KENNETH THOMAS, * IN THE

Petitioner * COURT OF APPEALS

v. * OF MARYLAND

STATE OF MARYLAND, * September Term, 2011

Respondent * No. 127

* * * * * * * * * * * * *
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 30th day of May, 2012, three copies of

the Petitioner’s Reply Brief in the captioned case were delivered to

James E. Williams
Criminal Appeals Division
Office of the Attorney General
200 Saint Paul Place, 17th flr
Baltimore, MD 21202

___________________________
Ben Miller
 IN THE
COURT OF APPEALS OF MARYLAND
____________________

SEPTEMBER TERM, 2011

____________________

NO. 127
____________________

KENNETH THOMAS,

Petitioner

v.

STATE OF MARYLAND,

Respondent
____________________

ON WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND
____________________

PETITIONER’S REPLY BRIEF

____________________

PAUL B. DEWOLFE
Public Defender

BEN MILLER
Assistant Public Defender

Office of the Public Defender

Appellate Division
6 Saint Paul Street, Suite 1302
Baltimore, Maryland 21202
Work: (410) 767-8528
Facsimile: (410) 333-8801
bmiller@opd.state.md.us

Counsel for Mr. Thomas

 INDEX

____________________

TABLE OF CONTENTS

PETITIONER’S REPLY BRIEF

Page

I. A DECLARANT’S PRIOR CONSISTENT STATEMENTS

SHOULD NOT BE ADMISSIBLE PURSUANT TO MARYLAND
RULE 5-802.1(b) IF THERE EXISTS ANY MOTIVE TO
FABRICATE AT THE TIME OF THE STATEMENT ............................... 1

II. USED AS SUBSTANTIVE EVIDENCE AT TRIAL,

BENJAMIN’S PRIOR CONSISTENT STATEMENTS WERE NOT
ADMISSIBLE PURSUANT TO MARYLAND RULE 5-616(c) ................ 9

III. ADMISSION OF BENJAMIN’S PRIOR CONSISTENT

STATEMENTS WAS NOT HARMLESS BEYOND A
REASONABLE DOUBT............................................................................ 12

CONCLUSION ...................................................................................................... 12

____________________

TABLE OF CITATIONS

Page
CASES
Bernadyn v. State, 390 Md. 1 (2005) .................................................................. 2-3

Blair v. State, 130 Md. App. 571 (2001) ................................................................. 3

Commonwealth v. Novo, 865 N.E.2d 777 (Mass. 2007) ......................................... 6

Conley v. State, 620 So.2d 180 (Fla. 1993) ........................................................... 10

Cortes v. State, 670 So.2d 119 (Fla. App. 1996)..................................................... 4

Dulyx v. State, __ Md. __, 2012 Md. LEXIS 149 (Mar. 21, 2012) ......................... 3

Fenner v. State, 381 Md. 1 (2004) .......................................................................... 7

Hajireen v. State, 203 Md. App. 537 (2012) ......................................................... 11

Holmes v. State, 350 Md. 412 (1998) ............................................................ 5-8, 11

McCray v. State, 122 Md. App. 598 (1998) ...................................................... 3, 12

Newman v. State, 65 Md. App. 85 (1985) ............................................................. 12

Parker v. State, 408 Md. 428 (2009) .................................................... 2-3, 9-10, 12

People v. Heard, 718 N.E.2d 58 (Ill. 1999) ............................................................ 4

State v. Fitch, 600 A.2d 826 (Maine 1991) ............................................................. 4

State v. Lopez, 630 N.E.2d 32 (Ohio App. 1993) .................................................... 6

Tome v. United States, 513 U.S. 150 (1995) ........................................................... 6

RULES
Maryland Rule 5-616 ................................................................................. 9, passim

Maryland Rule 5-802.1 .............................................................................. 2, passim

ii
 IN THE
COURT OF APPEALS OF MARYLAND

____________________

SEPTEMBER TERM, 2011

____________________

NO. 127

____________________

KENNETH THOMAS,

Petitioner

v.

STATE OF MARYLAND,

Respondent
____________________

ON WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND
____________________

PETITIONER’S REPLY BRIEF

____________________

I. A DECLARANT’S PRIOR CONSISTENT

STATEMENTS SHOULD NOT BE ADMISSIBLE
PURSUANT TO MARYLAND RULE 5-802.1(b) IF
THERE EXISTS ANY MOTIVE TO FABRICATE AT
THE TIME OF THE STATEMENT.

The charges in this case stemmed from what a police officer believed to be

a drug transaction between Thomas and Richard Benjamin. Over defense

objection, the State at trial presented Benjamin’s hearsay statements to various

police officers made shortly after police stopped Benjamin’s vehicle. The State’s
arguments in its brief that admission of these statements was not error are either

contradicted by established law or would lead to overly expanding the category of

statements admissible pursuant to Maryland Rule 5-802.1(b), ignoring that

statements do not gain trustworthiness simply by being repeated.

As cited in Thomas’s opening brief, this Court has held that a trial court has

no discretion to admit hearsay evidence and whether evidence that is hearsay is

admissible is an issue of law to be reviewed de novo. Bernadyn v. State, 390 Md.

1, 7 (2005). Without citing a case from Maryland, the State argues that the

“determination in this case should be reviewed for an abuse of discretion.” (State’s

Br. at 5). The State attempts to carve out a distinction between a decision of

whether a statement is hearsay, which would be reviewed de novo, and a decision

of whether an exception to the hearsay rule applies. No such distinction exists.

This Court reiterated in Parker v. State, 408 Md. 428, 436 (2009), that hearsay is

never admissible unless an exception applies and that “[w]hen the trial judge’s

ruling involves a legal question . . . we review the trial court’s ruling de novo.” Id.

at 437. Recently, in deciding whether a hearsay exception was applicable, this

Court again reiterated the standard announced in Bernadyn that such decisions are

reviewed de novo. See Dulyx v. State, __ Md. __, 2012 Md. LEXIS 149, *19-20

(Mar. 21, 2012) (applying a de novo standard of review when deciding if a trial

court properly admitted hearsay evidence under Rule 5-804(b)(1)).

This case involves a legal question – whether a declarant’s prior consistent

statement is admissible under Rule 5-802.1(b) if the declarant had multiple

2
motives to fabricate so long as it predated at least one of the declarant’s motives.

That the statement is admitted hearsay does not mean the standard should be abuse

of discretion. Rather, as this Court has made clear in Bernadyn, Parker, and

recently in Dulyx, review of admission of hearsay and application of any hearsay

exception is de novo. As such, contrary to the State’s argument, review in this case

is de novo.

Next, the State contends that there was no change in the application of Rule

5-802.1(b), because the only motive to fabricate “alleged by defense counsel arose

after Benjamin’s prior consistent statements.” (State’s Br. at 13-16). Benjamin in

fact had two motives to fabricate. The first arose the moment he participated in the

drug transaction and was stopped by police. See Blair v. State, 130 Md. App. 571,

601 (2001) (holding that a motive to fabricate exists the moment the crime was

committed, if not earlier, if the declarant was a participant); McCray v. State, 122

Md. App. 598, 609-10 (1998) (acknowledging that a declarant’s motive to

fabricate exists from the time of the crime if the declarant participated in the

crime); see also People v. Heard, 718 N.E.2d 58, 77 (Ill. 1999) (stating that the

declarant’s motive to fabricate existed from the time the crime was committed);

Cortes v. State, 670 So.2d 119, 121 (Fla. App. 1996) (holding that a motive to

fabricate arose at the time of arrest and any subsequent statements were not

admissible as prior consistent statements); State v. Fitch, 600 A.2d 826, 829

(Maine 1991) (finding that a motive to fabricate existed “at least at the time of

[declarant’s] arrest”).

3
 The State’s evidence at trial was that there was a drug transaction, that

Benjamin participated in it, and that the police conducted a traffic stop of

Benjamin’s car when he made the statements at issue. As a participant in the drug

transaction, Benjamin had a motive to fabricate at the time of the drug transaction,

at the time police stopped him, and at the time he made the statements in question.

During cross-examination, defense counsel questioned whether Benjamin was the

seller and not Thomas and argued the same during closing argument. (E.27-28,

85). That defense counsel also questioned Benjamin about his testimony

concerning his unauthorized use of a motor vehicle charge does not erase

Benjamin’s initial motive to fabricate due to his participation in the crime. 1

The primary reason this case is before this Court is that the Court of Special

Appeals acknowledged that Benjamin had multiple motives to fabricate. After this

acknowledgment, it was the Court of Special Appeals that expanded the holding of

Holmes v. State, 350 Md. 412 (1998). There, this Court held that a prior consistent

statement is not admissible if it was made at a time when the declarant had a

1
The State for four pages in its brief transcribes a portion of the defense’s
cross-examination of Benjamin, (State’s Br. at 8-11), and characterizes this as
“exhaustive cross-examination” to try to show Benjamin “was fabricating his
testimony in order to curry favor with the State.” (State’s Br. at 13-14). However,
only one question in the entirety of those four pages had anything to do with
Benjamin possibly fabricating his trial testimony to receive a deal on his
unauthorized use charge – when counsel asked Benjamin if he told the prosecutor
about the unauthorized use charge prior to testifying. The remainder of the
questions consisted of defense counsel questioning Benjamin’s account of the
unauthorized use charge and what defense attempted to show was Benjamin’s
mischaracterization of the charge as only a misunderstanding. Further, the State in
its brief even acknowledged that at trial the defense alleged Benjamin had a
motive to fabricate at the time of his arrest. (State’s Br. at 17, n.4).

4
motive to fabricate. Id. at 416-17. In this case, the Court of Special Appeals held

for the first time in Maryland that a prior consistent statement is admissible even if

the declarant had a motive to fabricate at the time of the statement, if the declarant

later developed a second motive to fabricate. Thomas is not asking that this Court

expand the holding of Holmes; Thomas asks that this Court adhere to the holding

of Holmes and to the purpose behind not admitting prior consistent statements that

come after a motive to fabricate exists. Such statements “carry little rebuttal

force,” id. at 419, and do not gain additional rebuttal force simply because the

declarant is someone with multiple motives to fabricate.

The State properly characterizes the rationale of Thomas’s argument as

being once a declarant has a motive to fabricate, any ensuing statement is

inherently unreliable. (State’s Br. at 23). This rationale, however, is not limited to

Thomas. Again, this Court in Holmes questioned the value of prior consistent

statements that come after a motive to fabricate exists. Holmes, 350 Md. at 419.

The Supreme Court has stated that prior consistent statements that come after a

motive to fabricate exists rebut any impeachment in a “less direct and forceful

manner.” Tome v. United States, 513 U.S. 150, 158 (1995). The Court of Appeals

of Ohio, in examining that state’s similar hearsay exception to the one at issue in

this case, reasoned that the “effect of the rule is not to make all prior consistent

statements of a witness admissible” and that a story does not become any more

truthful just because it has been repeated. State v. Lopez, 630 N.E.2d 32, 40 (Ohio

App. 1993). And the Supreme Judicial Court of Massachusetts described prior

5
consistent statements that come after a motive to fabricate exists as ordinarily

being “unnecessary and valueless because the statement of a witness is not made

more trustworthy by repeating it.” Commonwealth v. Novo, 865 N.E.2d 777, 785

(Mass. 2007) (internal citation omitted). If this Court, the Supreme Court, and

several state appellate courts all acknowledge the limited value of prior consistent

statements that come after a motive to fabricate, it is unclear how those statements

gain trustworthiness when a later motive to fabricate occurs. Under the State’s

argument, a prior consistent statement of a declarant with ten motives to lie would

be admissible so long as it came before the tenth motive came into existence.

The State makes several arguments that appear to ignore the fact that this

Court’s decision in Holmes established that prior consistent statements are not

admissible under Rule 5-802.1(b) if the statements come after a motive to

fabricate exists. First, the State contends that a holding that prior consistent

statements are not admissible if they come after any motive to fabricate exists is

“neither practicable nor appropriate.” (State’s Br. at 23). The State also contends

that excluding all prior consistent statements that come after any motive to

fabricate exists crosses “directly into the province of the jury.” (State’s Br. at 25).2

It is not apparent, however, what would be impracticable or inappropriate, or how

2
In arguing that excluding prior consistent statements if there already exists
any motive to fabricate would invade the province of the jury, the State cites to
Fenner v. State, 381 Md. 1, 26 (2004), which rejected defense arguments that
statements were inadmissible for being “too vague and misleading.” The
statements in Fenner, however, were pretrial statements made by the defendant
that the State contended were admissions of guilt. This Court’s decision dealt with
the admissibility of such statements on relevancy grounds, not hearsay.

6
it would invade the province of the jury, especially since prior consistent

statements are already not admissible if they come after the existence of a motive

to fabricate. A ruling that prior consistent statements are not admissible if there

already exists any motive to fabricate – which is not an expansion of Holmes –

would raise no issues of practicality, nor would it invade the province of the jury

as the jury does not have the need to be presented with hearsay.

Lastly, the State argues that if trial counsel does not want a prior consistent

statement to be admissible under Rule 5-802.1(b), “counsel may do so by

foregoing impeachment of the witness with a claim of recent fabrication.” (State’s

Br. at 27). Counsel should not have to ignore impeaching a witness at the expense

of admitting hearsay that this Court has characterized as having “little rebuttal

force.” Forcing trial counsel into making such a decision is neither practicable nor

appropriate.

Forcing counsel in this case to forgo cross-examining Benjamin about his

second motive to fabricate, his incurring the unauthorized use of a motor vehicle

charge, was particularly impracticable. As the State correctly notes in its brief, it

was the State during the direct examination of Benjamin that first elicited

testimony about this charge. (State’s Br. at 7, citing E.9-11). While the State has

every right to bring out on direct examination potentially damaging testimony

from one of its witness, it should not be allowed to then put the defense in a

position of either not cross-examining on this motive or allowing the State to then

introduce what would otherwise be inadmissible prior consistent statements.

7
 The general rule is that hearsay is not admissible, that prior consistent

statements are not admissible, and that prior consistent statements are only

admissible if there did not exist a motive to fabricate. Maryland Rule 5-802.1(b)

and this Court’s holding in Holmes should not then be expanded to permit the

admission of prior consistent statements from a declarant who has multiple

motives to fabricate. The purpose behind any hearsay exception is that the

statement, despite being hearsay, is reliable and trustworthy. Trustworthiness is

not enhanced by the declarant gaining motives to fabricate, and there should be no

advantage gained by a witness who has multiple motives. Therefore, the Court of

Special Appeals erred when it expanded the category of statements admissible

pursuant to Rule 5-802.1(b) and as such, its decision should be reversed.

II. USED AS SUBSTANTIVE EVIDENCE AT TRIAL,

BENJAMIN’S PRIOR CONSISTENT STATEMENTS
WERE NOT ADMISSIBLE PURSUANT TO
MARYLAND RULE 5-616(c).

Though the defense did not request a limiting instruction, the State still

should not be permitted to use testimony as substantive evidence only to later

argue it just came in for rehabilitation. As is discussed in Thomas’s opening brief,

the State during closing argument pointed the jury directly to Benjamin’s hearsay

statements as evidence that Thomas sold drugs. (Thomas’s Br. at 18-19). Based on

the State’s closing argument, one can hardly conclude that the jury was not likely

to use the hearsay statements as substantive evidence of Thomas’s guilt.

8
 In Parker v. State, 408 Md. 428 (2009), this Court found that the State

relied on hearsay testimony as substantive evidence based on the State’s closing

argument. In that case, the State at trial was permitted to present hearsay testimony

from a detective that he was told by an informant that “a black male wearing a

blue baseball cap and black hooded sweatshirt was ‘at the corner of Carey and

Laurens selling heroin from his person, meaning the drugs were on him.’” Id. at

431. The defendant, matching the description, was arrested at that location shortly

thereafter. Id. at 432. At trial, the State proffered that it was not offering this

testimony for the truth of the matter, but rather to explain why the detective went

to the scene. Id. at 435.

This Court held that the testimony was inadmissible hearsay because the

State did not rely on the evidence merely to explain the detective’s actions, but

rather used it as substantive evidence of guilt. Based on the fact that the detective

made the arrest of the defendant within five minutes of receiving the tip at the

precise location and that the defendant matched the description, “[o]ne can hardly

conclude, therefore, that the jury was not likely to misuse the informant’s

information as substantive evidence of [the defendant’s] guilt.” Id. at 443. To

support the finding that the State used this evidence substantively, this Court

pointed to the State’s closing argument. Id. at 444. There, without an objection

from the defense, the State argued: “[The detective] told you he got a tip from his

registered confidential informant that an individual wearing jeans and a black

hoody was selling heroin at this corner. So he responded to the corner and what

9
did he see. He saw [the defendant] who matched that description.” Id. This Court

concluded that “[t]he State thus used the hearsay statement to corroborate [the

detective’s] account that [the defendant] was engaging in ‘illegal narcotic activity’

which explained [the defendant’s] heroin possession.” Id. This Court then cited to

Conley v. State, 620 So.2d 180, 183 (Fla. 1993), which concluded that

“[r]egardless of the purpose for which the State claims it offered the evidence, the

State used the evidence to prove the truth of the matter asserted.”

Similarly in the instant case, regardless of the purpose for which the State

now claims it offered Benjamin’s hearsay statements, it used the evidence at trial

to prove the truth of the matter asserted. Having pointed directly at Benjamin’s

hearsay statements as evidence that Thomas sold drugs, the State should not now

be allowed to argue the statements were not used substantively. As such, the

statements were not admissible under Rule 5-616(c).

Further, to be admissible under Rule 5-616(c), the consistent statements

must logically detract from the impeachment. Holmes, 350 Md. at 427, n.3. In this

case, where Benjamin had a motive to fabricate when he made the statements in

question, repetition of statements made immediately after the declarant developed

the motive to fabricate did not logically detract from the impeachment, even if he

later developed a second motive to fabricate. “Mere repetition does not imply

veracity.” Hajireen v. State, 203 Md. App. 537, 557 (2012) (quoting Coltrane v.

United States, 418 F.2d 1131, 1140 (D.C. Cir. 1969)); see Hajireen, 203 Md. App.

at 557-58 (holding that a prior consistent statement of a witness who had been

10
impeached was not admissible pursuant to Rule 5-616(c) because the statements

did not “detract from the impeachment beyond the fact that, on a prior occasion,

[the declarant] had repeated many of the details consistent with her trial

testimony). Whether being admitted as substantive evidence or just for

rehabilitative purposes, a statement made by a declarant after he has developed a

motive to fabricate no longer logically detracts from the impeachment. Therefore,

Benjamin’s prior consistent statements were not admissible under Rule 5-616(c).

III. ADMISSION OF BENJAMIN’S PRIOR CONSISTENT

STATEMENTS WAS NOT HARMLESS BEYOND A
REASONABLE DOUBT.

Admission of Benjamin’s prior consistent statements, whether improperly

admitted under Rue 5-802.1(b) or Rule 5-616(c), was hot harmless error beyond a

reasonable doubt. It is immaterial that Benjamin himself testified. The issue to be

decided at trial was who was actually selling drugs and who was buying drugs at

the Blockbuster on December 9, 2009. The prejudice in the hearsay statements the

circuit court permitted lies in the consistency that improperly bolstered Benjamin’s

credibility. See McCray v. State, 122 Md. App. 598, 610-11 (1988) (holding that

the improper admission of hearsay statements was reversible error, even though

the declarant testified at trial, because the consistent statements were cumulative

and “it is their consistency that is the very nature of the harm”). As the Court of

Special Appeals stated in Newman v. State, 65 Md. App. 85, 98 (1985), when the

11
State’s case depends virtually exclusively on the credibility of a witness, as it did

in this case with Benjamin, the bolstering of the witness’s credibility by prior

consistent statements cannot be harmless error. See also Parker, 408 Md. at 447

(stating that “[c]redibility is determined by many factors, including the existence

of corroborating evidence”). Accordingly, this Court must reverse Thomas’s

conviction.

CONCLUSION

For the foregoing reasons, and those stated in Petitioner’s Brief, Thomas

respectfully requests that this Court reverse the judgment of the court below.

Respectfully submitted,

Paul B. DeWolfe
Public Defender

Ben Miller
Assistant Public Defender

Counsel for Mr. Thomas

Font: Times New Roman 13

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PERTINENT AUTHORITY

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APPENDIX