Commonwealth v. Cepeda

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. FRANKLIN CABRERA CEPEDA, JR., and GEORGE ILO, Defendants, FRANKLIN CABRERA CEPEDA, JR., Defendant-Appellant. SUPREME COURT NO. 05-0011-GA SUPERIOR COURT NO. 03-253D Cite as: 2009 MP 15 Decided November 19, 2009 Melissa Simms, Assistant Attorney General, Commonwealth Attorney General’s Office, for Appellee Michael A. Pangelinan, Saipan, Northern Mariana Islands, for Defendant-Appellant BEFORE: MIGUEL S. DEMAPAN, Chief Justice; ALEXANDRO C. CASTRO, Associate Justice; JOHN A. MANGLONA, Associate Justice  CASTRO, J.: ¶1 Appellant Franklin Cabrera Cepeda, Jr., (“Cepeda”) appeals his convictions for first degree murder, robbery, aggravated assault and battery, assault with a dangerous weapon, and conspiracy. Cepeda argues that: (1) hearsay and prejudicial character testimonies were improperly admitted; (2) the trial court erred by not instructing the jury to consider whether he had specific intent to permanently deprive the victim of his property; (3) he was deprived of effective assistance of counsel; and (4) the cumulative effect of trial court errors prejudiced his case sufficiently to warrant reversal of all convictions. Because both character evidence and hearsay testimony are only admissible if they satisfy certain conditions set forth in the Commonwealth Rules of Evidence, and the testimonies at issue on appeal failed to meet those conditions, we hold that they were improperly admitted. We further hold that specific intent is an essential element of the crime of robbery and that the trial court had a duty to sua sponte instruct the jury.1 Accordingly, we VACATE Cepeda’s convictions and REMAND this matter to the trial court for a new trial. I Factual Background ¶2 In the early morning of March 1, 2000, two men entered the Yellow House Karaoke Bar (“Yellow House”) in San Jose and stabbed the owner, Rong Matthew Zhou (“Zhou”),2 multiple times with a knife and struck him in the head with a blunt object. At approximately 3:00 a.m., the police arrived at the scene and found Zhou dead. The police collected various pieces of evidence, including tire tracks, footprints, and beer cans; however, no knife was found. Ms. Quixing You, a bystander, identified Jose Deleon Guerrero (“Guerrero”) as one of the attackers. Guerrero was charged with Zhou’s murder, but was acquitted by a jury of all charges. ¶3 In 2003, police reopened the investigation into Zhou's death based on a tip that Cepeda, Benjamin Fitial (“Fitial”), and Guerrero’s cousin, George Ilo (“Ilo”), had been involved. The tip came from Cepeda’s father, Francisco Cepeda (“Cepeda Sr.”),3 who claimed to have knowledge that his son was involved in a crime that Guerrero had been accused of committing. When questioned, Ilo told police that both he and Cepeda were involved in Zhou’s death. Ilo confessed to stabbing Zhou, and on December 30, 2003, pled guilty to second degree murder and was sentenced to eighteen years in prison pursuant to a plea agreement. ER at 155. Cepeda was subsequently charged in connection with Zhou’s death, but 1 Because we dispose of this appeal on the above grounds, we need not address Cepeda’s ineffective assistance of counsel argument. 2 At trial, Zhou was also referred to as “Matthew.” See, e.g., Appellant’s Excerpts of Record (“ER”) at 134- 35 (during direct examination of Ilo). 3 Francisco Cepeda is also referred to by the parties as “Franklin Cepeda, Sr.” See, e.g., Appellee’s Br. at 10.  denied any involvement. ¶4 At Cepeda’s trial, the Commonwealth presented several witnesses. Ilo testified that he, Fitial, and Cepeda had been drinking on the day of the incident, and that they went to Yellow House because they needed money to buy crystal methamphetamine. When they arrived, Zhou was not there. When Zhou did arrive, Cepeda retrieved a knife and bat from the trunk of his car, gave the knife to Ilo and then covered his own face with a bandana. Once inside Yellow House, Cepeda began swinging the bat, and Zhou jumped toward Ilo. When Ilo called to Cepeda for help, Cepeda hit Zhou in the back of the head, causing Zhou to fall. The knife went through Zhou’s stomach as he fell. Ilo also testified that Cepeda then stabbed Zhou in his lower chest and took Zhou’s wallet before they both returned to their car. Since Ilo testified in connection with his plea agreement, the trial court instructed the jury on the reliability of his testimony.4 ¶5 The Commonwealth also put forth testimony from Cepeda’s father. While discussing his relationship with his son, the following exchange occurred: Q: Now would you tell the court a little bit about Franklin’s life with you and your wife and his brothers and sisters. A: Franklin is my second son and while he was growing up he’s the naughtiest. He’s rebellious. I’d tell him not to do something and I turn my back, most of the time he does what I tell him not to do. ER at 68. Defense counsel objected to this line of questioning on relevance grounds. The Commonwealth responded that it was permissible because defense counsel had “opened the door” to character evidence during opening statement by raising the issue of whether Cepeda Sr. beat Cepeda as a child.5 In response to the objection, the court stated that the Commonwealth was asking a narrative question and asked counsel to “break it down.” Id. ¶6 Cepeda Sr. later testified about a separate incident where he had been called at work because Cepeda had a gun: Q: Did you use any other special things to beat Franklin. A: I do remember one day when I was at work and I was called that my Franklin, my son, had a gun. Mr. Pixley:6 I object to the hearsay Your Honor. 4 The trial court charged the jury as follows: “You have heard testimony from George Ilo, a witness who has been charged and has entered into a plea agreement with the Commonwealth in this case. In evaluating George Ilo’s testimony, you should consider the extent to which or whether his testimony may have been influenced by his plea agreement with the Commonwealth. In addition, you should examine the witness testimony with greater caution than that of the other witnesses.” ER at 12. 5 During opening statement defense counsel stated, “[Cepeda Sr.] . . . I can tell you, he’s not a loving father. He’s a vicious, evil man who beat Frank Cepeda with a wire, [sic] numerous occasions and that will come out.” ER at 37. 6 Cepeda’s trial attorney.  The Court: Sustained Ms. Warfield:7 And I will submit to the court that it’s not for the truth of The Court: Well, sustained. Ms. Warfield: Yes Your Honor. Q: When you heard that, what did you do. I’d ask you not to mention that again, but when you heard that, what did you do. A: I have to drive all the way home to find out what actually transpired. I asked my other son, Immanuel. He told me what happened. My strict instruction is that none of my children is allowed to go inside my bedroom because I have things that they are not supposed to touch. And for that reason, I did went all the way out and instead of using the belt, I did use a wire. I cannot forget that day. Q: Will you please tell, tell the jury about that day Mr. Cepeda. A: I am working to provide for them their needs and I have given instructions that they should respect and I had a gun. I do not want any of my children to, to be near that. That is why I gave that specific instruction that no one is authorized to go into my bedroom, but yet he did not respect that instruction. ER at 69.8 Shortly thereafter, Cepeda Sr. also testified, “I do not understand why my son is like this. It is not what I taught him.” ER at 70. ¶7 The Commonwealth also questioned Cepeda Sr. concerning how he learned of his son’s potential involvement in Zhou’s death, and about his subsequent decision to call the police. The following testimony was elicited: A: [Fitial] said to me, he has something that he wants to tell me but it’s very, it is very hard for him to tell me. Mr. Pixley: Object, move to strike. The Court: Overruled. ER at 73. Defense counsel again objected that anything Fitial told Cepeda Sr. was hearsay. The court again overruled this objection, and Cepeda Sr. continued his testimony: A: [Fitial] said, your son is involve[d] in the Yellow House incident. Mr. Pixley: Objection again, move to strike. The Court: Overruled. A: I said what do you mean. He said they were drinking and my son said he wanted to take Benjie, I mean he wanted Benjie to drive them, him and George, because he wanted to check somebody in San Jose. ER at 74. Defense counsel again objected on hearsay grounds, and after the court called a sidebar conference the jury was instructed to disregard Cepeda Sr.’s last statement. ¶8 The Commonwealth also put forth testimony from Detective Hosono (“Hosono”), who had investigated Cepeda’s possible involvement in Zhou’s death. Hosono testified about information gathered from witnesses during his investigation. Defense counsel objected repeatedly to Hosono’s testimony, including to the following narrative, now controverted on appeal: 7 Trial attorney for the Commonwealth. 8 For reference purposes, the exchange presented in ¶ 6 will be hereafter referred to as the “gun incident.”  Frankie got a knife. He gave the knife to George, took the bat, they went up. Went upstairs. George Ilo was leading while heading up the stairs. Frankie Cepeda was behind. * * * He was poking George to go in. George stepped in and pushing Matthew behind. They went on a struggle on the knife and from that struggle, the knife was turning towards Ilo. He shouted for help. Frankie came from behind, struck Matthew on the head. On the first strike, he lost his grip which the knife went through his abdominal. Ilo backed out. When he backed out, Cepeda came from behind, shouted, Buddy, what are you doing or what happened, but it was in Chamorro verse. So, he took the knife. He dropped the bat, George took the knife or George took the bat, Frankie took the knife. After that, George Ilo also witnessed Frank Cepeda taking the cash, the wallets from Mr. Matthew’s pocket. ER at 88-89. The trial court permitted this testimony on the ground that it indicated how Hosono conducted his investigation and because it was not offered to prove the truth of the matter asserted. The trial court gave a limiting instruction regarding Hosono’s testimony.9 ¶9 After all of the evidence was presented, the trial court gave the jury several instructions, one of which dealt with the elements of robbery: The Defendant is charged in Count XV of the Information of Robbery, in violation of 6 CMC §1411(a). In order for the defendant to be found guilty of robbery, each of the following elements must be proved beyond a reasonable doubt. 1. The Defendant took property from the person of or the immediate control of Zhou Rong, and 2. The Defendant did so by use of threat – or threatened use or immediate force or violence. If after considering all the evidence you find that the Commonwealth has not proven each element beyond a reasonable doubt, you should find the Defendant not guilty of robbery. If after considering all of the evidence you find that the Commonwealth has proven each element beyond a reasonable doubt, you should find the Defendant guilty of robbery. ER at 20-21. This instruction mirrored the Commonwealth robbery statute and defense counsel neither objected to nor requested an alternate instruction.10 9 The jury was given the following instruction during Hosono’s testimony: “[T]estimony of Officer Hosono does not suggest that he has personal knowledge of what had happened on March, the early morning hour of March 1st, two thousand and [sic], two thousand, but merely what he has gathered as his information regarding the investigation that he was involved [sic].” ER at 97. 10 The Commonwealth claims that “[t]he record is silent as to what occurred during the charging conference, as it was not included in Appellant’s citations of record. It does not appear that the charging conference was held on the record, and thus, is silent on the issue of whether Appellant objected to any proposed jury instruction. It is therefore assumed that Appellant did not object to the Robbery jury instruction, and thus, has waived this issue before this Honorable Court.” Appellee’s Br. at 15. It is the Appellant’s burden to provide a record containing properly preserved errors, and to this end we note the value of either recording the charging conference or at least stating on the record whether any objections were made. Since the record contains no record of an objection, we review for plain error. See infra ¶ 30. ¶ 10 The jury returned a verdict finding Cepeda guilty of robbery, which then served as the predicate felony for his first degree murder conviction. Cepeda was also convicted of aggravated assault and battery, assault with a dangerous weapon, and conspiracy. Cepeda now appeals his convictions11 on the grounds of improper admission of hearsay and character testimonies, inadequate jury instructions, ineffective assistance of counsel, and cumulative error.12 II Admission of Evidence at Trial ¶ 11 Cepeda asserts a number of issues on appeal and we turn first to his argument that character evidence and hearsay testimony were wrongly admitted at trial. Defense counsel argues that Cepeda Sr.’s testimony improperly addressed Cepeda’s character, and that his testimony concerning the “gun incident” was evidence of a prior bad act and inadmissible. Cepeda also asserts that the trial court erred by admitting Cepeda Sr.’s testimony concerning an out-of-court conversation with Fitial, as well as Hosono’s testimony describing the events immediately preceding Zhou’s death. Given the range of evidentiary principles implicated by each challenge, we will examine each separately. ¶ 12 We review a trial court’s decision pertaining to the admission of evidence for abuse of discretion. Norita v. Norita, 4 NMI 381, 383 (1996). “An abuse of discretion exists if the [trial] ‘court based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’” Commonwealth v. Campbell, 4 NMI 11, 16 (1993) (quoting Lucky Dev. Co., Ltd. v. Tokai, U.S.A., Inc., 3 NMI 79, 84 (1992)). A. Character Testimony was Improperly Admitted ¶ 13 Cepeda argues that the trial court improperly admitted testimony from Cepeda Sr. that Cepeda was “naughty,” “rebellious,” and of a generally disobedient character. Cepeda claims that this testimony was highly prejudicial and irrelevant to any material issue regarding his guilt, particularly because at trial Cepeda never offered any evidence of his good character, or evidence of the bad character of the victim. Furthermore, Cepeda argues that there is a “reasonable probability” that the jury gave his father’s testimony considerable weight,13 and thus, admitting the testimony materially affected the verdict. 11 We note that the trial court sentenced Cepeda to a single prison sentence of sixty-six years. Every charge Cepeda was convicted of has a prescribed sentencing range and Cepeda must be sentenced within the sentencing range applicable for each conviction. A blanket sentence for all of Cepeda’s convictions violates his due process rights and, at the same time, hinders our ability to review the convictions and sentence. 12 In view of our disposition – vacating all convictions and remanding the case for a new trial – we need only consider those issues that are likely to recur at any subsequent trial. See State v. Murphy, 7 Wash. App. 505, 508 (1972). 13 During sentencing, the trial court explained that Cepeda is “not an evil person,” but rather, “agaguat,” naughty, and rebellious, refusing to be told what to do. ER at 394-95. Defense counsel draws the Court’s attention to the fact that these statements “echo the testimony of [Cepeda Sr.], who characterized his son as naughty, ¶ 14 The Commonwealth responds that defense counsel’s assertion during opening statement that Cepeda was beaten by this father “opened the door” to testimony that Cepeda Sr. was not the “vicious, evil man” Cepeda alleged, and that Cepeda was not the only child that Cepeda Sr. punished. In response to testimony concerning the “gun incident,” the Commonwealth argues that after the trial court sustained defense counsel’s objection Cepeda Sr. did not venture into the subject again. ¶ 15 Courts are divided on the particular “open the door” theory of admissibility argued by the Commonwealth. Some federal courts have held that “a party who raises a subject in an opening statement ‘opens the door’ to admission of evidence on that same subject by the opposing party.” United States v. Magallanez, 408 F.3d 672, 678 (10th Cir. 2005) (citation omitted); accord United States v. Croft, 124 F.3d 1109, 1120 (9th Cir. 1997) (holding that the defendant opened the door to bolstering testimony of a prosecution witness by branding that witness a liar in opening statement); United States v. Knowles, 66 F.3d 1146, 1161 (11th Cir. 1995) (ruling that defense counsel attacking credibility of government witness during opening statement opened the door for prosecution to introduce on direct examination plea agreements of witnesses with statements requiring truthful testimony). Other federal courts, however, have held that an opening statement has no evidentiary value, and as such cannot operate to place an issue in controversy. See, e.g., United States v. Tomaiolo, 249 F.2d 683, 689 (2d Cir. 1957) (holding that the rule relating to the introduction of rebuttal evidence involved only the rebuttal of actual evidence, specifically, sworn testimony, and that any argument made in an opening statement could effectively be explained or neutralized by counter-argument or trial court instruction); United States v. McLister, 608 F.2d 785, 790 (9th Cir. 1979) (ruling that counsel's opening statement could not have placed the defendant's character at issue). ¶ 16 Many state courts have ruled that remarks made during opening statement do not open the door to admission of rebuttal evidence on the same subject. See, e.g., Rufo v. Simpson, 86 Cal. App. 4th 573, 603-04 (2001) (finding that opening statement is not evidence); State v. Donovan, 698 A.2d 1045, 1048 (Me. 1997) (“The defendant's opening statement did not ‘open the door’ for rebuttal evidence concerning matters never placed in issue by the evidence.”); State v. Bronner, 2002 Ohio 4248, P57 (2002) (“Because statements regarding the potential bias of a prosecution witness made in opening statement are not evidence, such statements may not lay a foundation for or open the door to rebuttal with otherwise inadmissible character evidence as to the defendant.”); Cooper v. Commonwealth, 31 Va. App. 643, 650 (2000) (“The opening statement is not evidence, and, thus, cannot ‘open the door’ for otherwise inadmissible prior crimes evidence.”). But see Bass v. State, 270 S.W.3d 557, 562 (Tex. Crim. App. 2008) (finding that defendant’s opening statement opened the door to extraneous offense evidence to rebut a ‘rebellious,’ generally ‘do[ing] what I tell him not to do,’ and never learning the ‘lesson’ his father’s frequent punishments were meant to impress upon him.” Appellant’s Opening Br. at 23 (quoting ER at 68, 79).  defensive theory). Where opening statement is deemed not to be evidence and “improper remarks are made by counsel, the remedy lies in a curative instruction to the jury or, if absolutely necessary, a mistrial.” Winfred D. v. Michelin North America, Inc., 165 Cal. App. 4th 1011, 1027 (2008) (quoting State v. Anastasia, 356 N.J. Super. 534, 542 (2003)). ¶ 17 The Commonwealth argues that it offered Cepeda Sr.’s testimony not “to improperly place [Cepeda’s] character into evidence, rather it was offered by the prosecution as a means to rebut Appellant’s argument that perhaps he was involved in this incident due to his horrible upbringing by a ‘vicious, evil man.’” Appellee’s Br. at 24 (quoting ER at 37). After examining how other jurisdictions have treated this issue,14 we must reject the Commonwealth’s argument. We hold that remarks made during opening statement have no evidentiary value and cannot lay a foundation for, or open the door to, rebuttal with otherwise irrelevant and inadmissible character evidence.15 In reaching this decision we believe that, as suggested in Winfred and Anastasia, such remarks are best neutralized not by admitting otherwise inadmissible evidence, but by counterargument or with a curative instruction from the trial court judge. In contrast to such measured alternatives, admitting evidence of Cepeda’s bad acts as a child served no probative function except to inflame the minds and passions of the jury against Cepeda. As stated in the jury instructions in this case, “[a]rguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements . . . is not evidence.” ER at 13. We find no need to unsettle this rule. B. Evidence of the “Gun Incident” was Improperly Admitted ¶ 18 Testimony by Cepeda Sr. concerning the “gun incident” was also improperly admitted. The Commonwealth Rules of Evidence provide that, subject to limited exceptions, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” NMI R. Evid. 404(b). The Commonwealth claims that after Cepeda’s hearsay objection was sustained, Cepeda Sr. “did not venture into the issue of the gun again.” Appellee’s Br. at 24. The trial transcript suggests otherwise. For example, following the sustained objection, Cepeda Sr. testified that he gave a “strict instruction” to his children to not go into his bedroom, and that Cepeda “did not respect that instruction.” ER at 69. This testimony had no probative value other than to show Cepeda’s propensity for committing bad acts – an impermissible use of such testimony under Rule 14 Pursuant to 7 CMC § 3401, when we have no guidance from our own rules and statutes we look to restatements and the law as generally understood and applied throughout the United States. See infra ¶ 34. 15 The Commonwealth Rules of Evidence provide that, “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” NMI R. Evid. 404(a). Limited exceptions to this rule provide that such evidence is admissible when “offered by an accused, or by the prosecution to rebut the same,” or after the accused has already caused evidence of the same “trait of character of the alleged victim of the crime” to be admitted. NMI R. Evid. 404(a)(1)-(2).  404(b). Additionally, the Commonwealth failed to assert that the testimony was subject to any of the exceptions laid out in the rule. Accordingly, we find that testimony concerning the “gun incident” was improperly admitted. C. Cepeda Sr.’s Conversation with Fitial was Hearsay and Improperly Admitted ¶ 19 Cepeda argues that the trial court erroneously admitted testimony by Cepeda Sr. concerning his discussion with Fitial and subsequent decision to call the police. Cepeda contends that whether Fitial’s statement led Cepeda Sr. to call the police was irrelevant to any element of the charged crimes or asserted defenses, or any other material issue in this case. Cepeda also asserts that such testimony was highly prejudicial because it led the jury to believe that Fitial was a credible witness based on the fact that Cepeda Sr. found Fitial’s statements credible enough to call the police. Cepeda argues that without this bolstered credibility, the jury may have placed less weight on Fitial’s testimony because Fitial was a drug user who admitted to being passed out drunk when Zhou was killed. The Commonwealth responds that testimony concerning Cepeda Sr.’s conversation with Fitial was properly offered to show the effect of the contested statements on Cepeda Sr.’s state of mind, and was necessary for the jury to understand the origins of the police investigation and to avoid jury confusion in light of that fact that Guerrero had previously been acquitted of the same crime. ¶ 20 “‘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.” NMI R. Evid. 801(c). While hearsay is generally inadmissible, it may be admitted if the statement is explicitly defined as non-hearsay by Commonwealth Rule of Evidence 801(d), or if one of the hearsay exceptions enumerated in Rules 803, 804, or 807 applies. A statement is not hearsay “if it is used only to show the effect on the listener, without regard to the truth of the statement.” Washington v. Edwards, 131 Wash. App. 611, 632 (2006) (citations omitted). In Edwards, detective testimony concerning out-of-court statements by an informant was offered to show why the detective started his investigation. Id. at 614. The Washington Court of Appeals ruled that the testimony was not relevant because the reason the investigation began was not in controversy, and furthermore that such evidence was inadmissible hearsay because the detective’s “state of mind is simply not relevant to whether [the defendant] committed the crimes charged.” Id. at 615. ¶ 21 Analogous to the situation in Edwards, we conclude that Cepeda Sr.’s role in prompting the police to investigate his son was not relevant in this case. More specifically, the effect that Fitial’s statements had on Cepeda Sr.’s mental state does not make it any more or less probable that his son committed the charged crimes. Instead, such comments are relevant to explain the origin of the police investigation, which was never contested at trial. Given this lack of relevance, the only relevant purpose for such testimony arises from its value in implicating Cepeda. Such a use constitutes hearsay, and thus the testimony was wrongfully admitted.  D. Detective Hosono’s Testimony was Improperly Admitted ¶ 22 Cepeda argues that portions of Hosono’s testimony should have been excluded because they were irrelevant and hearsay. Cepeda contends that Detective Hosono’s lengthy “narrative regarding what he believed happened the night of the Yellow House murder . . . was conclusory and stated as if he were relating substantiated findings of fact, despite [his own] admission that he did not have personal knowledge of most of the events to which he testified.” Appellant’s Opening Br. at 25. Furthermore, Cepeda argues that even though Ilo and Fitial were subjected to cross-examination and the trial court gave a limiting instruction regarding Hosono’s testimony,16 the resulting prejudice was material because as an accomplice, Ilo’s testimony was inherently suspect. Cepeda claims that the trial court’s instruction “served to sanction the improper testimony by allowing the jury to consider it despite its irrelevance and the inapplicability of any hearsay exception.” Id at 27. Additionally, Cepeda argues that admission of hearsay testimony was prejudicial because by having Hosono, a respected law enforcement member, “essentially offer up [Fitial’s and Ilo’s] hearsay statements as his own testimony,” the Commonwealth “was able to give those statements an official imprimatur of credibility, which would have otherwise been lacking had it been offered by [Fitial and Ilo] alone.”17 Id. at 28. ¶ 23 In response, the Commonwealth argues that Hosono’s testimony was offered to explain why he conducted the investigation in the manner that he did. The Commonwealth argues that the trial court properly addressed Ilo’s credibility through a jury instruction,18 and that arguments concerning Ilo’s and Fitial’s credibility invade the province of the jury by second-guessing the jury’s ability to “assess witness credibility to resolve evidentiary conflicts and draw reasonable inferences from proven facts.” Appellee’s Br. at 28 (citing Commonwealth v. Castro, 2007 MP 9 ¶ 11 (citing United States v. Ramos, 558 F.2d 545, 546 (9th Cir. 1997))). Additionally, the Commonwealth contends that since both Ilo and Fitial were available for cross-examination, any prejudice to Cepeda resulting from Hosono’s testimony was cured. ¶ 24 We previously set forth the applicable rules governing hearsay,19 and now focus on how these rules apply with respect to police officer testimony. “Out-of-court declarations made to a law enforcement officer may be admitted to demonstrate the officer's or the declarant's state of mind only if their state of mind is relevant to a material issue in the case; otherwise, such declarations are hearsay.” State v. Johnson, 61 Wash. App. 539, 545-46 (1991) (citations omitted). The court in Johnson relied on State v. 16 See supra note 9. 17 Cepeda claims that testimony by Ilo and Fitial had multiple credibility issues marked by unreliable memories, refusals to answer straightforward questions and by virtue of that fact that those witnesses were accomplices in the alleged crime. Appellant’s Opening Br. at 27-28. 18 See supra note 4. 19 See supra ¶ 20.  Lowrie, 14 Wash. App. 408 (1975), in which a detective testified that an informant had told him about the defendant’s involvement in the charged crimes. The trial court admitted the testimony on the grounds that it was not offered for the truth of the matter asserted, but only to show that the statement to the detective resulted in police action. Id. at 412-13. Reversing the trial court, the Washington Court of Appeals expressly rejected the trial court’s reasoning, stating that neither the contents of the statement given to police nor the subsequent police action were in question. Id. at 413. Accordingly, because the “sole question presented to the jury was whether or not the defendant was involved in the commission of the crimes,” the testimony was not relevant “to any issue before the trial court, except to prove the truth of the matter asserted.” Id. ¶ 25 Courts in other jurisdictions have limited police officer testimony in similar situations. Under the “explanatory exception” to the hearsay rule, some courts allow “the admission of statements that explain the progress of a police investigation under the rationale that such evidence is not offered for its truth” but instead for the limited purpose of showing the course of police action. See People v. Peoples, 377 Ill. App. 3d 978, 984 (2007) (citation omitted). The Commonwealth argues that Hosono’s statements were not offered for the truth of the matter asserted, but “to explain why Hosono conducted the investigation in the way he did, and why he spoke with the people he did.” Appellee’s Br. at 28. An often-quoted excerpt further summarizes the relevant rule and underlying rationale: In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence in conduct. . . . [The Officer] will often explain [his actions] . . . by stating that he did so ‘upon information received’ and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay. McCormick on Evidence, § 248 (2d ed. 1972). ¶ 26 Courts have been mindful to ensure that this hearsay exception does not “become a passkey to get to the jury the substance of . . . out-of-court information, directly or indirectly, that otherwise might be barred by the hearsay rule.” Louisiana v. Legendre, 942 So. 2d 45, 53 (La. Ct. App. 2006). To this end, in determining admissibility, courts have focused on whether an officer’s testimony is necessary for the jury to understand the police conduct, and whether the officer had personal knowledge of the events in question. In Commonwealth v. Palsa, 521 Pa. 113 (1989), a police officer testified to out-of-court statements made by an individual who had implicated the defendant. While the trial court admitted the statements, the Pennsylvania Supreme Court reversed, reasoning that the statements did not “provide[] only the information necessary for a reasonable understanding of police conduct,” and that “the police easily could have explained the course of conduct pertaining to their investigation . . . without resorting to the full and explicit statements” given by the out-of-court declarant. Id. at 119. Whether a testifying  officer has personal knowledge of the subject of his or her testimony also plays a critical role in determining the admissibility of such statements. See Montana v. Suit, 277 Mont. 227, 230-31 (1996) (holding that police officer testimony concerning date of shooting and identity of shooter was inadmissible where testimony was based on out-of-court statements and not personal knowledge). Accordingly, while general testimony that an officer spoke with an individual is permissible, testimony that “recounts the substance of a conversation is not within the officer’s knowledge and is inadmissible hearsay.” Illinois v. Sample, 326 Ill. App. 3d 914, 920-21 (2001) (citing People v. Gaucho, 122 Ill. 2d 221, 248 (1988)). ¶ 27 We reject the Commonwealth’s contention that Hosono’s testimony was properly admitted. Both parties agree that Hosono had no personal knowledge of the facts underlying his narrative testimony purportedly describing the moments leading up the Zhou’s death. Admittedly, there is a “subtle, and elusive, difference between the use of statements to establish the truth of facts averred . . . and their use to establish a course of conduct by police.” Palsa, 521 Pa. at 120. However, while a trial court must exercise discretion when balancing the necessity of such background information against its improper effect, Hosono’s testimony impermissibly tipped the scale in favor of the Commonwealth. Similar to Pasla, Hosono’s testimony went beyond explaining the investigative steps taken, and reached the substance of the conversations he had with Ilo, Fitial and other witnesses. Moreover, as in Lowrie, the only questions presented to the jury in this case concerned Cepeda’s involvement in the crimes, and therefore the testimony was only relevant to prove the truth of the matter asserted. Hosono’s explicit, detailed testimony in no way provided the jury with necessary information about the investigation, was in no way grounded in the officer’s personal knowledge, and was therefore impermissible hearsay. ¶ 28 We also reject the Commonwealth’s contention that the ability to cross-examine Ilo and Fitial sufficiently minimized the prejudicial effect of Hosono’s testimony. While the above-cited cases deal with officers testifying to out-of court statements of witnesses who did not testify at trial, this distinction does not undermine the application of these cases to the present context. First, Hosono stated that his testimony was based on his investigation, which included interviewing 8-10 witnesses, some of whom did not testify at trial subject to cross-examination. ER at 97. Moreover, Hosono did not simply relay an out- of-court statement made by a testifying witness, but instead drew upon conversations with multiple witnesses in reciting his narrative summary of the night of Zhou’s death. While the former situation may be conduciv