Summary
holding that no hearsay error occurred where the trial judge expressly did not consider potentially prejudicial testimony for the truth of the matter asserted
Summary of this case from Adjei v. CommonwealthOpinion
44152 Record No. 801372.
June 12, 1981
Present: All the Justices.
The Trial Court, in a bench trial of defendant for possession of marijuana with intent to distribute, properly admitted a statement by another pertaining to defendant's ownership of the drugs offered in testimony by a Special Agent when the testimony was received to establish that the statement was made and not for the truth or falsity of the allegation; hearsay rule excludes extrajudicial statements only where these are offered to prove the truth of the matter asserted.
(1) Criminal Procedure — Evidence — Hearsay — No Error in Bench Trial When Court Expressly Refuses to Consider Hearsay Statement for Truth of Matter Asserted.
(2) Criminal Procedure — Evidence — Hearsay — When Rule Applies.
During a search of a residence, officers found drugs and drug paraphernalia. One Tucker admitted ownership of the drugs but, when taken into another room, recanted her confession. In a bench trial of defendant for possession with intent to distribute marijuana and, after defendant in cross-examination of a police officer had introduced, over the Commonwealth's objection, Tucker's claim to ownership of the drugs, the Commonwealth introduced this testimony by Special Agent Foster concerning Tucker's recantation:
"I asked her why she admitted ownership of the hashish marijuana. She stated that her husband [one of the persons in the residence] . . . was a convicted felon. She didn't want him to get into any trouble and she said by being pregnant she thought that Snake . . . [the defendant] would speak up and admit to the fact that it was his."
The Trial Judge admitted the last part of the statement only to establish that it was made and not for the truth or falsity of the statement. The first part of the statement was admitted to show Tucker's subsequent behavior in view of the testimony elicited by the defendant on cross-examination of a police officer.
The defendant was convicted and the issue on appeal is whether Tucker's recantation and statement concerning defendant's ownership of the drugs was inadmissible hearsay.
1. A Judge, unlike a Juror, is uniquely suited by training, experience and judicial discipline to disregard prejudicial statements and to separate, during the mental process of adjudication, admissible from inadmissible evidence although he has heard both. Here the Trial Judge could admit a portion of a statement to establish that the statement was made without also considering the portion as to the truth or falsity of the allegation that defendant owned drugs which had been seized.
2. Extrajudicial statements are excluded under the hearsay rule only when these statements are offered as assertions to evidence the truth of the matter asserted. The first portion of the utterance was offered to show Tucker's bedroom retraction of her earlier living room statement of ownership of the drugs, her claimed ownership of the drugs having been brought out during defendant's cross-examination of a police officer. The Commonwealth had the right to show her subsequent behavior to complete the account of her activity during the entire episode.
Appeal from a judgment of the Circuit Court of Henrico County. Hon. L. Paul Byrne, judge presiding.
Affirmed.
John W. Luxton (Morchower Associates, on brief), for appellant.
Alexander E. Conlyn, Assistant Attorney General (Marshall Coleman, Attorney General; Robert J. Barry, Assistant Attorney General, on brief), for appellant.
Convicted in a bench trial of possession with the intent to distribute marijuana, defendant Richard Alan Eckhart was sentenced in May of 1980 to a ten-year prison term with four years suspended. The sole issue on appeal is whether the trial court erroneously admitted allegedly hearsay testimony repeating the statement of one Betty Jean Tucker.
On November 13, 1979, about 10:14 p.m., a Virginia State Trooper, accompanied by other police officers, executed a search warrant at a residence situated in Henrico County. Upon entry, the officers found in the house about nine persons, including defendant (known as "Snake"), his wife, Tucker and Tucker's husband. Defendant was served with a copy of the warrant after he stated he "lived" there.
The officers required all the occupants to sit in the living room while the premises were being searched. Drugs and drug paraphernalia were found at various locations in the home. Thereafter, all nine persons were arrested and advised of their rights as specified in Miranda v. Arizona, 384 U.S. 436 (1966). Initially, none of the individuals admitted ownership of the drugs but, "[a]fter a pause" and while in the living room, Mrs. Tucker stated she owned the contraband. Defendant did not admit ownership of any drugs and none were found on his person.
Subsequently, several of the officers took Mrs. Tucker into a bedroom. Special Agent L. C. Foster, Jr., of the Virginia State Police testified Mrs. Tucker was then asked "why she made the statement that the drugs were hers." Over defendant's objection, Foster testified:
"I asked her why she admitted to ownership of the hashish marijuana. She stated that her husband was a convicted felon. She didn't want to see him get in any trouble and she said by being pregnant she thought that Snake would speak up and admit to the fact that it was his."
Responding to defense counsel's objection that the statement was "double hearsay," the trial court said, "I'm going to sustain the objection as to the last part of that statement." The court stated, "I will not let it in for the purpose [of proving] ownership on Snake." The judge said he would not receive the portion of the statement implicating defendant "for the truth or falsity of it, but just that the statement was made."
On appeal, defendant contends admission of the whole statement was reversible error. As to the first portion, that is, the second sentence and the first clause of the third sentence, Eckhart argues the effect of allowing that part of the statement in evidence was to permit the Commonwealth to show that Tucker repudiated her living room confession in her bedroom utterance. Defendant says the "net effect" of that procedure was to implicate him, arguing that he had the right to rely on Tucker's confession "as positive evidence on his behalf without it being tainted by Tucker's reflective recantation." He says that portion was hearsay and inadmissible.
As to the remainder of the statement, and acknowledging such part was not admitted in evidence for the truth of the matters asserted, defendant argues "it clearly suggested that Richard Eckhart was the guilty party." He says the "prejudicial effect of that portion of the statement far exceeded its probative value."
The Attorney General argues the court below acted properly in ruling on defendant's objection. Additionally, the Commonwealth contends that any error in admitting the statement was harmless because there was ample evidence to prove defendant's ownership of the drugs without use of Tucker's statement. We do not reach the State's secondary argument; we hold the trial court committed no error.
Manifestly, the accused has no legitimate complaint about receipt of the latter portion of the statement to the effect that the drugs actually belonged to him. The court below in this bench trial expressly refused to consider that part of the utterance for its truth in proving "ownership on Snake." A judge, unlike a juror, is uniquely suited by training, experience and judicial discipline to disregard potentially prejudicial comments and to separate, during the mental process of adjudication, the admissible from the inadmissible, even though he has heard both. Flannery v. City of Norfolk, 216 Va. 362, 368, 218 S.E.2d 730, 735 (1975); Akers v. Commonwealth, 216 Va. 40, 45, 216 S.E.2d 28, 31 (1975).
As to the first portion of the statement in issue, the hearsay objection has no merit. The prohibition of the rule against hearsay excludes extrajudicial statements "only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted." 6 J. Wigmore, Evidence Sec. 1766 at 251 (Chadbourn rev. 1976). The Commonwealth did not offer Tucker's statement to prove either the assertion that her husband was a convicted felon or the assertion that she wanted to keep him out of "trouble." Instead, the portion of the utterance was entered to show Tucker's bedroom retraction of her earlier living room statement of ownership of the contraband.
Tucker's bedroom conduct was relevant and admissible in view of the account of her living room actions, which was placed in evidence by the defendant. During cross-examination of another police officer, defendant had previously shown, over the prosecutor's objection, Tucker's claimed ownership of the drugs. Under such circumstances, the Commonwealth had the right to show her subsequent behavior to complete the account of her activity during the entire episode.
For these reasons, the judgment of conviction will be
Affirmed.