State v. White

• Decision Date: 29 June 1970
• Docket Number: Nos. 516-E,s. 516-E
• Citation: 267 A.2d 414,107 R.I. 306
• Court: Rhode Island Supreme Court
• Parties: STATE v. Joseph A. WHITE. STATE v. Paul C. JOHNSON. STATE v. Ralph J. CASALA. x. &c., 517-Ex. &c., 518-Ex. &c.

Page 414

267 A.2d 414

107 R.I. 306

STATE v. Joseph A. WHITE.

STATE v. Paul C. JOHNSON.

STATE v. Ralph J. CASALA.

Nos. 516-Ex. &c., 517-Ex. &c., 518-Ex. &c.

Supreme Court of Rhode Island.

June 29, 1970.

Herbert F. DeSimone, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., Scott K. Keefer, Special Asst. Atty. Gen., for plaintiff

William G. Grande, Judith E. Hodge, Providence, for defendants.

OPINION

ROBERTS, Chief Justice.

These are criminal complaints charging Joseph A. White and Paul C. Johnson with frequenting a certain gambling house and place where gambling was then and there carried on in violation of G.L.1956, § 11-19-21, and charging Ralph J. Casala with unlawfully letting and knowingly permitting to be occupied a house in East Providence to be used for the purpose of registering and receiving horse bets in violation of § 11-19-22. The complaints were tried together to a justice of the Superior Court sitting without a jury, and all three defendants were found guilty as charged in the complaints. The defendants are now in this court prosecuting identical bills of exceptions.

During the month of March 1967 the Internal Revenue Service acting jointly with the East Providence police conducted an investigation into gambling activities in that city. In the course of that investigation Edward J. Pascucci, a special agent for the Internal Revenue Service, made several telephone calls on March 23 24, and 28, 1967, to a telephone listed as 434-0446. Both the city directory and the telephone directory listed 69-71 Warren Avenue as being occupied by Townie Vets A.C., and the telephone directory listed the number as 434-0446. In each instance, in making the calls referred to, the agent dialed the number 434-0446 and asked for Angie, but received no acknowledgement other than that somebody said, 'Hello.' The agent on the occasion of each of these calls placed a bet on a horse.

On April 3 the premises were placed under surveillance by Anthony DeCastro of the East Providence police, who was accompanied by another member of that department. On the third of April all of the defendants were seen to enter and leave the premises between noon and five o'clock in the afternoon. The surveillance was continued on April 4, and the same defendants were again observed entering and leaving the premises.

The record discloses that thereafter, on April 5, 1967, several federal agents and members of the East Providence Police Department, operating under a warrant issued by the federal court, entered the premises at 69-71 Warren Avenue. Upon entering, they found some of the defendants in the premises. There was some testimony that at the time the agents entered the premises they observed a flash of bright light as if flash paper had been ignited. Several racing publications, all dated April 5, 1967, were seized and were subsequently introduced into evidence as State's Exhibit 1.

The agents remained in the premises for approximately two hours thereafter, during which time several incoming phone calls were taken by an Internal Revenue agent named John J. Fahey. Fahey testified that he took three calls from callers seeking to place a bet on a horse race. He further testified that all of these calls were received at the telephone listed as 434-0446. Thereafter Agent Fahey went to the second floor of the premises where he found an apartment occupied by Barbara Sousa, and a search disclosed a considerable amount of cash, some sheets of flash paper, so called, and some checks. This paper and photocopies of these checks were admitted into evidence as State's Exhibits 2 and 3. After putting the above facts into evidence, the state rested, and the defense then rested without presenting any evidence in the case.

The defendants argue vigorously that it was error on the part of the trial justice to admit into evidence the testimony of the agent Pascucci that he had made three telephone calls to 434-0446 and the testimony of the agent Fahey that while the raid was in progress he received three calls on that telephone in which the callers were seeking to place a bet on a horse race. It appears from the transcript that, at the time such evidence was offered, it was objected to on the ground '* * * that any conversation that took place over the telephone is hearsay; furthermore, no guarantee of trustworthiness, no guarantee that the call was a genuine one.' In overruling this objection, the court stated: 'I don't believe it is hearsay-I think it is a fact as to what took place * * *.'

We agree with the trial court that the admission of the testimony relating to these phone calls did not violate the hearsay rule because it was admitted, not to prove the truth of the assertion that the caller desired to place a bet, but rather to prove that the telephone located in the raided premises was used for the purpose of recording bets. While there seems to be some confusion as to the ground upon which such testimony is to be admitted, we think the sound rule is stated in 6 Wigmore, Evidence (3d ed.), § 1766, at 178, where the noted text writer says: 'The prohibition of the Hearsay rule, then, does not apply to all words or utterances merely as such. If this fundamental principle is clearly realized, its application is a comparatively simple matter. The Hearsay rule excludes extrajudicial utterances only when offered for a special purpose namely, as assertions to evidence the truth of the matter asserted.'

In State v, Tolisano, 136 Conn. 210, 70 A.2d 118, the defendant had been charged with the maintenance of a room containing apparatus and devices for the purpose of making the recording bets or wagers. The trial court admitted into evidence testimony that the officers in the room during the raid had received some 25 or 30 phone calls over a phone located in the defendant's apartment while the raid was in progress. The trial court admitted the testimony '* * * not to establish the truth of the facts related in the telephone calls but to establish the calls as verbal acts to show that the defendant was engaged in the activities described in the information.' Id. at 214, 70 A.2d at 119.

The correctness of this ruling was before the Connecticut court for decision. It held that the telephone calls were properly admitted as evidence that bets were being placed, but not that statements made to the officer over the phone were true. In other words, the Connecticut court admitted the evidence, not as an exception to the hearsay rule, but because it deemed such testimony not to be within the scope of the hearsay rule. The court said in that case: 'So, here, the telephone calls are admissible as evidence that bets were being placed but not that the statements made to the officers were true. The evidence is admitted, not as an exception to the hearsay rule, but because it is not within the rule.' Id. at 214-215, 70 A.2d at 120.

The text writer goes on in § 1766, at 180, to '* * * distinguish and mark off the various classes of utterances which legally pass the gauntlet of the Hearsay rule because it does not apply to them. The classes of utterances thus exempt may be grouped under three heads: 1. Utterances material to the case as a part of the issue * * *.' In our opinion, testimony of the character under consideration is evidence going to the basic issue in these cases, that is, the use of the phone for placing wagers and bets. The police officer is in court testifying as to the use having been made of the phone and is available for cross-examination as to the truth of the testimony he has given.

In our opinion, the Massachusetts court accepted this view in Commonwealth v. Jensky, 318 Mass. 350, 61 N.E.2d 532. There the defendant was charged with maintaining a place in which appareatus intended for use in the registering and recording of horse bets was kept. One of the police officers in the raiding party tewtified that a number of phone calls had been received from a phone in the defendant's apartment, and the court held that such testimony was admissible. While the hearsay rule was not expressly raised, the opinion clearly implies its rejection in this context. There the Massachusetts court considered only the relevancy of the proffered testimony to the issue in the case, that is, the keeping of apparatus for the purpose of recording bets in a room or other place. The court said, in part: 'The principal question is the admissibility of the evidence of the telephone conversations. We think that it was properly received in the circumstances. * * *...