State v. Gray, 20368

• Decision Date: 10 April 1986
• Docket Number: No. 20368,20368
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Patricia J. GRAY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1313

717 P.2d 1313

The STATE of Utah, Plaintiff and Respondent, v. Patricia J. GRAY, Defendant and Appellant.

No. 20368.

Supreme Court of Utah.

April 10, 1986.

Ronald J. Yengich, Bradley P. Rich, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., J. Stephen Mikita, Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

A jury convicted defendant Patricia J. Gray of two counts of agreeing, consenting, offering, or arranging to distribute cocaine in violation of U.C.A., 1953, § 58-37-8(1)(a)(iv), ¹ a second degree felony.

I

On the evening of January 4, 1984, Kristine Imani, an undercover agent with the Salt Lake City Police Department, Narcotics Division, went to the residence of Ellen Dickerson to purchase cocaine. Imani had purchased one-half gram of cocaine from Dickerson for $90 on three previous occasions in December of 1983. In the past, Dickerson had produced the cocaine from a cosmetics bag in her house. This time, however, Dickerson said that she no longer kept cocaine in her house and told Imani to return later.

Imani returned forty-five minutes later. Soon thereafter, Patricia Gray arrived and was introduced to Imani. Gray told Imani that the cocaine was of a very good quality. Imani gave Dickerson $90, which Dickerson then put in her purse. Gray and Dickerson then left in Gray's car, a red Toyota, with Gray driving, while Imani remained behind.

Gray's car was followed to a residence on Desert Dust Drive and then back to Dickerson's house. Upon their return, Gray said, "We got it." The three then discussed their plans to "free-base" the cocaine. Gray poured the cocaine onto a mirror on the kitchen table and divided it in half. She asked Imani if she had divided it fairly. Imani responded "yes," and Gray placed one-half of the cocaine in a bindle and handed it to Imani.

On January 10, 1985, Imani called Dickerson and arranged to go to her house at 5:45 p.m. to buy more cocaine. When Imani arrived, Gray was already there. Imani told them she wanted to buy another half gram and gave Dickerson $90. Gray and Dickerson again left in Gray's car, were again followed to the same residence on Desert Dust Drive, and were observed going into the residence. When they returned to Dickerson's residence, Gray told Imani, "They were just about to leave. We got there just in time." Defendant again divided the cocaine, placed one-half of it in a bindle, and gave it to Imani. The substances received by Imani on both January 4 and January 10 were subsequently determined to be cocaine.

At trial, the State elicited testimony from Imani that she had purchased drugs at Dickerson's residence on three occasions prior to those for which defendant was charged. She also testified as to what transpired during these transactions without showing that defendant was present. The testimony was admitted over counsel's objection.

Imani was then allowed to testify as to the negotiations with Dickerson concerning the January 4 transaction, again without showing that defendant was present and again over objection by counsel. Moreover, Imani interjected that Dickerson said that she was "not dealing it out of her house any more--"

Imani testified that after defendant's arrival on the 4th of January, Dickerson stated, "We're going to go out and get the dope." Again counsel objected. Imani also testified over objection that on the 10th of January Dickerson said, "Because the one who purchases it with her, Patricia, had to get it done fast, and they had to go to a friend's house. So they had to leave immediately." Imani testified that after Dickerson and Gray returned, Dickerson said, "We got it. It wasn't easy." Dickerson was not called to testify at trial. Defendant was subsequently found guilty.

II

Defendant claims that the trial judge erred by allowing the State to introduce Dickerson's statements. This Court will not disturb the ruling of the trial court on questions of admissibility of evidence unless it clearly appears that the lower court was in error. ² Accordingly, this Court may affirm the trial court's decision to admit evidence on any proper grounds, even though the trial court assigned another reason for its ruling. ³ Further, before this Court will rule on claims of evidentiary error, the record must reflect a timely objection, stating the specific ground upon which it is based. ⁴

Defendant claims that the trial court erred by allowing Imani to testify that she had purchased cocaine on three occasions in December of 1983 and as to the details of these transactions. Defendant appears to contend that introduction of this evidence violated the hearsay rule. However, except as to one instance which we find insignificant, counsel failed to base his objection to this testimony on the hearsay rule; counsel's objections were grounded on lack of foundation, relevance, and materiality.

Even if we consider defendant's contention pursuant to the plain error rule, ⁵ we find the claim without merit. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. ⁶ Testimony containing hearsay is generally not admissible at trial. ⁷ However, courts have carved out several exceptions to this exclusionary rule in cases where there is a substantial need for the evidence if there are circumstantial guarantees of trustworthiness. ⁸ Imani's testimony that she had purchased drugs at Dickerson's residence on three occasions prior to those charged in the information and the circumstances surrounding these transactions was clearly a recounting of what Imani herself had observed and not what she had heard. Since this testimony was not of an out-of-court nature, it was properly admitted, provided that the testimony was in fact relevant. ⁹

Evidence that is not relevant is not admissible at trial. ¹⁰ Rule 401 of the Utah Rules of Evidence provides that for evidence to be relevant, it must have a tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. At trial, the prosecutor claimed that the evidence was offered by the State "to develop a pattern of vehicles being at the premises and that sort of thing." Although the trial judge stated that the testimony was not being offered in any respect as to the charge in this case, it is clear that the testimony concerning previous drug transactions with Dickerson was relevant in this action. The transcript plainly reveals that the prosecution was trying to establish defendant's involvement in the January transactions by showing variations between the December drug buys and those made in January. Evidence showing the change in defendant's involvement in the December and January transactions is clearly circumstantial evidence of defendant's knowing and intentional involvement in arranging to distribute a controlled substance for value. Since the testimony made the evidence of these facts more probable than would have been the case had the testimony been excluded, Imani's testimony concerning the December drug buys was properly admitted over defendant's objections as to its materiality.

Defendant next argues that testimony of what transpired at Dickerson's residence on the evening of January 4, 1984, before defendant arrived, was hearsay and improperly admitted. The trial judge allowed Imani to testify that on January 4, 1984, she went to Dickerson's house and asked to purchase cocaine. When read in context with the judge's comment "that it was not taken against defendant," it is obvious that this testimony was purely foundational. Imani's testimony that Dickerson stated that she was "not dealing out of her house any more" was unresponsive, was immediately terminated by the trial judge, and was not objected to by counsel.

After establishing that Gray had arrived at Dickerson's residence on January 4 and that Imani had given Dickerson $90, the prosecutor asked Imani, "What did you observe Dickerson do with the money?" Imani responded, "She put it in her purse and said, 'We're going to go out and get the dope.' " This hearsay statement was obviously unresponsive to the prosecutor's inquiry. However, in view of our discussion below, agent Imani could have freely testified as to Dickerson's statements.

Defendant claims that Imani's testimony that Dickerson said she "would have to go right away because the one who purchases it with her, Patricia, had to get it done fast and they had to go to a friend's house. So they had to leave immediately" was erroneously admitted over her hearsay objection. Imani also testified over a similar objection that when Dickerson and defendant returned, Dickerson said, "We got it. It wasn't easy."

As discussed above, although hearsay as a general proposition is not admissible, there are several exceptions to this rule. Utah Rule of Evidence 63(9)(b), adopted by this Court in 1971, provided an exception to the hearsay rule for statements made while a party and the declarant were participating in a plan to commit a crime or a civil wrong if the statement was relevant to the plan or the subject matter and made while the plan was in existence and before its completion or other execution. ¹¹ In 1983, this Court adopted, in substantial part, the federal rules of evidence. ¹² The preliminary committee note to the Utah rules states that the rules are to provide a fresh starting place for the law of evidence. Since the advisory committee generally sought to achieve uniformity between Utah's rules and the federal rules, this Court looks to the interpretations of the federal rules by the federal courts to aid in interpreting the Utah rules. ¹³

The substance of old Rule 63(9)(b) is now found in Utah Rule of Evidence 801(d)(2)(E). ¹⁴ However, instead of being an exception to the hearsay rule, the new rule defines such statements as being nonhearsay. Moreover, the new rule is much narrower than was the old rule....