Graves v. State

KARWACKI, Judge. Petitioner, Michael Graves (Graves), was charged with assault upon Derek Jones (Derek) and David Jones (David) and attempted robbery of Derek with a dangerous and deadly weapon. Graves pleaded not guilty and prayed a jury trial in the Circuit Court for Baltimore City. The jury convicted Graves of both assault charges but acquitted him of attempted robbery.

Graves was sentenced to ten years imprisonment, all of which was suspended, for assaulting Derek; to a consecutive ten years imprisonment, all but five years of which was ³³ suspended, for assaulting David; and he was placed on five years probation, to commence upon his release from incarceration. Graves appealed to the Court of Special Appeals, raising numerous issues, including the following two which are relevant to our review: (1) whether the trial court erred in denying Graves’ motion to strike the appearance of the Office of the Public Defender due to a conflict of interest; and (2) whether the trial court erred in admitting Officer John Reynolds’ testimony and his record of extrajudicial statements of Kenneth Trusty. The intermediate appellate court remanded the case to the trial court as to the first issue and affirmed the judgments on all the remaining issues presented. Graves v. State, 94 Md.App. 649 , 619 A.2d 123 (1993).

We granted Graves’ petition for certiorari on the above two issues. Because we shall reverse the judgments on the evidentiary issue and remand the case to the circuit court for a new trial, we need not address the conflict of interest issue. 1 ³⁴ I At approximately 6:15 a.m. on May 28, 1991, Derek was sitting on the steps of a store, waiting for a bus at the corner of Chester and Madison Streets in Baltimore City. At that time, Derek noticed two men walk past him. About two minutes later, the men returned and stood in front of him.

One of the men pulled out a gun and said, “Don’t move.” Derek Jones’ father, David Jones, witnessed the incident and crossed the street toward Derek. David “asked what the trouble was.” When the two men looked at David, Derek pushed the gun away and ran down Chester Street. The two assailants then walked down Madison Street. Both Derek and David called the police.

The police arrived at Derek’s house three to five minutes later and drove Derek through the neighborhood looking for the suspects. Derek told the police that one man wore light blue shorts and the man with the gun wore red shorts and a white shirt. Later that morning the police arrested Kenneth Trusty (Trusty), who told the arresting officer, John Reynolds, that Graves had been his accomplice. Derek identified Trusty as the man who wore the light blue shorts.

Based on this information, the police prepared a photographic array which was shown to Derek later that same day. Derek identified the photograph of Graves as that of the gunman. At trial, both Derek and David identified Graves as the gunman. Nevertheless, the only witness called by Graves at trial, the assistant public defender who had represented him at a preliminary hearing in the District Court of Maryland in the instant case, testified that at that hearing neither Derek nor David recognized Graves although both had a good opportunity to view him in the courtroom. ³⁵ Trusty was not called as a witness to testify against Graves.

Instead, over Graves’ objection the trial court permitted Officer Reynolds to testify on direct examination that when Trusty was arrested he had told him the other individual involved in the attempted robbery of Derek was Graves. Officer Reynolds also testified that when he received that information he wrote Graves’ name in a small notebook that he used to record details of his police activities. After testimony in which Reynolds described in detail how he used the notebook in relation to his work, the trial court admitted the notebook into evidence. II At Graves’ trial, Officer Reynolds testified as to the events that immediately followed the apprehension of Trusty.

The following direct examination ensued: “Q [Prosecutor]: Did you have an opportunity to talk to [Trusty]? A [Reynolds]: Yes. Q And about what did you talk to him? A About the other individual.

Q Which other individual? A The one that was still at large. Q Did he give you a name — ? MS.

SHELTON: Objection. THE COURT: Overruled. A Yes. He said his name was Michael Graves.

Q What did you do with the name? A I recorded it in my small — I carry a small notebook with each date of when I work and my car number and I recorded the name. MS. SHELTON: Objection.” After the State moved to admit the notebook into evidence, the court requested defense counsel to state the reasons for her objection.

She explained: ³⁶ “These are his personal notes. It’s not quite in the normal course of business. This doesn’t reflected [sic]— necessarily for police officers on duty to keep this particular type of report and notebook. These are his personal notes.

It’s just a name there, no other identification. This is just a name he jots down. “I don’t think this is kept during the course of business. This a personal book. The — have an opportunity to ask ' questions about this book.

I just don’t think that’s considered a business record for the purposes of having it admitted at this point into evidence.” The State proffered that “there’s nothing personal about it. It’s the book that he keeps in conjunction with his work. Those are his records that he keeps.” The court then admitted the entire notebook into evidence. Graves contends that the trial court erred in admitting oral and written hearsay evidence, violative of his right to confront an adverse witness, when the court: (1) allowed Officer Reynolds’ hearsay testimony to the effect that Trusty said Graves was his accomplice; and (2) admitted into evidence Officer Reynolds’ notebook where the officer had recorded Graves’ name when Trusty told the officer that Graves was his accomplice.

Graves takes exception to the testimony of Officer Reynolds, wherein Reynolds testified that Trusty, when arrested, had named Graves as his accomplice. Graves claims that this testimony is inadmissible because it contains a statement made by an out-of-court declarant, offered to prove the truth of the matter asserted. 2 Graves objects to the admission ³⁷ of the notebook because the notebook contains essentially the same hearsay in written form. In answer, the State maintains preliminarily that Graves’ objection to the admission of written and oral hearsay was preserved for appeal only insofar as it was based on the business records exception of Maryland Code (1974, 1989 Repl.Vol.) § 10-101 of the Courts & Judicial Proceedings Article. Next, even if the other grounds were preserved for review, the State asserts that the evidence at issue is not hearsay because it was not admitted for the truth of the matter asserted, but rather, was properly admitted for the limited purpose of showing how the police came to assemble a photographic array containing Graves’ picture.

Finally, the State claims that even if found to be inadmissible hearsay, the admission of this evidence was harmless error, given the two victims’ unequivocal identifications of Graves. On the preservation issue, the Court of Special Appeals held that “[t]he only issue properly before this Court is whether Officer Reynolds’ oral and written statements were admissible under the ‘business record’ exception to the hearsay rule.” 94 Md.App. at 677 , 619 A.2d at 136 . We disagree in part. Defense counsel made a general objection during Officer Reynolds’ hearsay testimony, prior to the introduction of the officer’s notebook.

Hence, all grounds were preserved as to that testimony. Rule 4-323(a) provides in pertinent part: “The grounds for the objection need not be stated unless the court, at the request of a party or on its own initiative, so directs. The court shall rule upon the objection promptly.” See Ali v. State, 314 Md. at 306, 550 A.2d at 930 (“when the trial court does not request a statement of the grounds for an ³⁸ objection, a general objection is sufficient to preserve all grounds which may exist.”) III Graves objects to the introduction of the evidence in question on both state evidentiary grounds and constitutional grounds. Because we shall hold that the trial court committed reversible error in admitting the extrajudicial statements under our law of evidence, we will not address the petitioner’s contentions based upon the Confrontation Clauses of the Sixth Amendment to the Constitution of the United States and Article 21 of the Maryland Declaration of Rights.

But see Simmons v. State, 333 Md. 547 , 636 A.2d 463 (1994). It is well established that a relevant extrajudicial statement is admissible as nonhearsay when it is offered for the purpose of showing that a person relied on and acted upon the statement and is not introduced for the purpose of showing that the facts asserted in the statement are true. Jones v. State, 310 Md. 569, 588 , 530 A.2d 743, 752 (1987), vacated on other grounds, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 (1988); Greenwald v. State, 221 Md. 245, 256 , 157 A.2d 119, 125 , cert. denied, 363 U.S. 721 , 80 S.Ct. 1599 , 4 L.Ed.2d 1521 (1960); Tribull v. Tribull, 208 Md. 490, 497-98 , 119 A.2d 399, 403 (1956); Rosenberg v. State, 164 Md. 473, 477 , 165 A. 306, 307 (1933); Harford Nat. Bank v. Rutledge, 124 Md. 46, 58 , 91 A. 790, 795 (1914); Mertens v. Mueller, 122 Md. 313, 316 , 89 A. 613, 615 (1914); Eareckson v. Rogers, 112 Md. 160, 168 , 75 A. 513, 516-17 (1910); 2 McCormick on Evidence § 249, at 103 (John W. Strong ed., 4th ed. 1992); 6 L. McLain, Maryland Evidence § 801.9 (1987).

One of the frequent applications of the general rule is found in the proper admission in criminal cases of extrajudicial statements relied upon by the police which are relevant on issues of probable cause, lawfulness of arrest and search and seizure where evidence is offered that was obtained as a result of the search for evidence. Farrow v. State, 233 Md. 526, 532-33 , 197 A.2d 434, 437-38 (1964). Although such extrajudicial statements are relevant to the legal issue which is presented to the trial judge as to whether ³⁹ such evidence is admissible, the probative value of that evidence must be weighed against its undue prejudice to the defendant in determining its admissibility before the trier of the fact, either trial judge or jury, on the question of guilt or innocence. Accordingly, we observed in Farrow : “We note that in many cases coming before this Court where the lawfulness of an arrest and of a search incidental thereto are in issue, direct evidence to show the basis upon which the arresting officers acted either is not offered at all, or is alluded to guardedly as ‘information received’ or in some other and equally uninformative manner (doubtless designed to avoid an objection that it is hearsay), or is actually excluded as hearsay.

On the question of the guilt or innocence of the defendant it clearly is hearsay and hence is inadmissible; but on the issues of probable cause and the lawfulness of arrest and of the admissibility of evidence obtained through any search made in connection with the arrest, such testimony, even if hearsay, is directly relevant and is admissible. Therefore, the determination of the admissibility of evidence which is dependent upon the lawfulness of an arrest should be made by the trial judge as a preliminary matter quite apart, of course, from the question of the guilt or innocence of the accused; and if the case is being tried before a jury, such a matter should be heard out of the presence of the jury. Such a question may be raised, before trial by a motion to exclude any evidence claimed to have been improperly obtained.” Id. Professor McCormick has likewise said: “In criminal