Opinion
May 13, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 256
John D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., John R. Rodman, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Agee, Fann, Ewing & Goldstein, Peter A. Goldstein, Colorado Springs, for defendant-appellant.
SILVERSTEIN, Chief Judge.
Defendant Floyd Orlando Martinez was convicted by a jury of sale of a narcotic drug and conspiracy to commit sale of a narcotic drug. In this appeal he urges reversal on the basis of an alleged error committed by the trial court in admitting into evidence a statement of a codefendant contrary to the hearsay rule. We find no reversible error and affirm the conviction.
Defendant's conviction was based on evidence of two Special Agents who testified for the prosecution that they went to the house of Fred Monson to buy narcotics. Monson was a codefendant in the trial court who had pleaded guilty prior to Floyd Martinez' trial. After Monson had taken the agents to the house of a third party in an unsuccessful attempt to 'make a buy,' the three returned to Monson's home. After some discussion with his wife, Monson made a phone call. One of the agents testified, over defendant's objection, that he heard Monson say, 'Is Floyd there?' Thereafter the telephone conversation continued, but the agent didn't hear what was said.
In about 20 minutes the defendant, Floyd Martinez, came to the house and entered. After some conversation Floyd agreed to get some heroin, but insisted on being paid first. The agents, after obtaining satisfactory assurance that he would return, gave Floyd $200. Floyd departed and returned about two hours later and handed Monson, in the presence of the agents, a tinfoil packet which Monson opened. In defendant's presence, he parceled out and handed to the agents a part of the white powder which the packet contained. The powder was later analyzed by the police and was proven to be heroin.
On behalf of the defendant, Monson testified that he did not make a telephone call in the presence of the agents. In his testimony defendant denied receiving any money or delivering any drug.
As his sole ground for reversal, defendant asserts that the admission of Monson's extrajudicial statement, 'Is Floyd there?' was error. We disagree.
The evidence was offered for proof only of a verbal act, and as such was admissible, since its value did not depend on the competency and credibility of someone other than the witness testifying to it. Fernandez v. People, 176 Colo. 346, 490 P.2d 690. A verbal act occurs 'when the utterance Accompanies conduct to which it is desired to attach some legal effect. The conduct or act has intrinsically no definite significance, or only an ambiguous one, and its whole legal purport or tenor is to be more precisely ascertained by considering the words accompanying it. The utterance thus enters merely as a verbal part of the act. . . .' 6 J. Wigmore, Evidence s 1772 (3rd ed.).
'The hearsay rule, with certain exceptions, generally forbids evidence of out of court utterances to prove the facts asserted in them. However, proof of utterances may be made with an almost indefinite variety of other purposes not resting for their value on the veracity of the out of court declarant and hence falling outside the hearsay classification.' Abeyta v. People, 156 Colo. 440, 400 P.2d 431.
Such was the case here.
Judgment affirmed.
VAN CISE and KELLY, JJ., concur.