STATE of Maryland v. Michael Stewart MATUSKY
No. 124 Sept. Term, 1995
Court of Appeals of Maryland
Sept. 18, 1996
682 A.2d 694 | 343 Md. 467
Edward C. Covahey, Jr. (Covahey & Boozer, P.A., on brief), Towson, for respondent.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.
RAKER, Judge.
We granted certiorari in this case to determine whether the trial court correctly applied the declaration against penal interest exception to the rule precluding admission of hearsay evidence. We shall hold that the trial court interpreted the exception too broadly, erroneously admitting collateral portions of the hearsay declaration that did not directly incriminate the declarant.
I.
In May, 1993, Respondent Michael Stewart Matusky was indicted in the Circuit Court for Baltimore County on two counts of first-degree murder in connection with the stabbing deaths of Gertrude and Pamela Poffel. When the police initially investigated the crime in January, 1993, they questioned Matusky, as well as Pamela Poffel‘s estranged husband, Richard Dean White, and White‘s fiancée, Rebecca Marchew
According to Marchewka‘s subsequent testimony at trial, three months after the initial police interviews, White told Marchewka in confidence that he knew who committed the crimes. White‘s declaration to Marchewka implicated Matusky as the murderer. Two days after White related his account to Marchewka, she contacted the police. Marchewka retracted her prior statements, which corroborated White‘s alibi, explaining that she lied at White‘s request because he feared revocation of his parole if the police knew he had actually been drinking at a bar. Marchewka then recounted White‘s statements to the police.
White and Matusky were both indicted on two counts of first-degree murder in violation of
Immediately before trial, the court again considered the admissibility of the declaration. At this hearing, the court heard testimony from Marchewka, outside the presence of the jury. After hearing Marchewka‘s testimony as well as oral argument from counsel, the court again concluded that the declaration was admissible, stating that:
[Defense counsel‘s] argument with respect to the penal interests would be the thing that I really have to make the call on, talking here about admissibility not the weight; the jury will decide that. I find, from a reasonable person
standard, as [the State‘s Attorney] articulated, would know that there is something against your pecuniary, proprietary or penal interests by discussing a homicide or violent act and then driving someone to the place where that act was to be carried out and driving them away, then giving a statement to the police which was a truthful statement; so, assuming the declarant is unavailable, in accordance with the other standard, I am prepared to rule that the statements are admissible.
Matusky was tried before a jury in January, 1994. White did not testify at Matusky‘s trial because he asserted his Fifth Amendment privilege. The court therefore found that White was unavailable.1 Marchewka, the State‘s key witness at trial, gave the following testimony regarding White‘s statements to her:
[STATE‘S ATTORNEY]: Did [White] say anything to you on the ride home [from the bar]?
[MARCHEWKA]: He said that he was very upset and unhappy.
* * * * * *
[STATE‘S ATTORNEY]: Did he appear upset to you?
[MARCHEWKA]: Yes, he did.
[STATE‘S ATTORNEY]: Could you tell if he had been drinking?
[MARCHEWKA]: Yes, he had been drinking.
* * * * * *
[STATE‘S ATTORNEY]: What happened next ...
[MARCHEWKA]: He laid down in the bed and told me that he had something that he wanted to tell me but he couldn‘t and I asked him why and he said because it would hurt me. And I asked him to tell me any way.
[STATE‘S ATTORNEY]: When you asked him to tell you did he, in fact, tell you something?
[DEFENSE COUNSEL]: Objection, Your Honor.
[THE COURT]: Objection noted for the record and overruled.
[MARCHEWKA]: Yes, he did.
[STATE‘S ATTORNEY]: What did he tell you, tell the ladies and gentlemen of the jury.
[MARCHEWKA]: He told me that he knew who killed Pam and Trudy [Gertrude] Poffel and I asked him who and he said Michael Matusky and I asked him how he knew and he said because he was in the car.
[STATE‘S ATTORNEY]: Did he indicate whose car he was in?
[MARCHEWKA]: Michael‘s.
[STATE‘S ATTORNEY]: Did he indicate to you how he got to Pam and Trudy‘s residence in Michael‘s car?
[MARCHEWKA]: He said he drove.
[STATE‘S ATTORNEY]: Did he tell you where he had been prior to going to Pam and Trudy‘s?
[MARCHEWKA]: Yes, they had been at The Pit and at Wargo‘s [local bars].
[STATE‘S ATTORNEY]: When you say they, who are you referring to?
[MARCHEWKA]: Michael [Matusky] and Richard [White].
[STATE‘S ATTORNEY]: This is what Richard told you?
[MARCHEWKA]: Yes.
* * * * * *
[STATE‘S ATTORNEY]: Did he tell you what occurred at Wargo‘s?
[MARCHEWKA]: Yes, he said that he and Michael had a discussion, that Michael wants to kill Pam and Trudy because of what he did, what they did to Ted and he said he tried to talk Michael out of it.
[STATE‘S ATTORNEY]: This conversation occurred prior to going to the Poffels?
[MARCHEWKA]: Yes.
[STATE‘S ATTORNEY]: Did Richard say whether or not he went inside the house?
[MARCHEWKA]: He said no, he sat in the car.
[STATE‘S ATTORNEY]: Did he tell you what he did after that?
[MARCHEWKA]: Said they drove away.
[STATE‘S ATTORNEY]: When he told you that what was your reaction?
[MARCHEWKA]: I was very upset, it is hard for me to believe.
[STATE‘S ATTORNEY]: When Richard saw how upset you were what did he say or do?
[MARCHEWKA]: He was concerned about who I was going to tell, what I was going to do with the information.
[STATE‘S ATTORNEY]: Did he specifically ask you that?
[MARCHEWKA]: Yes, he did.
[STATE‘S ATTORNEY]: When he asked you what you were going to do with that information what did you tell him?
[MARCHEWKA]: I told him at that time I did not know what I was going to do.
[STATE‘S ATTORNEY]: When you told him that what did he say?
[MARCHEWKA]: He wanted—he asked me to take him to back to the bar.
[STATE‘S ATTORNEY]: Prior to going back to the bar did you discuss with Richard his involvement and what happened?
[MARCHEWKA]: Yes, but he said that he didn‘t—he didn‘t do anything wrong, that he was just in the car and I tried to tell him that he was considered an accomplice and he said no.
Matusky testified in his own behalf and denied any involvement in the crimes. Contrary to Marchewka‘s account, he testified that he did not drive to the Poffels’ home with White on the night of the murders. He also denied harboring any animosity toward the Poffels for the death of Ted Poffel, instead attributing Ted Poffel‘s suicide to his cocaine addiction. Matusky also suggested that White had a much stronger motive to kill the Poffels. Matusky testified that White, who was Pamela Poffel‘s estranged husband and Gertrude Poffel‘s son-in-law, was angry with the Poffels for depriving him of money and investments.2
The jury convicted Matusky on both counts of first-degree murder. The court sentenced him to two terms of life imprisonment without possibility of parole, to be served consecutively.
Matusky noted a timely appeal to the Court of Special Appeals, challenging the trial court‘s admission of White‘s hearsay declaration to Marchewka. The Court of Special Appeals reversed Matusky‘s convictions, concluding that the trial court should not have admitted White‘s declaration in toto. Matusky v. State, 105 Md.App. 389, 660 A.2d 935 (1995). Writing for the court, Judge Joseph Murphy, Jr., reasoned that:
Applying Simmons, Wilson, and Williamson to the facts of this case, we conclude that the trial judge should have excluded the statements in White‘s declaration that identified appellant as the killer and supplied appellant‘s motive
for the murders. Those statements were simply not self-inculpatory as to White.... With respect to those portions of the declaration in which White described his role, cross-examination of White would have been of marginal utility to appellant. The same cannot be said, however, about other statements in the declaration. It is obvious that appellant had an important interest in cross-examining White with respect to those portions of the declaration in which White (1) identified appellant as the killer and (2) discussed appellant‘s motive for the murders. Those statements should have been redacted from White‘s declaration against interest.
Id. at 403, 660 A.2d at 941. We granted the State‘s petition for a writ of certiorari to answer the following question:
Under the hearsay exception for a declaration against penal interest, is the admissible statement the extended declaration or only those remarks that are individually self-inculpatory?
II.
The State contends that the outcome of this case is governed by our decision in State v. Standifur, 310 Md. 3, 526 A.2d 955 (1987). Under our holding in Standifur, the State argues, the hearsay exception for declarations against penal interest applies to both individually self-inculpatory statements and collateral statements. In addition, the State maintains that the Supreme Court decision in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), does not control our decision, because Williamson interprets
Respondent argues that Williamson should govern the decision to admit a declaration against penal interest. Under both Williamson and prior Maryland cases, Respondent contends, at least those portions of the declaration shifting blame from White to Matusky should have been excluded. Respondent maintains that only those portions of White‘s declaration that individually implicated White should have been admitted.
III.
The declaration against penal interest exception to the rule precluding the admission of hearsay evidence is predicated on the assumption that the declarant would not make a statement adverse to his or her penal interest unless that declarant believed it to be true. State v. Standifur, 310 Md. 3, 11, 526 A.2d 955, 959 (1987). While this rationale supports admitting individual statements that are contrary to the declarant‘s penal interest, courts and commentators differ on whether the
Wigmore, for example, proposed that if part of a hearsay declaration was self-inculpatory, then the entire declaration should be admissible, reasoning that:
... Since the principle is that the statement is made under circumstances fairly indicating the declarant‘s sincerity and accuracy ... it is obvious that the situation indicates the correctness of whatever he may say while under that influence. In other words, the statement may be accepted, not merely as to the specific fact against interest, but also as to every fact contained in the same statement. ... All parts of the speech or entry may be admitted which appear to have been made while the declarant was in the trustworthy condition of mind which permitted him to state what was against his interest. ...
5 J. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1465, at 339-41 (Chadbourn rev. 1974 & 1996 Supp.). Other commentators took the opposite position, i.e., that none of the collateral portions of declarations against interest should be admitted. See B. Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule, 58 HARV.L.REV. 1, 60-61 (1944).5
In State v. Standifur, 310 Md. 3, 5, 526 A.2d 955, 956 (1987), we considered the question of whether a declaration against the penal interest of an unavailable declarant, offered by the State against the accused in a criminal trial, was sufficiently reliable to qualify under the common law exception to the hearsay rule. We analyzed the alternative views of the scope of the declaration against penal interest exception discussed above, and adopted the intermediate position advocated by Professor McCormick. We articulated a test for trial judges to apply in deciding whether or not to admit a statement against interest. First, the proponent of the declaration must demonstrate that the declarant is unavailable. Id. at 12, 526 A.2d at 959. Once the proponent establishes unavailability, the court must:
carefully consider the content of the 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 wheth
er 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.
Id. at 17, 526 A.2d at 962.6 If the hearsay statement passes this part of the test, the trial judge must next consider:
whether there are present any other facts or circumstances, including those indicating a motive to falsify on the part of the declarant, that so cut against the presumption of reliability normally attending a declaration against interest that the statements should not be admitted.
Even if a statement passes these threshold requirements for admissibility, however, Standifur also requires the trial judge to conduct a final inquiry.
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 declarations against interest.
310 Md. at 17, 526 A.2d at 962 (emphasis added). Thus, even after determining that the proffered evidence passes the first three requirements for admissibility, Standifur requires that the trial judge parse the entire declaration to determine which portions of it are directly contrary to the declarant‘s penal interest, and which collateral portions are so closely related as to be equally trustworthy.
In determining whether a declaration against penal interest was sufficiently corroborated, the United States Court of Appeals for the Fifth Circuit suggested a number of factors for trial court to consider: (1) whether there is any apparent motive for the out-of-court declarant to misrepresent the matter, (2) the general character of the speaker, (3) whether other people heard the out-of-court statement, (4) whether the statement was made spontaneously, (5) the timing of the declaration and ((6)) the relationship between the speaker and the ... [declarant]. Alvarez, 584 F.2d at 702 n. 10.
Imposing a corroboration requirement for both inculpatory and exculpatory declarations is not inconsistent with our approach in Standifur. While we did not expressly state in Standifur that corroborating circumstances must be proven in all instances, we required the trial court to consider whether any circumstances indicated a motive to falsify, or otherwise undermined the reliability of the declaration. Standifur, 310 Md. at 17, 526 A.2d at 962.
Moreover, even if hearsay evidence satisfies the requirements of the declaration against penal interest exception, it must also meet the requirements of the Confrontation Clause of the Sixth Amendment to be admissible. Wilson v. State, 334 Md. 313, 323, 639 A.2d 125, 129-30 (1994); Chapman v. State, 331 Md. 448, 454-55, 628 A.2d 676, 679-80 (1993). The Confrontation Clause requires proof that the hearsay statements are reliable. Wilson, 334 Md. at 323, 639 A.2d at 130; Simmons v. State, 333 Md. 547, 556, 636 A.2d 463, 467 (1994), cert. denied, U.S. —, 115 S.Ct. 70, 130 L.Ed.2d 26 (1994); Chapman, 331 Md. at 455, 628 A.2d at 679. Reliability may be proven by demonstrating that the hearsay falls within a “firmly rooted” exception, or by showing that it bears “particularized guarantees of trustworthiness.” Wilson, 334 Md. at 323, 639 A.2d at 131 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)). We have previously concluded that the declaration against penal interest exception to the hearsay rule is not “firmly rooted,” and therefore, the proponent must demonstrate “particularized guarantees of trustworthiness.” Simmons, 333 Md. at 560, 636 A.2d at 469.
Similarly, in Brown v. State, 317 Md. 417, 564 A.2d 772 (1989), we applied the Standifur test to determine the admissibility of two declarations against penal interest. In Brown, the hearsay declarant, Bruce, and a co-defendant, Williams, were both charged with unlawful possession of handguns. When Bruce pled guilty to the charge, he told the court under oath that the guns belonged to a third participant, Brown. Id. at 419-20, 564 A.2d at 773. Bruce also testified at Williams’ trial, stating that Brown had asked him to hold the guns until Brown could sell them. Id., 564 A.2d at 773. At Brown‘s revocation of probation hearing, however, Bruce refused to testify to the source of the guns; therefore, the court permitted the state to introduce the transcripts of Bruce‘s prior testimony in evidence. Id. at 420-21, 564 A.2d at 773. Brown
Applying Standifur, we concluded that both of Bruce‘s prior statements were inadmissible collateral statements outside the scope of the declaration against penal interest exception. Id. at 423, 564 A.2d at 775-76. We explained that:
The first statement offered by the State—that given by Bruce at the time of the entry of his guilty plea—was collateral to his admission of guilt and carries with it precious little intrinsic or extrinsic indicia of reliability ... This is not a situation where the admission of guilt by Bruce, in and of itself, furnishes any evidence against Brown. Rather, this is a case of a criminal, who has already admitted his guilt, being pressed by the judge who will soon sentence him, and by the prosecutor who may make a recommendation concerning his sentence, to disclose information that may lead to a subsequent criminal prosecution. Under these circumstances, Bruce may well have been motivated by the desire to curry favor with the authorities, and by the desire to reduce his own culpability—motives that we have identified as frequently present in these situations, and which combine to make “inevitably suspect” statements of this type.
Id. at 423-24, 564 A.2d at 775. Similarly, we concluded that Bruce‘s second statement, given at Williams’ trial, was also “wholly collateral,” as well as unreliable because of Bruce‘s apparent motive to exculpate Williams. Id. at 425, 564 A.2d at 776.
IV.
A.
Applying the Standifur analysis to the facts of the instant case, we conclude that the trial court should not have admitted Marchewka‘s testimony in its entirety.8 We shall
Based on our review of the record, we agree with the Court of Special Appeals that the trial court erroneously admitted Marchewka‘s testimony in toto rather than analyzing the declaration statement by statement to determine whether collateral portions of White‘s account should be redacted. As the intermediate appellate court concluded, the trial court should have redacted those portions of White‘s declaration identifying Matusky as the murderer and suggesting Matusky‘s motive for the crime. 105 Md.App. at 403, 660 A.2d at 941. These portions of the declaration did not directly incriminate White. Moreover, these non-incriminating statements are not as trustworthy as self-incriminating statements, because they serve to shift blame from White to Matusky. Because the trial court failed to properly analyze White‘s hearsay declaration, we agree with the Court of Special Appeals that Respondent‘s convictions must be reversed.
For further guidance on remand, we observe that the Standifur test also requires the trial court to consider “whether there are any other facts or circumstances, including those indicating a motive to falsify on the part of the declarant, that ... cut against the presumption of reliability normally attending a declaration against interest.” Id., 526 A.2d at 962. The trial court‘s assessment of the declaration‘s reliability is a fact-intensive determination which we shall not ordinarily reverse unless it is clearly erroneous. See Wamsley v. Wamsley, 333 Md. 454, 462, 635 A.2d 1322, 1326 (1994); see also Garcia, 897 F.2d at 1421; Alvarez, 584 F.2d at 701. The trial court below did not discuss on the record any of the factors undermining the reliability of White‘s statement. If, on remand, the trial court concludes that White‘s declaration was unreliable, then none of Marchewka‘s testimony should be admitted under this hearsay exception.
V.
A.
Because the case on remand will be governed by the Maryland Rules of Evidence, we shall next address the effect of
The Supreme Court reversed the convictions and remanded the case for a new trial, concluding that the trial court failed to properly analyze the admissibility of Harris‘s hearsay declaration. Id. at —, 114 S.Ct. at 2437-38. Justice O‘Connor delivered the opinion of the Court, stating that:
[T]he most faithful reading of
Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The [trial] court may not just assume for purposes ofRule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else.
Id. at —, 114 S.Ct. at 2435.11
The Court held that only those portions of the extended declaration that incriminate the declarant should be admit
The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession‘s non-self-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.... Self-exculpatory statements are exactly the ones which people are most likely to make even when they are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements.
512 U.S. at —, 114 S.Ct. at 2435.
The Supreme Court previously described this problem as one of “selective reliability” within an extended hearsay declaration. See Idaho v. Wright, 497 U.S. 805, 824, 110 S.Ct. 3139, 3151, 111 L.E.2d 638 (1990). See also United States v. Matthews, 20 F.3d 538, 545 (2d Cir. 1994) (“The difficulty is that if the statement against penal interest is multi-faceted, its facets may not be uniformly trustworthy.“).
the trial court to parse the entire extended declaration to admit only the self-incriminating portions.
As Justice O‘Connor further explained, however, the trial court must consider the surrounding circumstances to determine whether an individual statement is self-incriminating:
[W]hether a statement is self-inculpatory or not can only be determined by viewing it in context. Even statements that are on their face neutral may be against the declarant‘s interest.... [S]tatements that give other significant details about the crime may, depending on the situation, be against the declarant‘s interest. The question ... is always whether the statement was sufficiently against the declarant‘s penal interest ‘that a reasonable man in the declarant‘s position would not make the statement unless believing it true,’ and this question can only be answered in light of all the surrounding circumstances.
Id. at —, 114 S.Ct. at 2436-37.13 Accord United States v. Sasso, 59 F.3d 341, 349 (2d Cir. 1995);
The Supreme Court‘s interpretation of
The central distinction between the Williamson approach and our approach in Standifur is that “proximity” between the self-inculpatory and “collateral” portions no longer guarantees admissibility. As the Delaware Supreme Court observed in Smith v. State, 647 A.2d 1083 (Del.1994), in adopting Williamson:
[T]here is no theoretical basis for the admission of neutral, collateral statements. Hearsay statements are generally inadmissible.... A hearsay declaration is admissible, usually under a specific exception only where the declaration has some theoretical basis making it inherently trustworthy. See Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980). Thus, absent some special indicia of reliability and trustworthiness, hearsay statements are inadmissible. Neutral, collateral statements enjoy no such guarantees of reliability and trustworthiness. Williamson, 512 U.S. at —, 114 S.Ct. at 2435.
As we have indicated, in this case, the trial court erroneously permitted Marchewka to testify to the entire conversation she had with White. On remand, if the State chooses to offer portions of Marchewka‘s declaration in evidence, under
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY BALTIMORE COUNTY, MARYLAND.
I respectfully dissent from the holding of the Court set forth in Part IV.A of the majority opinion. That holding is that “the trial court should have redacted those portions of White‘s declaration identifying Matusky as the murderer and suggesting Matusky‘s motive for the crime.” 343 Md. at 485, 682 A.2d at 703.1
The hearsay problem under consideration is plagued with semantic difficulties. In any given case the universe of the data is the whole of what the declarant had to say that is relevant to the charges pending against the accused. The task is to determine whether the universe is admissible against the accused in its entirety, partially, or not at all, as declarations against the penal interest of the declarant. Within this universe of data there can be gradations ranging from hard core, clear cut declarations against penal interest, through varying degrees of inculpatory matter, to the clearly exculpatory or, at least, self-serving statement. In my view a conceptual rule, phrased in terms such as “extended narrative,” “statement,” “confession,” and “declaration,” can only be understood when legal holdings are made on specific facts.
Preliminarily, I do not believe that the majority has given appropriate precedential weight to this Court‘s opinion in State v. Standifur, 310 Md. 3, 526 A.2d 955 (1987). Nor does Standifur differ substantially from the analysis presented in Parts I, II.A, and II.B of the opinion of Justice O‘Connor, joined by five other justices, in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). Both Williamson and Standifur require consideration of all of the
With respect to portions of the universe that are “collateral” or “related” to the core declaration against penal interest, both opinions seem to take substantially the same approach. Williamson directs a “statement” by “statement” analysis of the portions under the reasonable person test. 512 U.S. at —, 114 S.Ct. at 2436-37. Under Standifur, the hard core declaration against penal interest “and those related statements so closely connected with it as to be equally trustworthy, are admissible as declarations against interest.” 310 Md. at 17, 526 A.2d at 962. Of course, what makes the “closely connected” statements “equally trustworthy” is that a reasonable person would have perceived them as contrary to penal interest. Id.
Consequently, the majority inaccurately presents Standifur when it states that “[t]he central distinction between the Williamson approach and our approach in Standifur is that ‘proximity’ between the self-inculpatory and ‘collateral’ portions no longer guarantees admissibility.” 343 Md. at 491, 682 A.2d at 705-06. “[P]roximity,” denotes spacial nearness, presumably in the written presentation of the universe under consideration. Webster‘s Third New International Dictionary 1828 (1976). Nowhere in Standifur does the word, “proximi
Even if there are differences between Maryland common law, as enunciated in Standifur, and the application of
Williamson does not say that the identity of a criminal confederate of the declarant must be excised from a declaration against penal interest. If that were the law, even the remainder of the hard core declaration against penal interest ordinarily would not be connected to the accused and likely would be inadmissible for lack of relevancy. Five justices in Williamson remanded for parsing the universe in order possi
In any event, even a statement by statement parsing of White‘s conversation with Marchewka results in the admissibility of the identification of Matusky and of his communication of his motive to White. They are important, integrated parts of White‘s declaration against penal interest.3 In his conversation with Marchewka, White incriminates himself as an accomplice, or principal in the second degree, to the murders of Trudy Poffell and her daughter, Pam Poffell, and as an accessory after the fact to those murders. Knowledge that a murder was to be committed, or had been committed, is an element of either theory of criminal responsibility. 1 C. Torcia, Wharton‘s Criminal Law §§ 31 and 33 (15th ed. 1993). The knowledge element of the crimes admitted in White‘s declaration against penal interest is greatly reinforced by the inclusion of the parts of White‘s conversation with Marchewka in which Matusky is named as the person declaring an intent to kill and expressing the reason for having formulated that intent.
A little background is needed to place White‘s conversation in perspective. At the time of trial Marchewka had been employed for twenty-five years by AT & T. She was raising her teenage son and preteen daughter. White had been living with her in her home since March of 1989. The two had become engaged in 1991, although White was not divorced from his estranged wife, one of the victims, Pam Poffell. Through White, Marchewka had met Matusky. White and
The legal test as to what constitutes a declaration against penal interest is whether a reasonable person would perceive the statement to be incriminating. One way to test whether White‘s references to Matusky and to his motive are integral parts of the declaration against penal interest would be to look at a similar declaration that did not contain those references. In that analytical framework a prosecutor would be seeking to convict White of being a principal in the second degree to murder based on White‘s admission as a party opponent that White met someone in a bar whom White did not know, that that person said that he wanted to murder Trudy and Pam Poffell for reasons that were not expressed, and that White drove the stranger to the Poffell home in the stranger‘s car. Although our hypothetical illustration contains some evidence of knowledge, the knowledge element is greatly diminished from the standpoint of any weight that would be attributed to it. To a reasonable person, the expurgated version sounds more like the statement of a mentally disturbed individual than a declaration against penal interest.
Much the same argument that the majority of this Court today accepts was rejected by the Supreme Court of Virginia in Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219, cert. denied, — U.S. —, 116 S.Ct. 233, 133 L.Ed.2d 162 (1995). In Chandler the Virginia court unanimously affirmed
Chandler argued to the Virginia court that under Williamson “only those portions of the statement which directly implicate Murphy are admissible” and that “Murphy‘s statements regarding [Chandler‘s] accounts of the robbery would be inadmissible.” 455 S.E.2d at 225. The Virginia court first observed that Williamson “concerned the interpretation of the Federal Rules of Evidence” which were “not applicable here.” Id. The court then held:
“Furthermore, in the present case, Murphy‘s recitations of statements made by Chandler showed her knowledge of and complicity in the criminal act and exposed her to liability as an accessory to the crimes. Accordingly, Murphy‘s entire statement is admissible as a declaration against penal interest.”
Similarly, in the instant matter, White‘s statements that it was Matusky who communicated the intent to murder and the reason why “showed [White‘s] knowledge of and complicity in the criminal act and exposed [him] to liability as an accessory to the crimes.”
Notes
In explaining my views, I too “shall assume, arguendo, that the trial court correctly determined ... that a reasonable person in White‘s circumstances would have realized that his declaration was contrary to his penal interest.” 343 Md. at 484-85, 682 A.2d at 702.
It should also be noted that there was no cross-petition filed. Consequently, any issue involving the Confrontation Clause that may be lurking beneath the surface in this matter is not an issue that is before this Court.
Six Justices adopted the test articulated by Justice O‘Connor. Although all of the Justices agreed that some portions of Harris‘s declaration should have been redacted, however, the Court was divided on the appropriate standard to apply in defining the scope of the declaration against penal interest exception. Justice Scalia, in a concurring opinion, agreed with the approach articulated by Justice O‘Connor, but further explicated the standard. He noted that:
A statement obviously can be self-inculpatory ... without consisting of the confession ‘I committed X element of Y crime.’ ... Moreover, a declarant‘s statement is not magically transformed from a statement against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible codefendant.
512 U.S. at —, 114 S.Ct. at 2438 (Scalia, J., concurring).
Justice Ginsburg, in a concurring opinion joined by three other Justices, also adopted the test articulated by Justice O‘Connor, but disagreed with Justice O‘Connor‘s application of the test to the facts of the case. Id. at —, 114 S.Ct. at 2438-39 (Ginsburg, J., concurring). In Justice Ginsburg‘s view, the facts of the case were so suggestive of blame-shifting that the declaration was presumptively unreliable, and thus Harris‘s entire declaration should have been excluded. Id. at —, 114 S.Ct. at 2439. Justice Ginsburg, concurring in the result, determined that the State should be permitted an opportunity to argue on remand that the erroneous admission of Harris‘s statement was harmless error. Id. at —, 114 S.Ct. at 2440.
Finally, Justice Kennedy, in a concurring opinion joined by two other Justices, adopted an interpretation of
Although the Supreme Court did not actually proceed to redact the extended hearsay declaration in Williamson, the Court provided a number of hypotheticals to illustrate what types of statements could be admitted as declarations against penal interest. For example, Justice O‘Connor noted that the statement ” ‘I hid the gun in Joe‘s apartment’ may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory.” 512 U.S. at —, 114 S.Ct. at 2437. In addition, Justice O‘Connor observed that the statement “Sam and I went to Joe‘s house” could also be admitted if a “reasonable person ... would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam‘s conspiracy.” Id. In his concurring opinion, Justice Scalia also noted that:
[I]f a lieutenant in an organized crime operation described the inner workings of an extortion and protection racket, naming some of the other actors and thereby inculpating himself on racketeering and/or conspiracy charges, I have no doubt that some of those remarks could be admitted as statements against penal interest.
Id. at —, 114 S.Ct. at 2438 (Scalia, J., concurring). Thus, the Court intended that, under some circumstances, statements incriminating both the declarant and a third party could be admitted as declarations against penal interest.
Id. at 832 n. 3. See also Ciccarelli v. Gichner Systems Group, 862 F.Supp. 1293 (M.D.Pa. 1994).The fact that an inculpatory portion is closely related to the portion against interest may be an input into finding that the ‘closely related’ portion turns out to be against interest itself. After Williamson, the key is that a finding that an inculpatory portion is ‘closely related’ to an against-interest portion will not itself warrant 804(b)(3) admissibility. Each admitted statement or portion of statement must be found to be against the penal interests of the declarant.