Petition — Maryland v. Foster
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83-808
No. 83-
Uiice - Supreme Court, U.S.
FILED
In THE
NOV 14 1983
Supreme Court of the United, States ......
CLERK
Octoser TERM, 1983
STATE OF MARYLAND,
Petitioner,
V.
DORIS ANN FOSTER,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MARYLAND
STEPHEN H. Sacus,
Attorney General of Maryland,
DesoraH K. CHaAsanow,
Assistant Attorney General,
Seven North Calvert Street,
4th Floor, Munsey Building,
Baltimore, Maryland 21202,
Telephone: (301) 576-6300,
Attorneys for Petitioner.
JittyN K. Scuuwze,
Assistant Attorney General,
Of Counsel.
QUESTION PRESENTED FOR REVIEW
Did the exclusion of double hearsay testimony
regarding a witness’ threat to kill the victim deny Foster a
trial in accord with fundamental standards of due process
where her right to cross-examine the witness concerning the
threat was fully protected?
TABLE OF CONTENTS
Question Presented for Review .....eseeeeee% csoees deem
Opinion Below ......eeeeeceeeeseevees coccccccecl
Jurisdiction ...cccccccccccvvssceevveseces covecces
Statement of the Case .....eeeeeeeevees coccccscced
Argument ...cccccccccccccssescsccees cocccccced
Conclusion. ...cccccccssccsees eocccece occsee cee 19
Appendix ......- eocccvecece cocceee ...+ Apx. la-43a
TABLE OF CITATIONS
Cases
Chambers v. Mississippi,
410 U.S. 284 (1973).......-. coccccccccecce Oy PASM
Ellison v. Commonwealth, 219 Va. 404,
247 S.E.2d 685 (1978) *“e wp ewee#eenreeneeneeineeeeete##te#e#t eee 17
Foster v. State, No. 175, Sept. Term,
1981, and No. 35, Sept. Term, 1982,
461 A.2d 504 (1983) 2... cee e eee eeeeeeeeee L, passim
Green v. G a,
i |. rr rrr eet re Teer 3, 9, passim
Grochulski v. Henderson, 637 F.2d 50
ne << ekeeseevesccieces eeete ess ae euin
Lipinski v. New York, 557 F.2d 289
(2d Cir. 1977), cert. denied,
|) Ge es ta
~t is
Maness v. Wainwright, 512 F.2d 88
(Sth Cir. 1975)... ccccccccee
Moore v. State, 26 Md. App. 556,
cert. denied, 276 Md. 747 (1975)
Parisie v. Greer, 671 F.2d 1011
(7th Cir. 1982) ..ccccccccces
People v. Tate, 87 IIL 2d 134,
429 N.E.2d 470 (1981)........
Perry v. Rushen, _F.2d__
(9th Cir.), 33 Cr.L.Rptr. 2527,
August 26, 1983 ....cccccces
Quigg v. Crist, 466 F.Supp. 544
(D. Mont. 1978), aff'd,
616 F.2d 1107 (9th Cir.),
cert. denied, 449 U.S. 922 (1980)
State v. Cavallo, 88 N.J. 508,
443 A.2d 1020 (1982).........
State v. DeFreitas, 179 Conn, 431,
426 A.2d 799 (1980) .........
United States v. Beltempo,
cert. denied, U.S._,
102 S.Ct. 2963 (1982) ........
United States v. Benveniste,
564 F.2d 335 (9th Cir. 1977) ...
United States v. Goodlow,
rn rer. POTED , oc cceceweseneeneteee
United States v. Hinkson,
Page
16
11
17
16
14
16
16
-17
16
17
17
ee ee ee eee Ga SD 4c coed cevtieosnsoneenean
-iii-
Page
United States v. Hughes,
529 F.2d 838 (Sth Cir..1976) ....ccceeccvecccecves 1D
United States v. McDonald,
688 F.2d 224 (4th Cir. 1982),
cert. denied, US. ,
Fee Barts EO UlOOE) cc ccesses Pen slae (ine kenes . 15
Welcome v. Vincent, 549 F.2d 853
(2d Cir.), cert. denied,
a! By ree ee eee ew
Constitutional Provisions
Fifth Amendment,
United States Constitution ......cccceeercvccvces 2
Statutes
28 U.S.C. $1257(3) ...ccccccccces ecovccccccccesced
Rules
Federal Rule of Evidence 804(b)(3).......+06. cocccce 1S
Supreme Court Rule 17.10)... .. ce eeecececccccccee 19
CONTENTS OF APPENDIX
Opinion of the Court of Appeals,
Foster v. State, No. 175, Sept. Term,
1981, and No. 35, Sept. Term, 1982,
461 B.96 G06 GOES) wccccccoscccccccccccces ABE 1A
Opinion by Eldridge, J.,
concurring in the denial of
the Motion for Reconsideration........+.+.+.... Apx. 38a
No. 83-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
STATE OF MARYLAND
Petitioner
v.
DORIS ANN FOSTER
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MARYLAND
OPINION BELOW
The opinion of the Court of Appeals of Maryland,
Foster v. State, No. 175, September Term, 1981, and No, 35,
September Term, 1982, is reported at Md. , 461 A.2d
504 (1983). A copy of the majority and dissenting opinions
are reproduced in the Appendix hereto at la-38a. The opinion
of Eldridge, J., concurring in the denial of Petitioner's motion
+2-
for reconsideration, filed September 16, 1983, is reproduced
in the Appendix at 38a-43a.
JURISDICTION
The final judgment of the Court of Appeals of
Maryland, reversing Foster's conviction under the due process
clause of the Fifth Amendment to the United States
Constitution, was filed on September 16, 1983. This Petition
is filed within 60 days of that date. This Court's jurisdiction
is invoked pursuant to 28 U.S.C. §1257(3).
STATEMENT OF THE CASE
Proceedings Below
On February 1, 1982, Foster was convicted by a jury in
the Circuit Court for Cecil County, Maryland, of felony
murder, Because the State sought the death penalty, Foster
was entitled to select the sentencer. She elected to be
sentenced by the court, and the penalty of death was
imposed.
Foster filed a timely appeal to the Court of Appeals,
attacking the validity of her conviction and sentence. The
issues regarding the conviction v,ere:
-3-
1. Whether Foster's motion to
suppress evidence was
properly denied?
2. Whether hearsay evidence
proferred by Foster was
properly excluded?
3. Whether it was error to admit
lay opinion evidence regarding
the identity of handwriting?
4. Whether the evidence was
sufficient to sustain the
conviction for felony murder?
5. Whether the trial court
personally Knew the victim?
On June 7, 1983, Foster's conviction was reversed by the
Court of Appeals, Foster v. State, = Md. ___, 461 A.2d 504
(1983), Four judges joined in the court's opinion, holding that
the exclusion of the proffered hearsay testimony denied
Foster a trial in accord with standards of due process under
this Court's decisions in Chambers v. Mississippi, 410 U.S. 284
(1973) and Green v. Georgia, 442 U.S. 95 (1979). Three judges
dissented, stating that the admission of the proffered
testimony was not mandated by either State law or the due
process clause of the United States Constitution.
On July 7, 1984, the State filed a motion for
reconsideration, asking the Court of Appeals to reexamine its
holding that Chambers and Green required admission of the
excluded evidence. The motion was denied on September 16,
1983. One of the judges who joined the original opinion of the
court filed an opinion concurring in the denial of the motion
for reconsideration, stating that while he continued to view
the exclusion of the evidence as error, he had concluded that
this holding should rest on State evidence law rather than on
the United States Constitution.
Evidence Presented and Proffered at Trial
Doris Ann Foster was accused of murdering Josephine
Torres Dietrich (the victim), who lived in and managed a
motel in which Foster and her husband, Tommy Foster,
resided. The State's principal witness was Elizabeth Phillips,
Doris Foster's daughter. Phillips testified that on January 29,
1981, while she, Doris Foster and a friend, Tammy Rissler,
were driving toward the motel and drinking a consideravle
amount of beer, Foster began to talk about robbing a
woman. The friend refused to participate and was dropped
off. Foster and Phillips arrived at the motel, where they
-5-
continued to drink beer. After stating that she wanted to rob
and kill the victim, Foster went into the bathroom and came
out with a screwdriver. She and Phillips walked toward the
victim's office. Foster asked the victim to investigate a
noise in a vacant room. Foster and Phillips accompanied the
victim to this room, where Foster stabbed the victim. Foster
and Phillips returned to Foster's room and continued to drink
beer. Foster then stated that she had to kill the victim to
avoid being identified, and went back to the scene of the
stabbing. When Foster returned to her own room, she told
Phillips that she had stabbed the victim in the heart.
Phillips and Tommy Foster both testified that several
hours later, Doris Foster and Phillips picked up Tommy Foster
at work. Phillips told Tommy that Doris Foster had killed the
victim, and Tommy decided that the evidence had to be
removed, He cleaned up the room and carried the body to the
ear. Tommy, Phillips and Foster drove to the Chesapeake and
Delaware Canal, where they dropped the body after tying a
concrete block to it. They returned to the motel and took
money and several items of personal property from the
victim's room.
-6-
The state also introduced the testimony of Tammy
Rissler, who corroborated Phillips' account of the events
leading up to Rissler's departure from the car. The state also
introduced evidence that the victim folded her money
lengthwise and that, shortly after the murder, Foster was
seen in possession of large amounts of money folded
lengthwise.
Tommy Foster, who had admitted on direct examina-
tion that he had had several confrontations with the victim
over the payment of rent, was cross-examined on this
matter. He was asked whether he had threatened the victim
in early January and denied any recollection of having done
so.
Foster's defense was that Phillips or Tommy had
committed the murder. She testified on direct examination
that she had been in Pennsylvania at the time of the murder,
After the state refuted this on rebuttal, Foster testified that
she had lied to protect her daughter. She then claimed that
on the day of the murder, she was at the motel with Phillips
and Tommy, fell asleep, and saw the victim lying dead in the
grass when she awoke.
x
Foster also introduced a letter, dated January 30,
1981, the day after the murder, allegedly written to her by
Tommy, in which Tommy admitted that he killed the victim.
Tommy denied that he wrote this letter, and Phillips testified
that she did not believe it was his handwriting. However,
Foster also showed that on May 11, 1981, Tommy told a
police officer that he had written the letter and that its
contents were true. She also introduced a letter, dated June
19, 1981, written by Tommy to "The Attorney General, Cecil
County, Md.," in which he confessed to the killing. At trial,
Tommy admitted that he wrote this second letter, but
claimed that he had written it to protect Foster and that its
contents were not true.
Foster attempted to call Mrs. Helen Douglass, an
acquaintance of the victim who operated a nearby motel, to
impeach Tommy and to show that he had threatened to kill
the victim. Mrs. Douglass' testimony was proffered in a
chambers conference. She would have testified that the
victim called her on January 12, 1981, in a highly agitated
state, and told her not to take on the "Ansaras" (an alias used
by the Fosters) as tenants or employees. According to Mrs.
Douglass, the victim stated that "Mr. Ansara" would not pay
the rent and had threatened to kill her. Mrs. Douglass
produced a note that she had made after the conversation,
which read, "Do not rént to or hire Mr. or Mrs. Ansara - Bad
news." The court admitted the note into evidence but ruled
that Mrs. Douglass' testimony concerning the alleged threat
to kill was inadmissible hearsay. The court then offered
Foster the opportunity to call Tommy Foster as an adverse
witness and to use wide latitude in questioning him, but
Foster declined to do so,
ARGUMENT
This Court has stated that "the hearsay rule, which has
long been recognized and respected by virtually every State,
is based on experience and grounded in the notion that
untrustworthy evidence should not be presented to the triers
of fact." Chambers v. Mississippi, 410 U.S. 284, 298 (1973).
The states have recognized a number of exceptions to the
hearsay prohibition over the years, and in Chambers this
Court recognized that, in very limited circumstances, the due
process clause is offended when hearsay prohibitions are
applied "mechanistically to defeat the ends of justice." Id, at
302. Strict limits were imposed on the application of
Chambers, the Court requiring that the proffered defense
evidence be both "necessary" to the defense and have
"persuasive assurances of trustworthiness." Id.; see also Green
v. Georgia, 442 U.S. 95 (1979).
In Foster v. State, the Court of Appeals virtually
discarded these limits, opining that "the Supreme Court
indicated that rules of evidence could not be applied if, under
the facts and circumstances of the particular case, their
application deprived the accused of a fair trial." | Md,
at___, 461 A.2d at 512, Apx. 17a. The Court of Appeals went
on to apply this broad, sweeping statement to the double
hearsay proffered by Foster and, not surprisingly, found that
the exclusion of Mrs. Douglass' testimony denied Foster a fair
trial under its interpretation of Chambers and Green. A brief
discussion will show that the court's opinion can be sustained
only if this novel interpretation of Chambers and Green is
correct; that is, only if the due process clause does in fact
preclude states from applying the rules of evidence to
criminal defendants.
-10-
In both Chambers, 410 U.S. at 302, and Green, 442 U.S.
at 97, this Court carefully limited its holding to the "unique
circumstances" it found to exist; therefore a comparison of
the circumstances in Foster is crucial. Moreover, since
Foster's proffered witness did not hear the statement she
would have repeated in court, both hearsay levels must meet
the two requirements set forth in Chambers and Green.
As to the first level of hearsay, (Tommy Foster to the
victim): in Chambers and Green, state hearsay rules were
applied to exclude confessions to the murders on trial which
were made by State’s witnesses to close friends shortly after
those murders occurred. The confessions were classic
examples of statements against penal interest and this Court
also noted that the confessors had nothing to gain by making
the statements. Here, there is a threat, not a confession,
allegedly made not to a friend but to the victim, at least two
and one-half weeks before the murder, in connection with a
dispute over the payment of rent. As a threat rather than a
confession, it fails to qualify as a statement against penal
interest and further fails to be a statement by which the
maker could have anticipated no gain; he may well have
eli<-
hoped that it would so intimidate the victim that she would
stop asking for the rent. These differences between the
evidence in Chambers and Green on the one hand and Foster
on the other affect not only the reliability of the evidence
but also its necessity, for a threat to kill is far less probative
of guilt than is an after-the-fact confession to murder.
As to the second level of hearsay (the victim to the
witness), the Court of Appeals paid only lip service to the
requirement that it be supported by persuasive indicia of
reliability. Couching its consideration of this requirement in
terms of the excited utterance exception to the hearsay rule,
the court opined that the victim's statement was made
"spontaneously at a time when she was excited, and under
circumstances in which she had no reason to lie." 461 A.2d at
514, Apx. 20a. However, as the dissent points out, there was
no evidence as to when the victim made her statement
relative to this alleged threat; it may have been one minute,
one hour, or one month later. Since Maryland law admits only
those excited utterances which are made in response to a
startling occurrence and before there has been time for
reflection, Moore v. State, 26 Md. App. 556, 562-566, cert.
.<
-12-
denied, 276 Md. 747 (1975), it is clear that the majority was
once again relying on its view that under Chambers, state
rules of evidence cannot be applied to exclude evidence
offered by criminal defendants,
Finally, in both Chambers and Green this Court relied
heavily on the extensive evidence corroborating the
confessions which the accused sought to admit. In Chambers,
the confessions were corroborated by eyewitness testimony,
another sworn confession (the "sheer number of independent
confessions" was deemed persuasive), evidence that the
alleged confessor was seen with a gun shortly after the killing
and owned a gun similar to that used by the killer, and the
fact that the confessor had nothing to gain by making the
proffered statements. 410 U.S. at 300-301. In Green, this
Court noted that the corroboration of the confession was
ample, and indeed sufficient to support the murder conviction
and death sentence imposed on the confessor. 442 U.S. at
97. Here, the only true corroboration of Tommy's statement
was his June 19 letter confessing to the killing, a letter which
he repudiated at trial and testified was written out of a
~33-
desire to help,his wife. The only corroboration of the
victim's conversation with Mrs. Dietrich was Mrs. Dietrich's
note, which does not even mention a threat to kill the
victim. In sum, one level of hearsay was weakly corroborated
and the other was uncorroborated; clearly, the unique
circumstances making the evidence proffered in Chambers
and Green reliable are not matched in Foster.
The final "unique circumstance” present in Chambers
and Green but not present in Foster was the crucial nature of
the excluded evidence. 410 U.S. at 302; 442 U.S. at 97. In
Chambers and Green, the state courts excluded confessions to
the murder on trial made shortly after it occurred; here, the
excluded evidence was merely a threat made at least two and
one-half weeks before the murder. Obviously, a prior threat
by another to commit an unconsummated crime is far less
exculpatory of the accused than is a confession to the crime
| The Court of Appeals also relies on Foster's testimony that
her husband was present during the murder, but surely an
accused cannot secure the admission of hearsay by offering
her own testimony as its corroboration. Tommy's testimony
that he helped clean up and remove the body and shared in
the robbery proceeds certainly does not corroborate his
alleged threat.
=fée
made shortly after it has been committed. Moreover, in
Chainbers and Green the accused was not permitted to
confront the alleged confessor in court; here, the trial court
offered Foster the opportunity to call Tommy as an adverse
witness and cross-examine him regarding his alleged threat.
In short, none of the circumstances which led this Court to
the conclusion that due process had been offended in
Chambers and Green were present here.
A review of other cases applying the Chambers/Green
holding illustrates how far afield the Foster court has
strayed. Many courts have applied a "balancing test,"
weighing the interest of the accused against the state's
interest in its evidentiary rule. See, eg., Perry v.
Rushen, _P.2d__—(9th Cir.), 33 Cr.L.Rptr. 2527, August 26,
1983; Lipinski v. New York, 557 F.2d 289 (2d Cir. 1977), cert.
denied, 434 U.S. 1074 (1978) (upholding application of voucher
rule because it did not seriously impair the accused's ability
to present an effective defense). Here, of course, the state's
interest in excluding unreliable hearsay is strong, Chambers,
supra, at 298; and its application to this trial did not preclude
Foster from presenting her defense, but merely precluded her
~$$-
from bolstering it with unreliable evidence. Under these
circumstances, no constitutional error occurred.
The hearsay problem in Foster is factually similar in
its crucial aspects to United States v. Hinkson, 632 F.2d 382
(4th Cir. 1980) where the court upheld the exclusion of a
hearsay confession offered to exculpate a murder defendant.
The Gefendant in Hinkson sought to call a witness who
claimed that a defense witness had confessed the murder to
her. The court refused to apply Chambers and Green, holding
that those cases were not controlling because in Hinkson the
defendant was able to call the hearsay declarant to question
him about his alleged confession, and this "greatly
ameliorated the unfairness of [the exclusion of the
testimony]." Id. at 386. The Hinkson cou.t cited United
States v. Hughes, 529 F.2d 838 (5th Cir. 1976) where the
exclusion of hearsay admissions was upheld because there
were no indicia of reliability and the defendant was able to
cross-examine the alleged out-of-court confessor. See also,
United States v. McDonald, 688 F.2d 224, 232-233 (4th Cir.
1982), cert. denied, U.S. , 103 S.Ct. 726 (1983)
(Chambers, as codified in Federal Rule of Evidence 804(bX3),
-16-
requires that the declarant be unavailable, end that the
proffered statement be "truly" against penal interest and
corroborated by circumstances which "clearly establish the
trustworthiness of the statement."); United States v.
Beltempo, 675 F.2d 472 (2d Cir.), cert. denied, _—iU:.S.. .
102 S.Ct. 2963 (1982); Grochulski v. Henderson, 637 F.2d 50,
56 (2d Cir. 1980) ("Chambers and Welcome [v. Vincent, 549
F.2d 853 (2d Cir.), ‘cert. denied, 432 U.S. 911 (1977}} do not
countenance the setting aside of a state evidentiary rule...
simply because it seems fairer to the defendant to abrogate
the rule."); Maness v. Wainwright, 512 F.2d 88, 91 (Sth Cir.
1975) ("If Chambers was intended to cast a pall of
unconstitutionality upon all state voucher rules, it would have
established a new principle of constitutional law. Likewise, if
Chambers meant to suggest that due process is denied when
the exclusion of defense evidence pursuant to longstanding
rules of evidence results in a less persuasive defense, it would
also have established a new principle of constitutional law.");
Quigg v. Crist, 466 F.Supp. 544 (D. Mont. 1978), aff'd, 616
F.2d 1107 (9th Cir.), cert. denied, 449 U.S. 922 (1980); State
v. Cavallo, 88 N.J. 508, 443 A.2d 1020 (1982); People v. Tate,
~39-
87 IlL2d 134, 429 N.E.2d 470 (1981); State v. DeFreitas, 179
Conn. 431, 426 A.2d 799 (1980); Ellison v. Commonwealth,
219 Va. 404, 247 S.E.2d 685 (1978). In all of these cases,
exclusion of proffered defense evidence under state law did
not offend due process, and the same is true in this case.
On the other hand, the few cases which have found
that exclusion of defense evidence was a violation of due
process have been based on circumstances far more similar to
those in Chambers than the circumstances in Foster. See,
Welcome v. Vincent, 549 F.2d 853, 858-859 (2d Cir.), cert.
denied, 432 U.S. 911 (1977) (erroneous failure to permit cross-
examination of defense witness who had confessed to the
offense; court carefully confined its holding to "rare
situations of this sort"); United States v. Goodlow, 500 F.2d
954 (8th Cir. 1974) (strong corroboration found); see also
United States v. Benveniste, 564 F.2d 335 (9th Cir. 1977).
None of these cases supports the broad rule propounded by
the Court of Appeals in Foster.
2 Parisie v. Greer, 671 F.2d 1011 (7th Cir. 1982), also cited in
the Foster opinion, was vacated. 705 F.2d 882 (7th Cir.
1983).
-18-
Severe consequences to the criminal law of Maryland
and any other state whose courts elect to rely on Foster v.
State are readily anticipated. If criminal defendants cannot
be held to established rules of evidence, rulings of trial courts
on the admissibility of evidence will, by definition, be
arbitrary. This guarantees that an appellate court can then
affirm or overturn convictions in an equally arbitrary fashion
in any case in which defense evidence was excluded. Surely
the Chambers Court, which did not view itself as establishing
a new principle of constitutional law, could not have
intended, or indeed foreseen, such a result.
a3
-19-
CONCLUSION
For the foregoing reasons, the Court of Appesls'
decision on the constitutional question in this case is in
conflict with the applicable decisions of this Court.
Therefore, the Petition for Writ of Certiorari should,
pursuant to Supreme Court Rule 17.l{(c), be granted and the
judgment of the Court of Appeals reversed.
Respectfully submitted,
STEPHEN H. SACHS,
Attorney General of Maryland
DEBORAH K. CHASANOW,
Assistant Attorney General
Seven North Calvert Street
4th Floor, Munsey Building
Baltimore, Maryland 21202
Telephone: (301) 576-6300
Attorneys for Petitioner
JILLYN K. SCHULZE,
Assistant Attorney General
Of Counsel
la
Doris Ann Foster a/k/a Nuketa
Leah Ansara
v.
State of Maryland
No. 175, Sept. Term, 1981,
No. 35, Sept. Term, 1982
Court of Appeals of Maryland
June 7, 1983
x * * * * *
DAVIDSON, Judge.
On 1 February 1982, in the Circuit Court for Cecil
County, a jury convicted the appellant, Doris A. Foster
(accused), of felony murder, for “murder when engaged in
the perpetration of a robbery.” The trial court imposed the
death penalty. This appeal followed.
On appeal, the accused claims that the trial court
committed numerous prejudicial errors in the course of the
pretrial proceedings, the trial proceedings, and the
sentencing proceedings. More particularly, the accused
contends that the trial court erred in refusing to admit
exculpatory hearsay testimony critical to her defense.
Because we find that the trial court committed prejudicial
error by refusing to admit such evidence, we shall reverse
the conviction.
I
Background
At the trial, two conflicting versions of the circum-
stances surrounding the commission of the crime were
presented. Both direct and circumstantial evidence were
2a
produced by the State to show that on 29 January 1981,
the accused killed Josephine Torres Dietrich (victim) who
lived in and was the manager of the Maryland Manor
Motel (motel), a motel in which the accused and Tommy
Foster, her husband (husband), also resided. The direct
evidence was adduced primarily by the accused’s husband
and Elizabeth Phillips, the accused’s daughter (daughter),
who was 16 years old at the time of the murder. Their
testimony concerning the events of the evening of 29
January and the morning of 30 January, although
containing certain inconsistencies, was generally as
follows:
According to the accused’s daughter, at about 5 p.m. on
29 January, the accused, her daughter, and a friend left
the daughter’s grandmother’s apartment. While driving
back to the accused’s motel, the three women drank a
considerable amount of beer and the accused began to talk
about robbing a woman. The friend refused to participate
and was dropped off. Upon returning to the accused’s
motel room, the accused and her daughter continued to
drink beer. The subject again turned to robbery. The
accused said that she wanted to rob the victim and to kill
her.
Ultimately, the accused went into the bathroom and
came out holding a screwdriver. The accused and her
daughter walked toward the victim’s office. The accused
knocked on the door, told the victim that she heard noises
next door, and asked the victim to check ou them. The
victim accompanied the accused and her daughter to Room
One, a vacant room next to the accused’s room, and went
inside to check. As the victim moved toward the door to
leave, the accused started stabbing her. The daughter,
who did not want the accused to kill the victim, told the
accused that the police were coming. The accused and her
daughter left the room and went to the back of the motel,
where the accused threw the screwdriver into the woods.
The accused and her daughter returned to the accused’s
motel room where, after drinking more beer, the accused
3a
said that “she [the accused] had to kill her [the victim]
because she [the victim] knew who she [the accused] was.”
The accused picked up another screwdriver and went back
to the mote] room where the stabbing had taken place.
When she returned to her own motel room, she told her
daughter that she had stabbed the victim in the heart.
According to the accused’s husband and -.aughter,
several hours later at about 11:30 p.m. or midnight, the
accused and her daughter picked up the accused’s husband
at work. The daughter told him that the accused had
killed the victim. The husband decided that the evidence
had to be removed. He cleaned up the room, carried the
body into the car, and placed a concrete block and rope in
the car. The accused, her husband, and daughter then
drove to the Chesapeake and Delaware Canal where, after
the concrete block was tied to the body with the rope, the
body was dropped. When they returned to the motel, they
went to the victim’s room where they found money, a TV
set, and several other items that they took back to the
accused’s room.
Some circumstantial evidence was adduced by the State
to show that the accused had committed the crime. A
social worker testified that, on the afternoon of the murder
when the victim withdrew some cash from a bank, she
folded the money lengthwise. Various other witnesses
testified that shortly after 30 January they observed the
accused in possession of large amounts of money folded
lengthwise.
At the trial, a different version of the circumstances
surrounding the crime was presented by the accused. She
produced direct evidence to show that on 29 January her
husband and daughter killed the victim. The direct
evidence consisted of the testimony of the accused herself
and letters and statements written or made by her
husband. The accused’s testimony concerning the events of
the evening of 29 January and the morning of 30 January,
although inconsistent with her previous testimony at trial,
was as follows:
4a
On the evening of 29 January, the accused and her
daughter picked up the accused’s husband at work. After
returning to the motel, they drank some beer, and the
accused went to sleep. When she awoke, her daughter was
going in and out of the accused’s motel room. The accused
went outside and saw the victim lying on the grass. When
she asked her husband what had happened, he replied
that the victim was dead. The accused’s husband and
daughter then put the body in the car and took a cinder
block with them. When her husband returned, he and the
accused went into the victim’s room and took her money.
In a letter dated 30 January, allegedly written by the
accused’s husband to her,’ he in essence admitted that he
had killed the victim. In addition, in a letter postmarked
19 June 1981 addressed to “The Attorney General, Cecil
County, MD,” written by the accused’s husband,’ he not
only confessed that he killed the victim and was solely
responsible for her death, but also described in detail the
circumstances surrounding the murder.
According to the letter, after returning to the accused’s
motel room after work, the husband noticed that a light
was on in the vacant adjoining room. He decided that the
victim was there and went to tell her that he had the parts
necessary to fix a bathroom that she had asked him to
repair. At the time, he had a screwdriver in his hand.
When he entered the vacant adjoining room, the victim
lashed out at him, telling him he was in the wrong room;
that he should not make any repairs; and that she was not
going to pay him. Her screaming went on and on, and he
stabbed her to death. Ultimately, he removed her body
and disposed of it in the “bay.” Thereafter, he returned to
the accused’s motel room where she was still sleeping.
1 On 11 May 1981, the husband told a police officer that he
had written the 30 January letter and that its contents were
true. At trial, however, the accused’s husband denied that he
had written the 30 January letter.
? At trial, the accused’s husband admitted writing this letter.
He explained that he had lied in the leter in order to protect the
5a
The letter further said that the accused’s daughter must
have seen the murder because she was in the accused’s
room crying and was really frightened. The husband
enlisted the daughter’s help to make the adjacent vacant
room look as if it had been robbed. The daughter found a
large amount of money, which the husband took. There-
after, they returned to the accused’s motel room. Accord-
ing to the husband’s letter, “the accused was asleep during
all of this.”
At the trial, there was evidence that cast doubt upon the
credibility of each of the three primary witnesses, the
accused’s husband, her daughter, and the accused herself.
The husband’s confessions that he had committed the
murder seriously discredited his trial testimony con-
cerning the circumstances surrounding the commission of
the crime. Additionally, on cross-examination, the ac-
cused’s husband conceded that, although he himself had
been charged with the murder, he had not been pros-
ecuted. Rather, a plea bargain was arranged in which he
was allowed to plead guilty to obstruction of justice and
theft of property over $300 in exchange for his testimony
against the accused. Finally, there were certain dis-
crepancies between the testimony of the accused’s husband
and that of her daughter.
Additionally, there was evidence to discredit the
accused’s daughter’s version of the circumstances sur-
rounding the commission of the crime. On cross-
examination, the accused’s daughter conceded that Mary-
land State Troopers had told her that she could be
prosecuted for the murder and that the death penalty
could be imposed. She further testified that ultimately she
entered into an agreement that she would not be
prosecuted for the murder or any other related crime in
exchange for her testimony against the accused.*
* With respect to the basis of the agreement, the following
colloquy took place:
"Q. (Mr. Podalak, Assistant State’s Attorney] After they
told you about [the possible charges and penalties], you
6a
Moreover, although the accused’s daughter herself
testified at trial that the crime was a murder committed in
the course of a robbery, there was other evidence to show
that on the evening of the crime, she had described the
circumstances surrounding its commission quite differ-
ently. The accused’s husband testified that on 29 January,
after the accused and her daughter picked him up from
work and they returned to the accused’s motel room, the
accused’s daughter told him that the victim was dead.
According to the husband, the daughter then described the
circumstances surrounding the commission of the crime as
follows:
“She [the daughter] said that [the victim] was in
room No, 1 cleaning, and [she] and [the victim] and
[the accused] was in the room arguing about, I
believe, [the daughter] being at the motel because
[there was] some drinking going on, and [the
victim] didn’t particularly care for people coming
by the motel and drinking. And [the daughter] told
me that all of a sudden [the accused] snapped and
started stabbing [the victim].”
In addition, there were discrepancies between the tes-
timony of the accused’s daughter and her husband.
Finally, there was evidence to discredit the accused’s
veracity. Her prior convictions on bad check charges and
for burning of personal property were adduced. More
important, the fact that on each of five occasions, two of
entered into an agreement with them that you would
testify if they didn’t prosecute you, didn’t you?
“A. [accused’s daughter] No, that wasn’t the way it
happened.
“Q. You did eventually enter into an agreement with
them that they would not prosecute you if you testified,
isn’t that true?
“A. After they were convinced that, you know—
"Q. They felt you were telling them the truth?
“A. Yes.
“Q. Okay. And after that, they agreed not to prosecute
you, right?
“A. Yes.”
7a
them at trial, the accused offered different versions of the
circumstances surrounding the commission of the crime
seriously discredited her final version.
According to a police officer, on 1 February the aecused,
while being questioned by the police, was informed that
the victim had been robbed and was missing. In response
to questions, the accused offered an alibi, explaining that
on the night of the crime she was at the home of one of her
brothers.
After being arrested on 5 February, in response to
questions, she stated that another brother might have
been involved in the robbery. She also stated that she last
saw the victim at 2 p.m. on 29 January when she took her
husband to work.
Later, on 5 February, she volunteered to the police that
they were investigating a murder, not a missing person;
that her brother-in-law and one of her brothers had killed
the victim; and that she had seen the body which had been
taken to an area near the bridge leading to Chesapeake
City.
On 6 February, after being told that the body could not
be located in Chesapeake City, she suggested to the police
that they “go across the bridge and make a right and look
in the water,” the location at which the body was found.
At that time, she continued to insist that her brother and
brother-in-law had killed the victim.
At trial, the accused initially presented an alibi defense
different from that previously offered to the police. The
accused testified that at the time of the murder she had
been involved in a relationship with Robert Shade, and
was with him in Westchester, Pennsylvania, from the
morning of 29 January to the morning 31 January when
she returned to the motel. There, the accused’s husband
handed her a letter in which he confessed that he had
killed the victim. The accused then went to the victim’s
room and took $2500.
8a
When, in rebuttal, the State produced evidence to show
that Robert Shade had been incarcerated between 16
November 1978 and 10 April 1981, the accused explained
that she had lied in order to protect her daughter.
Thereafter, she offered her final version of the circum-
stances surrounding the commission of the crime —
namely, that on the night of the murder she, her daughter,
and her husband were at the motel; that she fell asleep;
that when she awoke, she saw the victim lying dead on the
grass; that her daughter and her husband disposed of the
body; and that when her husband returned, he and she
went into the victim’s room and took her money.
II
Exclusion of Hearsay Testimony
At the trial, the accused’s husband testified that on
various occasions he had had several confrontations with
the victim concerning his nonpayment of rent. On
cross-examination, the following colloquy took place:
“Q [Mr. Jones, accused’s attorney] Was there not
an occasion in early January where she was asking
you for the rent that was behind and in response
that you verbally threatened her. Do you recall
that experience?
“A [accused’s husband] No, I sure don’t.
“Q Do you deny that it happened?
“A I deny remembering it.”
Thereafter, the accused called Helen Douglass, a friend
of the victim who operated a motel nearby and who
frequently spoke to her on the phone. Upon an objection by
the State, the accused indicated that the witness’s
testimony was being proffered for the purpose of impeach-
ing the husband’s testimony and to show that at some
time in January the accused’s husband had threatened to
kill the victim. In a conference held in the judge’s
chambers, the proffered witness testified as follows:
“A (Mrs. Douglass} All right. That she had
called me on January the 12th. The reason I
red
9a
remembered is because I made a note of it. And I
was told by [the victim] in a highly agitated state,
that she said, ‘If either one of those people come to
your motel to rent or to be hired, don’t do it. They
are bad news.’ I found my note. I have my note with
me. It was in a box of things. I dug down through
it, and I found it... .
“Q (Mr. Jones} What else did {the victim] tell
you?
“A She told me she was afraid for her life, and
she was crying. She was in a highly agitated state.
I said, ‘. . . you do not have to put up with this.
Why don’t you call the police?’ And she said, ‘They
will not come. They won’t help me unless I’m dead.’
And I said, ‘I don’t really believe that.’ I said, ‘I
think they would help because there is such a thing
as assault. And if you’re in fear of your life, you can
call and ask—’ I advised her, because she was not
nearly as capable a person as I am in being able to
defend yourself verbally.
“Q What did she say specifically about which
one she was afraid of?
“A She was more afraid of the man.
“Q Did she say why?
“A She said, ‘He has threatened me. He will not
give me my rent,’ is what she said. Now, I don’t
know what she meant by, ‘He will not give me my
rent.’ I said, ‘Why don’t you have them evicted?’ I
said, ‘I have evicted many people for non-payment
of rent.’ It was a question of me trying to help her,
and she was almost in a hysterical state.
“On January — I can — This one conversation
worried me, and I thought she needed somebody
besides—
“Q Did she say anything else then about how he
threatened her or what he had said to her or just
that he had threatened her?
“A No, she said he had threatened to kill her.
These were the words. He had threatened to kill
her.” (Emphasis added.)
10a
The trial court found that the proffered testimony was
hearsay, and that there was “a necessity for it,” but that it
was not sufficiently reliable to be admitted. Additionally,
the trial court indicated that the accused could call her
husband and could cross-examine him on the question
whether he had threatened to kill the victim.
Relying upon Chambers v. Mississippi, 410 U.S. 284, 93
S. Ct. 1038, 35 L. Ed. 2d 297 (1973), and Green v. Georgia,
442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979), the
accused contends that the trial court erred in refusing to
admit the proffered hearsay evidence consisting of the
testimony of a friend of the victim to the effect that the
victim had told her that the accused’s husband had
threatened to kill the victim. The accused points out that
there was evidence adduced to show that her husband was
present at the motel at the time of the commission of the
crime; that he participated in an attempt to avoid
detection of the crime by cleaning up the room, and by
removing and disposing of the victim’s body; and that he
shared in the proceeds of the robbery. More important, the
accused adduced evidence in the form of letters to show
that her husband had twice confessed to the killing.
However, as a result of the exclusion of the proffered
hearsay testimony, she was unable to adduce evidence to
show that her husband had threatened to kill the victim.
The accused contends that the excluded testimony was
critical to her defense that her husband and daughter
killed the victim. She concludes that the application of the
hearsay rule, which prevented her from presenting a
portion of her defense, rendered her trial fundamentally
unfair and deprived her of due process of law.
In Chambers, the accused was charged with having
killed a victim. A person other than the accused (Mc-
Donald) made, but later repudiated a written, sworn,
voluntary confession that he had killed the victim. On
three separate occasions, McDonald had orally confessed
to three different friends that he had killed the victim.
At trial, Chambers defended on two grounds. He first
attempted to show that he did not shoot the victim.
lla
Additionally, he attempted to show that McDonald had
shot the victim. However, Chambers was only partially
successful in adducing testimony supporting his defense.
One witness testified that he saw McDonald shoot the
victim, while another testified that he saw McDonald
immediately after the shooting with a pistol in his hand.
In addition, Chambers tried to show that McDonald had
on four separate occasions confessed to the crime, once in
the sworn written confession giver ‘o Chambers’ attorney,
and three other times orally to friends.
At trial, the State had not called McDonald as a witness.
Chambers called McDonald and had his sworn extra-
judicial confession admitted into evidence. On cross-
examination, the State elicited the fact that McDonald
had repudiated his prior sworn written confession. In
addition, McDonald testified that he was not present at
the scene of the crime during the critical period, and that
he did not shoot the victim.
Chambers made a motion to examine McDonald as an
adverse witness which the trial court denied on the ground
of the “voucher” rule. Defeated in his attempt to challenge
directly McDonald’s renunciation of his sworn confession,
Chambers sought to introduce the testimony of the three
witnesses to whom McDonald had orally confessed that he
had shot the victim. The trial court sustained the State’s
objection to the proffered testimony of each of the three
witnesses on the ground that it was inadmissible hearsay.
Chambers was then permitted to present certain other
testimony from other sources discrediting McDonald’s
alibi. Nevertheless, Chambers was never permitted to
discredit McDonald’s renunciation of his sworn confession.
The United States Supreme Court found:
“As a consequence of the combination of Mis-
sissippi’s ‘party witness’ or ‘voucher’ rule and its
hearsay rule, [Chambers] was unable either to
cross-examine McDonald or to present witnesses in
his own behalf who would have discredited Mc-
12a
Donald’s repudiation and demonstrated his com-
plicity.
~ « * ” « x
Chambers defense was far less persuasive than it
might have been had he been given an opportunity
to subject McDonald’s statements to cross-
examination or had the other confessions been
admitted.” Chambers, 410 U.S. at 294, 93 S. Ct. at
1045 (emphasis added).
The Supreme Court recognized:
“The right of an accused in a criminal trial to due
process is, in essence, the right to a fair opportunity
to defend against the State’s accusations. The right
to confront and cross-examine witnesses and to call
witnesses in one’s own behalf have long been
recognized as essential to due process.
* * x * * *
Both of these elements of a fair trial are implicated
in the present case.” Chambers, 410 U.S. at 294-95,
93 S. Ct. at 1045 (emphasis added).
With respect to the voucher rule, the Supreme Court said:
“[AJls applied in this case, the ‘voucher’ rule’s
impact was doubly harmful to Chambers’ efforts to
develop his defense. Not only was he precluded
from cross-examining McDonald, but, as the State
conceded at oral argument, he was also restricted
in the scope of his direct examination by the rule’s
corollary requirement that the party calling the
witness is bound by anything he might say. He
was, therefore, effectively prevented from exploring
the circumstances of McDonald’s three prior oral
confessions and from challenging the renunciation
of the written confession.” Chambers, 410 U.S. at
296-97, 93 S. Ct. at 1046 (footnotes omitted).
With respect to the application of the hearsay rule, the
Supreme Court initially recognized that the rule is
grounded in the notion that untrustworthy evidence
13a
should not be presented to the triers of facts and that
extrajudicial statements are traditionally excluded be-
cause they lack indicia of reliability; they are not under
oath; the declaration is not subject to cross-examination;
and the unavailable declarant’s demeanor and credibility
cannct be assessed by the jury. The Court further
recognized that a number of exceptions to the hearsay rule
have developed over the years to allow admission into
evidence of hearsay statements made under circumstances
that tend to assure reliability, among which is the
declaration against interest, an exception founded on the
assumption that a person is unlikely to fabricate a
statement that is against his own interest. After pointing
out that courts in Mississippi applied this exception to
declarations against pecuniary interest but not to those
against penal interest, the Supreme Court said:
“The hearsay statements involved in this case
were originally made and subsequently offered at
trial under circumstances that provided con-
siderable assurance of their reliability. First, each of
McDonald’s confessions was made spontaneously to
a close acquaintance shortly after the murder had
occurred. Second, each one was corroborated by
some other evidence in the case — McDonald’s sworn
confession, the testimony of an eyewitness to the
shooting, the testimony that McDonald was seen
with a gun immediately after ihe shooting, and
proof of his prior ownership of a .22-caliber revolver
and subsequent purchase of a new weapon. The
sheer number of independent confessions provided
additional corroboration for each. Third, whatever
may be the parameters of the penal-interest
rationale, each confession here was in a very real
sense self-incriminatory and unquestionably against
interest. McDonald stood to benefit nothing by
disclosing his role in the shooting to any of his
three friends and he must have been aware of the
possibility that disclosure would lead to criminal
prosecution. Indeed, after telling Turner of his
involvement, he subsequently urged Turner not to
‘mess him up.’ Finally, if there was any question
l4a
about the truthfulness of the extra-judicial state-
ments, McDonald was present in the courtroom and
was under oath. He could have been cross-
examined by the State, and his demeanor and
responses weighed by the jury. The availability of
McDonald significantly distinguishes this case
from the prior Mississippi precedent, Brown v.
State [99 Miss. 719, 55 So. 961 (1911)], supra, and
from the Donnelly-type [v. United, 228 U.S. 243, 33
S. Ct. 449, 57 L. Ed. 820 (1913)] situation, since in
both cases the declarant was unavailable at the
time of trial.
Few rights are more fundamental than that of an
accused to present witnesses in his own defense. In
the exercise of this right, the accused, as is
required of the State, must comply with established
rules of procedure and evidence designed to assure
both fairness and reliability in the ascertainment
of guilt and innocence. Although perhaps no rule of
evidence has been more respected or more fre-
quently applied in jury trials than that applicable
to the exclusion of hearsay, exceptions tailored to
allow the introduction of evidence which in fact is
likely to be trustworthy have long existed. The
testimony rejected by the trial court here bore
persuasive assurances of trustworthiness and thus
was well within the basic rationale of the exception
for declarations against interest. That testimony
also was critical to Chambers’ defense. In these
circumstances, where constitutional rights directly
affecting the ascertainment of guilt are implicated,
the hearsay rule may not be applied mechanistically
to defeat the ends of justice.” Chambers, 410 U.S. at
300-02, 93 S. Ct. at 1048-49 (citations omitted)
(footnotes omitted) (emphasis added).
In sum, with respect to the hearsay rule, the Supreme
Court determined that, because the proffered hearsay
statement constituted evidence critical to the defense and
bore persuasive assurances of trustworthiness, the hear-
say statement should have been admitted. Moreover, in
determining whether the proffered hearsay testimony
7m
l5a
contained sufficient assurances of trustworthiness, the
Court considered a variety of relevant factors, including
the fact that the statement was made spontaneously to a
close acquaintance shortly after the murder; that the
statement was corroborated by some other evidence
including the declarant’s sworn confession; that the
statement was against interest; and that the declarant
was present in the courtroom.
The Supreme Court then held that under the facts and
circumstances of the case the application of two specific
rules of evidence — the voucher rule that prevented
cross-examination, and the hearsay rule that excluded
critical evidence — deprived the accused of a fair trial. In
reaching this result, the Supreme Court said:
“We conclude that the exclusion of this critical
evidence, coupled with the State’s refusal to permit
Chambers to cross-examine McDonald, denied him
a trial in accord with traditional and fundamental
standards of due process. In reaching this judg-
ment, we establish no new principles of con-
stitutional law. Nor does our holding signal any
diminution in the respect traditionally accorded to
the States in the establishment and implemen-
tation of their own criminal trial rules and
procedures. Rather, we hold quite simply that
under the facts and circumstances of this case the
rulings of the trial court deprived Chambers of a
fair trial.” Chambers, 410 U.S. at 302-03, 93 S. Ct.
at 1049 (emphasis added).
Thus, the Supreme Court indicated that rules of evidence
could not be applied if, under the facts and circumstances
of the particular case, their application deprived the
accused of a fair trial.
In Chambers, the Supreme Court expressly stated that
it was not deciding whe.her the application of a single rule
of evidence (i.e., the voucher rule or the hearsay rule)
would result in a denial of due process. That question was
determined in Green v. Georgia, 442 U.S. 95, 99 S. Ct.
2150, 60 L. Ed. 2d 738 (1979). There, after Green was
l6a
found guilty of murder, a second proceeding was held to
decide whether capital punishment should be imposed.
Green sought to prove that he was not present when the
victim was killed and had not participated in the murder.
He attempted to introduce testimony of a witness to the
effect that Moore, an accomplice previously convicted of
the victim’s murder, had told the witness that he had
killed the victim. The trial court refused to admit the
evidence on the ground that it was hearsay.
In a per curiam opinion. the Supreme Court said:
“Regardless of whether the proffered testimony
comes within Georgia’s hearsay rule, under the facts
of this case its exclusion constituted a violation of
the Due Process Clause of the Fourteenth Amend-
ment. The excluded testimony was highly relevant to
a critical issue in the punishment phase of the trial,
and substantial reasons existed to assume its
reliability. Moore made his statement spon-
taneously to a close friend. The evidence cor-
roborating the confession was ample, and indeed
sufficient to procure a conviction of Moore and a
capital sentence. The statement was against inter-
est, and there was no reason to believe that Moore
had any ulterior motive in making it. Perhaps most
important, the State considered the testimony
sufficiently reliable to use it against Moore, and to
base a sentence of death upon it. In these unique
circumstances, ‘the hearsay rule may not be
applied mechanistically to defeat the ends of
justice.’ Because the exclusion of Pasby’s testimony
denied petitioner a fair trial on the issue of
punishment, the sentence is vacated and the case is
remanded for further proceedings not inconsistent
with this opinion.” Green, 442 U.S. at 96-97, 99 S.
Ct. at 2151-52 (citations omitted) (footnotes omit-
ted) (emphasis added).
The Supreme Court concluded that under the facts and
circumstances of the case the application of a single rule of
evidence — the hearsay rule that excluded reliable
17a
evidence critical to the defense — deprived the accused of
a fair trial.
In Green, the Supreme Court established that a single
rule of evidence — the hearsay rule — could not be applied
if, under the facts and circumstances of the particular
case, its application deprived the accused of a fair trial.*
We shall apply this principle here.
* Some courts in other jurisdictions, applying the principle
stated in Chambers and Green to cases involving various facts
and circumstances, have found a denial of due process. E.g.,
United States v. Benveniste, 564 F.2d 335, 341-42 (9th Cir. 1977)
(exculpatory statement — hearsay); Welcome v. Vincent, 549
F.2d 853, 859 (2d Cir.) cert. denied, 432 U.S. 911, 97 S. Ct. 2960,
53 L. Ed. 2d 1084 (1977) (confession — voucher); United States v.
Goodlow, 500 F.2d 954, 958 (8th Cir. 1974) (confession —
hearsay); People v. Ireland, 38 Ill. App. 3d 616, 621-22, 348
N.E.2d 277, 281-82 (1976) (confession — hearsay). But see, e.g.,
United States v. MacDonald, 688 F.2d 224, 232-33 (4th Cir.
1982), cert. denied, _ U.S. , 103 S. Ct. 726, 74 L. Ed. 2d
951 (1983) (confession — hearsay); Lipinski v. New York, 557
F.2d 289, 294 (2d Cir. 1977), cert. denied, 434 U.S. 1074, 98 S.
Ct. 1262, 55 L. Ed 2d 779 (1978) (prior inconsistent statement —
voucher); United States v. Brandenfels, 522 F.2d 1259, 1264 (9th
Cir.), cert. denied, 423 U.S. 1033, 96 S. Ct. 564, 46 L. Ed. 2d 406
(1975) (confession — hearsay); Maness v. Wainwright, 512 F.2d
88, 91-92 (5th Cir. 1975), cert. dismissed, 430 U.S. 550, 97 S. Ct.
1593, 51 L. Ed. 2d 630 (1977) (exculpatory statement —
voucher); Quigg v. Crist, 466 F. Supp. 544, 551 (D. Mont. 1978),
aff'd, 616 F.2d 1107 (9th Cir. 1980) (threat — hearsay); State v.
DeFreitas, 179 Conn. 431, 454-55, 426 A.2d 799, 810 (1980)
(confession — hearsay); People v. Tate, 87 Ill. 2d 134, 145, 57 i'l.
Dec. 572, 578, 429 N.E.2d 470, 476 (1981) (confession —-
hearsay); Taggart v. State, 269 Ind. 667, 671, 382 N.E.2d 916.
919 (1978) (confession — hearsay); Ellison v. Commonwealth,
219 Va. 404, 411-12, 247 S.E.2d 685, 689-90 (1978) (confession
— hearsay).
Other courts, applying similar principles to cases involving
the exclusion of evidence on grounds other than the hearsay or
voucher rules, have similarly found a denial of due process. E.g.,
Washington v. Texas, 388 U.S. 14, 22-23, 87 S. Ct. 1920, 1925, 18
L. Ed. 2d 1019 (1967) (confession — accomplice disqualification);
Parisie v. Greer, 671 F.2d 1011, 1016 (7th Cir. 1982) (homo-
sexuality — embarrassment); Pettijohn v. Hall, 599 F.2d 476,
481 (1st Cir.), cert. denied, 444 U.S. 946, 100 S. Ct. 308, 62 L.
Ed. 2d 316 (1979) (identification — relevance); Hackett v,
18a
In this case, we are concerned with the admissibility of
testimony by a friend of the victim to the effect that the
victim had told her that the husband of the accused had
threatened to kill the victim. Thus, we are presented with
the compound question of the admissibility of each of two
extrajudicial statements — one by the accused’s husband
made to the victim, and the other by the victim made to
her friend.
In Maryland, the hearsay rule ordinarily does not
preclude admission into evidence of testimony concerning
an accused’s voluntary extrajudicial confession or incrimi-
nating statement. See, e.g., Vines v. State, 285 Md. 369,
381, 402 A.2d 900, 906 (1979); Bunn v. Warden, 242 Md.
39°, 400, 219 A.2d 37, 38 (1966); Schowgurow v. State, 240
Md. 121, 136, 213 A.2d 475, 485 (1965); icholson v. State,
38 Md. 140, 141, 154 (1873). An accused’s threat to kill the
victim is also admissible. See, e.g., Knowles v. State, 192
Md. 664, 669, 65 A.2d 179, 180-81 (1949); Frick v. State,
128 Md. 122, 128, 97 A. 138, 140 (1916); Cross v. State, 118
Md. 660, 662, 36 A. 223, 224 (1912). Similarly, an
extrajudicial confession by a person other than the accused
is admissible. E.g., Brady v. State, 226 Md. 422, 428-29,
174 A.2d 167, 170 (1961), aff'd¢, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963); Thomas v. State, 186 Md.
446. 452, 47 A.2d 43; 46 (1946). This Court had not
previously decided whether the hearsay rule precludes
from evidence testimony concerning a threat to kill the
victim made by a person other than the accused. Here,
however, we need not consider whether under Maryland
Mulcahy, 493 F. Supp. 1329, 1340 (D. N.J. 1980) (alibi defense
— timeliness); State v. Alford, 289 N.C. 372, 389, 222 S.E.2d
222, 233, vacated in part sub. nom. Carter v. North Carolina, 429
U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976) (confession —
severance). But see, e.g., Nick v. United States, 406 F. Supp. 1, 3
(E.D. Mo. 1975), aff'd, 531 F.2d 936, 937 (8th Cir. 1976)
(impeachment — sequestration); State v. Cavallo, 88 N.J. 508,
528-29, 443 A.2d 1020, 1030 (1982) (expert testimony —
unaccepted scientific premise).
These cases are not considered in detail here because the facts
upon which they depend are too diverse.
19a
law the hearsay rule would exclude such testimony
whether proffered by a person who heard the threat made,
or by a person to whom the threat was reported.
Regardless of whether the proffered testimony is inad-
missible because of Maryland’s hearsay rule, under the
facts of this case, its exclusion deprived the accused of a
fair trial in violation of the Due Process Clause of the
Fourteenth Amendment.
Here, the crux of the accused’s defense was that she had
not committed the murder, but rather that her husband
and her daughter had committed that crime. Thus, the
central issue in the case related to the credibility of the
accused, her daughter, and her husband. There was much
evidence to cast doubt upon the credibility of each of the
three primary witnesses. In essence, the jury was required
to determine whether to believe the husband’s and
daughter’s version of the facts that the accused had
committed the murder, the accused’s version of the facts
that her husband and daughter had committed the
murder, or neither version of the facts.
Although the accused was permitted to adduce some
evidence to show that her husband had killed the victim,
she was, nonetheless, precluded from presenting a portion
of her defense. In view of the fact that the accused bears
no burden of proof, but needs only to raise a reasonable
doubt in the minds of the jury, e.g., In re Winship, 397 U.S.
358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970);
State v. Evans, 278 Md. 197, 206, 362 A.2d 629, 634 (19786);
State v. Grady, 276 Md. 178, 181-82, 345 A.2d 436, 438
(1975), the proffered testimony that the accused’s husband
had threatened to kill the victim was a critical additional
piece of evidence tending to show that the husband had
killed the victim.° Under these circumstances, the ex-
5 There is no merit to the State’s contention that the accused’s
right to impeach her husband’s testimony was adequately
protected by the trial court’s offer to permit the accused to call
her husband as an adverse witness. The record above shows that
at the trial the husband had previously testified that he did not
remember making the threats. It was highly unlikely that the
20a
cluded testimony was highly relevant to the central issue
in the guilt phase of the trial. Indeed, as the trial court
found, it was necessary to the accused’s defense.
Moreover, sufficient indicia of reliability were present to
assure the proffered testimony’s trustworthiness. The
husband’s threat was made spontaneously during an
argument with the victim over the payment of rent, and
was a statement against interest. The victim’s extra-
judicial statement was made spontaneously at a time
when she was excited, and under circumstances in which
she had no reason to lie. Additionally, her extrajudicial
statement was made shortly before the murder to a close
acquaintance with whom she had previously exchanged
information about tenants. Both the accused’s husband’s
threat and the victim’s extrajudicial statement were
corroborated by other evidence — the accused’s husband’s
two written confessions, the accused’s testimony that her
husband was present at the time of the commission of the
crime, and the accused’s husband’s testimony that he
cleaned up the room in which the murder took place,
removed and disposed of the body, and shared in the
proceeds of the robbery. Finally, :f there was any question
about the reliability of either the husband’s or the victim’s
extrajudicial statements, the accused’s husband was
present in the courtroom, under oath, and was available
for cross-examination by the State before the jury. Thus,
the testimony rejected by the trial court bore persuasive
assurances of trustworthiness.
testimony could have been effectively impeached by further
questioning of the husband as an adverse witness. Moreover, the
accused was entitled to impeach this testimony by intrinsic
evidence of a prior inconsistent statement. E.g., State v. Kidd,
281 Md. 32, 46 n. 8, 375 A.2d 1105, 1114 n. 8, cert. denied, 434
U.S. 1002, 98 S. Ct. 646, 54 L. Ed. 2d 498 (1977); Moxley v. Siate,
205 Md. 507, 516, 109 A.2d 370, 374 (1954). Here, the only
extrinsic evidence of a prior inconsistent statement consisted of
the testimony of the victim’s friend that was excluded from
evidence by the hearsay rule. Thus, despite the trial court’s
offer, the accused was deprived of an effective opportunity to
impeach.
2la
Under the circumstances here, the accused’s con-
stitutional right to call a witness in her own behalf, a
right that directly affected the ascertainment of her guilt,
was implicated. We conclude that the hearsay rule
excluded evidence that was critical to the defense and that
bore persuasive assurances of trustworthiness. As a result
of this exclusion, the accused’s defense was far less
persuasive than it might have been had the husband’s
threat been admitted. Under the facts and circumstances
of this case, the exclusion of exculpatory hearsay evidence
deprived the accused of a fair trial and, therefore, of due
process of law. Accordingly, we shall reverse the judgment
of the trial court.
Ill
Sufficiency of the Evidence
Our reversal in this case rests upon trial error
ordinarily permitting remand for a new trial. Burks v.
United States, 437 U.S. 1, 15, 98 S. Ct. 2141, 2149, 57 L.
Ed. 2d 1 (1978). However, on appeal the accused has raised
an issue of evidentiary insufficiency that, if found, would
require reversal without remand for a new trial. Burks,
437 U.S. at 16, 98 S. Ct. at 2149-50. Consequently, it is
necessary that we comment upon this issue.
A
Presence
The accused contends that the evidence was insufficient
to sustain her conviction for felony murder because there
was insufficient evidence to establish an element of the
underlying felony of robbery — that the property taken
was taken from the victim’s “presence.” Although this
Court has recognized that robbery involves “ ‘the felonious
taking and carrying away of the personal property of
another from his person or in his presence by the use of
violence or by putting him in fear,” Hadder v. State, 238
Md. 341, 354, 209 A.2d 70, 77 (1965) (emphasis added), we
have not previously considered the scope of the term
“presence.”
22a
Courts in other jurisdictions that have considered the
scope of the term generally agree that “presence” involves
proximity and control. E.g., Cobern v. State, 273 Ala. 547,
551, 142 So. 2d 869, 871 (1962); Clements v. State, 84 Ga.
660, 664, 11 S.E. 505, 506 (1890); State v. Constantine, 342
A.2d 735, 737 (Me. 1975); Lancaster v. State, 554 P.2d 32,
34 (Okla. Crim. 1976). Indeed, courts and commentators
have described “presence” as requiring that the property
taken must have been close enough to the victim and
sufficiently under the victim’s contro] that, had the latter
not been subject to violence or intimidation by the robber,
he could have prevented the teking. E.g., Commonwealth
v. Homer, 235 Mass. 526, 533, 127 N.E. 517, 520 (1920);
Fields v. State, 364 P.2d 723, 726 ‘Okla.Crim. 1961); see,
e.g., W. LaFave & A. Scott, Criminal Law §94 at 696
(1972); 4 C. Torcia, Wharton’s Criminal Law § 473 (14th
ed. 1981); 67 Am. Jur. 2d Robbery §12 (1973); 77 C.J.S.
Robbery § 9 (1952). Thus, as stated as long ago as 1920, in
Commonwealth v. Homer, 235 Mass. 526, 533, 127 N.E.
517, 520 (1920):
“A thing is in the presence of a person, in respect
to robbery, which is so within his reach, inspection,
observation or control, that he could, if not
overcome by violence or prevented by fear, retain
his possession of it.’”
Courts applying this principle have consistently held that
property has been taken from the victim’s presence if it
was taken from a room in a building other than that in
which the victim was present, e.g., State v. Calhoun, 72
Iowa 432, 436, 34 N.W. 194, 196 (1887); Constantine, 342
A.2d at 737; from a car parked outside the building, e.z.,
Cobern, 273 Ala. at 551, 142 So. 2d at 871; State v. Hayes,
518 S.W.2d 40, 43 (Mo. 1975); Lancaster, 554 P.2d at 34;
Fields, 264 P.2d at 726, or from another building on the
premises, 2.g., Clements, 84 Ga. at 664, 11 S.E. at 506.
Here, there was evidence to show that the victim’s
property was taken from a room in a motel other than the
one in which the victim was present at the time of the
23a
murder. This evidence was sufficient to support an
inference that the victim’s money was close enough and
sufficiently under the victim’s control for her to have
prevented its taking had she not been killed. Thus, this
evidence, if believed, was sufficient to show that the
property was taken from the victim’s presence. Conse-
quently, the evidence was sufficient to show that a robbery
had in fact been committed.
B
In the Perpetration of a Felony
The accused next contends that the evidence was
insufficient to support her conviction for felony murder
because the murder and the robbery were not “clearly
connected in point of time, place, and causal relation.” She
points out that the murder and the robbery occurred at
different times and that “events transpired which sig-
nificantly interrupted the ‘continuity of action.’” She
concludes that under these circumstances there was
insufficient evidence to show that the murder was
committed “in the perpetration” of the robbery. Md. Code
(1957, 1982 Repl. Vol.), Art. 27, § 410.°
In support of this position, the accused relies upon only
two cases, State v. Adams, 339 Mo. 926, 933, 98 S.W.2d
632, 637 (1936), and Bizup v. People, 150 Colo. 214, 218,
371 P.2d 786, 788 (1962). In each of these cases, the
murder was committed while the perpetrators were
leaving the scene after the underlying felony (burglary
and robbery respectively) had been completed. Conse-
quently, a question arose as to whether the murder was
committed in the perpetration of the felony. In each of
these two cases, the court held that notwithstanding the
sequence of events the murder was committed in the
perpetration of the felony. Manifestly, these cases are
inapposite.
® Art. 27, § 410 provides in pertinent part:
“All murder which shall be committed in the per-
petration of .. . rebbery . . . shall be murder in the first
degree.”
24a
Here, the record shows that the underlying felony — the
robbery — was not completed until after the murder had
been committed, so that the question considered in Adams
and Bizup does not even arise. Moreover, evidence of the
killing constituted the only evidence adduced to show the
existence of force, an element essential to establish the
underlying felony of robbery. Under such circumstances,
in the absence of any contention that there was in-
sufficient evidence to support her conviction for robbery
because there was insufficient evidence of force, logic
dictates that the murder was committed in the per-
petration of the felony.
We are persuaded on the basis of the record before us
that the evidence was sufficient to sustain the conviction
for felony murder. Accordingly, we shall remand the case
for a new trial.
IV
Remaining Issues
In this case, our reversal and remand for a new trial
rests upon the fact that the accused was denied a fair trial
and, therefore, was denied due process of law. However,
some of the remaining issues raised on appeal by the
accused are likely to arise again at the new- trial.
Therefore, for the guidance of the trial court upon retrial,
we shall comment upon those issues.
A
Pretext Arrest
Here, the record shows that on 5 February the accused
was arrested in Delaware by Delaware arresting officers
accompanied by Maryland police officers. Prior to her
arrest, the Maryland police had informed the Delaware
arresting officers that the accused was then in Delaware;
that there was a Maryland fugitive warrant outstanding
against her, that the Maryland police wanted to talk to
her; and that the Maryland police wanted her arrested and
taken into custody. Moreover, at the time of her arrest,
25a
she was placed in handcuffs, taken to the police barracks,
and interviewed by a Maryland police officer. Most
important, on the morning of the arrest, the Delaware
arresting officer was assigned “to assist the Maryland
police.”
The Delaware arresting officer, however, testified that
he had a dual purpose in arresting the accused. he
conceded that one of his purposes was to arrest her
because there was an outstanding Maryland “fugitive
warrant.” However, he also stated that one of his purposes
was to arrest her because there were outstanding “Del-
aware bad check warrants.”
At the time of her arrest, the accused, however, had not
been served with copies of the Delaware bad check
warrants. Moreover, on 5 February, after her arrest, the
accused was charged and arraigned with respect to
unrelated Delaware offenses. Indeed, the accused was not
arraigned on the charges underlying the outstanding
Delaware bad check warrants until 23 February. UIl-
timately, however, the accused was tried and convicted on
the charges underlying the Delaware bad check warrants.
The accused contends that the trial court erred by
failing to suppress certain evidence obtained as a result of
a “pretext arrest.” More particularly, the accused contends
that her arrest on the outstanding Delaware charges was
a pretext to obtain evidence of the victim’s murder in
Maryland.
This Court has recognized that an arrest may not be
used as a pretext to search for evidence. E.g., State v.
Sedacca, 252 Md. 207, 220-21, 249 A.2d 456, 465 (1969);
see, e.g., Williams v. State, 6 Md. App. 511, 518, 252 A.2d
262, 266, cert. denied, 255 Md. 745 (1969), cert. denied, 397
U.S. 1036, 90 S. Ct. 1353, 25 L. Ed. 2d 647 (1970).
Additionally, this Court has stated that when an arresting
officer has two or more purposes for making an arrest, one
of which is to make a valid arrest for the commission of a
crime and the other of which is to obtain evidence of a
different crime, the duality of purpose will not, in and of
26a
itself, transform the arrest into a pretext arrest. E.g.,
Sedacca, 252 Md. at 221-22, 249 A.2d at 465; see, ¢.g.,
Cornish v. State, 215 Md. 64, 66-67, 137 A.2d 170, 172
(1957); see also, e.g., Scott v. State, 7 Md. App. 505, 529,
256 A.2d 384, 397 (1969) cert. denied, 256 Md. 747 (1970);
Williams, 6 Md. App. at 519, 252 A.2d at 266.
Here the record shows that the Delaware arresting
officer had as one of his purposes the effectuation of an
arrest on valid Delaware charges upon which the accused
was subsequently tried and convicted. There is nothing in
the circumstances surrounding the accused’s arrest that
indicates that it was a mere pretext to obtain evidence of
the Maryland crime.
B
Search and Seizure
Here, the record shows that before the accused was
arrested, the Delaware arresting officer had been informed
that the accused previously had been involved in various
serious, violent crimes, including robberies. The accused
was arrested in a small motel room in Delaware. At the
time of her arrest, she was standing near her bed, and was
approximately two feet away from a nightstand, the top
drawer of which was open approximately four inches. The
arresting officer patted down the accused in a search for
weapons, and then handcuffed her with her hands behind
her back. He then searched the area immediately around
her for weapons. In the partially open top drawer of the
nightstand, the arresting officer saw a large amount of
currency spread over the bottom of the drawer. He pulled
the drawer open to check further for weapons and then
continued to check the area immediately around the
accused. Ultimately, he determined that she was unarmed
and had no weapons directly available to her.
Thereafter, the accused asked the arresting officer to
inventory the money in the open drawer of the nightstand
so that she would know the exact amount. In the presence
of a Maryland police officer, the Delaware arresting officer
27a
counted the money. At that time, the Delaware arresting
officer was unaware of the money’s evidentiary value, and
took it solely to protect himself from later allegations of
theft. Subsequently, the Maryland police officer, having
noticed that the money had been folded lengthwise — the
same way that the victim had folded her money —
requested that the money be seized as evidence.
The accused contends that the trial court erred by
failing to suppress evidence improperly seized incident to
the accused’s arrest. In essence, the accused asserts that,
because she had been handcuffed after being arrested, it
was impermissible to search the nightstand drawer, an
area beyond her person.
In Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23
L. Ed. 2d 685 (1969), the United States Supreme Court
established the permissible scope of a search incident to an
arrest. There, it said:
“When an arrest is made, it is reasonable for the
arresting officer to search the person arrested in
order to remove any weapons that the latter might
seek to use in order to resist arrest or effect his
escape. Otherwise, the officer’s safety might well be
endangered, and the arrest itself frustrated. In
addition, it is entirely reasonable for the arresting
officer to search for and seize any evidence on the
arrestee’s person in order to prevent its con-
cealment or destruction. And the area into which
an arrestee might reach in order to grab a weapon
or evidentiary items must, of course, be governed by
a like rule. A gun on a table or in a drawer in front
of one who is arrested can be as dangerous to the
arresting officer as one concealed in the clothing of
the person arrested. There is ample justification,
therefore, for a search of the arrestee’s person and
the area ‘within his immediate control’ — con-
struing that phrase to mean the area from within
which he might gain possession of a weapon or
destructible evidence.” Chimel, 395 U.S. at 762-63,
89 S. Ct. at 2040 (emphasis added).
28a
This principle has recently been restated in New York v.
Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed.
2d 768 (1981), and has been applied by this Court. Howell
v. State, 271 Md. 378, 385-86, 318 A.2d 189, 191 (1974).
This Court has not previously considered whether a
search of an area beyond an arrestee’s person is per-
missible if made after the arrested person has been
handcuffed. Courts in some other jurisdictions that have
considered similar questions, recognizing that even after
an arrestee has been handcuffed there is a continuing
potential for harm, have generally agreed that under such
circumstances a search of an area from which possession of
a weapon or destructible evidence might be gained is
permissible. E.g., United States v. Quigley; 631 F.2d 415,
419 (5th Cir. 1980); United States v. Mason, 523 F.2d 1122,
1126 (D.C. Cir. 1975); United States v. Ciotti, 469 F.2d
1204, 1207 (3d Cir. 1972), vacated on other grounds, 414
U.S. 1151, 94 S. Ct. 907, 39 L. Ed. 2d 105 (1974); State v.
Noles, 113 Ariz. 78, 81-82, 546 P.2d 814, 817-18 (1976);
State v. Shane, 255 N.W.2d 324, 327-28 (lowa 1977); State
v. Cox, 294 Minn. 252, 257, 200 N.W.2d 305, 309 (1972);
State v. Fitzpatrick, 32 N.Y.2d 499, 508, 300 N.E.2d 139,
143, 346 N.Y.S.2d 793, 799, cert. denied, 414 U.S. 1033, 94
S. Ct. 462, 38 L. Ed. 2d 324, cert. denied, 414 U.S. 1050, 94
S. Ct. 554, 38 L. Ed. 2d 338 (1973); State v. Cherry, 298
N.C. 86, 97, 257 S.E.2d 551, 558 (1979), cert. denied, 446
U.S. 941, 100 S. Ct. 2165, 64 L. Ed. 2d 796 (1980); State v.
Austin, 584 P.2d 853, 856 (Utah 1978). But see, eg.,
United States v. Cueto, 611 F.2d 1056, 1062 (5th Cir.
1980); United States v. Berenguer, 562 F.2d 206, 210 (2d
Cir. 1977).
Under the circumstances here, it was reasonable for the
arresting officer to search for a weapon in a partially open
drawer located within two feet of the accused, even though
she was then handcuffed. The fact that the accused was
handcuffed necessarily restricted her freedom of move-
ment and, consequently, the area within her reach, but did
not necesarily eliminate the possibility of her gaining
access to the contents of the nightstand’s partially open
29a
drawer. Indeed, the partially open top drawer of the
nightstand — a natural place for a weapon to be hidden —
remained an area of easy access for the accussed,
particularly if she had been able to break free of restraint.
Thus, in order for the arresting officer to protect himself
and the Maryland police officer then present from
potential harm, it was necessary for the arresting officer
to search for weapons in the, nightstand drawer, an area
within the handcuffed accused’s reach. Moreover, the
arresting officer made no effort to search anywhere other
than the area immediately around the accused. Under
these circumstances, the search and seizure incident to the
accused’s arrest was reasonable, and the evidence seized
was properly admitted.
V
Conclusion
We have held that, under the facts and circumstances of
this case, the trial court’s application of the hearsay rule,
which excluded evidence that was critical to the defense
and that bore persuasive assurances of trustworthiness,
deprived the accused of a fair trial and, therefore, of due
process of law. Additionally, we have held that the
evidence was sufficient to sustain the accused’s conviction
for felony murder. Accordingly, we shall reverse the
judgment of the trial court and remand the case for a new
trial.
JUDGMENT OF THE CIRCUIT COURT FOR CECIL
COUNTY REVERSED.
CASE REMANDED TO THAT COURT FOR A NEW
TRIAL.
COSTS TO BE PAID BY CECIL COUNTY.
SMITH, Judge, concurring and dissenting.
I dissent from so much of the opinion in this case as
reverses the judgment of conviction upon the basis that
hearsay evidenc2 should have been admitted. I find no
case which requires — or suggests — that the evidence
here presented should be admitted.
30a
Let us begin by examining the definition of hearsay. E.
Cleary, McCormick's Handbook of the Law of Evidence,
§ 246, at 584 (2d ed. 1972), gives the following definition:
“Hearsay evidence is 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.”
McCormick further states in § 245:
"In order to encourage witnesses to put forth
their best efforts and to expose inaccuracies which
might be present with respect to any of the
foregoing factors, the Anglo-American tradition
evolved three conditions under which witnesses
ordinarily will be required to testify: oath, personal
presence at the trial, and cross-examination. The
rule against hearsay is designed to insure com-
pliance with these ideal conditions, and when one
of them is absent the hearsay objection becomes
pertinent.” Jd. at 581-82.
Certain exceptions to the hearsay rule have come into
our law. Indicia of reliability must exist in order for
evidence to be admitted under one of those exceptions. See
generally, D. Binder, The Hearsay Handbook (1975).
Professor Irving Younger in his lectures on evidence
might well ask the question, “Does it smell right?” One of
those exceptions is declarations against interest. Many
states have seen fit to restrict such admissions to
declarations against pecuniary or proprietary interest,
excluding declarations against penal interest. See McCor-
mick §§ 277-278. Maryland is among those which have
discarded the restriction so as to admit a declaration
against penal interest. See Dyson v. State, 238 Md. 398,
407, 209 A.2d 609 (1965), vacated on other grounds 383
U.S. 106, 86 S. Ct. 717, 15 L. Ed. 2d 617 (1960); Wi--gins v.
State, 235 Md. 97, 103, 200 A.2d 683, cert. denied 379 US.
861, 85 S. Ct. 123, 13 L. Ed. 2d 64 (1964); Brady v. State,
226 Md. 422, 174 A.2d 167 (1961), affirmed 373 U.S. 83, 83
3la
S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Thomas v. State, 186
Md. 446, 47 A.2d 43 (1946); Brennan v. State, 151 Md. 265,
134 A. 148 (1926),' and Harris v. State, 40 Md. App. 58,
62-63, 387 A.2d 1152 (1978).
Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038,
35 L. Ed. 2d 297 (1973), and Green v. Georgia, 442 U.S. 95,
99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979), upon which the
majority relies, are not applicable. In both cases what was
held admissible was a statement by another individual
that he had committed the crime for which the defendants
were on trial. As anyone can see, such a statement has
earmarks of reliability. That is a far cry from what we
have here.
Chambers was convicted of murdering a policeman. One
of his defenses was that another person, McDonald, had
shot the deputy in question. A lifelong friend of Mc-
Donald’s testified that he saw McDonald shoot the officer.
A second witness, a cousin of the officer, testified that he
saw McDonald with a pistol in his hand immediately after
the shooting. As Justice Powell put it for the Court:
“In addition to the testimony of these two wit-
nesses, Chambers endeavored to show the jury that
McDonald had repeatedly confessed to the crime.
Chambers attempted to prove that McDonald had
admitted responsibility for the murder on four
separate occasions, once when he gave the sworn
statement to Chambers’ counsel and three other
times prior to that occasion in private con-
versations with friends.” 410 U.S. at 289, 93 S. Ct.
at 1043.
Chambers asked the trial court to require McDonald to
appear. The State did not call him as a witness, so
Chambers did. He had McDonald’s sworn confession read
to the jury. The State responded by eliciting from
McDonald that he had repudiated his prior confession, and
that the only reason for it was that he had been promised
1 5 J. Wigmore, Evidence in Trials at Common Law § 1476,
at 354 n. 9 (rev. 1974), speaks of the opinion in Brennan as
“excellent.”
32a
he would not go to jail and would share in a tort recovery
Chambers would bring against the town which employed
the police officer. Chambers asked the court for permission
to examine McDonald as an adverse witness, but the court
refused, saying that he was hostile, but not adverse. On
appeal the Supreme Court of Mississippi upheld the trial
court’s ruling, finding, according to the Supreme Court,
“that ‘McDonald’s testimony was not adverse to appellant’
because ‘[nlowhere did he point the finger at Chambers.’
[Chambers v. State] 252 So. 2d [217] at 220 [1971].” 410
U.S. at 292, 93 S. Ct. at 1044.
Chambers then sought to introduce the testimony of the
three other witnesses to whom McDonald had admitted
that he shot the officer. The first one would have said
McDonald told him the night of the shooting that he shot
the officer in question. The State objected to the admission
of this testimony on the ground that it was hearsay. The
trial court sustained the exception. The second witness
testified out of the presence of the jury that while he,
McDonald and another were taking Chambers to the
hospital McDonald said that he shot the deputy. The
witness stated that one week later McDonald reminded
him of their prior conversation and urged the witness not
to “mess him up.” Again an objection was urged and
sustained on hearsay grounds. The third witness would
have said that he had been a friend and neighbor of
McDonald for about twenty-five years. The day after the
shooting he and McDonald walked out to a well near
McDonaid’s house and there McDonald told him that he
was the one who shot the officer. McDonald also told him
that he had disposed of the revolver. Several weeks after
the shooting this witness accompanied McDonald when he
purchased a new weapon. Hearsay again was the reason
for exclusion of the testimony.
Justice Powell described for the Court “Chambers’
predicament,” stating, “As a consequence of the com-
bination of Mississippi's ‘party witness’ or ‘voucher’ rule
and its hearsay rule, he was unable either to cross-
examine McDonald or to present witnesses in his own
33a
behalf who would have discredited McDonald’s repudi-
ation and demonstrated his complicity.” Jd. at 294, 93 S.
Ct. at 1045.
It was in the context of the above that the Court said,
“The right of an accused in a criminal trial to due process
is, in essence, the right to a fair opportunity to defend
against the State’s accusations.” Jd. The Court held
Chambers had a right to cross-examine McDonald. It said
that Mississippi’s “voucher” rule, which did not let a party
impeach his own witness, bore little relationship to the
realities of the criminal process. To the extent the
confession incriminated McDonald, it exculpated Cham-
bers: and, the retraction inculpated Chambers to the same
extent it exculpated McDonald. The voucher rule, as
applied, interferred with Chambers’ right to defend
against the State’s charges.
More relevant to this case is the Court’s discussion as to
the exclusion as hearsay of the testimony of the three
witnesses who heard McDonald confess. Justice Powell
said for the Court:
“The hearsay rule, which has long been recog-
nized and respected by virtually every State, is
based on experience and grounded in the notion
that untrustworthy evidence should not be pre-
sented to the triers of fact. Out-of-court statements
are traditionally excluded because they lack the
conventional indicia of reliability: they are usually
not made under oath or other circumstances that
impress the speaker with the solemnity of his
statements; the declarant’s word is not subject to
cross-examination; and he is not available in order
that his demeanor and credibility may be assessed
by the jury. California v. Green, 399 U.S. 149, 158
[90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489] (1970). A
number of exeeptions have developed over the
years to allow admission of hearsay statements
made under circumstances that tend to assure
reliability and thereby compensate for the absence
of the oath and opportunity for cross-examination.
Among the most prelevant of these exceptions is
34a
the one applicable to declarations against interest
— an exception founded on the assumption that a
person is unlikely to fabricate a statement against
his own interest at the time it is made. Mississippi
recognizes this exception but applies it only to
declarations against pecuniary interest.” 410 U.S.
at 298-99, 93 S. Ct. at 1047.
Justice Powell said for the Court that this “materialistic
limitation on the declaration-against-interest hearsay
exception appears to be accepted by most States in their
criminal trial processes, although a number of States have
discarded it.” 410 U.S. at 299, 93 S. Ct. at 1047. As we
have already noted, Maryland is among the states which
have discarded this rule.
It becomes important to look at the circumstances
existent in Chambers, which circumstances are absent in
this case. Justice Powell summarized them for the Court:
“The hearsay statements involved in this case
were originally made and subsequently offered at
trial under circumstances that provided con-
siderable assurance of their reliability. First, each
of McDonald’s confessions was made spontaneously
to a close acquaintance shortly after the murder
had occurred. Second, each one was corroborated by
some other evidence in the case — McDonald’s
sworn confession, the testimony of an eye-witness
to the shooting, the testimony that McDonald was
seen with a gun immediately after the shooting,
and proof of his prior ownership of a .22-caliber
revolver and subsequent purchase of a new weapon.
“The sheer number of independent confessions
provided additional corroboration for each. Third,
whatever may be the parameters of the penal-
interest rationale, each confession here was in a
very real sense self-incriminatory and unques-
tionably against interest. See United States v.
Harris, 403 U.S. 573, 584 [91 S. Ct. 2075, 2082, 29
L. Ed. 2d 723] (1971); Dutton v. Evans, 400 US.
[74], at 89 [91 S. Ct. 210 at 219, 27 L. Ed. 2d 213
(1970)]. McDonald stood to benefit nothing by
35a
disclosing his role in the shooting to any of his
three friends and he must have been aware of the
possibility that disclosure would lead to criminal
prosecution. Indeed, after telling Turner of his
involvement, he subsequently urged Turner not to
‘mess him up.’ Finally, if there was any question
about the truthfulness of the extrajudicial state-
ments, McDonald was present in the courtroom and
was under oath. He could have been cross-
examined by the State, and his demeanor and
responses weighed by the jury. See California v.
Green, 399 U.S. 149 [90 S. Ct. 1930, 26 L. Ed. 2d
489] (1970).” 410 U.S. at 300-01, 93 S. Ct. at
1048-49 (footnote omitted).
The Court went on to say:
“Although perhaps no rule of evidence has been
more respected or more frequently applied in jury
trials than that applicable to the exclusion of
hearsay, exceptions tailored to allow the intro-
duction of evidence which in fact is likely to be
trustworthy have long existed. The testimony
rejected by the trial court here bore persuasive
assurances of trustworthiness and thus was well
within the basic rationale of the exception for
declarations against interest. That testimony also
was critical to Chambers’ defense. In these cir-
cumstances, where constitutional rights directly
affecting the ascertainment of guilt are implicated,
the hearsay rule may not be applied mechan-
istically to defeat the ends of justice.” 410 U.S. at
302, 93 S. Ct. at 1049.
In Green, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738,
he and Moore were indicted together for the rape and
murder of a woman. Moore was tried separately, was
convicted of both crimes, and had been sentenced to death
at the time Green’s case reached the Supreme Court.
Green had also been so convicted and sentenced to death.
During sentencing Green sought to prove he was not
36a
present when the woman was killed and had not
participated in her death. According to the Court:
“He attempted to introduce the testimony of
Thomas Pasby, who had testified for the State at
Moore’s trial. According to Pasby, Moore had
confided to him that he had killed Allen, shooting
her twice after ordering petitioner to run an
errand. The trial court refused to allow intro-
duction of this evidence, ruling that Pasby’s
testimony constituted hearsay that was inad-
missible under Ga. Code § 38-301 (1978).” 442 U.S.
at 96, 99 S. Ct. at 2151 (footnote omitted).
It was in this context that the Court said that the
exclusion of the evidence “constituted a violation of the
Due Process Clause of the Fourteenth Amendment.” Jd. at
97, 99 S. Ct. at 2151. It said, “substantial reasons existed
to assume its reliability.” Jd. The Court further stated:
“Moore made his statement spontaneously to a
close friend. The evidence corroborating the con-
fession was ample, and indeed sufficient to procure
a conviction of Moore and a capital sentence. The
statement was against interest, and there was no
reason to believe that Moore had any ulterior
motive in making it. Perhaps most important, the
State considered the testimony sufficiently reliable
to use it against Moore, and to base a sentence of
death upon it. In these unique circumstances, ‘the
hearsay rule may not be applied mechanistically to
defeat the ends of justice.’ Chambers v. Mississippi,
410 U.S. 284, 302 [93 S. Ct. 1038, 1049, 35 L. Ed.
2d 297] (1973).” Id. at 97, 99 S. Ct. at 2151.
(footnote omitted).
It is important to see the clearly distinguishing features
between Chambers and Green on the one side and the case
at bar on the other. The Supreme Court had before it in its
cases confessions to close friends made by the murderers
almost immediately after the crimes had been committed.
It was the testimony of the friends as to these confessions
to them which was sought to be admitted. Here there is a
statement, not a confession, allegedly made by the
37a
murderer two and a half weeks before the murder. The
statement is to the victim, not a close friend. The victim
then allegedly related this statement to a business
acquaintance of hers. It is the testimony of this acquaint-
ce which is sought to be admitted, a long way from the
fity, “ion in both Chambers and Green, where murder was
cohfesy* Even these superficial observations demon-
strate ho¥ much further the testimony sought to be
admitted here? from that in Chambers and Green.
The factors which the Supreme Court relies upon to
demonstrate reliability in the hearsay are key elements to
compare here. In both Supreme Court cases the con-
fessions were made spontaneously and to close friends
shortly after the murder. Here the alleged threat was
made two and a half weeks before the murder. We are not
told when the victim made kr statement relative to this
alleged threat. We have no showing that it was made to a
confidant. The statement was in no way against the
interest of the declarant.
In Chambers there was ample evidence corroborating
the confessions, e.g., sworn confessions, eye witness
testimony, etc. Here there is a letter to the court, allegedly
written by the husband, confessing to the crime. He denies
writing the letter and he is supported in this statement
by the defendant’s own daughter who says that this letter
is not in the handwriting of the husband. The only thing
corroborating the hearsay testimony of Mrs. Douglass is
her note allegedly written immediately after her con-
versation with the victim. This note says nothing more
than that Douglass should not hire or rent to the Fosters
because they are “bad news.” It supports in no way threats
to kill the victim by the husband or anyone else.
In Chambers and Green each confession was self-
incriminating and against the declarant’s interest. Here,
although the husband’s alleged threat may have been
self-incriminating and against his interest, the statements
of the victim certainly were not in any way incriminating
or against her interest.
38a
It can be seen that almost none of the criteria set forth
by the Supreme Court in Chambers and Green is present
here. It is important to note that in Chambers the Court
concluded its opinion by stating:
“In reaching this judgment, we establish no new
principles of constitutional law. Nor does our
holding signal any diminution in the respect
traditionally accorded to the States in the estab-
lishment and implementation of their own criminal
trial rules and procedures. Rather, we hold quite
simply that under the facts and circumstances of
this case the rulings of the trial court deprived
Chambers of a fair trial.” 410 U.S. 302-03, 93 S. Ct.
at 1049.
The Court closed its opinion in Green, as we have already
stated, by speaking of “unique circumstances” and refer-
ring to Chambers. These statements show that it was not
the intention of the Supreme Court for these two cases to
be interpreted in a manner such that the states’ rules of
evidence, particularly as they relate to hearsay, would be
selectively emasculated.
Chambers and Green do not mandate the reversal here.
This evidence utterly fails to meet any test of reliability.
The majority has been unable to produce any case holding
evidence comparable to this should be admitted. Accord-
ingly, I would affirm the conviction.
I am authorized to state that Chief Judge MURPHY and
Judge RODOWSKY concur in the views here expressed.
Concurring Opinion by Eldridge, J.
Eldridge, J., concurring in the denial of the motion for
reconsideration:
I concur in this Court’s denial of the State’s motion for
reconsideration, as I continue to believe that the proffered
r
39a
hearsay testimony of Helen Douglas, as to what the
deceased victim told her, should have been admitted.
Nevertheless, upon further reflection during the pendency
of the motion for reconsideration, I have come to the
conclusion that our holding concerning the admissibility of
the testimony should not rest upon a constitutional
ground. Without intimating any disagreement with the
constitutional discussion in Judge Davidson’s opinion, |
simply believe that the constitutional question should not
be reached in this case. Instead, our holding that Helen
Douglas’s testimony was admissible should be based
entirely on this State’s common law. This is in accord with
our established policy that ordinarily a constitutional
question should be avoided if a case can properly be
decided upon a nonconstitutional ground.'
The Maryland law of evidence, unlike that in some
other jurisdictions, is largely uncodified. It has developed
on a common law basis, through the decisions of the
courts. Although Judge Smith in his dissenting opinion
correctly indicates that no prior Maryland case requires
the admission of the hearsay testimony concerning
Tommy Foster’s threats, this is not determinative of the
state law issue. As we have pointed out on many
occasions, very recently by Chief Judge Murphy for the
Court in Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442,
460, 456 A.2d 894 (1983), “the common law is not static;
its life and heart is its dynamism — its ability to keep
' Recent cases recognizing this policy include Rutherford v.
Rutherford, _. Md. __, __ n. 6, (majority opinion), —
(dissenting opinion), _.. A.2d __., —_.. (1983) [No. 104,
September Term, 1982, decided August 5, 1983); Avara uv.
Baltimore News American, 292 Md. 543, 554 n. 7, 440 A.2d 368
(1982); Employ. Sec. v. Balto. Lutheran H. S., 291 Md. 750, 754
n. 2, 436 A.2d 481 (1981); Town of Forest Heights v. Frank, 291
Md. 331, 336, 435 A.2d 425 (1981); Temoney v. State, 290 Md.
251, 259 n. 6, 429 A.2d 1018 (1981); Caplan Bros. v. Village of
Cross Keys, 277 Md. +3, 45, 353 A.2d 237 (1976).
40a
pace with the world while constantly searching for just
and fair solutions. .. .””
If, as the majority of this Court believes (see, p. ,
supra), considerations of fairness require that the hearsay
testimony be admitted under the circumstances of this
case, such a holding can rest on the common law of
evidence just as easily (if not more so) as on the Due
Process Clause of the Fourteenth Amendment. Fairness is
not a quality associated only with the due process clauses
of the federal and state constitutions. Rather, as the
above-quoted language from the Harrison case indicates,
the search for fairness is part of the dynamism of the
common law.
The proferred testimony regarding Tommy Foster’s
threats should not automatically be deemed inadmissible
because it does not fall within any of the traditional
categories of exceptions to the hearsay rule. Long ago
Judge Learned Hand, in a district court opinion adopted
by the Second Circuit, held that a particular hearsay
statement, which was not admissible under “any express
authority in point.” should not be rejected “because it
fulfills both the requisites of an exception of the hearsay
rule, necessity and circumstantial guaranty of trust-
worthiness.” G. & C. Merriam Co. v. Syndicate Pub. Co.,
207 F. 515, 518 (2d Cir. 1913). More recently, in Dallas
County v. Commercial Union Assur. Co., 286 F.2d 388,
397-398 (5th Cir. 1961), in an opinion by Judge John
Minor Wisdom, the United States Court of Appeals for the
Fifth Circuit held that a document was admissible not “as
* Accord: Boblitz v. Boblitz, 296 Md. 242, 274, 462 A.2d 506
(1983); Moxley v. Acker, 294 Md. 47, 51-52, 447 A.2d 857 (1982);
Williams v. State, 292 Md. 201,217, 438 A.2d 1301 (1981);
Felder v. Butler, 292 Md. 174, 182, 438 A-2d 494 (1981); Adler v.
American Standard Corp., 291 Md. 31, 42-43, 432 A.2d 464
(1981); Condore v. Prince George's Co., 289 Md. 516, 530-532,
425 A.2d 1011 (1981); Kline v. Ansell, 287 Md. 585, 590, 414
A.2d 929 (1980); Lewis v. State, 285 Md. 705, 714-715, 404 A.2d
1073 (1979); Pope v. State, 284 Md. 309, 340-342, 396 A.2d 1054
¢ gt Ea paae v. Western Maryland Ry., 247 Md. 95, 231 A.2d
( ),
4la
a ‘business record,’ nor as an ‘ancient document,’ nor as
any other readily identifiable and happily tagged species
of hearsay exception. It is admissible because it is
necessary and trustworthy, relevant and material. .. .”
Other cases have taken the same position. See Butler v.
Southern Pacific Company, 431 F.2d 77, 79-80 (5th Cir.
1970), cert. denied, 401 U.S. 945, 91 S. Ct. 1196, 28 L. Ed.
2d 325 (1971); United States v. Barbati, 284 F. Supp. 409,
411-412 (E.D.N.Y. 1968); People v. Interest of W.C.L., 650
P.2d 1302, 1304-1305 (Colo. App. 1982); State v. Let-
terman, 47 Or. App. 1145, 616 P.2d 505, 508-509, 12
A.L.R.4th 1009 (1980), aff'd 291 Or. 3, 627 P.2d 484
(1981). See also Thomas v. Owens, 28 Md. App. 442,
450-451, 346 A.2d 662 (1975); Letendre v. Hartford
Accident & Indem. Co., 21 N.Y.2d 518, 524, 289 N.Y.S.2d
183, 188, 236 N.E.2d 467 (1968).
The principle set forth in the G. & C. Merriam Co. and
Dallas County cases has been used to reverse and order a
new trial when the trial judge had refused to admit
hearsay evidence. For example, in Johnstone v. State, 92
Nev. 241, 548 P.2d 1362 (1976), the defendant was
charged with two murders. Two other men had previously
been convicted for their part in the same murders.
Johnstone maintained that he was not present at the time
of the murders, and he attempted at his trial to introduce
the testimony of a detective who had spoken to a married
couple staying at the motel where the murders took place.
This couple had told the detective that they had seen two
unkempt men prowling near the victims’ room. Although
it was inferable from this evidence that Johnstone was not
with the other two men at the time of the murders, the
trial court excluded the detective’s testimony on hearsay
grounds. The Supreme Court of Nevada reversed. While
holding that the statement was admissible on Nevada
statutory grounds, the court pointed out that the statute
endorsed the principles set forth by Judge Learned Hand
in the G. & C. Merriam Co. case and Judge Wisdom in the
Dallas County case. Recognizing that neither the absent
couple nor the detective had any motive to lie, the court
42a
held the reliability requirement had been met and that
the testimony should have been admitted.
The holdings in the above-discussed cases have been
embodied in the recently enacted Federal Rules of
Evidence, in Rule 803 (24). The provision in pertinent part
states:
(24) Other exceptions. A statement not speci-
fically covered by any of the foregoing exceptions
but having equivalent circumstantial guarantees of
trustworthiness, if the court determines that (A)
the statement is offered as evidence of a material
fact; (B) the statement is more probative on the
point for which it is offered than any other evidence
which the proponent can procure through reason-
able efforts; and (C) the general purposes of these
rules and the interests of justice will best be served
by admission of the statement into evidence. . . .”
According to the committee note regarding Rule 803 (24),
{t]he committee believes that there are certain
exceptional circumstances where evidence which is
found by a court to have guarantees of trust-
worthiness equivalent to or exceeding the guaran-
tees reflected by the presently listed exceptions,
and to have a high degree of probativeness and
necessity could properly be admissible.
The case of Dallas County v. Commercial Union
Assur. Co., Ltd., 286 F.2d 388 (5th Cir. 1961)
illustrates the point.”
See also 4 J. Weinstein & M. Berger, Evidence § 803 (24)
{01} (1981 ed.).
I am not prepared at this time to take the position that
any hearsay evidence is admissible which a trial judge
believes to be necessary and trustworthy. Rule 803 (24) of
the Federal Rules of evidence has, at least in this State,
led to some excesses with which I could not agree. My view
as to the admissibility of Helen Douglae’s testimony need
not and does not go beyond the type of hearsay evidence
involved in this case.
43a
As Judge Davidson’s opinion points out, in Maryland
hearsay evidence of an accused’s threat to kill the victim
has long been held admissible. I would hold that, in a
criminal case, hearsay evidence of threats made to the
victim by someone other than the defendant is admissible
if the evidence meets the requirements of necessity and
reliability. For the reasons set forth in Judge Davidson’s
opinion, the requirements of necessity and trustworthiness
were met in this case. Consequently, as a matter of state
evidence law, I believe that Helen Douglas’s proferred
testimony should have been admitted.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.