MD COS rules man convicted of second-degree murder of a 3-year-old

A Baltimore man convicted of child abuse and second-degree murder of a 3-year-old is entitled to a new trial, the state's highest court held yesterday.The Court of Appeals found a potentially damning question posed by another child to her mother after her cousin's death should never have been admitted into evidence.

The decision reversed Erik Stoddard's convictions stemming from the death of Calen DiRubbo, who died of multiple blunt force injuries to her abdomen on June 15, 2002. Evidence at trial showed Calen was in Stoddard's care around that time.The top court held that an out-of-court statement made by Calen's 18-month-old cousin, Jasmine - Is Erik going to get me? - was impermissible hearsay where it was used to imply that Jasmine had witnessed Stoddard assaulting her cousin and was fearful he would harm her, too. Jasmine's mother repeated the question while testifying to her daughter's behavioral changes after Calen's death; Jasmine herself did not testify at Stoddard's trial.

In order to accept the words - as evidence that Jasmine witnessed Erik Stoddard assaulting Calen DiRubbo, the jury needed to make numerous inferences, Judge Irma S. Raker wrote yesterday for the court. In the absence of cross examination, and particularly in light of Jasmine's age, these inferences are largely untested and unsupportable.The jury, the court pointed out, had no information about the context in which these words were spoken - i.e., what Jasmine meant by the word get - or about unrelated reasons why she might have feared him. And it had no information concerning the girl's perception, memory or cognitive ability to distinguish an assault from some other event.

Implication as assertion Maryland and federal law define hearsay as a statement, other than the one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay, absent an applicable exception, is not admissible.In making its decision, the Court of Appeals joined a minority of jurisdictions rejecting an Advisory Committee note to the Federal Rules of Evidence that the implications of an utterance cannot constitute an assertion for hearsay purposes unless the declarant intended to communicate those implications - i.e., nothing is an assertion unless it is intended to be one.The question was important, since any communication by Jasmine implying that Stoddard had committed the assault on Calen was unintentional.

The Advisory Committee's view with respect to words appears to be as follows: If the declarant intended to communicate the factual proposition which the words are offered to prove as true, then the words are hearsay. If the declarant did not intend to communicate that proposition, the words are not hearsay, Raker wrote. We conclude that a declarant's lack of intent to communicate a belief in the truth of a particular proposition is irrelevant to the determination of whether the words are hearsay when offered to prove the truth of that proposition, she added.Nor did the fact that the child's statement was in the form of a question prevent it from being an assertion for hearsay purposes, the court said. And the admission was not harmless error, as the state's remaining evidence against Stoddard was circumstantial. Evidence indicated that Stoddard was the only adult supervising Calen, her older brother Nicholas and Jasmine for at least part of the 24-hour time frame prior to Calen's death.

Stoddard was convicted of second-degree murder and child abuse resulting in death by a Baltimore City Circuit Court jury and sentenced to 30 years in jail for each offense. The Court of Special Appeals affirmed the convictions last year, holding that Jasmine's statement was a non-assertive verbal utterance that was not hearsay. Judges Alan M. Wilner, Lynne A. Battaglia and Clayton Greene Jr. concurred yesterday, opting to follow the Advisory Committee's intent requirement but to disallow the statement on other grounds.

If the child would not have been competent to testify directly to the implied assertion - I saw Erik attack Calen - the assertion cannot become admissible by having her mother repeat it, Wilner wrote.

WHAT THE COURT HELD

Case:Stoddard v. State, CA No. 70, Sept. Term 2003. Reported. Opinion by Raker, J. Filed Dec. 8, 2005.Issue:Was a child's out-of- court statement to her mother - Is Erik going to get me? - admissible at the defendant's trial for murder and abuse of another child in his care? Holding:No; reversed. The statement was hearsay, offered to prove that the defendant assaulted another child in the speaker's presence. The fact that the child did not intend that implication did not render it non-hearsay.Counsel:Eve L. Brensike for appellant; Sarah Page Pritzlaff for appellee.

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