Judges send drug conviction back to Harford

December 11, 2005|By JUSTIN FENTON | JUSTIN FENTON,SUN REPORTER

In 2001, after weeks of surveillance, police found Michael Joseph Bernadyn sitting in an Edgewood home. A marijuana pipe was found on a table front of him, and in a back bedroom were 26 bags of marijuana each weighing about 8 ounces.

A jury found Bernadyn guilty of intent to distribute, and he was sentenced to six years in prison.

But last week, the Court of Appeals ordered the case back to Harford County after ruling that a medical bill addressed to Bernadyn that was found in the home and was used as evidence that he lived at the residence was hearsay.

"The address on the bill is hearsay within hearsay," wrote Judge Irma S. Raker in a 42-page decision. "There is no evidence whatsoever as to the source of the information contained on the bill, and any conclusion would be speculative."

During the trial, Bernadyn's attorney tried to make the case that his client did not live at the residence in the 2000 block of Morgan St. court records show. Despite objections, the court did not ask the state why the bill was being introduced and admitted it into evidence.

In a dissenting opinion, Judges Alan M. Wilner and Lynne A. Battaglia wrote that the bill was "absolutely admissible" as direct evidence that Bernadyn received business mail at the Edgewood home. At the very least, they wrote, he had some connection with the place or and some control over the apartment.

The state had said in closing arguments at the trial that the bill was a clear indicator that Bernadyn lived at the residence.

In an appeal, Bernadyn convinced a majority of the appeals judges that the bill was a business record and therefore inadmissible hearsay. The state failed to show that the bill was generated by a "person of knowledge," the judges ruled.

Wilner and Battaglia said the defense, because it made no request to limit the scope of the evidence and made no objection to the prosecutor's closing argument, in effect waived its complaint.

The case will be returned to Harford County Circuit Court, and the county will have to pay court costs for the Court of Appeals and the Court of Special Appeals.

Justin.fenton@baltsun.com

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