Gordon v. State

• Decision Date: 30 March 2012
• Docket Number: Sept. Term,No. 2968,2010.,2968
• Parties: Michael David GORDON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

204 Md.App. 327

40 A.3d 1093

Michael David GORDON

v.STATE of Maryland.

No. 2968

Sept. Term

2010.

Court of Special Appeals of Maryland.

March 30, 2012.

Renee M. Hutchins (University of Maryland School of Law, on the brief), Baltimore, MD, for Appellant.

Todd Hesel (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: KRAUSER, C.J., ZARNOCH, and WATTS, JJ.

WATTS, J.

After a trial held on December 7, 2010, and December 8, 2010, a jury sitting in the Circuit Court for Charles County convicted Michael David Gordon, appellant, of third-degree sexual offense and sexual solicitation of a minor. See Md.Code Ann., Crim. Law Art. (“C.L.”) § 3–307(a)(4) (third-degree sexual offense); and C.L. § 3–324 (sexual solicitation of a minor). On February 8, 2011, the circuit court sentenced appellant to ten years of imprisonment, with all but one year suspended, and five years of supervised probation. ¹

Appellant noted an appeal, raising two issues, which we quote:

I. Did the trial court err in allowing the State to prove the appellant's age, which was a material element of the case, through a detective's inadmissible hearsay testimony?

II. Did the trial court err by permitting the State to prove the contents of the appellant's driver's license through parol testimony instead of through the original copy of the driver's license?

We answer both questions in the negative. We, therefore, affirm the judgments of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

The acts for which appellant was convicted occurred on January 10, 2010, at a Pacific Sunwear Store where appellant worked. The day before the incident at issue in this case, Detective Klezia and another detective of the Charles County Sheriff's Office went to the store to speak with appellant about allegations not connected to this case. During the interview, Detective Klezia asked appellant for identification and appellant responded by giving Detective Klezia his Florida driver's license.

On January 10, 2010, Amanda M. visited the Pacific Sunwear Store, shopping with her friend Courtney S. Amanda M. and appellant became engaged in a conversation as she shopped. At the time, Amanda M. was fourteen-years-old.

Amanda M. testified that during her conversation with appellant on January 10, 2010, he told her he was seventeen years old. In an interview on March 31, 2010, Amanda M. advised detectives that appellant told her he was twenty years old. Amanda M. testified that on January 10, 2010, she purchased perfume from the store but, after leaving the store, discovered the perfume was not in her shopping bag. Amanda M. returned to the store to retrieve the perfume later the same day. Amanda M. testified that she did not see appellant on the second trip, and that she and Courtney S. returned later to the store a third time.

As she was in the store on the third occasion, Amanda M. was trying on pants in a fitting room and asked appellant to bring her a pair in a different size. According to Amanda M., when appellant returned to the fitting room with new pants, he asked to see and touch her breasts and “lower areas.” According to Amanda M., appellant then put his hand in her pants and began to “finger” her. ² Amanda M. testified that while appellant was “fingering” her, he asked that she give him oral sex. Amanda M. declined, but testified, that she kissed appellant's penis. Appellant's counsel contended after trial and before this Court, that prior to trial, the prosecutor had not divulged information concerning Amanda M. allegedly having performed this act.

On January 14, 2010, appellant, accompanied by his fiancee, his fiancee's mother, and his daughter, was interviewed by Detective Klezia at the Charles County Sheriff's Office. Detective Klezia had telephoned to arrange the interview and appellant volunteered to drive to the station. During the interview, Detective Klezia asked appellant about the same incident that was discussed during his January 9, 2010, visit to the store-an incident unrelated to this case. During the interview, Detective Klezia asked for identification, and appellant again provided the Florida driver's license.

At trial, during direct examination, the prosecutor asked Detective Klezia whether he knew appellant's age. Detective Klezia responded that he had knowledge of appellant's date of birth based on having viewed his “identification.” Appellant's counsel objected when the prosecutor asked Detective Klezia how old appellant was, and the objection was sustained. The prosecutor again asked the detective for appellant's age, and the following exchange occurred:

[PROSECUTOR]: And the information that you obtained from [appellant] how old was [appellant]?

[APPELLANT'S COUNSEL]: Objection.

THE COURT: Detective is—am I correct to assume you never asked him his—his—his birth?

[DETECTIVE KLEZIA]—I don't recall specifically asking him for a date of birth but.

THE COURT: All Right.

And the only information you have is—is what he showed you; some document he showed you, a Driver's license?

[DETECTIVE KLEZIA]: Yes. Yes sir.

[PROSECUTOR]: Your Honor, may Counsel approach?

THE COURT: All right. Counsel please approach.

(Counsel approaches the bench)

[PROSECUTOR]: Your Honor, the information was provided to him by [appellant].

[APPELLANT'S COUNSEL]: Yes, but if we recall from the Motion Hearing he also had to show that information even to—to abide by the orders of the police.

That if you recall the Motion Hearing he had to present an I.D. to get into the headquarters.

THE COURT: Well, the basis of the objection is what?

[APPELLANT'S COUNSEL]: Its hearsay.

[PROSECUTOR]: And my response is that this would be admission by party (unintelligible).

[APPELLANT'S COUNSEL]: It's not an admission.

[PROSECUTOR]: It would be an adoptive admission.

[APPELLANT'S COUNSEL]: He never—he never—.

[PROSECUTOR]: He's—he's providing the identification on two separate occasions showing his personal identification.

[APPELLANT'S COUNSEL]: He never was asked to confirm it.

At this point, Detective Klezia and the jury were excused, and the following exchange occurred:

[PROSECUTOR]: ... I'm looking at [Maryland Rule] 5–803 and it looks like A(2). That's a statement by a party opponent—opponent.

* * *

[PROSECUTOR]: “A statement of which the party has manifested an adoption on belief and its truth.”

Detective Klezia asked him for identification. [Appellant] provides this identification on two separate occasions.... The fact that you're providing it means you're manifesting a belief that this is a true document. The information is here—in here, is true.

[APPELLANT'S COUNSEL]: It's not a statement.

[PROSECUTOR]: If it's not a statement then its not hearsay.

But this is something he's manifesting a belief in. He's asking for identification from [appellant]. [Appellant] provides this information to the Detective.

THE COURT: [Appellant's counsel]—.

[APPELLANT'S COUNSEL]: There's better evidence of this. There's (unintelligible) better evidence.

THE COURT: Well, there—there may very well be better evidence. The question is, is this admissible evidence.

[APPELLANT'S COUNSEL]: No, Your Honor. This is-he simply-he never adopted this as his Driver's License. He was asked to show identification and if you believe the witness that this is what he showed....

The circuit court permitted the testimony, ruling as follows:

THE COURT: All right.

I'm going to overrule the objection. I've had a chance to look at the Rule which I think is the appropriate Rule, 5–803.

“Hearsay Exceptions, Unavailability of Declarant not Required.”

“The following are not excluded by the hearsay rule even though the declarant is available as a witness.”

I think this word available—has to be determined in the context of—of Rule—the next Rule, 5–804, “Declarant Available” which has some circumstances where the declarant may be unavailable.

Here this is the—the declarant, if you will, is the Florida Motor Vehicle Administration—which would not be unavailable which would technically be available.

But I think that—[the prosecution] is correct in my opinion anyways.

It's a—statement which the—the Florida Motor Vehicle Administration has made about [appellant] and his age. And the party has manifested an adoption or belief in its truth and I think that—the party in this case would be [appellant] has manifested by presenting his conduct that—that he believes it to be true so he's adopted it.

I—I think that's what this Rule has to—has to—deal with.

So [appellant's counsel] I'm gonna overrule your objection. Is there anything else you want to state for the record?

I think you've stated your—your reasons pretty clearly but anything else?

[APPELLANT'S COUNSEL]: I did, Your Honor.

Obviously I—if there's any further questions about his age if the Court would recognize a continuing objection.

THE COURT: It will certainly—we'll note that.

* * *

THE COURT: Members of the jury I—I've—I'm gonna overrule the objection that had been made and [prosecutor] is gonna continue.

Go ahead [prosecutor].

[PROSECUTOR]: So Detective Klezia, based on the identification provided to you twice by [appellant], what is [appellant's] date of birth?

[DETECTIVE KLEZIA]: 5/23/1982.

After the jury was excused for deliberation, the following exchange occurred between the circuit court, the prosecutor, and appellant's counsel:

THE COURT: Counsel, Before we—we recess I just have one other observation I want to put on the record and I'll give you a chance to—to comment on it if you—if you wish. You don't—you don't have to.

The big—legal issue in this case as—as far as—that I found troubling I guess, is this—the age of the—[appellant] coming in off the—off the Driver's License and the objection that it'd be hearsay.

I've already made a ruling on that. But I—I—but I've been thinking about it ever since then and I do feel that—I think it's appropriate if—if this is ever reviewed and it may or may not be and we just never—never know that—the ...