Appellant, TJ Sharocko Jackson, was indicted in the Circuit Court for Prince George’s County for murder and related charges arising out of a home invasion.
The Trial Court erred in disallowing a written statement of an unavailable declarant, when the appellant sought its admittance as a declaration against penal interest pursuant to Rule 5—804(b)(3).
For the reasons that follow, we affirm.
FACTUAL BACKGROUND
Appellant and Jamar Jones were charged with a multitude of crimes arising out of a home invasion on June 19, 2008, in which appellant and Mr. Jones allegedly broke into an apartment to steal drugs. The apartment was known as a “stash house,” where drug dealers stored their inventory. According to the State, apрellant and Mr. Jones drove a van to the apartment. They entered the apartment and encountered three individuals. Appellant and Mr. Jones stole illegal drugs from the individuals in the apartment, but the target of the robbery, an individual known as “G,” was not present. Appellant and Mr. Jones then duct taped the three individuals and secured them in the rear of the van, before searching for “G.” After an unsuccessful search, they returned to the apartment. Mr. Jones reentered the apartment, bringing one of the other individuals with him, to resume the search for “G.” “G” later returned to the apartment with Andre Green. As they entered, Mr. Jones shot and killed “G” and wounded Mr. Green. Mr. Jones exited the apartment, whereupon he and appellant fled in the van.
Prior to appellant’s trial, but after Mr. Jones had pled guilty in his severed trial, the State filed a motion in limine, requesting that the circuit court bar the admission of Mr. Jones’s signed statement to aрpellant’s defense counsel. In the statement, which Mr. Jones gave a day after the alleged incident, he indicated that appellant was not present during the commission of the crimes and was not involved in the home invasion. Mr. Jones’s statement also suggested that he may have shot the victims in self-defense. Counsel for Mr. Jones indicated that he anticipated that Mr. Jones would invoke his Fifth Amendment privilege against self-incrimination when asked about the events on June 19, 2008 at appellant’s trial.
Mr. Jones’s statement, which was handwritten on eight pages from a legal pad by appellant’s defense counsel, signed by Mr. Jones, and later transcribed, provided:
This is a statement of Jamar Tonio Jones, dob 7/1/88, SSN ... of ... Martin Road in Brandywine, MD given on Friday, June 20, 2008 at 4:30 pm to Attorney Jon Norris and his law clerk Kathey Gravely, in Mr. Nоrris’ office at 503 D Street, NW, Washington, DC. Mr. Norris and Ms. Gravely represent Mr. T.J. Sirroco [sic] Jackson.
On Thursday, June 19, 2008 around noon I was present at the apartment in Walker Mill when 2 people were shot. I went to the apartment with my friend Darren Johnson. TJ Jackson was not at the apartment when the shooting oceurred. Darren and I went to the apartment because one of the guys in the apartment owed Darren some money for drugs. Darren said the guy owed him money for coke, cocaine. Darren asked me to go along with him so he could holler at the guy that owed him money. Darren and I were the only 2 who went to the apartment. The apartment, The apartment [sic] was in the 6600 block of Roland Road just off of Walker Mill Road.
When Darren and I got there, there were three people in the apartment. All 3 were brown skinned, lighter than me. I did not know any of them. They opened the door and let us in. Darren went in the back with one of the guys. The guy that went with Darren was short and heavy set. When they were in the back I stayed in the front room with the other 2 guys. When Darren and the other guy came out I heard them arguing. I could tell it was about drugs and money. Darren stumbled, he may have been pushed, I grabbed him to get out of there. One guy was by the door, blocking it, the door. One guy was by the couch. The guy by the door was reaching for something. I thought he was going for a gun so I pulled out my gun, a Glock 9 mm, and I started shooting, we ran out. I don’t know if I hit anyone. Darren and I run to the van on the way to the van there was an older lady and a man outside. Darren grabbed them and pushed them in the van. At no time when this happened was T.J. Jackson around. I get in the van and I drive. I tell Darren that they can’t stay in the van. Somewhere I stop and push the people out of the van. I drive Darren to D.C. and drop him off. I drive back into Maryland and I go to a house to look for my friend T.J. Jackson. When I found TJ I told him what hapрened, I told TJ to get in the van with me, because I needed to talk with him. As we drove I told him a little bit. I told him that a situation went bad and I had to start shooting. I wanted to go tell my father but he wasn’t there. The van was parked by my Dad’s house on the grass on the side. The Martin Road House. The police came to my house[;] when I saw them I started running. TJ started running behind me. We ran for a while, when we saw some workers we got them to give us a ride. That was my idea. They gave us a ride to a friend’s house on Frank Tippet Road. TJ Jackson was not involved in this shooting. He did not know that it was going to occur.
This 8 page statement is true and accurate to the best of my knowledge. I swear under penalty of perjury that it is true and accurate. I knew that I am making a statement against my penal interest which could be used against me. It is true and correct.
In response to questioning from the circuit court, Mr. Jones recognized that he gave a statement to defense counsel, but averred that the statement was “not true.” In response to questioning from the State, Mr. Jones indicated that appellant suggested they go to defense counsel’s office. A friend of aрpellant drove appellant and Mr. Jones to the office, because Mr. Jones knew that the police were looking for him and possibly his van. Appellant did not advise Mr. Jones that defense counsel represented appellant, but Mr. Jones knew that they were going to see defense counsel concerning the shooting. He and appellant went into the office, but Mr. Jones spoke with defense counsel outside of appellant’s presence. He stated that defense counsel took notes while he detailed the events. Furthermore, he stated that he spoke with defense counsel in an effort to seek representation and that appellant agreed to pay for the representation because Mr. Jones did not have any money. He maintained that he did not meet with defense counsel to help appellant, but rather to help himself. He believеd that providing the statement would not subject him to further risk of being criminally charged. He did not understand what giving “a declaration against penal interests” meant. He was a high school graduate, but did not write the statement himself nor did anyone ask him to. Instead, defense counsel wrote the statement as Mr. Jones described the events, without defense counsel explaining possible legal defenses or indicating that he represented appellant. Mr. Jones stated that defense counsel read the statement to him, and he signed at the bottom after skimming through it.
When asked where he obtained the information provided to defense counsel, Mr. Jones responded that he “made it up.” He refused to answer whether he gave the statement to keep appellant out of trouble, but indicated that at the time of the statement, he did not have a place to stay, other than with appellant. He maintained that he was not afraid of appellant.
On redirect by defense counsel, Mr. Jones acknowledged that almost three years had elapsed since he visited defense counsel’s office. Still, even with the aid of his statement, he did not recall anyone other than defense counsel being present when he provided the statement. Mr. Jones recognized that defense counsel gave him the name and business card of another attorney, but indicated that this occurred after he gave the statement. Mr. Jones stated that defense counsel did not give him legal advice. Again, he concluded that appellant did not threaten him and that he was not afraid of appellant.
The circuit court then heard in camera testimony from defense counsel’s former law clerk, who indicated that she worked for defense counsel on the occasion that appellant and Mr. Jones came to the office.
On cross-examination by the State, the law clerk elaborated that defense counsel’s firm had an existing relationship with appellant and that defense counsel explained the theory of a declaration against penal interest to Mr. Jones in plain English, as opposed to legalese. She maintained that Mr. Jones understood that his statement could be used at trial. In fact, the law clerk explained that Mr. Jones’s willingness to speak with appellant’s attorney seemed “very odd” in her opinion, but he was “very insistent and adamant about wanting to give a statement to [defense counsel].” Additionally, she elaborated that Mr. Jones was not afforded the opportunity to write the statement himself because, in her training and experience and that of defense counsel, it is more efficient, easier for the declarant to modify, and has better “fluidity” and structure when the attorney writes the declarant’s statement, and then gives the declarant an opportunity to review it with the attorney to make any deletions or corrections. Here, Mr. Jones reviewed the statement. He made no changes and signed it. The State pressed the law clerk on whether Mr. Jones actually described the events employing the vernacular used in the statement, and the law clerk conceded that Mr. Jones gave his statement in a “give and take” with defense counsel, implying a back and forth conversation. She concluded that shе and defense counsel explained that they represented appellant, and not Mr. Jones, but that Mr. Jones gave the statement, apparently in an effort to aid appellant.
The circuit court considered argument on the application of Maryland Rule 5—804(b)(3) and granted the State’s motion in limine. The court discerned that Mr. Jones’s statement was not truly inculpatory because Mr. Jones included references to acting in self-defense in response to another man in the apartment “reaching for something” that Mr. Jones thought was a gun during an argument. The court also mentioned that the statements regarding appellant were collateral to the statement as a whole. Finally, the court determined that Mr. Jones’s accounts of the shooting widely varied, between the statement in defense counsel’s office, the statement of facts at Mr. Jones’s plea hearing, and his statement to thе circuit court that the statement he made in defense counsel’s office was fabricated.
MARYLAND RULE 5-804 AND STANDARD OF REVIEW
Maryland Rule 5-804, in pertinent part, provides:
Rule 5-804. Hearsay exceptions; declarant unavailable.
(a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant:
(2) refuses to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so contrary to the declarant’s pecuniary or proprietary interest, so tended to subject the declarant to civil or criminal liability, or so tended to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered in a criminal case is not admissible unless cоrroborating circumstances clearly indicate the trustworthiness of the statement.
(Emphasis added).
“The underlying theory of this exception is that ‘persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true.’ ” State v. Standifur,
For a statement to be admissible under Rule 5-804(b)(3), the proponent of the statement must convince the trial court that “ ‘1) the declarant’s statement was against his or her penal interest; 2) the declarant is an unavailable witness; and 3) corroborating circumstances exist to еstablish the trustworthiness of the statement.’ ” Stewart v. State,
“The trial court’s evaluation of the trustworthiness of a statement is ‘a fact-intensive determination’ that, on appellate review, is subject to the clearly erroneous standard.” Id. (quoting State v. Matusky,
DISCUSSION
According to appellant, Mr. Jones’s statement exculpated appellant and was admissible as a statement against penal interest pursuant to Maryland Rule 5-804(b)(3), so the circuit court committed reversible error when it ruled that the statement was inadmissible.
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.” Md. Rule 5-801. Due to its inherent untrustworthiness, and the preference for in-court testimony that is subject to cross-examination, hearsay “is not admissible” unless “otherwise provided by [the Maryland Rules] or permitted by applicable constitutional provisions or statutes.” See Md. Rule 5-802. Clearly, Mr. Jones’s transcribed statement to defense counsel is hearsay.
This Court has stated:
The correct procedural posture is, “Hearsay will be excluded, unless the proponent demonstrates its probable trustworthiness.” Affirmative evidence of trustworthiness, moreover, contemplates something more than the absence of evidence of untrustworthiness. The likelihood of a motive to speak truthfully requires more than the unlikelihood of a motive to lie. Were it otherwise, the nothing-to-nothing ties оn these issues would go to the exception rather than to the rule.
Cassidy v. State,
“[T]he declaration against penal interest is not—as a matter of Maryland evidence law—a ‘firmly rooted’ exception to the rule against hearsay,” but it has been adopted as an exception in Maryland Rule 5—804(b)(3). Matusky,
As mentioned, the proponent of a statement under Rule 5-804(b)(3) “has the burden to establish that [the statement] is cloaked with ‘indicia of reliability[,]’ ... meaning] that there must be a ‘showing of particularized guarantees of trustworthiness.’ ” Stewart,
In Gray v. State,
The Court of Appeals reversed. Id. at 537,
[A] trial judge considering the admission of a hearsay statement offered as a declaration against penal interest must carefully consider the content of thе statement in the light of all known and relevant circumstances surrounding the making of the statement and all relevant information concerning the declarant, and determine whether the statement was in fact against the declarant’s penal interest and whether a reasonable person in the situation of the declarant would have perceived that it was against his penal interest at the time it was made. The trial judge should then consider whether there are present any other facts or circumstances, including those indicating a motive to falsify on the part of the [out-of-court] declarant, that so cut against the presumption of the reliability normally attending a declaration against interest that the statements should not be admitted. A statement against interest that survives this analysis, and those related statements so closely connected with it as to be equally trustworthy, are admissible as declarаtions against interest.
Id. at 544,
The Court discerned that the defendant had presented sufficient corroboration to allow the admission of Mr. Gatton’s statement against penal interest. Id. at 545-47,
Under the circumstances here present, [the defendant] was entitled to presenthis defense, i.e., that Gatton killed [the defendant’s wife]. When Gatton, through the invocation of his right to remain silent became unavailable, [the defendant] was, under the facts of this case, entitled to present to the jury Gatton’s declarations against penal interest through the person that allegedly heard the declarations, Evelyn Johnson. Under the circumstances here present, it was error to deny their admission.
Id. at 547,
After Gray, this Court decided Roebuck, supra,
We relied on Gray and determined that the trial court erred. Id. at 590,
In reaching our conclusion, we are mindful that “the exclusion of a statement exculpating an accused could result in an erroneous conviction.” [State v.] Anderson [141 Wis.2d 653 ], 416 N.W.2d [276,] at 280 [ (1987) ]. Moreover, given a defendant’s constitutional right to present a defense, id.,416 N.W.2d at 279 , a defendant should not be subjected “to an insurmountable evidentiary hurdle” to obtain admissibility of a hearsay statement that is central to the defense and has been sufficiently corroborated. Id.,416 N.W.2d at 280 . Ultimately, it is for the fact finder to assess the veracity of the declaration. Id.
Roebuck,
The next year, in Stewart, supra,
Moreover, “when ‘a statement directly implicates the declarant, and no one else,’ that circumstance is a factor ‘in favor of its reliability.’ ” Id. at 455,
We held that the trial court properly considered the circumstances surrounding the trustworthiness of the father’s statement, recognizing that the statements were made when he knew his son was sought by police or had been arrested. Id. The trial court fоund the father’s account, in which he assumed full responsibility for, and acted alone in, three altercations, as “entirely implausible,” in light of the father either seriously wounding or killing three people almost half his age. Id. at 456,
The father also suggested that he acted in self-defense, which we deemed to render his statements as “self-exculpating,” not self-incriminating. Id. As such, the statements were “less trustworthy within the meaning of the hearsay exception in [Rule 5-804(b)(3) ].” Additionally, the court had already heard a majority of the evidence, which “simply did not corroborate [the father’s] assertions that he acted alone.... ” Id. Finally, even if the evidence was unclear as to whether the father or the son shot the gun, the father’s statements were not exculpatory as to the son based on principles of accomplice liability, which the State аdvanced and supported with evidence. Id. Therefore, we declined to second guess the trial court’s determination
We note that in Colkley v. State,
“Exculpatory” is defined in Webster’s Dictionary as “clearing or tending to clear from alleged faith or guilt.” The various jurisdictions have adhered basically to this definition. The State of Texas in the case of Moore v. State, 124 Tex.Cr.M. 97, [100,]60 S.W.2d 453 [, 455 (1933) ], said that “Exculpatory” means “clearing, or tending to clear, from alleged fault or guilt; excusing.” In the case of State v. Langdon,46 N.M. 277 , [279,]127 P.2d 875 [, 876 (1942) ], [the Supreme Court of New Mexico] used the following language: “The word ‘exculpate’ is employed in the sense of еxcuse or justification.”
Colkley,
Though not dispositive in that case, Judge Moylan elaborated:
Our point is that all that is non-inculpatory is not thereby exculpatory, just as all that is non-exculpatory is not thereby inculpatory. The absence of a quality is not the same thing as the opposite of that quality. There is a wide “No Man’s Land” of neutral connotation between the opposing verbal trench lines. The world is not necessarily black or white. In any event, this is nothing more than a passing observation on the uses and abuses of the language and an affirmation that things are sometimes gray.
Colkley,
Here, even though he suggested that he acted in self-defense in response to a man in the apartment “reaching for something” and that “Darren Johnson” caused the initial altercation and later kidnapping, Mr. Jones’s statement was arguably inculpatory, and thus against his penal interest. He placed himself at the scene оf a home invasion, which involved being in proximity to illegal drugs and collecting a debt owed to “Darren Johnson” for a drug deal. He also admitted carrying and discharging a handgun in a residence. It is unclear whether a reasonable person in Mr. Jones’s position would have perceived his statement to have “so tended to subject [him or her] to civil or criminal liability” under Rule 5-804(b)(3). Nevertheless, Mr. Jones indicated that appellant was absent and did not participate in the ordeal. Therefore, for the sake of argument, and as it does not affect our holding, we accept appellant’s contention that Mr. Jones’s statement inculpated himself and “Darren Johnson,” and exculpated appellant for the charged crimes. Still, we heed Judge Moylan’s warning and point out that just because a statement is inculpatory of one person, or several people, does not mean the stаtement is exculpatory of others.
We discern that the circuit court properly granted the State’s motion in limine, excluding Mr. Jones’s statement at defense counsel’s office, as the circuit court’s findings of fact were not clearly erroneous and its ultimate decision to exclude the statement based on insufficient indicia of reliability was not an abuse of discretion. Stewart,
The circuit court concluded that the statement did not so tend to subject Mr. Jones to criminal or civil liability. Despite the conclusion in Mr. Jones’s statement that he “knew” that he was “mаking a statement against [his] penal interest which could be used against [him],” we cannot hold that the court was clearly erroneous. As mentioned, the court emphasized the unreliability, untrustworthiness, and sheer lack of corroboration surrounding Mr. Jones’s statement. In that regard, Mr. Jones’s self-defense claim weighs against his statement being trustworthy and exhibiting necessary corroboration. Stewart,
Mr. Jones’s statement also suggested that another person, “Darren Johnson,” was criminally liable. This Court has held that “when ‘a statement directly inculpates the declarant, and no one else,’ that circumstance is a factor ‘in favor of its reliability.’ ” Id. (quoting Camacho,
Appellant posits that the circuit court failed to consider the content of the statement. In Roebuck, supra,
At bottom, the circuit court determined that Mr. Jones’s statement to defense counsel lacked the required sufficient “indicia of reliability” and “particularized guarantees of trustworthiness” for the statement to be admissible pursuant to Rule 5-804(b)(3). Stewart,
The statement is also clearly inconsistent with the statement of facts on which Mr. Jones pled guilty, where he inculpated appellant. On appeal, apрellant posits that Mr. Jones’s plea was an Alford plea. See North Carolina v. Alford,
[WJhile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he [or she] is unwilling or unable to admit his participation in the acts constituting the crime.
Appellant directs our attention to an excerpt from Mr. Jones’s plea hearing. The excerpted colloquy occurred after the court asked Mr. Jones the appropriate litany of questions and the State presented the factual predicate for the plea, evidence that wоuld have been produced at trial, including appellant’s presence during the commission of the crimes. Mr. Jones’s defense counsel also already indicated on behalf of his client that Mr. Jones had no additions or corrections to the factual predicate. Then, the following occurred:
THE COURT: Okay. Are you pleading guilty to these offenses because you are guilty and for no other reason?
[MR.] JONES: No other reason, Your Honor.
[MR. JONES’S DEFENSE COUNSEL]: He’s saying yes for no other reason. Yes.
THE COURT: You are pleading guilty—
[MR.] JONES: Yes, Your Honor.
THE COURT:—because you are guilty in this case?
[MR.] JONES: Yeah, basically, Your Honor.
THE COURT: All right. Has there been any question that you have of me?
[MR. JONES’S DEFENSE COUNSEL]: Any questions?
[MR.] JONES: No, Your Honor.
THE COURT: Has there been any advice that I’ve—I now direct to [Mr. Jones’s Defense Counsel]. Has there [been] any advice that I’ve failed to make or failed to give him in this colloquy?
[MR. JONES’S DEFENSE COUNSEL]: No, Your Honor. I just want to make it clear when you asked him, are you pleading guilty, because you are guilty, and no other reason, I just want to make sure the only reason he said basically is because the plea agreement, but asidе from the plea agreement, the reason why you’re pleading guilty is you are guilty, correct?
[MR. JONES]: Yes.
As a result of the plea, the State recommended, and the Court imposed, a life sentence, with all but twenty-five years suspended. The State allowed Mr. Jones to file a motion for reconsideration to be held in abeyance and addressed at a later date. Based on the above, appellant posits that Mr. Jones’s plea was an Alford plea, rather than a guilty plea, or at least some sort of “hybrid” of the two. We concur with appellant that Mr. Jones received a favorable plea bargain. However, a favorable plea bargain does not convert a guilty plea into an Alford plea, and we discern no error in the circuit court citing Mr. Jones’s prior guilty plea as a factor in its consideration of the State’s motion in limine in appellant’s case. Moreovеr, the fact that Mr. Jones pled guilty based on a factual predicate that, in regard to appellant’s presence and participation, was directly contrary to his statement to appellant’s defense counsel was a logical and proper consideration in the circuit court’s determination as to indicia of reliability and trustworthiness.
We hold that the circuit complied with Rule 5-804(b)(3) and the applicable case law when it excluded Mr. Jones’s statement to defense counsel, rightfully wary that certain “statements are suspect because of a long-standing concern ... that a criminal defendant might get a pal to confess to the crime the defendant was accused of....” Stewart,
JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
. In total, appellant was indicted with first degree murder, felony murder, second degree murder, attempted murder, conspiracy to commit murder, five counts of first degree assault, conspiracy to commit first degree assault, five counts of use of a handgun in the commission of a crime of violence, robbery with a deadly weapon, conspiracy to commit robbery with a deadly weapon, three counts of kidnapping, conspiracy to kidnap, first degree burglary, and conspiracy to commit first degree burglary.
. The jury found appellant guilty of felony murder, second degreе murder, conspiracy to commit first degree murder, three counts of first degree assault, conspiracy to commit first degree assault, four counts of use of a handgun in a crime of violence, robbery with a deadly weapon, conspiracy to commit robbery with a deadly weapon, two counts of kidnapping, conspiracy to commit kidnapping, first degree burglary, and conspiracy to commit first degree burglary.
. Mr. Jones pled guilty on January 18, 2011, and testified at the hearing on the State's motion in limine regarding appellant’s trial on March 28, 2011, outside the window during which Mr. Jones could appeal his plea.
. Mr. Jones pled guilty to first degree murder, use of a handgun in a crime of violence, first degree assault, and kidnapping. The State recommended, and the court accepted, a life sentence with all but twenty-five years suspended.
. Appellant refers us to the transcript of Mr. Jones's plea hearing, in whiсh the statement of facts underlying the plea indicated that he and appellant committed the charged crimes together. The circuit court also presided over Mr. Jones’s plea hearing and, therefore, was aware of the factual predicate underlying the plea during the proceedings in appellant’s case.
. A 2010 amendment of Rule 5-804, which is derived from Federal Rule of Evidence 804, substituted “offered in a criminal case” for “to exculpate the accused” in the second sentence of Rule 5-804(b)(3). The change paralleled a 2010 amendment to Federal Rule of Evidence 804(b)(3), providing that the corroborating circumstances requirement applies to all declarations against penal interest offered in criminal cases, regardless of the proponent. The Advisory Committee noted, "A unitary approach to declarations against penal interest аssures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception.” Fed.R.Evid. 804(b)(3) advisory committee note. As such, the portion of Rule 5-804(b)(3) that requires "corroborating circumstances clearly indicating] the trustworthiness of the statement” for the statement to be admissible is particularly relevant to this case.
. Even though it would not have been binding on the circuit court, appellant contends that the State agreed with appellant that Mr. Jones’s statement was a statement against interest on two occasions in the record. However, a review of the record clarifies that, in both instances cited by appellant, the State "concedefd]” and “agreefd]” that the issue at hand was whether Mr. Jones's statement was admissible as a statement against interest. As such, the State did not “concede” or "agree" that Mr. Jones’s statement was admissible as a statement against interest, but rather elucidated the question presented to the circuit court.