Holcomb v. State

• Decision Date: 01 September 1985
• Docket Number: No. 123,123
• Citation: 307 Md. 457,515 A.2d 213
• Parties: Kenneth Lee HOLCOMB v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 457

307 Md. 457

515 A.2d 213

Kenneth Lee HOLCOMB v. STATE of Maryland.

No. 123, Sept. Term, 1985.

Court of Appeals of Maryland.

Oct. 2, 1986.

Melissa M. Moore, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Ronald M. Levitan, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

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

RODOWSKY, Judge.

In this prosecution for murder the trial court admitted as a business record a contemporaneous memorandum, prepared by a police officer but not signed by the accused, which contained the accused's oral confession. We granted certiorari primarily to decide whether the State was required to prove that the accused had acknowledged the accuracy of the document's content. The State was not so required, as explained below.

On October 21, 1982, Tanea M. Rothschild, age 35, was found dead in her apartment in Baltimore County. She had been strangled and repeatedly stabbed. The next day the police interviewed the petitioner, Kenneth Lee Holcomb (Holcomb), an employee of a painting contractor who had been painting the apartment adjoining that of Ms. Rothschild on the day of the murder. Holcomb gave an exculpatory statement, written partly by him and partly by Detective William Ramsey, which Holcomb signed. On October 26 Holcomb agreed to a polygraph examination. Detective Frank Davelli (Davelli) administered the test in an interview room at the Baltimore County police headquarters. No third person was present. After the test when Davelli told Holcomb that, in Davelli's opinion, Holcomb was lying, Holcomb admitted the murder and answered a series of questions from Davelli. Davelli asked Holcomb if the latter would repeat the same statement in the presence of Detective Ramsey and Holcomb agreed. When Davelli brought Ramsey into the interview room, Ramsey again read to Holcomb the Miranda rights. At that time Holcomb said that he wished to have an attorney and all questioning ceased. ¹

Beginning within fifteen minutes after Holcomb had confessed Davelli prepared in longhand his report of the polygraph examination. It included in question and answer form his recollection of the words spoken by him and by Holcomb when Holcomb confessed. That longhand report was subsequently typed. There is no evidence that the police ever showed Holcomb Davelli's memorandum of Holcomb's confession or that Holcomb at any time acknowledged the accuracy of that memorandum.

The State charged Holcomb with first-degree murder. At his first trial the jury was unable to agree on a verdict. ² At the retrial Davelli testified on April 12, 1984. He described Holcomb's oral confession by reading the questions and answers that he had written in the memorandum prepared by him on October 26, 1982. The State then offered a redacted form of Davelli's report which eliminated all reference to the polygraph examination and was limited to Davelli's contemporaneous memorandum of the oral confession. Over defense objection the trial court admitted the exhibit as a business record. ³

Holcomb took the stand in his defense. He denied confessing to Davelli who, he said, had screamed accusations at him until Holcomb threatened to punch Davelli in the face. The jury found Holcomb guilty and the court sentenced him to life imprisonment. Holcomb appealed, contending that the writing was inadmissible because it was undisputed that he, personally, had never acknowledged its accuracy.

The Court of Special Appeals affirmed with an unreported opinion. While recognizing that Davelli's memorandum involved two levels of hearsay, that court concluded that the report was admissible as a business record and that the business record contained the words of a party which were offered against that party. The intermediate appellate court further concluded that no principle of present Maryland law would exclude the otherwise admissible memorandum by requiring "an incrementally greater burden of proving the document's reliability and accuracy." Although the court described as "logical and just" the requirement that the accused acknowledge a written memorandum of an oral confession, the court, citing, inter alia, Hall v. State, 223 Md. 158, 162 A.2d 751 (1960), said it was bound by precedent. We granted cross-petitions for certiorari.

Holcomb submits that (1) Davelli's memorandum of the oral confession was not admissible as a business record because Holcomb had no duty to make a truthful statement to Davelli, and that (2) a writing prepared by one other than the accused which purports to embody an inculpatory statement made by the accused should not be admitted into evidence until the writing is signed by the accused or the accused has in some fashion acknowledged the correctness of the writing.

(1)

The Maryland business records statute defines "business" to include "business, profession, and occupation of every kind." Md.Code (1974, 1984 Repl. Vol), § 10-101(a) of the Courts and Judicial Proceedings Article. The statute applies to both criminal and civil cases. Jones v. State, 205 Md. 528, 109 A.2d 732 (1954). In general, those portions of the report of a police investigation which record the facts obtained by the direct sense impressions of the investigating officer are admissible as a business record while those portions which report objectionable hearsay and opinions of the investigator are inadmissible as a business record. See Aetna Casualty & Surety v. Kuhl, 296 Md. 446, 463 A.2d 822 (1983); Holloway v. Eich, 255 Md. 591, 258 A.2d 585 (1969); Austin v. State, 253 Md. 313, 252 A.2d 797 (1969) (by implication); Levine v. Beebe, 238 Md. 365, 209 A.2d 67 (1965); Cain v. State, 63 Md.App. 227, 492 A.2d 652 (1985); and Honick v. Walden, 10 Md.App. 714, 272 A.2d 406 (1971). And see Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 (1965) (descriptions of what took place at the scene of a fire as reported by firemen, on their return to fire station, to fire marshal and recorded in fire marshal's file admitted as a business record to prove the truth of the matters described).

Holcomb does not question the formal foundation laid in this case for admitting Davelli's memorandum as a business record. Rather, relying on Aetna Casualty & Surety, supra, he contends that because he "had no duty to make a truthful statement" to Davelli the statement is not admissible through the vehicle of the report as a business record. Holcomb's argument ignores the fact that his oral confession was an admission by a party opponent.

Aetna was a declaratory judgment action in which an automobile liability insurer sued the person claiming against its insured for a declaration that there was no coverage because the insured had intentionally, as opposed to accidentally, collided with the claimant. The claimant sought to introduce the written statement given by the insured to the investigating police officer in which the insured stated that the occurrence was accidental. We held that the written statement was properly excluded. It could not come into evidence under the business records exception to the hearsay rule because the insured "had no duty to make a truthful statement" to the police. 296 Md. at 454-55, 463 A.2d at 827. Aetna went on to reject other hearsay exceptions argued in support of admissibility of the insured's statement. Aetna did not involve a report containing hearsay which would be admissible under the exception for admissions by a party because the declarant, i.e., the insured, was not an agent for admissions of the insurer against whom the report was offered.

Use of the business records exception at the second level of hearsay is analyzed in State v. Lungsford, 167 N.J.Super. 296, 400 A.2d 843 (1979), an opinion with which we agreed in Aetna. Lungsford had been convicted of receiving a stolen car. At his trial the prosecution introduced police reports of information received from the owner of the car, including the vehicle identification number. The number found on the car possessed by Lungsford matched the number related by the owner. It was error to admit the police report to prove the number on the owner's car. The Lungsford court stated the rule to be that

[i]f the declarant is not available to testify and if the statement is not admissible under some other exception to the hearsay rule, such as excited utterance or dying declaration, then admissibility cannot be predicated exclusively upon the circumstance that the statement was made to a police officer who paraphrased its content in his report. [Id. at 309, 400 A.2d at 849.]

The reason why the business records exception would not extend to the second level hearsay in Lungsford was

that one of the critical circumstances importing reliability is the fact that the informant whose declaration is so recorded is under a duty, in the context of the activity in which the record is made, to make an honest and truthful report. Thus, the business record exception is predicated not only on the circumstance that the record itself is kept in the usual course of the business but also on the circumstance that the recorded information is obtained by the recorder from a declarant having a "business" duty to communicate it truthfully. [Id.]

Aetna also favorably cited Hutchinson v. Plante, 175 Conn. 1, 392 A.2d 488 (1978). That court pointed out that drivers' "statements contained in a police accident report may not be admitted [as business records] for the truth of the matter stated unless they qualify under some other exception to the hearsay rule, such as admissions." Id. at 5, 392 A.2d at 490.

Here, Holcomb, the declarant, made an admission to Davelli who recorded it in the course of "business." The Court of Special Appeals correctly held that the business record was admissible to prove the truth of the facts related in Holcomb's statement because the second...