Chapman v. State

Page 448

331 Md. 448

628 A.2d 676

John V. CHAPMAN v. STATE of Maryland.

No. 133, Sept. Term, 1992.

Court of Appeals of Maryland.

July 30, 1993.

Margaret Lanier, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen. of Maryland, on brief), Baltimore, for appellee.

Argued before ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, ROBERT M. BELL and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired, specially assigned), JJ. CHASANOW, Judge.

In 1978, as part of a large-scale revision of Maryland's theft and bad check laws, the General Assembly enacted S.B. 1153. Chapter 849 of the 1978 Acts of Maryland. One section of that comprehensive statutory scheme is now Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 142(c). ¹ Section 142(c) provides a narrow exception to the hearsay rule, permitting the State to introduce an affidavit of a bank to establish dishonor of a check or the status of an account without requiring any of the bank's employees to testify. Article 27, § 142(c) provides:

" § 142. [Obtaining property or services by bad check]--Presumptions.

* * * * * *

(c) Dishonor of a check by the drawee, that the drawer had no account with the drawee at the time of utterance, and insufficiency of the drawer's funds at the time of presentation and utterance may properly be proved by introduction in evidence of a notice of protest of the check, or a certificate under oath of an authorized representative of the drawee declaring the dishonor, lack of account and insufficiency, and this proof shall constitute presumptive evidence of the dishonor, lack of account and insufficiency."

Today, we are called upon to address whether this relatively recent exception to the hearsay rule violates an accused's confrontation rights embodied in both the Sixth Amendment of United States Constitution and Article 21 of the Maryland Declaration of Rights. We hold that the admission of documentary evidence under Article 27, § 142(c), is neither per se unconstitutional nor unconstitutional under the facts of this case. We believe the evidence admissible under § 142(c) contains sufficient indicia of reliability so as not to offend a criminal defendant's right of confrontation.

I.

In the evening of April 19, 1988, John Vernon Chapman entered the Sears, Roebuck & Co. catalogue store (Sears) in the Harford Mall. Chapman purchased a color television and a maintenance service agreement. The total purchase price for the sale was $315.49, including tax and shipping and handling charges. The assistant manager, Jean Hightower, was operating the cash register at the time of Chapman's purchase. Chapman tendered a check for $315.49, drawn on Fairfax Savings Bank, in exchange for the television and service agreement. Before accepting the check, Ms. Hightower requested identification from Chapman. Chapman gave her a Maryland driver's license. Ms. Hightower then examined the picture on the license and compared the signatures on the license and the check to verify Chapman's identity. Satisfied that the drawer of the check was indeed John Vernon Chapman, Ms. Hightower accepted the check and inscribed the license number on the back of the check. Chapman then departed the store with the television and service contract.

The next day, Sears deposited the check along with its other receipts for the day. Later, the bank notified Sears that Fairfax Savings Bank had dishonored the check on April 21, 1988. The depository bank returned the check to Sears marked "DO NOT REDEPOSIT." The face of the check also indicated that the account on which Chapman had drawn the check upon was closed. Sears made several attempts to contact Chapman at the telephone number and address printed on the check. Approximately a year later, on September 7, 1989, after all efforts to contact Chapman failed, Sears filed an "Application for Statement of Charges," and Chapman was subsequently charged with Obtaining Property or Services by Bad Check under Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 141. ² Chapman was tried by jury in the Circuit Court for Harford County. At trial, the State's case consisted of the testimony of Ms. Hightower and two pieces of documentary evidence, the dishonored check and an "Affidavit as to Account Status" from Fairfax Savings Bank. Ms. Hightower testified that the dollar amount of the transaction exceeded $300.00, that Chapman was the drawer of the check and presented it to her in exchange for the merchandise, and that the bank ultimately returned the check as dishonored. Next, the State introduced the affidavit under Article 27, § 142(c) to establish that Chapman did not have an account with the bank when he wrote the check on April 19, 1988. The affidavit provided:

"TO: State's Attorney for Harford County

AFFIDAVIT AS TO ACCOUNT STATUS

RE: Account # 001150107 Drawer John V. Chapman

Check # 148

Amount $315.49 Payee Sears

Check Dated 4/19/88 Drawee (Bank) Fairfax Savings

Date Uttered: 4/19/88

I Michael L. Stockman, of Fairfax Savings ... at 17 Light St., Baltimore,

Maryland do hereby make oath to the following facts:

1. That the above named drawer /DID NOT have the above numbered account with

this bank on April 19, 1988.

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3. That the above referenced check was presented for payment on April 21,

1989.

4. That at the time of the presentation of the above referenced check there

were INSUFFICIENT funds in the account and the said check was dishonored.

5. That I am an authorized representative of the above named financial

institution.

Michael L. Stockman

(signature)" Chapman objected on the basis that the admission of the affidavit under § 142(c) violated his right of confrontation. In addition, Chapman argued that even if this was the type of hearsay that did not offend principles of confrontation, there was an apparent irregularity on the face of the document that cast sufficient doubt upon its reliability to necessitate the affiant's live testimony in this case. The trial judge overruled Chapman's objection and admitted the affidavit into evidence. The jury subsequently found Chapman guilty of obtaining property or services by bad check, and following imposition of sentence Chapman appealed to the Court of Special Appeals. We granted certiorari before the intermediate appellate court heard the case. Chapman v. State, 329 Md. 168, 617 A.2d 1085 (1993).

II.

The question before this Court is whether the admission of the affidavit attesting to the status of his checking account under Article 27, § 142(c) violated Chapman's right of confrontation. In deciding this issue, we must examine the interrelationship of the hearsay rule and the Confrontation Clause. As the Supreme Court has noted, the common law rule against the admission of hearsay and the Confrontation Clause protect similar interests and are closely related. See California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489, 495 (1970); Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213, 225-26 (1970). Both express a preference for a personal examination of a declarant as a means of testing the veracity and accuracy of a witness's testimony. See Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-38, 65 L.Ed.2d 597, 606 (1980); John W. Strong, 2 McCormick on Evidence § 245, at 93 (4th ed. 1992) (hereinafter "McCormick on Evidence") (stating rule against hearsay was designed to insure compliance with three conditions of oral testimony: oath, personal presence, and cross-examination). As a result of this close relationship, a legislature's alteration of the hearsay rules may impinge upon Confrontation Clause protections. The important question, therefore, is at what point does the legislature's enactment of a new hearsay exception cross the threshold and impermissibly limit the exercise of essential components of the criminal justice system--confrontation and cross examination. Clearly, not every alteration of the common law scheme regarding the admissibility of hearsay will violate the Confrontation Clause. While the Supreme Court has noted that the prohibition against hearsay and the Confrontation Clause share common roots and protect similar values, it has been careful not to equate the two. Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638, 651 (1990); Green, 399 U.S. at 155, 90 S.Ct. at 1933, 26 L.Ed.2d at 495; Dutton, 400 U.S. at 86, 91 S.Ct. at 218, 27 L.Ed.2d at 225-26. Indeed, the Supreme Court has clearly cautioned against regarding the Confrontation Clause as "nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law." Green, 399 U.S. at 155, 90 S.Ct. at 1933-34, 26 L.Ed.2d at 495. By refusing to equate the protections of the Confrontation Clause with the common law rules regarding the admission of hearsay in criminal trials, the Supreme Court has allowed the states some latitude to create new exceptions to the hearsay rule. See Green, 399 U.S. at 171, 90 S.Ct. at 1941, 26 L.Ed.2d at 504 (Burger, C.J., concurring) (emphasizing "the importance of allowing the States to experiment and innovate.... If new standards and procedures are tried in one State their success or failure will be a guide to others and to the Congress.").

Legislative latitude in altering the hearsay rule, however, is not limitless. The United States Supreme Court, in Ohio v. Roberts and its progeny, has set out a general framework to determine whether the fundamental confrontation protections have been impinged upon. A legislature must comply with the principles embodied in the Roberts line of cases when modifying the rule governing hearsay in the context of a criminal trial. Cf. People v. Denning, 219 Ill.App.3d 428, 162 Ill.Dec. 129, 132-33, 579 N.E.2d 943, 946-47 (1991), appeal denied, 143 Ill.2d 641, 167 Ill.Dec. 403, 587 N.E.2d 1018 (1...