Parker v. State

ADKINS, Judge. This case illustrates the risk inherent in admitting an informant’s statement implicating the defendant through the testimony of a police officer, purportedly for a non-hearsay purpose. The trial court allowed a police detective to testify at a ⁴³¹ jury trial that he received a tip from a confidential informant that a black male wearing a blue baseball cap and a black hooded sweatshirt was selling heroin at a particular intersection. Appellant Kelvin Parker was convicted by a jury of possession of heroin and sentenced to four years imprisonment.

We shall hold that the testimony was inadmissible hearsay because it contained too much specific information about the defendant and his criminal activity to be justified by the proffered non-hearsay purpose of establishing why the detective was at the intersection. Because its admission into evidence was not harmless, we shall reverse the judgment below and remand the case for new trial. FACTS AND LEGAL PROCEEDINGS On the morning of November 2, 2006 at approximately 10:30, Detective David McGowan of the Baltimore City Police Department was working in plain clothes in an unmarked vehicle near the intersection of Carey and Laurens Streets. McGowan described the area as “an open air drug market” and a “heroin shop.” He said that he was at the location because of a telephone call he had received from one of his registered confidential informants.

McGowan testified, over Parker’s objection, that the informant told him that a black male wearing a blue baseball cap and black hooded sweatshirt was “at the corner of Carey and Laurens selling heroin from his person, meaning the drugs were on him.” McGowan related that once he arrived in the area, he began making observations from a covert location “[ajbout a half a city block” from the corner of Carey and Laurens. He observed a black male wearing a blue baseball cap and a black hooded sweatshirt — later identified as Mr. Parker — walking around at the intersection of Carey and Laurens. McGowan indicated that he observed Parker for twenty to thirty minutes. He watched Parker walk into a corner liquor store and “within a couple of seconds two unknown males followed him into the liquor store.” The two unknown individuals were inside the liquor store for “maybe five to ten seconds” and then walked out empty-handed and left the area. ⁴³² McGowan indicated that before these two men entered, he had seen “about four to five other individuals walk in the store” and “walk right back out with no packages in hand.” McGowan explained that based upon his experience, “individuals who are engaged in illegal narcotics activity will utilize these corner stores, these Chinese stores, these carryouts, whatever they might be, ... to conceal what they’re doing[.]” He then expressed his expert opinion that “Mr. Parker was engaged in illegal narcotic activity.” According to McGowan, Parker walked out of the store and walked westbound on Laurens Street.

McGowan lost sight of Parker for a brief period, but then saw Parker by the Capital Cake Company. McGowan and two other detectives who were with him, Detectives Ott and Maurice, pulled up next to Parker in their vehicle and got out. The detectives were in plain clothes, but were wearing badges on the outside of their garments. Parker did not run when McGowan approached, but according to McGowan, Parker said, “Oh shit.” McGowan recovered three gel caps of heroin out of Parker’s right rear pants pocket and an additional thirteen gel caps of heroin in a small incision in the seam of his waistband.

Each of the gel caps was worth $10. The detectives also recovered $82 from Parker’s person, including one $20 bill, two $10 bills; six $5 bills, and twelve $1 bills. Based on the denominations of money, McGowan believed the bills were proceeds from the sale of eight gel caps. McGowan testified that the drugs were never fingerprinted “because [he] recovered them directly from the person of Mr. Parker or his possession.” On cross examination, McGowan first testified that Parker went into the store for “several brief seconds.” When defense counsel showed him the statement of probable cause, however, McGowan acknowledged that he then wrote that Parker went into the store for “several minutes.” McGowan also admitted that: during his investigation he never went inside the liquor store; the two unknown men he observed were not stopped; ⁴³³ there was no blue light camera 1 at that intersection; he could not recall how many other people were present on the street outside of the Capital Cake Company; and the pants with the incision were not recovered.

Neither of the detectives who were with McGowan was called to testify. Parker testified that he was in front of the Capital Cake Company about 10:30 in the morning talking to a girl who worked there. About fifteen or twenty minutes later, Parker’s friend Warren passed by and spoke to Parker. Parker then picked up his bike and walked with it up the street to the corner liquor store.

As Parker got to the liquor store, Warren “and the guy that was with him” were coming out of the store, so Parker “stepped in and stepped right back out.” Warren and the person with him then walked across the street, got into the truck Warren was driving, and pulled away. Parker said that about five minutes later, three white officers in an unmarked tan car who had been sitting “by the bar the whole time” backed up around the corner. McGowan then got out of the car, asked Parker if he had “anything to poke, stick, or stab him[,]” and started searching Parker. According to Parker, McGowan “dropped [Parker’s] pants to the ground” but “didn’t find anything.” While McGowan was searching Parker, one of the other officers was searching two men that he had against the liquor store wall.

The third officer went across the street to search the grass. When the third officer returned, he told McGowan that “it’s not over there, I don’t see it.” Parker testified that the officer went over to the grassy area again, returned, and said something to McGowan. Parker was then handcuffed. On cross examination, Parker denied that McGowan found sixteen vials of heroin on him. lie also denied saying “oh shit” to McGowan, and that he told McGowan that he had “a little bit of heroin in my back pocketf.]” In rebuttal, McGow ⁴³⁴ an testified that after Parker said “oh shit[,]” he asked Parker if he had any illegal narcotics on his person.

According to McGowan, Parker replied, “I got a little bit of heroin in my back pocket.” The jury began its deliberations late in the second day of trial and continued their deliberations the next day. After twice reporting itself deadlocked, the jury found Parker guilty of possession of heroin. Parker filed an appeal to the Court of Special Appeals. We issued a writ of certiorari, on our own initiative, to consider the following question: Did the trial court err in allowing testimony by Detective McGowan that he received a tip from a registered confidential informant that a black male wearing a blue baseball cap and a black hooded sweatshirt was selling heroin from his person at the corner of Carey and Laurens Streets?

DISCUSSION The Informant’s Extrajudicial Statement Parker contends that the trial court erred in allowing testimony by Detective McGowan that he received a tip from a registered confidential informant that a black male wearing a blue baseball cap and a black hooded sweatshirt — later identified as Parker — was selling heroin at the corner of Carey and Laurens streets. This testimony requires reversal, he argues, because (1) it is' inadmissible under the Maryland Rules of Evidence, (2) its admission violated his confrontation rights under the Sixth Amendment to the U.S. Constitution and Article 21 of the Maryland Declaration of Rights, and (3) its admission was not harmless beyond a reasonable doubt. Parker offers two related evidentiary grounds for the statement’s inadmissibility — hearsay and relevancy: [T]he informant’s statement to Detective McGowan was clearly inadmissible hearsay if offered to prove the truth of the matter asserted, and, if offered “to show why Detective McGowan was there,” ... the probative value (if any) of the informant’s statement was far outweighed by the danger of ⁴³⁵ unfair prejudice because of the strong likelihood that the jury would misuse the information and treat it as additional substantive evidence of Mr. Parker’s guilt. The State asserts that the trial court acted within its discretion in admitting the confidential informant’s statements.

The State maintains that it made clear to the court in a pretrial motions healing that it intended to introduce the confidential informant’s statement to explain why McGowan “was there and what, if any, actions [he] took.” It argued that the statement was not being offered “for the truth of the matter.” The motions court deferred its ruling on the evidence until its introduction at trial. At trial, Parker objected when the State asked McGowan during direct examination, “Do you remember why on November 2nd you were called to that 1200 block of Laurens Street?” At the ensuing discussion at the bench, Parker expressed his concern that “this jury is going to hear hearsay.” The State then re-asserted its reason for offering the statement: “it’s just to show the [effect] on the listener. It’s non-hearsay. It’s to show why Detective McGowan was there.

It’s not a confrontation clause argument.” The trial court then overruled Parker’s objection “based on [the State’s] representation that it’s not being offered to prove the truth of the matter asserted as to the confrontation clause[.]” “[T]his Court has regularly adhered to the principle that we will not reach a constitutional issue when a case can properly be disposed of on a non-constitutional ground.” State v. Lancaster, 332 Md. 385 , 404 n. 13, 631 A.2d 453 , 463 n. 13 (1993). Because we shall hold that the trial court committed reversible error in admitting the confidential informant’s extrajudicial statement under our laws of evidence, we will not address Parker’s contentions based upon the Confrontation Clauses of the Sixth Amendment to the U.S. Constitution and Article 21 of the Maryland Declaration of Rights. See Graves v. State, 334 Md. 30, 38 , 637 A.2d 1197, 1201 (1994)(declining to address the defendant’s right of confrontation arguments when reversing the judgment on state evidentiary grounds). ⁴³⁶ Under Maryland Rule 5-801, 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.” 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.

Stoddard v. State, 389 Md. 681, 688-89 , 887 A.2d 564, 568 (2005). Maryland Rule 5-802 states that “[ejxcept as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” We discussed the standard of review for hearsay rulings in Bernadyn v. State, 390 Md. 1, 7-8 , 887 A.2d 602, 606 (2005): We review rulings on the admissibility of evidence ordinarily on an abuse of discretion standard. Review of the admissibility of evidence which is hearsay is different. Hearsay, under our rules, must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule excluding such evidence or is “permitted by applicable constitutional provisions or statutes.” Md. Rule 5-802.

Thus, a circuit court has no discretion to admit hearsay in the absence of a provision providing for its admissibility. Whether evidence is hearsay is an issue of law reviewed de novo. (Citation omitted.) In arguing that the confidential informant’s statements were admissible for a non-hearsay purpose, the State invokes the evidentiary rules on relevancy. Maryland Rule 5-402 provides that “[ejvidence that is not relevant is not admissible.” “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5- ⁴³⁷ 401.

Under Rule 5-403, however, evidence may be excluded, though relevant, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]” Our standard of review on a relevancy question depends on whether the “ruling under review was based on a discretionary weighing of relevance in relation to other factors or on a pure conclusion of law.” J.L. Matthews, Inc. v. Md.Nat’l Capital Park & Planning Comm’n, 368 Md. 71, 92 , 792 A.2d 288, 300 (2002). “When the trial judge’s ruling involves a weighing, we apply the more deferential abuse of discretion standard.” Id. When the trial judge’s ruling involves a legal question, however, we review the trial court’s ruling de novo. Id. The trial court’s conclusion that the informant’s statement was not being offered to prove the truth of the matter asserted is a hearsay ruling.

Thus, we review the statement’s admissibility de novo. In Graves, 334 Md. at 33-34 , 637 A.2d at 1199-200 , we considered the admissibility of an extrajudicial statement made to the arresting officer by an individual arrested for having assaulted two men. One of the victims, Derek Jones, was sitting on the steps of a store, waiting for a bus, when two men approached. One of the men pulled out a gun and said, “Don’t move.” The victim’s father, David Jones, witnessed the incident, crossed the street toward Derek, and asked Derek “what the trouble was.” When the two men looked at David, Derek pushed the gun away and ran.

The two assailants then walked away. When the police arrived, Derek gave a description of one of the men and the police eventuaily arrested Kenneth Trusty, who told the arresting officer, John Reynolds, that Graves had been his accomplice. Graves was charged with assault upon Derek and David and attempted robbery of Derek with a dangerous and deadly weapon. A jury convicted Graves of both assault charges but acquitted him of attempted robbeiy.

At trial, Trusty was not called as witness to testify against Graves. Instead, the trial court permitted Officer Reynolds to ⁴³⁸ testify on direct examination that when Trusty was arrested, Trusty told him that the other individual involved was Graves: “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 — ? [Defense counsel]: 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.” Id. at 35 , 637 A.2d at 1200 . The notebook was also admitted into evidence over Graves’s hearsay objection. Graves contended that the testimony in which Trusty was said to have named Graves was a statement made by an out-of-court declarant, offered to prove the truth of the matter asserted. The State responded that the evidence at issue was “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.” Id. at 37 , 637 A.2d at 1201 .

We held that Trusty’s extrajudicial statements contained in the officer’s testimony and notebook were inadmissible. Id. at 42-43 , 637 A.2d at 1203-04 . We observed the general rule that “a relevant extrajudicial statement is admissible as non-hearsay 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.” Id. at 38 , 637 A.2d at 1201 . This ⁴³⁹ general rule is frequently applied in criminal cases when police reliance on extrajudicial statements is “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.” Id. at 38 , 637 A.2d at 1202 .

We cautioned, however, that the non-hearsay purpose of providing the basis upon which the arresting officer acted is not relevant to the question of a defendant’s guilt or innocence and is inadmissible hearsay: “[I]n 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