Thomas v. State

DAVID AARON THOMAS v. STATE OF MARYLAND

No. 36

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

April 20, 2020

Circuit Court for Dorchester County

Case No. C-09-CR-18-000264

UNREPORTED

Arthur, Shaw Geter, Sharer, J., Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Sharer, 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.

David Aaron Thomas was convicted by a jury sitting in the Circuit Court for Dorchester County of second-degree assault and unlawful taking of a motor vehicle.¹ Thomas was sentenced to a term of 15 years in prison, with all but 11 years suspended, and a period of probation thereafter.

In his appeal, Thomas asserts that the trial court erred by:

1. Permitting the State to improperly comment during closing argument on [his] post-arrest silence.

2. Admitting [the victim's] hearsay statements as an excited utterance.

Finding neither error nor abuse of discretion, we shall affirm.

FACTUAL BACKGROUND

Thomas does not present a challenge to the sufficiency of the evidence to support the guilty verdicts. Therefore, we provide only an overview of the events of the evening of September 30, 2018, which gave rise to the charges against him. Payne v. State, 243 Md. App. 465, 472 (2019) (citing Whitney v. State, 158 Md. App. 519, 524 (2004)).

At about 11:00 that evening, Rachael Smith appeared at the home of Gary Mills on Drawbridge Road in Dorchester County. Hearing what he described as "beating on the door" and a female "yelling for help," Mills testified that he answered the door and observed Smith "partially dressed, bloodied, extremely upset, [and] crying." He allowed her to enter the home and she stated that she had been attacked and that "he's going to killme if he gets me." Mrs. Mills covered Smith with a blanket and called the police. Following the arrival of Maryland State Trooper Kyle Barfield, Smith was taken by ambulance to a hospital for treatment.

At trial, Smith testified that she and Thomas had been acquainted since their teen years and, in the three weeks before this event, had been seeing each other socially—"hanging out" as friends, but she described their relationship as also being sexual. On September 30, driving her own car, Smith agreed to pick up Thomas at his home. Thereafter, they went to a Wal-Mart where he entered the store as she waited in the car. In his absence, she went to a nearby Dominos to use the restroom. When she returned, Thomas was upset that she did not stay in the car as he had instructed.

They then drove, with Smith at the wheel, to a Royal Farms store and, while entering the parking lot, Thomas became agitated when the car struck a curb. After making several more stops, including two at a liquor store, Smith intended to return Thomas to his home and then go to her home in Denton. Instead, at Thomas' direction she drove on unfamiliar roads around Cambridge.

At some point, Thomas began driving her car "to an area [she] didn't know," where "there was nothing around [them]." Smith testified that, on two occasions, Thomas stopped and pulled her out of the car by her hair, choked her and threatened to kill her and leave her body where no one would find her. Eventually, she was able to get out of the car near two houses, and Thomas drove away in her car. Failing to find help at the first house she approached, she went to the Mills' house.

Trooper Barfield's testimony, which we summarize, was that when he arrived at the Mills' home, he saw "a young lady sitting on [the] couch[,] ... crying profusely[,] ... [with] various physical injuries about her person...." Describing those injuries, he "observed [Smith's] left eye to be black. She had various scrapes and scratches about her face and chest. She also had bruising on her chin and her left elbow was cut. Both of her knees were also cut as well." He also observed "her hand that was cut and appeared to be broken[,]" and "scrapes and bruising and red marks on her neck...." Smith advised Barfield that she had been assaulted by Thomas. He concluded that she appeared to be intoxicated, later clarifying that he had detected alcohol on her breath but that her speech was not slurred, and she was able to walk without stumbling.

We shall take up Thomas' assertions of error in chronological order, that is we first consider his contention that the court abused its discretion in admitting hearsay under the excited utterance exception.

Hearsay - excited utterance

Thomas argues that the trial court abused its discretion by permitting inadmissible hearsay through the testimony of Barfield. The State responds that the testimony complained of was properly admitted under the excited utterance exception to the rule against hearsay. See Rule 5-803(b)(2) (defining the "excited utterance" hearsay exception as "[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."). The State further posits that the error, if any, was harmless beyond a reasonable doubt.

Barfield described having been dispatched to the Mills' residence and described what he observed of Smith when he arrived there. When asked to describe her emotional state, he responded:

[WITNESS]: Ms. Smith, like I said, she was crying, she was very upset, she was almost upset to the point where she was unable to convey the events that led up to her arriving at that house.

* * *

[PROSECUTOR]: As soon as you made contact with her in the house was there a delay in asking her what happened to her?

[WITNESS]: No, there was not.

[PROSECUTOR]: What did she tell you?

[DEFENSE COUNSEL]: Objection.

There ensued a brief bench conference during which defense counsel expressed a desire to clarify the earlier hearsay argument. To that argument, defense counsel added "a confrontation objection under the Sixth Amendment."² In the end, the court overruled the objection generally, without specificity as to defense counsel's two-pronged approach.

We have often said that the admissibility of evidence is left to the sound discretion of the trial court. Mines v. State, 208 Md. App. 280, 291 (2012) (citing Rule 5-104(a), which provides that "[p]reliminary questions concerning ... the admissibility of evidence shall be determined by the court[]...."). As such, "[w]e review the trial court's decision under an abuse of discretion standard." Taneja v. State, 231 Md. App. 1, 11 (2016) (citing Sifrit v. State, 383 Md. 116, 128-29 (2004)). However, a court "'has no discretion to admithearsay in the absence of a provision providing for its admissibility. Whether evidence is hearsay is an issue of law reviewed de novo.'" Handy v. State, 201 Md. App. 521, 538-39 (2011) (quoting Bernadyn v. State, 390 Md. 1, 8 (2005)).

We have indulged Thomas' hearsay argument and agree that the court did not abuse its discretion in overruling his objection to Barfield's testimony that Thomas argues is inadmissible hearsay.

An abuse of discretion occurs when the trial court rules in a manner "'where no reasonable person would take the view adopted by the trial court, or when the court acts without reference to any guiding rules or principles.'" Cobrand v. Adventist Healthcare, Inc., 149 Md. App. 431, 437 (2003) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997)). Accord North v. North, 102 Md. App. 1, 13 (1994) (internal quotations and citations omitted).

The standard for determining whether a trial error was harmless was established by the Court of Appeals in Dorsey v. State, 276 Md. 638, 659 (1976):

[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of - whether erroneously admitted or excluded - may have contributed to the rendition of the guilty verdict.

(Footnote omitted).

We cannot reach such a conclusion on the record before us.

In the end, however, his argument on this point is for naught, for the evidence elicited from Barfield was already before the court. Barfield's testimony regarding hisinitial observations of Smith was no more than a reiteration of a description of Smith's appearance, condition, and apparent state of mind given by Gary Mills and testified to by Smith herself. It was cumulative of testimony already admitted—indeed, admitted largely without objection. Smith testified in considerable detail about the assaults and her injuries; Gary Mills testified to his observations of her appearance and condition and about her excited state as she attempted to describe the events while in his home; and, finally, the written statement given by Smith to police investigators in the hours shortly after the incident that was also admitted. We adopt a similar position to that expressed by the Court of Appeals in Yates v. State, 429 Md. 112, 124 (2012) ("We agree ... that the admission of the hearsay evidence did not ultimately affect the jury's verdict given the cumulative nature of the similar statements offered at trial.").

The Court of Appeals has said:

This Court has long approved the proposition that we will not find reversible error on appeal when objectionable testimony is admitted if the essential contents of that objectionable testimony have already been established and presented to the jury without objection through the prior testimony of other witnesses."

Grandison v. State, 341 Md. 175, 218-19 (1995) (emphasis in original) (citations omitted).

Having considered the testimony of both Mills and Smith, given before that of Barfield, we are satisfied...