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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1834 September Term, 1995 _______________________________

DAVID CARLTON

V.

STATE OF MARYLAND

_______________________________ Wilner, C.J., Moylan, Salmon, JJ. _______________________________ Opinion by Salmon, J. _______________________________ Filed: September 3, 1996

On September 13, 1995, David Carlton, appellant, was convicted by a jury of first degree felony murder and robbery with a deadly weapon. Baltimore County Circuit Court Judge William Hinkel

sentenced appellant to life without possibility of parole on the felony murder count and a twenty year concurrent sentence for robbery with a deadly weapon. appeal: 1. Did the trial judge err in admitting an alleged accomplice's extrajudicial statements? Should the sentence for robbery with a deadly weapon have been merged into the sentence for felony murder? Appellant raises two issues on

2.

FACTS The bloody and severely beaten body of Robert Zinkhan, age 53, was found outside the A to Z Garden Center ("the Garden Center") at approximately 9:00 a.m. on December 23, 1994. The Garden Center

was owned by Mr. Zinkhan and was located on Belair Road in Baltimore County, Maryland. Two days after Mr. Zinkhan's body was discovered, the police arrested appellant and one Steven Ussel in Jacksonville, Florida. The two were charged with the murder of Mr. Zinkhan. In a search

incident to their arrest, police recovered, inter alia, clothing belonging to appellant with Mr. Zinkhan's blood on it. Shortly after his arrest, Ussel gave two statements to the police in which he admitted that he had helped appellant rob Mr.

Zinkhan.

According to Ussel, Mr. Zinkhan was killed, during the

course of a robbery, when appellant beat Mr. Zinkhan, using a pole.

Appellant also gave a written statement to the police.

He

admitted being in the company of Ussel on the night of the murder but asserted that he took no part in the robbery or beating of Mr. Zinkhan and did not know of either the robbery or the murder until he was arrested. He stated:

On Thursday evening, 12/22/94, Steve [Ussel] and I were walking down Belair road. Steve said he had to visit a friend about some money that was owed to him at that A to Z Greenery [sic]. When we got there, he told me to wait in front of the place. Then walked to the other side of the front door, where he proceeded to talk to an ex-girlfriend. They talked for about 15 to 20 minutes. Then she went inside for about ten minutes. She came out with two sandwiches, one for Steve and one for me. Then she gave Steven $10. Then she said, don't forget, after eleven p.m., you can get your money. Steve and I left the place, went and got a six pack of beer, I asked him what she meant by after eleven p.m. Steve told me that he had to come back after eleven p.m. to collect money that was owed to him. I said okay. We came back after 11 p.m. We parked across the street from A to Z Greenery [sic]. He told me that he would be back in about 20 minutes. I said okay. So I sat there drinking my last beer. Twenty minutes has [sic] gone by. I began to wonder where Steve is. So I got out of the truck we were in. I proceeded to cross the streets of Belair Road from A to Z. When I crossed the parking lot of A to Z, I see Steve over top of someone.

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I then ran to where Steve was and pushed him off of another man. I said, what the hell is going on? I looked down at the man and I saw some blood coming out of his nose. And before I could turn around, someone hit me on the head and on my right shoulder. I must have passed out. When I woke up, I was closer to the parking lot of A to Z. Steve said, come on before the guy, this guy calls the cops on me. We then ran back to the truck and took off. From that night on until 11/25/94 [sic], I did not watch the news so I didn't know that Steve had killed anyone. I asked him who hit me. not know. He told me he did

I wish I would have knowed [sic] that he killed the man. I would have turned him in myself. I only thought they were fighting. After we got to Virginia, Steve told me that the guy paid him some of the money that was owed to him. I said, that was cool. Steve asked me if I could go in the liquor store and get a case. I said fine. When I handed Steve back the change, he pulled out a big wad of money. I asked him how much money did the guy owe you? He said, about $1800. Steve told me he had about $900 on him. He would give his Mom the rest of the money he owed Steve. Steve said his mom would send it to him once we got to Florida. I asked Steve why he had to leave tonight and not tomorrow after I picked up my last paycheck so I would have money on me. He said he had to be in Florida by a certain time. Then he said, if its money you are worried about, here is $200. Just have your mom mail

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your check down to Florida, you can pay me back. I said fine. In the meantime, We stopped off here beer, had some fun. the Border for about we proceeded to Florida. and there, got some more Stopped off at South of four to six hours.

We ate, played games, drank some more. Then we got to Florida, rented a room, spent some more money. Then we got pulled over on the 24th. The police let us go. Then on the 25th, I asked Steve to stop at a phone so I could call my son and his mother and wish them a happy Christmas. By the time I used the phone, police came up on us and arrested us. I kept asking why am I being arrested? They told me for first degree murder. When Detective Duckworth asked me about what happened, I could not answer him because I was not clear myself about what was going on. A couple of the guys where I was being held helped me remember what happened the night of 12/22/94. I still have a little bump on my head. When I was in court in Florida, the black guy next to me told me Steve said he is the one who hit me, that he wanted me there just like the other guy he hit on. After giving the police a handwritten statement, appellant answered a series of questions. appellant said, I want to make sure that after I walked over to A to Z and saw Steve over him, that I pushed Steve away from the man. I did not know that he was that bad off or I wouldn't have ran. I thought Steve only hit him in the nose a couple of times. I'm sorry that this man had died the way he did. At the conclusion of the statement,

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At witness.

trial,

the

State

called

Sandra

Shipley

as

its

first

Ms. Shipley was an employee of the Garden Center who She was an

worked on December 22, 1994 from 9:00 a.m. to 7:00 p.m. acquaintance of Ussel.

About 6:00 p.m. on December 22, 1994, she

spoke for about five to ten minutes with Ussel, who was accompanied by a white male whom Ms. Shipley was unable to identify at trial. Ussel asked Ms. Shipley for ten dollars for lodging and for food. Ms. Shipley gave him the money and two sandwiches. While Ussel's companion stood seven to eight feet from her, Ussel asked Ms. Shipley several questions about Mr. Zinkhan. objection by appellant's counsel, Ms. Shipley testified: A. I can't say in exact words, but I know that he [Ussel] asked me about when he [Mr. Zinkhan] would leave, if he had an alarm. He just kept asking me if I knew if he was leaving that night. Those things. Q. Okay. Over

A. Mainly about whether he was leaving or not that night. The State also called Christine Hinton, another friend of Ussel's. Ms. Hinton testified that, shortly before Christmas 1994, The

she encountered Ussel and appellant in a shopping mall.

threesome had a conversation that lasted approximately five to ten minutes. Ms. Hinton testified, over appellant's objection, that,

while appellant was standing next to Ussel, Ussel said that "he knew someone that worked on Belair Road that he was going to rob." Ms. Hinton then inquired, "What happens if you get caught?" Over

objection, Ms. Hinton testified that either Ussel or appellant (Ms.

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Shipley was

not

sure

who)

answered

her

question

by

stating,

"[W]ell, we're going to kill him if we get caught." Appellant did not testify at trial but, using the statement that he had given the police as a foundation, took the position that he took no part in either the robbery or the killing of Mr. Zinkhan and that he did not even know of the robbery until his arrest. In an effort to convince the jury that he had been duped

by Ussel and that Ussel was using him as a scapegoat, appellant introduced into evidence the two written statements Ussel had given to the police in which Ussel blamed appellant for the brutal beating and murder of Mr. Zinkhan.

I.

MS. SHIPLEY'S TESTIMONY

In essence, the objected to questions asked of Ms. Shipley by Ussel were: 1) When, if at all, would Mr. Zinkhan leave the Garden

Center on the night of December 22, 1994? and 2) Did Mr. Zinkhan have an alarm? Appellant does not contend that the questions asked

by Ussel lacked relevance; instead he argues that allowing the jury to hear the questions violated the rule against hearsay. Maryland Rule 5-801(c) defines "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." Maryland Rule 5-801(a) defines the term "statement" as

"(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion."

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The text of Rule 5-801 is substantively the same as Federal Rule 801(a)-(c). Under the federal rule, courts have taken

divergent positions as to when, if ever, an implied assertion is an assertion within the meaning of Rule 801(a)(1). RULES
OF

LYNN MCLAIN, MARYLAND are three basic

EVIDENCE

214-217

(1994

ed.).

There

approaches under federal decisions: from statements are hearsay" (id.

1) That "no implied assertions at 214); 2) that "implied

assertions from verbal statements are hearsay" (id. at 215); and 3) that implied assertions are hearsay unless "there is no possibility that the declarant intended to leave a particular impression" (id., quoting Park v. Huff, 493 F.2d 923, 927 (5th Cir. 1974), withdrawn on other grounds, 506 F.2d 849 (en banc), cert. denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975)). The committee note to

Maryland Rule 5-801 states that the fact that evidence "is in the form of a question or something other than a narrative statement ... does not necessarily preclude its being an assertion." Based

on the committee note, it would appear that the drafters of Maryland Rule 5-801 rejected the view that implied assertions are never hearsay. At common law, Maryland recognized implied

assertions as hearsay.

See Waters v. Waters, 35 Md. 531, 544-45

(1872); Eiland v. State, 95 Md. App. 56, 81-82 (1992); rev'd on other grounds, sub nom. Tyler v. State, 330 Md. 261 (1993); Eads v. State, 75 Md. App. 411, 426-27, cert. denied, 313 Md. 611 (1988). Many questions asked by an out-of-court declarant can be implied assertions. For example, the question, "Do you need

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change?" impliedly asserts that the questioner has change. v. Sanders, 491 N.E.2d 313 (1994).

State

The question, "Why did you stab

me, Brutus?" impliedly asserts that the questioner was stabbed by Brutus. On the other hand, many, if not most, questions make no Burgess v. State,

assertion; the questioner simply seeks answers. 89 Md. App. 532, 537-38 (1991).

The questions Ussel asked Ms. When Ussel asked, "Does

Shipley fall into this latter category.

Mr. Zinkhan have an alarm?" or "What time, if ever, will Mr. Zinkhan leave?" he made no explicit or implied assertion. Ussel's

questions could not possibly have been "offered in evidence to prove the truth of the matter asserted." Therefore, the hearsay

rule was not violated when Ms. Shipley was allowed to repeat the questions Ussel asked her.

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II.

MS. HINTON'S TESTIMONY

Appellant also claims that the hearsay rule was violated by Ms. Hinton's testimony that Ussel told her 1) that he planned to rob someone on Belair Road and 2) that either appellant or Ussel said that if they were caught they were going to kill the robbery victim. We will assume for purposes of this case, as appellant does, that the statement, "[W]e're going to kill him if we get caught," was made by Ussel and not appellant. There were two possible

reasons the State wanted to put before the jury what Ussel said he planned to do. It was important for the State to prove what

appellant knew and when he knew it because appellant claimed he accompanied Ussel to the Garden Center thinking that Ussel was there merely to seek repayment of a debt. By offering Ussel's

statements into evidence, the State presented circumstantial proof that appellant had notice that there was to be a robbery of the Garden Center, which was located on Belair Road. If the statement 6 LYNN MCLAIN,

was introduced to show notice, it was not hearsay. MARYLAND PRACTICE - MARYLAND EVIDENCE STATE
AND

FEDERAL

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