Stewart v. State

HOLLANDER, J. In this murder and assault case, in which both a father and son were charged but tried separately, we are asked to consider whether the trial court erred at the son’s trial by refusing to admit as a declaration against penal interest the father’s statement exculpating the son. Following a trial in June 2002, appellant Charles Stewart, Jr. (sometimes referred to as “Junior” or “Nookie”), was convicted by a jury in the Circuit Court for St. Mary’s County of numerous offenses, including first degree murder of John Butler, use of a handgun in a crime of violence, first degree assault of Omega Nunley, second degree assault of John Nunley, and related charges. Appellant was sentenced to life imprisonment for the murder conviction, and a consecutive term of thirty-five years for the other convictions. 1 On appeal, appellant presents two questions for our consideration, which we have rephrased slightly: I. Did the trial court err in excluding a declaration against penal interest made by appellant’s father, ⁴²⁸ Charles Stewart Sr., in which Stewart, Sr., implicated himself and exculpated appellant?

II

Did the trial court abuse its discretion in permitting the State to re-open its case at the suppression hearing? For the reasons discussed below, we shall affirm. FACTUAL SUMMARY 2 On March 5, 2001, Deputy Clayton Safford of the St. Mary’s County Sheriffs Office responded to a call for a shooting and found the deceased victim, John Butler (“Fats”), lying on Pegg Road, near the Pegg’s View Apartments. Within two to three feet of Butler’s body, Deputy Safford located a kitchen knife.

John Nunley (“Snowman”) and Omega Nunley (“Megatron”) were found a short distance away. Both had been severely beaten but were still alive. At the scene, Deputy First Class Mark Beckman found an unfired bullet and a shell casing in the gutter. In front of the apartments, he observed a puddle of blood, a live bullet, and a set of keys.

Deputy Thomas Hedderich, the third officer to arrive at the scene, described the appearance of the Nunley brothers: [T]hey were both laying on the ground in the area of the apartments on the grass. Both of them were swollen, bleeding, cuts about the head and face. And they was just laying there. I asked them if you are all right, are you all right.

I got no response, however, their eyes were opened, they were breathing, they were moving around, trying to get up----I noticed a lot of blood, a lot of eyes swollen almost shut, things like that. James Locke, M.D., an assistant medical examiner, testified as an expert in forensic pathology. He opined that Butler, who was twenty-seven, died as a result of a gunshot wound to the back of the neck. The bullet severed the spinal cord, ⁴²⁹ passed through the floor of the mouth, and lodged in the victim’s right cheek.

A large caliber metal jacketed bullet was recovered from the cheek. Butler also suffered abrasions to his face, left hand, and right shoulder. Gerald Apollon, M.D., an emergency room physician at St. Mary’s Hospital, testified that on the morning in question he treated both John and Omega Nunley. A CT scan revealed that John “had fractures of the skull and also bleeding around the brain as well as -within the brain.” Because of the life threatening injuries, John was transferred to Washington Hospital Center.

A drug screening indicated that John was intoxicated. John was hospitalized for about three months as a result of the injuries he sustained. A photograph of John, depicting his condition, was admitted into evidence. With regard to John’s current condition, his mother, Joanne Nunley, testified: At the moment he had to start back over again to know his ABCs, his colors, his—it’s just like first grade in the way of speaking.

He got to learn everything back over again. We are teaching him to know his ABCs, his times. And he had forty stitches in his head. He’s going to therapy twice a week now for ... his right arm, and to learn how to move his arm the right way.

And he just, like—I mean, like he know who you are, but he cannot say your name and everything. He just had to start all over again from the beginning as a child. According to Dr. Apollon, Omega “had some obvious injuries. He had a lot of swelling” and “lacerations.” In addition, a CT scan revealed that Omega had a fracture of the right eye socket, fractures of the skull, and bleeding around the brain.

As a result, Omega was transferred to Shock Trauma. He tested positive for cocaine, marijuana, and an intoxicating level of alcohol. Omega testified that he did not remember what happened on March 4 or March 5 of 2001. He recalled only that his brother picked him up that day and they “went down to Butler’s.” He added: “[Ajfter that I don’t remember noth- ⁴³⁰ ing____” Omega was hospitalized for about two months as a result of his injuries, and suffered the loss of eighty percent of the vision in his right eye.

He continues to experience headaches and pain in his legs and back. John Barnes was with appellant and his father on the evening of March 4 and the morning of March 5, 2001. He testified that in the late hours of March 4, he was at home when appellant and his father, Charles Stewart, Sr. (“Senior”), stopped by to ask him if he wanted to go out. Barnes’s brother-in-law, William Somerville, was also present.

Senior drove them in his gray, four-door Oldsmobile to a “club” called Butler’s Place in Lexington Park. According to Barnes, the group arrived at Butler’s Place shortly after midnight on March 5, 2001, where they drank beer and danced. As the morning wore on, more patrons arrived and people were crowding the dance floor. Barnes testified: “I just saw Charles, Jr., and Fats [i.e., the victim] like face-to-face talking or whatever.

I didn’t really pay it no mind. Then it was just a little scuffle had broke out, and they broke everything up, and we left out of there.” Barnes claimed that they were “[p]ushing and shoving” and then “Fats tried to pick [appellant] up by his legs, and somehow or another they fell down on the floor, then everybody just broke them up.” Barnes believed that Senior was also involved in the altercation. Appellant struck the bouncer who forced him to leave the club. Barnes and Somerville told appellant, “[L]et’s go home, kill it, don’t worry about it.” When Senior exited the establishment, appellant was still upset.

At appellant’s suggestion, they drove to the home of appellant’s friend, Stuart Gough. Appellant and Senior went inside. When Barnes went inside to use the bathroom, he saw appellant with a handgun and Gough with a plastic bag. Thereafter, Robert Scriber, Benjamin Hebb, and Nathan Schindler all arrived in Schindler’s Ford Bronco.

Upon leaving Gough’s residence, Barnes, Gough, and Junior entered Senior’s car; Sommerville went with the group in the ⁴³¹ Bronco. Barnes assumed that they were going to get gas and then go home. He apparently “dozed off’ and, when he awoke, they were heading back to Butler’s Place. At appellant’s direction, Senior went inside.

He determined that no one was present. The group then proceeded to Church’s Chicken to get gas. While there, Barnes went inside to use the restroom and, when he exited, the Bronco pulled up. Barnes still thought they were going home, but he was wrong.

He explained: “And right when we get up on the turn by Pegg Road, they decided they want to turn up” into the Pegg’s View apartment complex. According to Barnes, it was appellant who stated, “turn on Pegg’s View.” Schindler followed, driving the Bronco. Shortly after the two vehicles parked at the apartment complex, Barnes observed a black Ford Taurus come around the corner, “real fast,” driven by John Nunley. Appellant and Senior immediately “jump[ed]” out of the car and ran to the Taurus.

Barnes also recalled that Somerville, Scriber, and Hebb exited the Bronco, but he could not remember if Schindler got out. From inside the vehicle, Barnes saw that Senior was “holding” an aluminum baseball bat. According to Barnes, “[t]he tip of the bat” was “coming down repeatedly.” Barnes “could hear a little bit of noise,” which he described as “a pinging sound.” He “figure[d]” the noise came from the bat. Then, Barnes saw Butler exit the apartment building and walk toward the commotion.

Barnes heard someone yell, “It wasn’t me.” At that point, Barnes decided he “was going to try to get out [of] the car, get away from there.” It was then that Barnes heard a gunshot. Barnes did not know who had the gun, and he quickly “jumped in the car” because he was “scared.” Gough returned to the car and moved it a short distance to another parking place. Appellant and Senior ran back to the car; Senior was carrying the bat. While in the car, Barnes saw appellant hand a small black gun to Gough.

He also heard appellant say that he had to “go get rid of the stuff.” When the group arrived at ⁴³² Lexwood Apartments, Senior “jump[ed] out real fast, ran towards the wooded area[,]” and threw the bat in the woods. Gough also ran into the woods, but headed in a different direction from Senior. When they returned to the car, Barnes thought it was Senior who stated: “[N]obody know nothing.” Barnes was then dropped off at his home. At about 5:00 a.m., the police came to Barnes’s house and transported him to the police station, where he was interviewed by Detective David Yingling.

Later, the detective informed Barnes that his story was not consistent with other information that had been obtained. According to Barnes, Detective Yingling told him to “just get it straight, get it right,” so Barnes “gave him the truth.” Barnes explained that he did not tell the truth initially because he was frightened. On cross-examination, Barnes agreed that he was somewhat “confused” about “the details.” In one of his statements on March 5, for example, he had indicated that he saw Gough hand his gun to Senior, but he acknowledged at trial that he was “not sure” if that was accurate. Nor did he know who had the gun when the group returned to Senior’s car at Pegg’s View.

He also acknowledged that, at the scene, he was in the car with his head down, and so he “missed a lot of the details there.” On redirect, Barnes claimed that appellant had the gun at Gough’s house. Moreover, when asked if he was “absolutely sure” that appellant had the gun, Barnes responded, “yes.” In addition, Barnes said that he first saw the bat at Pegg’s View, and claimed that Senior had it and used it. Barnes stated: “I just seen- the tip of the bat just coming up, coming down.” And, according to Barnes, when Senior and appellant ran to the car, Senior was carrying the bat. He also reiterated that, while in the car, he saw appellant “handing [the gun] over ... [to] Gough.” On re-cross, the defense attorney reviewed Barnes’s statement to the police on March 5, 2001.

In that statement, Barnes indicated that Gough said he wanted to bring his “piece.” Barnes understood that term to mean that Gough ⁴³³ wanted to bring his gun. In addition, Barnes had said that, while the group was at Gough’s residence, Gough retrieved a bag. Apparently, the gun was in the bag, and Barnes stated that the bag was handed to Senior. Detective First Class David Yingling testified that, at approximately 10:45 a.m. on the morning of the occurrence, Barnes took him to the area in question and pointed out where the bat had been thrown.

Yingling recovered a baseball bat from a wooded area on Lexwood Drive. Detective Yingling also found one RP .380 round from Gough’s residence. On March 8, 2001, Detective Yingling located a black Davis .380 semiautomatic handgun in the woods near Lexwood Drive. It had one live round in the clip and one in the chamber.

The detective estimated a distance of 75 to 100 yards separated the places where the gun and bat were found. Gary Dicks, a crime lab technician with the St. Mary’s County Sheriffs Office, arrived at the scene of the shooting at about 3:00 a.m. An expended round was found near Butler’s body. Dicks also attended the autopsy of John Butler; a bullet was retrieved from his body.

Although a fingerprint was recovered from the knife found near Butler’s body, Dicks indicated that it was not readable. No fingerprints were recovered from the handgun or the shell casing, and the bat also tested negative for fingerprints and blood. Gary Phillips, a firearms examiner, testified that the expended shell casing recovered near Butler’s body, and the bullet recovered from his body, were fired from the handgun found by Detective Yingling. According to Detective David Alexander of the St. Mary’s Sheriffs Office, the handgun was registered to an elderly woman who had no connection to anyone in this case.

Numerous other witnesses testified for the State, including Benjamin Hebb, Robert Scriber (Senior’s nephew and appellant’s cousin); William Somerville (a relative of the Stewarts and John Barnes); Steven Maddox (the bouncer and cousin of the decedent); Rufus Butler, the owner of the club; Katrina Fenwick, the decedent’s girlfriend; and Kevin Barnes, the ⁴³⁴ decedent’s friend. Because their testimony was largely consistent with that of John Barnes, we shall only recount select portions. According to Hebb, appellant and Senior confronted the Nunleys at 'Pegg’s View. Then, he “heard somebody hit something, and it’s like ting, and you heard that.” At that point, Butler came outside.

Hebb stated: “He [i.e., Butler] went down there, and no sooner he went down there, you just heard a pow.” Scriber recalled that Butler and Junior exchanged words on the dance floor at Butler’s Place. He stated: “Butler started throwing elbows, and he was hitting Junior with them, and then something happened. I think he pushed Nookie, and then they start the fighting, and then they broke it up.... ” According to Scriber, Butler also tried to slam Junior to the ground. Scriber did not see the Nunleys join the fight.

At Pegg’s View, Scriber saw appellant hit someone. He also saw Senior with a bat and heard sounds “[j]ust like metal hitting concrete.” Scriber also saw Butler and Kevin Barnes approach the scene. As Butler ran behind a building, appellant and Senior pursued him. Then, Scriber heard a gunshot.

Kevin Barnes 3 testified that he, his girlfriend, Katina Jenkins, Butler, and Butler’s girlfriend, Katrina Fenwick, were at Butler’s Place when a fight broke out between Butler and the Stewarts. According to Barnes, Senior' displayed a knife during the fight. Barnes claimed that Senior “kept acting like he was trying to stab [Butler], but I kept grabbing his arm telling him stop, put the knife away.” Barnes eventually pushed. Butler into the pool room, and did not see where Junior and Senior went after the fight.

Kevin left the club with Butler, Jenkins, and Fenwick; they went to Fenwick’s residence at Pegg’s View Apartments. Upon hearing a commotion outside, Butler left the apartment, followed by Barnes, Jenkins, and Fenwick. Barnes saw two ⁴³⁵ people on the ground, their faces covered “with so much blood, you couldn’t tell who they were.” Barnes observed Junior reaching into an injured man’s pockets, screaming at him, “[Wjhat you got in your pocket, what you got in your pocket[?]” He also saw Butler push Junior away, stating: “[G]et off, that’s my boys, get off.” When Senior tried to hit Butler with the bat, Barnes intervened and was struck in the leg. Barnes recalled that Butler ran around the building, with Junior and Senior chasing him.

Somerville told Barnes to get back. As he, Jenkins, and Fenwick ran toward Fenwick’s apartment, they heard a gunshot. William Somerville testified that he saw Butler throw an elbow while at the club. Butler also pushed appellant and grabbed him.

When the Nunleys arrived at Pegg’s View, appellant and Senior got out of the car. Appellant approached Omega, while Senior, who was carrying a bat, approached John. Appellant wrestled with Omega, and Senior struck John with the bat once. He then began to hit Omega.

Somerville stated that it sounded like Senior “was hitting the concrete.” During the fight, Kevin Barnes and Butler came outside and approached Senior. Butler ran, with Senior and appellant in pursuit. Then, Somerville heard a gunshot. But, he did not see anyone in possession of a gun.

Later that morning, Somerville telephoned appellant and asked who had the gun. Appellant responded that Senior had it. Appellant also stated that he and Senior were the only people involved in the incident. Schindler recalled that, at Pegg’s View Apartments, he was sitting in the Bronco with Scriber, Hebb, and Somerville when they heard some noise.

They exited their vehicle and walked “real slow” toward the commotion. Schindler saw “silhouettes of a bat swinging and people jumping around, just look like fighting.” But, he did not know who wielded the bat. Then, Butler came outside, followed by Kevin Barnes. When Butler “got down there,” Schindler heard someone say, “[T]here he is[.]” Schindler then saw “people take off running behind that comer[,]” but Schindler could not see who they were.

Mo ⁴³⁶ ments later, Schindler heard a gunshot. Then, Senior ran toward his car, carrying a bat. Rufus Butler 4 testified that he saw appellant “swinging at” the bouncer, Steven Maddox. Rufus attempted to help Maddox, but Senior intervened and told appellant not to fight.

However, Senior asked Butler to identify the people who had been fighting with Junior. Senior also pulled out a gun, but he put the gun in his pocket when appellant stood at the door. Maddox recalled that, when Senior returned to the club, he “asked where the fellas was at.” Maddox told him that they were gone. Senior reached into his pocket, pulled out a gun, and stated: “[T]his is what I got for the fellas[.]” Maddox described the weapon as a small, black handgun.

Katrina Fenwick, the victim’s girlfriend, testified about the “scuffle” at the club involving Butler, appellant, and an older man who brandished a knife. Soon after arriving at Fenwick’s apartment, they heard a commotion and Butler “stormed out of the door[.]” Barnes also went outside, because Fenwick asked him to get Butler. Fenwick testified: “So when Kevin went down the stairs, at that point I was nervous, I didn’t know what to do. I went to the dishwasher and grab a knife.

I didn’t know if they were going to come up to my apartment, so I grabbed a knife, went outside.” Once outside, Fenwick found John and Omega Nunley on the ground. Then, Fen-wick heard a gunshot. Appellant, who was bom on September 5, 1977, was arrested by Detective William Raddatz on March 21, 2001. As the detective read the indictment to appellant, he interjected: “[D]amn, all I did was beat the boy.” Appellant had not yet received his Miranda 5 warnings, because Detective Raddatz had not intended to question appellant at that time. ⁴³⁷ Detective Steven Hall interviewed appellant at approximately 3:00 p.m. on March 5, 2001.

The detective advised appellant of his Miranda rights; appellant agreed to provide a taped statement, 6 which was played for the jury. In his statement, appellant informed the detective that he was with his father, Somerville, and John Barnes at the club. “Fats, Snowman and Omega” were also present. According to appellant, “Fats was throwing elbows” while they were dancing. An altercation erupted involving appellant, Senior, John Barnes, and Somerville; “somebody hit [appellant]” causing him to fall to the ground.

After leaving the club, they went to Gough’s house and obtained a gun. He thought the people in the Bronco “already had the baseball bat in the ... truck.” When they went to Pegg^ View, they were “looking for” Butler to “fight one on one[.]” John and Omega Nunley arrived, and appellant said he and Senior “ran after ’em.” Senior struck Snowman first, with a baseball bat; appellant was fighting with Omega. Then, Senior hit Omega. When Butler came outside, appellant said they “cracked his bones, well we cracked him with the baseball bat.” Then, while appellant and Omega were “on the ground fighting,” appellant “heard a gunshot.” At that point, “[everybody ran [back] to the car.” When asked, “who shot the gun,” appellant replied: “My dad did.” Appellant claimed that his father threw the gun in the woods.

The defense did not present a case. We shall include additional facts in our discussion.

II

DISCUSSION A. As we noted, Senior was charged in this incident but was tried separately. At issue here are the statements that Senior made to various police officers, which were incriminating as to him and exculpatory as to appellant. Because the trial court ⁴³⁸ refused to admit Senior’s statements at appellant’s trial, as declarations against penal interest, appellant urges us to reverse. We discern neither error nor abuse of discretion.

Prior to trial, the State moved in limine to exclude Senior’s statements. In connection with that motion, the court conducted an evidentiary hearing during the trial, outside the presence of the jury. Senior invoked his right to remain silent under the Fifth Amendment. Therefore, it is undisputed that Senior was unavailable within the meaning of the declaration against penal interest exception to the hearsay rule.

Corporal Terence Black testified that, on March 5, 2001, while Senior was in the holding cell, he commented “that he had shot that man, and that his son didn’t have anything to do with it.” The corporal asked Senior if he remembered being advised of his Miranda rights and Senior remarked that he did. Corporal Black testified: “And then he again stated to me that ... this was all my fault, my boy didn’t have nothing to do with it.” Corporal Black again read Senior his Miranda rights, escorted him to the police cruiser, and transported him to the detention center. En route to the detention center, Senior reiterated to Black that “his boy didn’t have anything to do with this, and that he [Senior] was responsible for it, and that it was all his fault.” Corporal Black asked Senior “what happened down there last night[,]” and Senior responded “that he shot that man, he shouldn’t have been messing with those young boys down at the bar.” Senior explained that “the individual ran from him. The individual bent down, when he bent down, he [i.e., Senior] shot him in the back of the head.” According to Black, when Senior made the statements he knew he was facing a considerable amount of jail time.

The defense also elicited that Senior said, “I guess I’m going to be here a long time this time for killing a man, but I got to pay for what happened, it was my fault.” The trial court then conducted the folio-wing inquiry: ⁴³⁹ THE COURT: Was your thinking, Officer Black, that there was at least a possibility that the declarant, Stewart, Sr. was making it up so that he could help his son? [BLACK]: At first I thought he was being sincere with me, but then he made a comment that kind of changed my opinion a little bit when he said, you know, I got to pay for what’s been done, and it’s all my fault. And I even asked him— THE COURT: As if he instigated the proceedings, but may not have been the actual actor? [BLACK]: That’s correct. THE COURT: That was your mental impression? [BLACK]: Yes. Additionally, the court asked: “Officer Black, would you characterize this statement as one that you are not going to the bank with?” Black responded: “That’s right.” The court promptly ruled that Senior’s statements to Corporal Black were inadmissible.

Appellant then called Officer John Bartlett, III, of the St. Mary’s County Sheriffs Office. He testified that, on March 9, 2001, at approximately 10:30 a.m., while at the detention center, Senior asked the officer to read aloud to him a newspaper article about Butler’s death. As Officer Bartlett read the article, Senior interrupted and said: “What else was I supposed to do.” Senior also told the officer that Butler had “started the fight with him” and that he, Senior, “fired a weapon,” but that “he just fired one shot.” Moreover, Senior claimed he “never meant to kill anyone.” In addition, Senior claimed: “If I hadn’t killed him, he was going to kill me. He was bigger and younger than me.” Senior added: “He hit me upside my head with a bottle” and “I had to protect myself.” According to appellant’s counsel, Senior had no “motive to falsify” in regard to his statement to Bartlett.

The court disagreed, concluding that this hearsay statement was not sufficiently trustworthy. The court stated, in part: ⁴⁴⁰ [W]hen he [Senior] makes the statement to the correctional officer, he says, well, what was I supposed to do, as if suggesting that he did it all right, but it was self-defense. Also suggesting that maybe at the time Nunley had a bottle and was going to attack him. So while he says he did it, he’s also offering the officer, the correctional officer his defenses.

And what that brings up in the Court’s mind is that it’s—it just doesn’t appear that the statement is trustworthy enough to use. * * * [M]y conclusion would be that Senior is operating here to shield his son, but also to some degree looking after his own interest. So I don’t believe, and my'ruling is that that statement by the correctional officer should not be admitted. (Emphasis added). Appellant also called Detective William Raddatz.

He noted that Senior voluntarily went to the sheriffs headquarters on the morning of March 5, 2001, and orally admitted that he shot Butler and struck the Nunleys with a baseball bat. He was then arrested and subsequently provided two tape recorded statements. According to Detective Raddatz, after Senior provided his first statement, he (Raddatz) checked on the progress of the investigation and discovered “inconsistencies” between Senior’s statement and what the other officers had learned. Therefore, a second taped statement was obtained from Senior about an hour later.

Both tapes were played for the court. 7 The first statement was taken at 11:00 a.m., after Senior was advised of his Miranda rights. In that statement, Senior acknowledged that he was involved in an altercation at Butler’s Place, ■ and then he “got in a fight” with “three boys” at Pegg’s View. He claimed that two of the “boys” were “trying to hit [him] with bats,” so he hit each of them “one time.” ⁴⁴¹ Senior also said that “another boy had a knife,” and he “thought” that person also “had [a] gun.” Senior recalled that when “he [i.e., Butler] reached down for a gun,” Senior “shot the other boy.” Senior did not know, however, who gave him (Senior) the gun. According to Senior, “everybody” got out of the vehicles to fight because the others “swung on [Senior] with a bat, and another boy had a knife throw [sic] at me.... ” Senior related in his second statement that he had been involved in a fight at the bar, and claimed “everybody in the whole bar got fighting.” According to Senior, after his group left the bar, they “stopped” at Gough’s place.

When Senior was asked why he went to Gough’s house, and what he got at Gough’s residence, he responded: “I didn’t go there for nothing. ... I didn’t get nothing from him.” Senior added: “I don’t know whether the gun was gotten or not. All I seen was a white paper bag.... ” Moreover, Senior claimed that he did not know who had the bag, adding: “One of them other boys [in the Bronco] had it.... ” Senior insisted that he “never touched no bag,” nor did he “know what’s in the bag.” The following ensued: THE COURT: Stop the tape there for a minute. Officer, at this point you know that when Senior says to you, in effect, he didn’t get anything from Stuart Gough’s house, you know he’s lying? [DETECTIVE RADDATZ]: Yes, sir.

THE COURT: Okay. [DETECTIVE RADDATZ]: He had already told me earlier, we weren’t being taped, that he got—the gun was in a white paper bag. He got the gun from Stuart Gough’s house. THE COURT: Right. He’s clever enough when he gets on tape he doesn’t want to repeat that? [DETECTIVE RADDATZ]: Yes, sir.

THE COURT: Correct? [DETECTIVE RADDATZ]: Yes, sir. THE COURT: That was your assessment also. So his plan is, first of all, if he can lie his way out of it, he’s going to? ⁴⁴² [DETECTIVE RADDATZ]: Yes, sir. THE COURT: But if you catch him in Court in a lie, then he is going to try to make a justification or rationale] for what he did, correct? [DETECTIVE RADDATZ]: I think he was trying to minimize certain things, certain aspects of it.

THE COURT: Right. So he was, he was trying to reduce his own culpability if you really nailed him doum? [DETECTIVE RADDATZ]: Yes. (Emphasis added). The tape was re-started, and the Detective asked Senior to identify the individuals involved in the altercation at Pegg’s View Apartments.

Senior responded that he did not know the “three boys,” but he described one as “short, fat” and two as “tall and skinny.” The court stopped the tape again, and the following exchange occurred: THE COURT: Officer, he surely knows the boys; does he not? [DETECTIVE RADDATZ]: It was my assessment that he did, sir. THE COURT: He did. And when he describes them to you, you ask him could you describe them, his answer is short, fat, and tall and skinny, two of them is tall and skinny. You knew right then he was lying to you; didn’t you officer? [DETECTIVE RADDATZ]: Yes.

With respect to the altercation at Pegg’s View, Senior said: “I know I done everything.” He explained: “Well, I hit [the] boys with the bat and cause they had a bat at me I hit the boys ... with a bat.” He added: “They swung at me with a bat and I snatched back, I hit them back, I hit them with a bat. Cause they swung at me with a bat and I hit the other one with a bat, cause he swung at me.” Senior, born in 1956, acknowledged that the Nunleys, in their 20’s, are considerably younger than he is. He maintained that he hit Omega and John Nunley just “one time.” ⁴⁴³ At that point, according to Senior, “another boy come around there with a knife or gun.... ” Senior told Butler that he (Senior) had a gun, and Butler “turned around.... ” According to Senior, Butler threw the knife at him, and Senior “ducked.” Senior continued: “He (Butler) tried to stab me ■with it, he threw it at me.” When Raddatz asked, “And then what did you do?”, Senior replied: “I shot him.” Senior maintained that, at the time of the shooting, Butler “was coming towards me.” Senior added that Butler had “reached down ... beside the curb like he was going to get another gun.” Further, Senior stated that “some other boys were around there shooting to[o].” The court interrupted and the following colloquy transpired: THE COURT: Officer, at this point he seems to be suggesting that it’s an all-out gun battle with numerous people shooting at one another, and he’s just one of the combatants, but you knew that wasn’t true; didn’t you? [DETECTIVE RADDATZ!: Well, his earlier statements were inconsistent with this and appeared to me that he was trying to minimize things as he went along to try to make up excuses. This part of his testimony was incredulous because of the way he told it happened initially was completely inconsistent with the way he was telling me is happening now.

THE COURT: What do you gather is his motive when he’s talking with you at this point in the tape? [DETECTIVE RADDATZ]: I think he knows that he’s already told us that he did this, and it’s going to have to go to trial, and he’s going to have to come up with some sort of defense. In his statement, Senior “forgot” who gave him the gun, nor did he know if it was someone who came to the area with him. Moreover, he could not identify the other people who were shooting. Afterwards, according to Senior, “somebody snatched the gun out of [Senior’s] hand.” When questioned about an inconsistency concerning the disposal of the gun, Senior responded: “My mind is all mixed up.” ⁴⁴⁴ On cross-examination, Raddatz noted that, prior to the taped interviews, Senior had stated he was alone during the incident.

The following exchange is noteworthy. [PROSECUTOR]: And you ask him about the shooting, and reading from your report, he also did not reveal where he got the gun. He said someone at the scene in a fight gave it to him. He gave details about how he hit one of the victims with the bat and the other one in the head, correct? [RADDATZ]: Yes, sir. [PROSECUTOR]: At that point you tell him that John Barnes told you he and Stewart, Jr. were the people that beat the Nunley brothers. And he said he did it all, he said Stewart, Jr. didn’t have anything to do with it, with the shooting or beating, he did it all, correct? [RADDATZ]: That’s correct. [PROSECUTOR]: This is still all prior to the taped statements? [RADDATZ]: Yes, sir. [PROSECUTOR]: Okay.

And at that point you say in your report he admitted that his son, Charles Henry Stewart, Jr., was present during the fight; however, he said that he [i.e., appellant] did not do anything. So this is the first time that he even acknowledges that Charles Stewart, Jr. was with him, correct? [RADDATZ]: Correct, after we told him that John Barnes had told us that we knew he was there. The defense attorney reiterated that the statements were trustworthy because they were against Senior’s penal interest. In particular, as to the statements of March 5, she maintained that Senior had “very little time to think of a way to falsify.” Claiming that all the statements were corroborated, she urged the court to admit the statements.

The court disagreed, characterizing Senior’s statements as “untrustworthy.” The court said: What the defense wants me to do is to take only that portion of [the statement], I shot the fella, and exclude ⁴⁴⁵ everything else, and that would leave in the jury’s mind that Senior is telling the truth. And the Court would be said to say earlier in this Matusky hearing that the statement made by Stewart, Sr. complies with the standards set forth in that case. I just don’t see how that’s possible. Stewart, Sr. is a gentleman of extraordinarily limited education.

Apparently he could not read. On the other hand, he is obviously very streetwise. Now, he is laboring, apparently, under the false belief that he can admit to his culpability, but at the same time minimize the consequences for himself and his son. So here you are having Charles, Sr. say yeah, I shot the boy, but it really was in self-defense.

Oh, yeah, I shot the boy, but he was going to use a bottle on me. Or rather yeah, I shot the boy, but he was going to use a knife on me. Then he wants to say that, well, I shot the boy, but after all, it was only part of a large gun battle and I’m just a mutual combatant. Relying on State v. Matusky, 343 Md. 467 , 682 A.2d 694 (1996), the court determined that Senior’s statements were not admissible.

It reasoned: Now, we believe that Mr. Stewart had a motive to misrepresent what the actual facts were. It is true that he was admitting shooting someone, but he also is asserting his own self-defense to that shooting. Secondly, he’s trying to mitigate the extent of what he had cause[d] to happen. We consider the character of the speakert his being held by the police.

Although not educated, he’s streetwise, he is trying his desperate best to get himself out of what he perceives his situation to be. Whether the statement was made spontaneously. Well, of course, this statement was not. * * * You know it’s entirely possible the Court thinks what’s going on in Senior’s mind is a very simple proposition. ⁴⁴⁶ Both of them are going to be charged with these heinous crimes, they are going to be tried separately. So when the son is tried, he, Senior can say that he [i.e., Senior] did it.

And when the son gets off, the son comes in the second trial and says that he, the son, did it. This statement and other statements made by the father, the Senior, in my judgment are not admissible under State v. Matusky, and the Court so rules. B. As we noted, appellant contends that the trial court improperly excluded Senior’s statements, which were exculpatory as to appellant. Relying on Gray v. State, 368 Md. 529 , 796 A.2d 697 (2002), decided after appellant’s trial, appellant contends that Senior’s statements constituted declarations against penal interest.

We begin our analysis with a review of Maryland Rule 5-804, pertaining to the admissibility of declarations against penal interest. In part, the rule 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: * ^ H: . (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 ⁴⁴⁷ 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 to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Maryland Rule 5-804 (2003) (emphasis added). As we recently explained, under Rule 5-804(b)(3), the trial court must determine whether: “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.” Roebuck v. State, 148 Md.App. 563, 578 , 813 A.2d 342 (2002), cert. denied, 374 Md. 84 , 821 A.2d 371 (2003). The proponent of the declaration has the burden “ ‘to establish that it is cloaked with “indicia of reliability” [, which] means that there must be a “showing of particularized guarantees of trustworthiness.” ’ ” West v. State, 124 Md.App. 147, 167 , 720 A.2d 1253 (1998), cert. denied, 353 Md. 270 , 725 A.2d 1068 (1999) (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.

Matusky, 343 Md. at 486 , 682 A.2d 694 ; see 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 , cert. denied, 366 Md. 249 , 783 A.2d 223 (2001). “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)). But, “there is no litmus test that courts must follow to establish adequate corroboration or trustworthiness.” Roebuck, 148 Md.App. at 580 , 813 A.2d 342 . Ultimately, it is “within the trial court’s