Gittings v. Mauerhan

NANCY M. GITTINGS v. ALVIN WALTER MAUERHAN

No. 794

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

May 18, 2018

Circuit Court for Baltimore County

Case No. 03-C-15-13362

UNREPORTED

Arthur, Leahy, Beachley, JJ.

Opinion by Beachley, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This appeal arises out of an automobile accident involving appellant Nancy Gittings and appellee Alvin Mauerhan. On December 8, 2015, appellant filed a complaint against appellee in the Circuit Court for Baltimore County, alleging that she had sustained injuries as a result of appellee's negligence. Following a three-day trial in June 2017, a jury found that appellee was not negligent. Appellant noted a timely appeal, and presents the following three questions for our review, which we have slightly rephrased:

1. Did the trial court commit prejudicial error by invoking the "residual exception" to the hearsay rule in order to admit into evidence a repair invoice appellee offered to prove the truth of the statements set forth therein?

2. Did the trial court commit prejudicial error by precluding appellant from testifying that appellee had an odor of alcohol on his breath immediately following the accident?

3. Did the trial court commit prejudicial error by precluding any reference to appellee's liability insurance?

We hold that the trial court erred by admitting the repair invoice under the residual exception to the hearsay rule, and that the error was prejudicial. Accordingly, we reverse the circuit court's judgment and remand for a new trial. For guidance to the trial court on remand, we shall address the other evidentiary issues appellant raised: the general admissibility of "odor of alcohol" evidence, and the trial court's redaction of any reference to liability insurance.

FACTUAL AND PROCEDURAL BACKGROUND

On December 22, 2012, appellant was driving a 2008 Pontiac G8 on Belair Road in Baltimore County, Maryland. At approximately 1:30 p.m., while appellant was stopped intraffic near the intersection of Belair Road and Olde Forge Lane, she was rear-ended by appellee, who was driving a 1993 Dodge Dakota pickup truck.

On December 8, 2015, appellant sued appellee, alleging that she had sustained injuries as a result of appellee's negligent operation of his pickup truck. Appellee filed an answer asserting a variety of defenses, including "brake failure." In June 2017, after a three-day trial in the Circuit Court for Baltimore County, a jury found that appellee was not negligent with respect to the December 22, 2012 accident, and judgment was entered in his favor. We shall provide additional facts as necessary to address the evidentiary questions presented in this appeal.

STANDARD OF REVIEW

"Generally, 'whether a particular item of evidence should be admitted or excluded is committed to the considerable and sound discretion of the trial court' and reviewed under an abuse of discretion standard." Perry v. Asphalt & Concrete Servs., Inc., 447 Md. 31, 48 (2016) (quoting Ruffin Hotel Corp. of Md., Inc. v. Gasper, 418 Md. 594, 619 (2011)). With regard to hearsay determinations,

[T]he trial court's ultimate determination of whether particular evidence is hearsay or whether it is admissible under a hearsay exception is owed no deference on appeal, but the factual findings underpinning this legal conclusion necessitate a more deferential standard of review. Accordingly, the trial court's legal conclusions are reviewed de novo, but the trial court's factual findings will not be disturbed absent clear error.

Gordon v. State, 431 Md. 527, 538 (2013) (citations omitted).

DISCUSSION

I.

At trial, appellee moved to introduce a car dealership's invoice for repairs to his pickup truck. Appellant objected on hearsay grounds to the following statements contained within the invoice: "Customer states rear compartment of master cylinder empty. Pedal went to floor. No brakes. Tech verified concern. Found steel brake lines rotted through. Tech removed damaged brake lines, manufactured and installed new brake lines, flushed and bled brake system." Although no employee from the car dealership testified at trial, appellee argued that because he kept regular records of his vehicle's maintenance, the invoice was admissible as his own record under the business records exception to the hearsay rule.

After hearing argument from both parties, the trial court implicitly rejected appellee's argument that the invoice was admissible as a business record, but found that the invoice was admissible pursuant to Maryland Rule 5-803(b)(24), known as the "residual exception" to the hearsay rule. The court ruled:

Okay. The [c]ourt finds under Rule 5-803(b)(24), the following are not excluded by [the] hearsay rule and that is a statement not specifically covered by any of the hearsay exceptions listed in Rule 5-803 or in Rule 5-804 but having equivalent circumstantial guarantees of trustworthiness if the [c]ourt determines that the statement is offered as evidence of material fact. The [c]ourt determines that these statements are offered as evidence of material fact. B, the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. The [c]ourt also finds that this statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. And finally C, the general purpose ofthese rules and the interest of justice will best be served by admission of the statements into evidence.

On appeal, appellant argues that the trial court erred by admitting the invoice under the residual exception to the hearsay rule. We agree.

A. RESIDUAL HEARSAY EXCEPTION

The Maryland Rules define hearsay as "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). "Hearsay, under our rules, must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule excluding such evidence or is 'permitted by applicable constitutional provisions or statutes.'" Parker v. State, 408 Md. 428, 436 (2009) (quoting Bernadyn v. State, 390 Md. 1, 8 (2005)).

In the instant case, the parties do not dispute that the statements contained in the repair invoice concerning the condition and repair of appellee's brakes are hearsay. Indeed, appellee sought to use the opinion contained in the statements to corroborate his sole defense at trial, i.e. that his truck's brake failure caused the accident. Although the trial court implicitly rejected appellee's argument that the invoice was admissible under the business records exception, the court admitted the invoice pursuant to the residual hearsay exception.

Maryland Rule 5-803(b)(24), which contains the residual exception to the hearsay rule, states that:

Under exceptional circumstances, the following are not excluded by the hearsay rule: A statement not specifically covered by any of the hearsay exceptions listed in this Rule or in Rule 5-804, but having equivalentcircumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant.

In State v. Walker, 345 Md. 293 (1997), the seminal case in Maryland on the residual exception to the hearsay rule, the Court of Appeals held that the following requirements must be satisfied for evidence to be admissible under the residual hearsay exception¹:

[1] there must be "exceptional circumstances";

[2] the statement must not be specifically covered by any of the other exceptions;

[3] it must have "equivalent circumstantial guarantees of trustworthiness";

[4] the court must determine that (i) the statement is offered as evidence of a material fact, (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can produce through reasonable efforts, and (iii) the general purposes of the rules and the interests of justice will best be served by admission of the statement into evidence; and[5] the proponent of the statement has given the requisite advance notice of its intention to use the statement.

Id. at 318-19 (footnote omitted). Significantly, the Court further held that:

[N]otwithstanding that the actual text of the rule purports to require findings by the trial court only with respect to element [4], we believe that, when the rule is read in light of its purpose and legislative history, it is incumbent on the trial court to make a specific finding, on the record, as to each conditional element. Evidence is not admissible under the residual exception unless each of the stated conditions is satisfied. Those conditions are in the nature of "[p]reliminary questions concerning the ... admissibility of evidence" under Md. Rule 5-104(a), and it is necessary that the record reflect the court's determination of them.

Id. at 321-22. Further explicating the importance of trial court findings in this context, the Walker Court stated,

It is, of course, helpful to both the parties and any reviewing appellate court to

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