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State v. Matusky

Maryland Court of Appeals


September 18, 1996

STATE OF MARYLAND
v.
MICHAEL STEWART MATUSKY

Certiorari to the Court of Special Appeals (Circuit Court for Baltimore County). Thomas J. Bollinger, JUDGE.

Argued Before Murphy, C.j.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ. Rodowsky, J. dissents

The opinion of the court was delivered by: Raker

Opinion by Raker, J.

We granted certiorari in this case to determine whether the trial court correctly applied the declaration against penal interest exception to the rule precluding admission of hearsay evidence. We shall hold that the trial court interpreted the exception too broadly, erroneously admitting collateral portions of the hearsay declaration that did not directly incriminate the declarant.

I.

In May, 1993, Respondent Michael Stewart Matusky was indicted in the Circuit Court for Baltimore County on two counts of first-degree murder in connection with the stabbing deaths of Gertrude and Pamela Poffel. When the police initially investigated the crime in January, 1993, they questioned Matusky, as well as Pamela Poffel's estranged husband, Richard Dean White, and White's fiancee, Rebecca Marchewka. In these interviews, White told the police that he knew nothing about the crimes. He also told the police that he spent the entire day of the crime shopping with Marchewka. Marchewka corroborated White's account.

According to Marchewka's subsequent testimony at trial, three months after the initial police interviews, White told Marchewka in confidence that he knew who committed the crimes. White's declaration to Marchewka implicated Matusky as the murderer. Two days after White related his account to Marchewka, she contacted the police. Marchewka retracted her prior statements, which corroborated White's alibi, explaining that she lied at White's request because he feared revocation of his parole if the police knew he had actually been drinking at a bar. Marchewka then recounted White's statements to the police.

White and Matusky were both indicted on two counts of first-degree murder in violation of Maryland Code (1957, 1992 Repl. Vol., 1996 Cum. Supp.) Article 27, § 410. They were tried separately, and Matusky's trial was scheduled to take place before White's. Prior to the commencement of Matusky's trial, both the State and defense counsel sought a ruling on the admissibility of White's declaration to Marchewka. At the initial pre-trial hearing, the court denied the defense motion to exclude the declaration without hearing Marchewka's testimony, but informed the State that the declaration might later be excluded, depending on Marchewka's live testimony.

Immediately before trial, the court again considered the admissibility of the declaration. At this hearing, the court heard testimony from Marchewka, outside the presence of the jury. After hearing Marchewka's testimony as well as oral argument from counsel, the court again concluded that the declaration was admissible, stating that:

[Defense counsel's] argument with respect to the penal interests would be the thing that I really have to make the call on, talking here about admissibility not the weight; the jury will decide that. I find, from a reasonable person standard, as [the State's Attorney] articulated, would know that there is something against your pecuniary, proprietary or penal interests by discussing a homicide or violent act and then driving someone to the place where that act was to be carried out and driving them away, then giving a statement to the police which was a truthful statement; so, assuming the declarant is unavailable, in accordance with the other standard, I am prepared to rule that the statements are admissible.

Matusky was tried before a jury in January, 1994. White did not testify at Matusky's trial because he asserted his Fifth Amendment privilege. The court therefore found that White was unavailable. *fn1 Marchewka, the State's key witness at trial, gave the following testimony regarding White's statements to her:

[STATE'S ATTORNEY]: Did [White] say anything to you on the ride home [from the bar]?

: He said that he was very upset and unhappy.

[STATE'S ATTORNEY]: Did he appear upset to you?

: Yes, he did.

[STATE'S ATTORNEY]: Could you tell if he had been drinking?

: Yes, he had been drinking.

[STATE'S ATTORNEY]: What happened next. . .

: He laid down in the bed and told me that he had something that he wanted to tell me but he couldn't and I asked him why and he said because it would hurt me. And I asked him to tell me any way.

[STATE'S ATTORNEY]: When you asked him to tell you did he, in fact, tell you something?

[DEFENSE COUNSEL]: Objection, Your Honor.

[THE COURT]: Objection noted for the record and overruled.

: Yes, he did.

[STATE'S ATTORNEY]: What did he tell you, tell the ladies and gentlemen of the jury.

: He told me that he knew who killed Pam and Trudy [Gertrude] Poffel and I asked him who and he said Michael Matusky and I asked him how he knew and he said because he was in the car.

[STATE'S ATTORNEY]: Did he indicate whose car he was in?

: Michael's.

[STATE'S ATTORNEY]: Did he indicate to you how he got to Pam and Trudy's residence in Michael's car?

: He said he drove.

[STATE'S ATTORNEY]: Did he tell you where he had been prior to going to Pam and Trudy's?

: Yes, they had been at The Pit and at Wargo's [local bars].

[STATE'S ATTORNEY]: When you say they, who are you referring to?

: Michael [Matusky] and Richard [White].

[STATE'S ATTORNEY]: This is what Richard told you?

: Yes.

[STATE'S ATTORNEY]: Did he tell you what occurred at Wargo's?

: Yes, he said that he and Michael had a discussion, that Michael wants to kill Pam and Trudy because of what he did, what they did to Ted and he said he tried to talk Michael out of it.

[STATE'S ATTORNEY]: This conversation occurred prior to going to the Poffels?

: Yes.

[STATE'S ATTORNEY]: Did Richard say whether or not he went inside the house?

: He said no, he sat in the car.

[STATE'S ATTORNEY]: Did he tell you what he did after that?

: Said they drove away.

[STATE'S ATTORNEY]: When he told you that what was your reaction?

: I was very upset, it's hard for me to believe.

[STATE'S ATTORNEY]: When Richard saw how upset you were what did he say or do?

: He was concerned about who I was going to tell, what I was going to do with the information.

[STATE'S ATTORNEY]: Did he specifically ask you that?

: Yes, he did.

[STATE'S ATTORNEY]: When he asked you what you were going to do with that information what did you tell him?

: I told him at that time I did not know what I was going to do.

[STATE'S ATTORNEY]: When you told him that what did he say?

: He wanted--he asked me to take him to back to the bar.

[STATE'S ATTORNEY]: Prior to going back to the bar did you discuss with Richard his involvement and what happened?

: Yes, but he said that he didn't--he didn't do anything wrong, that he was just in the car and I tried to tell him that he was considered an accomplice and he said no.

In addition to Marchewka's testimony, the State also presented evidence of a bloody shoeprint found at the crime scene. A police expert testified that the shoeprint was consistent with the size and style of a pair of shoes belonging to Matusky, although the expert could not declare a conclusive match between Matusky's shoe and the shoeprint. No other physical evidence connected Matusky to the crime scene.

Matusky testified in his own behalf and denied any involvement in the crimes. Contrary to Marchewka's account, he testified that he did not drive to the Poffels' home with White on the night of the murders. He also denied harboring any animosity toward the Poffels for the death of Ted Poffel, instead attributing Ted Poffel's suicide to his cocaine addiction. Matusky also suggested that White had a much stronger motive to kill the Poffels. Matusky testified that White, who was Pamela Poffel's estranged husband and Gertrude Poffel's son-in-law, was angry with the Poffels for depriving him of money and investments. *fn2

The jury convicted Matusky on both counts of first-degree murder. The court sentenced him to two terms of life imprisonment without possibility of parole, to be served consecutively.

Matusky noted a timely appeal to the Court of Special Appeals, challenging the trial court's admission of White's hearsay declaration to Marchewka. The Court of Special Appeals reversed Matusky's convictions, concluding that the trial court should not have admitted White's declaration in toto. Matusky v. State, 105 Md. App. 389, 660 A.2d 935 (1995). Writing for the court, Judge Joseph Murphy, Jr., reasoned that:

Applying Simmons, Wilson, and Williamson to the facts of this case, we conclude that the trial judge should have excluded the statements in White's declaration that identified appellant as the killer and supplied appellant's motive for the murders. Those statements were simply not self-inculpatory as to White. . . . With respect to those portions of the declaration in which White described his role, cross-examination of White would have been of marginal utility to appellant. The same cannot be said, however, about other statements in the declaration. It is obvious that appellant had an important interest in cross-examining White with respect to those portions of the declaration in which White (1) identified appellant as the killer and (2) discussed appellant's motive for the murders. Those statements should have been redacted from White's declaration against interest.

Id. at 403, 660 A.2d at 941. We granted the State's petition for a writ of certiorari to answer the following question:

Under the hearsay exception for a declaration against penal interest, is the admissible statement the extended declaration or only those remarks that are individually self-inculpatory?

II.

The State contends that the outcome of this case is governed by our decision in State v. Standifur, 310 Md. 3, 526 A.2d 955 (1987). Under our holding in Standifur, the State argues, the hearsay exception for declarations against penal interest applies to both individually self-inculpatory statements and collateral statements. In addition, the State maintains that the Supreme Court decision in Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994), does not control our decision, because Williamson interprets Federal Rule of Evidence 804(b)(3), while the present case was decided under Maryland common law. *fn3 Finally, the State argues that even if the test articulated in Williamson applies, the circumstances in this case indicate that White was not merely attempting to shift blame to Matusky or to minimize his own culpability. Therefore, the State maintains, White's extended declaration to Marchewka should be admitted in its entirety.

Respondent argues that Williamson should govern the decision to admit a declaration against penal interest. Under both Williamson and prior Maryland cases, Respondent contends, at least those portions of the declaration shifting blame from White to Matusky should have been excluded. Respondent maintains that only those portions of White's declaration that individually implicated White should have been admitted.

III.

The declaration against penal interest exception to the rule precluding the admission of hearsay evidence is predicated on the assumption that the declarant would not make a statement adverse to his or her penal interest unless that declarant believed it to be true. State v. Standifur, 310 Md. 3, 11, 526 A.2d 955, 959 (1987). While this rationale supports admitting individual statements that are contrary to the declarant's penal interest, courts and commentators differ on whether the rationale applies to other portions of a hearsay declaration that do not directly implicate the declarant. *fn4

Wigmore, for example, proposed that if part of a hearsay declaration was self-inculpatory, then the entire declaration should be admissible, reasoning that:

Since the principle is that the statement is made under circumstances fairly indicating the declarant's sincerity and accuracy . . . it is obvious that the situation indicates the correctness of whatever he may say while under that influence. In other words, the statement may be accepted, not merely as to the specific fact against interest, but also as to every fact contained in the same statement. . . . All parts of the speech or entry may be admitted which appear to have been made while the declarant was in the trustworthy condition of mind which permitted him to state what was against his interest.

5 J. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1465, at 339-41 (Chadbourn rev. 1974 & 1996 Supp.). Other commentators took the opposite position, i.e., that none of the collateral portions of declarations against interest should be admitted. See B. Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule, 58 HARV. L. REV. 1, 60-61 (1944). *fn5

Professor McCormick, among others, advocated an intermediate approach, permitting the admission of some but not all collateral portions of declarations against penal interest. He suggested that courts separate the self-serving from the disserving portions of the declaration against interest, excluding only the self-serving portions. C. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE § 279(d), at 677 (E. Cleary ed., 2d ed. 1972). Thus, "collateral neutral" statements, i.e., those that neither incriminate the declarant nor shift blame to a third party, could be admitted under Professor McCormick's approach.

In State v. Standifur, 310 Md. 3, 5, 526 A.2d 955, 956 (1987), we considered the question of whether a declaration against the penal interest of an unavailable declarant, offered by the State against the accused in a criminal trial, was sufficiently reliable to qualify under the common law exception to the hearsay rule. We analyzed the alternative views of the scope of the declaration against penal interest exception discussed above, and adopted the intermediate position advocated by Professor McCormick. We articulated a test for trial judges to apply in deciding whether or not to admit a statement against interest. First, the proponent of the declaration must demonstrate that the declarant is unavailable. Id. at 12, 526 A.2d at 959. Once the proponent establishes unavailability, 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. *fn6 If the hearsay statement passes this part of the test, the trial judge must next 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., 526 A.2d at 962. *fn7

Even if a statement passes these threshold requirements for admissibility, however, Standifur also requires the trial judge to conduct a final inquiry. Standifur provides that

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.

310 Md. at 17, 526 A.2d at 962 (emphasis added). Thus, even after determining that the proffered evidence passes the first three requirements for admissibility, Standifur requires that the trial judge parse the entire declaration to determine which portions of it are directly contrary to the declarant's penal interest, and which collateral portions are so closely related as to be equally trustworthy.

Applying this test to the declaration at issue in Standifur, we concluded in that case that the entire declaration was inadmissible because it was not a declaration against penal interest. First, we determined that the State had not established that a reasonable person in the declarant's position would have believed the declaration to be self-incriminating, because "rather than confessing criminal misconduct, these statements appear to represent an attempt to satisfy the police while avoiding criminal involvement." Id. at 19, 526 A.2d at 963. Even if the declaration had passed this prong of the test for admissibility, however, we observed that it would have failed the reliability prong of the test. The declarant made the declaration to the police, during custodial interrogation, fearing revocation of his parole. Id. at 20, 526 A.2d at 963. He "apparently wished to curry favor with the authorities." Id. at 20, 526 A.2d at 963. Under these circumstances, we concluded that "the statement [was not]. . . sufficiently reliable to be admitted for the purpose of inculpating an accused in a criminal case." Id., 526 A.2d at 963. Because we concluded that the statement was not admissible as an exception to the hearsay rule, we did not consider "separate issues that are possibly generated by the Confrontation Clause." Id. at 20, 526 A.2d at 963.

Similarly, in Brown v. State, 317 Md. 417, 564 A.2d 772 (1989), we applied the Standifur test to determine the admissibility of two declarations against penal interest. In Brown, the hearsay declarant, Bruce, and a co-defendant, Williams, were both charged with unlawful possession of handguns. When Bruce pled guilty to the charge, he told the court under oath that the guns belonged to a third participant, Brown. Id. at 419-20, 564 A.2d at 773. Bruce also testified at Williams' trial, stating that Brown had asked him to hold the guns until Brown could sell them. Id., 564 A.2d at 773. At Brown's revocation of probation hearing, however, Bruce refused to testify to the source of the guns; therefore, the court permitted the state to introduce the transcripts of Bruce's prior testimony in evidence. Id. at 420-21, 564 A.2d at 773. Brown objected, contending that these statements were inadmissible hearsay.

Applying Standifur, we concluded that both of Bruce's prior statements were inadmissible collateral statements outside the scope of the declaration against penal interest exception. Id. at 423, 564 A.2d at 775-76. We explained that:

The first statement offered by the State--that given by Bruce at the time of the entry of his guilty plea--was collateral to his admission of guilt and carries with it precious little intrinsic or extrinsic indicia of reliability . . . This is not a situation where the admission of guilt by Bruce, in and of itself, furnishes any evidence against Brown. Rather, this is a case of a criminal, who has already admitted his guilt, being pressed by the judge who will soon sentence him, and by the prosecutor who may make a recommendation concerning his sentence, to disclose information that may lead to a subsequent criminal prosecution. Under these circumstances, Bruce may well have been motivated by the desire to curry favor with the authorities, and by the desire to reduce his own culpability--motives that we have identified as frequently present in these situations, and which combine to make 'inevitably suspect' statements of this type.

Id. at 423-24, 564 A.2d at 775. Similarly, we concluded that Bruce's second statement, given at Williams' trial, was also "wholly collateral," as well as unreliable because of Bruce's apparent motive to exculpate Williams. Id. at 425, 564 A.2d at 776.

IV.

A.

Applying the Standifur analysis to the facts of the instant case, we conclude that the trial court should not have admitted Marchewka's testimony in its entirety. *fn8 We shall assume, arguendo, that the trial court correctly determined that White's declaration was in fact adverse to his penal interest, *fn9 and that a reasonable person in White's circumstances would have realized that his declaration was contrary to his penal interest. Standifur also required, however, that the trial court parse the hearsay declaration to admit only those individual statements that were contrary to White's penal interest, along with the additional portions that were "so closely connected with it as to be equally trustworthy[.]" Standifur, 310 Md. at 17, 526 A.2d at 962. This the trial court failed to do.

Based on our review of the record, we agree with the Court of Special Appeals that the trial court erroneously admitted Marchewka's testimony in toto rather than analyzing the declaration statement by statement to determine whether collateral portions of White's account should be redacted. As the intermediate appellate court concluded, the trial court should have redacted those portions of White's declaration identifying Matusky as the murderer and suggesting Matusky's motive for the crime. 105 Md. App. at 403, 660 A.2d at 941. These portions of the declaration did not directly incriminate White. Moreover, these non-incriminating statements are not as trustworthy as self-incriminating statements, because they serve to shift blame from White to Matusky. Because the trial court failed to properly analyze White's hearsay declaration, we agree with the Court of Special Appeals that Respondent's convictions must be reversed.

B.

For further guidance on remand, we observe that the Standifur test also requires the trial court to consider "whether there are any other facts or circumstances, including those indicating a motive to falsify on the part of the declarant, that . . . cut against the presumption of reliability normally attending a declaration against interest." Id., 526 A.2d at 962. The trial court's assessment of the declaration's reliability is a fact-intensive determination which we shall not ordinarily reverse unless it is clearly erroneous. See Wamsley v. Wamsley, 333 Md. 454, 462, 635 A.2d 1322, 1326 (1994); see also Garcia, 897 F.2d at 1421; Alvarez, 584 F.2d at 701. The trial court below did not discuss on the record any of the factors undermining the reliability of White's statement. If, on remand, the trial court concludes that White's declaration was unreliable, then none of Marchewka's testimony should be admitted under this hearsay exception.

V.

A.

Because the case on remand will be governed by the Maryland Rules of Evidence, we shall next address the effect of Maryland Rule 5-804(b)(3) on the scope of the declaration against penal interest exception. See supra note 3. In Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994), the Supreme Court considered the admissibility of an extended hearsay declaration under Federal Rule 804(b)(3), which closely corresponds to Maryland Rule 5-804(b)(3). The police arrested the hearsay declarant, Harris, after discovering nineteen kilos of cocaine in Harris's car during a traffic stop. Id. Following his arrest, Harris gave a statement to the police that implicated Williamson as the head of a drug distribution scheme. Harris's statement was also self-incriminatory, albeit implicating him in a more minor role as a drug courier. *fn10 Id. Despite an offer of immunity, Harris refused to testify at Williamson's trial. Id. at 2434. The State introduced Harris's hearsay declaration through testimony of the investigating police officer. Williamson objected to the admission of Harris's hearsay declaration, but the trial court overruled the objection, concluding that Harris's statement was admissible as a declaration against penal interest. Id. Williamson was convicted of several drug trafficking offenses. On appeal, the Eleventh Circuit affirmed the convictions without opinion. 981 F.2d 1262 (11th Cir. 1992).

The Supreme Court reversed the convictions and remanded the case for a new trial, concluding that the trial court failed to properly analyze the admissibility of Harris's hearsay declaration. Id. at 2437-38. Justice O'Connor delivered the opinion of the Court, stating that:

The most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The [trial] court may not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else.

Id. at 2435. *fn11

The Court held that only those portions of the extended declaration that incriminate the declarant should be admitted. *fn12 114 S. Ct. at 2435. This approach requires the trial court to parse the entire extended declaration to admit only the self-incriminating portions. Id. at 2436-37.

As Justice O'Connor further explained, however, the trial court must consider the surrounding circumstances to determine whether an individual statement is self-incriminating:

Whether a statement is self-inculpatory or not can only be determined by viewing it in context. Even statements that are on their face neutral may be against the declarant's interest. . . . Statements that give other significant details about the crime may, depending on the situation, be against the declarant's interest. The question . . . is always whether the statement was sufficiently against the declarant's penal interest 'that a reasonable man in the declarant's position would not make the statement unless believing it true,' and this question can only be answered in light of all the surrounding circumstances.

Id. at 2436-37. *fn13 Accord United States v. Sasso, 59 F.3d 341, 349 (2d Cir. 1995); United States v. Nagib, 56 F.3d 798, 804 (7th Cir. 1995); United States v. Canan, 48 F.3d 954, 959-60 (6th Cir. 1995); United States v. Rothberg, 896 F. Supp. 450, 453 (E.D. Pa. 1995); United States v. Sims, 879 F. Supp. 828, 832 (N.D. Ill. 1995); Ciccarelli v. Gichner Systems Group, 862 F. Supp. 1293, 1298-1300 (M.D. Pa. 1994); Smith v. State, 647 A.2d 1083, 1088 (Del. 1994); State v. Coates, 661 So. 2d 571, 580-81 (La. App. 1995); State v. Ford, 539 N.W.2d 214, 227 (Minn. 1995); Williams v. State, 667 So. 2d 15, 19 & n.1 (Miss. 1996); Cofield v. State, 891 S.W.2d 952, 956 (Tex. Cr. App. 1994); State v. Mason, 194 W. Va. 221, 460 S.E.2d 36, 44-45 (1995).

The Supreme Court's interpretation of Federal Rule 804(b)(3) in Williamson, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994), is not binding on the states, because it does not rely on federal constitutional principles. *fn14 Nonetheless, we find the analysis in Williamson persuasive, and we shall adopt it as part of Maryland law, in accord with a number of other states. *fn15 See, e.g., Smith v. State, 647 A.2d 1083, 1088 (Del. 1994) ("Although not bound by the Supreme Court's interpretation of F.R.E. 804(b)(3) in construing our identical [rule], . . . we find Justice O'Connor's reasoning to be persuasive and we therefore adopt it in construing the Delaware rule.") Accord State v. Coates 661 So. 2d 571, 580-81 (La. App. 1995) (same); Williams v. State, 667 So. 2d 15, 19 & n.1 (Miss. 1996); Cofield v. State, 891 S.W.2d 952, 956 (Tex. Cr. App. 1994) (same); State v. Mason, 194 W. Va. 221, 460 S.E.2d 36, 45 (1995) (adopting the Williamson test). Although Standifur essentially adopted the federal rule as Maryland common law, prior to adoption of the Maryland Rules of Evidence, Standifur was decided without the benefit of the Williamson decision. See Standifur, 310 Md. at 10-11, 526 A.2d at 958-59.

The central distinction between the Williamson approach and our approach in Standifur is that "proximity" between the self-inculpatory and "collateral" portions no longer guarantees admissibility. As the Delaware Supreme Court observed in Smith v. State, 647 A.2d 1083 (Del. 1994), in adopting Williamson :

There is no theoretical basis for the admission of neutral, collateral statements. Hearsay statements are generally inadmissible. . . . A hearsay declaration is admissible, usually under a specific exception only where the declaration has some theoretical basis making it inherently trustworthy. See Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) . Thus, absent some special indicia of reliability and trustworthiness, hearsay statements are inadmissible. Neutral, collateral statements enjoy no such guarantees of reliability and trustworthiness. Williamson, U.S. at , 114 S. Ct. at 2435.

647 A.2d at 1088 (citations omitted) (emphasis added). *fn16 Therefore, "when ruling upon the admission of a narrative under this rule, a trial court must break down the narrative and determine the separate admissibility of each 'single declaration or remark.'" State v. Mason, 194 W. Va. 221, 460 S.E.2d 36, 45 (1995) (quoting Williamson, 114 S. Ct. at 2437). The test for admissibility to be applied to each statement within a declaration is whether a reasonable person in the declarant's circumstances would have believed the statement was adverse to his or her penal interest at the time it was made.

As we have indicated, in this case, the trial court erroneously permitted Marchewka to testify to the entire conversation she had with White. On remand, if the State chooses to offer portions of Marchewka's declaration in evidence, under Maryland Rule 5-804(b)(3), the trial court should admit only those portions of White's communication to Marchewka that truly incriminate White. *fn17

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY BALTIMORE COUNTY, MARYLAND.

Dissenting Opinion by Rodowsky, J.

Filed: September 18, 1996

Rodowsky, J., dissenting.

I respectfully dissent from the holding of the Court set forth in Part IV.A of the majority opinion. That holding is that "the trial court should have redacted those portions of White's declaration identifying Matusky as the murderer and suggesting Matusky's motive for the crime." 1996 Md. LEXIS 99, *22, Md. at , A.2d at *fn1

The hearsay problem under consideration is plagued with semantic difficulties. In any given case the universe of the data is the whole of what the declarant had to say that is relevant to the charges pending against the accused. The task is to determine whether the universe is admissible against the accused in its entirety, partially, or not at all, as declarations against the penal interest of the declarant. Within this universe of data there can be gradations ranging from hard core, clear cut declarations against penal interest, through varying degrees of inculpatory matter, to the clearly exculpatory or, at least, self-serving statement. In my view a conceptual rule, phrased in terms such as "extended narrative," "statement," "confession," and "declaration," can only be understood when legal holdings are made on specific facts.

Preliminarily, I do not believe that the majority has given appropriate precedential weight to this Court's opinion in State v. Standifur, 310 Md. 3, 526 A.2d 955 (1987). Nor does Standifur differ substantially from the analysis presented in Parts I, II.A, and II.B of the opinion of Justice O'Connor, joined by five other justices, in Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994). Both Williamson and Standifur require consideration of all of the known facts and circumstances surrounding the obtaining of the universe of data in order to determine reliability, and the entire universe may be excluded as unreliable at that level of analysis. 114 S. Ct. at 2436-37; 310 Md. at 11-13, 526 A.2d at 959-60. Looking at portions of the universe, both opinions exclude matter that is self-serving or exculpatory of the declarant. 114 S. Ct. at 2434-35; 310 Md. at 12-15, 526 A.2d at 959-61. Both opinions would test the inculpatory nature of the portion of the universe under consideration by a reasonable person test. 114 S. Ct. at 2435, 2436-37; 310 Md. at 12-13; 526 A.2d at 959-60.

With respect to portions of the universe that are "collateral" or "related" to the core declaration against penal interest, both opinions seem to take substantially the same approach. Williamson directs a "statement" by "statement" analysis of the portions under the reasonable person test. 114 S. Ct. at 2436-37. Under Standifur, the hard core declaration against penal interest "and those related statements so closely connected with it as to be equally trustworthy, are admissible as declarations against interest." 310 Md. at 17, 526 A.2d at 962. Of course, what makes the "closely connected" statements "equally trustworthy" is that a reasonable person would have perceived them as contrary to penal interest. Id.

Consequently, the majority inaccurately presents Standifur when it states that "the central distinction between the Williamson approach and our approach in Standifur is that 'proximity' between the self-inculpatory and 'collateral' portions no longer guarantees admissibility." 1996 Md. LEXIS 99 at *31, Md. at , A.2d at . "Proximity," denotes spacial nearness, presumably in the written presentation of the universe under consideration. Webster's Third New International Dictionary 1828 (1976). Nowhere in Standifur does the word, "proximity," appear. *fn2 Proximity is not the test for admissibility under Standifur, as shown above.

Even if there are differences between Maryland common law, as enunciated in Standifur, and the application of Federal Rule of Evidence 804(b)(3), and even if those differences justify adopting Williamson as expressing Maryland common law, there is nothing in Williamson that compels the exclusion of the identity and motive portions of White's conversation with Marchewka. Williamson involved a declarant who was arrested while possessing nineteen kilograms of cocaine in two suitcases in the trunk of a rental car driven by the declarant. 114 S. Ct. at 2433. He admitted knowing that the drugs were there. Id. In his post-arrest statements to Drug Enforcement Administration agents, he said that he was transporting the cocaine for the accused, Williamson, who, in another vehicle, had been preceding the declarant and who had seen the traffic stop and the search of the vehicle driven by the declarant. Id. The quantity possessed by the declarant would support finding the declarant's intent to distribute. Id. at 2439. In Williamson, four justices, joining in a concurrence by Justice Ginsburg, found the blame-shifting to Williamson so self-serving as to render the universe wholly inadmissible. Id. at 2439-40. Five justices in Williamson, however, in three separate opinions, remanded for a "statement" by "statement" parsing of the universe.

Williamson does not say that the identity of a criminal confederate of the declarant must be excised from a declaration against penal interest. If that were the law, even the remainder of the hard core declaration against penal interest ordinarily would not be connected to the accused and likely would be inadmissible for lack of relevancy. Five justices in Williamson remanded for parsing the universe in order possibly to reach an admissible declaration against penal interest. That exercise would be pointless if an ultimate, expurgated version could not even mention the name of the accused in the very case in which the declaration was to be used.

In any event, even a statement by statement parsing of White's conversation with Marchewka results in the admissibility of the identification of Matusky and of his communication of his motive to White. They are important, integrated parts of White's declaration against penal interest. *fn3 In his conversation with Marchewka, White incriminates himself as an accomplice, or principal in the second degree, to the murders of Trudy Poffell and her daughter, Pam Poffell, and as an accessory after the fact to those murders. Knowledge that a murder was to be committed, or had been committed, is an element of either theory of criminal responsibility. 1 C. Torcia, Wharton's Criminal Law §§ 31 and 33 (15th ed. 1993). The knowledge element of the crimes admitted in White's declaration against penal interest is greatly reinforced by the inclusion of the parts of White's conversation with Marchewka in which Matusky is named as the person declaring an intent to kill and expressing the reason for having formulated that intent.

A little background is needed to place White's conversation in perspective. At the time of trial Marchewka had been employed for twenty-five years by AT & T. She was raising her teenage son and preteen daughter. White had been living with her in her home since March of 1989. The two had become engaged in 1991, although White was not divorced from his estranged wife, one of the victims, Pam Poffell. Through White, Marchewka had met Matusky. White and Matusky were "very close friends" who would see one another or go out "[a] couple times a week." The murders occurred on January 24, 1993. When the police interviewed White because he was the estranged husband of one of the victims, Marchewka falsely informed the police that White was shopping with her at the time of the murders. She did this because White was on parole, and he had told Marchewka that, at the time of the murders, he was drinking in a bar in violation of his parole. White's declaration against penal interest to Marchewka was made on Easter Sunday, April 11, 1993, after White had been drinking. The majority points to nothing indicating that the murder investigation had focused on White at that time, much less that he was suspected of being the actual killer.

The legal test as to what constitutes a declaration against penal interest is whether a reasonable person would perceive the statement to be incriminating. One way to test whether White's references to Matusky and to his motive are integral parts of the declaration against penal interest would be to look at a similar declaration that did not contain those references. In that analytical framework a prosecutor would be seeking to convict White of being a principal in the second degree to murder based on White's admission as a party opponent that White met someone in a bar whom White did not know, that that person said that he wanted to murder Trudy and Pam Poffell for reasons that were not expressed, and that White drove the stranger to the Poffell home in the stranger's car. Although our hypothetical illustration contains some evidence of knowledge, the knowledge element is greatly diminished from the standpoint of any weight that would be attributed to it. To a reasonable person, the expurgated version sounds more like the statement of a mentally disturbed individual than a declaration against penal interest.

Much the same argument that the majority of this Court today accepts was rejected by the Supreme Court of Virginia in Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219, cert. denied, U.S. , 116 S. Ct. 233, 133 L. Ed. 2d 162 (1995). In Chandler the Virginia court unanimously affirmed a death sentence imposed for a murder committed in the course of the armed robbery of a convenience store. The unavailable declarant, Bernice Murphy, was the girlfriend of the accused, Chandler. The witness was a special agent of the Virginia State Police who had taken a statement from Murphy as part of the murder investigation. 455 S.E.2d at 224. "In her statement, Murphy described riding in the car with Chandler [and others] to obtain the gun, and Chandler's discussion about 'going in, robbing the store and leaving.'" Id. Murphy remained in the car during the robbery and murder. Murphy described Chandler's statements made when he returned to the car, including, "'Why didn't the man open the register?' and 'He got shot over money that wasn't even his.'" Id.

Chandler argued to the Virginia court that under Williamson "only those portions of the statement which directly implicate Murphy are admissible" and that "Murphy's statements regarding [Chandler's] accounts of the robbery would be inadmissible." 455 S.E.2d at 225. The Virginia court first observed that Williamson "concerned the interpretation of the Federal Rules of Evidence" which were "not applicable here." Id. The court then held:

"Furthermore, in the present case, Murphy's recitations of statements made by Chandler showed her knowledge of and complicity in the criminal act and exposed her to liability as an accessory to the crimes. Accordingly, Murphy's entire statement is admissible as a declaration against penal interest."

Id.

Similarly, in the instant matter, White's statements that it was Matusky who communicated the intent to murder and the reason why "showed [White's] knowledge of and complicity in the criminal act and exposed [him] to liability as an accessory to the crimes."


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