*1
STATE Term, 72, September 1993. No. Maryland. Appeals of
Court 28, 1994. March 6,May Denied Reconsideration *2 E. (Stephen Asst. Public Defender Lansburgh, Victoria S. Defender, brief), Baltimore, petitioner. for Harris, on Public (J. Curran, Jr., Joseph Asst. Atty. Gen. Capowski, John J. brief), Baltimore, Gen., respondent. Atty. RODOWSKY, MURPHY, C.J., before
Argued chasanow, karwacki, m. McAuliffe,* Robert ORTH, Jr., of the Court of BELL, Judge E. and CHARLES *3 (Retired, Assigned), JJ. Specially Appeals (Retired) ORTH, Jr., Judge Specially E. CHARLES Assigned.
I Berton January body 1990 the of Lawrence Johnson On a George’s County lot in Prince beside parking was found on a engine door was and the open automobile. The car’s Toyota manner of his death to be homicide running. proved was The gunshot a wound to his single and the cause of his death was on his Inside person. Cash in the amount of was head. $130 cocaine, bags pagers, numerous of two the car were $310 initials or names and pieces paper bearing cash and several of numbers. phone to Anthony of the crime led them police investigation
The Weston, Perry Ryan Lee and O’Neil Wilson. Brady Wilson * McAuliffe,J., retired, participated hearing of in the and conference now Court; being recalled while an active member of this after this case 3A, Constitution, IV, participated pursuant Article Section he also to the opinion. adoption in the decision and this murder, The they were arrested. Grand days after
Five County returned an indictment George’s for Prince Jury jointly charged pre- All with the three were against them. (1st count), attempted rob- murder of Johnson meditated (2nd count), weapon conspiracy with a deadly of Johnson bery (3rd count), and unlaw- deadly weapon to with a rob Johnson in the of a crime of violence using handgun a commission fully count). (4th with the jointly charged and Lee were Wilson of Johnson accessory after the fact the murder offense count). (5th a County denied George’s Court for Prince
The Circuit
Lee
severance,
April
and on
Wilson
motion
jury.
guilty
Each
them
found
tried
was
together
were
accessory charge
charge
and on
conspiracy
attempted
appeal
Wilson
remaining charges.
on the
guilty
him,
appeal
but his
was
entered
judgments
from
and dis-
Special Appeals
the Court of
deemed defective
post
procedures,
conviction
He resorted
missed.
and exercised
right
appeal
to note
belated
granted the
judgments.
Appeals
affirmed the
Special
Court
right.
Md.App.
A.2d 810
We
petition.1
Wilson’s
upon
a writ of certiorari
issued
II
County Police
George’s
Prince
Roger Irvin
Detective
Lanham,
Mary-
arrested Lee at Lee’s home
Department
Department’s
to the
Criminal
transported
Irvin
land.
*4
appeal.
Special Appeals
separate
1.
filed
The Court of
affirmed
State, unreported,
judgments against
filed 20 March
him. Lee v.
by way of certiorari.
He did not seek the review of this Court
1992.
separately
by jury
the Circuit Court for Prince
Weston was
tried
in
County.
guilty
felony
George’s
He was found
murder and murder
indictment,
degree
count of the
and of
second
under
first
count,
and the fourth
charged in the second
third count
crimes
Special Appeals
judgments
entered
Court of
affirmed
count. The
State, unreported,
April
filed
We
Weston v.
on the convictions.
writ of
327 Md.
At Lee’s statement Irvin, Lee said: objection. jury by As recited to the Wilson’s [Weston], 6th, me, Ryan Anthony [Wil- January On Ryan Honda. had his my gold out in father’s went son] going dope to rob a police gun. father’s D.C. We were Dodge around gun. had the We went Anthony dealer. no one out so we decided Park There was Apartments. apartment myself I saw a car enter the leave. When Anthony was about Ryan walking were on the sidewalk. the car came back and feet the street. That’s when said, I not hear what the you looking?” “Are could Anthony said, Anthony get “Get said the car. Then person on— *5 seconds, then for 30 the fuck out or on.” The car stood car. He then got A male out the parked. in and pulled hit the horn and turned to in the car and reached back in air “I’m the his hands Anthony putting and said said, “No, fuck, Anthony then around here.” biggest dealer ran. Me and not”, Anthony him. then and shot you’re he that. I I not believe had done away. could Ryan walked car, talk it up Ryan and about my Anthony, then in got pick off. dropped Anthony off and dropped Ryan and then handwriting. of the statement was Lee’s part That narrative form, and answer question continued by Irvin. writing was reduced to Anthony’s is name?” number one: “What Question Brady “Anthony Weston.” Answer: is Ryan’s “What Question number two: name?” O’Neil Wilson.” “Ryan Answer: Anthony live?” does Question number three: “Where Lanham, Maryland.” “It’s on Walkerton Answer: Ryan live?” four: ‘Where does Question number It’s first left of Hill Road somewhere. “It’s off Answer: after from the townhouses.” day did this occur?” five: “What Question number morning.” “Friday night Saturday Answer: — “At at what time did Question approximately number six: occur?” this morning a.m.” 5:30 to 6:00
Answer: “About you car were the three Question number seven: “What (cid:127) in?” Honda, I Maryland tag. my gold father’s ’89 Answer: “It’s know the number.” don’t gun?”
Question eight: number ‘Who had Anthony had the gun, father’s but Ryan’s Answer: “It was gun.” gun.” nine: “Describe the
Question number handle, Answer: “It’s a black .38 gun Special with a brown with D.C. written all over it.” Cop Question Anthony carrying number ten: “How was *6 gun?” jacket.”
Answer: “It was under his Question the three of on you go number eleven: “Where did 6th, Saturday, January 1990?” Landover, “Dodge Maryland.” Answer: Park Road in Question “Why you go number twelve: did the three of there?”
Answer: “To rob someone with cocaine.” Question number the shooting thirteen: “How did occur?” Answer: Ryan walking “Me and were down the sidewalk and we walked a couple apartments down and came back. There were a couple people They they out there. said that did anything. not have were Me leaving. Ryan We and were on the Anthony sidewalk. was ten to fifteen feet behind us and he was the street. That’s when a car came in. The car went down about it buildings three and looked Meanwhile, dropping like he was off. somebody we were on, calling Anthony saying, and ‘Come Anthony, go.’ let’s said, Anthony you car came back and ‘Are looking something?’ He said that the —he said that to the guy car. 1 guy couldn’t hear what the said. The car pulled building front of the where he shot at. The guy got was out of ear. rolling He was down his window. heWhen doing was this he back in the reached car and blew the horn three times. facing building. Anthony He was was guy behind him. The turned around and threw his hands said, the air ‘I’m biggest hustler around here.’ And said, ‘No, Anthony you’re not. I am.’ The whole time the gun was at his head. At first the hit guy gun away Anthony gun then shot the and then run Anthony down the street to 25 Hour I Ryan store. walked to the car. left. He walked towards the store. I drove and picked up Ryan first Anthony. and then We talked home I driving why didn’t he did why say did that. He Anthony he
asked off, Anthony then their homes.” Ryan I dropped it. gun?” happened “What number fourteen: Question I don’t know what it to “Anthony gave Ryan. Answer: gun.” did with Ryan Anthony many “How times did number fifteen:
Question Dodge male Park Road.” the black shoot Answer: “Once.” anybody about this you “Did tell number sixteen:
Question incident?” her you I want tell don’t “My girlfriend.
Answer: name.” what An- “Do remember you seventeen:
Question number night?” wearing was thony pair a blue Dallas coat and wearing Answer: “He jeans.” *7 on that you did have eighteen: number “What
Question night?” coat, jeans and some boots.” “A blue gray
Answer: Ryan?” about nineteen: “How Question number “I’m not sure.” Answer: “Did have guy Anthony [shot] twenty: number
Question weapon?” any type at, I was no.” the distance that
Answer: “From Anthony far from were twenty-one: “How Question number he shot black male?” you when ten fifteen feet.” “Approximately Answer: Anthony anything “Did take twenty-two: number Question male he shot?” the black from Answer: “No.” twenty-three: you your rights “Did waive number
Question knowingly?” and freely be done.” something It that had to
Answer: “Yes. the statement accurate twenty-four: number “Is Question told me?” you as to what it get
Answer: “It can’t not better than is.” twenty-five: number “Is this the truth?” Question Answer: “To be honest the honest to God truth.” under the influence Question twenty-six: you number “Are any drug or narcotic?” “No, I’m not.” Answer: of the crime scene and autopsy report, diagram there, gun testimony as to what was found
testimony home, recovery gun as to the and bullets Wilson’s testimony relating and documents to the voluntariness no statements were also received in evidence. There was except other evidence adduced the State the two men’s opted testify statements. Each of the defendants not to no other evidence was offered in their behalf. Motions for judgments acquittal were denied.
III question The sole asks us to determine boils down to in admitting whether the trial court abused its discretion Lee’s challenge only respect statement. We consider Wilson’s to the Confrontation Clause of the Amendment to the Sixth Constitution of the United States2 and on the common law rule. Wilson,
In
guise
its
as substantive evidence against
Lee’s
statement was
hearsay.3
posture
its
as substantive evi-
2. The Confrontation Clause of the Sixth
to the
Amendment
Constitution
of the United States declares:
*8
prosecutions,
enjoy
right
In all criminal
the accused shall
...
to
against
be confronted with the witnesses
him....
requirements
applicable
The confrontation
of the Sixth Amendment are
Texas,
through
to the states
the Fourteenth Amendment. See Pointer v.
400,
1065,
(1965); Douglas
380 U.S.
85 S.Ct.
Alabama,
415,
1074,
(1965);
380 U.S.
85 S.Ct.
dence invoked The basic rule the United States Constitution. Amendment to hearsay as its admission evidence. to bars of language the Confrontation If one were to read [the literally, require, it would Amendment] of the Sixth Clause made aby objection, any on the exclusion at trial. present declarant not 63, Roberts, 56, 2531, 65 448 100 S.Ct. L.Ed.2d v. U.S. Ohio (citation omitted). (1980) The Court noted: 597 virtually But, abrogate if the Clause would applied, thus rejected long a result as unintend- exception, every hearsay and too extreme. ed 3139, U.S. 110 S.Ct. Wright,
Id. In Idaho v. (1990), the 3145, 111 Court declared: L.Ed.2d juris- of our Confrontation Clause days From earliest does consistently have held the Clause prudence, we hearsay the admission of statements necessarily prohibit not defendant, even admission of though a criminal might to violate the literal thought statements be such of the Clause. terms recognized hearsay rules and Supreme Court has protect “generally are designed Clause Confrontation equate values” it has “been careful
similar but rule general prohibitions pro- Confrontation Clause’s hearsay statements.” Id. hibiting the admission omitted). (citations “Both,” however, “express a S.Ct. at 3146 examination of declarant as personal for a preference accuracy veracity of a witness’s testing means 331 Md. A.2d testimony.” Chapman protec- equate of the Court By the refusal law the common rules of the Confrontation Clause with tions previously as to McCormick's definition We have turned court, evidence, "testimony or of a statement made out written court, the truth of being offered as an assertion to show the statement therein, upon resting thus for its value asserted matters credibility Cleary, E. out-of-court asserter.” McCormick (2d 1972). p. § ed. Evidence
323 trials, in criminal hearsay of the admission regarding evi- of some bar “the admission may Confrontation Clause exception under an otherwise be admissible that would dence 814, at 110 S.Ct. 497 U.S. at Wright, rule.” hearsay to the 3146. 2538, 65, Court set Roberts, at at 100 S.Ct. incrimina- determining when approach” general
forth “a hearsay to the exceptions under admissible ting statements Clause. of the Confrontation requirements rule also meet is that a The first aspects. has two general approach The this Roberts declared must be satisfied. necessity” of “rule “in conformance the Sixth Amendment by was established rule Id. for face-to-face accusation.” preference with the Framers’ rule of the play only upon into satisfaction The second comes pro- is then admissible hearsay necessity. of ” 66, 100 reliability.’ Id. at “adequate ‘indicia of vided it bears recognized and approach The Roberts S.Ct. at 2539. Illinois, 530, 476 106 S.Ct. the Court Lee v. U.S. applied by (1986). applied 514 It was iterated 90 L.Ed.2d 814-815, 110 at 3145-3146. We 497 at S.Ct. Wright, U.S. 455-456, Chapman, it 331 Md. at quoted applied A.2d
A
for in the
ways
necessity
of the
the rule of
called
One
may
Roberts
be satisfied is
aspect
approach
first
Chap
is unavailable. See
proving
that the
declarant
man,
A
is “unavail
4. The first
unavailability
showing of the
of the declarant or a demonstration
presence.
good
efforts to secure the declarant’s
unsuccessful
faith
Then,
Chapman
Md.
B
reliability”
“showing
translates
into a
“Indicia
Roberts,
guarantees
trustworthiness.”
particularized
Illinois,
2539;
at
U.S.
*10
U.S. at
S.Ct.
“particu
2063.
If
at issue
hearsay
possesses
106
at
the
S.Ct.
trustworthiness,”
it
into
can be admitted
larized
of
guarantees
of
from
barring
rule
a trier
fact
despite
general
evidence
the
Illinois,
543,
v.
at
106
considering hearsay. See
476 U.S.
Illinois,
In Lee v.
the
the
2063.
Court considered
S.Ct. at
id. at 544-
statement,
surrounding
hearsay
the
circumstances
545,
2064,
of the
“interlocking”
at
arid the
nature
106 S.Ct.
confessions to determine wheth
codefendant’s
defendant’s
enjoyed
required “particu
the
confession
the
er
codefendant’s
trustworthiness,”
not
rely
but did
larized
guarantees
Id. at
545-546,
physical
106 S.Ct. at
corroborative
evidence.
York,
v.
186,
1714,
New
107 S.Ct.
95
Cruz
2064.
481 U.S.
interlocking
the
(1987), the Court also turned to
L.Ed.2d 162
statement and the defen-
hearsay
nature
the codefendant’s
1121,
Inadi,
387,
390
475 U.S.
106 S.Ct.
89 L.Ed.2d
United States
(1986),
Court declared:
proposition
fairly
read
for the
cannot
be
to stand
radical
Roberts
government
can be introduced
no out-of-court statement
showing
is unavailable.
a
declarant
without
unavailability
a
1125.
It held that the
Id. at
106 S.Ct. at
hearsay
coconspirator’s
conspirator need
be shown to admit
398-400,
during
conspiracy.
Id. at
made
the course
declaration
Illinois,-U.S.-,
112 S.Ct.
106
at 1127-1128.
In White v.
S.Ct.
(1992),
again
L.Ed.2d
the Court
indicated that
116
848
requirement
apply
all
unavailability
does not
to
established
Roberts
-
-,
hearsay.
at
The
U.S. at
S.Ct.
741-742.
forms of
Id.
Court held that
showing
require
Clause does not
an initial
Confrontation
are
unavailability prior
admitting
statements which
out-of-court
attaining
purposes
spontaneous
or are made for the
declarations
diagnosis
evidence for the State’s
or treatment as substantive
medical
case.
469-470,
White,-U.S.
citing
Chapman,
at-,
Md.
628 A.2d
at
Thus,
concluded,
Chapman
appears
"it
S.Ct.
at
emphasized
contemplated
rule of
Supreme Court
that Roberts
has
So,
availability.’’
Md. at
Quite obviously, but to is not its pertains confession fendant’s harmfulness the same essentially If it confirms reliability: rather its likely it is more own confession the defendant’s facts as be true. original). (emphasis at 1718 at 107 S.Ct.
481 U.S. Court continued: however, to whether the be relevant may reliability,
Its
for cross-
opportunity
the lack of
(despite
should
confession
defendant,
examination)
against the
be admitted as evidence
Illinois,
90 L.Ed.2d
Of
the defendant’s
statements are
in
whether his codefendant’s
assessing
trial
directly
to be
reliability”
“indicia of
by sufficient
supported
“unavailability”
him
(assuming
admissible
codefendant)
for cross-exam-
opportunity
the lack of
despite
543-544,
Lee,
at
ination,
at
106 S.Ct.
supra, 476 U.S.
see
States,
128,
2063-2064;
391 U.S.
at
123]
Bruton
United
[v.
(1968)
3,
1620,
may
... and
be
]
Admission [of
requirement
constitutional
of
hearsay exception satisfies the
judi-
longstanding
accorded
reliability
weight
because of the
the trustworthi-
experience
assessing
and legislative
cial
types
of out-of-court statements.
ness
certain
(citations omitted).
817, 110
at 3147
Wright, 497 U.S. at
S.Ct.
456-457,
IV 1990, the Court decided Idaho Supreme On 27 June (1990), 110 S.Ct. L.Ed.2d 638 Wright, 497 U.S. significant exception: law with one existing which confirmed determining the trustwor- corroborating evidence the use of required The case hearsay certain statements. thiness of Court certain the admission trial of
to decide whether
examining
an
a child declarant
statements made
rights
under
Confron-
violates defendant’s
pediatrician
Sixth Amendment.
tation Clause
*12
decision,
the
808,
reaching
at
110
at 3143.
its
Id.
S.Ct.
trial
had
Roberts
The
court
applied
approach.
Court
the
of
incapable
declarant was
communi-
hearsay
found that the
appel-
counsel
cating
agreed.
the
and defense
The
jury
this
nor discussed
questioned
finding
late
had neither
court
Therefore,
necessity.
of
for the
general requirement
the
decision,
Court assumed that
the declarant
purpose of
of the Con-
meaning
“was an unavailable witness -within
816,
The Court
at
at 3147.
Id.
S.Ct.
frontation Clause.”
approach.
Roberts
at
of the
aspect
then looked
the second
whether
is therefore
question presented
crux of the
presumptively
of
evidence
proponent
as
Clause,
hearsay rule and the Confrontation
barred
[the
declarant’s
proving
burden of
has carried its
reliability
indicia
to
of
statements] bore sufficient
hearsay
the Clause.
scrutiny under
withstand
it was
hearsay exception
before
Id.
It first noted that
require-
satisfy
as
the constitutional
a
rooted one so
firmly
at
110 S.Ct. at
more ado. Id.
reliability
ment of
without
Rather,
be admissible had to
exception to
hearsay
of trustworthi-
guarantees
distinguished by “particularized
be
817-820,
The Court
3147-3149.
ness.” Id. at
110 S.Ct. at
leeway in their consid-
courts have considerable
observed that
to determine the existence
eration of
factors
appropriate
trustworthiness;
guarantees
it “deeline[d]
particularized
determining ‘particularized
a mechanical
test
endorse
Id. at
under the Clause.”
guarantees of trustworthiness’
the circumstances
at 3150. The
S.Ct.
statement
it, however,
obtaining
were factors to be
surrounding the
Id. at
To the Court was this the Court ing prior Although and declarations its cases. “interlocking” plainly had before that the of codefend- stated of a defendant’s statement hearsay ant’s statement with that reliability ascertaining was a factor consider proper statement, Wright that this hearsay of the it announced not so. It declared of trustworthiness” must be
“particularized guarantees
circumstances,
we
totality
from the
but
think
shown
only
the relevant circumstances include
those
surround
render the
making
of the statement and that
declarant
worthy of belief.
particularly
this
at
repeated
at
[W]e may corroborating dence the truth *13 finding a that the statement properly support “partic- bears ularized of trustworthiness.” guarantees Clause,” “To be admissible under the Confrontation the Court declared,
hearsay evidence used to convict a defendant must possess
trustworthiness,
reliability by
indicia of
virtue of its inherent
by
to other
at trial.
reference
evidence
823,
Id. The Court declaimed at
Wright
however:
think
presence
corroborating
evidence more
[W]e
indicates that
error
appropriately
any
admitting the
harmless,
might
statement
be
rather
any
than that
basis
exists for
presuming
trustworthy.
declarant
be
823,
We have examined over 100 cases to ascertain how the
jurisdictions,
state,
courts
other
both federal and
have dealt
with
The cases are not
Wright.
allegations
confined
abuse,
concerned,
Wright
many
child
with which
but cover
situations,
kinds of factual
including the situation before us: a
statement
an
accomplice inculpating
defendant.
They
enthusiasm,5
applied Wright,
always
have
but not
as
meaning precisely
says, namely,
what it
that the
of a
reliability
hearsay statement shall be determined only from the state
it;
ment itself and the circumstances surrounding
other evi
dence,
physical, including
testimonial and
of a
State,
(1991)
George
5. See
v.
306 Ark.
818 S.W.2d
952-953
(Glaze, J.,
State,
concurring); Vann v.
309 Ark.
831 S.W.2d
(1992) (Glaze, J.,
concurring); Bockting v.
109 Nev.
P.2d
1369-1370 n. 8
considered,
codefendant,
no matter to what extent
not be
shall
hearsay statement.
to corroborate the
tends
evidence
See,
Joseph, Virgin Islands v.
Government example,
Ellis,
(3d Cir.1992);
States
United
1380, 1387-1388
F.2d
*14
denied,
(4th
U.S.-,
112
Cir.),
S.Ct.
cert.
580,
F.2d
582
—
Flores,
v.
United States
(1992);
985
3030,
V
A
question Wilson
before the Court of
presented
The sole
in admitting
the trial court erred
Special Appeals was whether
Gomez-Lemos,
326,
in United
v.
939 F.2d
332
The Sixth Circuit
States
(6th Cir.1991)
say
Wright
Supreme
far
went so
as to
that in
Court
question
itself
from other
"reversed
on the
whether corroboration
may
hearsay testimony
evaluating
witnesses
be considered in
whether
requirements
reliability
Clause.”
meets the
the Confrontation
argument
Lee’s
The heart of his
the trial
statement.
state-
hearsay
court erred was that his statements and Lee’s
to overcome the
sufficiently
presump-
ment did not “interlock”
jointly
tion
statement of a
tried codefendant
that the
presumptively
a defendant is
unreliable. Wilson
implicating
States,
cited to Bruton v. United
88 S.Ct.
U.S.
York,
(1968),
Cruz New
before confessions, significantly to their addition taking of the clearly evidenced aspects, material detail of interlocking reliability presumption to rebut indicia sufficient prop- and was confession of the co-defendant’s unreliability [Wilson], against as direct evidence admitted erly Wright not enter 694-695, A.2d 810. did Md.App. at ques- court’s resolution appellate into the intermediate cited. The court concluded: was not even tion —that case co- event, non-testifying assuming any even admissible directly confession was defendant’s [Wilson], and circumstances under the facts we believe that sup- case, independent confession wherein [Wilson’s] of this co-defendant’s, Clause viola- the Confrontation ported was harmless. tion
Id. A.2d
B on certiorari is: question presented us Special Appeals holding the Court of erred Whether have it ... trial court to allowed the proper that was against [Wilson] to introduce as substantive evidence State non-testifying made codefendant [Lee] a confession in the implicated crimes. [Wilson] which us, reached Wilson’s counsel had By time case Wright. Contending Special the Court of discovered the Bruton erred, rule of recognizes presump- Appeals v. Illinois teachings regarding unreliability tive *16 of he calls the dictates upon rule. But for the first time the that trial court erred Wright buttress his contention the Special that of admitting statement and the Court Lee’s the Wilson affirming judgments. therefore erred Appeals by Wright, the imposed under restraints argues that the statements may of Lee’s statement and Wilson’s “interlocking” statement, reliability used the Lee’s and not be to evaluate surrounding the ob- plus its contents the circumstances that overcome the taining presumption of it were not sufficient to In unreliability with which the statement was burdened. words, and Lee’s other whether or not Wilson’s statements of mate- “significantly interlocking statement contained detail Wilson, 694-695, Md.App. rial see at A.2d aspects,” to a determination whether Lee’s respect is irrelevant with trustworthy to overcome sufficiently statement was justify it not so as to its that was reliable weighty presumption urges further admission in evidence Wilson. Wilson error, the error if admission of Lee’s statement was Lee, confessions of was not harmless because the identi- many respects,” “hardly “similar were though even the combined “urged jury cal” the State consider in determining [Wilson’s] the various statements effect of guilt.” error, asserting no counters seeing by surrounding Lee’s confession show sufficient
circumstances that the urges timing for its admission. It reliability indicia of voluntariness, nature, confession, exculpatory its its indicia of vengeful provide its lack of a motive sufficient Finally, its admission. the State claims reliability to warrant error, statement, if harmless. of Lee’s admission C perfectly prosecu- that it is clear from the We first observe trial, and her opening closing arguments tor’s voluntary, the confessions to be it could jury that if the found guilt as substantive evidence of the together consider them words, In Lee’s confession was both Lee and Wilson. other also only guilt, not as evidence of his but offered State token, guilt. By the same Wilson’s as evidence Wilson’s guilt, as evidence of his but only confession was offered is, could guilt. of Lee’s That each confession also as evidence conjunction with the other to jury be considered attorney Neither Lee’s guilt establish the of both defendants. fact, in their attorney nor contested this notion. Wilson’s on the closing arguments jury, focusing primarily to the embraced the view that charges, they obviously murder
333
in
of
considered;
they spoke
terms
so
should be
confessions
other, establishing
truth of the
showing the
each confession
to
murder.
nor
intended
commit
neither Lee
jury,
to the
court’s instructions
nothing
the
There was
counsel,
two confessions were
to
that the
accepted by
suggest
had
nothing that
been
entry,
as an
not to be considered
suppress
pretrial hearing to
or
at the
by
said
the court
counsel
otherwise.
suggested
the confessions
light
in the
of
approach
Roberts
We follow the established
judge
trial
to
whether the
Wright
the dictates
determine
is entitled to a
Lee’s statement. Wilson
admitting
erred
was not
wrong
if
the error
judge
new
was
trial
the
if
harmless;
right,
if
even
judge
the
the
was
judgments stand
v.
Exchange
Com.
wrong
for the
reasons. Cf. Securities
88,
454, 459,
80,
63
Lee,
an accom-
was
declarant
Wilson,
sought
place
plice
against
whom
State
tried,
a motion
jointly
evidence. The two were
Although
been
trial court.
having
for severance
denied
courtroom,
invoked his
physically present
Lee
he
defendant,
As
was a
the State could
right
testify.
not
testify
him as
And
failure of Lee to
call
a witness.
did,
course,
of him
the cross-examination
preclude
Bruton,
1625-1626;
See
391
at
88 S.Ct. at
Wilson.
U.S.
Alabama,
1077;
Douglas v.
380 U.S. at
S.Ct.
(8th Cir.1977),
Wyrick,
v.
558 F.2d
cert.
Phillips
(1978);
denied,
55 L.Ed.2d
S.Ct.
Whelchel,
P.2d at 952-953.
supra,
State
who
accepted notion
witnesses
generally
is the
[It]
self-incrimination
successfully
privilege
invoke
*18
their
determining
of
whether
purposes
are “unavailable”
exception
are admissible under an
prior statements
hearsay
rule. See California
v.
Green,
399 U.S.
[149]
at
1940,
168,
17,
at
n. 17
L.Ed.2d 489
[26
n.
90 S.Ct. [1930]
(1970)
804(a)(1);
];
Cleary,
E.
McCormick
Fed.Rule Evid.
(3d
1984).
§
on Evidence
ed.
(Black
550-551,
Illinois,
at
Lee v. 476 U.S. mun, J., dissenting).
B Alabama, 419, at at 380 U.S. 85 S.Ct. Douglas to cross- 1077, “inability held that the defendant’s the Court confession accomplice] alleged plainly as to the [the examine him by cross-examination secured right denied of Clause.” Confrontation unanimously agreed, was holding,
This
on which the Court
understanding that when one
premised
on the basic
circumstances
another of a crime under
person accuses
another,
by
to gain
inculpating
which the declarant stands
and must be sub
suspect
accusation is presumptively
cross-examination.[7]
jected
scrutiny
to the
Illinois,
at
The the second invokes at 2063. rebuttal 106 S.Ct. Id. at hearsay namely, approach, Roberts aspect to be reliability” “indicia adequate must bear before question to the crux of the brings This us admissible. presumptively of evidence proponent as the us: has the rule, proving burden of carried its hearsay barred scruti- to withstand reliability sufficient statement bore Lee’s Clause? the Confrontation ny under long has looked Court Supreme that the emphasize We accomplices that statements jaundiced eye upon a im- The Court proceedings. criminal defendants implicate of such for admission the proponent burden on heavy poses easily unreliability is statement; presumption *19 than it even more difficult is rendered The rebuttal rebutted. severely above, dictates Wri,ght As noted pre-Wright. was to determine considered may be the factors restrict trustworthiness; con- they are of guarantees particularized sur- to the circumstances itself and to the statement fined statement, to without resort obtaining of rounding the by evidence, hearsay a statement including corroborative any a codefendant. of Lee’s statement is the voluntariness observe that
We first
of the
admissibility
next note that
now contested. We
hear-
to the
exception
interest
penal
rested on
statement
accepted
has not been
exception
penal
rule. The
interest
say
Md.
one.8 See Simmons
firmly established
as a
state-
Thus Lee’s
547, 557-559,
A.2d
468-469
then had the
unreliable. The State
presumptively
ment was
establishing from the
by
rebutting
presumption
of
this
burden
exceptions
several classic
Supreme Court has indicated
8. The
against
category.
“firmly
A declaration
within the
rooted”
that fall
3,n.
Chapman,
It is himself, murder to blame from naturally want deflect he man and that trigger Weston was the police so he told that he “I could believe to do not nothing shooting. had that,” he added that he had claimed. Later had done Lee gave but Weston no he had shot Johnson why asked Weston process,” Supreme A of the criminal “reality reason. Illinois, v. is Court noted “jig up,” in crime that the is partners recognize once
that immediately any identity tend to of interest they lose antagonists, accomplices. rather than become 544-545, full “Taking on the 476 U.S. at S.Ct. at in an ... little to for a minor role offense does blame still has trustworthiness because the declarant demonstrate the blame to so as to receive a lesser the motive shift others Flores, F.2d at 782. penalty.” United States words, character, own also made Lee’s as revealed his They that he not averse suspect. his statement showed freely in criminal conduct. He admitted he had engaging joined dealers. drug Wilson and Weston rob sur- perusal
From our of the circumstances totality statement, in light Wright, of Lee’s rounding obtaining no content the State overcame we are means un- jealously guarded the statement was presumption trustworthy. We believe that those circumstances did particularized sufficiently that there present show were to make statement guarantees required of trustworthiness short, was not reliable. We admissible. it. admitting that the court erred in hold trial VII is error was harmless. inquiry Our final whether the nature supra, Wright interlocking As noted indicated that the state- of a declarant’s statement and defendant’s *21 338 in in error determining any
ment
considered
whether
may be
statement
be harmless.
U.S.
admitting
might
the
so,
at
But
we
that
at
110 S.Ct.
even
believe
harmless.
admission of Lee’s statement was not
erroneous
Dorsey
adopted
error rule we
harmless
(1976)
is
than the
demanding
Md.
Id. stressed: (emphasis We A.2d is no reviewing court must thus be satisfied that there Such that the evidence possibility complained reasonable of— con- may have admitted or erroneously whether excluded — the guilty tributed to the rendition verdict. added). Id. (emphasis heart of and statements were the
Lee’s statement Wilson’s legally was no other evidence suffi- the State’s case. There charged. guilt any cient to establish Wilson’s crimes record, our we find that independent On review that Special Appeals observing Court of was correct Wil- substantially were alike son’s statements Lee’s statement aspects. in all The statements “interlocked” significant other; in them were discrepancies cross-corroborated each substantial; more than not differences them were no Although and trivial. statements as well irrelevant Wilson’s respect with to exculpate as Lee’s statement tended murder, that the other they showed Wilson committed after the charged, including conspiracy accessory crimes fact, he was the offenses which convicted. Thus Wilson’s own effect that he had committed crimes statement strongly other than the murder was corroborated and but- circumstances, tressed Lee’s statement. those jury Lee’s before the as substantive evidence belief, Wilson, “beyond are unable declare we doubt, admitting Lee’s state- the error [in reasonable And we are in no influenced verdict.” way ment] possibility [Lee’s is no reasonable satisfied “there *22 of the ... contributed to the rendition may have statement] the erroneous admission We conclude that guilty verdict[s].” not harmless. of Lee’s statement was Lee’s permitting court erred in hold that the trial We It follows the Court to be evidence. placed wrong affirming judgments Appeals was Special George’s County. We by the Court Prince entered Circuit a new trial.10 its Wilson is entitled judgment. reverse THE SPECIAL APPEALS COURT OF JUDGMENT OF REVERSED; THE AP- TO OF SPECIAL
CASE REMANDED COURT THE JUDG- PEALS WITH DIRECTION TO VACATE FOR OF THE CIRCUIT COURT PRINCE MENTS THE AND REMAND TO GEORGES COUNTY CASE TRIAL; A THAT COURT FOR NEW IN IN THE COURT OF COSTS THIS COURT AND BY PAID PRINCE APPEALS TO BE SPECIAL GEORGES COUNTY. RODOWSKY, J., in Opinion which
Dissenting KARWACKI, JJ., join. McAULIFFE and Wilson, light opinion, retrial in the Lee’s statement 10. On the our proceed be The State on the basis of would inadmissible. could statement, being voluntary, been Wilson’s which has established as may supporting other it adduce the statement and such evidence tending guilt charged. to show Wilson’s the crimes judge properly was Had the ruled that Lee's statement inadmissible Wilson, proceed quandary how to would be in a as to in a he States, joint in the 88 S.Ct. light trial of Bruton United (1968). up advisability points This that in L.Ed.2d here, jointly charged where defen- circumstances such as dants, there are confessed, try jointly each of whom has not to them but to sever exception trial. them for Whether there can be an the Bruton permit limiting in the here so instruction dictates circumstances as to us; requested. question is not before such instruction That is no day. left for another RODOWSKY, dissenting. Judge, beyond harmless The error is dissent. respectfully I not harm- Further, if the error were even doubt. reasonable that “Lee’s statement rule now less, should not this Court 334 Md. of Wilson. on the retrial be inadmissible” would 138 n. 10 A.2d n. I evidence, that Weston undisputed it was all of the Under car and was the furnished the shooter, was the general handgun. driver, furnished and that Wilson drug or more robbing one joint enterprise, object night on the handgun dealers, to furnish led Wilson confessions three written one oral and gave murder. Wilson defense facts. Wilson’s undisputed acknowledged the murder jury that Weston to convince strategy was altercation, from distinct personal in a involved became victim *23 to statement used Lee’s and Wilson robbery, any attempted acknowl- unreservedly majority argument. that support Lee’s statement were and statements “that Wilson’s edges 334 Md. aspects.” significant alike all substantially in that the strategy was successful A.2d at Wilson’s felony murder. him of jury acquitted Lee under from trial with a severance did not seek Wilson States, 1620, 20 88 S.Ct. Bruton v. United U.S. severance, (1968). only if his but Lee did seek L.Ed.2d re- statement oral were denied. Wilson’s motion in limine at some handgun person, having fired the ferred Weston’s of the murder. victim, night the during earlier than the other aspect that excluding court from the trial ruling sought granted. statement, the motion was and oral of Wilson’s jointly. Neither went to trial Lee and Wilson Consequently, of his codefendant the statement to have sought defendant inadmissible substantively trial joint as excluded at their York, v. New See Cruz the defendant. and Both Lee Wilson 95 L.Ed.2d 107 S.Ct. reason and Cruz for the obvious their Bruton rights waived statement, on that of rely his own and that wanted to each codefendant, testifying. his without murder, in the was the youths Of three involved Wilson the County, Maryland homi- George’s last arrested. Prince to be of the warrant copy cide had faxed a arrest detectives Brunswick where County, Virginia to the authorities in Wilson College. Agent Paul’s Special was a student at St. Wilson the State Police went to Virginia W. Reardon Douglas “brought” the dean’s college dean who had Wilson large hamburger and a arrived with a sandwich office. Wilson during the interview Reardon. drink which he consumed signed part In office a statement the dean’s Wilson guy T got said am the bad[d]est read: “The man shot Anthony Anthony said ‘No I am.’ [Weston] around’ gun and then away and the man smacked the pulled gun him.” Anthony shot him to the
Special Reardon arrested Wilson and took Agent There, Office. unshackled County Brunswick Sheriffs open in the office area used seated at one of desks deputies, gave signed a second written statement. Wilson “Anthony pulled said that second Wilson man for no reason.” gun and shot awaiting the conversing, and Reardon were While Wilson detective, orally County Prince George’s arrival of a robbing told and Lee were interested Reardon that Weston only drug get drugs, but Wilson was interested dealers money. That of the oral statement was getting portion admitted. Smart, George’s Daniel Prince principal
When Detective *24 subject investiga- homicide detective on the murder County tion, Office, County he took arrived at the Brunswick Sheriffs By Prince written statement from Wilson. that time third County police officers had obtained a search warrant George’s for his seized the parents the home Wilson and weapon, by in the That described used murder. as handgun statement, special cop Lee in was a “.38 with D.C. written his all It was introduced into evidence. over it.” Smart, said to Detective confession
In his written an into “[t]hey got victim because shot that Weston out reached victim] He thing. [the a macho It was argument. it on him.” had Anthony while gun and hit the “ ‘I’m the saying, victim as described the statement Lee’s ” continued, Anthony “And It here.’ around hustler biggest was at gun time the ‘No, I am.’ The whole said, not. you’re Anthony and then gun away hit the guy At first the his head. guy----” shot the is own, fully-interlocking if a defendant’s
Even considered may that not be corroborating evidence type Wright, S.Ct. under Idaho presence that “the Wright (1990), recognizes L.Ed.2d any that indicates more appropriately evidence corroborating Id. harmless.” might be the statement admitting error explana- no majority gives Here the at 3150. S.Ct. case, harmless rejecting tion, facts of this in terms of the attempted codefendant case in which a This is not a error. codefendant’s to minimize the or blame to the defendant shift involvement. the defendant’s by increasing involvement to the fact no effect analysis gives error majority’s harmless Thus, here we have Lee’s statement. embraced that Wilson cumulative, merely is not evidence that erroneously admitted defense. part as Wilson’s relied on Wilson but it was argument the final forcefully demonstrated This is Lee had jury to the submitting After counsel. Wilson’s this individual argument “had an said Weston him,” further said: counsel shot Wilson’s them today if both of “Now, have to be here we wouldn’t intended to rob said that we would have Wilson] [Lee him he shot victim, could rob before Mr. Weston this but now we have a closed case. So him, it would been because veracity of these whether or not to determine have the instruc- You have heard upon. can be relied statements to of these you what want can believe you tions to of these statements. you what don’t want statements and telling these individuals were I that both of you submit *25 343 no had communication They truth completely. in the arrested at 8:00 o’clock ... Mr. Lee was each other. County Mr. Wilson was morning George’s in Prince remote evening in the at a location o’clock arrested at 5:00 they to that con- you’re going If believe Virginia.... to have to you’re going incident then trived the actual But, all the are untrue. that these statements believe truth, they that told the that to fact points evidence into an alter- night[ got Weston happened what ]Mr.— cation with an individual.” in Ari White, dissenting for four Justices speaking
Justice Fulminante, 279, 1246, 113 111 zona v. 499 S.Ct. L.Ed.2d U.S. (1991), is ‘proba said that defendant’s confession “[a] 302 has damaging evidence can be bly probative the most ” 292, 111 Id. at at 1255 (quoting him.’ S.Ct. admitted York, 195, (White, New 107 1720 Cruz v. 481 S.Ct. at U.S. Nevertheless, Arizona v. Fulminante J., held dissenting)). per se not involuntary of an confession is that the admission Chapman under analysis of a harmless error beyond pale (1967). 18, 824, 705 California, v. 87 S.Ct. 17 L.Ed.2d State, Dorsey v. 638, Md. Chapman is for 276 350 the basis confessions, reinforced A.2d 665 Wilson’s four are corroborated and weapon, simply seizure the murder The error is harm confirmed Lee’s cumulative statement. v. Harrington See beyond less a reasonable doubt. Califor (1969) nia, 1726, 250, 284 89 S.Ct. L.Ed.2d U.S. (erroneously admitting codefendants’ cumulative statements 660, harmless); Evans Md. held to be (claimed (1994) capital right violation in case of A.2d error) [No. to be harmless against self-incrimination held Term, February slip op. at Sept. 23]. decided II if Lee’s statement is not harmless Even the admission of Court, reasons, doubt, for two should beyond reasonable undertaking prove from retrial preclude State First, Lee’s be- surrounding the circumstances statement. Wright there not a in the trial court that whisper cause statement, admissibility of Lee’s the State never blocked the reliability. circumstances prove had opportunity the Lee estab- admitting State’s foundation to, was limited Miranda lished, compliance and voluntari- is reason believe ness. there substantial Secondly, *26 Lee’s state- surrounding to the circumstances proof addressed reliability. ment would demonstrate its statement, attorney Lee’s Lee’s When the State introduced one sentence in the narrative objected. objection The went to in Lee’s own hand. After statement written portion the Weston, gone had in Lee’s Wilson and he out saying that father’s had gold father’s Honda that Wilson Wilson’s revolver, said, Lee “We police District of Columbia officer’s Lee’s dope argued were rob a dealer.” counsel going to crimes be proof was of other which should quoted the sentence then objection overruled. Lee’s counsel excised. That was cautioning jurors not requested special a instruction the dealer shooting dope the victim of the was a speculate that request to rob. That was youths whom the three intended joint consistent entirely denied. All of this felony for seeking defense to avoid conviction strategy murder. conference, foregoing bench
Near
the conclusion
said, “I
also
go
like to
on the record
Wilson’s counsel
would
objecting
being
statement
admitted into evidence.”
to the
asked, “You’re
to what?”
coun
objecting
The court
Wilson’s
statement,
it hurts
also.”
replied,
my
sel
“The
because
client
The fact
an accused tends to
that evidence offered
not been
as an
prove guilt
charged
recognized
of the crime
has
Further,
objection that
renders
evidence inadmissible.
is
judicial
objection ordinarily
of an
limited to
review
State,
Thomas v.
See
given
objection.
reason
301 Md.
for
denied,
294, 328,
6,
1088,
cert.
(1984),
23
105
483 A.2d
470 U.S.
State,
v.
Calhoun
1856,
(1985);
Md.
This Court’s strong is a indication ularly because there inappropriate Proof relevant Wright proved. under could be reliability that is before not limited to evidence admissible reliability is *27 the statement admitting a for jury. the Whether foundation law for question is mixed fact and has been established decide, independent, appellate, to to judge subject the trial review. constitutional reliability Wright indicia of which the Court
One of the reliability in is properly determining identified as considered 821-22, the of a motive to fabricate. U.S. at absence lie, only If to be S.Ct. at 3150. Lee were motivated it would had cast the way he and Wilson in some colluded to because nothing majority on But the tells us principal blame Weston. position. about Weston’s jury presided had been before a previously
Weston tried over April presided over same trial in judge who joint was found jury trial Lee and Wilson. Weston of the Court guilty felony unreported opinion murder. The in from conviction Special Appeals appeal Weston’s reflects that Weston witness, police Daryl Shropshire,
“confessed to the and to a two to the of the crime gone that he and Mends had scene he drug rob admitted that order to dealers. [Weston] the victim weapon caliber when shot the victim with .38 ” him.’ had ‘bucked on Charges filed It from the Statement of appears further Wilson, in the search from affidavit warrant investi- pre-sentence from the family premises, and Wilson and initially led report police that the were Weston gation Lee, above-men- specifically, More then Wilson. sequence of events. following indicate tioned sources 6,1990. on January found at 6:30 a.m. body The victim’s was an that he admitted to informant Shortly thereafter Weston telephoned the informant January had shot victim. On George’s of the Prince telephone number the “Crime Solvers” That as the County police implicated Weston shooter. when Subsequently, himself or herself. informant identified admission interviewed, informant confirmed Weston’s a photo interest and identified Weston from against penal had as 10 Weston and Lee been identified array. By January case. Warrants were issued suspects two of the three January on 10. Both were for the arrest of Weston and Lee in the admitted January arrested on both involvement as the third participant. murder. Both identified Wilson January signing at 8:07 a.m. on 11. After Lee was arrested written rights, began giving his a written waiver In that a.m. and concluded it 10:00 a.m. statement at 8:55 his girlfriend, prior admitted told having statement Lee also arrest, shooting. his about the 10:30 charges for The statement of obtained inter- Special Reardon his January Agent began a.m. College at St. view of Wilson the dean’s office Paul’s *28 January that At 7:08 Virginia p.m. day. p.m. 5:30 same home was family the search warrant the Wilson Heights, Washington Capitol Maryland, executed in in the Metropolitan Department Police service revolver used At 8:00 of Prince killing p.m. was seized. Detective Smart confession George’s County Virginia obtained fourth from Wilson. made about
Thus, counsel jury argument Wilson’s has considera- Lee and statements reliability Lee would have to lie about Any merit. motive that legal ble equal said be participation, of Wilson’s the extent at the own, likely falsely inculpate Wilson with his would not Further, because Lee as well. falsely inculpating expense with the four Wilson state- the Lee statement is tandem ments, and Lee statements unreliability of the Wilson any it participation, ap- but falsifying must lie their Weston’s they falsify do not his from Weston’s statement pears participation. joint on this we not know from court records
What do to Lee and prior indictment is whether Weston was arrested confessing. If that prior confessed to Lee’s whether Weston be, matter, highly it is may fact of the as it well is the Lee’s, relevant, statement corroborates not because Weston’s falsely inculpate then has no motive but because Lee or Wilson. Weston on remand permitted opportunity
The State should be reliability. to demonstrate authorized me to state
Judges McAuliffe and Karwacki have
dissenting opinion.
in the views
in this
they join
expressed
No. Maryland. Appeals Court April