Henderson v. State

Anderson, J., delivered the opinion of the Court. Appellant, Nelson Leroy Henderson, was convicted along with Robert Hyle on February 8, 1971, of conspiracy to violate the Controlled Dangerous Substance Laws and possession of dilaudid, an opium derivative and a controlled dangerous substance. The trial was held in the Criminal Court of Baltimore, Judge Charles D. Harris presiding without a jury. The appellant was sentenced to the jurisdiction of the Department of Correctional Services for a period of three (3) years in each conviction, the terms to run concurrently.

From these convictions this appeal was taken. On appeal the appellant contends that: (1) The trial court erred in admitting into evidence the hearsay statements of Eddie ³⁸⁶ Bourne and David Rutherford, two alleged co-conspirators. (2) The evidence was insufficient to support the appellant’s convictions. I Appellant first challenges the admission in evidence of certain statements made by the State’s chief witness, Detective Paul Kelly, Narcotic Unit, Baltimore City Police Department.

The statements made were hearsay as they were extra-judicial statements offered in evidence for the truth of the matter asserted therein and were admitted over objection. The question is whether the statements were admissible as exceptions to the hearsay rule. The statements made by Detective Kelly and objected to are as follows: “Q. What else did he [David Rutherford] say now? “A. He told me that he was going to cop something [buy narcotics] and he asked me if I wanted anything, and he would cop for me. I said, yes, I was looking for some things, meaning narcotics, and he stated, ‘Okay.

I’ll cop for you for approximately three dollars.’ I agreed. At this time he instructed me to go across the street to Eddie Bourne’s car, and at Eddie Bourne’s car we had a conversation. He asked me if I had been down there, how many times, you know, to cop.” * * * “Q. What else was said ? “A. He [Rutherford] asked me if I was going to cop with him, and I told him, yes. At this time he asked what I was doing, and I said, smack, meaning heroin.

He said they were going to get dilaudid. I said, okay. At this time Eddie and David Rutherford came to the car. He called both in the car.

He ³⁸⁷ [Rutherford] said, ‘Okay, I got three things to get.’ ” * * * ‘A. We left in the vehicle, and proceeded to a place on Preston near Charles. We remained there for a few minutes, and David Rutherford got out of the car and walked around the corner, and remained there for a few minutes, and came back. At this time he got back into the car, and he stated, ‘The man isn’t there yet. He’s up the street and bagging.

He said he won’t be done until midnight.’ ” * * * ‘Q. What happened next? ‘A. Rutherford asked me, did I still want to cop some D [dilaudid], and I told him, yes. He said Eddie and Nelson got the D.” * * * ‘A. Rutherford said that they could find Mr. Henderson out on 36th Street, and we could get some D from him, either that or at the apartment.” * * * Q. What, if anything, was said ? A. David Rutherford went into the first floor entrance on the building, that I stated was on the northeast corner. He came out a few minutes later, and he looked up at the window, and he said, ‘It’s Dave.’ A voice came out of the building, saying, ‘Go away.

Go away.’ He said, ‘Tell Neis it’s Dave.’ The voice again stated, ‘Go away.’ At this time he entered the building. He came back to the car, and he told me that, ‘Nelson and Bobby are up there firing. They don’t want to be bugged. We’ll have to wait.’ ” * * * ³⁸⁸ “Q. What, if anything, did this Rutherford say to you before you followed the automobile? “A. David Rutherford stated, ‘Nelson’s got D. Let’s go down.’ And Eddie turned back, and he said ‘You talk too much when you’re high on D.’ ” We think it important at this point to note the trial court stated that it considered the hearsay testimony in passing on the guilt of the appellant only on the conspiracy charge and that the hearsay evidence was not considered on the charge of possession.

The rules concerning the admissibility of such hearsay evidence where the crime of conspiracy is involved have been set forth by this Court in Johnson v. State, 9 Md. App. 327 at 340 and 341: “ ‘When several persons are proved to have unlawfully conspired to commit a crime, the acts and declarations of any conspirator during such conspiracy, and in furtherance thereof, are admissible as substantive evidence against any co-conspirator on trial.’ Wharton’s Criminal Evidence (12th Ed.) Vol. II, Sec. 416. The Court of Appeals in Lawrence v. State, 103 Md. 17 , adopted this rule of evidence but qualified it by stating at 103 Md. 20 , ‘a foundation must first be laid, by proof, sufficient in the opinion of the judge, to establish, prima facie, the fact of conspiracy between the parties . . .’ See also Underhill, Criminal Evidence (5th Ed.), Sec. 861. ‘[T]he gist of a conspiracy is the entering into of the illegal scheme or design, and once this occurs, the crime is complete without the doing of an overt act. Greenwald v. State, 221 Md. 245 .

The testimony of an accomplice is clearly admissible to prove a conspiracy, Foster v. State, 230 Md. 256 , and the conspiracy may also be shown by circumstantial evidence from which an inference of common ³⁸⁹ design may be drawn . . .’ Price v. State, 4 Md. App. 701 at 704 . \ . . When once the conspiracy or combination is established, the act or declaration of one conspirator or accomplice in the prosecution of the enterprise is considered the act or declaration of all, and therefore imputable to all. All are deemed to assent to, or command, what is said or done by any one of them in furtherance of the common object. sfc ^ ^ ‘The declarations may be written, oral, or both. They may be admitted to prove any point, such as the existence of the conspiracy, the course of events in its inception and operation . . . the preparation for the commission of the crime . . . , the relations of the parties, . . . and the acts done to conceal the offense.

Wharton, supra, Sec. 416. See also Underhill, supra, Sec. 861. ❖ * * ‘The theory for the admission of such evidence is that persons who conspire to commit a crime, and who do commit a crime, are as much concerned, after the crime, with their freedom from apprehension, as they were concerned, before the crime, with its commission: . . Wharton, supra, Sec. 430. See also Underhill, supra, Secs. 179 and 864.” In the instant case, prior to the statements made by Detective Kelly, which the appellant! challenges, Kelly testified that on October 1, 1970, he was working in an undercover capacity and that he met with Bourne and Rutherford in Bourne’s car at Elm and 36th Streets.

The ear later proceeded with Kelly, Bourne and Rutherford to an apartment at Chestnut Avenue and Keswick Road. Rutherford went in and Kelly and Bourne stayed outside. Kelly then saw Rutherford come back out of the apartment and get back into the car. Robert Hyle, a co- ³⁹⁰ defendant, and the appellant then exited the apartment, Kelly testified.

Kelly then testified that he saw Bourne give the appellant an amount of U. S. currency,