Parker v. State

• Decision Date: 04 May 2009
• Docket Number: No. 89, September Term, 2008.,89, September Term, 2008.
• Citation: 408 Md. 428,970 A.2d 320
• Parties: Kelvin PARKER a/k/a Calvin Parker v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

970 A.2d 320

408 Md. 428

Kelvin PARKER a/k/a Calvin Parker v. STATE of Maryland.

No. 89, September Term, 2008.

Court of Appeals of Maryland.

May 4, 2009.

Mark Colvin, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore), on brief, for Appellant.

Carrie J. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., Baltimore), on brief, for Appellee.

Argued Before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

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 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 "[a]bout 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.

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; there was no blue light camera¹ 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. He also denied saying "oh shit" to McGowan, and that he told McGowan that he had "a little bit of heroin in my back pocket[.]" In rebuttal McGowan 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 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 pre-trial motions hearing 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...