Tumminello v. State

Thompson, J., delivered the opinion of the Court. John B. Tumminello, the appellant, was convicted of false pretenses in a jury trial in the Criminal Court of Baltimore and was sentenced to a term of three years. There was evidence from which the jury could have found that: On May 4, 1967, one Robert A. Sewell made a complaint to the State’s Attorney of Baltimore City that on December 9, 1966, he had been convicted of assault with intent to murder and was sentenced to four years in the House of Correction; that after he began serving his sentence, he was visited by John B. Tumminello, the appellant, who told him that for $2,000 or some other sum of money, he could “spring” him from the Maryland House of Correction and that $1,000 would be paid to the judge, $500 to the State’s Attorney and $500 retained for his services. A portion of the money was paid to Tumminello.

Through the efforts of Sewell’s counsel and a priest, Sewell’s sentence was suspended by Judge James K. Cullen. At the time neither Judge Cullen nor the State’s Attorney was aware of Tumminello’s conversation with Se-well, and, of course, neither of them had received any of the money. Tumminello continued to demand money from Sewell after he was released. On May 23,1967, the State’s Attorney, under Md. Code, Art. 27, Sec. 125 (a) obtained an order from Judge J. Gilbert Prendergast to use an electronic device to overhear and record a conversation between Sewell and Tumminello.

The order was based upon an affidavit by Sewell. At the same time an arrest warrant and search and seizure warrant were also issued. At the direction of the State’s Attorney, Sewell then ³⁸² arranged to meet Tumminello in his office for the purpose of paying him additional money. Sewell was supplied with $150 marked money which he took to Tumminello’s office, with a hidden microphone which was to transmit the conversation to a recording device set up in an automobile near the office.

Sewell entered the office, paid $100 of the money to Tumminello and had a conversation which was recorded on a tape, but a part of it was garbled. When Sewell left the premises, the police entered and arrested Tumminello and recovered the money. The portion of the conversation which came through clearly on the tape concerned Sewell’s claim that his attorney was demanding more money, and was threatening to have the suspension of his sentence revoked if he was not paid; and Tumminello’s lengthy advice that Sewell did not owe his lawyer any more money as he, Tumminello, was reponsible for the change of sentence. A stenographer’s transcript of the clear portion of the tape was admitted in evidence.

Tumminello testified claiming that all of his activities were those of a professional bail bondsman, and that during the course of these activities he discovered the sentence would be suspended if he could obtain an appropriate letter from the priest; that he obtained such a letter and that Sewell was so grateful he voluntarily allowed him to keep the money which had been advanced for the proposed bail bond and, in addition, paid him other monies. Tumminello’s testimony was not as clear as here recited, but it appears this would have been the effect of it if he had been permitted to detail certain conversations hereinafter discussed. Tumminello claims the trial judge abused his discretion when he sustained the State’s objections to Tumminello quoting pertinent conversations with the clerk of court, in which he obtained the information as to the suspension of the sentence, and one conversation with Se-well in which Sewell quoted his attorney. The objections were sustained on the reasoning that such conversations were not admissible unless counsel assured the court that ³⁸³ he was going to call the clerk of court and the attorney as witnesses.

We know of no authority that would exclude these conversations, which go to the heart of the case, for such a reason. The State attempts to justify the rule on the basis of Johnson v. State, 237 Md. 283 , 206 A. 2d 138 , which held that hearsay testimony as to out-of-court identifications are not admissible unless the declarant is available for cross-examination. Examination of the authorities collected therein, as well as those collected by this Court in a similar ruling in Howard v. State, 4 Md. App. 74 , 241 A. 2d 192 , shows that such testimony is admitted because the identification under such time and places is frequently, if not always, more reliable than in-court identifications where the person accused is usually apparent to all present. The rule requiring the availability of the declarant in such cases for cross-examination was fashioned to fully protect the rights of the accused, but the rule is limited to that particular type of situation and cannot be used to make other types of hearsay evidence admissible, if not otherwise admissible, nor can the failure to have the declarant available preclude the testimony as to conversations which are otherwise admissible.

See Hall v. State, 5 Md. App. 599, 607 , 249 A. 2d 217 . 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 ³⁸⁴ 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 Appeals found reversible error because of the failure of the trial judge to admit evidence that: “On a charge of forcibly abducting four children of one James McGee, the accused proffered a witness who stated that when the accused and Mrs. McGee came to her house to spend the night she told the witness, out of the presence of the accused, that she had made up her mind not to live with her husband any longer and had left home and taken the children with her and had gotten the accused to drive the wagon. The Court reversed because of the refusal of the trial court to admit that testimony and quoted with approval 1 Taylor on Evidence § 521 as follows: “ ‘Certain other declarations and acts are admitted as original evidence, being distinguished from hearsay by their connection with the principal fact under investigation. “ ‘The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other.

Each owes its birth to some preceding .circumstance, and in its turn becomes the prolific parent of others, and, each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essential to be known, in order to a right understanding of its nature.’ ” 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 ad ³⁸⁵ missible 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, 441 .’ ” The State contends that because the court permitted testimony as to these conversations to come out on cross-examination, the error was harmless. 1 While ordinarily this might be true, Barger v. State, 2 Md. App. 565, 235 A. 2d 751 , we do not think the error was harmless in the case at bar because all of the conversations we have referred to were not presented on cross-examination, and, secondly, since the answers to these questions went to the core of Tumminello’s defense, we think it left his testimony fragmentary and distorted, and destroyed the naturalness which it otherwise may have had. The seriousness of the error is apparent when it is remembered that one of the conversations, which was not admitted, was Tumminello’s conversation with Sewell concerning a ³⁸⁶ conversation Sewell had had with his attorney, and this was also the principal subject matter of the inculpatory conversation which came