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Robinson v. State

Alabama Court of Criminal Appeals

August 10, 2018

Demarkus C. Robinson
State of Alabama

          Appeal from Jefferson Circuit Court (CC-16-2015)

          KELLUM, JUDGE.

         The 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.

         Because 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.

         Jeremy 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.

         Arthur 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.

         After 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 followed.

         On 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.)

         "The 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 (Ala.Crim.App.2000)).

         We have held:

"'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 (Ala.Crim.App.1996).'"

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 places.").

"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).

         During 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 ...

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