dissenting.
While agreeing in all respects with the dissenting opinion of Chief Justice Bard-gett, I believe the situation warrants voicing some additional objections to what I consider to be a dangerous and unfair change in the rules of evidence and relevancy in criminal cases.
The principal opinion holds that the trial court erred in sustaining defendant’s objection to testimony, at trial, of the police officer’s testimony as to the informant’s statements. This, of course, means that the officer’s testimony regarding the informant’s statement that defendant was selling heroin at 2918 Sheridan was admissible in evidence, as well as in the opening statement. None of the cases cited by the principal opinion support such a position. State v. Harris, 571 S.W.2d 443, 446 (Mo.App.1978) does not stand for the proposition that the officer here could testify as to second hand information received that defendant was selling heroin at 2918 Sheridan to explain the officer’s surveillance of the house. In Harris, the policeman testified that when he arrested four persons, including defendant, in an automobile containing recently stolen property, that “everybody in the car denied ownership of the property” and “nobody knew nothing about any of the property that was in the car.” There is no similarity in fact or principle between the remarks admitted in Harris and the statement involving criminal activity of the defendant made in the present case. Harris does not support the principal opinion.
State v. McRoberts, 485 S.W.2d 70, 73 (Mo.1972) holds that two officers’ testimony regarding a police radio communication describing an automobile used in an assault and robbery could be used to show probable cause for stopping and searching the automobile in which defendant was riding. There was no mention of defendant in the broadcast.
In State v. Barnes, 345 S.W.2d 130, 131—132 (Mo.1961), the trial court permitted two officers to testify that they received a description of a robbery suspect on the police radio. However, there was no mention of defendant as being the suspect. It is noteworthy that the trial court in Barnes would not permit the police officer to relate that part of the radio broadcast giving the description of the robbery suspect.
In State v. Bright, 269 S.W.2d 615, 623 (Mo.1954), several postal inspectors were permitted to testify that the superintendent of a dress manufacturer told them that dresses “were being misplaced or misappropriated” and that “we received reports that stuff was missing.” The court held that *27such testimony was used not to show that the dresses had been stolen, but rather as a background to the postal inspectors’ subsequent activities. There was no mention in the above-quoted testimony of who was stealing the dresses or of anything about defendant.
In State v. Lewis, 576 S.W.2d 564, 566-567 (Mo.App.1979), two detectives were permitted to testify that they had received information that a certain cab stand was the locus of transactions in stolen property. The court held that the testimony was not used to show that the cab stand was a fencing location, but as background to the detectives’ subsequent activities. There was no testimony as to who was fencing stolen property.
None of the cases cited by the principal opinion permitted the use of out of court declarations to establish the name, identity or prior criminal activity of the defendant when providing a background to subsequent activities of investigative authorities. In the case at bar, the prosecutor in his opening statement stated that the police had “received information that .. . heroin was being sold at 2918 Sheridan by Paul Brooks.” (emphasis supplied). The principal opinion would hold that testimony to that effect was admissible at trial as well as permitting it in the opening statement. I cannot see how attributing the sale of heroin to Paul Brooks helps explain why the police were staking out 2918 Sheridan. They would have done the same had John Doe been selling heroin at 2918 Sheridan. The use of defendant’s name was unnecessary and irrelevant to the purpose. Going on to identify defendant by name inevitably conveys to the jurors that in truth and in fact it is the defendant who is doing the selling of the heroin at the place the officers are watching. Never in the history of the court have we permitted this. The principal opinion says that thereby “the jury is not called upon to speculate on the cause or reasons for the officers’ subsequent activities.” Quite true — the jury now knows that it was because defendant was selling heroin at 2918 Sheridan that the officers were there. This is hearsay. The jury was led to believe that a person who was not present in court and not subject to cross-examination had told the officers that defendant was committing a crime.
This case is analogous to Stamper v. State, 235 Ga. 165, 219 S.E.2d 140 (1975), in which a witness testified that a battered child had told her that the appellant (her stepfather) had beaten her. It was argued that such testimony combined with testimony regarding bruises on the child’s body explained the witness’ subsequent conduct of obtaining a doctor to examine the child. The Georgia Supreme Court reversed defendant’s conviction, declaring that “The statement of the child naming the appellant as the one who had beaten her was entirely unnecessary to explain the conduct of the witness in having the child examined by a physician.” The statements of the child were held to be hearsay. 219 S.E.2d at 143 (emphasis supplied).
The law is properly explicated in State v. Bankston, 63 N.J. 263, 307 A.2d 65, 68 (1973), in which the Supreme Court of New Jersey stated:
“It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so ‘upon information received.’ McCormick, Evidence (2d ed. 1972), § 248, p. 587. Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. .. . State v. Barnes, 345 S.W.2d 130, 132 (Mo.Sup.Ct.1961) .... However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule.... Moreover, the admission of such testimony violates the accused’s Sixth Amendment right to be confronted by witnesses against him.”
I would reverse and remand for a new trial.