JULIUS DEVINCENTZ, JR. v. STATE OF MARYLAND
Court of Appeals of Maryland, Adkins, August 13, 2018,
Hearsay – A child’s statement threatening to get the defendant in trouble if he didn’t do what she wanted could be admitted at trial through a third-party as non-hearsay evidence.

(Concur and Dissent – Watts – Agrees on preservation, disagrees that the trial court erred)

Facts:
From 2008 until 2015, Julius Devincentz lived in a home in Elkton, MD along with his children, his girlfriend, and his girlfriend’s children.
In 2016, Devincentz was tried for sexual abuse of his girlfriend’s daughter, K.C..
At trial, K.C. testified that Devincentz touched her and digitally penetrated her on several occasions between the age of 7 and 10.
In defense, Devincentz called his son, Joshua, to testify on his behalf. Joshua testified that K.C. had previously threatened to do things to get Devincentz in trouble when she was upset with him.
The State objected, arguing that K.C.’s threats to get Devincentz in trouble were hearsay.
The judge excluded the evidence.
Joshua also testified that K.C. “would not tell the truth about certain things,” but this was also objected to and excluded.
The State argued that it had been 14 months since Devincentz and Joshua had lived with K.C., and therefore they should not be able to testify about their opinion regarding K.C.’s truthfulness.
The jury found Devincentz guilty of sexual abuse of a minor and second-degree assault, but acquitted him of the charge of a continuing course of conduct against a child.
Devincentz appealed, arguing that the evidence about K.C.’s untruthfulness and prior threats to get him in trouble should not have been excluded.

Held: The Court of Appeals held that the evidence was improperly excluded and sent the case back for a new trial.

Impeachment – The credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at:
(1) Proving that the witness previously made statements that are inconsistent with the witness’s present testimony
(2) Proving that the facts are not as testified to by the witness
(3) Proving that an opinion expressed by the witness is not held by the witness or is otherwise not worthy of belief
(4) Proving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely
(5) Proving lack of personal knowledge or weaknesses in the capacity of the witness to perceive, remember, or communicate
(6) Or proving the character of the witness for untruthfulness by (i) establishing prior bad acts or (ii) establishing prior convictions.

Impeachment – In order to attack the credibility of a witness, a character witness may testify (A) that the witness has a reputation for untruthfulness, or (B) that, in the character witness’s opinion, the witness is an untruthful person.

Note: This is limited to general character; a witness cannot testify that someone is lying in the case at issue

Character Witness – A character witness may offer his opinion of another witness’s character for truthfulness and the basis for that opinion “so long as that person avoids venturing into the troublesome area of specific instances” where the other witness was found to have been lying.

Character Witness – Foundation – In order to testify about a person’s truthfulness or reputation for truthfulness, a witness must be familiar with the person or the person’s reputation.

Character Witness – Foundation – A witness has an adequate basis for personal opinion character testimony when the witness has regular contact with the person whose character she is evaluating, and reason to believe that the person has not been truthful

Character Witness – Foundation – The admissibility of past character to prove present character depends on whether, “in the discretion of the trial court, the contacts on which the opinion is based are frequent enough and recent enough to have probative value to the testimony given in court.”

Examples from the Opinion: A polygraph examiner could not testify that the witness wasn’t truthful after a two-hour interview. However, a regular acquaintance with someone could provide such a basis.

From the Case: “Here, the evidence at trial established that the length and nature of Joshua and K.C.’s acquaintance was one that would permit Joshua to form an opinion about K.C.’s character for truthfulness. As we have discussed, living in the same household with K.C. for six years provided ample basis for Joshua’s opinion.”

Character Witness – Foundation – A gap of 14 months between the time of regular association and trial was not “too remote” a time period to keep a character witness from testifying about another witness’ truthfulness as of the time of trial.

Impeachment – A character witness may testify about another witness’ character for truthfulness without having to say, “in my opinion, X is not a truthful person.”

Hearsay – In general, a witness cannot testify about statements made by other people if those statements are offered at trial to prove the truth of the statement.

For example: A witness testifying that a person she met said, “hi, my name is Bob” would not be allowed if offered to show that the person’s name is Bob (the truth of the statement). It would, however, be allowed to show that the person was alive when she saw him (the fact that the person was speaking showed that he was alive regardless of whether what he was saying was “true” or not.).

Hearsay – The hearsay rule has many exceptions, including: present sense impression, excited utterance, statement by a party opponent, etc.

Hearsay – A statement is not hearsay if offered to show bias of a witness, rather than the truth of the statement

Hearsay – Impeachment – “Use of a statement for impeachment purposes is not hearsay, since only the fact that the statement was made is being offered, not the truth of the statement.”

From the Case: “Here, K.C.’s dislike of Devincentz and the intensity of their arguments was relevant to show that she was biased against him and could have motive to lie. Joshua testified that K.C. was ‘yelling and screaming and saying things that she could do that would get [Devincentz] in trouble.’ We also observe that Joshua did not detail the contents of K.C.’s implied threats—only that she had made them. K.C.’s statement is significant because her implied threat was ‘evidence of animus that might show a motive for making false allegations.’ As such, its use for impeachment purposes … was not hearsay because Devincentz offered it for the fact that K.C. made the statement—not for its truth. We hold that the Circuit Court erred in excluding Joshua’s testimony.”