Stoddard v. State, 70 September Term, 2004.

CourtCourt of Special Appeals of Maryland
Citation389 Md. 681,887 A.2d 564
Docket NumberNo. 70 September Term, 2004.,70 September Term, 2004.
PartiesErik STODDARD v. STATE of Maryland.
Decision Date08 December 2005
887 A.2d 564
389 Md. 681
STATE of Maryland.
No. 70 September Term, 2004.
Court of Appeals of Maryland.
December 8, 2005.

Page 565

Eve L. Brensike, Assistant Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for petitioner.

Sarah Page Pritzlaff, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.



Erik Stoddard was convicted of second degree murder and child abuse resulting in death. The primary question we must answer in this case is whether the trial court erred in admitting testimony recounting an out-of-court utterance allegedly made by a non-testifying eighteen month old child to the effect of "is Erik going to get me?" The State offered this utterance as evidence that the child had witnessed Stoddard commit the murder. The case requires us to consider the evidentiary question of whether the unintended implications of speech—a particular class of "implied assertions"—may be hearsay. Both the trial court and the Court of Special Appeals ruled that this evidence was not hearsay. We disagree and reverse the judgments.


Three-year-old Calen DiRubbo died on the evening of June 15, 2002. The Grand Jury for Baltimore City indicted Stoddard for the offenses of first degree murder, second degree murder, and child abuse resulting in death. He was convicted by a jury of second degree murder and child abuse resulting in death and acquitted of first degree murder. The court sentenced him to a term of thirty years incarceration for each offense, to be served consecutively.

At trial, Deputy Chief Medical Examiner Mary Ripple testified that she had performed an autopsy on Calen, and had determined the cause of death to be multiple blunt force injuries. Foremost among these injuries was a severed bowel, an injury typically associated with the infliction of "a tremendous amount of force" to the abdomen. Based on laboratory results, Dr. Ripple placed the time of Calen's death between 8:30 and 10:30 p.m., and placed the time of the fatal injury between four and sixteen hours prior to death. On cross-examination, Dr. Ripple admitted that this range was only an estimate, and that the trauma conceivably could have occurred up to twenty-four hours prior to death.

According to this medical opinion, Calen received the fatal blow between 4:00 a.m. and 6:30 p.m. on June 15th, or, at the very

Page 566

earliest, sometime after 8:30 p.m. on June 14th. The evidence suggested that, for at least part of this period, Stoddard was the only adult supervising Calen, her older brother Nicholas Jr., and her cousin Jasmine Pritchett, then eighteen months of age.

The central issue in this case arose during the testimony of Jasmine Pritchett's mother Jennifer Pritchett. The prosecutor asked Jennifer Pritchett, "Since that day, since Saturday June 15th have you noticed any behavioral changes in Jasmine?" Defense counsel objected, and the prosecutor explained to the court:

"I have to prove time frame and I have to prove when the violence occurred, and it obviously happened when this little girl was there. If she's fine when she goes home and nothing happens, then there is a good defense argument that nothing happened during that time period."

The court replied, "You can get the mother to testify as to what the behavior was before and after. . . I don't even want you to ask her if she's discussed it with her. You can ask her about the differences in the behavior."

Despite this ruling by the court, the following exchange then took place:

"[STATE'S ATTORNEY:] Ma'am, have you noticed any behavioral changes in Jasmine since Saturday June 15th?


[STATE'S ATTORNEY:] And would you describe just the behavioral changes for the jury, please?

[JENNIFER PRITCHETT:] Jasmine has become—

THE COURT: Keep your voice up.

[JENNIFER PRITCHETT:] Jasmine is very petrified of any strangers introduced to her or if there is any form of loud noise, yelling, anything, she has gotten so upset that she's broken out in hives. She has nightmares and screaming fits.

[STATE'S ATTORNEY:] Have you ever seen any of these behaviors prior to June 15th?


[STATE'S ATTORNEY:] Has she ever—you have never discussed this case with her, have you?



THE COURT: Overruled.



[STATE'S ATTORNEY:] And has she ever—has she ever asked you any questions about it?

[JENNIFER PRITCHETT:] She asked me if Erik was going to—


THE COURT: No, I'm going to overrule it.

[STATE'S ATTORNEY:] Go ahead, ma'am.

[JENNIFER PRITCHETT:] She asked me if Erik was going to get her."

The following colloquy then took place at the bench:

"[DEFENSE COUNSEL]: Your Honor, not only is that hearsay, but its reliability is tenuous at best. This is far beyond what I believe was the Court's discretion. I'm going to move for a mistrial at this juncture.

[STATE'S ATTORNEY:] May I be heard?

THE COURT: I'll hear you.

[STATE'S ATTORNEY:] First off, it's not hearsay. It's a question. The child asked a question and by simply in terms

Page 567

of its form, it can't be hearsay. Secondly, it's—it's not—hearsay isn't a question. Hearsay is a statement offered for its truth of the matter asserted. I am not trying to argue that Erik is going to get her. What it does show is the child's fear—

THE COURT: [E]ffects on her, overruled.


THE COURT: Denied.

[DEFENSE COUNSEL]: Thank you. And my motion for mistrial, Your Honor?

THE COURT: Denied."

During the State's closing argument, the prosecutor referred to this evidence as follows:

"And I'm sure you're thinking, `It's too bad there wasn't an eyewitness. It's a real pity someone didn't see him do this.

* * *

But you know something? There was an eyewitness in this case. Unfortunately, she's just too young to come into court and testify, and that eyewitness was Jasmine, Jennifer's child. Do you remember when Jennifer testified? She said that starting on June 15th, her little girl, Jasmine, had an abrupt personality change. All of a sudden, out of the blue, little Jasmine started to have nightmares. She started to have behavioral problems and she started to ask her mother, `Is Erik going to get me?' `Is Erik going to get me?'

Now, you heard Jennifer testify. Jasmine was two years old. There was no way she discussed the events of Calen's murder with Jasmine. You know they're not going to discuss this in front of a two-year-old child and she's not going to tell Jasmine anything about this, but Jasmine asked her, `Is Erik going to get me?' Why? She was afraid of Erik. She didn't ask, `Is Nick going to get me?' She didn't ask, `Is Mark going to get me?' She wasn't afraid of them. She was afraid of Erik. Why? Because she saw. She was the eyewitness. She saw what happened to Calen that day and she was scared to death it was going to happen to her, too."

Stoddard was convicted and noted a timely appeal to the Court of Special Appeals. Before that court, Stoddard argued, inter alia, that Jasmine Pritchett's out-of-court question, "Is Erik going to get me," was hearsay when offered to prove the truth of its "implied assertion" that Jasmine was afraid of Erik Stoddard. The State argued that Jasmine's question was not hearsay because it was simply a request for information, spoken without the intent to "assert" anything, and hence not an "assertion" for purposes of Md. Rule 5-801(a). Alternatively, the State argued that even if Jasmine's question contained an implied assertion, that assertion was "Eric is going to get me," and her words were not offered to prove that Eric was in fact going to "get" Jasmine, but rather as circumstantial evidence of her state of mind. The State also argued that any error in admitting the evidence was harmless.

The Court of Special Appeals affirmed. Stoddard v. State, 157 Md.App. 247, 850 A.2d 406 (2004). Tracing the history of the implied assertion doctrine from the noted English case of Wright v. Doe d. Tatham, 112 Eng. Rep. 488 (Exch. Ch. 1837) and 47 Rev. Rep. 136 (H.L.1838), the Court of Special Appeals held that Jasmine's question is a "non-assertive verbal utterance," and is not hearsay. Id. at 279, 850 A.2d at 424.

We granted Stoddard's petition for a writ of certiorari to consider the following question:

Page 568

"Did the Court of Special Appeals, purporting to overrule this Court's longstanding precedent and drastically narrowing the scope of Maryland's hearsay rule so as to remove virtually all implied assertions from the definition of hearsay, err in holding that an out-of-court statement by a non-testifying eighteen-month-old child in which the child implied that she was afraid of Petitioner because she saw him beat the victim was not an implied assertion under Maryland Rule 5-801?"

Stoddard v. State, 383 Md. 211, 857 A.2d 1129 (2004).


Before this Court, Stoddard argues that Maryland has retained, and should retain, the common law view of implied assertions as expressed in Wright v. Tatham, at least as applied to words rather than nonverbal conduct. He argues that Jasmine's question was offered for the truth of a matter impliedly asserted—namely, that Jasmine was afraid of Stoddard because she had seen Stoddard assault Calen—and thus inadmissible hearsay under the Wright v. Tatham approach.

The State argues that the evidence was not hearsay under Md. Rule 5-801. First, the State maintains that Rule 5-801 rejected the holding of Wright v. Tatum and that, since the adoption of the Rule, that case no longer defines an assertion for purposes of hearsay in Maryland. Specifically, the State argues that the implications of an utterance now constitute assertions only if the declarant inte...

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