Cassidy v. State

• Decision Date: 03 February 1988
• Docket Number: No. 297,297
• Citation: 74 Md.App. 1,536 A.2d 666
• Parties: , 56 USLW 2495 Ronald Lee CASSIDY v. STATE of Maryland. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 1

74 Md.App. 1

536 A.2d 666, 56 USLW 2495

Ronald Lee CASSIDY v.STATE of Maryland.

No. 297 Sept. Term 1987.

Court of Special Appeals of Maryland.

Feb. 3, 1988.

Jose Felipe Anderson, Asst. Public Defender(Alan H. Murrell, Public Defender on the brief), Baltimore, for appellant.

Ann E. Singleton, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Alexander Williams, Jr., State's Atty. for Prince George's County and Martin Shuham, Asst. State's Atty. for Prince George's County on the brief, Upper Marlboro), for appellee.

Argued before MOYLAN, WILNER, and WEANT, JJ.

MOYLAN, Judge.

The appellant, Ronald Lee Cassidy, was convicted by a Prince George's County jury of child abuse and assault.In addition to two other contentions which it is not necessary for us to consider, ¹the appellant challenges the admissibility of one critical item of hearsay evidence.

For the single item of hearsay in question, the State offers two, or possibly three, theories of admissibility.The two intelligible, albeit unavailing, theories of admissibility are based upon the respective hearsay exceptions of 1) a Statement of Bodily Feelings, Symptoms, and Condition Made to a Consulting Physician for Purposes of Treatment and 2) an Excited Utterance.The third notion advanced by the State may be a third and distinct evidentiary theory; it may, however, be an umbrella term for the first two theories combined; it may, on the other hand, be simply a synonymous reference to the Excited Utterance theory.Our confusion arises from the fact that the State, in this regard, speaks a dead language which neither we nor anybody else understands.The discredited shibboleth res gestae is no longer uttered in polite legal society, and we hope to lay its ghost to rest.

The Facts of this Case

The pertinent facts are few.Indisputably, the two-year-old female victim in this case was physically badly abused.The only issue was whether the appellant was the abuser (or, at least, one of the abusers).The child's mother and the appellant cohabited in Prince George's County.The child referred to the appellant as "Daddy."

The State's case against the appellant, although legally sufficient, was of marginal strength.There was some evidence pointing toward the child's mother as the source of physical abuse.The testimony of the mother, vulnerable to impeachment in several regards, accused the appellant and was virtually the entire case for the State except for the hearsay evidence in issue.

After the child was brought to the Prince George's County General Hospital by a representative of the Child Protective Services, she was examined by Dr. Amie Pullman.The interview took place three days after the abusive conduct in issue.Dr. Pullman observed numerous bruises on the arms, legs, and buttocks.There were also signs of irritation to the genital area.Dr. Pullman also found significant the fact that the child, instead of resisting examination of the vaginal area, took her hands and pulled her labia apart.This, to her, indicated that the child had been sexually molested.Approximately five times during Dr. Pullman's examination of the child, Dr. Pullman asked, "Who did this?"On each occasion, the answer was "Daddy."

For convenience of reference, we will treat the five, virtually verbatim repetitions of the hearsay as a single instance.For further convenience of reference, we will treat the combined question, "Who did this?," and answer, "Daddy," as tantamount to the statement, "Daddy did this."

This is a classic instance of hearsay evidence.With peripheral modifications not here pertinent, a good working definition of hearsay is "an out-of-court assertion offered in court for the truth of the matter asserted, and thus resting for its value upon the credibility of the out-of-court asserter."²See generally C. McCormick, Law of Evidence 460 (1st ed. 1954).And seeHouck v. DeBonis, 38 Md.App. 85, 90, 379 A.2d 765(1977);Cain v. State, 63 Md.App. 227, 232, 492 A.2d 652(1985).The statement, "Daddy did this," was an out-of-court assertion.The child-victim was never offered as a competent witness and did not testify at the trial.The assertion was made to Dr. Pullman at the Prince George's County General Hospital on May 20, 1986.It was offered in court through the medium of Dr. Pullman's sworn testimony.It was offered, moreover, for the truth of the thing asserted, to wit, that "Daddy did this."It is undisputed that "this" referred to the bruises on the child's body.The evidence also amply supported the finding that "Daddy" referred to the appellant.This evidence was critical in establishing the criminal agency of the appellant.

The Allocation of the Burden of Proof

In allocating the burden of proof, it is important to begin with the Hearsay Rule itself and not with its converse.The full name of the rule is The Rule Against Hearsay.Although subject to multitudinous exceptions, the Rule, in its essence, is a rule of exclusion.The essential thrust of Federal Rule of Evidence 802, for example, is one of exclusion, not of inclusion: "Hearsay is not admissible except as...."

The State turns the rule inside out when it argues before us that a two-year-old child would not be likely, or even capable, of fabricating and that the appellant has, therefore, failed to offer any evidence of likely fabrication as a ground for rejecting the hearsay.The burden of production, of course, is upon the proponent, not the opponent.The opponent of hearsay does not have to show why it should be rejected.The fact that it is hearsay is, presumptively, reason enough.The State's statement of the rule seems to be, "Hearsay will be received, unless the opponent demonstrates its probable untrustworthiness."When urging an exception to a rule of exclusion, however, the burden is upon the proponent of the exception.The correct procedural posture is, "Hearsay will be excluded, unless the proponent demonstrates its probable trustworthiness."Affirmative evidence of trustworthiness, moreover, contemplates something more than the absence of evidence of untrustworthiness.The likelihood of a motive to speak truthfully requires more than the unlikelihood of a motive to lie.Were it otherwise, the nothing-to-nothing ties on these issues would go to the exception rather than to the rule.

The proponent faces a substantive challenge as well as a procedural one.Unlike Federal Rule of Evidence 803(24), which creates a miscellaneous exception to the Hearsay Rule for other "equivalent circumstantial guarantees of trustworthiness,"³ Maryland, in the common law tradition, is more rigorous and orthodox in its approach to hearsay exceptions.A proponent will not satisfy the rule by showing generalized indicia of trustworthiness but must qualify under one of the clearly identifiable and classically recognized exceptions.These are what Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608(1980), refers to as the "firmly rooted hearsay exception[s]."

Res Gestae

We will deal first with the State's argument that the out-of-court assertions "were admissible under the res gestae exception to the hearsay rule."⁴In approaching that Hydra-headed doctrinal monster, one would do well to arm himself initially with the wisdom of Dean Wigmore:

"The phrase 'res gestae' has long been not only entirely useless, but even positively harmful.It is useless, because every rule of Evidence to which it has ever been applied exists as a part of some other well-established principle and can be explained in the terms of that principle.It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both.It ought therefore wholly to be repudiated, as a vicious element in our legal phraseology.No rule of Evidence can be created or applied by the mere muttering of a shibboleth.There are words enough to describe the rules of Evidence.Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision."

6 J. Wigmore, Evidence§ 1767, at 182 (3d ed. 1940).Professor Morgan was equally vehement in his denunciation of this pearl of imprecision:

"The marvelous capacity of a Latin phrase to serve as a substitute for reasoning, and the confusion of thought inevitably accompanying the use of inaccurate terminology, are nowhere better illustrated than in the decisions dealing with the admissibility of evidence as 'res gestae.'It is probable that this troublesome expression owes its existence and persistence in our law of evidence to an inclination of judges and lawyers to avoid the toilsome exertion of exact analysis and precise thinking.Certain it is that since its introduction at the close of the eighteenth century, on account of its exasperating indefiniteness it has done nothing but bewilder and perplex."

Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 YaleL.J. 229(1922).Briefer but equally damning was the characterization attributed to Judge (later Supreme Court Justice) Holmes by James Bradley Thayer"The man that uses that phrase (res gestae) shows that he has lost temporarily all power of analyzing ideas.For my part, I prefer to give articulate reasons for my decisions."

Equally to the point was Judge Learned Hand in United States v. Matot, 146 F.2d 197, 198(2d Cir.1944):

"[A]s for 'res gestae' ... if it means anything but an unwillingness to think at all, what it covers cannot be put in less intelligible terms."

C. McCormick, Evidence (3d ed. 1984)[hereinafter cited as McCormick ], even while rejecting res gestae as an outmoded concept, is kindlier in its treatment of the term.It points out that the term came into common usage in the early 1800's and that at "this time the theory of hearsay was not well developed, and...