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