*1 FOSTER, a/k/a Nuketa Leah DORIS ANN MARYLAND Ansara v. STATE OF 175, Term, September [No. 1981 and 35, Term, September 1982.] No.
Decided June 1983. September
Motion For Reconsideration denied 1983. *2 J., and argued before cause Smith, Murphy, C. Rodowsky JJ. and Couch, Davidson, Eldridge, Cole, Defender, Weisheit, with whom Assistant Public Martha Defender, E. Murrell, George and Alan H. Public were Defender, brief, Burns, appel- for Jr., Public on the Assistant lant. General, Schulze, Attorney with whom
Jillyn Assistant K. General, brief, Sachs, Attorney on the Stephen H. appellee. J., opinion delivered the of the Court. Murphy,
Davidson, J., JJ., C. in part and Smith and concur and Rodowsky, Smith, J., concurring dissenting part. dissent filed a opinion infra, J., page at in which C. Murphy, J., for Reconsideration concur. Order on Motion Rodowsky, J., page opinion concurring 230 infra. filed an Eldridge, page the denial of the motion for reconsideration at infra. February County,
On in the Court for Cecil Circuit (accused), a jury appellant, convicted the Doris A. Foster felony murder, engaged perpetra- for "murder when robbery.” penalty. tion of a The trial the death imposed court appeal This followed. appeal,
On the trial accused claims that court prejudicial committed numerous in the course of the errors pretrial proceedings, proceedings, the trial and the *3 sentencing proceedings. particularly, More the accused refusing contends that the trial court to admit erred excul- patory hearsay testimony critical to her defense. Because we find that the trial court prejudicial committed error evidence, refusing to admit such we shall reverse the con- viction.
I
Background trial,
At the two conflicting versions of the circumstances surrounding the presented. commission of the crime were Both direct and produced by circumstantial evidence were the State to January show that on 29 the accused (victim) killed Josephine Torres Dietrich who lived and manager Maryland (motel), was the Manor Motel Foster, motel in which Tommy the accused and her husband (husband), also resided. The direct evidence was adduced primarily by the accused’s Phillips, husband and Elizabeth daughter the accused’s (daughter), years who was 16 old at time of the murder. Their concerning the evening January events of the of 29 and the morning of 30 January, although containing inconsistencies, certain generally as follows:
According daughter, p.m. to the accused’s at about 5 on 29 accused, January, daughter, her and a friend left daughter’s grandmother’s apartment. driving While back to motel, the accused’s the three women drank a considerable amount of began robbing beer and the accused talk to about a woman. The participate friend refused to and was dropped Upon off. returning room, to the accused’s motel accused daughter and her subject continued to drink beer. The again robbery. turned to The accused said that she wanted to rob the victim and kill to her.
Ultimately, went into accused the bathroom and came out holding screwdriver. The daughter accused her walked toward the victim’s office. The accused on knocked door, door, told the victim that she heard noises next asked the victim check on accompanied to them. The victim One, accused and her to Room daughter a vacant room room, next to the accused’s and went inside check. As the leave, victim moved toward the door to the accused started stabbing daughter, her. The who did not want the accused to victim, kill the told the accused that police coming. were The accused and daughter her left the room and went motel, back of the where the accused threw the screwdriver into woods. daughter her accused and returned the accused’s where,
motel drinking beer, room after more the accused said that [the accused] "she had to kill her [the victim] [the because she knew victim] [the who she was.” accused] *4 picked The up accused another and screwdriver went back to the motel room stabbing where the had taken place. When room, she returned to own her motel she told her daughter that she had stabbed the victim in the heart.
According to daughter, the accused’s husband and several hours later at about p.m. midnight, 11:30 or the accused and daughter picked her up the accused’s husband at work. daughter told him that accused had killed victim. The husband decided that the evidence had to be removed. room, car, He up body cleaned carried the into and placed accused, rope concrete block and the car. The her husband, and Chesapeake to the daughter then drove where, Delaware Canal after the concrete block was tied to body rope, body they with the was dropped. When motel, returned to they went to the victim’s room where they set, money, found a TV and several other items that they took back to the accused’s room.
Some by circumstantial evidence was adduced the State to show that the accused had committed the crime. A social that, worker testified on the afternoon of the murder when the victim bank, withdrew some cash from a she folded the money lengthwise. Various other witnesses testified that shortly January they after 30 observed the in pos- accused session large money amounts of folded lengthwise. trial,
At the a different version of the circumstances surrounding presented by the crime was the accused. She produced direct evidence to January show that on 29 her daughter husband and killed the victim. The direct evidence consisted testimony of the accused herself and letters and statements or written made her husband. The accused’s concerning the evening events of the 29 January morning and the January, of 30 although inconsistent with previous testimony trial, her was as follows:
On evening January, daugh- accused and her picked up ter the accused’s husband returning at work. After motel, beer, to the drank they some and the accused went to sleep. awoke, When she daughter her going in and out of the accused’s motel room. The accused went outside and saw the victim lying grass. on the When she asked her hus- replied band what had happened, he that the victim was dead. The accused’s husband daughter put body then the car and took a cinder block with them. When her hus- returned, band he and the accused went into the victim’s room and took her money. *5 January,
In a allegedly by letter dated 30 written her,1 accused’s to he in he husband essence admitted that addition, had killed postmarked the victim. In in a letter General, June 1981 "The Attorney addressed to Cecil County, MD,” husband,2 only written the accused’s he not solely confessed that he killed the victim and responsi was death, ble for her but also described detail the circum surrounding stances the murder. letter,
According after returning to the accused’s work, motel room after the husband light noticed inon the vacant room. adjoining He decided that the victim was there and went to tell her parts that he had the neces- sary fix a bathroom had repair. that she asked him to At time, he had a screwdriver in his hand. When he entered room, the vacant adjoining him, the victim lashed out at telling room; him he wrong he should any make repairs; and that going pay she was not him. Her screaming on, went on and and he her to stabbed death. Ultimately, body he removed her of it in the disposed "bay.” Thereafter, he returned to the accused’s motel room where she was still sleeping.
The letter further said that the daughter accused’s must have seen the murder because she inwas the accused’s room crying really and was frightened. The husband enlisted the daughter’s help to adjacent make the if vacant room look as it had daughter been robbed. The large found a amount of money, Thereafter, which the husband took. they returned to the According accused’s motel room. to the husband’s letter, "the accused was all asleep during of this.” trial,
At the there was evidence upon that cast doubt credibility of each of primary witnesses, the three husband, daughter, accused’s her and the accused herself. The husband’s confessions that he had committed the May 1. police On 11 the husband told a officer that he had written January the 30 trial, however, letter and that its contents were true. At accused’s husband January denied that he had written the 30 letter. trial, 2. At writing the accused’s husband admitted He this letter. explained that protect he lied the letter in order to the accused. concerning his trial seriously discredited murder the crime. surrounding the commission the circumstances *6 cross-examination, husband the accused’s Additionally, on charged with had been that, he himself although conceded Rather, plea bar- murder, prosecuted. he had not been the guilty plead he was allowed arranged in which gain was over property $300 and theft of justice to obstruction of Finally, the accused. testimony against exchange for his testimony of between the discrepancies certain there were daughter. her husband and the accused’s that the accused’s to discredit Additionally, there was evidence surrounding the the circumstances daughter’s version of cross-examination, the accused’s crime. On of the commission told Troopers had Maryland State daughter conceded that and that the for the murder prosecuted her that she could be that testified imposed. She further penalty death could be would not agreement that she ultimately she entered into any related crime murder or other prosecuted be for the the accused.3 exchange against for her herself daughter Moreover, accused’s although committed crime was a murder testified at trial that the to show evidence robbery, there was other the course of crime, the cir- had described evening that on the she differently. quite its surrounding cumstances commission January, after that on 29 The accused’s husband testified following colloquy took agreement, respect 3. to the basis of With place: they you Podolak, Attorney] After told State’s [Mr. Assistant "Q you charges penalties], entered into an possible [the about agreement cute and prose- testify they you didn’t if them that would with you, you? didn’t happened. No, way daughter] it [accused’s "A that wasn’t agreement that eventually with them enter into an You did "Q testified, you they prosecute you isn’t that true? if would not — that, you they know "A After were convinced telling They you the truth? were them felt "Q "A Yes. you, that, prosecute they agreed Okay. not to And after "Q right?
"A Yes.”
accused and her daughter picked up they him and work from room, returned to the motel daughter accused’s accused’s told him According husband, victim dead. to the daughter then described the surrounding circumstances commission the crime as follows: daughter] [the
"She said [the victim] was in Room 1 cleaning, No. [she] [the victim] and and and about, [the accused] was in the room I arguing believe, daughter] being [the at the motel because on, [there drinking was] some going [the particularly coming by victim] didn’t care for people and drinking. daughter] [the motel And told me [the that all of a snapped accused] sudden stabbing [the started victim].” addition, discrepancies In there were between the testimony *7 daughter of the accused’s and her husband.
Finally, there was evidence to discredit the accused’s veracity. prior charges Her convictions on check bad and for burning of personal property important, were adduced. More occasions, the fact that on each trial, of five two of them at the accused offered different of the versions circumstances the surrounding commission of the seriously crime discredited her final version. officer, to a
According police February accused, on 1 the being questioned by police, while the was informed that the victim had been and missing. response robbed In to alibi, questions, the explaining accused offered that on night the of the crime she at the home of one of her brothers. February,
After 5 in being ques- arrested on to response tions, she stated that might another brother have been in robbery. involved the also that She stated she last saw the p.m. January at 2 on victim 29 when she took her husband work. to
Later, on February, police she volunteered to the that they murder, were investigating missing person; that brother-in-law of her and one her brothers had killed body had been taken victim; she seen the which and that had City. leading Chesapeake bridge to an area near body not be being that the could February, told On 6 after that City, suggested police to the Chesapeake in she located in the right make a and look they "go bridge across At that water,” body was found. location at which the time, that her brother continued to insist she had killed the victim. brother-in-law an alibi defense trial, initially presented At the accused police. to the The previously from that offered different had been the time the murder she accused testified that at Shade, with and was involved with Robert relationship in a Pennsylvania, morning from Westchester, him January she January of 31 when returned morning to the There, her a letter husband handed the motel. the accused’s in which he that he had killed victim. confessed and took $2500. then to the victim’s accused went room When, rebuttal, evidence to produced the State show incarcerated between that Robert Shade been explained accused April November 1978 and 10 daughter. her protect that had lied order she Thereafter, final version of the circumstances she offered her — namely, commission that on the crime surrounding the she, daughter, and her husband night the murder her awoke, motel; when asleep; she fell she were daugh- grass; that her lying victim she saw the dead on her body; and that when disposed and her husband ter returned, room into the victim’s husband he and she went money. and took her
II Testimony Hearsay Exclusion trial, on var- At the testified that the accused’s husband he had with the ious occasions several confrontations rent. On nonpayment his concerning victim cross-examination, took following colloquy place: Jones,
"Q [Mr. accused’s Was attorney] there not early January an occasion in asking where she was you for the. rent that was behind and in response you verbally that you threatened her. Do recall experience?
"A No, [accused’s I husband] sure don’t.
"Q you deny Do happened? it deny "A I remembering it.” Thereafter, the accused called Douglass, Helen a friend of the victim operated nearby who a motel frequently who spoke to her on the phone. Upon objection by the accused indicated that the witness’s being proffered for the purpose impeaching the husband’s testi- mony and to show that at some time in January the accused’s husband had threatened kill the victim. In a chambers, conference judge’s held in the the proffered wit- ness testified as follows:
"A Douglass] right. [Mrs. All That she had cálled January me on the 12th. The I reason remembered I is because a I made note of it. And was told [the highly state, victim] in a agitated said, that she 'If either one people your those come to motel rent hired, or to' be don’t do it. They are bad news.’ I my found note. I have my note with me. It was in things. box of dug it, I through down and I found it....
"Q [Mr. Jones] [the What else did victim] tell you?
"A She told life, me she was afraid her she was crying. highly agitated She was in a state. said,'.... you I put up do have to with this. Why you don’t call police?’ said, 'They And she will They not come. help won’t me unless I’m dead.’ And said, I 'I really don’t I said, believe that.’ T think they help would because there such thing is as
201 life, you your can in fear of you’re And if assault. —’ her, she was I advised because call and ask being I am in able to as nearly capable person as verbally. yourself defend say which one about
"Q specifically What did she she of? was afraid of the man.
"A more afraid She was why? "Q say Did she He will not said, has me.
"A 'fíe threatened She Now, I rent,’ don’t my is what she said. give me my give 'He will not me by, meant know what she I said, have them evicted?’ 'Why you I don’t rent.’ nonpayment for said, many people T have evicted her, help and trying of me question rent.’ It was hysterical she in a state. was almost — — I can This one conversation January "On me, somebody I she thought needed worried — besides about how he "Q say anything Did she else then just her or what he had said to or threatened her that he had threatened her? No, he to kill her.
"A she said had threatened kill were the words. He had threatened to These added.) (Emphasis her.” proffered testimony was
The court found that trial it,” hearsay, that it necessity that there was "a but Additionally, sufficiently was not reliable to be admitted. hus- the trial court that the accused could call her indicated question band him on whether and could cross-examine he had to kill the victim. threatened 93
Relying upon Mississippi, Chambers v. U.S. (1973), U.S. Georgia, S.Ct. 1038 and Green (1979), S.Ct. 2150 the accused contends that trial court refusing proffered hearsay erred in to admit the evidence a friend of the victim to the consisting effect that the had told her the accused’s husband had victim points threatened to kill the victim. accused out that there was evidence adduced to her show that husband was present at the *10 of motel the time the of the commission crime; participated that he attempt an to avoid detection by room, the cleaning crime the up removing disposing the body; victim’s and that he the shared in proceeds robbery. of the important, More the accused adduced evidence in the form of to letters show that her However, husband had killing. twice confessed to the as a proffered testimony, result of the hearsay exclusion she was unable to adduce evidence to that show her husband had threatened to kill the victim. accused contends that the excluded to her critical defense that her daughter husband and killed the victim. She concludes that application rule, prevented which her presenting defense, from portion a of her her rendered trial fundamentally deprived unfair and her process of due of law. Chambers,
In charged having the accused was with killed (McDonald) a person made, victim. A other than the accused written, sworn, but later repudiated a voluntary confession that he separate occasions, had killed the victim. On three orally McDonald had confessed to three different friends that he had killed the victim. trial,
At Chambers defended on two He grounds. first attempted that did to show he not shoot the victim. Addi- tionally, attempted he to show that McDonald had shot the However, only victim. partially Chambers was successful in adducing testimony supporting his defense. One witness victim, testified that he saw McDonald shoot the while an- other testified that he saw immediately McDonald after the shooting addition, In pistol with his hand. Chambers to tried show that separate McDonald had on four occasions crime, confessed to once in sworn written confession given to attorney, orally Chambers’ and three other times to friends. trial,
At the State had not called McDonald as witness. extrajudicial Chambers called McDonald and had his sworn cross-examination, confession admitted into evidence. On the State elicited the fact that McDonald had repudiated his addition, In McDonald written confession. prior sworn crime scene of the at the present he testified that not shoot he did and that period, the critical during victim. as examine McDonald a motion to
Chambers made ground on the trial court denied adverse witness which challenge attempt in his "voucher” rule. Defeated confession, of his sworn directly renunciation McDonald’s testimony of the three sought to introduce Chambers he orally had confessed whom McDonald witnesses to the State’s The trial court sustained the victim. shot three wit- testimony of each of the objection proffered hearsay. it was inadmissible ground on nesses testi- certain other present permitted Chambers was then alibi. discrediting McDonald’s mony from other sources *11 to discredit Nevertheless, permitted never Chambers was confession. of his sworn McDonald’s renunciation found: Court Supreme The United States of of combination consequence "As a its or 'voucher’ rule and Mississippi’s witness’ 'party rule, was unable either LChambers] in present or to witnesses McDonald cross-examine have discredited would his own behalf who his and demonstrated repudiation McDonald’s complicity. it less than persuasive was far
Chambers’ defense given opportunity might have had he been been statements to cross-exami- subject McDonald’s nation or the other confessions been admitted.” Chambers, at S.Ct. at 1045 added). (emphasis Supreme recognized: Court in criminal trial to due right an accused
"The is, essence, opportunity to fair right process The rights accusations. against to defend the State’s to confront and cross-examine witnesses to call witnesses in one’s own behalf long have been recognized process. as essential to due Both of these elements of a fair trial are implicated Chambers, the present 294-95, case.” 410 U.S. at added). 93 S.Ct. at (emphasis With respect rule, voucher Supreme Court said: applied case,
"[A]s
in this
the 'voucher’ rule’s
impact was doubly harmful to
efforts to
Chambers’
develop
only
his defense. Not
he precluded
from
cross-examining McDonald, but, as the State
argument,
conceded oral
he was also
restricted
scope
by
his direct examination
the rule’s
corollary requirement
party calling
witness is bound
anything might say. was,
he
He
therefore, effectively prevented
exploring
from
prior
circumstances
McDonald’s three
oral
confessions and from challenging the renunciation of
Chambers,
written confession.”
410 U.S. at
(footnotes omitted).
296-97,
In respect rule, with the hearsay Supreme that, Court proffered hearsay determined because the statement constituted evidence critical to the defense and persuasive trustworthiness, bore hearsay assurances statement Moreover, should have been admitted. determining whether the proffered testimony con- trustworthiness, tained sufficient assurances of the Court factors, a variety considered including relevant the fact the statement spontaneously was made close acquaintance shortly murder; after the that the statement corroborated some including other evidence confession; declarant’s sworn against statement was interest; and that present declarant was in the courtroom. *14 the facts and that under then held Supreme Court specific rules oftwo application the ofthe case
circumstances — prevented rule of the voucher evidence cross-examination, rule that excluded hearsay the and — In of fair trial. a the accused deprived critical evidence result, Supreme Court said: reaching the this of this critical the exclusion conclude that "We permit evidence, refusal to the State’s coupled with McDonald, him denied cross-examine Chambers to and fundamental in accord with traditional trial reaching judgment, this process. In standards ofdue of constitutional principles we no new establish in holding signal any diminution law. Nor our does in traditionally to the States respect the accorded their own of implementation the and establishment Rather, we hold procedures. criminal trial rules quite simply that under the facts and circumstances deprived of trial court rulings of this case the the Chambers, 410 a fair trial.” U.S. Chambers of added). 302-03, (emphasis at 1049 S.Ct.
Thus, of Supreme indicated that rules evidence the Court if, and circumstances of applied could not be under the facts case, application deprived their the accused of particular a fair trial. Chambers, that it expressly
In Court stated Supreme single rule of application deciding was whether rule) (i.e., or would evidence the voucher rule deter- process. question result a denial due That (1979). 95, S.Ct. 2150 Georgia, mined in Green murder, There, a second guilty after Green was found capital punishment was held whether proceeding to decide he sought prove was not imposed. should be Green participated had not present when the victim was killed and testimony of a attempted He to introduce murder. Moore, accomplice previously witness to the effect that murder, that he ofthe had told the witness convicted victim’s The trial court refused admit the had killed victim. hearsay. ground on that it was evidence per In a curiam opinion, Supreme Court said:
"Regardless
proffered
of whether
testimony
rule,
comes
Georgia’s hearsay
within
under the
facts of this
its
case
exclusion constituted a viola
tion of the Due Process
Clause
the Fourteenth
Amendment. The
highly
excluded
relevant
a critical
punishment
issue
phase
trial,
and substantial
reasons existed to
reliability.
assume its
Moore made his statement
spontaneously
to a close friend. The evidence
corroborating the confession was
ample,
indeed
sufficient
to procure a conviction of Moore and a
capital
against
sentence. The statement was
inter
*15
est, and there was no reason to believe that Moore
had any
in making
ulterior motive
it. Perhaps most'
important,
the
State considered the
suffi
ciently
against Moore,
reliable to use it
and to base
a sentence of
it. In
upon
unique
death
these
circum
stances,
hearsay
may
'the
rule
not be applied
mechanistically
justice.’
defeat
the
ends
Pasby’s
Because
exclusion of
testimony denied
petitioner a fair trial on the
punishment,
issue of
the sentence is vacated and the case is
remanded
proceedings
further
not inconsistent
opinion.”
with this
een,
96-97,
Gr
The Supreme Court concluded that under the facts and case the application circumstances of a single rule of — hearsay evidence rule that excluded reliable evidence — critical to deprived the defense the accused of a fair trial. In Green, Supreme Court established a single — — rule of evidence rule applied could not be if, under the case, facts and particular circumstances
209 of a fair trial.4 We shall the accused deprived application its here. principle apply this admissibility of with the case, concerned
In we are this to the effect of the victim testimony by friend of the accused the husband her that had told victim Thus, with are presented we the victim. kill threatened admissibility each of two question compound — husband by the accused’s one extrajudicial statements made to her victim victim, the other made to the friend. principle applying jurisdictions, stated 4. in other Some courts circumstances, involving facts and various Chambers and Green cases Benveniste, 564 process. E.g., due United States v.
have found a denial of
F.2d
—
1977)
(9th
hearsay);
335,
(exculpatory statement
341-42
Cir.
911,
(2d
denied,
853,
Vincent,
Cir.),
432 U.S.
Goodlow,
549 F.2d
859
cert.
v.
Welcome
—
(confession
(1977)
voucher);
500
United States v.
S.Ct.
97
2960
—
(8th
1974) (confession
Ireland,
hearsay): People
38
954,
v.
F.2d
958
Cir.
hearsay).
—
(confession
(1976)
Ill.App.3d 616,
277,
621-22,
281-82
348 N.E.2d
224,
see,
MacDonald,
232-33
e.g.,
ut
688 F.2d
United States v.
B
(confession
(1983)
(4th
1982),
,
denied,
103
726
U.S.
S.Ct.
Cir.
cert.
(2d
—
1977),
York,
289,
Lipinski
hearsay);
294
Cir.
cert.
v. New
557 F.2d
—
(1978)
denied,
1074,
(prior
statement
U.S.
In
rule
not
Maryland,
the
does
testimony concerning
into evidence of
an
preclude admission
voluntary
extrajudicial
accused’s
confession
or-
incriminating
See,
State,
e.g.,
statement.
v.
285 Md.
Vines
900,
(1979);
369, 381, 402
Warden, 242
A.2d
906
Bunn v.
Md.
399, 400,
37,
(1966);
State,
219 A.2d
38
Schowgurow v.
240
121, 136,
475,
(1965);
State,
Md.
213 A.2d
485
Nicholson v.
(1873).
141, 154
38 Md.
An accused’s threat
to kill
victim
the
See,
State,
e.g.,
664,
is also admissible.
Knowles v.
192 Md.
669,
(1949);
179, 180-81
State,
122,
65 A.2d
Frick v.
Md.
128
128,
138, 140 (1916);
660,
State,
662,
97 A.
v.
118
Cross
Md.
(1912).
223,
86 A.
Similarly,
extrajudicial
confession
by a person
Brady
other than the
is
E.g.,
accused
admissible.
State,
422, 428-29,
167,
(1961),
226 Md.
174 A.2d
aff'd,
83,
(1963);
Here, the crux of the accused’s defense was that she had murder, committed the but rather that her husband and Thus, daughter her had committed that crime. the central issue in the case related to credibility accused, her daughter, and her husband. There was much evidence to upon cast credibility doubt of each three primary essence, witnesses. In jury was required to determine whether to believe the daughter’s husband’s and version of the facts that the accused murder, committed accused’s version of the facts her and daughter husband had committed murder, or neither version of the facts.
Although permitted accused was to adduce some evi-
211
victim, she
killed
had
husband
her
to
dence
show
of her
nonetheless,
portion
a
presenting
from
was,
precluded
no burden
bears
fact that the accused
In view of the
defense.
in the
doubt
only
raise a reasonable
to
proof,
of
but needs
358, 364, 90
397 U.S.
e.g.,
Winship,
In re
jury,
minds
206,
197,
Evans,
Md.
(1970);
278
1068,
State v.
1073
S.Ct.
178,
Grady,
Md.
276
629,
(1976); State v.
634
362 A.2d
testimony
(1975),
436,
proffered
181-82,
438
345 A.2d
kill the victim
threatened to
had
that the accused’s husband
tending to show
of evidence
piece
a critical additional
was
Under these cir
killed the victim.5
that the husband
relevant to
cumstances,
testimony
highly
was
the excluded
Indeed, as the
the trial.
guilt phase of
issue in the
the central
defense.
found,
necessary
the accused’s
it
to
court
was
trial
reliability
Moreover,
present
were
to
indicia of
sufficient
The hus-
testimony’s trustworthiness.
proffered
assure the
argument
during an
spontaneously
threat was made
band’s
rent,
was a
payment of
over the
with the victim
extrajudicial
The victim’s
against
interest.
statement
she
time when
at a
spontaneously
was made
statement
she had no reason
excited,
in which
circumstances
and under
made
statement was
Additionally,
extrajudicial
her
to lie.
with whom
acquaintance
a close
shortly
the murder to
before
about tenants.
exchanged information
previously
she had
and the victim’s
threat
Both the accused’s husband’s
by other evidence
extrajudicial
were corroborated
statement
—
confessions, the
husband’s two written
the accused’s
at the
testimony
present
her husband was
accused’s
right
5. There is no merit to the State’s contention that the accused’s
impeach
court’s
by
testimony
adequately protected
her husband’s
the trial
permit
as
offer
accused to call her husband
an adverse witness.
previously
The record shows that at the trial the husband had
testified that
that that
making
unlikely
any
highly
he did not remember
testimony
threats. It was
effectively impeached by
questioning
could have been
further
Moreover,
the husband as an adverse witness.
the accused was entitled to
impeach
testimony by
prior
this
extrinsic evidence of
inconsistent
Kidd,
32,
E.g.,
n.8,
1105, 1114 n.8,
statement.
cert.
507, 516,
State v.
Md.
A.2d
375
denied,
(1977);
Moxley
Under the circumstances the accused’s consti- to call right behalf, tutional a witness in her own right directly that affected the guilt, ascertainment of her implicated. We conclude the hearsay rule excluded evidence that was critical to the defense and that bore persuasive assurances of trustworthiness. As a result of this exclusion, persuasive was far the accused’s defense less than might it been have had the husband’s threat been admitted. case, Under the facts and circumstances of this the exclusion of exculpatory hearsay deprived evidence the accused of a and, therefore, fair trial process of due of law. Accordingly, we shall judgment reverse the trial court.
HI
Sufficiency of the Evidence
Our reversal
upon
this case rests
ordinarily
trial error
permitting remand for a new trial.
v.
States,
Burks
United
15,
(1978).
1,
2141,
98 S.Ct.
However,
on
appeal
the accused has raised an
evidentiary
issue of
insufficiency that,
found,
if
require
would
reversal without
Burks,
remand for a
new trial.
U.S.
A Presence was insufficient to the evidence contends that accused felony because there was murder her conviction for sustain an element to establish insufficient evidence — property taken felony robbery underlying Although this Court has "presence.” taken from the victim’s " taking 'the robbery involves felonious recognized that from of another personal property his carrying away of the by putting or by the use of violence presence or in person his ” 354, 209 A.2d Md. fear,’ Hadder him *19 (1965) added), previously con- have not 70, (emphasis we 77 "presence.” of the term scope sidered the that have considered the jurisdictions Courts in other involves agree "presence” that generally term scope State, 547, Ala. 273 E.g., Cobern v. proximity and control. State, (1962); v. 84 Ga. 551, 869, Clements 142 871 So.2d Constantine, (1890); 505, 342 660, 664, State v. 11 S.E. 506 (Me. 32, State, 735, 1975); P.2d Lancaster v. 554 A.2d 737 34 1976). (Okla.Crim. Indeed, have courts and commentators taken property requiring that "presence” described as sufficiently to enough close the victim must have been that, been sub had the latter not under the control victim’s robber, by he could have or intimidation ject to violence Homer, v. 235 taking. E.g., Commonwealth prevented the 517, (1920); 364 526, 533, 127 520 Fields v. Mass. N.E. (Okla.Crim. 1961); 723, see, e.g., W. LaFave & A. P.2d 726 (1972); Torcia, 4 C. Scott, § Law 94 at 696 Criminal (14th 1981); § 67 Law 473 ed. Wharton’s Criminal § (1973); Robbery Robbery § 12 77 C.J.S. 9 Am.Jur.2d (1952). 1920, Thus, long as in Common ago as stated as 517, 533, Homer, 526, 127 N.E. 520 235 Mass. wealth (1920):
" respect person, 'A is in the of a thing presence reach, inspection, robbery, which is so within his control, could, if not that he or observation by fear, prevented or retain overcome violence ” possession his it.’ 214
Courts applying principle consistently this have held that property has been from if presence taken the victim’s it was taken from a room in a than in which building other that present, e.g., Calhoun, 432, 436, victim was State v. 72 Iowa 194, 196 (1887); Constantine, 34 737; N.W. 342 at A.2d from parked e.g., Cobern, car outside the building, Ala. at (Mo. 551, 142 871; 40, 43 Hayes, So.2d at State v. 518 S.W.2d 1975); Lancaster, 34; Fields, 554 P.2d at at P.2d or from building Clements, another on the premises, e.g., Ga. at S.E. 506.
Here, there was evidence to prop- show that the victim’s erty taken a room from in a motel other the one in than present which victim was time at the of the murder. This evidence was sufficient support inference money sufficiently victim’s close enough under the victim’s control for her to have prevented taking its had she Thus, evidence, believed, not been killed. this if was suffi- cient show property that the was taken from the victim’s presence. Consequently, the evidence was sufficient to show robbery that a in fact been committed.
B Perpetration In of a Felony The accused next contends evidence was insuffi *20 cient support felony her conviction for murder because the robbery murder and the "clearly were not in point connected time, place, of and causal points relation.” She out that the robbery murder and the occurred at different times and that transpired significantly "events interrupted which the 'con ” of tinuity action.’ She that concludes under these circum stances there was insufficient evidence that to show the was murder committed "in perpetration” robbery. the of the (1957, 27, Md. Code Repl.Vol.), § 1982 Art. 410.6 27, § provides pertinent Art. part: 6. perpetration "All murder shall which be committed in the of...
robbery degree.” ... shall be murder in the first only upon relies the accused position, In of this support 926, 933, 98 Adams, S.W.2d cases, v. 339 Mo. two State 214, 218, 371 P.2d (1936), 150 Colo. Bizup People, (1962). cases, was the murder In each of these leaving the scene were perpetrators committed the while robbery respec- (burglary and underlying felony after the arose question Consequently, tively) completed. had been perpetration in the the murder was committed as to whether cases, that the court held felony. two of In each of these the of events the murder notwithstanding sequence the felony. Manifestly, the of perpetration committed in the inapposite. these cases are — felony underlying the Here, that the the record shows — after the murder
robbery completed until committed, in Adams question so the considered been that Moreover, evidence Bizup does not even arise. to show only evidence killing constituted the adduced force, to establish the of an element essential existence circumstances, felony robbery. Under such underlying any there was insufficient contention that absence robbery there her conviction for because support evidence force, logic dictates was insufficient evidence of felony. perpetration committed murder was us persuaded are on the basis of the record before We for was sufficient to sustain the conviction evidence Accordingly, we remand case for a felony murder. shall new trial.
IV Remaining Issues case, In this our reversal and remand for a new trial rests and, fair upon the fact that the accused was denied a trial therefore, However, was denied due of law. some of process by remaining appeal issues raised on accused are Therefore, again new likely arise at the trial. retrial,
guidance upon the trial court we shall comment upon those issues.
A Pretext Arrest Here, February the record shows on the accused was in by arrested Delaware arresting Delaware officers accompanied by Maryland police arrest, officers. Prior to her Maryland police had informed the arresting Delaware Delaware; officers that the accused then in that there was a Maryland fugitive her, against warrant outstanding Maryland police her; wanted talk to and that Maryland police wanted her arrested and taken into custody. Moreover, arrest, at the time of placed her she was handcuffs, barracks, taken to the police and interviewed by Maryland a police important, officer. Most on the morning arrest, the Delaware arresting officer was assigned Maryland "to police.” assist arresting officer, however,
The Delaware testified that he had a purpose arresting dual the accused. He conceded that one of his purposes was to arrest her because there was outstanding Maryland "fugitive However, warrant.” he also stated that one of purposes his was to arrest her because there outstanding were "Delaware bad check warrants.” arrest,
At the accused, however, time of her had not copies been served with of the Delaware bad check warrants. Moreover, 5 February, on arrest, after her the accused was charged arraigned respect with to unrelated Delaware Indeed, offenses. not arraigned accused was on the charges underlying the outstanding Delaware bad check warrants until however, 23 February. Ultimately, accused was tried charges and convicted on the underlying the Delaware bad check warrants.
The accused contends that the trial erred failing court suppress certain evidence obtained as result "pretext arrest.” particularly, More the accused contends that her arrest on the outstanding charges Delaware was a pretext to obtain evidence of the victim’s murder Maryland.’ *22 may not be used that an arrest recognized has
This Court
Sedacca, 252
E.g.,
v.
State
as a
search for evidence.
pretext to
see,
456, 465 (1969);
e.g., Williams
207, 220-21, 249 A.2d
Md.
266,
denied,
518,
262,
511,
A.2d
cert.
State,
v.
252
Md.App.
6
denied,
1036, 90
(1969),
S.Ct.
255
cert.
Md. 745
(1970).
that when
Additionally,
this Court has stated
1353
an
purposes
making
or more
for
arresting
has two
officer
for the commis
arrest,
make a valid arrest
one of
is to
which
evidence
which is to obtain
sion
crime and the other of
of a
not,
crime,
in
duality
purpose
will
of a
the
different
E.g.,
itself,
into a
arrest.
pretext
the arrest
transform
465; see,
221-22,
e.g,
Sedacca,
Here the record of an arrest on purposes one of his the effectuation as accused was subse- charges upon which the valid Delaware nothing is in the circum- quently tried and convicted. There surrounding that indicates that stances the accused’s arrest Maryland pretext it to obtain evidence the was mere crime.
B Search and Seizure Here, the record the accused was shows that before arrested, arresting Delaware officer had been informed the previously the accused had been involved various serious, crimes, including violent robberies. The accused was room in the time of arrested a small motel Delaware. At arrest, bed, standing her her she was near approximately away nightstand, top two feet from a open of which was four inches. The approximately drawer arresting patted officer down the accused a search for her her weapons, and then handcuffed with hands behind immediately He searched the area around her her back. then for In weapons. partially open top drawer of nightstand, arresting officer a large saw amount of currency spread over bottom of the drawer. pulled He open drawer to check weapons further and then con- tinued to check the area immediately around the accused. Ultimately, he determined that she was unarmed and had no weapons directly available to her.
Thereafter, the accused asked the arresting officer to inventory money in the open nightstand drawer so that she would know exact In presence amount. of a Maryland officer, police the Delaware arresting officer *23 counted the money. time, At that the Delaware arresting of- ficer was of money’s unaware value, evidentiary and took solely it protect himself from later allegations of theft. Subsequently, Maryland police officer, having noticed — money that the lengthwise had been folded way the same — that the money victim had folded her requested that the money be seized as evidence.
The accused contends that the trial by court erred failing suppress evidence improperly seized incident to the essence, accused’s arrest. In that, accused asserts because she had been arrested, handcuffed after being it was impermissible drawer, to search nightstand an area beyond her person.
In
California,
Chimel v.
752,
395 U.S.
"When an arrest is it is reasonable for the arresting person officer search the arrested order to any remove weapons that the might latter seek to use in order to resist arrest or effect his escape. Otherwise, safety might officer’s well be endangered, and the arrest itself frustrated. In addition, entirely it is reasonable for the arresting officer to search for any and seize evidence on the person arrestee’s in order to prevent its con- cealment or destruction. And the area into which an weapon or grab in order to might arrestee reach course, by must, governed be evidentiary items in front or in a drawer gun A on a table like rule. to the dangerous can be as
of one who is arrested
clothing
in the
one concealed
arresting officer as
ample justifícation,
There is
person
arrested.
person and
therefore,
of the arrestee’s
for a search
—
control’
his
immediate
the area 'within
from
the area
to mean
construing
phrase
weapon
of a
might gain possession
within which he
Chimel, 395 U.S. at
evidence.”
or destructible
added).
762-63,
(emphasis
has this Court. Howell v. 271 Md. applied been (1974). 385-86, 318 A.2d
This whether a search considered previously Court has if made permissible is person arrestee’s beyond of an area an Courts been handcuffed. has person after the arrested ques similar have considered jurisdictions some other arrestee has been after an tions, that even recognizing harm, have continuing potential handcuffed there is a a search of circumstances that under such generally agreed or destructible weapon of a possession area from which E.g., United States gained permissible. is might evidence be *24 (5th 1980); 415, United States 419 Cir. Quigley, v. 631 F.2d (D.C.Cir. 1975); United States 1122, 1126 Mason, F.2d v. 523 (3d 1972), 1204, vacated on Ciotti, 1207 Cir. 469 F.2d v. (1974); 1151, 907 State v. 414 94 S.Ct. grounds, other U.S. (1976); 814, State 78, 81-82, P.2d 817-18 Noles, Ariz. 546 113 (Iowa Cox, 1977); 324, State v. Shane, 327-28 v. 255 N.W.2d (1972); 305, v. 309 State 252, 257, 200 N.W.2d 294 Minn. 139, 143, 508, 346 499, 300 N.E.2d Fitzpatrick, 32 N.Y.2d 1033, 462, denied, 414 U.S. 94 S.Ct. 793, 799, N.Y.S.2d cert. (1973); State v. 1050, 554 denied, 94 S.Ct. cert. 414 U.S. 551, (1979), cert. 86, 97, 558 257 S.E.2d Cherry, 298 N.C. Austin, (1980); v. 941, 100 2165 State denied, S.Ct. 1978). (Utah see, States e.g., United But P.2d 856 584 (5th 1980); States United Cir. Cueto, F.2d v. 1977). (2d Cir. 206, 562 F.2d Berenguer, here, Under the circumstances it was reasonable for the arresting officer to weapon partially search for a in a open accused, drawer located two feet though within of the even she was then handcuffed. The fact that the accused was necessarily handcuffed restricted her freedom of movement and, reach, consequently, the area within her but did not necessarily possibility eliminate gaining of her access nightstand’s contents partially open top drawer. — Indeed, partially open top nightstand drawer of the — place natural afor to be hidden weapon remained an area easy accused, particularly access for the if she had been Thus, able to break free of restraint. in order for the arresting officer protect Maryland himself and the police present harm, officer then potential necessary from it was for arresting officer weapons to search for in the nightstand drawer, an area within the handcuffed accused’s Moreover, reach. arresting officer made no effort to anywhere search other than immediately the area around circumstances, accused. Under these the search and sei- zure incident to the reasonable, accused’s arrest was and the evidence properly seized was admitted.
V
Conclusion that, We have held under the facts and circumstances of case, this the trial court’s application hearsay rule, of the which excluded evidence that was critical to the defense and persuasive that bore trustworthiness, assurances deprived and, therefore, accused of a trial fair of due process Additionally, of law. we have held that the evidence was sufficient to sustain the felony accused’s conviction for Accordingly, murder. judgment we shall reverse the trial court and remand the case for new trial.
Judgment of the Circuit Court County Cecil reversed. Case remanded to that Court for a new trial.
Costs to be paid by County. Cecil Smith, dissenting: J. in this case as opinion of the
I from so much dissent the basis that upon conviction judgment reverses I no admitted. find case have been hearsay evidence should — — here the evidence suggests or requires which admitted. presented should be hearsay. E. examining the definition begin by
Let us Evidence, of the Law of Cleary, Handbook McCormick’s (2d 1972), following definition: gives § at 584 ed. court, "Hearsay evidence is or written evidence, court, of a statement made out of being statement offered as an assertion to show the therein, truth resting of matters asserted and thus upon credibility its value of the out-of-court asserter.” §
McCormick further states in 245: encourage put "In order to witnesses to forth their might expose best efforts and to inaccuracies which any foregoing present respect be with factors, Anglo-American tradition evolved ordinarily three conditions under which witnesses oath, required testify: personal presence will be trial, and cross-examination. The rule against hearsay designed compliance to insure is conditions, with these ideal and when one of them hearsay pertinent.” is becomes objection absent the Id. at 581-82.
Certain rule have come into our exceptions to the reliability law. Indicia of must exist order for evidence to exceptions. generally, be admitted under one of those See D. (1975). Binder, The Hearsay Handbook Professor Irving Younger in might his lectures on evidence ques- well ask the tion, "Does it smell right?” exceptions One of those is decla- against rations Many interest. states have seen fit to restrict
222 against pecuniary propri declarations or
such admissions to
interest,
against penal inter
etary
excluding declarations
Maryland
among
§§
those
est. See McCormick
277-278.
is
admit a decla
have discarded the restriction so as to
which
State,
Md.
Dyson
interest. See
v.
238
against penal
ration
(1965),
383
398, 407,
grounds,
609
vacated on other
209 A.2d
(1966);
U.S. 106
Wiggins
State,
v.
97, 103,
235 Md.
200 A.2d
State,
(1964); Brady
226 Md.
denied,
861
379 U.S.
683, cert.
(1963);
affirmed,
(1961),
Chambers was convicted of murdering policeman. One of his person, McDonald, defenses was that another had shot deputy question. A lifelong friend of McDonald’s testified that he saw McDonald shoot the A officer. second witness, officer, a cousin of the testified that he saw pistol immediately McDonald with a hand his after the shooting. put As Justice Powell it for the Court:
"In
witnesses,
addition to the
of these two
Chambers
jury
endeavored to show the
McDonald
repeatedly
confessed to the crime.
Chambers attempted
prove
that McDonald had
admitted responsibility for the murder on four sepa-
occasions,
rate
once when he gave the sworn
statement
to Chambers’ counsel and three other
1. Wigmore,
5 J.
Evidence in
§
Trials at Common Law
at 354 n. 9
(Rev. 1974), speaks
opinion
in Brennan as "excellent.”
prior
private
times
to that occasion in
conversations
with friends.”
Chambers trial require asked the court to McDonald to appear. witness, him State did not call as a so Chambers did. He had jury. McDonald’s sworn confession read to the responded by The State eliciting from McDonald that he had repudiated confession, prior only his and that the reason for it was that he promised go jail had been he would not would share in recovery bring a tort Chambers would against employed the town which police officer. *27 Chambers permission asked the court for to examine witness, refused, McDonald as an adverse but the court saying hostile, that he was but appeal not adverse. On Supreme Mississippi upheld Court of ruling, trial court’s finding, according Court, to the Supreme "that 'McDonald’s testimony appellant’ was not adverse to '[n]owhere because point did he finger 2d, at Chambers.’ 252 So. at 220.” 410 U.S. at 292.
Chambers then sought to introduce the of the three other witnesses to whom McDonald had admitted that he shot the officer. The first one would have said McDonald told him night of the shooting that he shot the officer in question. The objected State to the admission of this testi- mony ground on the hearsay. it was The trial court sustained exception. The second witness testified out of presence jury he, that while McDonald and an- other were taking Chambers to the hospital McDonald said that he shot the deputy. The witness stated that one week later McDonald reminded him of prior their conversation and urged the Again witness not to "mess him up.” objec- tion urged and sustained on hearsay grounds. The third witness would have said that he had been a friend and neighbor of twenty-five McDonald for about years. day after shooting he and McDonald walked out to a well near McDonald’shouse and there McDonald told him that he
was the one who shot the officer. McDonald him also told that he disposed of the revolver. Several weeks after the shooting this accompanied witness McDonald when he pur- chased a new weapon. Hearsay again was the reason exclusion the testimony.
Justice Powell described for the Court "Chambers’ predicament,” stating, consequence "As a ofthe combination of Mississippi’s 'party witness’ or 'voucher’ rule and its hearsay rule, he was unable either to cross-examine present McDonald or to witnesses in his own behalf who would have discredited repudiation McDonald’s demonstrated his complicity.” Id. at 294.
It was in said, the context of the above that the Court "The right of an is, accused a criminal process trial to due essence, right to a fair opportunity to defend against the State’s accusations.” Id. The Court held Chambers had a right to cross-examine McDonald. It said Mississippi’s rule, "voucher” which did party impeach not let a his own witness, bore little relationship to the realities of the crim- inal process. To the extent the confession incriminated McDonald, exculpated Chambers; and, it the retraction inculpated Chambers to the same extent it exculpated rule, The voucher applied, McDonald. as interfered with right Chambers’ aginst defend the State’s charges. More relevant to this case is the Court’s discussion as to *28 the exclusion hearsay testimony as of the three wit- nesses who heard McDonald confess. Justice Powell said for the Court: rule, hearsay
"The which has long been recognized respected by and virtually every is based on experience grounded in the notion that untrustworthy evidence should not be presented to the triers of fact. Out-of-court traditionally statements are they excluded because lack the conventional reliability: they indicia of are usually not made under oath or other circumstances impress speaker solemnity with the of his statements; subject declarant’s word is not to cross-examination; and he is not available order credibility may that his demeanor and be assessed Green, by jury. California v.
(1970). A number of exceptions developed have over years hearsay to allow admission of statements made under circumstances that tend to assure reliability thereby compensate for the absence opportunity the oath and for cross-examination. Among prevalent the most of these exceptions is the — one applicable against to declarations interest exception assumption person founded on the that a unlikely is to against fabricate a statement his own interest the time it Mississippi is made. recognizes this exception applies only but it against pecuniary declarations interest.” 410 U.S.
at 298-99. Justice Powell said for the Court that this "materialistic limitation on declaration-against-interest hearsay exception appears by accepted be most States their processes, criminal trial although a number of States have already noted, discarded it.” 410 at 299. As U.S. we have Maryland is among the states which have discarded this rule. important
It becomes to look at the circumstances existent Chambers, which circumstances are absent in this case. Justice Powell summarized them for the Court:
"The statements involved in this case were originally subsequently made and offered at trial under provided circumstances con- reliability. First, siderable assurance of their each of McDonald’s confessions spontaneously was made to a close acquaintance shortly after the murder Second, had occurred. each one was corroborated — some other evidence in the case McDonald’s confession, sworn testimony eye-witness of an shooting, that McDonald was seen with gun immediately shooting, after the *29 proof prior ownership
and
of his
of a .22-caliber
revolver
subsequent purchase
and
of a new weapon.
The sheer number
independent
pro
of
confessions
vided
Third,
additional
corroboration for each.
may
parameters
whatever
be
penal-interest
rationale, each confession here was
very
self-incriminatory
real
sense
and
unquestionably against
interest. See United States
Harris,
(1971);
Dutton v.
U.S.,
Evans, 400
at 89.
stood to
McDonald
benefit
nothing by disclosing
shooting
any
his role in the
of this three friends and he
have
must
been aware
possibility
would
disclosure
lead to crim
Indeed,
inal prosecution.
telling
after
Turner of his
involvement, he subsequently urged Turner not to
up.’ Finally,
any
'mess him
if
question
there was
about
extrajudicial
truthfulness
statements,
present
McDonald
courtroom and was under oath. He could have been
cross-examined
his
demeanor and
responses weighed by
jury.
See California v.
(1970).”
Green,
The Court on say: went
"Although no perhaps rule of evidence has been more or respected applied more frequently jury trials that applicable than to the exclusion of hearsay, exceptions tailored to allow introduc- tion of evidence which in likely fact is to be trustworthy long have The testimony existed. rejected by the trial persuasive court here bore assurances of thus trustworthiness was well within the exception basic rationale of the for decla- against rations interest. That also critical to Chambers’ In defense. these circum- stances, where rights directly constitutional affecting the ascertainment are guilt implicated, rule may be applied *30 justice.” mechanistically to defeat the ends 302. U.S. at indicted Green,
In he and Moore were U.S. Moore was and murder of a woman. together rape for the crimes, and had been tried was convicted of both separately, reached the the time Green’s case sentenced to death at and sen- also been so convicted Supreme Court. Green had to he sentencing sought prove Green During tenced to death. had not the woman was killed and present was not when to Court: participated According in her death. testimony attempted
"He to introduce Pasby, had testified for the State Thomas who Pasby, Moore had According Moore’s trial. Allen, shooting killed
confided to him that he had
to run an errand.
ordering petitioner
her twice after
introduction of this
The trial court refused to allow
evidence,
Pasby’s testimony constituted
ruling that
Code
hearsay
inadmissible under Ga.
that was
omitted).
(footnote
(1978).”
§
"Moore made his statement corroborating confession friend. The evidence a con- ample, procure and indeed sufficient capital sentence. viction Moore and interest, was no against statement was and there any ulterior reason to believe that Moore making important, motive in it. most Perhaps testimony sufficiently reliable State considered the Moore, against to use it and to base a sentence circumstances, 'the upon unique death it. In these mechanistically may applied rule not be Mississippi, justice.’ defeat the ends of Chambers (footnote (1973).” Id. at 97 omitted).
It is important clearly distinguishing to see the features between Chambers one and Green on the side and the case at bar Supreme on the other. The Court had before it in its cases by confessions to close friends made the murderers immediately almost after crimes had been It committed. was the of the friends as to these confessions to them was sought which to be admitted. Here there is a statement, confession, allegedly made murderer two and a half weeks before murder. The statement is to victim, not a allegedly close friend. The victim then *31 related acquaintance this statement to a of business hers. It is the acquaintance of this which sought is to be admitted, long way the in from situation both Chambers Green, and where murder was confessed. Even these superficial observations demonstrate how much further the testimony sought to be admitted here is from that in Chambers and Green. which Supreme factors the upon Court relies to dem- reliability
onstrate in are key the elements to compare In here. both Supreme Court cases the confessions were spontaneously shortly made and to close friends after the murder. Here the threat alleged was made two a half weeks before the We murder. are not when the victim told made her alleged statement relative to this We threat. have showing na that it was made to a confidant. The statement in way against was no the interest of declarant. In ample Chambers there corroborating evidence confessions, e.g., confessions, sworn eye testimony, witness court, etc. Here is a allegedly there letter to the by written husband, confessing to the crime. He writing denies letter and is supported he in by this statement the defen- daughter says dant’s own who that this letter in is not handwriting of the only thing husband. The corroborating hearsay testimony Douglass of Mrs. is her allegedly note immediately written her after conversation with the victim. This note says nothing than Douglass more should not they hire or rent Fosters because are "bad news.” It way by in to kill supports no threats the victim the husband anyone or else. each confession and Green
In Chambers interest. declarant’s against self-incriminating and may have been alleged threat Here, although the husband’s interest, the statements his against self-incriminating and incriminating or any way certainly were victim against her interest. by set forth of the criteria that almost none
It can be seen here. present is and Green in Chambers Supreme Court concluded the Court in Chambers It is to note that important stating: opinion by its no new judgment, we establish reaching
"In this Nor does our law. of constitutional principles respect in the any diminution holding signal in the estab- traditionally accorded to the States of their own criminal implementation lishment and Rather, quite we hold procedures. trial rules and facts and circumstances simply that under the deprived the trial court rulings this case the 302-03. of a fair trial.” Chambers Green, already have as we opinion The Court closed its referring stated, "unique circumstances” speaking was not the show that it to Chambers. These statements cases to be Court for these two Supreme intention of the rules of evi- such that the states’ *32 interpreted a manner dence, hearsay, would be they as relate to particularly selectively emasculated. the reversal here. and Green do not mandate
Chambers reliability. any test of utterly This evidence fails to meet holding evi- majority produce any case has been unable Accordingly, I this should be admitted. comparable dence affirm the would conviction. Murphy and Judge
I to state that Chief am authorized Rodowsky expressed. in the views here Judge concur
ON FOR RECONSIDERATION MOTION
ORDER Upon of the Motion for Reconsideration and consideration case, Stay filed in entitled of Issuance of Mandate the above day September, it is 16th this ORDERED, by Maryland, that the Appeals the Court be, hereby, denied. motion and it is Murphy Robert C.
/s/ Judge Chief J., Eldridge, concurring in the denial of the motion for reconsideration: concur motion for
I
this
denial of
State’s
Court’s
proffered
reconsideration,
as I continue
that
believe
hearsay testimony
Douglass,
of Helen
to what the
as
deceased
her,
Nevertheless,
told
have
should
been admitted.
victim
during
further reflection
of the motion for
pendency
upon
reconsideration,
I have come to the conclusion that our
holding concerning
admissibility
testimony
should
intimating
Without
upon
ground.
rest
a constitutional
any
disagreement with
constitutional
discussion
I
Judge
opinion,
simply
Davidson’s
believe
reached in this case.
question
constitutional
should not be
Douglass’
Helen
Instead,
holding
our
entirely
should be based
on this State’s common
admissible
policy
This
our
that ordi
law.
is
accord with
established
narily
question
should
avoided if a
constitutional
be
case
ground.1
properly
upon
can
be decided
a nonconstitutional
Rutherford,
recognizing
policy
1. Recent cases
this
include Rutherford v.
347, 363 n.6,
365,
(majority opinion),
(dissenting opinion),
Md.
464 A.2d
296
228, 237
(1983);
American,
Avara v. Baltimore News
554 n.
292 Md.
(1982);
S.,
750, 754
Employ.
requisites
rule,
of an
exception
hearsay
necessity
guaranty
circumstantial
of trustworthiness.” G. & C.
(2d
515,
Syndicate
Co.,
Merriam Co. v.
Pub.
207
518
Cir.
F.
1913).
recently,
County
More
in Dallas
v. Commercial Union
(5th
Co.,
388,
1961),
Assur.
286 F.2d
397-398
in
Cir.
opinion by Judge
Wisdom,
John Minor
the United States
Appeals
Court of
Fifth
that
Circuit held
a document
record,’
was admissible not "as a
as an
'business
nor
'ancient
document,’ nor
any
readily
as
other
identifiable and happily
tagged
species
exception. It is admissible because
necessary
trustworthy,
it is
relevant and material....”
Other cases have taken the same position. See Butler v.
(5th
77,
Southern Pacific
431 F.2d
79-80
Company,
Cir.
1970),
denied,
945,
1196,
cert.
91
28
S.Ct.
L.Ed.2d
(1971);
Barbati,
409,
325
United
v.
F.Supp.
States
284
(E.D.N.Y. 1968);
411-412
People
W.C.L.,
v.
Interest
650
1302,
(Colo.App. 1982);
Letterman,
P.2d
1304-1305
v.
State
1145,
505, 508-509,
47 Or.App.
616 P.2d
According to Rule 803 regarding the committee note "[t]he committee there are certain believes exceptional where which is circumstances evidence by found court have of guarantees exceeding equivalent trustworthiness to or guarantees by presently excep- reflected listed tions, high degree probativeness and to have a necessity and be properly could admissible. Union County
The case of Dallas v. Commercial 1961) (5th Ltd., Co., Assur. illus- F.2d 388 Cir.
trates point.” (24)[01] § 4 J. Berger, also Weinstein & M. Evidence See ed.). (1981
I am prepared not position any this time to take the hearsay evidence is admissible which a trial judge believes (24) to be necessary trustworthy. and Rule 803 of the Federal has, Rules of in this led Evidence at least to some excesses with I My which could agree. view as to admissibility of Helen Douglass’ testimony need not go beyond does not the type hearsay evidence involved this case. Judge out,
As opinion Davidson’s points Maryland of an evidence accused’s threat to kill the victim has long that, been held I admissible. would hold in a criminal case, hearsay evidence of threats made to the victim someone other than defendant is admissible if the evi- dence requirements necessity meets the reliability. For the forth in Judge reasons set Davidson’s opinion, requirements necessity and trustworthiness were inmet this law, case. Consequently, as a of state I matter evidence Douglass’ believe that Helen proffered testimony should have been admitted.