Bernadyn v. State, No. 1266

CourtCourt of Special Appeals of Maryland
Writing for the CourtGREENE, J.
Citation831 A.2d 532,152 Md. App. 255
PartiesMichael Joseph BERNADYN v. STATE of Maryland.
Docket NumberNo. 1266
Decision Date05 September 2003

831 A.2d 532
152 Md.
App. 255

Michael Joseph BERNADYN
v.
STATE of Maryland

No. 1266, Sept. Term, 2002.

Court of Special Appeals of Maryland.

September 5, 2003.


831 A.2d 534
Carrie S. Leonetti, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellant

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued before KENNEY, BARBERA and GREENE, JJ.

831 A.2d 533
GREENE, J

Appellant, Michael Joseph Bernadyn, was convicted by a jury in the Circuit Court for Harford County of possession of marijuana, possession of marijuana with intent to distribute, and maintaining a common nuisance. The two drug possession charges were merged and appellant was sentenced to a term of imprisonment of five years for possession of marijuana with intent to distribute and a consecutive one-year term for maintaining a common nuisance.

Appellant noted this appeal to raise the following questions for our review:

831 A.2d 535
I. Did the circuit court err in admitting into evidence the medical bill addressed to appellant

II. Did the circuit court err in permitting Deputy Burkhardt to offer opinion testimony?

III. Did the circuit court err in refusing to pose two of appellant's requested voir dire questions?

IV. Did the circuit court err in denying appellant's motion for judgment of acquittal?

Finding no error and that there was sufficient evidence to convict appellant, we affirm the judgments.

FACTS

In August 2001, Deputy Mark Burkhardt of the Harford County Sheriff's Office conducted evening and late night surveillance on 2022 and 2024 Morgan Street in Edgewood, Maryland. Deputy Burkhardt observed the residences for approximately one week. Deputy Burkhardt testified at trial to witnessing numerous individuals entering and exiting the two buildings. Individuals would often exit and walk to adjoining streets to conduct hand-to-hand drug transactions. Deputy Burkhardt further noted that individuals would often return to one of the residences after a transaction had taken place.

Deputy Burkhardt testified that he frequently witnessed appellant leaving 2024 Morgan Street and walking up and down the street. Appellant was also observed looking up and down the street prior to letting people into the residence. Deputy Burkhardt stated that he observed this behavior on approximately ten to fifteen different occasions. Deputy Burkhardt also noted that individuals entering 2024 Morgan Street included known drug dealers. These individuals were viewed answering the door at 2024 Morgan Street and conducting transactions in the area.

On one occasion, two females were viewed exiting 2024 Morgan Street and exchanging what appeared to be a marijuana joint. The females departed and returned to the residence a short time later.

Based on the preceding information, Deputy Burkhardt applied for and was granted a search and seizure warrant for 2024 Morgan Street.

On August 29, 2001, Deputy Burkhardt, Detective Brayband, and Sergeant Galbraith of the Harford County Narcotics Task Force executed the search and seizure warrant at 2024 Morgan Street. Appellant was found alone in the living room of the residence. The police seized five one-ounce bags and twenty small baggies1 containing marijuana, a coffee can holding marijuana seeds and stems from the master bedroom, a small tin holding marijuana from a desk in the living room, and a marijuana pipe from a curio cabinet in the living room. Deputy Burkhardt testified that the master bedroom contained men's clothing. Notably, the second bedroom only contained women's clothing and objects that would belong to an individual in high school or middle school. The police also seized a medical bill from Johns Hopkins Bayview Physicians addressed to Bernadyn at 2024 Morgan Street. The "Statement Date" listed on the bill was August 16, 2001.

Appellant was charged with possession of marijuana, possession of marijuana with intent to distribute, and maintaining a common nuisance. A two-day jury trial was held on April 15-16, 2002. During the

831 A.2d 536
course of trial the State offered, over appellant's objection, the medical bill indicating appellant's address as 2024 Morgan Street. Appellant contended that he did not reside at the subject residence and was not aware of the marijuana or paraphernalia. As a means of bolstering appellant's position, appellant's counsel asked Deputy Burkhardt whether he investigated the name on the lease to 2024 Morgan Street. Deputy Burkhardt noted that he had made such an inquiry and discovered that an individual named Nicole Majerowicz was the lessee. On redirect, the following pertinent exchange occurred:
STATE: Deputy, how many search and seizure warrants have you assisted with in your career?

DEFENSE: Objection. Relevance.

COURT: Overruled.

DEPUTY BURKHARDT: Over 50.

STATE: And when you've conducted those search and seizure warrants, how common is it for the utilities to be in someone else's name?

DEFENSE: Objection.

COURT: If you know. Overruled.

DEPUTY BURKHARDT: Very common.

STATE: How common is it for the apartment to be in someone else's name?

DEFENSE: Objection.

COURT: Overruled.

DEPUTY BURKHARDT: Very common.

At the conclusion of trial, the jury found appellant guilty of all charges. Appellant subsequently noted the current appeal.

We shall include more facts in the discussion as necessary.

DISCUSSION

I. The Medical Bill

Appellant contends that the circuit court erred in admitting the medical bill into evidence. He argues that the bill constituted hearsay and that the State did not establish that the bill was produced in the ordinary course of business. We do not agree.

Maryland Rule 5-801 provides the following pertinent definitions:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "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.

Rule 5-802 provides that hearsay is generally inadmissible. See Stanley v. State, 118 Md.App. 45, 53, 701 A.2d 1174 (1997), vacated in part on other grounds, 351 Md. 733, 720 A.2d 323 (1998)(stating "[h]earsay is considered to be generally unreliable because the opponent does not have the opportunity to cross-examine the declarant"). Although "the admission of evidence is committed to the considerable and sound discretion of the trial court," we shall reverse a trial court "if the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion." Merzbacher v. State, 346 Md. 391, 404, 697 A.2d 432 (1997); see Conyers v. State, 354 Md. 132, 176, 729 A.2d 910 (1999)(noting the trial court's determination regarding the admission of evidence "may not be disturbed on appeal unless there has been an abuse of that discretion"); Hopkins v. State, 352 Md. 146, 158, 721 A.2d 231

831 A.2d 537
(1998)(stating "we extend to the trial court great deference in determining the admissibility of evidence and will reverse only if the court abused its discretion").

The case sub judice raises the question of whether a bill, mailed to an individual at a particular address can be considered hearsay. This is an issue of first impression for the State of Maryland. We shall begin by discussing Rule 5-801.

Rule 5-801(a)(1) defines a statement as an oral or written assertion. Quite certainly, a bill addressed to an individual at a specific address does not assert anything more than that the individual owes the sender money for services. The bill simply did not state "Michael J. Bernadyn lives at 2024 Morgan Street." The subject bill, and indeed most correspondence, only includes a name and address. We reject any contention that such information contains an implied assertion2 that the individual resides at the listed residence. The conduct of addressing a letter is a non assertive action. United States v. Singer, 687 F.2d 1135, 1147 (8th Cir.1982), rev'd on other grounds en banc, 710 F.2d 431 (8th Cir.1983).

Of import, several jurisdictions have directly dealt with the issue before us. The United States Court of Appeals for the Eighth Circuit addressed the issue in United States v. Singer, supra. In Singer, the appellees were convicted of conspiracy

831 A.2d 538
to distribute marijuana and attempted distribution of marijuana. Id. at 1138. Subsequent to the arrest of an individual attempting to mail large quantities of marijuana, police found documents linking Joseph Sazenski to the drug ring. Id. at 1139. The police consequently obtained a search warrant for Sazenski's residence at 600 Wilshire, Minnetonka, Minnesota. Id. During the resulting search, police seized a gram scale, marijuana, an eviction notice addressed to "Carlos Almaden and Joseph Sazenski, 600 Wilshire Drive, Minnetonka, Minnesota," several other documents, and substantial amounts of money. Id. at 1139-40. On appeal, appellees contended that the envelope addressed to Almaden and Sazenski was hearsay. Singer, 687 F.2d at 1147. In rejecting this contention the Court stated:
Fed.R.Evid. 801(c) states: "`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." The Advisory Committee for the proposed Rules of Evidence noted that "the effect of the definition of `statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion.... [Some] nonverbal conduct ... 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
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8 practice notes
  • Baker v. State, No. 681
    • United States
    • Court of Special Appeals of Maryland
    • July 15, 2004
    ...that the trial court should have asked question 15. We reach a different conclusion with respect to question 12. In Bernadyn v. State, 152 Md.App. 255, 283, 831 A.2d 532, cert. granted on other grounds, 378 Md. 613, 837 A.2d 925 (2003), the trial court refused to ask whether the panel membe......
  • Marquardt v. State, 355
    • United States
    • Court of Special Appeals of Maryland
    • September 8, 2005
    ...not include matters that will be dealt with in the jury instructions. Baker, 157 Md.App. at 616-17, 853 A.2d 796; Bernadyn v. State, 152 Md.App. 255, 283, 831 A.2d 532 (2003), cert. granted, 378 Md. 613, 837 A.2d 925 (2003); Wilson v. State, 148 Md.App. 601, 656-67, 814 A.2d 1 (2002); Carte......
  • Bernadyn v. State, No. 91, September Term, 2003.
    • United States
    • Court of Special Appeals of Maryland
    • December 8, 2005
    ...on all counts. Bernadyn noted a timely appeal to the Court of Special Appeals. That court affirmed. Page 606 Bernadyn v. State, 152 Md.App. 255, 261, 831 A.2d 532, 536 (2003). We granted Bernadyn's petition for writ of certiorari to consider the following Does a medical bill discovered at a......
  • White v. Simard, No. 1152
    • United States
    • Court of Special Appeals of Maryland
    • September 5, 2003
    ...have not addressed Simard's contention that he was entitled to some or all of the surplus proceeds because of improvements he made to the 831 A.2d 532 property in the interim between the initial sale and the resale. The circuit court did not reach this issue, and it may require factual find......
  • Request a trial to view additional results
8 cases
  • Baker v. State, No. 681
    • United States
    • Court of Special Appeals of Maryland
    • July 15, 2004
    ...that the trial court should have asked question 15. We reach a different conclusion with respect to question 12. In Bernadyn v. State, 152 Md.App. 255, 283, 831 A.2d 532, cert. granted on other grounds, 378 Md. 613, 837 A.2d 925 (2003), the trial court refused to ask whether the panel membe......
  • Marquardt v. State, 355
    • United States
    • Court of Special Appeals of Maryland
    • September 8, 2005
    ...not include matters that will be dealt with in the jury instructions. Baker, 157 Md.App. at 616-17, 853 A.2d 796; Bernadyn v. State, 152 Md.App. 255, 283, 831 A.2d 532 (2003), cert. granted, 378 Md. 613, 837 A.2d 925 (2003); Wilson v. State, 148 Md.App. 601, 656-67, 814 A.2d 1 (2002); Carte......
  • Bernadyn v. State, No. 91, September Term, 2003.
    • United States
    • Court of Special Appeals of Maryland
    • December 8, 2005
    ...on all counts. Bernadyn noted a timely appeal to the Court of Special Appeals. That court affirmed. Page 606 Bernadyn v. State, 152 Md.App. 255, 261, 831 A.2d 532, 536 (2003). We granted Bernadyn's petition for writ of certiorari to consider the following Does a medical bill discovered at a......
  • White v. Simard, No. 1152
    • United States
    • Court of Special Appeals of Maryland
    • September 5, 2003
    ...have not addressed Simard's contention that he was entitled to some or all of the surplus proceeds because of improvements he made to the 831 A.2d 532 property in the interim between the initial sale and the resale. The circuit court did not reach this issue, and it may require factual find......
  • Request a trial to view additional results

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