Moore v. State

• Decision Date: 03 June 1975
• Docket Number: No. 1043,1043
• Citation: 338 A.2d 344,26 Md.App. 556
• Parties: Ronald Rudolph MOORE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 556

26 Md.App. 556

338 A.2d 344

Ronald Rudolph MOORE v. STATE of Maryland.

No. 1043.

Court of Special Appeals of Maryland.

June 3, 1975.

Certiorari Denied Sept. 8, 1975.

John E. Bohlen, Jr., Baltimore, with whom was Harry C. Davison, Jr., Baltimore on the brief, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Sandra A. O'Connor, State's Atty., and David H. Hugel, Asst. State's Atty., for Baltimore County on the brief, for appellee.

Argued before MOYLEN, MENCHINE and LOWE, JJ.

MOYLAN, Judge.

The appellant, Ronald Rudolf Moore, was convicted in the Circuit Court for Baltimore County by Judge Walter R. Haile, sitting without a jury, of child abuse. Upon this conviction, he raises three contentions:

(1) That hearsay evidence was erroneously admitted into evidence against him;

(2) That a hospital record, also ostensibly hearsay, was erroneously admitted into evidence against him; and

(3) That the evidence was legally insufficient to sustain the conviction.

Under the first contention, the testimony in dispute is that of Dr. Constantinos P. Chilimindris, a general surgeon and specialist in traumatology, who on July 20, 1974, was assigned to the trauma service of the intensive care unit of the Greater Baltimore Medical Center. The victim in this case was David John Updegraff, a three and one-half year old child. He was admitted to the Greater Baltimore Medical Center at approximately 11:30 p. m. on July 19. Dr. Chilimindris saw the child first in the Emergency Room at 2 a. m. on July 20. He described the child's condition in the following terms:

'A. . . . The child was a white child and was in acute distress. His color was almost ashen. He had visible multiple injuries and was crying from pain, pain mainly in his abdomen.

Q. How would you describe his visual injuries; what type were they?

A. Due to inspection through one's eye, one would see evidence of bruising in the face and chest and abdomen.

Q. Yes. Please continue with your observations or what you observed at that time.

A. The child's further signs were extremely abnormal. His pulse was very fact, about double the normal. His blood pressure was low, about half of normal. His respiration was fast and there was-these signs were indicative of loss of blood. The child was still conscious and able to answer some questions but he was in extreme acute distress from pain and shock. On examination of his head and face, there was some bruises in the area of the chin but that is about all there. The neck was normal but examination of the chest revealed extensive bruising on the front of the chest. These bruises were small in size, about, as I described in my notes, as one to one-and-a-half centimeters in diameter. Some of them were confluent; in other words, one running into another. The lungs were clear. There was no lung injury and there was no heart injury except that the heart rate was fast, indicative again of blood loss. Examination of the abdomen, commonly known as the stomach, showed again, through inspection, a great deal of bruises, especially in the upper half of the abdomen. Again, some of these were varying from two to two-and-a-half centimeters in diameter, confluent, and palpation of the abdomen to the hand, there was generalized tenderness. In other words, what we call rebound tenderness. When one presses the hand and lets go, the child has more pain when you let go than he does when you push down. The sounds of the bowel were diminished and there was evidence of blood coming out of the patient's stomach from a tube which was introduced into the stomach and there was also bloody diarrhea while the child was lying on the examining table. He was incontinent of stool which contained blood and slime. . . .

(M)edical treatment was already initiated by the time I arrived, treatment to combat shock by the administration of intravenous fluids and plasma. Blood was subsequently necessary to resuscitate the child. Various tubes were inserted in veins, in the stomach, in the bladder, and he was eventually transferred to the intensive care unit to be prepared for what I believed he needed, major surgery. . . . these x-rays were normal, there were no fractures, except the x-ray of the abdomen which showed the presence of fluid and paralysis of the bowel.'

Dr. Chilimindris operated on the young child and made a number of repairs to close lacerations of internal organs in the abdominal area. The liver had been lacerated. The pancreas had been bruised. The operation lasted between one and one-half to two hours. The child remained hospitalized for eleven days. In the Emergency Room, prior to operating, Dr. Chilimindris sought for information as to the cause of the injuries. The answer he received from the three and one-half year old patient is the hearsay evidence now in issue:

'Q. At any time did he indicate how these injuries had occurred?

MR. BOHLEN: I'm going to object to that, your Honor. I think it is basic hearsay. We have a child that is three-and-a-half years old. I think it has nothing to do with the history. I don't think it's admissible.

THE COURT: In our experience we have had a very high degree of accuracy with the doctors. Therefore I think it will be an exception.

Q. (MR. HUGEL) Tell the Court what David said.

MR. BOHLEN: Do you overrule my objection?

THE COURT: It comes within the exception of the hearsay rule. It is kind of a first complaint to a treating physician and is within the exception, as I recall, and I therefore overrule the objection.

THE WITNESS: May I answer the question, your Honor?

THE COURT: Yes.

THE WITNESS: It is our duty and our job to ask our patient what happened to them, including children, and if they are able, have them tell us some information. I did ask this child as to why his tummy was hurting him and his answer to me in the emergency room was that Daddy was mad. Those were his words. He said, 'Daddy was mad, Daddy did it,' and any further questioning of the child revealed no further answers.'

In response to the question as to 'why his tummy was hurting him,' the child declared, 'Daddy was mad, Daddy did it.' This, or course, is classic hearsay. The witness on the stand, Dr. Chilimindris, was recounting an out-of-court declaration by the three and one-half year old declarant which was being offered for the truth of the thing asserted-to wit, to prove that 'Daddy did it.' The declarant was not on the stand and, indeed, may have been incompetent (by virtue of age) to take the oath. He was not, therefore, subject to cross-examination.

We hold, however, that the out-of-court declaration was admissible in evidence upon a well-recognized and long-established exception to the Hearsay Rule-as an excited utterance which is a variety of the broader category known as spontaneous declarations. ¹ Testimonial Incompetence No Bar to

Spontaneous Declaration

The initial and explicit thrust of the appellant's challenge to the hearsay assertion, 'Daddy did it,' is that the testimonial competence of the three and one-half year old declarant was not established. By the same token, incompetence was not established; the child was not called as a witness and the issue of competence vel non was not before the court. The issue is, furthermore, irrelevant since the testimonial qualifications do not apply to spontaneous declarations. In dealing with the declarant of an excited utterance, 6 Wigmore on Evidence (3d Edition 1970) said at § 1751, p. 156:

'Does the disqualification of infancy . . . exclude declarations otherwise admissible? It would seem not; because the principle of the present Exception obviates the usual sources of untrustworthiness . . . in children's testimony; because, furthermore, the orthodox rules for children's testimony are not in themselves meritorious . . . and, finally, because the oath-test, which usually underlies the objection to children's testimony, is wholly inapplicable to them.'

To the same effect, see McCormick, Law of Evidence (1st Edition 1954) at 582:

'Must the declarant be shown to have met the tests of competency for a witness? In general, it seems not. The declarant is not usually before the court to be examined as to his competency, and the declarations furthermore come in only under special safeguards-here, the requirement of excited utterance-which diminish the need for further caution. Consequently, it is held that evidence of spontaneous declarations of infants is admissible despite the incompetency of the child as a witness. Such is also the rule in the case of an insane declarant, or one incompetent by reason of conviction of a felony, or where the declaration was made by the husband or wife of the accused in a criminal case.'

If the declaration of the child is shown to qualify as a legitimate exception to the Hearsay Rule in other respects, it will not be deemed incompetent because of the tender age of the declarant.

Excited Utterances as an Exception to the Hearsay Rule

Two factors combine to permit the admission of certain classes of hearsay-1) necessity and 2) the circumstantial probability of trustworthiness. In the case of spontaneous declarations generally, there is no requirement that the declarant be unavailable. The necessity rather arises out of 'the superior trustworthiness' of the spontaneous declarations. 6 Wigmore, § 1748, 'The Necessity Principle; Death, Absence, etc., need not be shown,' pp. 138-139. The circumstantial probability of trustworthiness underlying this exception (as well as the superior quality of the evidence) has been thoroughly explored and well set out by the recognized authorities in this field. Dean Wigmore said at § 1747, 'General Principle of the Exception':

'This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that...