Dissenting Opinion by BELL, C.J., which HARRELL J. joins as to Part I.

This case presents two issues. First, whether the statement, "Can I get a 40?," made by an unknown declarant in a call to the petitioner's cell phone and intercepted by a police officer, is admissible as non-hearsay, to show that the petitioner was distributing cocaine. As to this issue, the majority holds that this statement is a verbal act, and, therefore, is not hearsay and is admissible. Garner v. State, 414 Md. 372, 388, 995 A.2d. 694, 703-04, 2010 WL 1957227 (2010). The second issue is whether, in compliance with Maryland Rule 4-215, the trial court, responding to the petitioner's request to discharge counsel, permitted counsel to be discharged and whether, notwithstanding counsel's subsequent extensive involvement in the conduct of the trial, counsel was, in fact, discharged. Adopting the Court of Special Appeals' rationale, the majority holds that the petitioner's defense counsel "`was never discharged as counsel . . . and that the provisions of Rule 4-215(a)(3), therefore, never came into play.'" Garner v. State, 414 Md. at 389, 995 A.2d at 704 (quoting Garner v. State, 183 Md.App. 122, 132, 960 A.2d 649, 654 (2008)). I disagree with the majority on both issues, and, accordingly, I dissent.

The facts may be briefly stated. During a routine traffic stop on the afternoon of June 22, 2006, it came to Trooper Jeremy Gussoni's attention that Alphonso Garner, the petitioner, was driving on a suspended license. Having arrested the petitioner for the infraction, the Trooper and his partner searched the petitioner's vehicle. The search "revealed 13 individually wrapped baggies containing what turned out to be [6.9 grams of] cocaine." Garner, 183 Md.App. at 126, 960 A.2d at 651. Trooper Gussoni testified that, subsequently, at the police station, the petitioner's cell phone rang and that, when he, Trooper Gussoni, answered it and said "Hello," the caller asked, "`Can I get a 40?,' but then hung up when Trooper Gussoni asked him for his name." Id.

The petitioner was charged in the Circuit Court for Queen Anne's County with, inter alia, possession of cocaine, possession with intent to distribute cocaine and, possession of drug paraphernalia. He appeared for trial represented by counsel.

Before the commencement of trial, the following colloquy concerning the petitioner's desire for new counsel, occurred:

"[DEFENSE COUNSEL]: . . . For the last couple of days, I've explained to Mr. Garner the nature of the case, the evidence against him. In other words, things that a lawyer does prior to trial and I had recommended to Mr. Garner a certain disposition in this case, as opposed to going to trial and I have, apparently, done [so] too consistently because Mr. Garner has indicated to me that he doesn't think that I have his best interests at heart with regard to this case. He doesn't think I'm going to try the case wholeheartedly because of my continued assertions that he take a plea in the case. . . . So I thought I ought to bring that to the Court's attention because I think he was going to stand up and say it. . . .

"THE COURT: . . . Mr. Garner, you heard what Mr. Anderson said, do you want to add anything to that?

"THE DEFENDANT: Yes, sir. I feel like he's not going to represent me in my best interests.

"THE COURT: Why didn't you do something about it before now?

"THE DEFENDANT: Because I thought he was going to try to represent me in my best interests, but after a couple days, I done seen that he's not trying to —

"[DEFENSE COUNSEL]: But I told you, I showed you —

"THE DEFENDANT: — and I'm not trying to take a plea. He is trying to force a plea, make me take a plea that I don't want to take."

After assuring the defendant that the court would not make him accept a plea, the trial judge stated:

"THE COURT: Well, then you should have done something about it before. You come in and you ask for postponements and everything else."

The defendant maintained, and his counsel confirmed, that the defendant had not requested the previous postponement. This prompted the following colloquy, the effect and purpose of which was to continue with the proceedings that day:

"THE COURT: Well, anyway, you're not asking for a continuance, you are going to represent yourself, is that what you [would] like?

"THE DEFENDANT: I would love to have a continuance to get me another lawyer because I got a steady job now and I need the continuance to get me a lawyer that I feel that is going to represent me in my best interests, as far as my case is concerned. I have a steady job, might take me a month to get some money to have me another lawyer that I feel I would get the best representation for my behalf on my case."

After refusing to grant a continuance, the trial court continued its colloquy with the petitioner, this time inquiring as to the petitioner's intention with respect to the discharge of counsel:

"THE COURT: I see. Are you going — do you want to discharge him, is that it?

"THE DEFENDANT: Yes, sir.

"THE COURT: All right. Would you like me to have him stay to be — sit next to you at the trial table to be on call if you need his help during the trial? What I'm saying is we are going to have a trial today.

"THE DEFENDANT: Is there any kind of way I can discharge him from representing me?

"THE COURT: I said you can do — you have an absolute right to represent yourself, if you want to. You have an absolute right to get an attorney. You can't wait until the day of trial and come in and tell me that you are going to fire your attorney.

* * *

"THE DEFENDANT: I didn't know who to go to let anybody know, know what I mean, what kind of situation it was. My best interests was to come to the judge that's hearing the case and let him know that I don't —

"THE COURT: I don't have anything to do, you chose the attorney. If you had problems, you had to work it out with him. Mr. Anderson is a member of the bar, I'm sure if you told him what your feelings were, I'm sure he would have done something about it.

"THE DEFENDANT: I have told him.

"THE COURT: What?

"THE DEFENDANT: He can sit there.

"THE COURT: What?

"THE DEFENDANT: He can sit there.

"THE COURT: Okay. Thank you. Go ahead."

Although defense counsel was asked by the trial court to be, and the petitioner agreed that the defense counsel could be, standby counsel, counsel acted as lead counsel throughout the trial.

One of the motions made by the defense counsel was a motion in limine to exclude the contents of a phone call to the petitioner's cell phone. He argued:

"[DEFENSE COUNSEL]: . . . my client, apparently, had a cell phone which was answered by a state trooper later in" after he was arrested and the caller on the other end said something ["Can I get a 40?"] that I think would be very damaging to my client in this particular case. I don't think that evidence or that statement should be admitted or the call on the other end of the phone, should be admitted for a couple of reasons.

"Obviously, it's an anonymous call. We don't know who it was from, we don't know if they got the right number and I'm not able, obviously, to cross-examine. I think the reliability of whatever was said on the other end is subject to suspicion and I think the probative value of that would certainly not outweigh the prejudice that it would weigh on my client in this particular case."

In response, the State relying on Best v. State, 71 Md.App. 422, 526 A.2d 75 (1987), argued: "it `"s a verbal act. . . . [I]t was offered as evidence that the call was made for the purpose of arranging an illegal drug transaction." The trial court denied the petitioner's motion, without explanation. That denial was error.

In an attempt to establish that "Can I get a 40?," indicated that the call was for drugs, the State called Corporal Michael with the Maryland State Police Drug Task Enforcement Division. He testified inter alia:

"[THE STATE]: Corporal Michael . . . are you familiar with cocaine?

"[WITNESS]: Yes.

* * *

"[THE STATE]: Okay. . . . [T]hrough your training and experience, what increments is cocaine sold in?

"[WITNESS]: Its usually known in money denominations, is the common way it is referred to, such as a 20 rock, a 40 rock, 60, 80 and even as high as an 100 probably for a street.

* * *

"[THE STATE]: Have you, through your training and experience and debriefing individuals, have you heard the term 40 before?

"[WITNESS]: Yes.

"[THE STATE]: Do you have an opinion, to a reasonable degree of certainty, as to what that means?

"[WITNESS]: Forty is a quantity of crack cocaine that is commonly referred to. It's approximately four-tenths of a gram. Just like a 20 is about two-tenths of a gram."

The petitioner was later convicted of the charged offenses and sentenced to 41 years in prison. The Court of Special Appeals affirmed the judgment below. Garner v. State, 183 Md.App. 122, 960 A.2d 649 (2008).

I. " Can I get a 40?" is inadmissible hearsay.

The majority holds that the statement, "Can I get a 40?," made by a "non-testifying, unnamed caller to Petitioner's cell phone" is admissible. Garner v. State, 414 Md. at 375, 995 A.2d at 696. Although acknowledging that this Court has held that implied assertions constitute hearsay, see Bernadyn v. State, 390 Md. 1, 10-11, 887 A.2d 602, 607-08 (2005); Stoddard v. State, 389 Md. 681, 693, 887 A.2d 564, 571 (2005), and that the statement at issue in this case constituted an implied assertion, Garner v. State, 414 Md. at 388, 995 A.2d at 704, but without explanation as to how it arrived at that conclusion, the majority states baldly that, "the only assertion implied in the anonymous caller's question was the assertion that the caller had the funds to purchase the drugs that he wanted to purchase." Id. From that premise, the majority concludes:

"Because the caller's request did not constitute inadmissible hearsay evidence, the rule against hearsay does not operate to exclude evidence of the Verbal act' that established a consequential fact: Petitioner was in possession of a telephone called by a person who requested to purchase cocaine.[]"

Id. To avoid the result Stoddard and Bernadyn would require, the majority asserts that

"neither Stoddard nor Bernadyn presented the issue of whether the Verbal part of an act' is subject to exclusion under the rule against hearsay, or the issue of whether the rule against hearsay is applicable to every out-of-court declaration that constitutes circumstantial evidence of the declarant's state of mind[]."

Garner v. State, 414 Md. at 381, 995 A.2d at 699.

The logic of the majority's reasoning and, therefore, its conclusion escapes me. I, therefore, dissent.

A. The rule against hearsay is applicable in this case.

"Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Md. Rule 5-801(c) . Although hearsay is generally inadmissible, see Md. Rule 5-802 , there are a plethora of exceptions which make hearsay admissible and also instances where a statement may be classified as non-hearsay. Non-hearsay is admissible and not subject to scrutiny under an hearsay analysis.

"The threshold questions when a hearsay objection is raised are (1) whether the declaration at issue is a `statement,' and (2) whether it is offered for the truth of the matter asserted. If the declaration is not a statement, or if it is not offered for the truth of the matter asserted, it is not hearsay and it will not be excluded under the hearsay rule.

"`Statement' is defined by Md. Rule 5-801(a) as `(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.' The Rule does not define `asserted' or `assertion.' The Committee note to Rule 5-801 explains as follows:

"`This Rule does not attempt to define `assertion,' 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, 389 Md. at 688-89, 887 A.2d at 568-69.

The majority categorizes the statement, "Can I have a 40?," as a verbal act, and, therefore, holds that it is admissible as non-hearsay. To be sure, "Can I get a 40?" is indeed an assertion; it is not, however, a verbal act.

According to our jurisprudence and that of our sister jurisdictions, a verbal act is verbiage that describes an action taking place. See Carozza v. Williams, 190 Md. 143, 150, 57 A.2d 782, 786 (1948) ("[U]nsatisfactory material by word of mouth, and other statements accompanying, and relating to, the performance of duties or other conduct of business, are not hearsay but are verbal acts and are admissible when relevant. In familiar, but somewhat loose, legal parlance they are part of the res gestae — verbal parts of an entire act."); McBriety v. Phillips, 180 Md. 569, 576, 26 A.2d 400, 404 (1942) ("Under the rule of res gestae, conversations of parties in the course of a transaction are admissible when the words are spontaneous and so closely related to the principal transaction as to explain its character. 1 Jones on Evidence in Civil Cases, 4th Ed., Sec. 358; 6 Wigmore on Evidence, 3rd Ed., Sec. 1776; 20 Am.Jur., Evidence, Sees. 662, 680. Such utterances, irrespective of their trustworthiness as assertions, are received as verbal parts of the entire act."); see also Antunes-Salgado v. Florida, 987 So.2d 222, 226 (Fla. 2nd Dist.Ct.App. 2008) ("`Verbal acts' are statements made during the course of an act or transaction that explain the nature of the act."). Verbal acts are not offered for the truth of the matter asserted and are, therefore, classified as admissible non-hearsay. Borne v. Martin, 199 Md. 58, 64, 85 A.2d 786, 789 (1952) ("The rule against hearsay is not applicable to Verbal acts' which may constitute relevant conduct of the parties, e.g., on questions of procuring cause or intent."); Banks v. State, 92 Md.App. 422, 432, 608 A.2d 1249, 1254 (1992)("Verbal acts are those `out-of-court statements [that] are operative legal facts which constitute the basis of a claim, charge or defense . . . and are nonhearsay.' L. McLain, 6 Maryland Evidence § 801.7 at 278 (1987) (McLain)"); see Antunes-Salgado, 987 So.2d at 226 ("These types of statements are not hearsay because they are not offered for the truth of the matter asserted but instead are offered to show the effect of the statement on the defendant because that effect has some independent legal significance."). In short, verbal acts, are admissible to show a play-by-play of the ongoing events.

A verbal act references or describes an action that is ongoing or gives rise to further action. It is particularly "relevant because it explains some observed act by the defendant," id. at 227, as it relates to the crime charged. That said, there is an important distinction between those cases where the statement is offered to describe the defendant's action or reaction to a statement or circumstances, and cases in which the statement is offered for another purpose. In those instances where the defendant is not directly participating in or responding to an action, the statement may be admissible to explain some relevant act or event, i.e., perhaps to describe how the premises are being used, but it cannot be used to explicate an action — because there is none — of the defendant. Cases involving evidence secured during the raid of a betting or gambling house make this point clear. In these cases, the statements are offered to prove the nature of the activity occurring on the premises, and not to prove the defendant's complicity. Other evidence is needed to make that connection.

In Courtney v. State, 187 Md. 1, 2, 48 A.2d 430, 430 (1946), for instance, the defendant was charged with "unlawfully making and selling books or pools on horse races and with keeping a house for the purpose of betting and gambling." The State sought to prove "that the place in question was a gambling place and that some or all of the persons found therein were engaged in taking bets in violation of law." Id. at 6, 48 A.2d at 432. The Court in that case makes clear that the evidence at issue was not "`evidence of a telephone conversation . . . introduced against a particular person,'" id., but the evidence was being introduced to illustrate that the place itself was being used as a criminal enterprise.

Likewise, in Little v. State, 204 Md. 518, 520-21, 105 A.2d 501, 502 (1954), two State police officers in Cumberland went to a pool room operated by Leonard Little. Acting undercover, the officers placed bets on horse races. Id. The officers gave money to Edward Capel ("Capel") to secure their bet. Id. Capel went into the back room and when he came back, he informed the police that "`I got it up,'" id., apparently meaning that their bets were made. At trial, Little contended that the "officers' testimony as to Capel's statement to them, `I got it up' [was] hearsay." Id., at 522, 105 A.2d at 503. The Court disagreed, holding:

"We think, however, that it was part of the res gestae. The statement did not purport to repeat anything said to Capel by Little, or even to implicate him directly in the transaction. It merely indicated an acceptance of their offer by Capel, either on his own account or for an undisclosed principal. The verbal act of taking a bet, with or without the knowledge or consent of Little, was germane to the charge of maintaining premises for gambling."

Id. at 522-23, 105 A.2d at 503 (emphasis added). In Little, the statement was not introduced to implicate the defendant, it was meant to prove the charge of maintaining the premises for gambling.

Where the statement is introduced for the specific purpose of implicating the defendant, it is considered a verbal act only if it describes an action or reaction of or by the defendant. Stevens v. Florida, 642 So.2d 828 (Fla. 2nd Dist.Ct.App. 1994) is illustrative. There the defendant, Stevens, was found guilty of two counts of delivery of cocaine. The evidence introduced was that of his co-defendant, Hill, who negotiated with an undercover officer for the sale of cocaine, during the course of which he went over to the defendant's, Stevens's car, and yelled "`I need a dime.'" Id. at 829. The officer testified that Stevens "reach[ed] into his pocket . . . and grab[ed] a whole bunch of plastic baggies, at which point he gave Mr. Hill one, put the rest back in his pocket, then Mr. Hill came back to me." Id. Rejecting Stevens's argument that the statement, "`I need a dime,'" was inadmissible hearsay, id., the Florida court held:

"Appellant's participation could not have been demonstrated any other way. Since the testimony was not offered for its truth, it is not hearsay. . . . We, accordingly, affirm appellant's convictions for delivery of cocaine within 1,000 feet of a school and possession of cocaine."

Id. In that case, Hill's statement precipitated, and described, the defendant's action.

Where the statement neither explains nor evokes an action or reaction by the defendant, it is just a statement that does not assist the fact-finder in understanding or evaluating the actions of the defendant, and, accordingly, is subject to a hearsay analysis. This point was made in Antunes-Salgado v. Florida, which involved a confidential informant ("CI") arranging to buy drugs from a party who was not the defendant. 987 So.2d at 223. "During the cell phone calls that led up to the transaction, Tranquilino [an associate of the defendant] told the CI that other people would be with her at the transaction, but she did not" name the person or persons. Id. At the drop-off site, the defendant, Antunes-Salgado, was in the back seat. Id. "When the police stormed the truck, they found five kilograms of cocaine." Id. The defendant was later charged with trafficking cocaine and conspiracy to traffic cocaine, id., and the statements made to the CI were used to convict him. Reversing the defendant's conviction, the Florida Court of Appeals noted the distinction between hearsay and verbal acts, stating: "[T]he statements at issue are not nonhearsay `verbal acts.'" Id. at 226. The court then went on to explain this distinction:

"Thus, for example, had Tranquilino told the CI that Antunes-Salgado would be accompanying her to the transaction, that statement would have been a Verbal act' because it would have served to explain Antunes-Salgado's presence in the back seat of the truck and might have established his involvement in the transaction. However, none of the statements actually offered by the State at trial were relevant to explain any act by Antunes-Salgado.[] Instead, the statements are relevant only to prove the truth of the matter asserted in them; i.e., that Antunes-Salgado had an agreement with the codefendants to deliver cocaine to the CI."

Id. at 227. It explained further:

"For example, in Banks [v. State, 790 So.2d 1094 (Fla. 2001)], an undercover police officer was standing at a pay phone when a car driven by Banks approached. 790 So.2d at 1096. Banks' passenger, Goodman, spoke to the officer and asked her what she needed. Id. The officer first asked Goodman whether Banks was `straight up.' Id. After Goodman replied that he was, the officer asked Goodman if she could purchase drugs from him. Id. Goodman told the officer that it would be no problem. . . . Goodman then sold the officer the drugs. Id. Goodman did not testify at trial, and Banks challenged the admission of Goodman's statements as hearsay; however, the trial court admitted the statements.

"On appeal, the supreme court noted that many of the statements Goodman made to the officer arranging the drug sale and arranging to meet in the alley appeared to be admissible as Verbal acts' because those statements explained Banks' conduct in driving the car into the alley after the initial encounter. Id. at 1099 n. 3. That conduct had independent legal significance because it implicated Banks in the transaction. Id. However, the statement that Banks was `straight up' was not a verbal act because it did not explain the nature of the act or transaction but rather simply implicated Banks in the transaction.[] Id. at 1098. Therefore, the statement directly incriminating Banks was not a verbal act and was not admissible. Id."

987 So.2d at 227. Antunes-Salgado and Banks show that verbal acts are restricted to those statements which describe an action or reaction by the defendant and not those that are introduced for the purpose of "directly incriminating" the defendant. Id. (quoting Banks v. Florida, 790 So.2d at 1098).

In this case, the phone call, and, in particular its content, did not describe or explain any action on the defendant's part. In fact, the defendant was not even present and may not have been aware of the call at all. He was detained and, therefore, unavailable to take the phone call.

An additional concern is the anonymity of the caller and the actual behavior of the caller. Defense counsel specifically stated: ". . . it's an anonymous call. We don't know who it was from, we don't know if they got the right number and I'm not able, obviously, to cross-examine." Notably this call was less meaningful than a conversation with an unidentified person. Here, not only was the caller unidentified, but, unlike many of the cases below, the caller did not ask to speak to anyone when the officer picked up the phone. Contra Courtney, 187 Md. at 3-4, 48 A.2d. at 431 ("During the period of an hour various persons call[ed]. . . . some of the callers asked for Nick, others for Nat."). The declarant, rather, after asking one question, ambiguous without expert testimony, hung up the phone when asked to identify himself. As the defense counsel argued, it is not at all clear whether the declarant even meant to call the petitioner. Indeed, in truth, the declarant's behavior is not at all inconsistent with that of an individual who calls the wrong number and hangs up when he or she realizes that the wrong number was dialed.

Nevertheless, the call was offered against the petitioner. Although it is contended that its purpose was a benign one, to show that such a call was made to a phone that the petitioner possessed, that proposition alone would not further the State's case and, in fact, merely that the call was made, without more, would not tie the petitioner to the sale of cocaine. In truth, its only effect, if not its purpose, was to prove that the petitioner was distributing cocaine. Thus, the statement was assertive and highly prejudicial.

By this holding, any question posed by an unidentified caller to a cell phone belonging to a defendant, but in police control, even if it does not explain an action or reaction by the defendant, and whose only purpose and effect is to implicate the defendant in a criminal act, constitutes a verbal act admissible without regard to its prejudicial effect or analysis pursuant to Rule 5-801. This turns the concept of verbal act on its head and undermines the hearsay rule.

B. Why "Can I get a 40?," is inadmissible hearsay.

Having established that this case falls squarely within the rule against hearsay, I return to the statement itself and the majority's conclusion that it "established a consequential fact: "Petitioner was in possession of a telephone called by a person who requested to purchase cocaine." Garner v. State, 414 Md. at 388, 995 A.2d at 704. To be sure, the statement does tend to establish that fact, but that fact has meaning and probative force only if the assertions it implies — that the owner of the cell phone is the owner of, and will sell, the cocaine the caller wants to purchase — are true. Thus, the statement by the declarant is in violation of our rule against hearsay.

The hearsay rule excludes statements of non-testifying individuals offered in court to prove the matter they assert. Md. Rule 5-801 (c). Although "[m]uch verbal evidence may be sorted into hearsay and non-hearsay without too [much] searching," Stoddard, 389 Md. at 689, 887 A.2d at 569, not all cases are so simple. A statement is considered hearsay when the assertion it implies "is relevant only in that, by asking it, [the declarant] may have revealed, by implication, a belief that," id., implicates the defendant. "The implied assertions doctrine focuses on the implications or inferences contained within or drawn from an utterance, as distinguished from the declaration's literal contents." Id. at 690, 887 A.2d at 569-70.

In Stoddard, the defendant, "was convicted of second degree murder and child abuse resulting" in the death of Calen DiRubbo. 389 Md. at 683, 887 A.2d at 565. The evidence showed that "Stoddard was the only adult supervising Calen," and "her cousin Jasmine Pritchett." Id., at 684, 887 A.2d at 566. Jennifer Pritchett, Jasmine's mother, testified over the objection of defense counsel, that Jasmine, after the incident, "asked [her mother] if Erik was going to get her." Id. at 685, 887 A.2d at 566. The State offered "this utterance as evidence that the child had witnessed Stoddard commit the murder," id. at 683, 887 A.2d at 565, prompting the defendant to argue that the statement was inadmissible hearsay. Id. at 686-87, 887 A.2d at 567. The question presented to the Court was "whether the trial court erred in admitting testimony recounting an out-of-court utterance allegedly made by a non-testifying eighteen month old child." Id. at 683, 887 A.2d at 565. We answered in the affirmative, applying the implied assertion doctrine. Id. at 711-12, 887 A.2d at 581-82.

In a section of the Stoddard decision, entitled, "Other Courts in Accord with Our View," we cited to several cases in support of our conclusion that the admission of implied assertions cannot be considered apart from the subject's literal contents: United States v. Palma-Ruedas, 121 F.3d 841, 857 (3d Cir. 1997) ("While Quinones may not have offered the statement for its express meaning, he did offer it for the implied assertion that he had never met Avendano."); Lyle v. Koehler, 720 F.2d 426 (6th Cir. 1983); United States v. Reynolds, 715 F.2d 99 (3d Cir. 1983); Iowa v. Dullard, 668 N.W.2d 585, 594-95 (Iowa 2003) ("[W]e do not believe indirect or unintentional assertions in speech are reliable enough to avoid the hearsay rule. We think the best approach is to evaluate the relevant assertion in the context of the purpose for which the evidence is offered."); Ginyard v. United States, 816 A.2d 21, 40 (D.C. 2003); Mosley v. Texas, 141 S.W.3d 816, 829 (Tex.Ct.App. 2004); Brown v. Virginia, 25 Va.App. 171, 487 S.E.2d 248, 252 (1997).

In Reynolds, to prove a conspiracy between the defendant and a co-defendant, postal inspectors testified that, after Reynolds's arrest, he told the defendant, "`I didn't tell them anything about you.'" 715 F.2d at 100-101. We reported, with approval, the holding of the United States Court of Appeals for the Third Circuit, that the evidence was hearsay:

"`Reynolds' statement is . . . ambiguous and susceptible to different interpretations. As the government uses it, the statement's probative value depends on the truth of an assumed fact it implies. Unless the trier assumes that the statement implies that Reynolds did not tell the postal inspectors that Parran was involved in the conspiracy to defraud, even though Parran was in fact involved, the statement carries no probative weight for the government's case. For if the trier assumes that the statement implied that Reynolds did not tell the postal inspectors that Parran was involved because there was nothing to tell, the statement has no relevance to the government's case.

"`Its only relevance to the government's case is tied to an assumed fact of petitioner's guilt that the government argues the utterance proves. Thus, depending on the interpretation given the content of Reynolds' statement, it is either probative or not. Consequently, we believe that, as the government uses it, the statement's relevance goes well beyond the fact that it was uttered. It is not merely intended to prove that Reynolds could speak, or that he could speak in English, or even that he directed a statement toward Parran. Instead, the government offers it to prove the truth of the assumed fact of defendant's guilt implied by its content.'"

Stoddard, 389 Md. at 704-05, 887 A.2d at 578 (quoting Reynolds, 715 F.2d at 103).

In Lyle, letters outlining the testimony, Kemp, the co-defendant wrote for two potential witnesses to give at trial written, id. at 429, were admitted against the defendant at his murder trial. Explicating the court's analysis in reversing his conviction for violation of the hearsay rule, this Court stated:

"The court found these letters to be hearsay, stating as follows:

"`Believing the alibi to be false, the prosecution obviously did not seek to introduce the letters in order to demonstrate the truth of the particular statements they contained. Rather, the government intended to have the jury infer from the statements that Kemp was attempting to obtain fabricated alibi testimony, an act that revealed a `guilty mind' on his part regarding the shootings. This guilty mind inference in turn invited the jury to infer Kemp's substantive guilt. Thus, in determining whether the letters constitute hearsay, we must decide whether the inferences that the government sought to elicit by introducing them should be included within the set of `assertions' that the letters make."

* * *

"`Although we consider the question of the proper classification of the letters exceedingly close, we find that the inferences they necessarily invite form an integral part of the letters. They were introduced because by inference they assert the proposition of fact that Kemp and Lyle committed the robbery and hence need an alibi. Accordingly, we conclude that the letters are hearsay.' [ Lyle, 720 F.2d] at 432-33 (citations omitted).'"

Stoddard, 389 Md. at 706-07, 887 A.2d at 579. Having set the foundation for what an implied assertion looks like and the manner in which this Court classifies it, the Stoddard Court turned to the facts before it and Jasmine's statement, "is Erik going to get me," noting:

"Contrary to the State's contention, the words are not relevant if offered merely to prove that Jasmine was afraid of Stoddard. Jasmine's fear of Stoddard is irrelevant unless it stems from a belief that she had seen Stoddard assault Calen. Although it is conceivable that Jasmine's fear, taken together with her presence during the relevant time frame, was circumstantial evidence that Jasmine witnessed Stoddard assault Calen, this conceptualization is a distinction without a difference. Jasmine's fear of Stoddard is relevant only if it is rational, i.e., only if it stems from a real-world condition or event. To rationally fear Erik Stoddard is to believe the proposition, `I have a reason to fear Erik Stoddard.' Jasmine's belief in this proposition is relevant only if the `reason' at issue is her having witnessed Erik assaulting Calen. Thus, in offering Jasmine's fear as evidence, the State implicitly would be offering Jasmine's belief in the proposition `I have a reason to fear Erik Stoddard and that reason is that I saw him assault Calen.'"

Id. at 690, 887 A.2d at 569. It further explicated:

"In order to accept the words `is Erik going to get me' as evidence that Jasmine witnessed Erik Stoddard assaulting Calen DiRubbo, the jury needed to make numerous inferences. It needed to infer first that Jasmine meant those words to convey a sincere inquiry as to whether Erik Stoddard was going to harm her. It needed to infer next that, by making this inquiry, Jasmine revealed unambiguously a belief that she had witnessed Stoddard assaulting Calen. It needed to infer further that Jasmine remembered accurately her perceptions of June 15, 2002. And it needed to infer finally that Jasmine's perceptions were correct at the moment she experienced them.

"In the absence of cross-examination, and particularly in light of Jasmine's age[], these inferences are largely untested and unsupportable. The jury had no information about the context in which Jasmine spoke these words, and hence little basis from which to conclude that she used `get' to mean `harm,' or that these words were spoken seriously and not in play. The jury had no information about other, unrelated reasons why Jasmine might have feared Stoddard. It had no information about Jasmine's ability to remember accurately past events, nor any information about the amount of time that had elapsed between Calen's death and Jasmine's utterance. It had no information about factors that would have affected Jasmine's perceptions during the alleged assault, such as distance, angle of view, obstructions, or Jasmine's cognitive ability to distinguish an assault from some other frightening but innocuous event."

Id., at 711-12, 887 A.2d at 582. (footnote omitted).

The ruling of the Stoddard Court was affirmed in Bernadyn v. State, 390 Md. at 11, 887 A.2d at 608 ("Our discussion and reasoning in Stoddard determines the outcome of this case."). In Bernadyn, defendant, Michael Bernadyn, was charged with and convicted of various drug offenses and maintaining a common nuisance. 390 Md. at 3, 887 A.2d at 603. Bernadyn asserted at trial that he did not reside at the home where, during the execution of a search and seizure warrant, the contraband and paraphernalia where found. Id. at 4, 887 A.2d at 604. To rebut that assertion, the State offered, over objection of defense counsel, an envelope, which also had been seized from the home during the search, from John Hopkins Bayview Physicians, which "contained] the language `Responsible party: Michael Bernadyn, Jr. 2024 Morgan Street, Edgewood, Maryland 21040.'" Id. at 4, 887 A.2d at 603-604. Concluding that "the medical bill seized by police . . . when used by the State to establish that Bernadyn lived at that address, constitutes inadmissible hearsay," id. at 3, 887 A.2d at 603, the Court reasoned:

"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 address, 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."

Id. at 11, 887 A.2d at 608. It, therefore, concluded:

"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.'"

Id.

This Court is not unique in its view that implied assertions are inadmissible hearsay. See Lyle v. Koehler, 720 F.2d 426; United States v. Reynolds, 715 F.2d 99; Antunes-Salgado v. Florida, 987 So.2d at 228; United States v. Palma-Ruedas, 121 F.3d at 857 ("While Quinones may not have offered the statement for its express meaning, he did offer it for the implied assertion that he had never met Avendano."); Stevens v. State, 642 So.2d 828. In United States v. McGlory, 968 F.2d 309 (3d Cir. 1992), the United States Court of Appeals for the Third Circuit, on review of four consolidated drug-related cases, id. at 314, addressed a similar issue when four defendants "objected to the admission of the notes seized from McGlory's trash or his residences." Id. at 331. Although the government asserted "the notes were offered as circumstantial evidence," id. at 332, similar to the majority in this case, Garner v. State, 414 Md. at 380-82, 995 A.2d at 699-700, the court was not persuaded. From the outset, the court expressed 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." McGlory, 968 F.2d at 332. The court concluded that the State's witness did "testif[y] as to the truth of the statements written on the notes," id. at 333, and that, therefore "these notes were hearsay and should not have been admitted unless they come within one of the exceptions to the hearsay rule." Id. Stoddard v. State and Bernadyn v. State, control the disposition of this case. When "[t]he probative value of the words [are] dependent]," Bernadyn, 390 Md. at 11, 887 A.2d at 608, on the truth of facts implied by the statement, it is inadmissable hearsay. The caller here posed a question: "Can I get a 40?" Whether that question is offered for the truth of the matter it asserts, expressly or impliedly, is, of course, dependent upon the meaning, express or implied, it conveys or was intended to convey. If certain "implications or inferences" are necessary to be made or drawn in order that the statement be probative of the proposition for which it is offered, then the "reasonable test is to ask whether the words would remain probative if it could be established that the declarant did not believe the factual proposition for which they are offered." Stoddard, 389 Md. at 703 n. 5, 887 A.2d at 577 n. 5.

Here, the State intended, by introduction of the question, "Can I get a 40?" to show that the petitioner was distributing cocaine. The statement alone does not have that effect. To be probative of that proposition, which it had to prove for the distribution prosecution to be successful, the statement had to relate to, be directed to, the petitioner. In addition to establishing that a "request[] to purchase cocaine," Garner v. State, 414 Md. at 388, 995 A.2d at 704, was made, the State first had to show that the statement was directed to the petitioner and that the petitioner sold cocaine. These "facts" could only be established by implying them from the fact that the declarant made the statement in a call to the petitioner's cell phone and the implications must be accepted as true. Only by believing both implied facts to be true does the statement, "Can I get a 40?" have the meaning and probative effect that the State intends, and needs. "Can I get a 40?," without those two assumptions, implied facts, even with the expert testimony that gives it meaning in the criminal context, would have no connection or relevance to the petitioner. Using the test proposed by the Stoddard Court, 389 Md. at 703 n. 5, 887 A.2d at 577 n. 5, if the declarant, the caller, did not believe those two assumptions to be true, then the State would have no reason to introduce the statement; the statement, in that event, as it relates to the petitioner, simply would be neither probative nor relevant.

The State intended to, and did indeed, introduce the statement for a particular purpose, to establish that the person on the phone wanted cocaine, which could be purchased upon request from the petitioner, who sold, or was selling, drugs. The latter two implied assertions are, when offered for their truth, hearsay, whose admission into evidence is inconsistent with this Court's previous holdings in Stoddard and Bernadyn, respectively, and impermissible under Md. Rule 5-801(c).

II. Waiver of Counsel

The petitioner asserts that, although the trial court permitted him to discharge his counsel, albeit after having found that he did not have a meritorious reason for doing so, thus requiring him to go to trial unrepresented, it failed to comply with Md. Rule 4-215(e)'s mandate that "it shall comply with subsections (a)(1)-(4) of this Rule if the docket or file does not reflect prior compliance." The State, in response, argues that counsel was never discharged. The majority agrees, holding, as did the Court of Special Appeals: "`The bottom line is that [Mr.] Anderson was never discharged as counsel for the [Petitioner] and that the provisions of Rule 4-215(a)(3), therefore, never came into play.'" Garner v. State, 414 Md. at 389, 995 A.2d at 704 (quoting Garner, 183 Md.App. at 132, 960 A.2d at 654).

This holding is belied by the transcript of the proceedings and by the docket entries. The transcript reflects that the petitioner responded, "yes, sir," in response to the trial court's question: "Are you going — do you want to discharge him, is that it?" To the petitioner's affirmative response, the court stated:

"All right. Would you like me to have him stay to be — sit next to you at the trial table to be on call if you need his help during the trial? What I'm saying is we are going to have a trial today."

Thus, the petitioner indicated a desire to discharge his counsel, and, although the petitioner eventually acquiesced in the court's suggestion that counsel "stay to be — sit next to [him] at the trial table . . . if [he] need[ed] help during the trial[,]" the trial court permitted him to do so. The docket entry so reflects: "Defendant wants to discharge attorney and requests continuance. Court finds defendant has right to proceed without counsel today and Mr. Anderson may advise."

The majority's conclusion that Anderson was never discharged also runs contrary to this Court's understanding of what standby counsel is. Standby counsel, we have held, "assist[s] a defendant's exercise of the right of self-representation, and . . . assist[s] `the court in maintaining some measure of control over the proceeding.'" Harris v. State, 344 Md. 497, 506, 687 A.2d 970, 974 (1997). This is consistent with the view of such counsel taken by the United States Supreme Court. It described standby counsel as one who aids "the accused if and when the accused requests help, and [is] available to represent the accused in the event that termination of the defendant's self-representation is necessary." Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562, 581 n. 46.

Harris v. State, 344 Md. 497, 687 A.2d 970 is instructive. Although the issue in Harris was whether the trial court could order the Office of the Public Defender to serve as standby counsel after the defendant had voluntarily and knowingly discharged counsel, id. at 499, 687 A.2d at 971, the manner in which the Court talks about standby counsel provides guidance on this issue. In Harris, the defendant in the underlying case, Bruce W. Koenig, wished to discharge his counsel. He specifically asked to "`proceed as I wanted to, in what [counsel] described as a [']hybrid defense.'" Id. at 501 n. 2, 687 A.2d at 972 n. 2. The Harris Court, citing Parren v. State, 309 Md. 260, 265, 523 A.2d, 597, 599 (1987), explained hybrid representation as:

"`encompassing both the participation of the defendant in the conduct of the trial when he had not effectively waived the assistance of an attorney to defend him, and the participation by an attorney in the conduct of the trial when the defendant was proceeding pro se.'"

Harris, 344 Md. at 501 n. 2, 687 A.2d at 972 n. 2. Accordingly, the trial court explained to the defendant that hybrid representation is not a recognized type of representation in Maryland, given that "`there are only two types of representation constitutionally guaranteed — representation by counsel and representation pro se — and they are mutually exclusive.'" Id. (quoting Parren, 309 Md. at 265, 523 A.2d at 599). While the defendant "persisted in his intention to discharge counsel," Harris, 344 Md. at 501, 687 A.2d at 972, he also requested the trial court to "appoint standby counsel — `someone who would sit with him, provide him legal advice,'" id. at 501-02, 687 A.2d at 972, although the defendant, himself, "`would drive the case,'" id. at 502, 687 A.2d at 972, and "`determine what [is] to be done.'" Id. In order to provide the defendant standby counsel, the trial court made a finding that "Koenig's `motion to discharge counsel is freely, voluntarily and understandingly made' and that he `knowingly and intelligently' elected to represent himself, `with the assistance of standby counsel.'" Id. The trial court then "issued an order striking counsel's appearance as counsel for Koenig, but directing OPD to provide standby counsel for Koenig." Id.

In order for a lawyer, who once represented the defendant, to serve as his or her standby counsel, the trial court must first discharge the lawyer as counsel. Once discharged, the lawyer is no longer the defendant's attorney; the lawyer remains in the case only for the purpose of assisting the defendant as he or she needs it. Parren and its progeny make clear that, when a defendant has been afforded the opportunity to have standby counsel, the defendant remains the "captain of the ship." Parren, 309 Md. at 264, 523 A.2d at 599. Given this Court's firm and consistent stance that "the right to counsel and the right to defend pro se cannot be asserted simultaneously," id., counsel's discharge is a prerequisite to the lawyer later serving as standby counsel.

Here, Anderson was discharged. The trial court then asked the petitioner if he "would . . . like" Anderson to "stay . . . sit next to [him] at the trial table to be on call if [the petitioner] need[ed] [Anderson's] help during the trial." The petitioner maintained that he wanted to discharge Anderson, stating: "Is there any kind of way I can discharge him from representing me?" After the trial court assured him that he could, but made clear to the petitioner that the trial would continue, and he would have to represent himself, the petitioner acquiesced and permitted Anderson to serve as standby counsel, stating "[Anderson] can sit there." The Court responded: "Okay. Thank you. Go ahead." As indicated, and as we have seen, the docket entries support the discharge, with Anderson as stand-by counsel.

It is true that, immediately upon discharging counsel, Anderson assumed control of the case and the petitioner did not object. That the petitioner may have permitted counsel to seize control has relevance with regard to the petitioner's right, subsequently, to complain about the decisions counsel may have made in his behalf; it has absolutely no relevance on the issue of whether the trial court failed to meet its responsibility to comply with the Rules.

Judge HARRELL joins in the views expressed in Part I of this dissenting opinion.