Jackson v. State

HOTTEN, J. Appellant, TJ Sharocko Jackson, was indicted in the Circuit Court for Prince George’s County for murder and related charges arising out of a home invasion. 1 Appellant elected a ³⁴⁰ jury trial, and the jury found him guilty on many, but not all of the charges. 2 The circuit court sentenced appellant to life imprisonment, plus ten years. Appellant timely appealed, presenting the following argument for our review: The Trial Court erred in disallowing a written statement of an unavailable declarant, when the appellant sought its admittance as a declaration against penal interest pursuant to Rule 5—804(b)(3). For the reasons that follow, we affirm. FACTUAL BACKGROUND Appellant and Jamar Jones were charged with a multitude of crimes arising out of a home invasion on June 19, 2008, in which appellant and Mr. Jones allegedly broke into an apartment to steal drugs.

The apartment was known as a “stash house,” where drug dealers stored their inventory. According to the State, appellant and Mr. Jones drove a van to the apartment. They entered the apartment and encountered three individuals. Appellant and Mr. Jones stole illegal drugs from the individuals in the apartment, but the target of the robbery, an individual known as “G,” was not present.

Appellant and Mr. Jones then duct taped the three individuals and secured them in the rear of the van, before searching for “G.” After an unsuccessful search, they returned to the apartment. Mr. Jones reentered the apartment, bringing one of the other individuals with him, to resume the search for “G.” “G” later ³⁴¹ returned to the apartment with Andre Green. As they entered, Mr. Jones shot and killed “G” and wounded Mr. Green. Mr. Jones exited the apartment, whereupon he and appellant fled in the van.

Prior to appellant’s trial, but after Mr. Jones had pled guilty in his severed trial, the State filed a motion in limine, requesting that the circuit court bar the admission of Mr. Jones’s signed statement to appellant’s defense counsel. In the statement, which Mr. Jones gave a day after the alleged incident, he indicated that appellant was not present during the commission of the crimes and was not involved in the home invasion. Mr. Jones’s statement also suggested that he may have shot the victims in self-defense. Counsel for Mr. Jones indicated that he anticipated that Mr. Jones would invoke his Fifth Amendment privilege against self-incrimination when asked about the events on June 19, 2008 at appellant’s trial. 3 In its consideration of the motion in limine, the circuit court reviewed the statement and heard in camera testimony from Mr. Jones and a law clerk for appellant’s defense counsel, concerning Mr. Jones’s written statement.

Mr. Jones’s statement, which was handwritten on eight pages from a legal pad by appellant’s defense counsel, signed by Mr. Jones, and later transcribed, provided: This is a statement of Jamar Tonio Jones, dob 7/1/88, SSN ... of ... Martin Road in Brandywine, MD given on Friday, June 20, 2008 at 4:30 pm to Attorney Jon Norris and his law clerk Kathey Gravely, in Mr. Norris’ office at 503 D Street, NW, Washington, DC. Mr. Norris and Ms. Gravely represent Mr. T.J. Sirroco [sic] Jackson. On Thursday, June 19, 2008 around noon I was present at the apartment in Walker Mill when 2 people were shot.

I went to the apartment with my friend Darren Johnson. TJ Jackson was not at the apartment when the shooting oc ³⁴² eurred. Darren and I went to the apartment because one of the guys in the apartment owed Darren some money for drugs. Darren said the guy owed him money for coke, cocaine.

Darren asked me to go along with him so he could holler at the guy that owed him money. Darren and I were the only 2 who went to the apartment. The apartment, The apartment [sic] was in the 6600 block of Roland Road just off of Walker Mill Road. When Darren and I got there, there were three people in the apartment.

All 3 were brown skinned, lighter than me. I did not know any of them. They opened the door and let us in. Darren went in the back with one of the guys.

The guy that went with Darren was short and heavy set. When they were in the back I stayed in the front room with the other 2 guys. When Darren and the other guy came out I heard them arguing. I could tell it was about drugs and money.

Darren stumbled, he may have been pushed, I grabbed him to get out of there. One guy was by the door, blocking it, the door. One guy was by the couch. The guy by the door was reaching for something.

I thought he was going for a gun so I pulled out my gun, a Glock 9 mm, and I started shooting, we ran out. I don’t know if I hit anyone. Darren and I run to the van on the way to the van there was an older lady and a man outside. Darren grabbed them and pushed them in the van.

At no time when this happened was T.J. Jackson around. I get in the van and I drive. I tell Darren that they can’t stay in the van. Somewhere I stop and push the people out of the van.

I drive Darren to D.C. and drop him off. I drive back into Maryland and I go to a house to look for my friend T.J. Jackson. When I found TJ I told him what happened, I told TJ to get in the van with me, because I needed to talk with him. As we drove I told him a little bit.

I told him that a situation went bad and I had to start shooting. I wanted to go tell my father but he wasn’t there. The van was parked by my Dad’s house on the grass on the side. The Martin Road House.

The police came to my house[;] when I saw them I started running. TJ started running behind me. We ran ³⁴³ for a while, when we saw some workers we got them to give us a ride. That was my idea.

They gave us a ride to a friend’s house on Frank Tippet Road. TJ Jackson was not involved in this shooting. He did not know that it was going to occur. This 8 page statement is true and accurate to the best of my knowledge.

I swear under penalty of perjury that it is true and accurate. I knew that I am making a statement against my penal interest which could be used against me. It is true and correct. During his in camera testimony, Mr. Jones stated that he committed the crimes to which he had already pled guilty. 4 He indicated that the day after the commission, he and appellant went to defense counsel’s office, where Mr. Jones told defense counsel what occurred, including the shooting of “G” and Mr. Green.

He recalled being in defense counsel’s office, but did not recall defense counsel’s law clerk also being present. Mr. Jones confirmed that he related the events to defense counsel, without appellant being present. He signed the statement, which defense counsel transcribed as Mr. Jones detailed the events, periodically confirming that the statement matched Mr. Jones’s recollection. In response to questioning from the circuit court, Mr. Jones recognized that he gave a statement to defense counsel, but averred that the statement was “not true.” In response to questioning from the State, Mr. Jones indicated that appellant suggested they go to defense counsel’s office.

A friend of appellant drove appellant and Mr. Jones to the office, because Mr. Jones knew that the police were looking for him and possibly his van. Appellant did not advise Mr. Jones that defense counsel represented appellant, but Mr. Jones knew that they were going to see defense counsel concerning the shooting. He and appellant went into the office, but Mr. ³⁴⁴ Jones spoke with defense counsel outside of appellant’s presence. He stated that defense counsel took notes while he detailed the events.

Furthermore, he stated that he spoke with defense counsel in an effort to seek representation and that appellant agreed to pay for the representation because Mr. Jones did not have any money. He maintained that he did not meet with defense counsel to help appellant, but rather to help himself. He believed that providing the statement would not subject him to further risk of being criminally charged. He did not understand what giving “a declaration against penal interests” meant.

He was a high school graduate, but did not write the statement himself nor did anyone ask him to. Instead, defense counsel wrote the statement as Mr. Jones described the events, without defense counsel explaining possible legal defenses or indicating that he represented appellant. Mr. Jones stated that defense counsel read the statement to him, and he signed at the bottom after skimming through it. When asked where he obtained the information provided to defense counsel, Mr. Jones responded that he “made it up.” He refused to answer whether he gave the statement to keep appellant out of trouble, but indicated that at the time of the statement, he did not have a place to stay, other than with appellant.

He maintained that he was not afraid of appellant. On redirect by defense counsel, Mr. Jones acknowledged that almost three years had elapsed since he visited defense counsel’s office. Still, even with the aid of his statement, he did not recall anyone other than defense counsel being present when he provided the statement. Mr. Jones recognized that defense counsel gave him the name and business card of another attorney, but indicated that this occurred after he gave the statement.

Mr. Jones stated that defense counsel did not give him legal advice. Again, he concluded that appellant did not threaten him and that he was not afraid of appellant. The circuit court then heard in camera testimony from defense counsel’s former law clerk, who indicated that she ³⁴⁵ worked for defense counsel on the occasion that appellant and Mr. Jones came to the office. It was her first time meeting Mr. Jones, but appellant indicated to her that Mr. Jones needed to speak to a lawyer.

After appellant left the office, defense counsel and his law clerk conversed with Mr. Jones. The law clerk indicated that defense counsel stated that he represented appellant, and would not be able to give Mr. Jones any legal advice. Defense counsel also gave Mr. Jones the name and telephone number of another qualified criminal defense lawyer. In response to defense counsel’s inquiry whether Mr. Jones wanted to speak to a lawyer, the law clerk averred that Mr. Jones was adamant that he wanted to talk to defense counsel and not a different lawyer.

After Mr. Jones divulged the events of the previous day, defense counsel asked him to go through the story again and wrote down what Mr. Jones said. The law clerk indicated that Mr. Jones agreed that defense counsel’s notes accurately reflected his story and that Mr. Jones did not appear to be threatened, coerced, or intimidated in anyway when giving the statement. Defense counsel explained a statement against penal interest to Mr. Jones, who appreciated the significance, did not have any objections to the statement, and signed it, swearing to its accuracy. On cross-examination by the State, the law clerk elaborated that defense counsel’s firm had an existing relationship with appellant and that defense counsel explained the theory of a declaration against penal interest to Mr. Jones in plain English, as opposed to legalese.

She maintained that Mr. Jones understood that his statement could be used at trial. In fact, the law clerk explained that Mr. Jones’s willingness to speak with appellant’s attorney seemed “very odd” in her opinion, but he was “very insistent and adamant about wanting to give a statement to [defense counsel].” Additionally, she elaborated that Mr. Jones was not afforded the opportunity to write the statement himself because, in her training and experience and that of defense counsel, it is more efficient, easier for the declarant to modify, and has better “fluidity” and structure when the attorney writes the declarant’s statement, and then ³⁴⁶ gives the declarant an opportunity to review it with the attorney to make any deletions or corrections. Here, Mr. Jones reviewed the statement. He made no changes and signed it.

The State pressed the law clerk on whether Mr. Jones actually described the events employing the vernacular used in the statement, and the law clerk conceded that Mr. Jones gave his statement in a “give and take” with defense counsel, implying a back and forth conversation. She concluded that she and defense counsel explained that they represented appellant, and not Mr. Jones, but that Mr. Jones gave the statement, apparently in an effort to aid appellant. The circuit court considered argument on the application of Maryland Rule 5—804(b)(3) and granted the State’s motion in limine. The court discerned that Mr. Jones’s statement was not truly inculpatory because Mr. Jones included references to acting in self-defense in response to another man in the apartment “reaching for something” that Mr. Jones thought was a gun during an argument.

The court also mentioned that the statements regarding appellant were collateral to the statement as a whole. Finally, the court determined that Mr. Jones’s accounts of the shooting widely varied, between the statement in defense counsel’s office, the statement of facts at Mr. Jones’s plea hearing, and his statement to the circuit court that the statement he made in defense counsel’s office was fabricated. 5 While the court did not question the veracity of the accounts from defense counsel and his law clerk of Mr. Jones’s statement in defense counsel’s office, it did not find Mr. Jones’s statement to be trustworthy or adequately corroborated. The court questioned the accuracy of Mr. Jones’s statement in light of the fact that appellant brought Mr. Jones to defense counsel’s office, defense counsel’s representation of appellant, and Mr. Jones’s statement that appellant agreed to ³⁴⁷ pay for Mr. Jones’s legal representation. Moreover, other evidence in the record indicated that appellant and Mr. Jones were working together the day of the incident, further calling into question the trustworthiness of Mr. Jones’s statement to defense counsel that appellant was not present that day.

MARYLAND RULE 5-804 AND STANDARD OF REVIEW Maryland Rule 5-804, in pertinent part, provides: Rule 5-804. Hearsay exceptions; declarant unavailable. (a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant: (2) refuses to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest.

A statement which was at the time of its making so contrary to the declarant’s pecuniary or proprietary interest, so tended to subject the declarant to civil or criminal liability, or so tended to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. ³⁴⁸ (Emphasis added). 6 “The underlying theory of this exception is that ‘persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true.’ ” State v. Standifur, 310 Md. 3, 11 , 526 A.2d 955 (1987) (quoting Fed.R.Evid. 804(b)(3) advisory committee note); accord West v. State, 124 Md.App. 147, 167 , 720 A.2d 1253 (1998) (quoting 6 Lynn McLain, Maryland Evidence § 804(3).1 at 467) (other citations omitted) (“The rationale for admission of such statements is that ‘there is a circumstantial guarantee of sincerity when one makes a statement adverse to one’s interest.’ ”); see also Joseph F. Murphy, Jr., Maryland Evidence Handbook § 802[E] (4th ed.2010) (“This exception is based on the theory that it is unlikely that a person will make a false statement that could be used to bring about ... a loss of his [or her] liberty.). For a statement to be admissible under Rule 5-804(b)(3), the proponent of the statement must convince the trial court that “ ‘1) the declarant’s statement was against his or her penal interest; 2) the declarant is an unavailable witness; and 3) corroborating circumstances exist to establish the trustworthiness of the statement.’ ” Stewart v. State, 151 Md.App. 425, 447 , 827 A.2d 850 (2003) (quoting Roebuck v. State, 148 Md.App. 563, 578 , 813 A.2d 342 (2002)). “The proponent of the declaration has the burden ‘to establish that it is cloaked with ‘indicia of reliability[,]’ ... meaning] that ³⁴⁹ there must be a showing of particularized guarantees of trustworthiness.’ ” Id. (quoting West, 124 Md.App. at 167 , 720 A.2d 1253 ) (other citations omitted). “The trial court’s evaluation of the trustworthiness of a statement is ‘a fact-intensive determination’ that, on appellate review, is subject to the clearly erroneous standard.” Id.

(quoting State v. Matusky, 343 Md. 467, 486 , 682 A.2d 694 (1996)) (citing Powell v. State, 324 Md. 441, 453 , 597 A.2d 479 (1991); Wilkerson v. State, 139 Md.App. 557, 576-77 , 776 A.2d 685 (2001)). Then, like other exceptions to the hearsay bar, “ ‘admissibility is a question addressed exclusively to the discretion of the trial judge.’ ” Wilkerson, 139 Md.App. at 577 , 776 A.2d 685 (quoting Jacobs v. State, 45 Md.App. 634, 653 , 415 A.2d 590 (1980)). DISCUSSION According to appellant, Mr. Jones’s statement exculpated appellant and was admissible as a statement against penal interest pursuant to Maryland Rule 5-804(b)(3), so the circuit court committed reversible error when it ruled that the statement was inadmissible. 7 For the sake of the circuit court’s ruling on the statement’s admissibility, Mr. Jones was “unavailable” under Rule 5-804(a)(2) in light of the anticipated assertion of his Fifth Amendment privilege if asked about the events of June 19, 2008 at appellant’s trial, despite the circuit court’s admonishments. See Wilson v. State, 334 Md. 313, 333-34 , 639 A.2d 125 (1994).

However, Mr. Jones’s statement suggested that he discharged a firearm in self-defense and ³⁵⁰ that he did not participate in or assist with “Darren Johnson’s” criminal activity. Therefore, we point out, and the circuit court recognized, that there are issues regarding whether Mr. Jones’s statement actually tended to subject him to criminal liability for the murder under Rule 5—804(b)(8), and whether he actually appreciated the statement’s impact on his liberty. See Joseph F. Murphy, Jr., Maryland Evidence Handbook § 802[E] (4th ed.2010) (“The trial judge must first be satisfied that the statement was in fact against the declarant’s interest and that the declarant actually understood that his statement could indeed cause him [or her] a loss of property, money, or liberty.”). Nevertheless, the crux of the circuit court’s analysis, and thus appellant’s appeal, was whether appellant presented corroborating circumstances that clearly indicated the trustworthiness and reliability of Mr. Jones’s statement.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801. Due to its inherent untrustworthiness, and the preference for in-court testimony that is subject to cross-examination, hearsay “is not admissible” unless “otherwise provided by [the Maryland Rules] or permitted by applicable constitutional provisions or statutes.” See Md. Rule 5-802. Clearly, Mr. Jones’s transcribed statement to defense counsel is hearsay. This Court has stated: The correct procedural posture is, “Hearsay will be excluded, unless the proponent demonstrates its probable trustworthiness.” Affirmative evidence of trustworthiness, moreover, contemplates something more than the absence of evidence of untrustworthiness.

The likelihood of a motive to speak truthfully requires more than the unlikelihood of a motive to lie. Were it otherwise, the nothing-to-nothing ties on these issues would go to the exception rather than to the rule. Cassidy v. State, 74 Md.App. 1, 8 , 586 A.2d 666 (1988). “[T]he declaration against penal interest is not—as a matter of Maryland evidence law—a ‘firmly rooted’ exception ³⁵¹ to the rule against hearsay,” but it has been adopted as an exception in Maryland Rule 5—804(b)(3). Matusky, 105 Md. App. at 398 , 660 A.2d 935 (quoting Simmons v. State, 333 Md. 547, 557-59 , 636 A.2d 463 (1994)). “[A] declaration against penal interest is ‘presumptively unreliable.’ ” Id.

(quoting Wilson, 334 Md. at 335 , 639 A.2d 125 ). However, that presumption may be rebutted if the hearsay statement “bear[s] adequate ‘indicia of reliability’ to be admissible.” Wilson, 334 Md. at 335 , 639 A.2d 125 (citing Lee v. Illinois, 476 U.S. 530, 543 , 106 S.Ct. 2056 , 90 L.Ed.2d 514 (1986)). Additionally, the Supreme Court has held that a trial court “must exclude whatever non-self-inculpatory statements are contained in an otherwise admissible declaration against penal interest.” Matusky, 105 Md.App. at 398 , 660 A.2d 935 (citing Williamson v. United States, 512 U.S. 594 , 114 S.Ct. 2431 , 129 L.Ed.2d 476 (1994)). As mentioned, the proponent of a statement under Rule 5-804(b)(3) “has the burden to establish that [the statement] is cloaked with ‘indicia of reliability[,]’ ... meaning] that there must be a ‘showing of particularized guarantees of trustworthiness.’ ” Stewart, 151 Md.App. at 447 , 827 A.2d 850 (quoting West, 124 Md.App. at 167 , 720 A.2d 1253 ). “The corroboration requirement serves to deter ‘criminal accomplices from fabricating evidence at trial.’ ” Roebuck, 148 Md. App. at 580 , 813 A.2d 342 (quoting United States v. Camacho, 163 F.Supp.2d 287, 299 (S.D.N.Y.2001)).

However, “there is no litmus test that courts must follow to establish adequate corroboration or trustworthiness.” Id. “Ultimately, it is ‘within the trial court’s discretion to determine whether the evidence was sufficiently reliable for admissibility.’ ” Stewart, 151 Md.App. at 447 , 827 A.2d 850 (quoting Wilkerson, 139 Md. App. at 577 , 776 A.2d 685 ). In Gray v. State, 368 Md. 529 , 796 A.2d 697 (2002), the Court of Appeals addressed Rule 8-504(b)(3) and its application where, as in this case, a defendant sought admission of the declaration against penal interest. In that case, the defendant was charged with murdering his wife, who had been ³⁵² shot and stabbed. Id. at 532 , 796 A.2d 697 .

According to the defendant, his wife’s lover, Brian Gatton, was the true perpetrator. The defendant posited that Mr. Gatton previously told another woman, Evelyn Johnson, that the defendant’s wife was his girlfriend, and that after the murder, Mr. Gatton intimated to Ms. Johnson that he killed the defendant’s wife. Id. at 533-34 , 796 A.2d 697 . The defendant subpoenaed Mr. Gatton to testify, but Mr. Gatton invoked his Fifth Amendment right against self-incrimination.

Id. at 534 , 796 A.2d 697 . As such, the defendant sought to offer Mr. Gatton’s statements that he killed the defendant’s wife through Ms. Johnson as declarations against penal interest. Id. The State claimed that Ms. Johnson was not credible, and the trial court refused to admit Mr. Gatton’s statements as declarations against penal interest, which this Court affirmed.

Id. at 536-37 , 796 A.2d 697 . The Court of Appeals reversed. Id. at 537 , 796 A.2d 697 . The court noted that “the defendant’s constitutional right to confront the witnesses against him [was] not implicated” because the defendant was offering the declaration.

Id. at 538 , 796 A.2d 697 . Yet, the Court concluded that the trial court invaded the province of the jury by determining Ms. Johnson’s credibility. Id. at 544-45 , 796 A.2d 697 . The Court reiterated that to be admissible pursuant to Rule 5—804(b)(3) “a declarant’s inculpatory statement that exculpates an accused need[s] corroboration.” Id. at 545 n. 11, 796 A.2d 697 .

The Court summarized: [A] trial judge considering the admission 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 ³⁵³ circumstances, including those indicating a motive to falsify on the part of the [out-of-court] declarant, that so cut against the presumption of the reliability normally attending a declaration against interest that the statements should not be admitted. A statement against interest that survives this analysis, and those related statements so closely connected with it as to be equally trustworthy, are admissible as declarations against interest. Id. at 544 , 796 A.2d 697 (quoting Standifur, 310 Md. at 17 , 526 A.2d 955 ).

The Court discerned that the defendant had presented sufficient corroboration to allow the admission of Mr. Gatton’s statement against penal interest. Id. at 545-47, 796 A.2d 697 . Specifically, Mr. Gatton and the defendant’s wife had been romantically involved, creating