Gordon v. State
| Citation | 66 A.3d 647,431 Md. 527 |
| Decision Date | 20 May 2013 |
| Docket Number | Sept. Term, 2012.,No. 43,43 |
| Parties | Michael David GORDON v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
OPINION TEXT STARTS HERE
Jeffrey M. Ross, Assistant Public Defender, (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Petitioner.
Todd W. Hessel, Assistant Attorney General, (Douglas F. Gansler, Attorney General of Maryland, Baltimore, MD), on brief, for Respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.
In order to convict Michael Gordon of third-degree sex offense, the State had to prove that he was at least twenty-one years old at the time he had the alleged inappropriate contact with a fourteen-year-old girl. The State sought to do that through the testimony of a police officer who had an opportunity to examine Gordon's driver's license and to see the date of birth listed there. Gordon objected to that testimony on hearsay grounds, but the State argued that, even if the date of birth was hearsay, it was admissible as an adoptive admission of a party-opponent under Maryland Rule 5–803(a)(2). Under the State's theory, because Gordon provided the license to the officer upon request, it was as if he himself had stated his age. The trial court agreed with the State and allowed the detective to testify. We affirm.
The events giving rise to Gordon's charges and convictions took place on January 10, 2010. That day, a fourteen-year-old girl was shopping at a Pacific Sunwear Store in the St. Charles Towne Mall, where Gordon worked. In Gordon's presence, she tried on a pair of pants in a fitting room. At one point, Gordon “asked to touch parts of [the girl's] body and proceeded to insert his finger in her vagina.” He later “pulled his penis out and asked if she would perform fellatio on him,” but she declined.
Gordon was interviewed about this incident by Detective Kenneth Klezia on January 14, 2010. Detective Klezia did not recall expressly asking Gordon for his date of birth, but upon request for identification, Gordon produced his Florida driver's license. Additionally, Detective Klezia had an earlier opportunity to observe Gordon's driver's license, when he visited Pacific Sun on an unrelated incident on January 9, 2010. Likewise, on that day, Gordon produced his Florida driver's license to Detective Klezia upon request.
Gordon was charged with and tried on the counts of third-degree sex offense and sexual solicitation of a minor.1 In order to satisfy the age element of the charge for the third-degree sex offense, the State had to prove that Gordon was “at least 21 years old” at the time of the offense. Md.Code (2002 & 2010 Cum.Supp.), § 3–307 of the Criminal Law Article.
To satisfy that element, the State called Detective Klezia to the stand. He testified that he had “personal knowledge” of Gordon's age from Gordon's “Florida Driver's License.” When Gordon objected to this evidence as hearsay, the State sought to justify the testimony under the adoptive admission by a party-opponent exception to the hearsay rule under Rule 5–803(a)(2). According to the State, by providing the driver's license to Detective Klezia, Gordon was “manifesting a belief that [the driver's license, prepared by the Florida Motor Vehicle Administration] is a true document,” and that the date of birth stated on it was correct.
The Circuit Court for Charles County found this argument persuasive and overruled Gordon's objection, allowing Detective Klezia to continue to testify about Gordon's age.2 At the conclusion of the trial, the jury convicted Gordon on both counts, and he was sentenced to ten years of imprisonment, with all but one year suspended.
Gordon appealed to the Court of Special Appeals. The intermediate appellate court affirmed Gordon's convictions, holding “that Detective Klezia's testimony was admissible pursuant to the exception to the hearsay rule for adoptive admissions set forth in Md. Rule 5–803(a)(2).” Gordon v. State, 204 Md.App. 327, 344, 40 A.3d 1093, 1102 (2012). Gordon filed a petition for a writ of certiorari, which we granted, together with the State's cross-petition. Gordon v. State, 427 Md. 606, 50 A.3d 605 (2012). The parties present three questions for our review: one dealing with the adoptive admission exception and two questions concerning the public records exception to the hearsay rule. We do not reach the two questions concerning the public records exception 3 because we resolve this case by answering the first question:
Whether, and if so, under what circumstances, an individual who presents a driver's license in response to a request for identification by a law enforcement officer manifests an adoption or belief in the truth of information contained in the license for purposes of the hearsay exception for adoptive admissions set forth at Maryland Rule 5–803(a)(2)?
The only evidence of Gordon's age—a crucial element of his conviction of third-degree sex offense—was Detective Klezia's testimony that, according to Gordon's driver's license, he was twenty-seven years old at the time of the offense. The trial court admitted that testimony over Gordon's objections, finding that, when Gordon provided his license to the Detective, he “manifested an adoption or belief” in the truthfulness of the information listed there, including the date of birth. The parties ask us to decide whether Gordon did indeed manifest such an adoption or belief, making his age admissible under the admission of a party-opponent exception to the hearsay rule set forth in Rule 5–803(a)(2).4
Gordon and the State do not agree on the standard of review appropriate in this case. Gordon argues that we should review the trial court's entire ruling de novo, while the State advocates for an abuse of discretion standard for reviewing the trial court's conclusion that Gordon manifested an adoption or belief in the truth of the information listed on the driver's license. That the parties disagree is not surprising. Courts across the country have grappled with articulating the standard of review for hearsay rulings. Although the concept of hearsay evidence has been around for centuries, 5 there is “a split of authority among ... jurisdictions on how evidentiary rulings addressing admissibility under the hearsay rule and its exceptions are to be reviewed.” State v. Saucier, 283 Conn. 207, 926 A.2d 633, 639 (2007).6 There are also inconsistencies within jurisdictions. Just last year, a judge on the United States Court of Appeals for the Sixth Circuit observed with frustration that “decisions show one panel after another disagreeing with each other in published opinions discussing” the standard of review for hearsay rulings. United States v. Clay, 677 F.3d 753, 754 (6th Cir.2012) (Kethledge, J., dissenting). He urged his court “to clean up our law on this issue.” Id.
In Maryland, the standard of review for hearsay rulings has undergone some evolution in the past decade. As we analyze our precedents below, we discern that a judge's hearsay ruling involving an adoptive admission has two components, and our standard of review differs as to each one.
Gordon and the State concur on two basic points. First, they agree that ordinarily a trial court's rulings on the admissibility of evidence are reviewed for abuse of discretion. See Hopkins v. State, 352 Md. 146, 158, 721 A.2d 231, 237 (1998). They also agree that “[w]hether evidence is hearsay is an issue of law reviewed de novo.” Bernadyn v. State, 390 Md. 1, 8, 887 A.2d 602, 606 (2005). Beyond these general propositions, the parties' views diverge.
Unhappy with the trial court's ruling, Gordon maintains that we should give the trial court's ruling no deference and review it de novo. In support of this assertion, he cites our seminal case, Bernadyn, in which we held that a medical bill seized by police at a crime scene and addressed to “Michael Bernadyn” at the same address, constituted hearsay, when used to prove that Bernadyn lived there. Id. at 3, 887 A.2d at 603. Judge Raker, writing for the Court, explained that—unless a hearsay exception applied—the trial court “has no discretion to admit hearsay” and explained that “[w]hether evidence is hearsay is an issue of law reviewed de novo.” Id. at 8, 887 A.2d at 606.
The State does not attach the same significance to this statement in Bernadyn as does Gordon. It reads Bernadyn narrowly—as setting forth a de novo standard of review only for legal determinations of whether evidence is hearsay, but not for decisions about whether a hearsay exception applies.7 According to the State, “[t]he evaluation of whether Gordon adopted the statement through his conduct ... is not a legal question, [rather it] involves a weighing of the evidence, which is reviewed under the more deferential abuse of discretion standard.”
In support of this argument, the State cites Brown v. The Daniel Realty Co., 409 Md. 565, 599 n. 26, 976 A.2d 300, 320 n. 26 (2009), in which we characterized a trial court's determination that certain “deposition testimony was the vicarious admission of Petitioner” as a “factual determination,” and a pre-Bernadyn case in which we utilized the abuse of discretion standard of review, Key–El v. State, 349 Md. 811, 813, 709 A.2d 1305, 1305 (1998), overruled by Weitzel v. State, 384 Md. 451, 863 A.2d 999 (2004). The State also cites several federal cases. See, e.g., United States v. Pulido–Jacobo, 377 F.3d 1124, 1132 (10th Cir.2004) .
The parties' divergent views about the standard of review likely stem from the nature of hearsay rulings. On the one hand, hearsay rulings are evidentiary rulings, which are typically subject to review for abuse of discretion. Accordingly, Maryland's older cases almost always treated the admissibility of...
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