Gray v. State

BATTAGLIA, Judge, dissenting. Without question, the majority and I are on opposite ends of the spectrum in this case. Where the majority believes the trial court has no discretion to consider the reliability of an in-court witness to an out-of-court statement against penal interest, I believe the court may consider, and properly did consider, the in-court witness’s credibility in concluding that the statement itself was untrustworthy. Where the majority believes that a trial court should have discretion in determining whether a witness may be called to the stand for the sole purpose of invoking his or her right to remain silent, I believe a court has no discretion and should never knowingly or ⁵⁸⁴ intentionally permit a witness to be used for the sole purpose of invoking his or her right to remain silent before a jury.

My differences with the majority are not easily bridged, and therefore, I respectfully dissent. I. Statements Against Penal Interest — Discretion of the Trial Court . * With respect to the portion of the majority’s opinion regarding the statements against penal interest, there exist three grounds for my dissent. First and foremost, I do not believe that the majority has shown the proper and required deference to the trial court’s evidentiary ruling in this case. Second, contrary to the majority’s view, I believe that in assessing the trustworthiness of the declaration against penal interest, the credibility of the in-court speaker of the statement is a factor inherent in the determination of the statement’s reliability.

Third, while the majority and I agree that the Confrontation Clause and other related principles provide the bases for the additional guarantees of trustworthiness for statements which inculpate the accused, I believe that the majority disregards the fact that the language of Rule 5-804(b)(3), itself, provides the basis for the requisite additional guarantees of trustworthiness for statements which exculpate the accused. A. The Standard of Review — Deference to the Trial Court’s Evidentiary Rulings Evidentiary rulings are within the domain of the trial judge, and should not be disturbed unless clear error is found. See Merzbacher v. State, 346 Md. 391, 404 , 697 A.2d 432, 439 (1997)(stating that the admissibility of evidence is within the “considerable and sound discretion of the trial court”). The standard of review, then, is particularly deferential when an appellate court considers issues involving the propriety of admitting, or not admitting, evidence at a trial.

See Void v. State, 325 Md. 386, 393 , 601 A.2d 124, 127 (1992) (affirming that trial judges are afforded “broad discretion in the conduct ⁵⁸⁵ of trials in such areas as the reception of evidence”)(quoting McCray v. State, 305 Md. 126, 133 , 501 A.2d 856, 860 (1985)). Overturning evidentiary rulings cannot simply be a matter of disagreement with the trial judge in the outcome at which he or she arrived. The trial court must have unequivocally abused its discretion by basing its rulings on factual findings which were clearly erroneous or facially incorrect legal postulates. See Williamson v. United States, 512 U.S. 594, 604 , 114 S.Ct. 2431, 2437 , 129 L.Ed.2d 476, 486 (1994)(stating that the trial court’s determination on whether a statement should be admitted under the statement against penal interest hearsay exception is fact-intensive); State v. Booze, 334 Md. 64, 68 , 637 A.2d 1214, 1216 (1994)(explaining that a trial judge’s rulings regarding the conduct of trials, including that which constitutes rebuttal testimony “may be reversed only when it constitutes an abuse of discretion, i.e., it has been shown to be both ‘manifestly and substantially injurious’ ”)(quoting Mayson v. State, 238 Md. 283, 289 , 208 A.2d 599, 602 (1965)).

Accordingly, in our appellate review, we generally extend the trial court great deference in determining the admissibility of evidence and will reverse only if a clear abuse of discretion has been shown. Robinson v. State, 348 Md. 104, 121 , 702 A.2d 741, 749 (1997) (referring to evidentiary determinations regarding relevancy). It is, in part, in accordance with and pursuant to the deferential standard of review required of appellate courts that I differ from the majority’s decision today. Pursuant to Maryland Rule 5-802, hearsay generally is inadmissible at trial unless the statement qualifies as a recognized exception to the hearsay rule.

Maryland Rule 5-804(b)(3) recognizes declarations against penal interest as a hearsay exception if the declarant, in this case Gatton, is unavailable and the trial court finds the statement to be reasonably trustworthy. 1 Specific to the hearsay exception employed in this case, the trial judge has a duty to evaluate ⁵⁸⁶ the trustworthiness of the statement; stated differently, whether the evidence is sufficiently reliable for admissibility is a factual determination within the sound discretion of the trial judge. See State v. Standifur, 310 Md. 3, 19-20 , 526 A.2d 955, 963 (1987); see also Powell v. State, 324 Md. 441, 453 , 597 A.2d 479, 485 (1991). Our brethren in the Court of Special Appeals have correctly stated that when considering the declaration against penal interest exception to the hearsay rule, trial courts must make a factual determination concerning whether the statement is trustworthy or “sufficiently reliable for admissibility.” See Wilkerson v. State, 139 Md.App. 557, 577 , 776 A.2d 685, 697 (2001); see also Jacobs v. State, 45 Md.App. 634, 653 , 415 A.2d 590, 600 (1980)(stating that “when dealing with the rule against hearsay and [the declaration against ⁵⁸⁷ penal interest] exception[ ] ... admissibility is a question addressed exclusively to the discretion of the trial judge”). Similarly, decades earlier in Brady v. State, 226 Md. 422 , 174 A.2d 167 (1961), aff'd, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), Chief Judge Bruñe, speaking for this Court stated, “[t]o what extent a confession or admission of a third party is free of collusion and bears the indicia of trustworthiness is a question which we think should be entrusted in the first instance to the sound discretion of the trial judge.” 2 Id. at 429, 174 A.2d at 171 .

As discussed hereinafter, I believe the trial judge was thorough and thoughtful in his discussion of, and rulings on, Gatton’s statements. In the absence of an apparent abuse of discretion, I am unwilling to reverse the trial court’s evidentiary rulings. B. Assessing the Reliability of the In-Court Speaker of a Declaration Against Penal Interest Which Exculpates the Accused In Standifur, supra, we articulated a test by which trial courts could determine whether to admit statements under the ⁵⁸⁸ statement against penal interest hearsay exception. Once the unavailability of the declarant is established, 3 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 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.

Id. at 17 , 526 A.2d at 962 (emphasis added). The trial court, in this case, ruled that Gatton’s out-of-court statements, i.e., “I took care of her [Bonnie]” and that “I’ll take care of you [Evelyn] like I took care of Bonnie,” were, in fact, declarations against penal interest in that they may involve substantial exposure to criminal liability or have probative value in a trial against the declarant. The trial court did not believe, however, that a reasonable person in the declarant’s shoes would have believed the statement to be against penal interest. See Standifur, 310 Md. at 13 , 526 A.2d at 960 (stating that “[t]he more important criterion is that a reasonable person in the situation of the declarant would have perceived the statement as disserving at the time he made it”)(emphasis added).

The court reasoned that Gatton’s statements, which were made while he was in altered states due to alcohol and drug use,' 4 were more likely to have been “bravado designed to bolster his threat” against Evelyn to keep quiet about Gatton’s rape of Evelyn a few days earlier. Concluding that Gatton’s statements were made in an intoxicated state, and that Gatton ⁵⁸⁹ anticipated that his statement would result in some benefit, i.e., Evelyn’s silence, rather than harm to himself, the court determined that a reasonable person in Gatton’s circumstances could not have perceived that the statement was against his penal interest at the time it was made. 5 As the Standifur Court pronounced, a trial court’s inquiry does not end there. After considering whether the statement was both facially and objectively a declaration against penal interest, the court must also 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. Id. at 17 , 526 A.2d at 962 (emphasis added).

These considerations conform to the last line of Maryland Rule 5-804(b)(3) which limits the admissibility of particular declarations against interest. A declaration which tends to exculpate the defendant and expose the declarant to criminal liability “is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Md. Rule 5-804(b)(3). Thus, the default rule is that statements which exculpate the defendant, and inculpate another, are inadmissible and the burden is on the proponent “to establish that it is cloaked with ⁵⁹⁰ indicia of reliability ... [which] means that there must be a showing of particularized guarantees of trustworthiness.” Simmons, 333 Md. at 560, 636 A.2d at 469 (quoting Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597, 608 (1980)(intemal quotations omitted)). We have not, until today, been presented with an issue concerning the propriety of a trial court’s exclusion of a declaration against interest based largely on the “trustworthiness” requirements of Rule 5-804(b)(3).

We have, however, discussed the factors which some courts employ in determining whether a declaration against interest is sufficiently corroborated to be deemed trustworthy. In State v. Matusky, 343 Md. 467 , 682 A.2d 694 (1996), we cited the factors used by the Fifth Circuit Court of Appeals: (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]. Id. at 482 n. 7, 682 A.2d at 701 n. 7 (quoting United States v. Alvarez, 584 F.2d 694 , 702 n. 10 (5th Cir.1978)). As the Court of Special Appeals correctly noted, the trial court performed a factor-by-factor analysis of Gatton’s out-of-court statement in order to determine its trustworthiness pursuant to the factors we furnished in Matusky.

See Gray v. State, 137 Md.App. 460, 476-77 , 769 A.2d 192, 201 (2001). The trial court concluded that: (1) Gatton had a motive to misrepresent the matter to Evelyn in that Gatton wanted to induce Evelyn’s silence concerning the fact that Gatton had allegedly raped Evelyn; thus, regardless of whether Gatton had actually “taken care of Bonnie,” Gatton wanted to effectively threaten Evelyn; (2) Evelyn’s character was questionable 6 — she was an admitted ⁵⁹¹ crack user and gave testimony that was “self-contradictory, confused, inexact, and incredible;” she failed to disclose Gat-ton’s declaration against interest until nearly two years after the statements were allegedly made; prior to her “disclosure,” Evelyn repeatedly denied having any knowledge about Gatton, and only came forward under circumstances in which she may be highly motivated to fabricate Gatton’s statements; (3) the statement was heard only by Evelyn; (4) the statements were spontaneous; (5) Evelyn’s testimony about the timing of when the statements were made was unclear; and (6) Gatton and Evelyn’s relationship was not one of mutual confidantes, rather, Gatton’s motivation to speak to Evelyn was only to induce her silence. After thoroughly analyzing and balancing these factors, the court found these circumstances to be a greater indicia of the untrustworthiness of the statements, rather than supportive of its reliability. Concluding that the statements were inherently untrustworthy, the trial court ruled the statement to be inadmissible.

The petitioner in the case sub judice argues, and the majority apparently agrees, that the factual findings made by the trial court with respect to these six factors were clearly erroneous. The petitioner relies predominantly on the fact that the trial court considered the credibility of Evelyn in its determination that the declaration was untrustworthy and asserts that such a consideration is improper for a trial judge and should be left to the province of the jury. The trial court, in this case, considered several factors, one of which was the character of the speaker. In so doing, the trial court concluded that it “had serious doubts about whether the statement was in fact made, a concern that also cuts against its admissibility.” 7 ⁵⁹³ Generally speaking, the issue of credibility of a witness is an issue within the province of the finder of fact.

When the issue is the trustworthiness of the hearsay statement against penal interest, however, the trial judge may consider, as one of several factors, the credibility of the witness as well. See United States v. Bagley, 537 F.2d 162, 167 (5th Cir.1976); see also United States v. Satterfield, 572 F.2d 687, 692 (9th Cir.1978), cert. denied, 439 U.S. 840 , 99 S.Ct. 128 , 58 L.Ed.2d 138 (1978)(discussing in dicta some of the justifications for considering the trustworthiness of the witness when determining whether the admit the hearsay statement). This is not to say that the court is permitted to exclude testimony solely on the basis of the lack of credibility of the witness; credibility of the speaker should be a consideration only to the extent that it influences the trustworthiness of the statement itself i.e. whether the statement was made or the actual substance of the statement itself. It is the statement itself that is in contention; thus, a court must affirm the statement’s trustworthiness prior to allowing a jury to hear the declaration.

When attempting to determine the actual content of the declaration or whether a hearsay statement was made, it is both natural and necessary for the trial court to consider the veracity of the person purporting to have heard, and now testifying to, the questionable and inherently unreliable statement. See Lee v. Illinois, 476 U.S. 530, 543 , 106 S.Ct. 2056, 2063 , 90 L.Ed.2d 514, 528 (1986)(stating that hearsay evidence that does not fall within firmly rooted hearsay exceptions is ⁵⁹⁴ ' presumptively unreliable and must be excluded absent “particularized guarantees of trustworthiness”)(emphasis added)(quoting Ohio v. Roberts, 448 U.S. at 66 , 100 S.Ct. at 2539 , 65 L.Ed.2d at 608 ). As the Court of Specials Appeals properly noted, “especially in cases ... in which there is a dispute as to whether the statement was made at all and not only whether, if made, it affords a basis for the matter asserted in it, common sense dictates that the credibility of the in-court witness to whom the out-of-court declarant ostensibly made the statement is a necessary consideration.” See Gray, 137 Md.App. at 479 , 769 A.2d at 203 . 8 When a trial court considers whether the proffered statement was actually made, a court should not be forced to ignore apparent contradictions in the witness’s testimony or the circumstances surrounding the witness’s disclosure of the declaration, considerations which fall under the “general character of the speaker” factor in Alvarez . The Alvarez factors, favorably noted by this Court in Matusky , adequately outline those considerations, as required by Rule 5-804(b)(3) for hearsay statements offered to exculpate the accused, which a trial judge should, and did in this case, make in determining a declaration’s trustworthiness. 9 ⁵⁹⁵ Such an evaluation does not impede the jury from performing its credibility assessment once the witness takes the stand, rather it ensures that the declaration, if admitted, has been deemed sufficiently trustworthy by a trial court in exercise of the full discretion afforded it.

See United States v. Knox, 124 F.3d 1360, 1363 (10th Cir.1997)(stating that “[a]ppellate review is particularly deferential where an evidentiary ruling concerns the admission of alleged hearsay evidence”). When the question of the “credibility” of a hearsay statement requires a hearing outside the presence of the jury and a ruling by the trial court on its admissibility, such a question may result in a two-fold “credibility” determination: as a threshold matter as to admissibility, the trial judge will rule on the trustworthiness of the statement, which may, as part and parcel of the determination, involve considerations of the general character of the speaker, and the jury will, again, weigh the credibility of the testimony of the speaker, should the statement be determined admissible. As the Court of Special Appeals correctly points out: It often is the role of the trial court in ruling on the admissibility of evidence to make factual findings. In ruling on motions to suppress evidence, for example, the trial court takes evidence, makes factual findings, including credibility assessments, and applies the law to the findings of fact.

The trial court’s role as fact-finder in that context does not invade the province of the jury. Indeed, as mentioned earlier, the Supreme Court has described the inquiry that a trial court makes in deciding whether a statement qualifies as one against penal interest as “fact-intensive.” Williamson, 512 U.S. 594, 604 , 114 S.Ct. 2431, 2437 , 129 L.Ed.2d 476, 486 (1994). Gray, 137 Md.App. at 480 , 769 A.2d at 203 . The evidentiary ruling entrusted to the trial court with respect to the admissibility of a declaration against penal interest does not prohibit a jury from conducting its own credibility assessment should ⁵⁹⁶ the statement itself meet the requisite requirements of trustworthiness.

C. Rule 5-804(b)(3) Requires Additional Guarantees of Trustworthiness for Statements Which Exculpate the Accused As the majority correctly acknowledges, the Matusky opinion notes that “when a declaration against interest of a defendant is at issue, the confrontation clause requires additional assurances of reliability before such declarations against interest should be admitted.” See maj. op. at 538. (emphasis omitted) I do not disagree with this principle. The Confrontation Clause does, indeed, require courts to ensure the reliability and trustworthiness of statements which are inculpatory against the defendant but made by another unavailable declar-ant. See Matusky, 343 Md. at 481 n. 7, 682 A.2d at 700 n. 7.

That principle, however, does not preclude, and should not preclude, our Court from holding that Rule 5-804(b)(3) itself requires additional assurances of reliability when the statement against interest exculpates the defendant and inculpates another — the Rule specifically provides that such a statement is inadmissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. See Md. Rule 5-804(b)(3). If the intent is not vivid enough by the language of the Rule itself, I point also to the Reporter’s Note to Maryland Rule 5-804(b)(3), which specifically states that, “[t]he [Evidence] Subcommittee [of the Rules Committee] notes that, under this exception, the statements that are scrutinized most closely and viewed with most suspicion are (A) statements tending to expose the declarant to criminal liability and offered to exculpate the accused; and (B) statements against the interest of both the declarant and another person and offered to prove the other person’s acts.” Despite the clear intention of the Rules Committee, the majority prefers to ignore part (A) of the Committee’s concerns. Certainly, as the majority notes, the Matusky and Standi-fur courts were concerned with the reliability of hearsay statements, or portions of hearsay statements, which inculpat ⁵⁹⁷ ed the accused.

This concern should not be to the exclusion of a second and equally valid concern regarding hearsay statements offered by the defense to exculpate the accused and inculpate another. Both concerns may co-exist. The Rule itself provides the basis for additional guarantees of trustworthiness when the statement offered exculpates the accused and inculpates another, and while the Rule is silent as to statements which inculpate the accused, other principles, such as the Confrontation Clause, provide the basis for the additional guarantees of trustworthiness for inculpating statements. See Lilly v. Virginia, 527 U.S. at 127, 130, 119 S.Ct. at 1895, 1897, 144 L.Ed.2d at 128, 130 (distinguishing the triad of statements against penal interest § (1) voluntary admissions offered against the declarant-defendant; (2) exculpatory evidence offered by a defendant claiming that the declarant committed the offense; and (3) evidence offered by the prosecution to establish guilt of an alleged accomplice of the declarant, and noting that unlike the first and third categories, the second category does not implicate Confrontation Clause concerns).

In summary, to conclude that excluding the alleged statement against interest was incorrect, an appellate court must hold that the findings of fact supporting the trial court’s decision were clearly erroneous or that the trial judge based his decision on incorrect principles of law. In my view, neither of these circumstances exists. The trial court’s factual findings appear sound and judicious, and the law upon which the court based its rulings is correct. Standards of review, which define the degree of authority shared by or granted to a judicial entity, are developed and utilized to prevent that which occurred today.

The majority’s conclusion that the trial court abused its discretion is unjustified — the trial court employed correct legal postulates and its factual findings cannot be said to be clearly erroneous — and results in an over-extension of appellate authority. The lack of deference to the trial court and the lack of merit in its legal arguments makes the majority appear more like a thirteenth juror than an appellate court. ⁵⁹⁸ II. A Witness’s Invocation of the Right to Remain Silent Before a Jury I cannot, in good conscience, join a decision which effectively condones the use of a witness’s invocation of his right to remain silent to purposely create an adverse inference of guilt against the witness in the minds of the jury. This is a matter which cannot fall, as the majority asserts, under a trial court’s discretionary authority.

Courts should, to every extent possible, protect the right to remain silent from adverse inferences of guilt by preventing a witness from taking the stand for the sole purpose of invoking his or her right to remain silent before the jury. The affirmation of this vigilance by the United States Supreme Court in Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 , (1886), is eloquent in this regard: It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.

It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Id. at 635 , 6 S.Ct. at 535 , 29 L.Ed. at 752 (emphasis added). We are to be vigilant in our protection of the constitutional rights of citizens, not just of defendants; and today’s majority opinion both unnecessarily and abruptly drains the constitutional right to remain silent of the important principle that adverse.inferences should not be drawn from invocation of this right. The Fifth Amendment of the United States Constitution 10 and Article 24 of the Maryland Declaration of Rights 11 ⁵⁹⁹ provide a right, sacrosanct in our criminal justice system.

By permitting, if not encouraging, the use of one’s invocation of the right to remain silent to create an adverse inference of guilt, the majority today performs, in the Supreme Court’s words, “the obnoxious ... in its mildest and least repulsive form....” Boyd, 116 U.S. at 635 , 6 S.Ct. at 535 , 29 L.Ed. at 752 . Our Court has been steadfast in protecting the invocation of the privilege against self incrimination against the presumptions that are often inherent in such invocation. Smith v. State, 367 Md. 348, 351 , 787 A.2d 152, 153 (2001); Woodson v. State, 325 Md. 251, 265 , 600 A.2d 420, 426 (1992); Booth v. State, 306 Md. 172, 226-27 , 507 A.2d 1098, 1126 (1986)(Eldridge, J., concurring in part, dissenting in part), cert. granted, in part, 479 U.S. 882 , 107 S.Ct. 269 , 93 L.Ed.2d 246 (1986), and vacated, in part, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987); Littreal v. Redwine, 252 Md. 662, 668 , 250 A.2d 894, 897 (1969); Veney v. State, 251 Md. 159, 179 , 246 A.2d 608, 620 (1968), cert. denied, 394 U.S. 948 , 89 S.Ct. 1284 , 22 L.Ed.2d 482 (1969). We cannot admonish courts and practitioners for purposely creating adverse inferences regarding a defendant’s invocation of his right to remain silent, and yet effectively encourage those very inferences by allowing witnesses to take the stand for no other purpose but to invoke the right to remain silent in front of the jury.

Nor can we expect jury members to distinguish between the (intentionally sought) adverse inferences created by a witness’s invocation of the right to remain silent and the adverse inferences, which we caution against, created by a defendant’s invocation of the right to remain silent. Granted, there may be occasions where a witness, unbeknownst to the State or defense counsel, decides to invoke his right to remain silent on the stand. The procedure for handling such occurrences, however, has long been estáb- ⁶⁰⁰ lished. See Richardson, v. State, 285 Md. 261, 265 , 401 A.2d 1021, 1024 (1979)(stating that when a sworn witness invokes his right to remain silent in front of the jury, the jury should be dismissed and the trial court should “determine whether the claim of privilege is in good faith or lacks any reasonable basis”)(quoting Midgett v. State, 223 Md. 282, 289 , 164 A.2d 526, 530 (1960)).

In determining whether a witness’s invocation of his/her right to remain silent is justified, a court is required to question the witness outside the presence of the jury, see Midgett, 223 Md. at 289 , 164 A.2d at 529 ; thereby minimizing to the extent possible, any adverse inferences that may result from the invocation. I agree with the majority’s recitation of the proper procedure for determining whether a witness may invoke his right to remain silent. See maj. op. at 550-54. I further agree with the majority’s recitation of the proper considerations for determining whether a witness is entitled to invoke the privilege against incrimination.

We have utilized, on countless occasions, the Supreme Court’s decree that invocation should be protected “where the witness has reasonable cause to apprehend danger from a direct answer ... it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. 479, 486-87 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118, 1124 . As we articulated in Bhagwat v. State, 338 Md. 263 , 658 A.2d 244 (1995), a witness is entitled to invoke the privilege against