Conviction thrown out in fatal beating

`Utterance' by child is ruled inadmissible


The state's highest court threw out yesterday the conviction of a man in the beating death of his girlfriend's 3-year-old daughter, ruling that the trial judge erred by allowing into evidence a statement by an 18-month-old child who did not take the witness stand.

The Court of Appeals found that the child's "utterance" recounted in court by her mother was hearsay and that the unintended implications of the statement could have swayed the jury in its decision. With few exceptions, witnesses cannot testify as to statements made by another person.

City prosecutors said they will retry the case.

Erik Stoddard, 23, was convicted of second-degree murder and child abuse in March 2003 in the killing a year earlier of Calen Faith Dirubbo. Prosecutors said Stoddard was angry for being unable to potty train the girl over several months.

Jurors heard four days of testimony and deliberated less than one hour before convicting Stoddard, who was sentenced to 30 years in prison.

Assistant State's Attorney Julie Drake said she was "astonished and very disappointed" with the high court's reversal but is determined to retry the case, adding that the statement in question was "a very minor piece of evidence in a large and complicated case."

"The problem with retrying this has to do with the length of time that has passed and the fact that memories fade with time and witnesses disappear," Drake said.

"I am so sorry that this family will have to go through another trial when they believed that this matter was over and we had secured justice for Calen," she said.

But Archibald McFadden, who represented the defendant in Baltimore Circuit Court, said the child's statement was "the most potent piece of evidence" the state had, increasing the chances that the defendant could win the second time around.

"It's a very circumstantial case," McFadden said. "Clearly this was relevant to the verdict. It was not a harmless error."

Stoddard had been supervising Calen, her older brother and her cousin, 18-month-old Jasmine Pritchett, on June 15, 2002. Calen was found beaten to death by her mother.

Jasmine's mother, Jennifer Pritchett, testified that her child's behavior was markedly different after the killing. She told the court the child was scared of strangers and loud noises, had broken out in hives and was having nightmares.

She also testified that her daughter had said, "Is Erik going to get me?" Jasmine was too young to take the stand.

McFadden objected to the statement and asked the judge to declare a mistrial, but the judge denied the motion.

Drake invoked the statement in closing arguments, saying it showed the child was afraid of Stoddard because she was an eyewitness to the beating and was scared it was going to happen to her.

Stoddard appealed his 2003 conviction, which was upheld by the Court of Special Appeals. The court concluded that Jasmine's question was a "non-assertive verbal utterance," and therefore not hearsay.

But the high court said the jury needed to make numerous inferences in accepting Jasmine's question.

"If the words are uttered out of court, then offered in court to prove the truth of the proposition, they are hearsay under our rules," the court said. "Jasmine's out-of-court question, repeated in court by her mother with minimal information as to its context, is unreliable as evidence that Jasmine had witnessed Stoddard assault Calen."

The decision acknowledged that in federal court and many other state courts, the statement would not have been hearsay. But the decision was based on the court's interpretation of Maryland's rules, and could affect future cases.

"It appears that Maryland's Court of Appeals has decided to adopt a far more restrictive approach to the admission of evidence than many other states and obviously that makes our job more difficult, but we have to abide by the guidelines that are set forth by the Court of Appeals," Drake said.

McFadden said the initial rulings went against traditional hearsay analysis and the high court's decision is more in line with conventional interpretations.

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