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 16th day of April, 2012, three copies of

the Petitioner’s 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 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 21202-1608
Work: (410) 767-8528
Facsimile: (410) 333-8801
bmiller@opd.state.md.us

Counsel for Mr. Thomas

 INDEX

____________________

TABLE OF CONTENTS

PETITIONER’S BRIEF

Page

STATEMENT OF THE CASE ................................................................................ 1

QUESTIONS PRESENTED .................................................................................... 2

STATEMENT OF FACTS....................................................................................... 2

ARGUMENT ........................................................................................................... 9

I. A DECLARANT’S PRIOR CONSISTENT STATEMENT

SHOULD NOT BE ADMISSIBLE IF IT CAME AFTER THE
DECLARANT HAD ANY MOTIVE TO FABRICATE, AND IF
SO, THE COURT OF SPECIAL APPEALS ERRED BY FINDING
NO ERROR IN THE ADMISSION OF THE DECLARANT’S
HEARSAY STATEMENTS MADE AFTER HE HAD A MOTIVE
TO FABRICATE .......................................................................................... 9

II. THE COURT OF SPECIAL APPEALS INCORRECTLY

RULED THAT THE DECLARANT’S PRIOR CONSISTENT
STATEMENTS WERE ADMISSIBLE AT TRIAL PURSUANT
TO MARYLAND RULE 5-616(c) ............................................................. 18

CONCLUSION ...................................................................................................... 20

PERTINENT AUTHORITY .................................................................................. 21

____________________
 TABLE OF CITATIONS

Page
CASES
Bernadyn v. State, 390 Md. 1 (2005) ..................................................................... 10

Blair v. State, 130 Md. App. 571 (2000) .......................................................... 13, 16

California v. Hayes, 802 P.2d 376 (Cal. 1990) ............................................. 8, 13-14

Commonwealth v. Novo, 865 N.E.2d 777 (Mass. 2007) ........................................ 15

Gray v. State, 368 Md. 529 (2002) ......................................................................... 17

Holmes v. State, 350 Md. 412 (1998) .......................................................... 10-15, 17

Hyman v. State, 158 Md. App. 618 (2004) ............................................................ 13

McCray v. State, 122 Md. App. 598 (1998) .......................................... 13, 16, 19-20

People v. Lewis, 408 N.W.2d 94 (1987) ................................................................ 14

People v. Goff, 702 N.E.2d 299 (Ill. App. 1998) ................................................... 16

Runion v. State, 13 P.3d 52 (Nev. 2000) ................................................................ 15

Simmons v. State, 333 Md. 547 (1994) .................................................................. 17

State v. Lunstad, 857 P.2d 723 (Mont. 1993) ......................................................... 15

State v. Martin, 663 P.2d 236 (1983) ..................................................................... 14

State v. Walker, 345 Md. 293 (1997) ....................................................................... 7

Thomas v. State, 202 Md. App. 386 (2011) ............................................................. 2

Tome v. United States, 513 U.S. 150 (1995) ............................................... 11-12, 15

United States v. Bowman, 798 F.2d 333 (8th Cir. 1986)........................................ 15

United States v. Chavers, 416 Fed.Appx. 863 (11th Cir. 2011)............................. 14

ii
RULES
Md. Rule 5-616 ............................................................................................. 9, 18-20

Md. Rule 5-802.1 .................................................................................... 7-12, 16, 18

Fed. R. Evid. 801............................................................................................... 11-12

iii
 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 BRIEF
____________________

STATEMENT OF THE CASE

On August 17, 2010, a jury in the Circuit Court for Montgomery County,

the Honorable Joseph A. Dugan, Jr., presiding, convicted Thomas, Kenneth

petitioner, of distribution of a controlled dangerous substance. On September 17,

2010, Judge Dugan sentenced him to five years incarceration with all but eighteen

months suspended. The Court of Special Appeals affirmed the judgment in a

reported opinion filed on December 2, 2011, and issued its mandate on January 3,

1
2012. Thomas v. State, 202 Md. App. 386 (2011) (E.92-107). The case is before

this Court pursuant to a writ of certiorari issued on March 16, 2012.

QUESTIONS PRESENTED

1) Did the Court of Special Appeals incorrectly interpret Maryland

Rule 5-802.1(b) when it held that if a declarant had multiple
motives to fabricate, the declarant’s prior consistent statement
was admissible at trial under Rule 5-802.1(b) so long as it
predated at least one of the declarant’s motives?

2) Applying this incorrect interpretation of Rule 5-802.1(b), did the

Court of Special Appeals then err when it ruled admissible prior
consistent statements by a declarant that came after the declarant
had a motive to fabricate?

3) Did the Court of Special Appeals incorrectly rule that the

declarant’s prior consistent statements were admissible at trial
pursuant to Maryland Rule 5-616(c)?

STATEMENT OF FACTS

Around 7 p.m. on December 9, 2009, Officer Peter Johnson of the

Montgomery County Police Department was parked in a vehicle observing a

parking lot at a Blockbuster Video in Germantown. (E.33). The officer first

observed a white Cadillac Eldorado arrive at the Blockbuster followed about thirty

minutes later by the arrival of a second car, a gold Saturn. (E.36). The driver of the

Cadillac, later identified as Richard Benjamin, got out of his car and went to the

passenger side of the Saturn. (E.40). Johnson then observed a quick transaction

between the driver of the Saturn and Benjamin, and Johnson believed he had just

observed a drug transaction. (E.40). The two cars then left and Johnson radioed to

other officers to conduct traffic stops of both. (E.40).

2
 Officers Alfred Dzenkowski and Jeffrey Rea conducted the stop of

Benjamin. Benjamin initially told Dzenkowski that he went to Blockbuster that

night to rent a video. (T1 at 200).1 Dzenkowski then returned to his police vehicle

to run a license check on Benjamin and Officer Rea began to talk to Benjamin, at

which point he observed Benjamin using his feet to put his shoe back on.

Benjamin then consented to a search of his car and the officers had him exit the

vehicle. As Rea was beginning to search the car, Dzenkowski saw Benjamin

actually kick his shoe off into the nearby woods. (T1 at 201). The officers then

recovered the shoe and inside they found one rock of crack cocaine. (T1 at 201-02,

219-20). Other than the drugs found in Benjamin’s shoe, police did not recover

any other drugs or drug paraphernalia from Benjamin or from inside his car. (T1 at

213).

Officer Jason Cokinos conducted the traffic stop of the Saturn and learned

it was being driven by Kenneth Thomas, petitioner. Thomas told the officer he

was coming from Frederick and was on his way to Pep Boys. (T1 at 224). A

search of Thomas recovered a total of $275, fifty of which was separated from the

rest of his money. (T1 at 235). The fifty dollars were in Thomas’s left jacket

pocket and consisted of two twenty-dollar bills and one ten-dollar bill. (T1 at 225).

Police did not recover any drugs from Thomas or from inside Thomas’s car. (T1 at

228).

1
The transcripts will have the following designations: “T1”: August 16,
2010 trial proceedings; “T2”: August 17, 2010 trial proceedings; “T3”: September
17, 2010 sentencing proceedings.

3
 At trial, the defense’s theory was that it was Benjamin who was selling

drugs on December 9, 2009, and that Thomas went to Blockbuster to purchase

drugs, but, at the last minutes, he decided against making the purchase and left.

(E.27-28, 82, 85). Benjamin testified for the State and said that after making

arrangements to meet Thomas at the Blockbuster that night, he then purchased

drugs from Thomas, paying with two twenty-dollar bills and one ten-dollar bill.

(E.3). During direct examination, the State asked Benjamin if he received a

probation before judgment on the charge of possession of cocaine for his role in

this case and Benjamin said yes. (E.8). The State asked Benjamin if the State made

any promises to him in exchange for his testimony in this case and Benjamin said

no. (E.9). The State also asked Benjamin if two weeks prior to trial he had also

been charged with unauthorized use of a motor vehicle and Benjamin said that he

had. (E.9). Benjamin then attempted to explain that the unauthorized use charge

stemmed from a misunderstanding when he had borrowed a vehicle from a friend.

(E.9-10).

On cross-examination, defense counsel asked Benjamin if he had actually

returned the vehicle or if the owner came to get it after the police got involved.

(E.11-12). Benjamin said that he had not returned the vehicle and that the owner

came and got it. (E.12). Defense also asked Benjamin if he told the prosecutor

about the unauthorized use charge before he testified in the instant case and he

said yes. (E.15). Defense counsel asked Benjamin if it was him who went to

4
Blockbuster that night to sell drugs, not Thomas. (E.27-28). Benjamin denied that

he was there to sell drugs. (E.28).

A number of police officers also testified for the State. During the direct

examination of Officer Johnson, the following occurred:

Q. Okay. And did you have an opportunity to speak with

[Benjamin]?

A. I did. I asked Benjamin, “Okay” --

[THOMAS’S TRIAL COUNSEL]: Your Honor,

I’m going to object to the hearsay nature of any responses to
his questions.

[THE PROSECUTOR]: Your Honor --

THE COURT: Overruled.

[THE PROSECUTOR]: -- may we approach. Oh.

By [the prosecutor]:
Q. What did Benjamin say?

A. I asked Benjamin, I told him, I was like, “Look, we

know more than you think, this is not just a traffic stop, where did
you get this, where did you get this crack cocaine?” and he said, “I
bought it from a guy named Kenny.” --

[THOMAS’S TRIAL COUNSEL]: I object

again, Your Honor.

THE COURT: Overruled

THE WITNESS: -- “I, I got it from a guy named

Kenny at the Blockbuster, who drives a gold Saturn.”

(E.45-46) (emphasis added).

During the direct examination of Officer Jeffrey Rea the following

occurred:

5
 Q. Okay, thank you very much. Now, did you have an
opportunity to speak at all with Benjamin after the crack cocaine was
seized?

A. Yeah. After I came out of the car and Officer

Dzenkowski had the, had the crack, I asked Benjamin where he got
it from, and he said he --

[THOMAS’S TRIAL COUNSEL]: Objection.

THE COURT: Overruled.

THE WITNESS: -- he said he bought it from a

black guy at a nearby shopping center.

(E.60) (emphasis added).

The State later recalled Officer Johnson and the following occurred:

Q. Officer Johnson, when you were speaking with

Benjamin, did he tell you how he paid for the rock of crack cocaine?

[THOMAS’S TRIAL COUNSEL]: Objection,

Your Honor.

THE COURT: Overruled.

THE WITNESS: He did. On the scene initially,

after we had him out, we found -- Officer Dzenkowski found the
rock of crack cocaine; I asked him, “Okay, you know, let’s, let’s
talk,” and he said he bought the, the crack from a man he knew
as Kenny that was in a gold Saturn at the Blockbuster.

....

THE WITNES: Okay. He told me that he paid for

the crack cocaine with $50.

BY [THE PROSECUTOR]:
Q. Did he tell you the denomination that he used?

A. He did later --

6
 [THOMAS’S TRIAL COUNSEL]: Objection.

THE WITNESS: -- at the --

THE COURT: Overruled.

THE WITNESS: Okay. He did later at -- at the

Germantown Station, I advised him of his rights. Benjamin --

[THOMAS’S TRIAL COUNSEL]: Objection.

Again, Your Honor, that is not responsive to the question.

THE COURT: All right. Just tell us if, at any time, he

advised you as to the denominations with which he paid for
the crack cocaine.

THE WITNESS: He did. He told me that there

was two 20s and a 10 to make $50, that’s what he paid for the
crack cocaine that was found in his shoe.

(E.64-66) (emphasis added).

On appeal, Thomas argued that the prior consistent statements of Benjamin,

as testified to by the police officers, were inadmissible hearsay. These statements

were not admissible pursuant to Md. Rule 5-802.1(b) because Benjamin had a

motive to fabricate as soon as he was stopped by police, and thus any possible

consistent statement came after Benjamin had a motive to fabricate. The State

countered that the statements were admissible under 5-802.1(b) to rebut the

inference, raised by the defense in cross-examination of Benjamin and in closing

argument, that Benjamin testified falsely in the hope that he would receive

consideration from the State in its prosecution of him for unauthorized use of a

motor vehicle.

7
 The Court of Special Appeals stated:

The question then arises: What is the outcome under Rule 5-

802.1(b) if a witness’s statement is admissible under the Rule
because he did not have a motive to fabricate under one
scenario, but he did have a motive to fabricate under a second
scenario? We hold that a witness’s prior consistent statement
is admissible if made prior to the existence of any one of
multiple biases or motives that an opposing party charges,
expressly or impliedly, might have influenced the witness’s
testimony.

(E.104).

To support its holding, the Court cited to California v. Hayes, 802 P.2d 376

(Cal. 1990), where it was held that a “prior consistent statement, otherwise

meeting the statutory requirements, 2 ‘is admissible if it was made before the

existence of any one or more of the biases of motives that, according to the

opposing party’s express or implied charge, may have influenced the witness’s

testimony. (E.105-06) (quoting Hayes, 802 P.2d at 395); see also Oregon v.

Middleton, 657 P.2d 1215, 1217 (Ore. 1983); Debra T. Landis, Annotation,

Admissibility of Impeached Witness’ Prior Consistent Statement – Modern State

Criminal Cases, 58 A.L.R.4th 1014, § 2a (2011).

2
The Court of Special Appeals stated that Maryland Rule 5-802.1(b) and
the California equivalent “are worded similarly.” (E.106). California Evidence
Code § 791 provides: “Evidence of a statement previously made by a witness that
is consistent with his testimony at the hearing is inadmissible to support his
credibility unless it is offered after: (b) An express or implied charge has been
made that his testimony at the hearing is recently fabricated or is influenced by
bias or other improper motive, and the statement was made before the bias, motive
for fabrication, or other improper motive is alleged to have arisen.”

8
 The Court of Special Appeals also ruled that Benjamin’s prior consistent

statements were admissible under Maryland Rule 5-616(c) as rehabilitative

evidence. (E.106). Rule 5-616(c)(2) provides that a witness whose credibility has

been attacked may be rehabilitated by: “Except as provided by statute, evidence of

the witness’s prior statements that are consistent with the witness’s present

testimony, when their having been made detracts from the impeachment[.]” The

Court stated: “At a minimum, if [Thomas] wished to limit the use of the prior

consistent statements to rehabilitative purposes rather than as substantive

evidence, [Thomas] needed to raise the issue with the court and request a limiting

instruction.” (E.107).

ARGUMENT

I. A DECLARANT’S PRIOR CONSISTENT

STATEMEMNT SHOULD NOT BE ADMISSIBLE IF IT
CAME AFTER THE DECLARANT HAD ANY
MOTIVE TO FABRICATE, AND IF SO, THE COURT
OF SPECIAL APPEALS ERRED BY FINDING NO
ERROR IN THE ADMISSION OF THE DECLARANT’S
HEARSAY STATEMENTS MADE AFTER HE HAD A
MOTIVE TO FABRICATE.3

Prior to the Court of Special Appeals’ decision in this case, Maryland Rule

5-802.1(b) had been interpreted to preclude all prior consistent statements if such

statements were made when the declarant had a motive to fabricate. In this case,

the circuit court permitted the two police officers to offer hearsay evidence that

were prior consistent statements made after a motive to fabricate existed. The

3
Thomas has combined questions one and two from the questions
presented into a single argument.

9
Court of Special Appeals affirmed the circuit court’s decision, ruling for the first

time in Maryland that a prior consistent statement is admissible if it came before

any motive to fabricate existed. Because a prior consistent statement made after a

motive to fabricate exists has little rebuttal force, such a statement should be

inadmissible even if a separate motive to fabricate later comes into existence. As

such, this Court should rule that a prior consistent statement is inadmissible if it

comes after any motive to fabricate, and that in this case the police officer’s

testimony to statements made to them by a declarant with a motive to fabricate

should have been inadmissible.

Ordinarily, a court reviews rulings on the admissibility of evidence on an

abuse of discretion standard. However, review of the admissibility of evidence

which is hearsay is different. Bernadyn v. State, 390 Md. 1, 7 (2005). Hearsay

“must be excluded as evidence at trial, unless it falls with an exception to the

hearsay rule excluding such evidence or is permitted by applicable constitutional

provisions or statutes. Thus, a circuit court has no discretion to admit hearsay in

the absence of a provision providing for its admissibility. Whether evidence is

hearsay is an issue of law reviewed de novo.” Id. at 7-8. Thus, this Court must

determine whether, as a matter of law, the statements from Benjamin as testified to

by the two police officers were admissible.

As a general rule, prior out-of-court statements made by a witness that are

consistent with the witness’s trail testimony are not admissible to bolster the

credibility of a witness. Holmes v. State, 350 Md. 412, 416 (1998). Maryland Rule

10
5-802.1(b) provides an exception to that general rule. The rule provides for the

admissibility of a “statement that is consistent with the declarant’s testimony, if

the statement is offered to rebut an express or implied charge against the declarant

of fabrication, or improper influence or motive.” Md. Rule 5-802.1(b). Such

statements, if admissible under the Rule, are admissible as substantive evidence.

Holmes, 350 Md. at 417. The Maryland rule is derived from Fed. R. Evid.

801(d)(1)(B), which provides, in pertinent part, “A statement is not hearsay if . . .

the declarant testifies at the trial or hearing and is subject to cross-examination

concerning the statement, and the statement is . . . (B) consistent with the

delcarant’s testimony and is offered to rebut an express or implied charge against

the declarant of recent fabrication of improper influence or motive . . . .”

Both the federal rule and the Maryland rule are silent as to whether the

consistent statement must have been made prior to the time of an alleged

fabrication or improper influence or motive. With regard to the federal rule, the

Supreme Court has addressed the issue of whether a witness’s “out-of-court

consistent statements made after the alleged fabrication, or after the alleged

improper influence or motive arose, are admissible.” Tome v. United States, 513

U.S. 150, 152 (1995). The Supreme Court held that Fed. R. Evid. 801(d)(1)(B)

embodies the common-law rule requiring a prior consistent statement, introduced

“to rebut a charge of recent fabrication or improper influence or motive,” to have

been made before the alleged fabrication or improper influence or motive came

into existence. Tome, 513 U.S. at 167.

11
 Thus, under Rule 801(d)(1)(B), a prior consistent statement “may not be

admitted to counter all forms of impeachment or to bolster the witness merely

because [he or] she has been discredited.” Id. at 157. In reaching its decision, the

Supreme Court rejected the government’s argument that the common-law rule is

inconsistent with the federal rules liberal approach to relevancy, noting that

“hearsay evidence is often relevant” and that “relevance is not the sole criterion of

admissibility.” Id. at 163. Although the Supreme Court acknowledged that there

may be instances where out-of-court statements made after the alleged fabrication

have some probative force, the Court noted that statements that come after a

motive to fabricate rebut the alleged fabrication in a “less direct and forceful”

manner. Id. at 158.

Prior to the decision by the Court of Special Appeals in this case, the law in

Maryland as to when a prior consistent statement would be admissible was clear.

This Court, in Holmes, followed a similar approach to that taken by the Supreme

Court in Tome, and held that to admit a statement under Md. Rule 5-802.1(b), the

statement had to have been made when the declarant did not have a motive to

fabricate. Holmes, 350 Md. at 416-17. This Court held that because “prior

consistent statements carry little rebuttal force,” for Rule 5-802.1(b) to be

applicable, the witness’s prior consistent statement must have been made before

the declarant had a motive to fabricate. Id. at 419. Citing to Tome, this Court said

that prior consistent statements “may not be admitted to counter all forms of

impeachment or to bolster the witness because [he or] she has been discredited.”

12
Id. at 420. Also, the rule’s history indicates that it was intended only to permit the

admission of those prior consistent statements “which would logically rebut the

impeachment undertaken, whether by an implied or express charge of fabrication

or of bias or improper motive.” Id. at 423 (citing Reporter’s Note to the Rules

Committee, 125th Report, regarding Rule 5-802.1, July 1993, at 188).

That a prior consistent statement is only admissible if it came before the

declarant had a motive to fabricate, as established in Holmes, remained the clear

law in Maryland until the Court of Special Appeals’ decision in this case. See

Hyman v. State, 158 Md. App. 618, 633 (2004); Blair v. State, 130 Md. App. 571,

595 (2000); McCray v. State, 122 Md. App. 598, 608 (1998). To reach the

conclusion that a prior consistent statement is admissible if it came before any

motive to fabricate arose, even if a different motive to fabricate already existed,

the Court of Special Appeals cited to California v. Hayes, 802 P.2d 376 (Cal.

1990). (E.105).

California’s rules of evidence allow for the admission of a prior consistent

statement if “[a]n express or implied charge has been made that [the declarant’s]

testimony at the hearing is recently fabricated or is influenced by bias or other

improper motive, and the statement was made before the bias, motive for

fabrication, or other improper motive is alleged to have risen.” Cal. Evid. Code §

791(b). In Hayes, the defense implied that a witness had multiple motives to

fabricate: to obtain leniency for charges the declarant was facing and because the

declarant was on probation. 802 P.2d at 394. The declarant made the statement

13
while he was on probation but before the charges were filed. Id. The California

court held that a prior consistent statement, otherwise meeting the statutory

requirements, “is admissible if it was made before the existence of any one or

more of the biases or motives that, according to the opposing party’s express or

implied charge, may have influenced the witness’s testimony.” Id. at 395.

Other jurisdictions, however, adopt the opposite approach: that if a

statement comes after any motive to fabricate then it is not admissible. For

example, Michigan holds that a prior consistent statement is not admissible if it

comes after “any” motive to fabricate. See People v. Lewis, 408 N.W.2d 94, 99

(1987) (holding that though a prior consistent statement may be admissible to

rebut a charge of recent fabrication, that exception applies only if “the earlier

consistent statement was given at a time prior to the existence of any fact which

would motivate bias, interest, or corruption on the part of the witness”).

Likewise, the Supreme Court of Arizona has held that a prior consistent

statement must be made before there is any motive to fabricate. State v. , 663

P.2d 236 (Ariz. 1983). The Arizona Court stated, “The only way to be certain that

a prior consistent statement in fact controverts a charge of ‘recent fabrication or

improper influence or motive’ is to require that the statement be made at a time

when the possibility that the statement was made for the express purposes of

corroborating or bolstering other testimony is minimized.” Martin, 663 P.2d at

238. See also United States v. Chavers, 416 Fed.Appx. 863, 865 (11th Cir. 2011)

(a prior consistent statement must be made before any motive to fabricate exists);

14
United States v. Bowman, 798 F.2d 333, 338 n.2 (8th Cir. 1986) (same); Runion v.

State, 13 P.3d 52, 60 (Nev. 2000) (stating that for a prior consistent statement to

be admissible, it “must have been made at a time when the declarant had no

motive to fabricate”); State v. Lunstad, 857 P.2d 723, 726 (Mont. 1993) (holding

that if the defense claims that a witness has been “lying all along,” prior consistent

statements are not admissible).

The approach adopted by Michigan and the other jurisdictions noted above

is the one this Court should follow and not the approach chosen by the Court of

Special Appeals and California: prior consistent statements should be inadmissible

if they were made after the declarant had any motive to fabricate. Statements that

are made after a declarant has a motive to fabricate are not admissible because in

essence they are no longer reliable. See Tome, 513 U.S. at 158 (declaring that

statements made after a declarant has a motive to fabricate rebut the impeachment

in a “less direct and forceful” manner); Holmes, 350 Md. at 419 (“[P]rior

consistent statements carry little rebuttal force[.]”); see also Commonwealth v.

Novo, 865 N.E.2d 777, 785 (Mass. 2007) (stating that the “rationale” for not

admitting prior consistent statements is that “ordinarily such statements are

‘unnecessary and valueless’ because the statement of a witness is not made more

trustworthy by repeating it”) (citing 4 J. Wigmore, Evidence, § 1124, at 255). The

lack of reliability does not improve simply because at a later date the declarant

develops a second motive to fabricate. The approach chosen by the Court of

Special Appeals rewards a declarant for having multiple reasons to lie and should

15
not be the approach this Court adopts. See People v. Goff, 702 N.E.2d 299, 303

(Ill. App. 1998) (“Prior consistent statements prey upon the common inclination to

believe that which is repeated most often, even when the statements logically

prove only the unreliability of the witness.”).

In this case, Officer Peter Johnson testified that he observed what he

believed was a drug transaction between two people in separate cars. He then

radioed for other officers to make traffic stops of both cars. The moment police

stopped Benjamin, Benjamin had a motive to fabricate any subsequent statement

he made to police about the drug transaction. See Blair, 130 Md. App. at 601

(holding that declarant’s motive to fabricate “arose at the moment [the victim] was

killed, thus his statement was not admissible under Rule 5-802.1(b)); McCray, 122

Md. App. at 609-10 (1998) (ruling that declarant’s statement was not admissible

pursuant to Rule 5-802.1(b) because the declarant’s statement was made after her

motive to fabricate developed due to her admitted involvement in the robbery

murder). Benjamin testified at trial that he bought the drugs from Thomas and that

he paid for the drugs with two twenty dollars bills and one ten dollar bills.

Over defense objection, Officer Johnson and Officer Rea were both allowed

to testify to statements Benjamin made to them after police stopped his vehicle.

These hearsay statements came after Benjamin had a motive to fabricate. The

Court of Special Appeals’ decision that the hearsay testimony was admissible

under Rule 5-802.1(b) was erroneous. Benjamin’s motive to fabricate – to

diminish his role in the drug transaction to that of a buyer, not a seller – never

16
went away. It should be immaterial that he later also developed a second motive to

fabricate – when he faced charges for unauthorized use of a motor vehicle.

Benjamin had a motive to fabricate when first questioned by police and that

motive was not any less applicable simply because he later formed a second

motive to fabricate. If anything, the second motive to fabricate gave him additional

incentive to stick to the original story.

The general purpose behind any exception to the hearsay rule is that a

statement be trustworthy. See Gray v. State, 368 Md. 529, 566 (2002) (stating that

the general theory behind any hearsay exception is that the statement has an

indication of trustworthiness); State v. Walker, 345 Md. 293, 315 (1997)

(discussing the residual hearsay exception’s requirement that a hearsay statement

must have “circumstantial guarantees of trustworthiness” to be admissible);

Simmons v. State, 333 Md. 547, 558-59 (1994) (stating the purpose in permitting

exceptions to the hearsay rule is to allow statements to be admitted that have a

particularized guarantee of trustworthiness). A prior consistent statement has little,

if any, trustworthiness if it came after any motive to fabricate existed. See Holmes,

350 Md. at 417 (stating that a prior consistent statement has “no relevancy” unless

the “consistent statement was made before the source of bias, interest, influence in

incapacity originated”) (quoting 1 MCCORMICK ON EVIDENCE § 47, at 177

(John W. Strong ed., 4th ed. 1992)). The presence of a later motive does not add

trustworthiness. And in this case, Benjamin’s initial statements to police were not

trustworthy because he had a motive to fabricate. That he later was charged with

17
unauthorized use of a motor vehicle did not add any credence to his prior

statements. Thus, the circuit court should not have permitted the two officers to

testify to Benjamin’s post-motive to fabricate prior consistent statements. The

Court of Special Appeals’ decision that ruled otherwise should be reversed.

II. THE COURT OF SPECIAL APPEALS INCORRECTLY

RULED THAT THE DECLARANT’S PRIOR
CONSISTENT STATEMENTS WERE ADMISSIBLE
AT TRIAL PURSUANT TO MARYLAND RULE 5-
616(c).

Alternatively, the Court of Special Appeals ruled that Benjamin’s prior

consistent statements were also admissible under Md. Rule 5-616(c). (E.106-07).

Unlike statements admitted under Rule 5-802.1(b), statements offered under Rule

5-616(c) are admissible not for the truth of the matter asserted, but only for

rehabilitative purposes. Holmes, 350 Md. at 427. The Court of Special Appeals is

correct that Thomas’s trial counsel did not request a limiting instruction informing

the jurors that Benjamin’s prior consistent statements were to be used only for

rehabilitative purposes and not as substantive evidence. However, because the

State clearly used Benjamin’s prior consistent statements as substantive evidence

it was also clear that the statements were entered into evidence pursuant to Rule 5-

802.1(b) and not as the Court of Special Appeals assumed Rule 5-616(c).

The best indication that the State used Benjamin’s statements to police as

substantive evidence is by looking at the State’s closing argument. (E.77-81).

Before ever discussing Benjamin’s trial testimony the State talked to the jury

about the statements Benjamin made to the police. The State asked the jury “how

18
do we know” that Thomas sold drugs? (E.78). The State then answered the

question by pointing to Benjamin’s statements to police. (E.78-80). The State

argued that, after Benjamin was pulled over, he said to police, “‘Yes, I just bought

this. It was from a guy named Kenny’. . . . And then, again, he was advised of his

rights by Officer Johnson, and he talked to Officer Johnson and said, ‘Yes, I just

made that crack purchase, I bought the rock from this guy named Kenny, . . . .

[H]e came into court and he told you the same thing.” (E.78-79). The prosecutor

then emphasized that Benjamin had always been “consistent,” (E.79) and that his

consistency was proven because he told the police officers he was the buyer.

(E.80-81). The only way we know Benjamin’s was always consistent was because

the police testified to what Benjamin said to them; statements that were admitted

substantively.

The State’s entire case came down to credibility: did the jury believe

Benjamin or not. And the main reason the State asked the jury to believe Benjamin

was not because of his trial testimony; it was because when police stopped him he

told them he bought drugs from Thomas. The State was pointing directly to the

statements Benjamin made to police. By pointing directly at those statements as

evidence that Thomas committed the crime in this case, the State was relying on

those statements, not for rehabilitative purposes, but as substantive evidence. In

McCray, the Court of Special Appeals held that when the State at trial specifically

offered a statement as admissible pursuant to Rule 5-802.1(b), it could not later

claim the statements were also admissible under 5-616(c). 122 Md. App. at 609-

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10. The same should hold true when the State uses a prior consistent statement at

trial solely for substantive purposes – it then should not be allowed to later claim

the statement was also admissible under a different rule. Because the statements

were used as substantive evidence, they were not admissible under Rule 5-616(c),

and the Court of Special Appeals erred in relying on that rule as an alternative

reason to affirm Thomas’s conviction.

CONCLUSION

For the foregoing reasons, Thomas respectfully requests that this Court

reverse the judgment of the Court of Special Appeals.

Respectfully submitted,

Paul B. DeWolfe
Public Defender

Ben Miller
Assistant Public Defender

Counsel for Mr. Thomas

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 PERTINENT AUTHORITY

MARYLAND RULES

MD. RULE 5-616. Impeachment and Rehabilitation--Generally:

(a) Impeachment by Inquiry of the Witness. The credibility of a

witness may be attacked through questions asked of the witness,
including questions that are directed at:

(1) Proving under Rule 5-613 that the witness has 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; or

(6) Proving the character of the witness for untruthfulness by (i)

establishing prior bad acts as permitted under Rule 5-608(b) or (ii)
establishing prior convictions as permitted under Rule 5-609.

(b) Extrinsic Impeaching Evidence.

(1) Extrinsic evidence of prior inconsistent statements may be

admitted as provided in Rule 5-613(b).

(2) Other extrinsic evidence contradicting a witness's testimony

ordinarily may be admitted only on non-collateral matters. In the
court's discretion, however, extrinsic evidence may be admitted on
collateral matters.

(3) Extrinsic evidence of bias, prejudice, interest, or other motive to

testify falsely may be admitted whether or not the witness has been
examined about the impeaching fact and has failed to admit it.

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 (4) Extrinsic evidence of a witness's lack of personal knowledge or
weaknesses in the capacity of the witness to perceive, remember, or
communicate may be admitted if the witness has been examined
about the impeaching fact and has failed to admit it, or as otherwise
required by the interests of justice.

(5) Extrinsic evidence of the character of a witness for

untruthfulness may be admitted as provided in Rule 5-608.

(6) Extrinsic evidence of prior convictions may be admitted as

provided by Rule 5-609.

(7) Extrinsic evidence may be admitted to show that prior consistent

statements offered under subsection (c)(2) of this Rule were not
made.

(c) Rehabilitation. A witness whose credibility has been attacked

may be rehabilitated by:

(1) Permitting the witness to deny or explain impeaching facts,

except that a witness who has been impeached by prior conviction
may not deny guilt of the earlier crime;

(2) Except as provided by statute, evidence of the witness's prior

statements that are consistent with the witness's present testimony,
when their having been made detracts from the impeachment;

(3) Evidence through other witnesses of the impeached witness's

character for truthfulness, as provided in Rule 5-608(a); or

(4) Other evidence that the court finds relevant for the purpose of
rehabilitation.

MD. RULE 5-802.1. Hearsay Exceptions—Prior Statements by Witnesses:

The following statements previously made by a witness who testifies

at the trial or hearing and who is subject to cross-examination
concerning the statement are not excluded by the hearsay rule:

(a) A statement that is inconsistent with the declarant's testimony, if

the statement was (1) given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding or in a deposition; (2)

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 reduced to writing and was signed by the declarant; or (3) recorded
in substantially verbatim fashion by stenographic or electronic
means contemporaneously with the making of the statement;

(b) A statement that is consistent with the declarant's testimony, if

the statement is offered to rebut an express or implied charge against
the declarant of fabrication, or improper influence or motive;

(c) A statement that is one of identification of a person made after

perceiving the person;

(d) A statement that is one of prompt complaint of sexually

assaultive behavior to which the declarant was subjected if the
statement is consistent with the declarant's testimony; or

(e) A statement that is in the form of a memorandum or record

concerning a matter about which the witness once had knowledge
but now has insufficient recollection to enable the witness to testify
fully and accurately, if the statement was made or adopted by the
witness when the matter was fresh in the witness's memory and
reflects that knowledge correctly. If admitted, the statement may be
read into evidence but the memorandum or record may not itself be
received as an exhibit unless offered by an adverse party.

FED. R. EVID. 801. Exclusions from Hearsay

(a) Statement. "Statement" means a person's oral assertion, written

assertion, or nonverbal conduct, if the person intended it as an
assertion.

(b) Declarant. "Declarant" means the person who made the

statement.

(c) Hearsay. "Hearsay" means a statement that:

(1) the declarant does not make while testifying at the current
trial or hearing; and (2) a party offers in evidence to prove the
truth of the matter asserted in the statement.

(d) Statements That Are Not Hearsay. A statement that meets the
following conditions is not hearsay:

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(1) A Declarant-Witness's Prior Statement. The declarant
testifies and is subject to crossexamination about a prior
statement, and the statement:

(A) is inconsistent with the declarant's testimony and was

given under penalty of perjury at a trial, hearing, or other
proceeding or in a deposition;
(B) is consistent with the declarant's testimony and is
offered to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived
earlier.

(2) An Opposing Party's Statement. The statement is offered

against an opposing party and:

(A) was made by the party in an individual or

representative capacity;
(B) is one the party manifested that it adopted or believed
to be true;
(C) was made by a person whom the party authorized to
make a statement on the subject;
(D) was made by the party's agent or employee on a
matter within the scope of that relationship and while it
existed; or
(E) was made by the party's coconspirator during and in
furtherance of the conspiracy.
The statement must be considered but does not by itself
establish the declarant's authority under (C); the existence or
scope of the relationship under (D); or the existence of the
conspiracy or participation in it under (E).

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APPENDIX