Jones v. State

GILBERT, Chief Judge. Jeffrey Douglas Jones, then a trooper in the Maryland State Police, was convicted by a jury in the Circuit Court for Harford County of a third degree sexual offense, assault and battery, and two counts of misconduct in office. During the course of the trial, the prosecution sought to introduce certain evidence which it characterized as an exception to the hearsay rule. That evidence was the testimony of Trooper First Class William Byrd that at or about the time of the incident involving Jones was alleged to have occurred, Byrd heard two “truckers” talking on the CB radio frequency.

Byrd did not know the identity of either “trucker,” nor was any effort ever made to locate one or the other. Despite the fact that Byrd was unable to say that the conversation he overheard concerned Jones, he was allowed to testify as to the content of that broadcast. In permitting the testimony of Byrd, the trial judge opined: ¹²³ “[I]f the State chooses to let this evidence in, and if there’s a conviction, you’re inviting — we are all inviting reversal, but I think that there’s much to be said on either side of the case.... I think this is one of the odd cases not covered by ... one of the usual pigeonhole situations and that it’s got sufficient reliability to go to the jury, but I could very well be held to be wrong and if the State wants to put in, they do so at their ... [appellate] peril.” We agree that reversal was invited, and we reverse.

We now explain why. The Facts While travelling south on Interstate 95 on October 15, 1983, Mrs. Odessa King was stopped by Trooper Jones. Jones informed Mrs. King that she did not have a tag light on her vehicle. He requested to see her license and automobile registration card.

King told Jones that she only had a New Jersey learner’s permit, but that her passenger, Willie Hooks, was a licensed driver in New York, and the car was registered in Hook’s name. After some discussion, Jones instructed Mrs. King to accompany him to the police car. Mrs. King testified that she followed Jones to his car where, after a conversation regarding the amount of the fine involved, he handcuffed her, unzipped her pants and inserted one of his fingers into her vagina. As a result of Mrs. King’s protestation, Jones uncuffed her and told her she was free to leave.

Mrs. King told the jurors that as soon as she alit from Jones’ car, he turned off the vehicle’s lights and sped away. Mrs. King and Hooks pursued him in their own car, but they were unable to catch Jones. After abandoning the chase, Mrs. King reported the incident to the police and identified Jones as the culprit. Seemingly to bolster Mrs. King’s testimony, the State produced Tfc.

William Byrd. Byrd, over strenuous objection, testified that shortly before he received a radio report about the King incident, he overheard two CB radio broadcasters describing a chase of a “Smokey Bear” by a small car. ¹²⁴ When asked to repeat exactly what he heard, Byrd responded: “On the CB radio in the state police car, Channel 19, I overheard a trucker on the CB said that it was Smokey the Bear southbound in a police car with no lights on and right after that another trucker on Channel 19 advised that there was a little car just took off behind Smokey the Bear trying to catch him at a high rate of speed.” Byrd said that Channel 19 was a “trucker’s channel,” 1 and that “Smokey Bear” meant “the State Police.” 2 The Issue The question before us is not whether Byrd’s testimony was hearsay, but rather whether it was admissible as an exception to the hearsay rule. The Law Generally speaking, the hearsay rule proscribes the use of testimony unless the declarant is open to cross-examination or there is an opportunity for cross-examination. 5 Wigmore, Evidence § 1362 (Chadbourn rev. 1974). As with all general rules, the hearsay rule is not without its exceptions — statements or records that experience has taught should be admissible because of their attendant reliability or trustworthiness.

Included in the almost innumerable categories of exceptions are: dying declarations, statements against interest, statements of family history and pedigree, entries in the normal course of business, spontaneous exclamations under excitement, attesting witnesses’ statements, statements of present sense impression, ¹²⁵ statements of physical sensation and mental condition. See 5 Wigmore, Evidence § 1426 (Chadbourn rev. 1974). Although the State prosecutor, with hubris, endeavored to justify the admission of Byrd’s testimony as falling within the present sense impression exception, it clearly does not fit that mold. The present sense impression exception is the name given to unexcited statements about events occurring in the presence of