Circuit Court for Baltimore City Case No. 116123014
Friedman, Beachley, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
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.
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.
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. 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.
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
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
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.
To The Rescue, Ostensibly
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.
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.
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
Operator: Both black males?
Caller: Yes. Young, about 16/17.
Operator: Okay. And you said it's the alleyway near
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
Caller: I just heard a shot and then I saw them
second call followed, a bare six minutes later, at 5:41 p.m.
This hearsay declaration was accepted as a Present Sense
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
Operator: Okay. You don't know what cross street or which
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
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
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
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
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.
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.
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." 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.
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
God, It's A Cobra!"
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,
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.
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.
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.
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).
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).
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).
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
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
(Emphasis supplied; citations omitted).
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.
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
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).
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
(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
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.
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.
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.
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.
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.
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.
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
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.
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
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
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
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
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 ...