Simmons v. State

⁵⁵⁰ CHARLES E. ORTH, Jr., Judge (Retired), Specially Assigned. I On 18 May 1990 a gaggle of men invaded the home of Misharah Donise Coleman and her family in Prince George’s County, Maryland and committed the crime of robbery with a deadly weapon and various other offenses. There was evidence that the men forced one of the victims to open a safe and took $1,100 in cash and jewelry valued at $2,800 to $3,000. The investigation by the police pointed to Marquette James Coley as one of the gang involved.

He was arrested and taken to the Criminal Investigations Division of the Prince George’s County Police Department where he was interrogated on 31 May 1990 by Detective Kenneth O’Berry. O’Berry obtained the following statement from Coley: May 18,1 was at a Graduation party in the neighborhood of Indian Queens with Rodney Smith and Chuck Holton. In another car was Kevin Sumpter, Valeo and Derrick Simmons. We had just got [to] the party when it was ending.

So Me, Rodney, and Chuck were on our way home until we saw my buddy James Stephens. James was coming from around his girlfriend house and said, it was a party somewhere around her house. So Me and Chuck got out the car with Rodney and got in the car with James. We went looking for the party but could not find the Party.

So we came over my house and sat in the front and talked for a little while. This narrative was in Coley’s handwriting. Then O’Berry posed particular questions to Coley: (Q) Who’s [sic] party was it? (A) I’m not sure, I think maybe Dawn (Q) What time was the party?

(A) We got there at about 12:00 A.M. (Q) Where is Indian Queens? (A) Near Oxon Hill Middle School. (Q) Who attended the party with you? ⁵⁵¹ (A) Me Rodney Smith, Chuck Holton, In another car was Kevin Vale Sumpter, Derrick Simmons, and Valeo (unknown last name).

(Q) Do you know anything about a robbery which occurred on 5-18-90 at 7287 Woodhollow 211 N. Huron Dr. Forest Heights? (A) I knocked on the door, she answered the door, I looked down the steps, it was a “Q”, they came in. I sat at the door looking out, they said come on. (Q) Who was with you?

(A) Me, Derrick Simmons and Chuck Holton and another person, I don’t want to tell you his name. (Q) Did you take anything? (A) No (Q) Did the others take anything? (A) Not that I know of (Q) Who had guns?

(A) Derrick Simmons, black automatic the other dude had a black automatic (Q) Who knew the girl who lived on Woodhollow N. Huron (A) I don’t know, they were telling me they needed me to do something for them, she was holding the money for her boyfriend J.J. or J.R., he’s a drug dealer he’s in jail. (Q) Who drove? (A) Chuck Holton, black Horizon or something like that. (Q) Describe the girl?

(A) B/F, 508-504, 120 lbs, 16-17 yrs old, med complex (Q) When you knocked on the door did you say anything? (A) No, she didn’t ask who it was, I figured it was her since she was a young girl. (Q) Who else was in the house? (A) two ladies and a kid (Q) Describe the ladies?

(A) B/F’s, they pushed them in the room with her. (Q) Do you know where this house is located? ⁵⁵² (A) Somewhere off Indian Head Hway (Q) Why won’t you tell me who the 4th guy is? (A) I don’t want to snitch on someone you already know the other guys and I don’t want to snitch on anyone. (Q) Is the part about the party correct?

(A) yes, we went to the party after the robbery. (Q) So who went to the party? (A) Me, Rodney, Chuck, Kevin, Valeo and Derrick. (Q) Where did you met up with these other guys?

(A) 7-11 at Allentown Rd. (Q) Who else was driving? (A) Kevin Sumpter, black 300 ZX (Q) Who went in Kevin’s car? (A) Valeo & Derrick (Q) What time did you go to the party?

(A) around 11:00 or 12:00 (Q) How long after the robbery? (A) About 30 minutes (Q) Earlier you said there was two ladies and a kid in the house. Did you mean these people and the young girl also? (A) yes, two older ladies, the young girl and the kid.

(Q) Why did you take part in this robbery? (A) it sounded easy, it was peer pressure, just knock on the door. (Q) Have any promises or inducements been made to you to give this confession? (A) No (Q) Is this statement the entire truth?

(A) Yes (Q) Is there anything else you would like to add? (A) No Coley initialed each answer as well as each correction and signed each.of the six pages which comprised the statement. ⁵⁵³ On 19 June 1990, the Grand Jury of the State of Maryland for the body of Prince George’s County returned a “True Bill” against Coley, Derrick Simmons, and Wendell Bernard Jackson II. Pursuant thereto, an Assistant State’s Attorney for Prince George’s County filed an eleven count indictment the next day, jointly charging Coley, Simmons, and Jackson with armed robbery and related offenses. II Coley’s statement is the heart of the appeal before us.

Simmons was separately tried by a jury in the Circuit Court for Prince George’s County and found guilty of robbery with a deadly weapon, the use of a handgun in the commission of a felony, robbery, and burglary. He was duly sentenced and noted an appeal from the judgments. We granted certiorari on our own motion before decision by the Court of Special Appeals, 332 Md. 480 , 632 A.2d 446 . During the course of the State’s case at Simmons’s trial, the prosecutor told the court at the bench that the State’s next witness was Coley.

It appeared that at a former trial of Simmons, which resulted in a hung jury, Coley refused to testify, even though at the time he had accepted a plea offer in exchange for his guilty plea, had been sentenced, and the period for appeal had expired. The judge presiding at the prior trial ordered him to testify and held him in contempt when he refused to comply. The prosecutor told the court that she had just spoken to Coley and he stated that he did not intend to testify. Therefore, she said, “what the State wants to do is to introduce into evidence the statement that was made by Mr. Coley at the time of his arrest.” After a brief recess, it was decided to ascertain, out of the presence of the jury, if Coley would testify.

Defense counsel said he did not object to this procedure but made clear his objection to the admission of the statement if Coley refused to testify. Coley’s statement was marked as State’s Exhibit No. 5 for identification. ⁵⁵⁴ While waiting for Coley to be returned to the courtroom, defense counsel stressed his objection to the admission of the statement. When Coley appeared, he refused even to take the oath much less testify. He declaimed: “I’m not taking an oath.

I’m not going to testify.” Threatened with being held in contempt for failure to take the oath, Coley said he had been all over that at the prior trial. He resisted strong pressure by the judge and despite repeated attempts to swear him refused to take the oath. During all this, counsel were fervidly arguing the issue. The judge finally said that the State could authenticate the statement.

The jury was brought back in and O’Berry testified as to the obtaining of the statement. The next thing that happened was that the State rested and the defense moved for a judgment of acquittal. The motion was denied and the court recessed for the day. The next day, defense counsel reminded the court that it had not ruled on the admission of the statement.

The court allowed counsel to reargue the issue further. As it was apparent that the judge was going to admit the statement in evidence, defense counsel asked for a mistrial and if the motion was denied, counsel requested a motion to strike O’Berry’s testimony. Both motions were denied. The judge indicated that he had intended to admit the statement the day before.

But, the court said: “[S]o the record is mighty clear now, the State’s Exhibit 5 is admitted.” Ill A The Confrontation Clause of the Sixth Amendment to the Constitution of the United States declares: In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him____ The Confrontation Clause of Article 21 of the Maryland Declaration of Rights proclaims: ⁵⁵⁵ That in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him.... [1] B The Supreme Court has accepted hearsay as “testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” Lee v. Illinois, 476 U.S. 530 , 543 n. 4, 106 S.Ct. 2056 , 2063 n. 4, 90 L.Ed.2d 514 (1986), quoting E. Cleary, McCormick on Evidence § 246, p. 584 (2d ed. 1972). Coley’s statement, offered by the State as substantive evidence against Simmons, was hearsay. The basic rule is that hearsay is not admissible. If the language of the Confrontation Clauses were taken literally, any statement made by a declarant not at the trial would be excluded.

See Ohio v. Roberts, 448 U.S. 56, 63 , 100 S.Ct. 2531, 2537 , 65 L.Ed.2d 597 (1980). But the Supreme Court has consistently held that the Confrontation Clause “does not necessarily prohibit the admission of hearsay statements against a criminal defendant....” Idaho v. Wright, 497 U.S. 805, 813 , 110 S.Ct. 3139, 3145 , 111 L.Ed.2d 638 (1990). See Lee v. Illinois, 476 U.S. at 543-544 , 106 S.Ct. at 2063-2064 ; Roberts, 448 U.S. at 63 , 100 S.Ct. at 2537 . The Supreme Court has declared that it cannot be seriously doubted that ⁵⁵⁶ “the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.” Lee, 476 U.S. at 539 , 106 S.Ct. at 2061 , quoting Pointer v. Texas, 380 U.S. 400, 404 , 85 S.Ct. 1065, 1068 , 13 L.Ed.2d 923 (1965).

In .Roberts, however, “the Court held that cross-examination of a hearsay declarant can be dispensed with when a party demonstrates: (1) the necessity of introducing the out-of-court statement, and (2) the out-of-court statement bears adequate indicia of reliability.” Chapman v. State, 331 Md. 448, 455 , 628 A.2d 676 (1993), citing to Roberts, 448 U.S. at 65-66 , 100 S.Ct. at 2538-2540 . See Moon v. State, 300 Md. 354, 367 , 478 A.2d 695 (1984), cert. denied, 469 U.S. 1207 , 105 S.Ct. 1170 , 84 L.Ed.2d 321 (1985). The first prong of the Roberts approach was construed as requiring the showing of the unavailability of the declarant or a demonstration of unsuccessful good faith efforts to secure the declarant’s presence. Chapman, 331 Md. at 467 , 628 A.2d 676 .

Then, in United States v. Inadi, 475 U.S. 387 , 106 S.Ct. 1121 , 89 L.Ed.2d 390 (1986), the Court declared: Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable. Id. 475 U.S. at 394 , 106 S.Ct. at 1125. It held that the unavailability of a conspirator need not be shown to admit a coconspirator’s hearsay declaration made during the course of the conspiracy. Id. 475 U.S. at 399-400 , 106 S.Ct. at 1128-1129.

In White v. Illinois, — U.S.-, 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992), the Court again indicated that the unavailability requirement established in Roberts does not apply to all forms of hearsay. Id. — U.S. at-, 112 S.Ct. at 741-742 . The Court explained that “the Confrontation Clause does not require an initial showing of unavailability prior to admitting out-of-court statements which are spontaneous declarations or are made for the purposes of attaining medical diagnosis or treatment as substantive evidence for the State’s case.” Chapman, 331 Md. at 469-470 , 628 A.2d 676 , citing to White , ⁵⁵⁷ — U.S. at-, 112 S.Ct. at 743 . Thus, Chapman concluded, “it appears that the Supreme Court has emphasized that Roberts contemplated a rule of necessity, not one of availability.” 331 Md. at 470 , 628 A.2d 676 .

So, in Chapman , we held that the unavailability of the makers of reliable business records was not a prerequisite for the admission of these records. Where the rule of necessity has been satisfied, the second prong of the Roberts approach is triggered, namely, that the hearsay declaration be reliable. “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Roberts, 448 U.S. at 66 , 100 S.Ct. at 2539 . We pointed out in Chapman, 331 Md. at 457 , 628 A.2d 676 : Where the hearsay in question falls within a “firmly rooted” hearsay exception “no independent inquiry is required.... ” Bourjaily v. United States, 483 U.S. 171, 183 , 107 S.Ct. 2775, 2782 , 97 L.Ed.2d 144, 157 (1987). IV A The objection of defense counsel to the admission of Coley’s statement was on the grounds that it was hearsay and that it violated Simmons’s right to confront the witnesses against him bestowed by the Sixth Amendment to the Constitution of the United States and Article 21 of the Maryland Declaration of Rights.

The judge’s ruling that the statement was admissible was based on the penal interest exception to the hearsay rule. He made no specific findings but “conclude[d] that the tests set forth in Adkins have been met.... ” Adkins v. State, 72 Md.App. 493 , 531 A.2d 699 (1987), rev’d on other grounds, 316 Md. 1 , 557 A.2d 203 (1989), discussed the penal interest exception as recognized by the Supreme Court and this Court. Id., 72 Md.App. at 502-504 , 531 A.2d 699 . Adkins referred to the test described in State v. Standifur, 310 Md. 3, 17 , 526 A.2d 955 (1987) for the admissibility of a declaration against penal interest against both a hearsay and ⁵⁵⁸ Confrontation Clause objection.

The trial judge believed that Coley’s statement was indeed inculpatory and against Coley’s penal interest and that a declaration against penal interest was a “well founded” hearsay exception thereby inferring reliability without more. The judge opined that, although the reasoning in Adkins was applicable to this case, Coley’s statement was admissible “for more reasons than are set forth in ... Adkins.” Those additional reasons, the judge declared, arose because the court and the jury were involved in a search for the truth. He said: And the jury is entitled to hear relevant, probative information.

In fact, it’s necessary for the jury to hear relevant, probative information. For them not to hear it is a denial of the principles concerning the search for the truth. Of course, the ascertainment of the truth is the alpha and omega of every criminal trial. But under our system of criminal justice, the search for the truth is not always the decisive criterion for admissibility of evidence and at times suffers some restraints.

This is so when the evidence, although relevant and probative and tending to disclose the truth, infringes on personal rights. For example, when a confession, otherwise freely and voluntarily given and plainly relevant and probative, is inadmissible for the failure of the authorities to comply with the dictates of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694