Purvis v. State

O’Donnell, J., delivered the opinion of the Court. The appellant, Edward W. Purvis, Jr., was convicted on May 31, 1974, following a jury trial in the Criminal Court of Baltimore (Judge Perry G. Bowen presiding) 1 upon counts of two indictments charging, inter alia, two separate acts of distribution of heroin, as well as a count in a third indictment which charged larceny after trust. The evidence offered in support of the narcotic counts showed that Purvis on November 1, 1973 sold 151.6 milligrams of heroin to two undercover police officers for $130 and that he had made another sale, on the next day, to the same officers of 183.5 milligrams of heroin for the same amount of money. The larceny after trust charge was predicated on evidence that on November 6, 1973 the same two detectives had given Purvis $150 in prepayment of a “spoon” of heroin but that Purvis had absconded with the police money without delivering the contraband.

Following a denial of a motion for new trial, the appellant was sentenced on one of the narcotic charges to a ten-year term to run consecutively to the sentence he was then serving; upon the second narcotic charge he was also sentenced to a term of ten years, dating from the date of disposition (August 1, 1974) and to that extent concurrently with the previous sentence which he was serving. The sentence was suspended generally on his conviction for larceny after trust. In his appeal here Purvis asserts: (a) that reversible error was committed when the trial court permitted hearsay testimony of information given to the police by an informant; (b) that he was denied effective representation ⁷¹⁵ by counsel and a constitutional right to a fair trial when the trial court denied him a continuance based upon the inability of his trial counsel to locate and produce at the trial two material witnesses; and (c) reversible error was committed in permitting testimony concerning a statement made by him at the time of his arrest, without his having been supplied with a copy of that statement, as well as conducting an examination concerning the admissibility of the statement in the presence of the jury. 2 Detective Larry W. Strickland, an undercover agent of the Drug Enforcement Administrative Task Force of the Baltimore City Police Department, one of the two undercover policemen to whom the appellant allegedly had sold the heroin and from whose possession the prepaid purchase funds had been obtained, when asked by the Assistant Prosecutor to relate to the jury how it came about that he had purchased one gram of heroin from the appellant on November 1,1973, responded as follows: “A Well, I was introduced to the defendant by an S.E. Q Well, they don’t know what S.E. is. A An S.E. is a paid informant.

On the 1st of November, 1973 about 5:00 P.M., Detective Holly and myself met S.E. 1-3-X539, advised that a subject by the name of Slim was selling heroin in the South Baltimore area. With this we drove in an official government vehicle to a public telephone to the Northeastern District. We called Edward Purvis and advised him I wanted to purchase heroin at approximately 5:30. MR.

COLEMAN: If Your Honor please, I would object. I don’t believe there has been some ground work laid for the introduction of evidence by a so called informer. ⁷¹⁶ THE COURT: Overruled. MR. COLEMAN: And this, if Your Honor Please, would amount to hearsay.” In overruling the objection of appellant’s counsel the trial court stated: > “Overruled.

I think it’s offered not to prove the truth of what was said, but the fact that it happened and as such is testimony to an oral act, not within the ambit of the hearsay rule. Objection is overruled.” The State argues that the answer to the question by Detective Strickland when he said that he was “advised that a subject by the name of ‘Slim’ was selling heroin in the South Baltimore area” was not offered “to prove that the appellant was, in fact, selling heroin ... as Detective Strickland was advised by the informant,” but was offered in response to the inquiry addressed to Detective Strickland to explain how it came about that he had purchased heroin from the appellant. The general rule is that a statement is admissible if introduced for the purpose of showing that a party relied on and acted upon the statement and is not introduced for the purpose of showing that the facts stated in the declaration are true. See C. McCormick, Evidence § 249 at 589-90 (2d ed. 1972).

In Dennett v. State, 19 Md. App. 376 , 311 A. 2d 437 (1973), Judge Thompson, for this Court, in holding that telephone messages were received and were relied upon and constituted a link in the chain of facts tending to show that the appellant had participated in a false pretense, stated: “Wigmore, of course, states it well: ‘Wherever an utterance is offered to evidence' the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the ⁷¹⁷ Hearsay rule is concerned.’ VI Wigmore, Evidence § 1789, at 235 (3d ed. 1940). See also VI Wigmore, Evidence § 1766, at 177-78; McClain v. State, 10 Md. App. 106, 113 , 268 A. 2d 572 (1970); Nixon v. State, 2 Md. App. 611, 615-16 , 236 A. 2d 304 (1967).” 19 Md. App. at 385 , 311 A. 2d at 443 . In Tumminello v. State, 7 Md. App. 380 , 256 A. 2d 342 (1969), the conviction of the appellant was reversed because of the exclusion of the appellant’s conversations with both a clerk of court, in which he obtained information as to the suspension of a prisoner’s sentence, and with the complaining witness in which the witness quoted his attorney, in a proceeding where the appellant had been convicted for false pretenses involving the release of a prisoner in exchange for a sum of money. In holding that such conversations were “verbal acts” and not hearsay, Judge Thompson, who delivered the opinion for this Court, stated: “We think all of these excluded conversations were admissible under the familiar rule that they were offered for the purpose of establishing motive, intent, and to explain subsequent actions.

In 6 Wigmore, Evidence, § 1789, Friend v. Hamill, 34 Md. 298 , 308 is quoted as follows: ‘Where the question is, whether a party has acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence and not mere hearsay. . . .’ And, thus, under Professor Wigmore’s theory, such conversations are not hearsay at all but verbal acts. To the same effect see McCormick, Evidence, Ch. 25, § 228, p. 464. Other writers would call such evidence admissible as part of the res gestae. See Van v. State, 1 Md. App. 347 , 230 A. 2d 109 and Hall v. State, supra.

In the latter case, we referred to Robinson v. State, 57 Md. 14 , wherein the Court of ⁷¹⁸ Appeals found reversible error because of the failure of the trial judge to admit evidence .... In the same case, Hall v. State, supra, we quoted the Court of Appeals in McBriety v. Phillips, 180 Md. 569 , 26 A. 2d 404 as follows: ‘ “Under the rule of res gestae, conversations of parties in the course of a transaction are admissible when the words are spontaneous and so closely related to the principal transaction as to explain its character. 1 Jones on Evidence, § 358; 6 Wigmore on Evidence, § 1776; 20 Am. Jur., Evidence, §§ 662, 680; Such utterances, irrespective of their trustworthiness as assertions, are received as verbal parts of the entire act. In upholding this rule Justice Swayne said: ‘In the complexity of human affairs, what is done and what is said are often so related that neither can be detached without leaving the residue fragmentary and distorted.

There may be fraud and falsehood as to both; but there is no ground of objection to one that does not exist equally as to the other. * '* * The tendency of recent adjudications is to extend rather than to narrow, the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results.’ Travellers’ Insurance Co. v. Mosley, 8 Wall. 397, 408 , 19 L. Ed. 437, 411 .” ’ (Emphasis supplied.) 7 Md. App. at 383-85 ; 256 A. 2d at 344-45 . Another rule, however, is equally applicable. In C. McCormick, Evidence § 248 at 587 (2d ed. 1972) it is stated: “In criminal cases, the arresting or investigating officer will often explain his going to the scene of the crime or his interview with the defendant, or a search or seizure, by stating that he did so ‘upon information received’ and this of course will not be ⁷¹⁹ objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.” (Emphasis supplied; footnotes omitted.) Based on our holdings in Dennett and in Tumminello , we cannot agree that the quoted answer by Detective Strickland fell within the definition of a “verbal act” or as characterized by the trial judge, as an “oral act”; they certainly were not contained as “parts of the entire act” and the issue of the lawfulness of the appellant’s arrest does not appear to have been challenged.

Pointing out that evidence, such as that given by Detective Strickland, even though hearsay, is admissible when the lawfulness of the defendant’s arrest has been challenged but is not admissible on the issue of his guilt or innocence, the Court of Appeals, in Farrow v. State, 233 Md. 526 , 197 A. 2d 434 (1964), stated: “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 inriocence of the defendant it clearly is hearsay and hence is inadmissible; but on the issues of probable cause and the lawfulness of arrest ard 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 ⁷²⁰ 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.” (Emphasis supplied.) 233 Md. at 532-33 , 197 A. 2d at 437-38 . See also Cleveland v. State, 8 Md. App. 204 , 259 A. 2d 73 (1969); Winebrenner v. State, 6 Md. App. 440, 443 , 251 A. 2d 610, 612 (1969) and Viehmeyer v. State, 3 Md. App. 702, 708 , 240 A. 2d 649, 652 (1968).

The admissibility of such evidence has been sustained in a case where the defendant asserted entrapment. See Commonwealth v. Miller, Mass., 282 N.E. 2d 394 (1972) where the court permitted an undercover agent, who posed as a patient and who made a number of purchases of illegal drugs from a doctor to testify that narcotic users and purchasers “had mentioned her name,” the court holding that