Faulkner v. State

534 A.2d 1380, 73 Md. App. 511, 1988 Md. App. LEXIS 8
CourtCourt of Special Appeals of Maryland
DecidedJanuary 11, 1988
DocketNo. 460
StatusPublished
Cited by4 cases

This text of 534 A.2d 1380 (Faulkner v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faulkner v. State, 534 A.2d 1380, 73 Md. App. 511, 1988 Md. App. LEXIS 8 (Md. Ct. App. 1988).

Opinion

ROSALYN B. BELL, Judge.

Alvin Faulkner was convicted by a jury in the Circuit Court for Montgomery County of attempted first degree murder, attempted second degree murder, robbery with a deadly weapon and use of a handgun. He was sentenced to life, 30 years, 20 years and 20 years respectively—concurrently with each other but consecutive to a 25-year term of incarceration imposed in another case. Ten issues were raised on appeal. Since we will reverse on the last issue raised, we will not consider all. In the interest of judicial economy, however, we will comment on some of the other issues in the event there is a retrial.

A Safeway grocery store in Montgomery County was robbed on four occasions: April 19, 1985; October 18, 1985; November 15, 1985;1 and January 10, 1986. In this case, Faulkner was on trial for the January 10 robbery. Earl Carter, a Safeway manager, was shot at the January 10 robbery. The State contended that Faulkner committed all of the robberies and that the evidence of the other three should be admissible in the trial of the January 10 robbery under the identity exception to the rule excluding evidence [515]*515of other crimes. At trial, the State adduced evidence only of the January 10 robbery and the November 15 robbery.

HEARSAY

On appeal, appellant argues that the trial court erred in admitting hearsay evidence. At issue is Michael Edwards’s 2 testimony about a conversation he had with another witness, appellant’s brother, Larry Faulkner. Appellant argues that Edwards’ testimony about the conversation was inadmissible hearsay. In response, the State claims that the testimony was not hearsay as the testimony was offered to prove that the conversation occurred and to impeach Larry. We agree with appellant and, therefore, we will reverse.

At trial, the State asked Larry whether he recalled discussing the Safeway robberies with Edwards in early 1986. Larry initially responded that he did not recall the discussion. He was then asked whether he told Edwards that, on the evening of the January 10 robbery, appellant came home with a wad of money and wet clothes and then burned the clothes.3 Larry answered that the discussion “was not like that,” and that he did not remember telling Edwards that appellant burned his clothes when he came home. The court then asked Larry whether he ever told Edwards that he observed appellant burn his clothes. This time Larry replied in the affirmative. Larry also stated that he did not recall discussing with Edwards appellant’s possession of some money.

Edwards was called and testified that he did talk with Larry in early 1986. According to Edwards, they discussed appellant and the money and wet clothes. Defense counsel [516]*516objected to Edwards’ testimony as hearsay. The Assistant State’s Attorney replied:

“I am not offering it as an exception to the—I am offering it for prior inconsistent statements and impeachment.”

Defense counsel objected despite the representation by the State that the statement was “being offered for truthfulness, and not merely to impeach him.” Without further urging, the trial judge announced:

“I am going to take a quantum leap here, and I think that given the circumstances of how and when this statement was made, that it would be probative for the Jury to hear what was said to this man within a short period of time of the commission of the robbery by one of the brothers of the Defendant in this case. It would be probative, and would be helpful to the trier of fact, and, therefore, I am going to allow it in, and we will see what somebody else says to me at some later time about it.
“[Defense Counsel]: Is the Court going to let it in for impeachment, or for substantive value, and if it is for impeachment, I would like the cautionary instruction.
“THE COURT: Well, I am going to allow it because— for the substance of what was said, and I am not going to give the cautionary instruction, so the record is clear on that. Okay?”

The State, faced with what was probably an unexpected bonus, replied “okay,” and defense counsel asked for a continuing objection. No cautionary instruction was given.

In order to resolve the issue before us, we must look to the law of hearsay evidence. Hearsay is an out-of-court assertion offered in court for the truth of the matter asserted and is generally inadmissible. Ali v. State, 67 Md.App. 339, 343, 507 A.2d 648 (1986). An out-of-court statement may not be hearsay if offered for a limited permissible purpose and not for the truth of the matter asserted. Two of the permissible purposes are:

[517]*5171) to prove that a statement—known as a verbal act— was made, Best v. State, 71 Md.App. 422, 432 [526 A.2d 75] (1987); McLain, Maryland Evidence, § 801.7 (1987); and
2) to impeach a witness, Sun Cab Co. v. Cusick, 209 Md. 354, 361-62 [121 A.2d 188] (1956); Ali, 67 Md.App. at 343, [507 A.2d 648]; McLain, Maryland Evidence, § 801.12 (1987).

On appeal, the State argues, as it did at trial, that Edwards’s testimony is not hearsay because the testimony was offered for the above two limited purposes and not to prove the truth of the matter asserted therein.

Although the State offered the testimony for the limited purposes mentioned, the trial court, sua sponte, admitted the testimony as substantive evidence and gave no instruction limiting the purpose of the testimony. Edwards’s testimony of the conversation he had with Larry, admitted for the truth of the matter asserted, was hearsay and did not meet with either of the proffered exceptions. For this reason, we reverse.

We will address several of the remaining issues as they may recur during a retrial.

DISCLOSURE OF INFORMANTS’ NAMES

Prior to trial, appellant requested that the trial court require the State to disclose the identity of individuals who had provided the police with information which connected appellant to the Safeway robberies. Defense counsel contended that the identity of these informants—Crime Solvers’ informants’ numbers 1719 and 2141, and a traditional confidential informant—was necessary to appellant’s defense preparation. Defense counsel proffered that each informant had information which was relevant and helpful to appellant’s defense. Counsel contends that number 1719 had knowledge of how the crimes were committed and of the identities of the perpetrators, and number 2141 had information relating to appellant’s activities on one of the [518]*518nights in question. Finally, defense counsel claimed that the traditional confidential informant had information relating to appellant’s possession of a gun of a different caliber than the gun used in the robberies. According to defense counsel, that information was relevant and helpful to appellant’s defense. The State contended that the three informants were not accessories or participants in the crimes or direct witnesses to them.

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Related

Johnson v. State
584 A.2d 700 (Court of Appeals of Maryland, 1991)
Parham v. State
556 A.2d 280 (Court of Special Appeals of Maryland, 1989)
State v. Faulkner
552 A.2d 896 (Court of Appeals of Maryland, 1989)

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Bluebook (online)
534 A.2d 1380, 73 Md. App. 511, 1988 Md. App. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faulkner-v-state-mdctspecapp-1988.