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Goldman5/21/1998
ecollection recorded and as a consistent statement offered to rebut an implied charge of fabrication. The second file memorandum concerns similar circumstances and allegations regarding a phone conversation of 30 March 1988.
The record reflects that the first memorandum was offered for admission, a hearsay objection was made, and appellant argued only the past recollection recorded exception. The judge sustained the exception and then refused to allow Mr. Goldman to read the memorandum to the jury, but he did allow the memorandum to be used to refresh Mr. Goldman's recollection. The second memorandum was never offered into evidence at all, and appellant never requested that it be read to the jury. It was merely used for recollection refreshment purposes without objection. Appellant claims the judge should have admitted the two documents into evidence and that he should have at least allowed Mr. Goldman to read the memoranda to the jury.
Appellant has not made clear just how the information in the memoranda is at all relevant to the issue of the continuing enforceability of the Local 33/Sparrows Point contract, given our prior rulings on the Statute of Limitations and contract termination. Nevertheless, assuming some relevance, the claim fails on its merits. Maryland Rule 5-802.1 provides, in pertinent part:
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:
(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;
(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.
These two provisions are not rules of automatic admissibility; they are only exceptions to the hearsay bar.
For failing to bring to the lower court's attention the Rule 5-802.1(b) hearsay exception for prior consistent statements, GSW has waived any appellate reliance thereon. As for Rule 5-802.1(e), the argument that the documents should have been admitted into evidence fails because they were offered by appellant and not by the adverse party as required under the rule. As for the ruling that Mr. Goldman could use the memoranda to refresh his recollection but not read them to the jury, we find no prejudice to GSW therefrom. Mr. Goldman was permitted to use the two documents to refresh his recollection as he testified regarding each alleged phone conversation. We have compared the two memoranda with the relevant portions of the trial transcript, and we find that Mr. Goldman fully and completely related to the jury the substance of all pertinent statements contained in the memoranda. Moreover, the transcript reveals that Mr. Goldman used the memoranda for far more than merely refreshing his recollection, as opposing counsel and the court comment multiple times that he was improperly reading both memoranda to the jury. Having found no prejudice from the ruling, we reject this claim of error.
Appellant's right to a jury trial
Appellant asks us to reverse the monetary awards contained in the declarat
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