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Morten v. State

Court of Special Appeals of Maryland

September 4, 2019


          Circuit Court for Baltimore City Case No. 116123014

          Friedman, Beachley, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.


          MOYLAN, J.

         The two contentions raised by the appellant have one thing in common. They each engage the law of evidence. The first is on familiar turf, however, as we look again at two of the firmly rooted exceptions to the Rule Against Hearsay-the Excited Utterance and the Present Sense Impression. The second contention, by contrast, is at the far and unfamiliar cutting edge of the rapidly evolving science of DNA identification, to wit, at the newly developed TrueAllele testing modality. The appellant, Delvonta Morten, was convicted in the Circuit Court for Baltimore City in a jury trial of first-degree murder and various handgun offenses. On this appeal, he raises the two contentions:

1. that three separate instances of inadmissible hearsay evidence were erroneously admitted against him; and
2. that he was erroneously precluded from adequately challenging the DNA test results introduced against him.

         Unexceptionable Factual Background

         Each of these contentions, as we shall fully develop infra, is a strong and persuasive challenge to the prosecution's case. To illustrate the dispositive significance of the suspect evidence in each of the two challenges, we will initially set out just how lackluster a case this would have been in terms of its legal sufficiency without the infusion of the challenged hearsay and minus the arguably dubious DNA test result. What would have been the quality of the case to which no exception could have been taken? Would it have been legally sufficient to have supported the verdict? If necessity begets admissibility, of course, the State's case would have been a lock.

         On September 21, 2015, at shortly after 5:00 p.m., Kevin Cannady was killed by a single gunshot to the back of his neck. The autopsy revealed that the bullet shattered the upper spinal column before lodging in the left cheekbone. The bullet itself was too mangled to permit any ballistic comparisons. The police received the emergency call at 5:11 p.m. and arrived at the scene at 5:15 p.m. The shooting scene was in the 4900 block of Cordelia Avenue immediately north of where it T-intersects with Reisterstown Road. A large crowd had gathered. No one at the scene had been an eyewitness to the shooting.[1] Just at the intersection of Cordelia Avenue and Reisterstown Road, there are located a small grocery store and a car dealership. A surveillance camera from outside the car dealership showed a person wearing a black hoodie and grey pants approaching the victim from behind and shooting him, before running up Cordelia Avenue alongside another person dressed in a burgundy jacket.

         Approximately half an hour after the shooting, the police recovered "at the bottom of a tree stump" in the alley behind 4907 Cordelia Avenue, about a block from the shooting scene, a revolver. The firearms inspector was unable to confirm that the bullet taken from Cannady's left cheekbone had been fired from the .38 caliber Smith & Wesson revolver recovered by the police from the alley. They could say, however, that the bullet was a .38 or .357 caliber bullet, which showed "similar class characteristics" with the revolver.

         It was two months later that the police first interviewed the appellant. A surveillance video from inside the grocery store showed a number of persons inside the store on September 21, 2015, at about 4:05 p.m. One of them was wearing a black hoodie. At the November 22, 2015, interview, the appellant acknowledged that he was the person in the grocery store wearing the black hoodie. The outdoor surveillance camera also showed a person wearing a black hoodie walking past the store at 5:01 p.m. and turning into Cordelia Avenue at 5:08 p.m.

         That was the State's case without the challenged evidence. At that point, there was no firm linkage between the shooting and the revolver found in an alley about a block away. But for wearing a hoodie, there was no linkage between the appellant and the shooting. There was absolutely no linkage between the appellant and the revolver found in a backyard in the alley. The appellant would have walked.

         Hearsay To The Rescue, Ostensibly

         The bare bones of the State's legally insufficient case, however, were soon fleshed out by three rapid-fire infusions of hearsay evidence. These came from an unidentified female caller as anonymous calls to 911 at 5:35 p.m., at 5:41 p.m., and at 5:49 p.m. in the near aftermath of the shooting.

         As out-of-court assertions offered, and ultimately received, for the truth of the things asserted, these anonymous calls were self-evidently hearsay. The appellant objected to each. Each was admitted, however, as a well-recognized exception to the Rule Against Hearsay, the first as an Excited Utterance, the second and third as Present Sense Impressions.

         Call No. 1 came into 911 at 5:35 p.m., approximately 35 minutes after the shooting. It was accepted as an Excited Utterance. Its substance was as follows:

Operator: What's the emergency?
Caller: I just wanted to report that I saw two guys come down the alley.
I heard somebody got shot right here on Reisterstown Road and I saw two guys running up the alley. The alley is on Arcadia. It's right next to 3716[.] And they came down the alley, and it's about the third house to the left. It's two empty yards, and they threw -- they put something down in there. And one guy had on a black hoodie with white on it, like a skeleton design or something, and the other guy had a -- sort of a burgundy jacket, but not a hoodie and --
Operator: Both black males?
Caller: Yes. Young, about 16/17.
Operator: Okay. And you said it's the alleyway near 3716 Arcadia.
Caller: Yeah.
Operator: Okay, I will have someone to check out that location. You're not quite sure if it's a gun or something or you just know that they threw something back in there?
Caller: I just heard a shot and then I saw them running.

(Emphasis supplied).

         The second call followed, a bare six minutes later, at 5:41 p.m. This hearsay declaration was accepted as a Present Sense Impression.

Caller: Well I just wanted you to tell the police. They checking the rear[.] [T]hey going the wrong way. It's on Cordelia.
Operator: Okay. So where was the police called?
Caller: Oh, it's -- they were called because of the shooting. It was a shooting around near Reisterstown Road somewhere.
Operator: Okay. You don't know what cross street or which block?
Caller: I think -- no, I don't. It must have been around there about the 4900 block of Reisterstown Road but they looking in the wrong direction.
Operator: Okay. Are they looking for anybody?
Caller: They're looking for a gun.
Operator: Okay . . . did you see where anybody put the gun?
Caller: They . . . it was two guys. They threw it, more like buried it, in the houses going along the rear. The police done came down the alley, but they turned to the right. It's the rear of the houses on Cordelia.
Operator: Do you know what block of Cordelia?
Caller: Forty-eight and 49. It's right there at the corner of Arcadia and Cordelia.
Operator: Okay Arcadia at Cordelia, correct?
Caller: Yes. It's a big white truck. [T]hey need to come down the alley where the truck is right there parked[.] These -- people looking in the wrong direction[.] She's in the wrong yard.
Operator: And so is that police? It's a police officer?
Caller: The female officer just went in there.
Male Voice: What are you talking about? Which block of Cordelia is it?
Caller: (To another party) Over there. That's the 49.

(Emphasis supplied).

         The third and final anonymous call came at 5:49 p.m. It was also admitted as a Present Sense Impression.

Caller: They looking in the wrong direction. [W]ou1d you tell those police officers . . . . They just left the alleyway where the gun is.
Operator: Okay. [S]o where were they at?
Caller: They came down the alley on the side of the 3716 Arcadia. That's the alley they should be looking down.
Operator: 3716 Arcadia?
Caller: Yeah, they have a back, but the houses on Cordelia face up that way. The backs face the backs. All I can say is that they left out the alley where the guns, whatever it is they put it down there. They need to come down the alley and look at the empty houses on the left. It's a vacant house with white [b]eige siding.
Operator: So, it's a house with beige siding?
Caller: Yeah, look in that area. That's where the gun is. That's where they put something down there, two guys. Okay. They're looking in there now. When I see those suspects, I'll call back.

(Emphasis supplied).

         Initial Focus

         We direct our attention to the first of the anonymous 911 telephone calls, the one admitted into evidence as an ostensible Excited Utterance. This by far was the most important of the three hearsay declarations. It is, indeed, dispositive of this appeal.

         This out-of-court assertion narrated a large part of the trial evidence. The declarant either heard a gunshot or "heard somebody got shot" and shortly thereafter "saw two guys running up the alley."[2] The declarant established that the person in the hoodie and the person in the burgundy jacket were accomplices, as they fled the crime scene together. The declarant gave a description of how the two assailants were dressed, one wearing "a black hoodie with white on it, like a skeleton design or something," and the other wearing "sort of a burgundy jacket, but not a hoodie." This was by far the best description of the assailants. It was the declarant, moreover, who described the fugitives as "black males" and as "[y]oung, about 16/17." It was the declarant who asserted that the fugitives had thrown something (it turned out to be a .38 revolver) into a backyard in the alley.

         Had this declarant been on the witness stand and under oath, she would have been unquestionably the star witness, the indispensable witness, of the entire State's case. This substantive evidence was absolutely critical. By contrast, any problem with the two Present Sense Impressions is relatively small bore. Our focus is on the ostensible Excited Utterance.

         "My God, It's A Cobra!"

         The late Irving Younger, a nationally recognized CLE lecturer on the law of evidence, characterized an Excited Utterance in the following terms: "You will immediately recognize an Excited Utterance when you hear one because It begins with 'My God' and ends with an exclamation point!" The caselaw, albeit more prosaically, fully agrees.

         The starting point for analysis is Maryland Rule of Procedure 5–802. Hearsay rule.

Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, HEARSAY IS NOT ADMISSIBLE.

(Emphasis supplied).

         Rule 5–801(c), in turn, defines hearsay.

(c) Hearsay. "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.

         It is Rule 5–803 that then provides exceptions to the Rule Against Hearsay in circumstances where the unavailability of the declarant is not required. Rule 5–803(b)(2) lists as a recognized exception:

(2) Excited Utterance. 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.

         In focusing in on the first anonymous phone call, received by the police at 5:35 p.m., the initial inquiry is that of to whom is allocated the burden of proof. This Court answered that question definitively in Cassidy v. State, 74 Md.App. 1, 8, 536 A.2d 666, cert. denied, State v. Cassidy, 312 Md. 602, 541 A.2d 965 (1988).

When urging an exception to a rule of exclusion, . . . the burden is upon the proponent of the exception. The correct procedural posture is, "Hearsay will be excluded, unless the proponent demonstrates its probable trustworthiness." Affirmative evidence of trustworthiness, moreover, contemplates something more than the absence of evidence of untrustworthiness. The likelihood of a motive to speak truthfully requires more than the unlikelihood of a motive to lie. Were it otherwise, the nothing-to-nothing ties on these issues would go to the exception rather than to the rule.

(Some emphasis supplied).

         What then is the declarant's state of mind that will be offered as proof of probable trustworthiness? The Court of Appeals described that state of mind in Mouzone v. State, 294 Md. 692, 697, 452 A.2d 661 (1982), overruled on other grounds by Nance v. State, 331 Md. 549, 629 A.2d 633 (1993):

The essence of the excited utterance exception is the inability of the declarant to have reflected on the events about which the statement is concerned. It requires a startling event and a spontaneous statement which is the result of the declarant's reaction to the occurrence. The rationale for overcoming the inherent untrustworthiness of hearsay is that the situation produced such an effect on the declarant as to render his reflective capabilities inoperative.

(Emphasis supplied; citations omitted).

         Dean Wigmore agreed. 6 Wigmore on Evidence Sect. 1747, at 195 (Chadbourn rev. 1976), explains the rationale for the Excited Utterance 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 the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts.

(Emphasis supplied; footnote omitted).

         McCormick on Evidence Sect. 297, at 854–55 (E. Cleary 3d Ed. 1984), is in full accord.

First, there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of an observer. Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought.

(Emphasis supplied).

         This Court spoke to the Excited Utterance exception in Marquardt v. State, 164 Md.App. 95, 124, 882 A.2d 900, cert. denied, 390 Md. 91, 887 A.2d 656 (2005):

It is up to the proponent of a statement claimed to be an excited utterance to establish that the statement was spontaneous rather than a result of reflection ..... In making the determination of whether a statement is properly characterized as an "excited utterance," we examine the "totality of the circumstances."

(Emphasis supplied; citations omitted).

         In then assessing whether the necessary conditions for an Excited Utterance have been met, timing is also a critically important factor. The initial excitement must not have abated before the hearsay declaration is made. According to McCormick on Evidence Sect. 297, at 856 (E. Cleary 3d ed. 1984):

Probably the most important of the many factors entering into this determination is the time factor. If the statement occurs while the exciting event is still in progress, courts have little difficulty finding that the excitement prompted the statement. But as the time between the event and the statement increases, so does the reluctance to find the statement an excited utterance.

(Emphasis supplied).

         In Harmony v. State, 88 Md.App. 306, 320, 594 A.2d 1182 (1991), this Court emphasized that not only must there be an exciting event in the first instance but that the declarant must still be in the throes of the exciting event when he or she makes the out-of-court assertion in issue.

So long as the declarant, at the time of the utterance, was still in the throes of the "exciting event" and therefore not capable of reflective thought, and sufficient foundation was laid to enable the trial court to reach this conclusion, the statement is admissible.

(Emphasis supplied).

         As we undertake our appellate review of the ostensible Excited Utterance in this case, we must take note of one other factor that can influence that appraisal. The anonymous telephone caller, the hearsay declarant, in this case was unidentified. There is in such cases a heightened burden on the proponent of the hearsay in proving its trustworthiness. In Parker v. State, 365 Md. 299, 314, 778 A.2d 1096 (2001), Judge Eldridge wrote for the Court of Appeals:

An examination of the cases in other jurisdictions indicates that, where the identity of the hearsay declarant is unknown, the courts hold that the party seeking to introduce the excited utterance carries a heavy burden to prove the requisite indicia of reliability. It is held that the burden on the proponent is heightened, primarily because it is more difficult to establish personal observation and spontaneity where the declarant is unknown.

(Emphasis supplied). See also Cutchin v. State, 143 Md.App. 81, 87, 792 A.2d 359 (2002).

         Measured against these multiple and demanding criteria, the 5:35 p.m. call to the police on 911 does not, we hold, qualify as an Excited Utterance exception to the Rule Against Hearsay. Notwithstanding the clear burden on the State, as proponent of the evidence, to make a case for an utterance being made in the throes of excitement, the initial impression, from the opening words of the declaration itself, is that the declarant is narrating past events, not expressing present excitement. The shooting was not later than 5:11 p.m. and about two blocks away from where the gun was ultimately tossed into a backyard in the alley. The first 911 call was at 5:35 p.m., at the very least 24 minutes after the shooting. The out-of-court assertion, moreover, was completely in the past tense.

I just wanted to report that I saw two guys come down the alley. I heard somebody got shot right here on Reisterstown Road and I saw two guys running up the alley ..... And they came down the alley . . . . [A]nd they threw -- they put something down in there.
. . . .I just heard a shot and then I saw them running.

(Emphasis supplied). It did not take the "two guys" 24 minutes to run two blocks. The wording of that declaration conveys neither a sense of immediacy nor a sense of emotional distress.

         There was, moreover, an arguable unresolved ambiguity about the source of the declarant's proffered excitement. The opening reference was not apparently to anything observed by the declarant, by any of her senses, but rather to a second-hand account. "I heard somebody got shot." That would give us a case of hearsay twice compounded, to wit, hearsay within hearsay. Only later did the declaration assert, "I just heard a shot and then I saw them running." Which was it? At the hearing on admissibility, that arguable ambiguity between hearing a shot and hearing about a shooting was never acknowledged, let alone discussed. The State, as proponent of the evidence pursuant to the Excited Utterance exception, never mentioned it. In the last analysis, no factfinding was ever made as to whether the source of the declarant's alleged excitement was hearing a shot or hearing about a shooting. The Excited Utterance exception requires an exciting event. As Joseph F. Murphy, Jr., Maryland Evidence Handbook Sect. 803(C) (4th ed. 2010), explains:

[T]his exception obviously requires an exciting event, and then makes admissible those statements that (1) describe the event and (2) are made so close in time that the declarant remains under the influence of the excitement produced by the event. This exception does not apply to any statement made after the excitement subsides and, although an exciting event may trigger one's recollection of an event long passed, it is supposed to be limited to only those statements that actually describe the particular event that produced the excitement.

(Emphasis supplied). The declaration here was not "limited to only those statements that actually describe[d] the particular event that produced the excitement." The declaration per se was not about the exciting event, whatever that exciting event may have been.

         Lest the State protest that the defense never raised the issue, we hasten to point out that the defense was under no obligation to raise the issue. A party to whom is allocated an affirmative burden of proof on an issue may never offer as an excuse for failing to satisfy that burden that the opposing party failed to raise the issue. As Cassidy v. State pointed out, 74 Md.App. at 8, it is for the proponent of the exception to demonstrate trustworthiness, not for the opponent to establish untrustworthiness. The very allocation of the burden tells us who loses the nothing-to-nothing tie.

         The hearing on the admissibility of the substantive content of the telephone calls consumed 24 pages of transcript. It was essentially a quasi-adversarial exchange between defense counsel, arguing against the admissibility of the hearsay, and the trial judge, making the best case for admissibility. For the most part, the State sat quietly by. Assuming that the anonymous caller "heard a shot" rather than was the recipient of a second-hand account that "somebody got shot" on Reisterstown Road, the trial judge made the case that "hear[ing] a shot" might have been more alarming and that that later version of the exciting event was perhaps simply the declarant's "clarification" of her earlier version.

And then she says, "I heard shots, and then they ran." And I agree with you, there's a difference in the first paragraph and the third paragraph from the bottom. But as I said, maybe she was clarifying what she was saying to the operator. She was a little nervous and upset when she first spoke, and maybe she misspoke and she's clarifying that.

(Emphasis supplied).

         Even that version of an emotional shockwave, however, does not ring a convincing bell. We cannot accept that a single gunshot from two blocks away on Reisterstown Road deprived her of her ability to reflect and kept her thus deprived for no less than 24 minutes. She was interested in what she had heard (or in what she had overheard). When she saw two men running away from Reisterstown Road in the alley, she assumed the observation post from which she could survey their movements along several blocks of alleyway. In military language, she moved toward the sound of the guns, not away from it. She showed tactical composure.

         The decision to call 911 and make a report to the police was a conscious and reflective choice of a good citizen to help the police solve a crime. It was not an uncontrolled emotional spasm in response to overpowering excitement. "I just wanted to report that . . . ." The declarant's narrative report of what she had seen was a calm and coherent version of what she had observed, embellished by discerning detail of what the two men were wearing and of the precise backyard into which they threw something.

         The very subject matter of the out-of-court declaration was not, as a true Excited Utterance is supposed to be, a description of the exciting event and of the declarant's unreflective response to the emotional trauma of the excitement. It was a cool and controlled narrative. If a fellow police officer had been in the declarant's observation post, he or she could not have done a better reporting job than the declarant did. This report was an admirably unexcited utterance.

         In Eades v. State, 75 Md.App. 411, 426, 541 A.2d 1001 (quoting Mouzone v. State, 294 Md. 692, 697, 452 A.2d 661 (1982)), cert. denied, 313 Md. 611, 547 A.2d 188 (1988), Judge Karwacki wrote for this Court:

The essence of the excited utterance exception is the inability of the declarant to have reflected on the events about which the statement is concerned. It requires a startling event and a spontaneous statement which is the result of the declarant's reaction to the occurrence.

(Emphasis supplied).

         The two follow-up calls of 5:41 p.m. and 5:49 p.m., although they make no pretense of being Excited Utterances, were of a piece with that first call of 5:35 p.m. In terms of tone and of communicative purpose, they throw light on the first call. With respect to the mental composure of the caller, nothing changed. The only slight display of emotion on the part of the declarant was her exasperation that the police seemed unable to get their investigative coordinates straight. Nothing else changed. Clearly, she was giving precise directions, not responding to emotional shock.

         In looking at the totality of the circumstances, as the caselaw directs us, we hold that the 911 call of 5:35 p.m. cannot qualify as an Excited Utterance exception to the Rule Against Hearsay. The trial court's ruling on admissibility was as follows:

Okay. Well, when I listen to the tape, I did think she was -- I did sort of pick up a little bit of nervousness in her voice as to the first call. Some people are just nervous, period, when they're speaking to the police.
But for excited utterance, as the State did say, we don't have to have screaming and yelling -- as you know, [defense counsel]. I'm not telling you anything you don't know.
It's subtle, but I find that it is admissible under that exception, which is call one. Calls two and three, of course, would fall under present sense. And I still think she's a little on edge.
It almost appears -- and I agree with you at some point -- it almost appears that she's becoming more of a crime-watcher. I mean, she's at her window, obviously, and she's watching the whole thing from the time she sees whatever -- whoever she saw is running down the alley. And when the police arrive, she watches the whole thing.
I think it's a close call, but I do think when I listen to the tape that she sounds a little nervous, upset, you know, startled. Because I think hearing gunshots could startle people. I ...

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