Demarkus C. Robinson
State of Alabama
from Jefferson Circuit Court (CC-16-2015)
appellant, Demarkus C. Robinson, was convicted of robbery in
the first degree, a violation of § 13-8-41, Ala. Code
1975, and was sentenced to 25 years' imprisonment.
Robinson does not challenge on appeal the sufficiency of the
evidence, a brief recitation of the facts is all that is
necessary for the disposition of this case. Jon Furman
testified that he was leaving a Birmingham nightclub at
approximately 2:00 a.m. on June 28, 2015, when he noticed a
young black man standing near Furman's parked vehicle.
The man "put a gun in [Furman's] face" and
ordered Furman to give him his wallet. (R. 125.) Finding the
wallet empty, the man demanded money from Furman and told
Furman "you're about to die." (R. 126.) At this
point, Robinson, who also carried a gun, approached Furman
and demanded money. After learning that Furman had no money,
Robinson told Furman to give him his car keys. Furman handed
over his car keys, and Robinson and the other man drove away
in Furman's car. After the incident, Furman telephoned
the police and spoke with Officer Torneshia Walker from the
Birmingham Police Department.
Pierson, a patrol officer with the City of Hoover, testified
that he initiated a traffic stop of Furman's vehicle on
July 12, 2015. Upon learning that the vehicle was reported
stolen, Pierson placed the driver, Jasmine Suggs, in custody
and transported her to the Hoover city jail.
J. Wilder, a detective with the Birmingham Police Department,
testified that the Hoover Police Department notified him
after they impounded Furman's vehicle. Detective Wilder
subsequently spoke with Suggs at the Hoover city jail. During
their conversation, Suggs told Detective Wilder that she
purchased the car "from a male that she knows as
Mark." (R. 211-12.) Detective Wilder searched
Suggs's cellular telephone and found a telephone number
for a contact named "Mark." (R. 212.) Upon entering
the telephone number into Birmingham's Law Enforcement
Records Management System, Detective Wilder identified
Robinson as the owner of the number. Detective Wilder
generated a photographic lineup and presented it to Furman,
who identified Robinson as the perpetrator.
both sides had rested and the circuit court instructed the
jury on the applicable principles of law, the jury found
Robinson guilty of first-degree robbery. This appeal
appeal, Robinson's sole contention is that the circuit
court erred when it allowed Detective Wilder to testify to
information he obtained during his conversation with Suggs --
namely, that she purchased the car "from a male that she
knows as Mark" -- because, he says, the statement was
inadmissible hearsay pursuant to Rule 802, Ala. R. Evid. (R.
211-12.) Specifically, Robinson argues that Suggs's
statement, although admitted as nonhearsay "under the
guise of it not being offered for its truth,"
constituted inadmissible hearsay because, he says, it was
"unnecessary to explain why Robinson became a
suspect" and was "[likely] misused by the jury in
determining Robinson's guilt." (Robinson's
brief, pp. 14-15.)
admission or exclusion of evidence is a matter within the
sound discretion of the trial court." Taylor v.
State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000),
aff'd, 808 So.2d 1215 (Ala. 2001). "The question of
admissibility of evidence is generally left to the discretion
of the trial court, and the trial court's determination
on that question will not be reversed except upon a clear
showing of abuse of discretion." Ex parte
Loggins, 771 So.2d 1093, 1103 (Ala. 2000).
"'Hearsay' is a statement, other than one made
by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter
asserted." Rule 801(c), Ala. R. Evid. "A statement
offered for a reason other than to establish the truth of the
matter asserted therein is not hearsay." Deardorff
v. State, 6 So.3d 1205, 1216 (Ala.Crim.App.2004) (citing
Smith v. State, 795 So.2d 788, 814
"'In D.H.R. v. State, 615 So.2d 1237
(Ala.Crim.App.1993), the appellant argued that hearsay had
erroneously been admitted when the officers were permitted to
testify about what the confidential informant had told them.
We disagreed, found that the evidence was not hearsay, and
stated, "[The officers'] testimony was received to
show the reasons for the officers' actions and how their
investigation focused on a suspect. Sawyer v. State,
598 So.2d 1035 (Ala. Cr. App. 1992)." 615 So.2d at 1330.
In accord, Miller v. State, 687 So.2d 1281, 1285
Robitaille v. State, 971 So.2d 43, 59
(Ala.Crim.App.2005) (quoting Deardorff v. State, 6
So.3d at 1217-18). In Ex parte
Melson, 775 So.2d 904 (Ala. 2000), the Alabama
Supreme Court said:
"We urge vigilance in evaluating any offer of testimony
about an out-of-court declaration 'not for the truth of
the matter asserted.' The admissibility of such testimony
depends on its being relevant to a proper issue in the case.
The first inquiry should be: 'if the out-of-court
declaration is not offered for its truth, is whatever the
declaration does tend to prove really at issue in
the particular proceeding?'"
Ex parte Melson, 775 So.2d at 907 n.2. In Ex
parte Toney, 854 So.2d 37, 41 (Ala. 2002), the Alabama
Supreme Court held that a probation officer's testimony
that non-witnesses saw the appellant in Tennessee -- which
would be a violation of the appellant's probation --
served no discernible purpose other than proving that the
appellant had been in Tennessee and was therefore
inadmissible hearsay. The Court stated that, "[a]lthough
'identification' evidence can sometimes legitimately
be admissible for a purpose other than to prove the truth of
the matter asserted ... the State has not suggested any
'other' purpose for which the statements by the
[non-witnesses] were offered into evidence." Ex
parte Toney, 854 So.2d at 41; See also Spradley v.
State, 128 So.3d 774, 786 (Ala.Crim.App.2011)
("[Detective] Edge's testimony was neither relevant
to show nor offered to prove anything other than the truth of
the matter asserted, i.e., that Jason's credit cards were
used after her murder at specific times and specific
"The judicial opinions have not accepted all prosecution
attempts to characterize an out-of-court statement as
relevant and admissible for a purpose other than the truth of
the matter asserted. One situation where this
characterization has been questioned involves prosecution
attempts to offer testimony from a police officer relating
out-of-court incriminating statements made by an absent
witness or informant, not for the truth of the incriminating
statements, but, to explain why an arresting or investigating
officer conducted the investigation as they did.
"The danger, of course, is that if all accusatory
out-of-court statements were admissible to explain why the
police arrested the defendant or conducted the investigation
as they did it would eviscerate the constitutional right to
confront and cross-examine one's accuser. The reason for
police presence at a particular scene, or for the way police
conducted an investigation may very well be relevant evidence
within the context of a particular case. Where there is a
possibility that the jury may be misled, police officers
should be allowed to explain why they were present at a
particular scene, or why they conducted an investigation in a
certain manner. [Footnote omitted.] On the other hand,
accusatory details contained in out-of-court statements are
rarely necessary for this purpose, and the likelihood that
such testimony will be misused by the jury and considered for
its truth is not insignificant. Often an explanation that an
officer acted 'upon information received,' or words
to that effect, would be sufficient to explain police
presence and conduct without necessitating the disclosure of
historical or accusatory facts under the pretext that the
details are not being offered for their truth."
McElroy's Alabama Evidence § 242.03(4)(e)
(6th ed. 2009)(footnotes omitted).
the testimony of Detective Wilder, the following occurred:
"Q. Okay. During the course of your investigation, did
-- was Ms. Suggs able to tell you how she got the vehicle?
"A. Yes, sir.
"Q. What did she tell ...