State v. Harrell

Decision Date01 September 1996
Docket NumberNo. 123,123
Citation348 Md. 69,702 A.2d 723
PartiesSTATE of Maryland v. James E. HARRELL. ,
CourtMaryland Court of Appeals

Rachel Marblestone Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Petitioner.

Arthur A. DeLano, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and ROBERT L. KARWACKI, Judge (retired), Specially Assigned.


In the instant case, we are called upon to determine whether the Court of Special Appeals erred in concluding that the trial court improperly admitted hearsay evidence under the excited utterance exception to the hearsay rule, Maryland Rule 5-803(b)(2). For the following reasons, we affirm the judgment of the Court of Special Appeals reversing the trial court's conviction of James E. Harrell under Maryland Code (1957, 1992 Repl.Vol.) Article 27, § 342 (theft over $300) and remanding the case to the Circuit Court for Baltimore County for a new trial.


On August 18, 1995, Officer Stephen Comenga of the Baltimore County Police Department responded to a disturbance call at 1412 Strawflower Road in Baltimore County, Maryland. When Officer Comenga arrived, he observed Harrell "kicking a lady that was laying on the ground. He was kicking her about the face and head with his legs and feet." Upon noticing Officer Comenga, Harrell fled the scene, but was quickly apprehended. Less than two minutes after he observed Harrell's actions, Officer Comenga interviewed the victim, Tammy Hammons. At trial, Officer Comenga testified that he observed minor cuts and bruises over Hammons's arms and legs and that her blouse was torn. Officer Comenga also testified that the victim was "crying and appeared very emotional and upset." When the prosecutor asked Officer Comenga to explain what Hammons had said regarding the incident between her and Harrell, Harrell's counsel objected, and the following exchange occurred:

"THE COURT: Sustained, if it's offered for the truth of the out-of-court declaration.

MR. BOSTWICK: Your Honor, I would offer it as an excited utterance, which is an exception to the hearsay rule.

THE COURT: Okay. [Officer Comenga] has indicated [Hammons] was emotional, crying and upset. All right. I will allow it.

MR. BOSTWICK: Thank you.


Q What did she say? What did Hammons indicate?

A Hammons indicated that earlier in the evening the Defendant came over to pick her up in a vehicle, and after they had been out for a period of time the Defendant related to her--

MS. ROBINSON: Objection. I think this goes beyond excited utterance.

I can see the excited utterance with respect to what happened to her, in terms of physical appearance, but I think the State is trying to get in some hearsay testimony with respect to Harrell's possible involvement in the car theft, and I think that goes beyond the meaning of the excited utterance rule ..., and he is offering it for the truth of the matter, and I object to that testimony from the police officer for those reasons.

THE COURT: Try to confine your answer to whatever the witness said in an excited fashion at the time of the statement, if you could."

Officer Comenga then testified that Hammons told him that Harrell "beat me up and he stole that car there," as Hammons pointed to a Chevrolet Monte Carlo. In response to Hammons's statement that Harrell stole the Monte Carlo, Officer Comenga checked the vehicle's tag, as well as its VIN number. Officer Comenga confirmed that the 1984 Chevrolet Monte Carlo was in fact stolen from Carolyn Brown on July 26, 1995. Harrell was then arrested and charged with common-law battery and theft over $300 (Art. 27, § 342).

On his behalf, Harrell testified that on the evening in question he and Hammons went to a bar in Highlandtown where he consumed a large amount of alcohol. According to Harrell, he had borrowed the car he was driving, also a 1984 Chevrolet Monte Carlo, from his employer. Upon arriving at Harrell's home, Hammons asked Harrell to take her to her brother's house, but Harrell refused. Harrell testified that Hammons "started raising havoc," scratching his neck and stomping on his sore foot. Harrell further testified that he grabbed Hammons in order to maintain his balance and, as a result, tore her blouse. Harrell denied kicking Hammons or throwing her to the ground.

On November 14, 1995, Harrell was convicted by the trial judge of common-law battery, as well as theft over $300. The trial judge stated:

"I will grant you the only link to these offenses, that is a definite link, is the excited utterance testimony of the girlfriend.

* * *

But at the time of these events, according to the testimony of the officer, she was excited. She was upset. She implicated him in the battery, and she was obviously hurt and had part of her clothing torn away, and she implicated him in the theft of the car, and she said that she was told by him that he had stolen the car three weeks before.

Well, there is no way she could know that unless he told her that, and in fact, the car was stolen about three weeks before."

On December 14, 1995, Harrell appealed his conviction to the Court of Special Appeals. The intermediate appellate court reversed Harrell's conviction in an unreported opinion on August 12, 1996. The intermediate appellate court subsequently granted the State's motion for reconsideration, however, and withdrew its August 12th opinion. In an unreported opinion filed on October 7, 1996, the Court of Special Appeals affirmed the trial court's judgment regarding the battery charge, but reversed the judgment as to the theft over $300 and remanded the case for a new trial. This Court granted the State's petition for writ of certiorari on February 14, 1997 to determine whether the Court of Special Appeals erred in concluding that the trial court improperly considered hearsay evidence under Md. Rule 5-803(b)(2), the excited utterance exception to the hearsay rule.


The State contends that the Court of Special Appeals erred in its conclusion that the portion of Hammons's statement referring to Harrell's theft of the automobile was not "sufficiently related to the startling event prompting her spontaneous utterance" and thus did not fall within the excited utterance exception to the hearsay rule, Md. Rule 5-803(b)(2). Specifically, the State argues that the intermediate appellate court applied an "unduly restrictive interpretation of the term 'relating' in Md. Rule 5-803(b)(2)." We disagree.

"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Md. Rule 5-801(c). As a general rule, hearsay is not admissible at trial. Md. Rule 5-802; see also Mouzone v. State, 294 Md. 692, 696, 452 A.2d 661, 663 (1982)(noting that hearsay is not admissible at trial "because of inherent untrustworthiness"), overruled on other grounds by Nance v. State, 331 Md. 549, 569, 629 A.2d 633, 643 (1993). A hearsay statement may be admissible, however, under an exception to the hearsay rule because circumstances provide the "requisite indicia of trustworthiness concerning the truthfulness of the statement." Ali v. State, 314 Md. 295, 304-05, 550 A.2d 925, 929 (1988). Under the Maryland Rules, an excited utterance is such an exception. See Md. Rule 5-803(b)(2), which provides that an excited utterance is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." (Emphasis added). The rationale behind the excited utterance exception is that the startling event suspends the declarant's process of reflective thought, thus reducing the likelihood of fabrication. See Mouzone, 294 Md. at 697, 452 A.2d at 664; see also United States v. Knife, 592 F.2d 472, 481 n. 10 (8th Cir.1979) ("The hallmark of the exception is the requirement that there be an event so startling as to suspend the declarant's powers of reflection and, presumably, his powers of fabrication as well.").

In determining whether a statement falls within the excited utterance exception, we examine the totality of the circumstances. Cf. Mouzone, 294 Md. at 698, 452 A.2d at 664. "A statement may be admitted under this exception if 'the declaration was made at such a time and under such circumstances that the exciting influence of the occurrence clearly produced a spontaneous and instinctive reaction on the part of the declarant ... [who is] still emotionally engulfed by the situation....' Deloso v. State, 37 Md.App. 101, 106, 376 A.2d 873, 876 (1977) (citations omitted)." Harmony v. State, 88 Md.App. 306, 319, 594 A.2d 1182, 1188 (1991). In determining whether a declarant was under the stress of a startling event while making a statement, one primary consideration is the time between the startling event and the declarant's statement. Time, however, is not alone determinative. See Mouzone, 294 Md. at 698, 452 A.2d at 664. Thus, the fact that the statement at issue occurred so close in time to the startling event is not dispositive. In addition, that the statement was made in response to an inquiry, as in the instant case, is not controlling. See Mouzone, 294 Md. at 699, 452 A.2d at 665. It, however, may be some indication of reflective thought which makes it less likely that the statement falls within the excited utterance exception. See id.

Prior to the adoption of Title 5 of the Maryland Rules, 1 we noted that the excited utterance exception "requires a startling event and a spontaneous statement which is the result of the declarant's reaction to the occurrence." Mouzone, 294 Md. at 697, 452 A.2d at 664. In the instant case, it is clear that Harrell's battery of Hammons qualifies as a startling event. Immediately after the incident, Hammons was...

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