Booth v. State

• Decision Date: 01 September 1985
• Docket Number: No. 62,62
• Parties: , 54 USLW 2642 John Edward BOOTH a/k/a Marvin Curtis Booth v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 313

306 Md. 313

508 A.2d 976, 54 USLW 2642

John Edward BOOTH a/k/a Marvin Curtis Booth v. STATE of Maryland.

No. 62, Sept. Term, 1985.

Court of Appeals of Maryland.

May 22, 1986.

Barbara L. Matthews, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Valerie J. Smith, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

McAULIFFE, Judge.

John E. Booth was convicted in the Circuit Court for Baltimore City of the premeditated murder and armed robbery of James Edward ("Pie") Ross, and was sentenced by Judge Martin Greenfeld to consecutive terms of life and twenty years imprisonment. Booth appealed to the Court of Special Appeals, contending that the trial judge erred in admitting hearsay evidence, and in instructing the jury. The Court of Special Appeals affirmed, Booth v. State, 62 Md.App. 26, 488 A.2d 195 (1985), and we granted certiorari to consider the question of the admissibility of evidence under the present sense impression exception to the hearsay rule.

At trial, the State proffered evidence that Regina Harrison telephoned Ross between 5:30 and 6:00 p.m. on the day of his murder. Harrison testified that Ross said he was getting ready to prepare dinner and was going to ask his company, a girl named Brenda, to leave. Harrison said she then heard the door at Ross' home open and questioned Ross as to who was there. Ross told Harrison that Brenda was talking to "some guy" behind the door. According to Harrison, the general tone of the conversation was normal and Ross did not sound nervous or anxious.

Booth objected to the testimony of Harrison on the ground that it was impermissible hearsay. The trial judge admitted the testimony, concluding that it fell within the present sense impression exception to the hearsay rule. ¹ Judge Greenfeld said in his well considered oral opinion:

It seems to me that the present sense impression has as much reliability as the excited utterance exception or res gestae exception as it is sometimes called, and may even be more accurate, since the Maryland Court of Appeals permits excited utterances to be admitted under the proper circumstances as an exception to the hearsay rule. I see no reason why present sense impression should not also be admitted if reliability exists. So in the general sense I find that reliability does exist here because there would be no reason for Mr. Ross to inaccurately state to Miss Harrison over the telephone that Brenda was there or that she was talking to somebody at the door. And, of course, the jury can evaluate her demeanor and the accuracy of, and reliability, and trustworthiness of the statement themselves.

Booth argues that Maryland should not adopt the present sense impression exception because the mere contemporaneity of a statement and an allegedly perceived event does not establish trustworthiness. Alternatively, Booth contends that even if the exception is adopted this testimony should not be admitted because there was no corroboration by an "equally percipient witness."

The present sense impression exception has its origins in what was known as the "res gestae" exception to the hearsay rule. ² The term "res gestae" came into usage in discussion of admissibility of declarations in the early 1800's. McCormick on Evidence § 288, at 686 (2d ed. E. Cleary 1972); 6 J. Wigmore, Evidence § 1767, at 253-59 (Chadbourn Rev.1976). As Professor McCormick points out, the term is more generic than particular and includes within its definition four distinct exceptions: declarations of present bodily condition; declarations of present mental states and emotions; excited utterances; and declarations of present sense impressions. McCormick on Evidence, supra, § 288, at 686. Although the term res gestae is now condemned in academic circles, the exceptions included within its definition are recognized by most scholars. ³

The present sense impression exception was first defined by the evidence scholar, James Bradley Thayer, when he reviewed res gestae cases in 1881. ⁴ Thayer reported what he considered to be a longstanding rule of admissibility which grew out of the res gestae concept:

The exception to the hearsay rule which is now mentioned takes notice of one of these strong elements of authenticity, contemporaneousness; it deals, however, not with memoranda signed by the parties, but with statements, oral or written, made by those present when a thing took place, made about it, and importing what is present at the very time,--present, either in itself or in some fresh indications of it, to the faculties of the witness as well as of the declarant.

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The leading notion in the doctrine ... seems to have been that of withdrawing from the operation of the hearsay rule declarations of fact which were very near in time to that which they tended to prove, fill out, or illustrate,--being at the same time not narrative, but importing what was then present or but just gone by, and so was open, either immediately or in the indications of it, to the observation of the witness who testifies to the declaration, and who can be cross-examined as to these indications. Thayer, Bedingfield's Case--Declarations as a Part of the Res Gesta, (Part III) 15 Am.L.Rev. 71, 83, 107 (1881). ⁵

However, one of Thayer's most influential students, Dean Wigmore, in his 1904 evidence treatise refused to recognize the present sense impression exception, claiming that contemporaneousness of event and descriptive statement, without more, did not guarantee the statement's trustworthiness. 6 J. Wigmore,Evidence § 1747, at 195-98 (Chadbourn Rev.1976).

Thayer's formulation of the present sense impression exception was revived by Edmund Morgan. Professor Morgan pointed out:

A statement by a person as to external events then and there being perceived by his senses is worthy of credence for two reasons. First, it is in essence a declaration of a presently existing state of mind, for it is nothing more than an assertion of his presently existing sense impressions. As such it has the quality of spontaneity.... Second, since the statement is contemporaneous with the event, it is made at the place of the event. Consequently the event is open to perception by the senses of the person to whom the declaration is made and by whom it is usually reported on the witness stand. The witness is subject to cross-examination concerning that event as well as the fact and content of the utterance, so that the extra-judicial statement does not depend solely upon the credit of the declarant.

Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 236 (1922).

Currently, a present sense impression is excepted from the operation of the hearsay rule by the Federal Rules of Evidence, and by a majority of states. Additionally, this exception is recognized by the Model Code of Evidence, Rule 512(a), and by the Uniform Rules of Evidence (1974), Rule 803(1). Fed.R.Evid. 803(1) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

The underlying theory of this exception is that "substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation." Advisory Committee Note, Fed.R.Evid. 803(1). The Note further states that "in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse is allowable." Although the Note does not state that the witness must be the declarant, it indicates that "if the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement." Finally, the Note limits the permissible subject matter under the exception to a "description or explanation of the event or condition, the assumption being that spontaneity, in the absence of a startling event, may extend no farther."

At least twenty-eight states recognize this exception to the hearsay rule in their codified evidence codes, most of which have been patterned after the Federal Rules of Evidence. See, e.g., Alaska R.Evid. 803(1) (eff. 1979); Ariz.R.Evid. 803(1) (eff. 1977); Ark.R.Evid. 803(1) (eff. 1976); Cal.Evid.Code § 1241 (eff. 1967); Colo.R.Evid. 803(1) (eff. 1980); Fla.Evid.Code § 90.803(1) (eff. 1979); Hawaii R.Evid. 803(b)(1) (eff. 1981); Idaho R.Evid. 803(1) (eff. 1985); Iowa R.Evid. 803(1) (eff. 1985); Kan.Code Civ.P. § 60-460(d)(1) (eff. 1963); Me.R.Evid. 803(1) (eff. 1976); Mont.R.Evid. 803(1) (eff. 1977); Nev.Rev.Stat. tit. 4, § 51.085 (eff. 1971); N.H.R.Evid. 803(1) (eff. 1985); (N.J.R.Evid. 63(4)(a) (eff.1967); N.M.R.Evid. 803(1) (eff. 1976); N.C.R.Evid. 803(1) (eff. 1984); N.D.R.Evid. 803(1) (eff. 1977); Ohio R.Evid. 803(1) (eff. 1980); Okla.Evid.Code § 2803(1) (eff. 1978); S.D.R.Evid. § 19-16-5 (eff. 1978); Tex.R.Evid. 803(1) (eff. 1983); Utah R.Evid. 803(1) (eff. 1983); Vt.R.Evid. 803(1) (eff. 1983); Wash.R.Evid. 803(a)(1) (eff. 1979); W.Va.R.Evid. 803(1) (eff. 1985); Wis.R.Evid. 908.03(1) (eff. 1974); Wyo.R.Evid. 803(1) (eff. 1978). Colorado's rule requires precise contemporaneity and deletes the words "or immediately thereafter" found in the Federal Rule. Florida and Ohio add language that a present sense impression is admissible unless the statement is made under circumstances that indicate its lack of trustworthiness. Fla.Evid.Code § 90.803(1); Ohio R.Evid. 803(1). The Ohio Staff Note explains that the additional language serves to narrow the availability of the exception by vesting discretion in the trial judge.

Most commentators, with the notable exception of Dean Wigmore, recognize the present sense impression exception....