Brown v. State

McAULIFFE, Judge. Raymond A. Brown contends that he should not have been found in violation of probation because the evidence upon which that finding was based was inadmissible hearsay and contravened his due process right to confront witnesses against him. We agree. I Brown was placed on five years supervised probation in 1985, after pleading guilty to unlawfully carrying a handgun.

A condition of his probation required that he obtain permission from his probation agent before owning, possessing, using, or having under his control, any dangerous weapon or firearm of any description. In 1987, the State charged that Brown had violated probation by possessing, in October, 1986, a .38 caliber handgun and an Uzi submachine gun. The witness that the State originally intended to rely upon to show that Brown was in possession of these weapons was Robin Bruce. The State’s problems in this case began when Bruce adamantly refused to testify against Brown.

Bruce had been arrested during the early morning hours of 23 October 1986, while operating a BMW automobile in Baltimore City, in the company of Linwood Williams. For reasons not made clear by this record, police officers stopped the BMW, ordered Bruce and Williams out, and discovered the Uzi and the handgun. Bruce and Williams were charged with possession of the weapons. Bruce pled guilty, and at a hearing of 7 April 1987 was told by his attorney that “the court wants you to explain to the court where you got the guns from.” Bruce was thereupon ⁴²⁰ placed under oath.

He testified that a few hours before he was stopped by the police he had been giving Brown a ride home, and that Brown mentioned “some guns he had over [at] his girlfriend’s house.” Nothing more was said on that occasion about Brown’s involvement with the guns, but Brown, who was present in the courtroom when Bruce made the statement, was required to stand and identify himself. Bruce next testified concerning the guns at the trial of Williams. Called as a defense witness, Bruce testified as follows. Brown had asked him to hold the weapons for a day, until Brown could consummate a sale for them.

Bruce drove Brown to his girlfriend’s house on Myrtle Avenue in Baltimore City, where Brown picked up the guns, brought them to the car, and then left. As Bruce was leaving the area of Myrtle Avenue, he picked up Williams, and was giving him a ride home when he was stopped by the police. Williams knew nothing of the guns, because when Williams entered the vehicle the handgun was beneath the passenger seat and the Uzi was wedged between the driver’s seat and door. Brown was also called as a defense witness at Williams’ trial.

He was asked one question and gave one answer: DEFENSE ATTORNEY: Mr. Brown, on the evening of October 22, at around midnight, were you in a dark color BMW, in the 1000 block of Myrtle with Robin Bruce? RAYMOND BROWN: I was. About a month later, Brown’s violation hearing began. The State called Bruce to testify as he had at Williams’ trial, but Bruce, although admitting he had possessed the guns, refused to say where he had gotten them.

The trial judge found Bruce in contempt for his failure to answer the question, and sentenced him to two six month terms of imprisonment consecutive to the sentence he was then serving. The State then offered, and the trial judge admitted, transcripts of the testimony earlier given by Bruce at his ⁴²¹ own trial and at Williams’ trial. 1 Brown was found to be in violation, and the original sentence was reimposed. He appealed to the Court of Special Appeals, and that court affirmed in an unreported decision. 2 We granted certiorari, limiting our consideration to this evidentiary issue. II Brown maintains that the earlier testimony of Bruce was inadmissible as hearsay, and that its admission violated his due process right to confront witnesses against him.

The State contends that these transcripts were properly admitted because Bruce was “unavailable” by reason of his refusal to testify, and because Bruce’s earlier statements constituted declarations against his penal interest. In the alternative, the State argues that the trial judge properly found good cause to admit the hearsay testimony, and that there were sufficient indicia of reliability to justify admitting the statements under the rules of evidence applicable to probation violation hearings. 3 As we recently pointed out in Hersch & Cleary v. State, 317 Md. 200 , 562 A.2d 1254 (1989) many, though not all, of the constitutional protections available to criminal defendants must also be afforded to persons facing revocation of probation. Among them is the right of confrontation. State v. Fuller, 308 Md. 547 , 520 A.2d 1315 (1987). ⁴²² As the Supreme Court explained in Gagnon v. Scarpelli, 411 U.S. 778, 786 , 93 S.Ct. 1756, 1761 , 36 L.Ed.2d 656 (1973), and in Morrissey v. Brewer, 408 U.S. 471, 489 , 92 S.Ct. 2593, 2604 , 33 L.Ed.2d 484 (1972), the nature of that right is “to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” See also Black v. Romano, 471 U.S. 606, 612 , 105 S.Ct. 2254, 2258 , 85 L.Ed.2d 636 (1985).

In Fuller, supra, 308 Md. at 552-53 , 520 A.2d 1315 , we outlined the analysis that should ordinarily be undertaken when the State offers hearsay evidence in a probation violation proceeding: Where a party to a probation revocation hearing objects to the admission of hearsay evidence, the threshold question to be resolved is admissibility under the law of evidence of this State. In making that determination the trial judge should keep in mind that in probation revocation proceedings formal rules of evidence are not applied ... and that reasonably reliable hearsay may be received. Where there is a confrontation issue the trial judge must undertake additional analyses. The proffered evidence must be tested against the formal rules of evidence to determine whether it fits any of the exceptions to the hearsay rule.

If it does, the evidence and exception should then be reviewed to determine whether the criteria for satisfaction of the Confrontation Clause have been met. If the criteria have been met, the evidence may be received on that basis, and no specific finding of good cause need be made. If, however, the proffered hearsay evidence runs afoul of rules of evidence applicable to revocation proceedings or the Confrontation Clause, it cannot be admitted unless it satisfies the standard of reasonable reliability and the trial judge makes,, and states in the record, a specific finding of good cause, (footnotes omitted). Utilizing that approach, we first determine whether the hearsay statements of Bruce may be admissible as declarations against penal interest.

We discussed this exception to ⁴²³ the hearsay rule in State v. Standifur, 310 Md. 3, 17 , 526 A.2d 955 (1987), where we said: [A] trial judge considering the admissibility of a hearsay statement offered as a declaration against penal interest 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 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 declarant, that so cut against the presumption of 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 declarations against interest. We also concluded that “inculpatory statements of an accomplice no longer involved in the criminal enterprise are inherently suspect and the particular circumstances surrounding the making of such statements must be carefully examined.” Id. at 15 , 526 A.2d 955 .

Finally, we discussed the special problems that may be encountered when the portion of a statement that is sought to be introduced to inculpate and accuse is collateral to that portion which is against the penal interest of the declarant. Id. at 16-17 , 526 A.2d 955 . Applying these principles to the case before us, we determine that neither statement qualifies for admission under this exception to the hearsay rule. 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. ⁴²⁴ Although we have only an excerpt from the transcript of proceedings in Bruce’s case, it is apparent that at the time the statement in question was made, Bruce had already confessed his guilt as a possessor of the guns, and his attorney was pursuing an avenue of additional information specifically desired by the judge.

The defense attorney said “the court wants you to explain to the court where you got the guns from.” All additional questions on the subject were then addressed to Bruce by the judge or by the prosecutor. 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