Faulkner v. State

ROSALYN B. BELL, Judge. Alvin Faulkner was convicted by a jury in the Circuit Court for Montgomery County of attempted first degree murder, attempted second degree murder, robbery with a deadly weapon and use of a handgun. He was sentenced to life, 30 years, 20 years and 20 years respectively—concurrently with each other but consecutive to a 25-year term of incarceration imposed in another case. Ten issues were raised on appeal.

Since we will reverse on the last issue raised, we will not consider all. In the interest of judicial economy, however, we will comment on some of the other issues in the event there is a retrial. A Safeway grocery store in Montgomery County was robbed on four occasions: April 19, 1985; October 18, 1985; November 15, 1985; 1 and January 10, 1986. In this case, Faulkner was on trial for the January 10 robbery.

Earl Carter, a Safeway manager, was shot at the January 10 robbery. The State contended that Faulkner committed all of the robberies and that the evidence of the other three should be admissible in the trial of the January 10 robbery under the identity exception to the rule excluding evidence ⁵¹⁵ of other crimes. At trial, the State adduced evidence only of the January 10 robbery and the November 15 robbery. HEARSAY On appeal, appellant argues that the trial court erred in admitting hearsay evidence.

At issue is Michael Edwards’s 2 testimony about a conversation he had with another witness, appellant’s brother, Larry Faulkner. Appellant argues that Edwards’ testimony about the conversation was inadmissible hearsay. In response, the State claims that the testimony was not hearsay as the testimony was offered to prove that the conversation occurred and to impeach Larry. We agree with appellant and, therefore, we will reverse.

At trial, the State asked Larry whether he recalled discussing the Safeway robberies with Edwards in early 1986. Larry initially responded that he did not recall the discussion. He was then asked whether he told Edwards that, on the evening of the January 10 robbery, appellant came home with a wad of money and wet clothes and then burned the clothes. 3 Larry answered that the discussion “was not like that,” and that he did not remember telling Edwards that appellant burned his clothes when he came home. The court then asked Larry whether he ever told Edwards that he observed appellant burn his clothes.

This time Larry replied in the affirmative. Larry also stated that he did not recall discussing with Edwards appellant’s possession of some money. Edwards was called and testified that he did talk with Larry in early 1986. According to Edwards, they discussed appellant and the money and wet clothes.

Defense counsel ⁵¹⁶ objected to Edwards’ testimony as hearsay. The Assistant State’s Attorney replied: “I am not offering it as an exception to the—I am offering it for prior inconsistent statements and impeachment.” Defense counsel objected despite the representation by the State that the statement was “being offered for truthfulness, and not merely to impeach him.” Without further urging, the trial judge announced: “I am going to take a quantum leap here, and I think that given the circumstances of how and when this statement was made, that it would be probative for the Jury to hear what was said to this man within a short period of time of the commission of the robbery by one of the brothers of the Defendant in this case. It would be probative, and would be helpful to the trier of fact, and, therefore, I am going to allow it in, and we will see what somebody else says to me at some later time about it. “[Defense Counsel]: Is the Court going to let it in for impeachment, or for substantive value, and if it is for impeachment, I would like the cautionary instruction. “THE COURT: Well, I am going to allow it because— for the substance of what was said, and I am not going to give the cautionary instruction, so the record is clear on that. Okay?” The State, faced with what was probably an unexpected bonus, replied “okay,” and defense counsel asked for a continuing objection.

No cautionary instruction was given. In order to resolve the issue before us, we must look to the law of hearsay evidence. Hearsay is an out-of-court assertion offered in court for the truth of the matter asserted and is generally inadmissible. Ali v. State, 67 Md.App. 339, 343 , 507 A.2d 648 (1986).

An out-of-court statement may not be hearsay if offered for a limited permissible purpose and not for the truth of the matter asserted. Two of the permissible purposes are: ⁵¹⁷ 1) to prove that a statement—known as a verbal act— was made, Best v. State, 71 Md.App. 422, 432 [ 526 A.2d 75 ] (1987); McLain, Maryland Evidence, § 801.7 (1987); and 2) to impeach a witness, Sun Cab Co. v. Cusick, 209 Md. 354, 361-62 [ 121 A.2d 188 ] (1956); Ali, 67 Md.App. at 343 , [ 507 A.2d 648 ]; McLain, Maryland Evidence, § 801.12 (1987). On appeal, the State argues, as it did at trial, that Edwards’s testimony is not hearsay because the testimony was offered for the above two limited purposes and not to prove the truth of the matter asserted therein. Although the State offered the testimony for the limited purposes mentioned, the trial court, sua sponte, admitted the testimony as substantive evidence and gave no instruction limiting the purpose of the testimony.

Edwards’s testimony of the conversation he had with Larry, admitted for the truth of the matter asserted, was hearsay and did not meet with either of the proffered exceptions. For this reason, we reverse. We will address several of the remaining issues as they may recur during a retrial. DISCLOSURE OF INFORMANTS’ NAMES Prior to trial, appellant requested that the trial court require the State to disclose the identity of individuals who had provided the police with information which connected appellant to the Safeway robberies.

Defense counsel contended that the identity of these informants—Crime Solvers’ informants’ numbers 1719 and 2141, and a traditional confidential informant—was necessary to appellant’s defense preparation. Defense counsel proffered that each informant had information which was relevant and helpful to appellant’s defense. Counsel contends that number 1719 had knowledge of how the crimes were committed and of the identities of the perpetrators, and number 2141 had information relating to appellant’s activities on one of the ⁵¹⁸ nights in question. Finally, defense counsel claimed that the traditional confidential informant had information relating to appellant’s possession of a gun of a different caliber than the gun used in the robberies.

According to defense counsel, that information was relevant and helpful to appellant’s defense. The State contended that the three informants were not accessories or participants in the crimes or direct witnesses to them. Thus, the State argued that disclosure of the informants’ names was not required. —The Informants— The Montgomery County Crime Solvers program is a cooperative venture of the Montgomery County Police Department and a group of private citizens. The program requests that the public provide it with information concerning crimes.

Anonymous and confidential telephone calls are received from informants. The informants report facts related to crimes, including the alleged identities and whereabouts of the perpetrators. Rewards are offered to informants when they provide information which leads to an arrest or an indictment. Rewards were made in this case.

The State contends that confidentiality and anonymity are essential to the successful operation of the Crime Solvers program since informants give information under the representation that their identities will remain anonymous. A traditional informant, like a Crime Solvers’ informant, also provides the police with confidential and anonymous information about crimes. The traditional informant, however, usually is not responding to the Crimes Solvers’ request for information but, instead, is voluntarily informing the police about facts he or she knows about a crime. Confidentiality and anonymity are no less important to assure the continued assistance of traditional informants than that of Crime Solvers’ informants.

If the State is unable to preserve the confidentiality and anonymity of informants, many individuals who possess information relating to crimes will be unwilling to provide the police with the information in the future. Moreover, if anonymity is breached, informants’ ⁵¹⁹ lives could be endangered by revenge-seeking criminals. In sum, without anonymity and confidentiality, the public would not be as willing to give police information about crimes, and additionally, the lives of informants could be endangered. The State was understandably opposed to disclosure of the informants’ identities.

After the court entertained the proffers by defense counsel concerning appellant’s need for disclosure, the court ruled that the State was not required to disclose the informants’ names. In appellant’s view, a proper exercise of discretion would have resulted in disclosure. We affirm the ruling of the trial court. We will explain. —Disclosure— We recently summarized the law applicable to the State’s privilege to withhold disclosure of an informant’s identity as follows: “ ‘The State is privileged to withhold disclosure of an informant’s identity to further and protect the public’s interest in effective law enforcement.’ The privilege is not absolute however and its exercise is a matter which is largely left to the sound discretion of the trial court, which judicial discretion does not have to be exercised until and unless the defense properly demands that an informant’s identity be disclosed, and shows by a preponderance of the evidence that information concerning the informant is necessary and relevant to a fair defense.

The burden then shifts to the State to rebut by clear and convincing evidence the showing made by the defense. It is when the case is in this posture that the trial court must ‘... balanc[e] the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’ ⁵²⁰ Howard v. Smith, 66 Md.App. 273, 285-86 , 503 A.2d 739 , cert. denied, 306 Md. 288 , 508 A.2d 488 (1986) (citations omitted). In Howard, 66 Md.App. at 286 , 503 A.2d 739 , we also said: “Where the informant is a ‘tipster’, and not a participant, accessory, or witness to the crime, disclosure of his identity is not required.

On the other hand, where the informant participates in the crime or other activities associated with the crime, evidence of which is introduced into evidence or utilized by the trier of fact in deciding the case, it is reversible error to fail to disclose the informant’s identity.” (Citations omitted.) Appellant correctly points out that relevance and helpfulness to the defense are factors to be considered in the determination of whether to require disclosure. Appellant contends that the trial court did not properly consider whether disclosure of the informants’ names would have been relevant and helpful to his defense. Our review of the proceedings reveals otherwise. The trial court allowed defense counsel the opportunity to establish the reasons requiring disclosure.

Appellant alleged that Crime Solvers’ informant number 1719 had detailed information regarding the crime. That information directly inculpated appellant in the robbery for which he was convicted in the present case. At the hearing on the motion, defense counsel stated that informant number 1719 had obtained the information from a State’s witness, Brian Corkery. Defense counsel also said that the informant could be used to impeach Corkery on his alleged statement to the informant that Tom Peavy had been the wheelman in the January 10 robbery.

We do not see how the identity of informant number 1719 would have aided the defense. To impeach Corkery by cross-examining him about what might be a prior inconsistent statement that Peavy pulled the January robbery with appellant would strengthen the State’s case that appellant robbed the Safeway in January. Actually, when Corkery testified at trial, he did not directly implicate appellant in the January robbery. ⁵²¹ Crime Solvers’ informant number 2141 stated that appellant went to Russ Tuddle’s house at 3:00 a.m., the morning after the robbery. That information was not relevant to the issue of whether appellant was the masked robber at the Safeway the prior evening at approximately 9:30 p.m.

Finally, the information obtained from the confidential informant was that in January Larry Faulkner had asked appellant to return to him a .45 caliber handgun which had been used in a bank job. That information as such was not exculpatory and merely suggested that appellant and/or Larry had committed a crime, possibly not even the one involved in the present case. Since the information was allegedly originally obtained from appellant and his brother, defense counsel was obviously able to pursue the matter through them. At the conclusion of the hearing, the court determined that, since the confidential informants were not participants in or accessories to the crimes or intended witnesses, disclosure was not required, absent additional evidence.

Appellant did not show by a preponderance of the evidence that the information was necessary and relevant to a fair defense. Howard, 66 Md.App. at 285 , 503 A.2d 739 . We hold there was no error. EVIDENCE OF ANOTHER CRIME Appellant contends that the trial court erroneously admitted evidence of another crime.

He asserts that the evidence was unnecessary and that the potential for prejudice greatly outweighed the probative value. Appellant argues that the State had other identification evidence which connected him to the January 10 robbery and, hence, did not need the November 15 robbery evidence. Generally, evidence of a defendant’s prior criminal acts may not be introduced to prove that he is guilty of the offense for which