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In the Circu it Court for H arford C ounty Case No. 12-K-01-001056

IN THE COURT OF APPEALS OF MARYLAND No. 91 September Term, 2003 ______________________________________ MICHAEL JOSEPH BERNADYN v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridg e, John C. (Retired, specially assigned), JJ. ______________________________________ Opinion by Raker, J. Wilner and Battaglia, JJ., dissent ______________________________________ Filed: December 8, 2005

We must decid e in this case w hether a m edical bill seized by police at 2024 Morgan Street in Edgewood, Maryland, and addressed to "Michael Bernadyn, 2 024 M organ Stre et, Edgewood, Maryland 2 1040," w hen used by the State to establish that Bernadyn lived at that address, constitutes in adm issib le he arsa y. We sha ll answer th at question in the affirmative and sh all hold t hat the b ill was in admiss ible hea rsay.

I. Michael Bernadyn, petitioner, was convicted by a jury in the Circuit Court for Harfo rd County of the off enses of p ossession o f marijuan a, possession with intent to distribute, and maintaining a common nuisance. He was sentenced to a term of incarceration of five years on the possession with intent to distribute count and one year, consecutive, on the common nuisance c ount. In August 2001, Deputy Mark Burkhardt of the Harford County Sheriff's Office conducted late night surveillance at 2022 and 2024 Morga n Street in Edgewood, Maryland, for approximately one week. He saw numerous people coming to and going from the two residences, meetin g on the street, an d cond ucting h and-to -hand d rug tran saction s. Accord ing to Deputy Burkhardt, one of these individuals was Michael Bernadyn, who often walked in and out of 2024 Morgan Street. Deputy Burkhardt also saw several individuals whom he knew to be drug dealers entering 2024 Morgan Street on nume rous occasions. On August 29, 200 1, Harford County Narcotics Task Force officers executed a search and seizure warrant at 2024 Morgan Street. When they entered, petitioner was alone in the

living room. The officers seized a marijuana pipe, marijuana stems and seeds, and a Johns Hopkins Bayview Physicians medical bill dated August 16, 2001, containing the language "Respo nsible party: Michael Bernadyn, Jr., 2024 Morgan Street, Edgewood, Maryland 21040 ." In the master bedroom, they seized men's clothing, approximately twenty-six bags of marijuana weighing approxim ately eight ou nces an d some marijua na stem s and se eds. At trial, Deputy Burkhardt testified that h e had seize d the Bayvie w Physician s bill from 2024 Morgan Street. The defense objected to admission of the bill in evidence, arguing as follows: "Reason for defense's objection is the paperwork says it's a billing statement from Johns Hopkins Bayview, has my client's address, 2024 M organ Stre et, which I have no idea where they got this address. To let this ev idence in w ould be ex tremely prejudicial to my client . . . . This company, this hospital, it's just a billing address. It could have been a third party who gave that address, not him. It doesn't say at some point he has reported this to be his addre ss. T hat's a pr etty big element of their case, and I don't think that's good enough. It could have been a third party that gave th at address. W e have no idea if it was him and who gave it . . . . That's why the hearsay rulings are the w ay they are. They can't say `ordinary course of business.'" The court asked defense counsel: "Is it your client's position he didn't live there or that was not his residence?" Defense counsel answered "Yes." The court never asked the State the purpose for which the evidence was offered, and without articulating any reasons, the court overru led the o bjection and ad mitted th e bill into eviden ce. In closing argument, the State argued to the jury as follows:

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"Now, the defendant w ould argue . . . that the defenda nt didn't live there. W ell, we've shown that he lives there, and look at the facts that were before you. Deputy B urkhardt f or about a week prior to the warrant goes down and is working surveillance. He's in an apartment across from where the defendant lives. He sees the defendant coming in and out of that house or a partment. *** When the warrant's serv ed, [ Bernadyn is] the only one in there. He's the only one in there, and he is found in the living room. Then you go to the officer who te stifies, `When we go in, we look for mail.' And I submit if you said to anyone, `Go in this certain house,' and tell them no other information, `and tell me who lives there,' od ds are they are g oing to pick up a piece of mail and look at it, a nd th ey're goin g to s ay, [`]Probably that person lives here becau se their mail is here.['] *** They pick a piece of evidence that shows who lives there, and what you have is a bill from Johns Hopkins Bayview Physicians, a statement d ate of August 16, 2001. That's almost two weeks before the warrant, but it's for services that are provided back in June of 2001. Now we go back almost two months prior to the warrant being served. So I guess def ense cou nsel and the defenda nt would have you believe that Johns Hopkins randomly picked an address of 2024 and just happened to send it there, and that's where the defendant lived. It doesn't happen, because you also--look, this is a bill, is what it is, and I am sure that any institution is going to make sure they have the right address when they want to get paid. There is also an argument that, [`]Well, the utilities are in [someone else's] name, they're not in this defendant's name; therefore, he must not live there .[']

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I guess that argument would surprise my wife because my utilities are in my nam e, yet my wife an d children live at the house.[1] So I guess ad opting that a rgumen t, and it applies to many people, if you will, roommates in college, generally one person will set u p the util ities, but there would b e multiple people who lived there. And, again, go back to the facts of the case. The officer still places him coming in and out o f that location from the week p rior to the warran t. So the evid ence is that he lives there, a nd the evidence is that he certainly had control over that apartment or house, that he could come and go as he pleased." In rebuttal closing argument, the State again referred to the bill, arguing as follows: "If you walk into a house and somebod y is standing there and you identify who that person is and you also find in the house personal mail for that individual, what is reasonable? What would you rely on in your every day decision making is that person lives there, and that is what the officers did. This bill that was se nt, this isn't anyone else's b ill because it says, `Patient, Michael Bernadyn, Jr.' She argues, [`]Well, we don't know where Johns Hopk ins got that address from.['] Michael Bernadyn, Jr., is the patient, and it says, `Responsible: Michael Bernadyn, Jr.' Again, did they randomly pick that address? I don't think so. *** The question you have to ask is: Why was the Defendant at that house? Was he just hanging out? Was it just bad timing? He just happened to be there that day when they served the search warrant? No. He lived there. Where was Nicole Majerowicz? They could have called her, too, as a witne ss. They could have called her to s traighten ev erything up, an d they didn't.

Although not raised as an issue in this case, this personalized argument, based on facts obviously not in evidence, is highly improper. Attorneys should be vigilant to avoid arguing facts not in evidence and arguments based merely on personal experiences. -4-

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If you go in the house, again, you go back a week before the warrant, who does the officer see coming in and out of the house? It's this de fenda nt. He's the person they see coming in and out of th e hous e, not N icole M ajerow icz. It is this defendant who is in the house when the officers go in. It's this defendant. He's--the only person in that house is that defenda nt. *** Again, was the State required to bring in every piece of documentation from the house? No. You know, how many pieces of paper are enough? How many pieces of pape r are not enough? If I had brought in 20 pieces of paper with his name on it, would that have convinced anybody anymore? As opposed to a single p iece of paper , especia lly when he is found in the residence? Suppose there was no piece of paper. Does that mean he doesn't live there? No. The evidence, the reasonableness of the evidence is he lives there, with or without the piece of paper. Would 100 pieces of paper convince you? I don't know. Probably not. Do I h ave to bring all that in? N o. It's not a hundr ed perc ent certa inty." Bernadyn was convicted on all counts. Bernadyn noted a timely appeal to the Court of Special Appeals. That court affirmed. Bernadyn v. State , 152 M d. App . 255, 261, 831 A.2d 532, 536 (2003). We granted Bernadyn's petition for writ of certiorari to consider the following question: Does a medical bill discovered at a crime scene and addressed to the defendant constitute inadmissible hearsay when introduced in evidence, without foundation or authentication under any exception to the hearsay rule, to prove that the defenda nt resided at th e address o n the bill? 378 Md. 61 3, 837 A.2d 92 5 (2003).

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II. We review ru lings on the a dmissibility of evidence ordinarily on an abuse of discretion standa rd. See Ho pkins v. State , 352 Md. 146 , 158, 721 A.2d 2 31, 237 (1998). Review of the admissibility of evidence which is hearsay is different. 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." Md. R ule 5-802 . Thus, a circu it court has no discretion to a dmit hear say in the absence of a provision providing for its admissibility. Whether evidence is hearsay is an issue of law reviewed de novo . Petitioner argues that th e trial court erred in admitting th e medical b ill because it is inadmissib le hearsay. He reasons that the bill is hearsay because it was an ou t-of-court statement offered f or its truth and that the State failed to establish that the statement satisfied any exception to the hearsay rule. He contends that the sender's conduct of addressing a letter is an implied assertion and is thus hearsay. In the alternative, he argues that even if the bill is admissible under the business record exception, the State failed to lay a proper found ation fo r that exc eption. The State argues that addressing a letter is nonassertive conduct, and, for this reason, the address on the letter is not a "statement," which is requisite for application of the hearsay rule. Adopting the reasoning of the Court of Special A ppeals, the S tate argues th at the bill was circumstantial evidence of the belief of Bayview Physicians that Bernadyn lived at the

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address and that this belief likely was accurate because Bayview Physicians had an interest in getting paid. The State also maintains that the bill was "admissible as circumstantial evidence connecting Bernadyn with the residence at 2024 Morgan Street," distinguishing between evidence offered for its truth and "circumstantial evidence" offered to link the defendant to a location or certain circumstances.

III. The question before us is whether a medical bill containing the words "Michael Bernadyn, Jr., 2024 M organ Stre et, Edgew ood, M aryland 2104 0" is hearsa y when use d to establish that Michael Bernadyn lived at 2024 Morgan Street in Edgewood, Maryland. The State does not c ontend tha t the bill, if hearsay, falls within any exception to the rule against hear say. When the trial court ruled on Bernadyn's objection, defense counsel argued the following: (1) the bill "ha s my client's address"; (2) there was no basis for knowing how Bayview Physicians obtained the address; (3) the bill was hearsay; and (4) lack of foundation laid for the business record exception to the hearsay rule. The S tate was never asked by the trial court the purpose for which the evidence was offered, and the court simply overruled petit ione r's objec tion, ther eby ad mitting th e evi dence ge nera lly. Maryland Rule 5-801(c) defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, o ffered in e vidence to prove the truth of

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the matter asserted." We therefore begin our inquiry by identifying the proposition that the medical bill was offere d to pro ve. See , e.g., United States v. Hathaway , 798 F.2d 902, 907 (6th Cir. 1986) (stating that "[i]n addressing the question of whe ther the doc uments at issue were hearsay, we begin by determining what the e vide nce o ffer ed to prov e"); J . F. M urph y, Jr., Maryland Evidence Handbook

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