he paid for the drugs using two twenty-dollar bills and one ten-dollar bill. On direct examination, the State brought out that it made no promises to Benjamin in exchange for his testimony in this case; that Benjamin received a probation before judgment on the charge of possession of cocaine; and that two weeks prior to trial in this case, Benjamin was charged with unauthorized use of a motor vehicle. As to the unauthorized use charge, Benjamin attempted to explain that the charge stemmed from a misunderstanding when he borrowed a car from a friend. The defense counsel’s theory of the case was that Benjamin was the one selling drugs on December 9, 2009, and Petitioner went to Blockbuster intending to purchase drugs.

At the last minute, however, Petitioner decided not to make the purchase and left the parking lot. During trial, the defense emphasized that no drugs were found on Petitioner or in his vehicle. On cross-examination of Benjamin, defense counsel inquired about the details of the unauthorized use charge. Counsel asked if Benjamin actually returned the vehicle or if the owner came to get it after the police got involved.

Benjamin said that he did not return the vehicle and that the owner came and got it. In addition, defense counsel asked Benjamin if he told the prosecutor about the unauthorized use charge before he testified in the present case, and Benjamin said he had. Further, defense counsel asked Benjamin if he went to the Blockbuster on December 9 to sell drugs; and whether Petitioner was the buyer but changed his mind at the last minute. Benjamin denied that he went to the Blockbuster to sell drugs.

The State called Officer Johnson who testified that Benjamin told him that he bought drugs from Kenny. The State also called Officer Jeffrey Rea to testify that Benjamin told him that he purchased the drugs from “a black guy at a nearby shopping center.” During the direct examination of Officer Johnson, the following occurred: ⁹⁴ Q. Okay. And did you have an opportunity to speak with [Benjamin]? A. I did.

I asked Mr. Benjamin, “Okay”— [DEFENSE COUNSEL]: Your Honor, I’m going to object to the hearsay nature of any responses to his questions. [Emphasis added]. [THE PROSECUTOR]: Your Honor— THE COURT: Overruled. [THE PROSECUTOR]: — may we approach? Oh. By [the prosecutor]: Q. What did Mr. Benjamin say? A. I asked Mr. Benjamin, I told him, I was like, “Look, we know more than you think, this is not just a traffic stop, where did you get this, where did you get this crack cocaine?” and he said, “I bought it from a guy named Kenny”— [DEFENSE COUNSEL]: I object again, Your Honor.

THE COURT: Overruled THE WITNESS: — “I, I got it from a guy named Kenny at the Blockbuster, who drives a gold Saturn.” The direct examination of Officer Jeffrey Rea reveals the following: Q. Okay, thank you very much. Now, did you have an opportunity to speak at all "with Mr. Benjamin after the crack cocaine was seized? A. Yeah. After I came out of the car and Officer Dzenkowski had the, had the crack, I asked Mr. Benjamin where he got it from, and he said he— [DEFENSE COUNSEL]: Objection.

THE COURT: Overruled. THE WITNESS: — he said he bought it from a black guy at a nearby shopping center. The State recalled Officer Johnson and the following occurred: ⁹⁵ Q. Officer Johnson, when you were speaking with Mr. Benjamin, did he tell you how he paid for the rock of crack cocaine? [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: Overruled.

THE WITNESS: He did. On the scene initially, after we had him out, we found — Officer Dzenkowski found the rock of crack cocaine; I asked him, “Okay, you know, let’s, let’s talk,” and he said that he bought the, the crack from a man he knew as Kenny that was in a gold Saturn at the Blockbuster. THE WITNESS: Okay. He told me that he paid for the crack cocaine with $50.

BY [THE PROSECUTOR]: Q. Did he tell you the denomination that he used? A. He did later— [DEFENSE COUNSEL]: Objection. THE WITNESS: — at the— THE COURT: Overruled. THE WITNESS: Okay.

He did later at — at the German-town Station, I advised him of his rights. Mr. Benjamin— [DEFENSE COUNSEL]: Objection. Again, Your Honor, that is not responsive to the question. THE COURT: All right.

Just tell us if, at any time, he advised you as to the denominations with which he paid for the crack cocaine. THE WITNESS: He did. He told me there was two 20s and a 10 to make $50, that’s what he paid for the crack cocaine that was found in his shoe.

III

Generally, in order for evidence to be admissible, it must be relevant. Andrews v. State, 372 Md. 1, 19 , 811 A.2d 282, 292 (2002); see Md. Rule 5-402. Pursuant to Md. Rule 5- ⁹⁶ 401, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See Snyder v. State, 361 Md. 580, 590-91 , 762 A.2d 125, 131 (2000). The question of admissibility of evidence is to be determined by the trial judge under Md. Rule 5-104(a), taking into consideration Md. Rules 5-401 through 5-403.

See Smith v. State, 371 Md. 496, 504 , 810 A.2d 449, 454 (2002) (summarizing the rules to the extent that “evidence that is not relevant to a material issue is inadmissible,” and that evidence “even if relevant, [ ] may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury”) (citations omitted); Merzbacher v. State, 346 Md. 391, 404 , 697 A.2d 432, 439 (1997) (stating that “the admission of evidence is committed to the considerable and sound discretion of the trial court”) (citations omitted); Nance v. State, 331 Md. 549 , 558 n. 3, 629 A.2d 633 , 638 n. 3 (1993) (noting that questions of admissibility are for the court to determine, “including whether evidence is admissible generally and substantively or only for a limited purpose such as impeachment ....”) (citations omitted); Lynn McLain, Md. Rules of Evidence 206 (2d ed.2002) (highlighting that admissibility is determined by the trial judge, upon consultation of Rules 5-401 through 5^103). “Generally, statements made out of court that are offered for their truth are inadmissible as hearsay, absent circumstances bringing the statements within a recognized exception to the hearsay rule.” Su v. Weaver, 313 Md. 370, 376 , 545 A.2d 692, 694 (1988) (citing Kapiloff v. Locke, 276 Md. 466, 471 , 348 A.2d 697, 699 (1975)). Maryland Rule 5-802 provides generally that hearsay is inadmissible. It follows that prior out-of-court statements by a witness that are consistent with the witness’s trial testimony, generally, are not admissible to bolster the credibility of the witness. Holmes v. State, 350 Md. 412, 416-17 , 712 A.2d 554, 556 (1998).

There are exceptions to the general rules. Provided certain prerequisites are satisfied, under Md. Rule 5-802.1(b), a witness’s ⁹⁷ prior consistent statements are admissible as substantive evidence. See City Pass. Ry.

Co. v. Knee, 83 Md. 77, 79 , 34 A. 252, 253 (1896) (noting that where a witness has been impeached by a charge that he has testified under corrupt motives, the witness’s prior consistent statements have no relevancy to refute the charge unless the consistent statements were made before the source of the bias, interest, influence, or incapacity originated). Under Md. Rule 5-616(c)(2), a witness’s prior consistent statements are admissible, not as substantive evidence, but for nonhearsay purposes to rehabilitate the witness’s credibility. See Holmes, 350 Md. at 416-17 , 712 A.2d at 556 . In Anderson v. State, we noted that prior consistent statements may be admitted as an exception to hearsay under Md. Rule 5-802.1(b), “to rebut an express or implied charge against the [witness] of fabrication, or improper influence or motive; and/or [ ] under Md. Rule 5 — 616(c)(2), if the statement having been made detracts from the impeachment[.]” We also pointed out that “[t]hese rules, however, become applicable only if the defendant’s opening statement and/or cross examination of a State’s witness has ‘opened the door’ to evidence that is relevant (and now admissible) for the purpose of ... rehabilitation.” 420 Md. 554, 566-67 , 24 A.3d 692, 699 (2011) (citations, quotations and emphasis omitted).

Our cases point out that, on review, we will not disturb the trial court’s evidentiary rulings absent error or a clear abuse of discretion. Conyers v. State, 354 Md. 132, 176 , 729 A.2d 910, 933 (1999). Recently, in Parker v. State, 408 Md. 428, 436 , 970 A.2d 320, 325 (2009), we summarized our standard of review, generally, with regard to admissibility of evidence and hearsay rulings. We said: Maryland Rule 5-802 states that “[e]xcept as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” We discussed the standard of review for hearsay rulings in Bernadyn v. State, 390 Md. 1, 7-8 , 887 A.2d 602, 606 (2005): ⁹⁸ We review rulings on the admissibility of evidence ordinarily on an abuse of discretion standard.

Review of the admissibility of evidence which is hearsay is different. Hearsay, under our rules, must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule excluding such evidence or is “permitted by applicable constitutional provisions or statutes.” Md. Rule 5-802. Thus, a circuit court has no discretion to admit hearsay in the absence of a provision providing for its admissibility. Whether evidence is hearsay is an issue of law....

(Emphasis in original). Although the parties in this case dispute the correct standard of review, as Petitioner suggests, it is clear from our case law that in deciding whether a hearsay exception is applicable, we review the trial judge’s ruling for legal error rather than for abuse of discretion; that is because hearsay is never admissible on the basis of the trial judge’s exercise of discretion. See Dulyx v. State, 425 Md. 273, 285 , 40 A.3d 416, 424 (2012). Thus, if the prior consistent statements admitted into evidence in this case were hearsay, and do not satisfy the requirements of Rule 5-802.1(b) as an exception, the statements should not have been admitted as substantive evidence.

Holmes v. State, 350 Md. at 424 , 712 A.2d at 559 . Similarly, if prior consistent statements offered for rehabilitative purposes do not detract from the impeachment of a witness or rebut logically the impeachment undertaken, the statements are inadmissible under Rule 5-616(c)(2) and their admission may be reversible error. See Holmes, 350 Md. at 427 , 712 A.2d at 561 (noting that “[p]rior consistent statements used for rehabilitation of a witness whose credibility is attacked are relevant not for their truth ... [but rather] [t]hey are relevant because the circumstances under which they are made rebut an attack on the witness’s credibility”).

IV

Petitioner challenges the admission into evidence at trial, through the testimony of two police officers, the prior consis ⁹⁹ tent statements of Richard Benjamin, who participated in the alleged drug transaction along with the defendant, Kenneth Thomas. According to Petitioner, “[t]he moment police stopped Benjamin, Benjamin had a motive to fabricate any subsequent statement he made to police about the drug transaction.” Petitioner maintains that “Benjamin’s motive to fabricate — to diminish his role in the drug transaction to that of a buyer, not a seller — never went away.” Therefore, according to Petitioner, “[i]t should be immaterial that he later also developed a second motive to fabricate — when he faced charges for unauthorized use of a motor vehicle.” In summary, according to Petitioner, “Benjamin had a motive to fabricate when first questioned by police and that motive was not any less applicable simply because he later formed a second motive to fabricate.” Thus, Petitioner concludes that Benjamin’s prior consistent statements to the arresting police officers concerning Thomas’s drug distribution should have been admitted only if they were made before the declarant had any motive to fabricate. Respondent disagrees. According to Respondent, “Benjamin’s prior consistent statements ... were properly admitted as either substantive evidence or rehabilitative evidence under the applicable Maryland Rules.” Respondent asserts that the trial judge admitted Benjamin’s prior consistent statements because Thomas’s attorney tried to impeach Benjamin’s credibility.

As to the unauthorized use charge, Respondent posits that Benjamin’s “prior consistent statements rebutted defense counsel’s charge that Benjamin’s testimony resulted from fabrication or improper influence or motive,” because the alleged motive to fabricate arose after Benjamin spoke to the police about Petitioner’s involvement in the drug transaction. Furthermore, Respondent maintains that “to the extent that defense counsel [alleged] that Benjamin had several motives to fabricate before and after his prior consistent statements, these statements were still properly admitted as substantive evidence” because defense counsel specifically alleged that Benjamin was motivated to fabricate his testimony in light of the pending unauthorized use of a motor vehicle charge. ¹⁰⁰ Respondent points out that, at trial, “when [defense] counsel objected to the State’s request to introduce Benjamin’s prior consistent statements, Thomas never alleged the existence of an additional motive to fabricate at the time of Benjamin’s arrest.” In addition, Respondent asserts that it was not until defense counsel’s closing argument that he mentioned that “Benjamin may have had a motive to fabricate at the time of his arrest.” Thus, Respondent concludes, by pointing out that, even though the Court of Special Appeals acknowledged that Benjamin had multiple motives to fabricate, that court “rejected Thomas’s claim that all motives to fabricate must arise after a prior consistent statement for the statement to be admissible[.]” According to Respondent, in rejecting that premise, the intermediate appellate court held correctly that “a witness’s prior consistent statement is admissible if made prior to the existence of any one of multiple biases or motives that an opposing party charges, expressly or impliedly, might have influenced the witness’s testimony.” Thomas, 202 Md. App. at 398 , 32 A.3d at 509 . A more accurate characterization of Petitioner’s argument to the jury, however, was that Benjamin’s and Thomas’s roles in the drug transaction were reversed; Benjamin was the seller and Petitioner was the buyer. Thus, Petitioner maintains that Benjamin is not a credible witness because he had a motive to lie to the police from the moment the police discovered crack cocaine on his person.

Further, Petitioner asserts that Benjamin’s character is such that he will say anything to make himself look better. According to defense counsel, when Benjamin was stopped by the police and they asked what was going on, he lied. Also, defense counsel pointed out that, when Benjamin testified in court, he lied and that he will lie whenever “it’s going to elevate him in the eyes of whoever is asking the questions.” On the basis of the record before us, we know that when the State sought to introduce Benjamin’s prior statements, through the testimony of the police officers involved, defense counsel objected on the grounds of hearsay. The trial judge overruled the objections.

There was no discussion with the ¹⁰¹ trial judge about why the prosecutor believed that Benjamin’s statements to the police were not hearsay or why the defense counsel believed the statements were hearsay. The trial judge made no finding as to when, or if, Benjamin formed any motive to lie; nor was any comment made to dispel the notion that Benjamin’s prior statements were offered to rebut defense counsel’s attack on Benjamin’s trial testimony. See Holmes, 350 Md. at 420 , 712 A.2d at 557 (recognizing that “prior consistent statements] may not be admitted to counter all forms of impeachment or to bolster the witness merely because [he or] she has been discredited”) (citations and quotations omitted). V. Generally, prior out-of-court statements by a witness that are consistent with the witness’s trial testimony are not admissible to bolster the witness’s credibility.

Holmes , 350 Md. at 416-17 , 712 A.2d at 556 . There are exceptions to this rule. Maryland Rule 5-802.1 provides in relevant part: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (b) A statement that is consistent with the