Bernadyn v. State

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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: -2- 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 .[ ] -3- 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. 1 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- 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). -5- 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 -6- 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 -7- 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 § 702, at 259 (3d ed. 1999 & 2 004 Cum . Supp.) (same). The State offered th e bill to prove that Berna dyn lived at 20 24 Mo rgan Street. 2 We examined whether implied assertions can be hearsay in Stoddard v. State, 2004 Term No. 70 (filed De cember 8, 2005 ).3 In that case, we discussed the definitions under our rules of statement and assertion as follows: Maryland Rule 5-801(c) de fines hearsay as a statement, other than one made by the declarant w hile testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The threshold questions when a hearsay objection is raised are thus (1) whether the declaration at issue is a statement, and (2) whether it is offered f or the truth of the matter asserted. If the declaration is not a statemen t, or if it is not offered f or the truth of the matter as serted, it is not hearsay and it will not be e xclu ded under the rule aga inst h ears ay. Statemen t is defined by Md. Rule 5-801(a) as (1) an oral or written assertion or (2) nonverbal conduct of a person, if 2 To establish the guilt of a defendant charged with possession with intent to distribute controlled dangerous substances, the State must prove beyond a reasonable doubt that the defendant exercised actual or constructive dominion or control over the drugs. See State v. Suddith, 379 Md. 425, 432, 842 A.2d 716, 720 (2004); see also Md. Code (2002), § 5-101(u) of the Criminal Law Article ( Possess means to exercise actual or constructive dominion or control over a thing by one or more persons ). 3 We gran ted certiorari in Stoddard subseque nt to briefing and argument in the instant case. -8- it is intended by the person as an assertion. The Rule does not define asserted or assertion. The Committee note to Rule 5801 explains as follows: This Rule d oes no t attemp t to defin e asse rtion, a concept best left to development in the case law. The fact that proffered evidence is in the form of a question or something other than a narrative statement, however, does not necessarily preclude its being an assertion. The Rule also does not attempt to define when an assertion, such as a verbal act, is offered for something other than its truth. Stoddard, slip op. at 8. In Stoddard, we considered the question of whether testimony recounting an out-ofcourt utterance allegedly made by a non-testifying eighteen month old child to the effect of is Erik going to get me was hearsay when offered to prove that the child had witnessed Erik Stoddard commit the murder for which he was on trial. In ruling that this evidence was hear say, we rejected the intent-of-the-declarant approac h suggested in the A dvisory Committee note to Federal Rule of Evidence 801(a), and instead retained the common law approach to implied assertions. We held as follows: [W]here the probative value of words, as offered, depends on the declarant having communicated a factual proposition, the words constitute an assertion of that proposition. The declarant s intent vel non to commun icate the prop osition is irrelevant. If the words are uttered o ut of court, th en offere d in court to prove the truth of the proposition i.e. of the matter asserted they are hearsay under our rules. Stoddard, slip op. at 26. -9- Our discussion and reasoning in Stoddard determines the outcome of this case. The bill contained two significant items: Bernadyn s name, and his address. The State did not argue simply that an item bearing Bernadyn s name was found in the house and that Bernadyn probably resided at the house. Rather, the State argued that the bill itself was a piece of evidence that shows who lives there. In particular, the State suggested that Bayview Physicians had Bernadyn s correct address because any institution is going to make sure they have the right address when they want to get paid. In order to accept the words Michael Bernadyn, Jr., 2024 Morgan Street, Edgewood, Maryland 21040 as proof that Bernadyn lived at that address, the jury needed to reach two conclusions. It needed to conclude, first, that Bayview Physicians wrote those words because it believed Bernadyn to live at that address4 , and second, that Bayview Physicians was accurate in that belief. As used, the probative value of the words depended on Bayview Physicians having communicated the proposition that Michael Bernadyn lived at 2024 Morgan Street. The words therefore constituted a written assertion and hence, under Md. Rule 5-801(a), a statement that Michael Bernadyn lived at 2024 Morgan Street. When used to prove the truth of that assertion, the bill was hearsay under Md. Rule 5-801(c), because it contained a statement . . . offered in evidence to prove the truth of the matter asserted. 4 The words would not be probative as offered if it could be established that Bayview Physicians did not believe Bernadyn to live at 2024 Morgan Street, e.g., if it believed that Bernadyn received his mail there but lived elsewhere. -10- The case of United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), is instructive. Patrick was indicted by a federal grand jury in the District of Colum bia for pos session w ith intent to distribute cocaine and firearm violations. Id. at 994. At trial, the government introduced into evidence a television sales receipt found in the bedroom where Patrick was arrested and allegedly living. The appellate court held th at the receipt w as inadmis sible hearsa y. Id. at 1001-1002. The court reasoned that if the sales receipt had been used to show only that an item belonging to Patrick had been found in the same bedroom where the cocaine and weapon were found, it would not have been hearsay, because it would not have been offered to prove the truth of any statem ent. The prob lem, the cou rt pointed ou t, was that the prosecutio n did not limit the use of the receipt to Patrick s name, but relied also on the address on the receipt to establish Patrick s guilt b y proving that he re sided a t that add ress. Id. at 999-1000. The prosecuto r stated the fo llowing in c losing argu ment: Take, for example, an argument that m ight be made that that s not his apartment, that he doesn t live there, and that s not his bedroo m, that h e doesn t stay in tha t bedro om. Well, ladies and gentlemen , let s look at a couple of things that were taken out of that b edroom . Look at g overnm ent s exhib it no. 14, the television receipt. You all had a chance to look at this closely before when it was admitted into evidence. G.A. Patrick, 818 Chesapeake Street, Southeast, Washington, D.C. 20020 . -11- Id. at 1000. Th e court held that the receipt, as used by the prosecutor, constituted a statement that the defendant lived at 818 Chesapeake Street, and that the statement was hearsay. The court stated as follows: The receipt so us ed constitute d a stateme nt, namely that Patrick lived at 818 Chesapeake Street, Southeast, and that statement indisputably was hearsay. Unlike the use of the name on the receipt to show that an item belonging to Patrick was f ound in the bedroom , the prosecu tor published Patrick s ad dress as it appeared on the receipt to prove the truth of the matter asserted, that is, the addres s of Pa trick s re sidenc e. Id. See also United States v. Watkins, 519 F.2d 294, 29 6 (D.C. Cir. 1975) (holding that a rent receipt and utility payment receipt were inadmissible hearsay when argued by prosecutor as evidence that defendant lived at the apartment and was paying the rent for that apartment). The State argues that the bill was not hearsay and justifies its admission based upon the analysis of the Court of Special Appe als that the bill was admissible because it was used as circumstantial evidence that Bayv iew Physicians believed Bernadyn lived at the address. As an alternate basis, that court reasoned that the bill was offered not to establish the truth of its contents, but rather for its probative value as circumstantial evidence connecting Bernadyn to the residence wherein he, the bill, and the drugs were all found. The State argues that the bill was admissible for a non-hearsay purpose, i.e., as circumstantial evidence that Bayview Physicians believed Bernadyn lived at the address. It suggests that this belief likely accurate because Bayview Physicians had an interest in being paid was -12- then properly used as ev iden ce th at Be rnad yn in fact lived at the address. We do not agree that t his u se of the b ill would constitute no n-he arsa y. The State s argu ment is bas ed primarily on Wigmo re s view th at [i]f, then, an utterance can be used as circumstantial evidence, i.e., without inferring from it as an assertion to the fact asse rted, the hears ay rule does no t oppose a ny barrier, becau se it is not applica ble. 6 Wig more, Evidence, § 1788 at 313 (C hadbourn rev. 1976). For example, as to a statemen t used circum stantially to indicate the declarant s state of mind, W igmore s ays the following: To such a use, then, the hearsay rule makes no opposition, because the utterance is not used for the sake of inducing belief in any assertion it may contain. The assertion, if in form there is one, is to be disregarded, and the indirect inference alone regard ed. Id. at 320. The non-hearsay theory of admissibility upon which the state relies permits the use of an utterance as circumstantial evidence of a proposition different from the one asserted. For example, the bill might be admissible non-hearsay if offered to prove that Bayview Physicians remained in business a s of the issue date, or that B ayview exte nded cred it typically to its patients. B ut the chain of reason ing put forth by the State serves to prove the proposition asserted in the bill i.e. that Bernadyn resided at 2024 Morgan Street. As such, the bill was used for the sake of inducing belief in, or proving the truth of, an assertion contained within it. Therefore, the hearsay rule applies. -13- The State s suggestion that it is not hearsay to use a statement as circumstantial evidence of the declarant s belief in the matter asserted and then to use that belief as evidence suggesting the truth of the matter asserted would swallow the hearsay rule. See e.g., Roger C. Park, McCormick on Evidence and the Concept of Hearsay: A Critical Analysis Followed by Suggestions to Law Teachers, 65 Minn. L. Rev. 423, 433 (1981) ( [a]cceptance of this reasoning . . . leads to a view that in effect abolishes the hearsay rule ). The use of a statement to prove the truth of the matter asserted almost always involves this two step inference, i.e. that the declarant believes the matter apparently asserted, and that the declarant s belief is accurate. The hearsay rule prevents using out-ofcourt statements for their truth because such statements are unreliable bases from which to infer the declarant s beliefs (the declarant may have been insincere or used ambiguous language), or the accuracy of those beliefs (the declarant s perception or memory may have been faulty). See Lawrence H. Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957, 958 (1974) (describing the link between an utterance and the matter asserted as involving first a trip into the head of . . . (the declarant) to see what he or she was really thinking, followed by a trip out of the head of the declarant, in order to match the declarant s assumed belief with the external reality sought to be demonstrated ). The State also relies on the Court of Special Appeals alternative rationale, that the bill was offered not to establish the truth of its contents, but rather for its probative value as circumstantial evidence connecting Bernadyn to the residence wherein he, the bill, and the -14- drugs were all found. Pointing to case law from other jurisdictions in which courts have admitted documents as circumstantial evidence tending to prove a defendant s connection with a location or with other people, the State maintains that the existence of an address on the bill makes no difference in the analysis. The State ignores the fact that evidence can serve more than one purpose. If the proponent of a statement claims to offer the evidence for a purpose other than its truth, but also offers the statement to prove the truth of a matter asserted therein, the court should either exclude the evidence or make clear that the evidence is admitted for a limited purpose. Defense counsel is then on notice that the evidence is admissible, albeit for a limited purpose, and may then request a limiting instruction.5 The rationale of the Court of Special Appeals, as well as the State s argument, is post hoc reasoning. The defense indicated that it was objecting because the bill has my client s address. At no time did the prosecutor proffer to the trial judge the intended use of the evidence, nor did the trial court admit the evidence specially. The prosecutor s closing argument demonstrates that the bill was used for the truth of the statement contained therein that petitioner lived at the address reflected on the bill. 5 Ordinarily, when evidence is admitted that is admissible for one purpose but is not admissible for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. See Md. Rule 5-105. In this case, petitioner did not request a limiting instruction and the court did not instruct the jury as to any restriction. The trial judge, however, should have made known to the parties that the evidence was admitted for a limited purpose, if such was the case. Petitioner would have been alerted to request a limiting instruction. Alternatively, the court should have instructed the jury sua sponte as to the limited u se of th e evide nce. -15- The United States Court of Appeals for the Tenth Circuit discussed the impact of circumstantial evidence versus direct evidence in the hearsay context in United States v. Jefferson, 925 F.2d 1242 (10th Cir. 1991). The court held that the trial court had admitted improper ly a pager bill which the government offered as circumstantial evidence to show the character and involvement of the Defendant, and to corroborate the testimony of the cooperating witness. Id. at 1252. The court concluded that the government also offered the bill into evidence to prove the truth of the matter asserted that the defendant had purchased pager service. The court stated: Whether evidence is offered as circumstantial evidence as opposed to direct evide nce has n othing to do with wh ether it constitutes inadmissib le hearsay. Gra nted, the pag er bill combined with agent Young s testimony regarding the use of pagers by drug dealers was introduced as circumstantial evidence of [the defendant s] intent to possess and distribute the cocaine. However, the fact that the evidence was introd uced to link circumstantially the accused to the crime does not render the hea rsay viola tion any m ore acc eptable . Id. at 1252-53. United States v. Mahar, 801 F.2d 1477 (6th Cir. 1986) , also illustrates the p rinciple that the admissibility of documents depends on the purposes for which they are offered. Defendant Mahar , along with Inner-City Medical Clinic and others, was charged in a multicount indictment, including conspiracy to distribute controlled dangerous substances. Mahar was the clinic s president. At trial, the government offered into evidence twelve pages of handwritten notes seized from the clinic. The notes were undated and unsigned, and were -16- found among business records in a n examin ing room . The notes focused on a M edicaid investigation into the clinic s a ctivities. The g overnm ent argued that the note s were not offere d to pro ve the tru th of the matters asserted and thu s were not hea rsay. The United States Cou rt of Appeals for the S ixth Circuit rejected the governm ent s argumen t, hold ing that th e evi dence w as he arsa y. The court pointed out that the government s argumen t on appea l that the notes were not hearsay appeared to be an after-the-fact justifica tion for the adm ission o f the no tes. Id. at 1492. The government s use of the notes at trial, particularly in the prosecutor s rebuttal closing argument, showed that the govern ment u sed the notes f or the tru th of the matters asserted . Id. The court concluded, Had government counsel similarly intended to use Exhibit 22A solely for non-hearsay purposes, and not to prove the truth of the matters asserted, then the government s intent should have been explained to the court and defense counsel so that an appropriate limiting instruction could have been requested. Id. at 1492 n.23. See also United States v. Lieberman, 637 F.2d 95, 101 (2d Cir. 1980) (holding that hotel registration card with address was admitted properly for the limited nonhearsay purpose of proving solely that the person who registered at the hotel was the same person who was arrested by a DEA agent, the agent having examin ed the same add ress on the driver s license carried by the arrestee). United States v. McGlory, 968 F.2d 309 (3rd Cir. 1992) is instructive. McGlory and others were con victed of f irearm viola tions and co nspiracy to distribu te heroin . The police seized notes and scraps of paper from McGlory s trash and residences. The government -17- argued that the notes were circumstantial evidence linking McG lory and the oth er defend ants to a nar cotic conspira cy and wer e not hea rsay. Id. at 332. The defendants argued that they wer e off ered for the truth o f the matt er as serte d and as s uch, were he arsa y. The United States Cou rt of Appeals for the Third Circuit held that the notes , while technically not a ssertions by M cGlory, were used to imply the guilt of the defendants, and were hearsay. They were inad missible un less they fit within an exception to the hearsay rule. The court emphasized that statements, while not technically admitted for the truth of the matter asserted, nonetheless may violate the hearsay rule when used to imply the guilt of the defendant. The court emphasized that it has disfavored the admission of statements which are not technically admitted for the truth of the matter asserted, whenever the matter asserted, without regard to its truth value, implies that the defendant is guilty of the crime charged. Id. The court explained: In Reynolds, 715 F. 2d 99 [(3 rd Cir. 1983)], we held that statements containing express assertions not offered for their truth may contain implied assertions that qualify as hearsay because the truth of the implied assertions is at issue and relevant to guilt. We encounter this problem when: the matter which the declarant intends to assert is different from the matter to be proved, but the matter asserted, if true, is circumstantial evidence of the matter to be proved. Id. at 103 (quotation omitted) (emphasis added). Id. The court pointed out that in this situation, the statement is subject to a hearsay objection. Id. -18- The Bayview Physicians medical bill, when offered to prove the truth of its assertion that Bernadyn lived at 2024 Morgan Street, constituted hearsay and was inadmissible unless it satisfied an exception under the hearsay rule. Although the State never argued in the Circuit Court that the bill, although hearsay, was admissible as a business record pursuant to Rule 5-803(b)(6), defense counsel made clear that the source of the information was unknown and unverified and that the State failed to establish that the bill was made and kept in the ordinary course of business. The trial judge never required the prosecutor to proffer why the evidence was offered, but instead simply overruled defense counsel s objection, and admitted the evidence. In any case, the statement is not admissible under the business record exception. Maryland Rule 5-803(b)(6), derived from Federal Rule of Evidence 803, provides that evidence is not excluded by the hearsay rule, even though the declarant is available as a witness, if it qualifies as a record of regularly conducted business activity. Rule 5803(b)(6) provides that the following are not excluded by the hearsay rule, even though the declarant is available as a witness: Records of regularly conducted business activity. A memorandum, report, record, or data compilation of acts, events, conditions, opinions, or diagnoses if (A) it was made at or near the time of the act, event, or condition, or the rendition of the diagnosis, (B) it was made by a person with knowledge or from information transmitted by a person with knowledge, (C) it was made and kept in the course of a regularly conducted business activity, and (D) the regular practice of that business was to make and keep the memorandum, report, record, or data compilation. A record of this kind may be excluded if the -19- source of information or the method or circumstances of the preparation of the record indicate that the information in the record lacks trustworthiness. In this paragraph, business includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. The Rule sets out certain conditions precedent for admission. In order for a business record to be admitted into evidence, the Maryland Rules of Evidence require the proponent of the evidence to satisfy the requirements of Rule 5-803(b)(6) and to establish its authentication or identification. See Rule 5-901; Dept. of Safety v. Cole, 342 Md. 12, 29, 672 A.2d 1115, 1123 (1996). Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to certain identified documents. See Rule 5-902; State v. Bryant, 361 Md. 420, 426-27, 761 A.2d 925, 928-29 (2000). A record of regularly conducted business activity, to be admissible as a selfauthenticating document under Rule 5-902(11), must satisfy the notice requirement of the rule and contain a certification that it falls within the scope of Rule 5-803(b)(6).6 In the instant case, the State did not call any witness from Bayview Physicians to show that the bill was made at or near the time of any event; that it was made by a person 6 It need not be decided in this case whether the bill would be admissible as selfauthenticating under the common law, see, e.g., Pine Street Trading v. Farrell Lines, 278 Md. 363, 364 A.2d 1103 (1976); Thomas v. Owens, 28 Md. App. 442, 346 A.2d 662 (1975), or whether the common law rules of evidence survive the adoption of the Maryland Rules of Evidence, because even under the common law, the address on the bill is double hearsay, and under the common law and the Maryland Rules, each level of hearsay must satisfy an exception to the rule of exclusion before it is admissible. See, e.g., Hadid v. Alexander, 55 Md. App. 344, 350, 462 A.2d 1216, 1220 (1983). -20- with knowledge, or from information transmitted by a person with knowledge; that the bill was made and kept in the course of regularly conducted business activity; or that it was the regular practice of Bayview Physicians to make and keep that record. Even assuming that the State had called a witness to establish the prerequisites under (A), (C), and (D) of Rule 5-803(b)(6), the State would still have had to show that the address on the bill was made by a person with knowledge or from information transmitted by a person with knowledge of the information. Moreover, the address on the bill is hearsay within hearsay. There is no evidence whatsoever as to the source of the information contained on the bill and any conclusion would be speculation. The address on the bill, perhaps entered by an employee in the ordinary course of business, was from information supplied by another person. Rule 5-805 provides that [i]f one or more hearsay statements are contained within another hearsay statement, each must fall within an exception to the hearsay rule in order not to be excluded by that rule. See Lynn McLain, Self- Authentication of Certified Copies of Business Records, 24 U. Balt. L. Rev. 27, 75 (1994). No such proof was offered in this case. In United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), the court rejected the business record exception as a basis for the evidence s admissibility, reasoning that the address on a Circuit City receipt was double hearsay, or hearsay within hearsay. The court concluded as follows: We first note that the address on the receipt reflects not only the assertion of the Circuit City employee who made out the -21- receipt but also the assertion of the customer who provided the address. The address was thus hearsay within hearsay, see Fed. R. Evid. 805, and was not admissible to prove Patrick s residence unless both the customer s statement and the employee s recording of it were admissible. See United States v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982) ( Double hearsay exists when a business record is prepared by one employee from information supplied by another ; [an] outsider s statement must fall within another hearsay exception to be admissible because it does not have the presumption of accuracy that statements made during the regular course of business have. ); see also Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991) ( Rule 803(6) does not, by itself, permit the admission of [a] business record when the source of . . . information is an outsider. ). Neither was admissible here. The government did not call a Circuit City employee who could show that it was the regular practice of Circuit City to make the receipt. Fed. R. Evid. 803(6). But even if an employee had been called and had testified that it was his regular practice to record the information, his testimony would have answered only part of the question we face; we still must determine the truth of the information provided because rule 803(6) also requires that the information be transmitted by, a person with knowledge. Fed. R. Evid. 803(6). *** We do not read the rule so literally as to require that the person transmitting the information must himself be under a business duty to provide accurate information. . . . *** [I]n deciding whether the receipt was properly admitted, we do not require that Patrick be under a business duty to provide the information. Rather, it is sufficient if it is shown that Circuit City s standard practice was to verify the information provided by a customer. Because we do not know if this was the case, we conclude that it was error to allow the receipt to be used as it was in closing argument. Id. at 1000-02 (some citations omitted). -22- In United States v. Baker, 693 F.2d 183 (D.C. Cir. 1982), the United States Court of Appeals for the District of Columbia Circuit addressed the issue of double hearsay. The defendant was charged with selling government property, treasury checks, in violation of 18 U.S.C. § 641. As evidence of the defendant s lack of authority to sell the checks, the government offered forms filled out by intended payees. The trial court admitted these forms as business records. The appellate court ruled that the forms were hearsay because they were offered to prove the truth of the matter asserted that the payees did not receive their checks and that the defendant was not authorized to have them. The court explained that [d]ouble hearsay exists when a business record is prepared by one employee from information supplied by another employee. Id. at 188. Federal Rule 803(6) excuses the hearsay within hearsay, or multiple hearsay, [i]f both the source and the recorder of the information, as well as every other participant in the chain producing the record, are acting in the regular course of business. Id. The court noted that if the source of the information is an outsider, the rule does not, by itself, permit the business record into evidence. The court restated the requirement that the outsider s statement must fall within another hearsay exception to be admissible because it does not have the presumption of accuracy that statements made during the regular course of business have. Id. The court held the evidence to be inadmissible hearsay because the the intended payees were not acting in the regular course of business, and their statements did not fall within any other hearsay exception. Id. -23- In Collins v. Kibort, 143 F.3d 331 (7th Cir. 1998), the United States Court of Appeals for the Seventh Circuit discussed the admissibility of medical bills as a business record under Federal Rule of Evidence 803(6). Noting that medical bills are admissible as business records under the Rule, the court stated that the proponent of the evidence must establish a proper foundation as to the reliability. Id. at 337. On appeal, one of the defendants, Educational Therapy Center (ETC), argued, on hearsay grounds, that it was error to permit Collins to testify about his medical bills. The court agreed with ETC, finding that although the court did not doubt that the hospital maintains its bills in the course of its regularly conducted activity and that it was part of the hospital s regular business practice to create and maintain its bills, the business record exception does require that the witness have knowledge of the procedure under which the records were created. Id. at 338. Collins was not qualified to testify about the reliability of the medical bills because he knew nothing about the billing practices of the hospital. Likewise, the State in the case sub judice presented no evidence regarding the billing practices of Bayview Physicians and the source of the name and address on the medical bill. Even if we were to apply the business record exception where the employee had a duty to verify the information, the State has not presented any evidence to satisfy this requirement. See, e.g., United States v. Reyes, 157 F.3d 949, 952 (2d Cir. 1998) (holding that the person making the record need not have a duty to report so long as someone has a duty to verify the information reported); United States v. Console, 13 F.3d 641, 657-58 (3d Cir. 1993) -24- (holding that business record exception may apply if it is shown that it is the standard practice to verify the information or that the information satisfied another hearsay exception); United States v. McIntyre, 997 F.2d 687, 700 (10th Cir. 1993) (finding that business record exception may apply if business requires verification of accuracy of information provided by outside person); Patrick, 959 F.2d at 1001 (same). The medical bill in question was offered to prove the truth of a matter asserted therein, argued for that purpose to the jury, and admitted generally without limitation to a non-hearsay purpose. This hearsay document did not fall within any exception to the hearsay rule. Accordingly, we hold that the Circuit Court erred in overruling Bernadyn s objection. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY AND REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY HARFORD COUNTY. -25- 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 Eldr idge , Joh n C. ( Reti red, S peci ally Assigned), JJ. ______________________________________ Dissen ting Op inion b y Wilner, J ., which Battaglia, J., joins ______________________________________ Filed: December 8, 2005 Pursuant to a search warrant that is unchallenged in this appeal, the police entered 2024 Morga n Street, a residential unit in Edgewood, Maryland, and found Mic hael Bernadyn alone in the living room. During their week-long surveillance of the property leading up to the issuance of the warrant, the police had observed a great deal of drug-trafficking in the vicinity of that residence, a nd, in connection therewith, had seen Bernadyn open the door for known drug dealers approaching the place and, after looking up and down the street, allow those p eople to enter. In their execu tion of the w arrant, the po lice found and seized (1) from the master bedroom, five one-ounce bags and 20 smaller bags of marijuana and a coffee can containing marijuana seeds and stems, and (2) from the living room where Bernadyn was discovered, a small tin containing marijuana, a marijuana pipe, and a bill from Johns Hopkins Bayview Physicians addressed to Bernadyn a t 2024 M organ Stre et. When that bill, which Bernadyn has neglected to include in the record before us, was offered into evidence at trial, defense counsel o bjected and informed the court: Reason for defen se s objection is the paperwork says it s a billing statement from Johns Hopkins Bayview, has my client s address, 2024 Morgan Street, which I have no idea where they got this address. To let this eviden ce in wou ld be extrem ely prejudicial to m y client. * * * This compan y, this hospital, it s just a billing addre ss. It could have been a third party who gave that address, not him. It doesn t say at some p oint he has r eported this to be his address. That s a pretty big element of their case, and I d on t think that s good enough. It could have been a third party that gave that addres s. We h ave no idea if it w as him a nd wh o gave it. Although in the course of making her objection to the billing statement, defense counsel said that Bernadyn denied having a ny connectio n with 20 24 Mo rgan Street, Bernadyn never testified or offered any affirmative evidence in that regard. Deputy Sheriff Burkha rdt, the officer in charge of the investigation, testified that the apartment was leased to one Nicole Majerowicz and that a utility bill addressed to her was found at the home.7 He also said that, in executing search warrants, he found it very common for apartments and utility bills to be in someone else s name. He said that he found both men s and women s clothing in the main bedroom but only wo men s clo thes in the closet in the second bedroom. As the Court notes, the trial court never asked the prosecutor to explain the purpose for which the bill from Hopkins was offered but, instead, summarily overruled the objection and admitted the billing statement. At the tim e the statement was ad mitted, therefore, no particular purpose o r relevance of the doc ument w as asserted. L ater, in closing argumen t, the prosecuto r, in response to Bernad yn s factually unsupported argument that he did not live at the Mo rgan Street re sidence, ask ed the jury to ex amine the facts the surveillance revealing Bernadyn in and out of the property, his being the only person there when the warrant was executed, and the bill from Hopkins. As to that bill, the prosecutor noted: So I guess defense counsel and the defen dant wo uld have you believe that Johns Hopkins randomly picked an address of 2024 and just happened to send it there, and that s where the 7 It is of some interest that Bernadyn, who seems so concerned about the purity of the hearsay rule, never objected to the utility bill or the testimony regarding it, which would seem to suffer from the same alleged defect as the Hopkins statement. -2- 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 [that] they have the right address when they want to get pa id. In rebuttal closing argument, the prosecutor again stressed the reasonable inference to be drawn from finding the bill addressed to Bernadyn: If you walk into a house and somebody 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 re ly on in your every day decision making is that person lives there, and that is what the officers did. The bill that was sent, this isn t anyone else s bill beca use it says, Patient, Michael Bernadyn, Jr. She argues, well, we don t know where Johns Hopkins got that address from. Michael Bernadyn, Jr., is the patient, and it says, Responsible: Michael Bernadyn, Jr. Again, did they randomly pick that addres s? I do n t think so. Solely from that closing argum ent, to which no objection was made, the Court declares that the statement of Bernadyn s name and address on the bill constituted an out-ofcourt assertion b y Hopkins th at Bernad yn lived at that address, that the assertion was offered for its truth, that the statement therefore constituted hearsay, that it fell within none of the recognized exceptions to the Rule barring hearsay evidence, that it was theref ore inadmissible, and that Bernadyn s convictions for possession with intent to distribute the drugs found in the apartment and maintaining a common nuisance must be reversed. With respect, I dissent. I do not believe that the billing statement, the only challenged aspect of which is Bernadyn s name an d address, n ecessarily constituted h earsay at all. I wo uld hold -3- that the bill was properly admissible as direct relevant evidence that Berna dyn received mail at that address and, consequently, as circumstantial evidence that he had some dominion and contro l over th e apartm ent. The problem th at I have w ith the Cou rt s approac h is that it is flatly incon sistent with the majority view arou nd th e cou ntry, it is implicitly inconsistent with a line of unchallenged decisions of the Co urt of Spe cial Appe als dating back to 1973, it ignores what clearly can be accepted as common knowledge, and in a broad-bru sh, wholly un supported footnote, it places a duty on th e judge that pro perly belo ngs on defen se coun sel. Maryland Rule 5-801, taken verbatim from Federal Rule of Evidence 801, defines hea rsay as a statement, other than one made by the declarant while testifying at the trial or hearing, of fered in ev idence to prove the truth of the matter asserted. (Emphasis adde d). A statemen t, in turn, is defined in those Rules as (1) an oral or written assertion or (2) nonverbal conduct of a person, if intended by the person as an assertion. (Emphasis adde d). Through the combination of these definitions, the issue here comes down to whether the challenged evidence constitutes an assertion by an out-of-court declarant, presumably the billing clerk for Johns Hopkins Bayview Physicians, that was offered for its truth. Bernadyn argues primarily that the addressing of the bill to him at 2024 Morgan Street constitutes an express assertion by Hopkins that he lived at that address. He posits that [w]hen a person addresses a stamped envelope to John Smith, 100 Main Street, Annapolis, Marylan d, he is asserting to the postman, I want this delivered to John Smith. He lives at -4- 100 Main Street, and the Court seems to agree with that proposition. As an alternative, Bernadyn contends that such conduct constitutes an implied assertion that Smith lives at that address and that, in co ntrast to the Fe deral appro ach and th at of most S tates, Maryland continu es to rec ognize implied assertio ns as fa lling w ithin the hearsa y rule. In Stoddard v. State, ___ M d. ___, ___ A.2d __ _ (2005), th is Court ign ored the ne arly universal view thro ughout th e country, of b oth State an d Federa l courts, that co nduct, whether verbal or non-verbal, does not constitute an implied assertion for purposes of the hearsay rule unless intended as such and , instead, kept its h ead firmly ento mbed in th e early Nineteenth Century on that issue. It now pro poses to extend that lamentable approach and ignore another line of solid authority throughout this country. Why the Court insists on being a parade of one of m arching of f all by itself in one directio n when nearly everyone else is marching the other way is a mystery to me. Almost all of the courts that have considered the principal issue now before us have held that letters, bills, and other documents addressed to a defendant at the place where they are found do not constitute assertions that the defendant lives at that place and are therefore not inadmissible under the hearsay rule. In State v. Peek, 365 S.E.2d 320, 322 (N.C. Ct. App. 1988), a case strikingly similar to the one now before us, the North Carolina court held that [o]n its face, a written or printed name and address on an envelope asserts nothing. The court acknow ledged tha t, from the affixing of the name and address and mailing the material so addressed, it may be inferred that the sender believed that the person named lives at that -5- address, but it concluded that such belief is not intended as an assertion, does not constitute an assertion and, because it does not constitute as an assertion, the name and address do not constitu te hears ay. A similar conclusion, for the same reason, was reached in Hernan dez v. State, 863 So.2d 484, 486 (Fla. Dist. Ct. App. 2004) , review denied, 874 So.2d 1191 (Fla. 2004). There, too, a defendant charged with possessing drugs found in an apartment leased to his girlfriend complained that an unopened letter addressed to him at that apartment and found in the bedroom constituted a n extra-judic ial assertion that he lived there and therefore amounted to inadmissib le hearsay. Citing Peek, the Florida court responded that the defendant s name and address printed on the envelope was not intended to communicate the thought that the defendant lived there and was not, ther efore, a n asserti on. Hernandez, supra, 863 So.2d at 486. According to the court, the envelope was not offered for the truth of the matter but as circumstan tial evidence that Hernandez stored his property, including his correspondence, in the bedroom. The presence of the envelope in the bedroom tended to prove that appellant controlled the room, and that the contraband found there belonged to him. Id. The same conclusion was reached in Shurbaji v. Com., 444 S.E.2d 54 9, 551 (V a. Ct. App. 1994). There, as here, the defendant in a drug possession case challenged the admissibility of bills found in the master bedroom loaded with drugs. Rejecting his claim that a utility bill addressed to him constituted inadmissible hearsay, the court concluded: The challenged docume nts in this case were not offered for the truth of the m atter asse rted ther ein. The utility bills were used -6- as circumstantial evidence that appellant received or stored his prop erty, including his correspondence, in the master bedroom. It was irreleva nt wha t the utility bil ls asserte d therein . Rather, the mere existence of the bills in the master bedroom tended to prove that appellant controlled the room, and that the cocaine and pa rapher nalia fo und the re belon ged to h im. Shurbaji, supra, 444 S.E.2d at 551. See also United States v. Singer, 687 F.2d 1135 , 1147 (8 th Cir. 198 2), adopted on reh g en banc, 710 F.2d 431 (8 th Cir. 1983) ; United States v. Hazeltine, 444 F.2d 1382, 1384 (10th Cir. 1971) ; Peop le v. Hester, 409 N.E .2d 106, 10 9-10 (Ill. Ap p. Ct. 1980 ); State v. McCurry, 582 S.W.2d 7 33, 734 (M o. Ct. App . 1979); Hayne s v. State, 475 S.W.2d 739, 742 (Tex. Crim. App. 1972). The Court obviously does not like these cases, so it ignores them, presuma bly on the theo ry that if it doesn t m ention them they don t exist. Although this Court h as not prev iously conside red the hea rsay question ra ised in this case, the Court of Special Appeals, in an unbroken and unchallenged line of cases, has often noted the existence of letters and other correspondence addressed to a defendant at the premises in question as proper circumstantial evidence connecting the defendant to that premises. See Nutt v . State, 16 M d. App . 695, 70 6-07, 2 99 A.2 d 468, 4 73 (19 73), cert. denied, 269 Md. 764 (1973) (employment card and letter addressed to defendant at the premises evidenced that defendant had an ownership or possessory right in the premises); Anaweck v. State, 63 Md. Ap p. 239, 244-45, 492 A.2d 658, 66 1 (198 5), cert. denied, 304 Md. 296, 498 A .2d 118 3 (198 5), overruled on other g rounds b y Wynn v. State, 351 Md. 307, 718 A.2d 588 (19 98) (bill and bank stateme nt addressed to defen dants at the premises w here -7- contraband was fou nd sufficie nt to raise reason able inference that premises was defendants home); Wink v. Sta te, 76 Md. App. 677, 684-85, 547 A.2d 1122, 11 26 (1988), aff d, 317 Md. 330, 563 A.2 d 414 (19 89) (Opin ion by Bell, J.) (telep hone bill ad dressed to defendant at the premises coupled with defendant s presence during search was sufficient evidence to support inference that defendant had posse ssory interest in the premises); Chan v . State, 78 Md. App. 287, 317-18, 552 A.2d 1351, 1366 (1989) (letter addressed to Sonny Chan at premises coupled with defendant s presence at time of search supported inference that defendant had possessory interest in prem ises); Lucas v. S tate, 116 Md. App. 559, 564-65, 698 A.2d 1145, 1148 (1997 ), cert. denied, 348 Md. 2 06, 703 A.2d 148 (1997) (personal belongings of defenda nt, including receipt and letter addresse d to defendant introduced as circumstantial evidence that defendant was habitual visitor and had significan t connection to premises); West v. State, 137 Md. App. 3 14, 358 , 768 A .2d 150 , 174 (2 001), cert. denied, 364 Md. 536, 774 A.2d 409 (2001) (identification card and utility bill addressed to defendant at the premises were evidence of defendant s possessory right in apartment where contraband found); Herbert v. State, 136 Md. App. 458, 468, 766 A.2d 190, 195 (2001) (mail addressed to defendant at the premises was circumstantial evidence that defendant had possessory interest in premis es). The Court s decision in this case may well preclude the admission of such docume nts and thus effectively render nugatory every one of those decisions. That would be most unfortunate, since this unbroken line of decisions from the Court of Special Appeals is -8- consistent with hold ings by courts throug hout th e coun try. See Bailey v. State, 821 S.W.2d 28, 30 (Ark. 1 991); State v. Stiles, 512 A.2d 1084, 1088 (N.H. 1986 ); State v. Wiley, 366 N.W.2d 265, 270 (Minn. 1 985); State v. Salois , 766 P .2d 1306, 1308 (M ont. 1988); Champeau v. State, 678 P.2d 1192, 1194-95 (Okl. Crim. App. 1984) , cert. denied, 469 U.S. 880, 105 S. Ct. 244, 83 L. Ed.2d 183 (198 4); Herrera v. State, 561 S.W.2d 175, 179 (Tex. Crim. A pp. 197 8). The Majority here chooses not to follow the approach of those courts throughout the country that have expressly rejected the kind of argument made by Bernadyn and to scrap, without comment, the long-established implicit rejection of that argument by the Court of Special Appea ls and opts instead to follow the view expressed in a split decision in United States v. Patrick, 959 F .2d 991 (D.C. C ir. 1992 ), abrogation recognized by United States v. Webb, 255 F.3d 890 (D.C. Cir. 2001). At issue there was the admissibility o f a television sales receipt addressed to the defendant and found in the apartment bedroom. Curiously, the Patrick court held that the name on the receipt w ould not co nstitute hearsay, as it would show that an item belonging to the defendant was found in the bedroom, but, citing no direct auth ority, the panel majority concluded th at the address on the receipt constituted an assertion that the def endan t lived at th at addre ss. Patrick, supra, 959 F.2d at 999-1000. It did not explain why, unde r its theo ry that the address constituted an assertion, the name on the receipt was not also an assertion that Patrick purchased the set and, to that extent, the majority opinion seems internally inconsistent. The dissenting judge in Patrick pointed ou t, -9- correctly, that the receipt was not offered for the truth of the statement which it constitutes, but rather for the circumstantial value wh ich it bears co nnecting P atrick with the apartment and the bedroom wherein he, the receipt and the television described w ere all found. Id. at 1003-04 (Sen telle, J., dissenting). I think that the v iew of the two-judge panel majority expressed in Patrick, the argument made by B ernadyn here , and the M ajority s acceptan ce of that arg ument are wholly unwarranted and ignore practical reality. Because Bernadyn has neglected to include the statement to which he objects in the record before us, we cannot tell precisely what it says, but, from some brief testimony about the exhibit, it wo uld appea r that it may well c onstitute an assertion that Bernadyn was a patient of Hopkins and that Bernadyn owed Hopkins some amount for services rendered b y Hopkins. Those as sertions are not at issue, howev er, because the bill was n ot offered to show th eir truth. Beyon d that, there is, at best, a somewhat weak inferenc e that the billing clerk at Hopk ins, if he/she thought about the matter at all, believed th at, if the bill was sent to Bernadyn a t 2024 M organ Stre et, he wou ld receive it. Any such possible belief by the clerk does not, however, constitute an assertion, either explicit or implicit, that B ernadyn, in fa ct, lived at th at addre ss. See 5 J ACK B. W EINSTEIN , ET AL., W EINSTEIN S F EDERAL E VIDENCE 801.10[2][c] (Joseph M. McLaughlin ed.,2d ed. 2004) ( words or conduct offered to show the actor s implicit beliefs do not constitute statements under the he arsay rule unless they were intended b y the actor as an assertion ). -10- There is nothing in this record to in dicate wh o the billing clerk was or how he/she came up with the address placed on the bill, nor was there any need for such evidence. It can fairly be inferred, from common knowledge, that the billing clerk did not make any independent investigation of where B ernadyn lived or condu cted his bus iness but sim ply obtained the address from inf ormation in Bernadyn s patient file in formation ultimately supplied by Bernadyn or someone on his behalf. From common experience, a court can properly take judicial notice of the facts that (1) when a person first appears at a medical office seeking treatment, he or she is required to give a receptionist, among other information, an address wh ere the patient can be reached and bills and other communications can reliably be sent, and (2) the address so given will be entered in the person s file and used by the medic al office in c ommu nicating w ith the person. There is no mystery about that and no occasion to speculate, as Bernadyn would have us do, as to the source or reliability of the inform ation. Indeed, that inferenc e is fully consiste nt with the stan dard de finition of ad dress. Bernadyn and the M ajority seem to regard address as specifying only where a person lives, but that is not how the dictionaries define the term and it is therefore not the common understanding of the term. Black s Law Dictionary defines address as [t]he place where mail or other communication is sent. BLACK S L AW D ICTIONARY 42 (8 th ed. 2004). Ballentine defines the verb form as to indica te the destination of mail and the noun form, as [t]he direction given on a letter or other piec e of m ail as to th e destin ation. -11- B ALLENTINE S L AW D ICTIONARY 28 (3 rd ed. 1969). American Heritage Dictionary defines the verb as to m ark with a d estination; address a letter, and the noun as [a] description of the location of a person or organization, as written or printed on mail as d irections for deliv ery: wrote down the address on the envelope . . . [or] [t]he location [where] a particular organization or person may be found or reached: went to her address but no one was home. A MERICAN H ERITAGE D ICTIONARY O F T HE E NGLISH L ANGUAGE (4 th ed. 2000). Webster s New Universal Unabridged Dictionary defines the noun, in relevant part, first as the place to which mail, etc. can be se nt to one and seco ndarily as delivery directions on a letter, parcel, etc., including the name , title, and place o f residence of the pers on for w hom it is intended. WEBSTER S N EW U NIVERSA L U NABRIDGED D ICTIONARY 22 (2d ed. 1983). In conform ance both with these d efinitions and with common practice and in the absence of any evidence to the contra ry, it is reasonab le to assum e (and un reasonab le not to assume) that the billing clerk likely (1) had no idea of whether Bernadyn lived at 2024 Morgan Street, worked at that address, or simply desired that communications from Hopkins be delivered there, (2) never gave a m oment s thought to th e matter, and (3) cared n ot a whit which it was. Routinely sending the bill to that address can in no way properly be taken as an assertion by the billing clerk that Bernadyn actually lived at that address. The cases noted above are correct in viewing the placem ent of the defenda nt s name and address on a letter found in the apartment as nothing more than a direction to the Post Office as to where to deliver the letter a direction in this case derived, at best, from the -12- billing clerk s presumed belief that, if delivered th ere, Berna dyn would likely receive it, which, in fact, he did.1 There m ay be situations in which the belief infera ble from m erely sending a communication to a person at a particular address can, itself, be relevant and, by virtue of that relevance, constitute an assertion, but this is not such a case.2 Because, under these circumstances, the mere sending of a bill to Bernadyn at 2024 Morgan Street does not constitute an assertion by the billing clerk that Bernadyn lived at that address, the bill does not constitute a statement to that effect for purposes of Maryland Rule 5-801 and does not, therefore, constitute hearsay evidence. If the address stated on the bill does not constitute an assertion, it is not a statement for purposes of the hearsay rule. The Majority finds great significanc e in the pros ecutor s clos ing argum ent, as though that argument might have made otherwise admissible n on-hearsa y evidence n on-adm issible hear say. That, too, does not stand up under analysis. As noted, when the bill was offered into evidence, defense counsel asserted only that she had no idea where Hopkins got that 1 The Court notes that the document at issue was the bill itself, not the envelope. We really don t know that, as the document was not included in the record. The parties refer to the statement, but that could as easily include the envelope. It would not make any difference in any event. We can fairly assume that the address stated on the bill was also stated on the envelope. 2 It may be, for example, that in a landlord-tenant dispute where the landlord claims that the tenant prematurely vacated the leased premises on a certain date and moved to another location, a letter sent by the landlord to the tenant at the allegedly vacated premises after that date could be viewed as an implied assertion by the landlord that the tenant was still at the premises. -13- address and that [t]o let this evidence in wou ld be ex tremely p rejudici al to my clie nt. 3 The State w as not a sked to specify th e purpo se for th e evide nce an d did no t do so. In my view, the bill was absolutely admissible as direct evidence that Bernadyn received business mail at 2024 M organ Stre et, from w hich two f air and reaso nable inferences could be drawn. The first is that he had some connection with that place. People do not ordinarily receive and retain m ail at plac es with which they hav e no co nnectio n. A second inference, deducible from the first, is that found telling by the aforecited cases, including the line of cases from the Court of Special Appeals that the connection wa s sufficient to support a conclusion that Bernadyn e xercised so me contro l and dom inion over th e apartme nt. Whether that second inference would suffice on its own to permit that conclusion is not important, as there w as ample other evidence of such a connection the evidence obtained from the surveillance (including his letting known drug dealers in the house), his being the only occupant when the warrant was executed, and the fact that men s clothes were found in the master bedroom. Because, in my view, the statement was clearly admissible for a non-hearsay purpose, the objection to it was properly over ruled. Ma ryland Rule 5 -105 prov ides, in relevan t part, that, [w]hen evidence is admitted that is admissible . . . fo r one purp ose but no t admissible 3 It is fair to assume that most evidence offered by the State in a criminal case will be prejudicial to the defendant. The State, after all, is seeking a conviction. Subject to those instances where the evidence may be excluded under Rule 5-403 because the prejudicial value of the evidence exceeds its probative value, the issue is not whether the evidence is prejudicial, but whether it is admissible. -14- . . . for ano ther pu rpose, th e court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. (Emphasis added). Even if the statement would have been inadmissible if taken as a truthful assertion by the H opkins b illing clerk that B erna dyn lived at 2024 M organ Stre et, no reque st was eve r made by B ernadyn to lim it the scope of the evidence and no o bjection w as made to the prosecu tor s closing argument. Hence, any complaint that the evidence was used for an improper purpose has been waived.4 Bernadyn s current complaint is little more than appellate af terthought a nd should be rejected a s both unpreserved and wholly lacking in merit. The judgment of the Court of Special Appeals should be affirmed. Judge Battaglia joins in this dissenting opinion. 4 The Court, in footnote 5, without any citation of authority, and without any pretense of logic, places a burden on the Court, sua sponte and without any request from either party, to inform the jury of a limited purpose of the evidence. There is no basis whatever for such a duty and, indeed, absent a valid request, it would be clear error for a judge, on his/her own initiative, to limit the use of evidence that is admitted without limitation. Would the Court countenance the exercise of such authority with respect to evidence offered by the defendant? -15-