DocketNumber： 72, September Term, 1993
Judges： Murphy, Rodowsky, McAuliffe, Bell, Orth
Filed Date： 3/28/1994
Status： Precedential
Modified Date： 10/19/2024
(Retired) Specially Assigned.
I
On 6 January 1990 the body of Lawrence Berton Johnson was found on a parking lot in Prince George’s County beside a Toyota automobile. The car’s door was open and the engine was running. The manner of his death proved to be homicide and the cause of his death was a single gunshot wound to his head. Cash in the amount of $130 was on his person. Inside the car were numerous bags of cocaine, two pagers, $310 in cash and several pieces of paper bearing initials or names and phone numbers.
The police investigation of the crime led them to Anthony Brady Weston, Perry Wilson Lee and Ryan O’Neil Wilson.
The Circuit Court for Prince George’s County denied a motion for severance, and on 2 April 1991 Wilson and Lee were tried together by a jury. Each of them was found guilty on the conspiracy charge and on the accessory charge and not guilty on the remaining charges. Wilson attempted to appeal from the judgments entered against him, but his appeal was deemed defective by the Court of Special Appeals and dismissed. He resorted to post conviction procedures, was granted the right to note a belated appeal and exercised the right. The Court of Special Appeals affirmed the judgments. Wilson v. State, 95 Md.App. 680, 622 A.2d 810 (1993). We issued a writ of certiorari upon Wilson’s petition.
II
Detective Roger Irvin of the Prince George’s County Police Department arrested Lee at Lee’s home in Lanham, Maryland. Irvin transported Lee to the Department’s Criminal
Special Agent Douglas Reardon of the Virginia State Police took Wilson into custody at St. Paul’s College in Lawrence-ville, Virginia, where Wilson was a student. After advising him that he was being arrested for capital murder, Reardon interviewed Wilson in the office of the Dean of Student Affairs. Wilson made a statement which was reduced to writing and signed by him. Later Wilson was further interviewed by Reardon in the Sheriffs office. The statement made by Wilson at that time was not transcribed but Reardon made “just about verbatim” notes of what Wilson said. Wilson signed the notes and wrote “voluntary statement” thereon. Detective Daniel Smart of the Prince George’s County Police Department also obtained a statement from Wilson shortly after the interview by Reardon in the Sheriffs office. The statement was reduced to -writing and signed by Wilson.
There was a plenary hearing on pretrial motions filed by Wilson and Lee to suppress their respective statements. The trial court denied the motions on the ground that a preponderance of the evidence established that they were freely and voluntarily made. They were thus available for presentation to the jury for its consideration as substantive evidence in the event that the jury found beyond a reasonable doubt that they were voluntary.
At trial, Lee’s statement was admitted into evidence over Wilson’s objection. As recited to the jury by Irvin, Lee said:
On January 6th, 1990 me, Anthony [Weston], Ryan [Wilson] went out in my father’s gold Honda. Ryan had his father’s D.C. police gun. We were going to rob a dope dealer. Anthony had the gun. We went around Dodge Park Apartments. There was no one out so we decided to leave. When I saw a car enter the apartment myself and Ryan were walking on the sidewalk. Anthony was about 15 feet in the street. That’s when the car came back and Anthony said, “Are you looking?” I could not hear what the person said in the car. Then Anthony said, “Get on — get*318 the fuck out or on.” The car stood for 30 seconds, then pulled in and parked. A male got out the car. He then reached back in the car and hit the horn and turned to Anthony and said putting his hands in the air “I’m the biggest dealer around here.” Anthony then said, “No, fuck, you’re not”, and shot him. Anthony then ran. Me and Ryan walked away. I could not believe he had done that. I then got in my car, pick up Anthony, Ryan and talk about it and then dropped Ryan off and dropped Anthony off.
That narrative part of the statement was in Lee’s handwriting. The statement continued in question and answer form, and was reduced to writing by Irvin.
Question number one: “What is Anthony’s name?”
Answer: “Anthony Brady Weston.”
Question number two: “What is Ryan’s name?”
Answer: “Ryan O’Neil Wilson.”
Question number three: “Where does Anthony live?”
Answer: “It’s on Walkerton in Lanham, Maryland.”
Question number four: ‘Where does Ryan live?”
Answer: “It’s off of Hill Road somewhere. It’s the first left after from the townhouses.”
Question number five: “What day did this occur?”
Answer: “Friday night — Saturday morning.”
Question number six: “At approximately at what time did this occur?”
Answer: “About 5:30 to 6:00 in the morning a.m.”
Question number seven: “What car were the three of you • in?”
Answer: “It’s my father’s ’89 gold Honda, Maryland tag. I don’t know the number.”
Question number eight: ‘Who had the gun?”
Answer: “It was Ryan’s father’s gun, but Anthony had the gun.”
Question number nine: “Describe the gun.”
*319 Answer: “It’s a black gun with a brown handle, .38 Special with D.C. Cop written all over it.”
Question number ten: “How was Anthony carrying the gun?”
Answer: “It was under his jacket.”
Question number eleven: “Where did the three of you go on Saturday, January the 6th, 1990?”
Answer: “Dodge Park Road in Landover, Maryland.”
Question number twelve: “Why did the three of you go there?”
Answer: “To rob someone with cocaine.”
Question number thirteen: “How did the shooting occur?”
Answer: “Me and Ryan were walking down the sidewalk and we walked a couple of apartments down and came back. There were a couple people out there. They said that they did not have anything. We were leaving. Me and Ryan were on the sidewalk. Anthony was ten to fifteen feet behind us and he was in the street. That’s when a car came in. The car went down about three buildings and it looked like he was dropping somebody off. Meanwhile, we were calling Anthony and saying, ‘Come on, Anthony, let’s go.’ The car came back and Anthony said, ‘Are you looking for something?’ He said that the — he said that to the guy in the car. 1 couldn’t hear what the guy said. The car pulled in front of the building where he was shot at. The guy got out of the ear. He was rolling down his window. When he was doing this he reached back in the car and blew the horn three times. He was facing the building. Anthony was behind him. The guy turned around and threw his hands in the air and said, ‘I’m the biggest hustler around here.’ And Anthony said, ‘No, you’re not. I am.’ The whole time the gun was at his head. At first the guy hit the gun away and then Anthony shot the gun and then Anthony run down the street to the 25 Hour store. I walked to the car. Ryan left. He walked towards the store. I drove and picked up Ryan first and then Anthony. We talked driving home and I*320 asked Anthony why he did that. He didn’t say why he did it. I dropped Ryan off, then Anthony at their homes.” Question number fourteen: “What happened to the gun?”
Answer: “Anthony gave it to Ryan. I don’t know what Ryan did with the gun.”
Question number fifteen: “How many times did Anthony shoot the black male on Dodge Park Road.”
Answer: “Once.”
Question number sixteen: “Did you tell anybody about this incident?”
Answer: “My girlfriend. I don’t want to tell you her name.”
Question number seventeen: “Do you remember what Anthony was wearing that night?”
Answer: “He was wearing a blue Dallas coat and a pair of jeans.”
Question number eighteen: “What did you have on that night?”
Answer: “A gray coat, blue jeans and some boots.”
Question number nineteen: “How about Ryan?”
Answer: “I’m not sure.”
Question number twenty: “Did the guy Anthony [shot] have any type of weapon?”
Answer: “From the distance that I was at, no.”
Question number twenty-one: “How far from Anthony were you when he shot the black male?”
Answer: “Approximately ten to fifteen feet.”
Question number twenty-two: “Did Anthony take anything from the black male that he shot?”
Answer: “No.”
Question number twenty-three: “Did you waive your rights freely and knowingly?”
Answer: “Yes. It was something that had to be done.”
Question number twenty-four: “Is the statement accurate as to what you told me?”
*321 Answer: “It can’t get not better than it is.”
Question number twenty-five: “Is this the truth?”
Answer: “To be honest the honest to God truth.”
Question number twenty-six: “Are you under the influence of any drug or narcotic?”
Answer: “No, I’m not.”
The autopsy report, a diagram of the crime scene and testimony as to what was found there, the gun and testimony as to the recovery of the gun and bullets in Wilson’s home, and testimony and documents relating to the voluntariness of the statements were also received in evidence. There was no other evidence adduced by the State except the two men’s statements. Each of the defendants opted not to testify and no other evidence was offered in their behalf. Motions for judgments of acquittal were denied.
III
The sole question Wilson asks us to determine boils down to whether the trial court abused its discretion in admitting Lee’s statement. We consider Wilson’s challenge only with respect to the Confrontation Clause of the Sixth Amendment to the Constitution of the United States
In its guise as substantive evidence against Wilson, Lee’s statement was hearsay.
If one were to read [the language of the Confrontation Clause of the Sixth Amendment] literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial.
Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (citation omitted). The Court noted:
But, if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.
Id. In Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990), the Court declared:
From the earliest days of our Confrontation Clause jurisprudence, we have consistently held that the Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause.
The Supreme Court has recognized that hearsay rules and the Confrontation Clause are “generally designed to protect similar values” but it has “been careful not to equate the Confrontation Clause’s prohibitions with the general rule prohibiting the admission of hearsay statements.” Id. at 814, 110 S.Ct. at 3146 (citations omitted). “Both,” however, “express a preference for a personal examination of a declarant as a means of testing the veracity and accuracy of a witness’s testimony.” Chapman v. State, 331 Md. 448, 453, 628 A.2d 676 (1993). By the refusal of the Court to equate the protections of the Confrontation Clause with the common law rules
In Roberts, 448 U.S. at 65, 100 S.Ct. at 2538, the Court set forth “a general approach” for determining when incriminating statements admissible under exceptions to the hearsay rule also meet the requirements of the Confrontation Clause. The general approach has two aspects. The first is that a “rule of necessity” must be satisfied. Roberts declared this rule was established by the Sixth Amendment “in conformance with the Framers’ preference for face-to-face accusation.” Id. The second comes into play only upon satisfaction of the rule of necessity. The hearsay statement is then admissible provided it bears “adequate ‘indicia of reliability.’ ” Id. at 66, 100 S.Ct. at 2539. The Roberts approach was recognized and applied by the Court in Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). It was iterated and applied in Wright, 497 U.S. at 814-815, 110 S.Ct. at 3145-3146. We quoted and applied it in Chapman, 331 Md. at 455-456, 628 A.2d 676.
A
One of the ways the rule of necessity called for in the first aspect of the Roberts approach may be satisfied is by proving that the hearsay declarant is unavailable. See Chapman, 331 Md. at 470, 628 A.2d 676. A declarant is “unavailable” when the proponent demonstrates that he has been unable to procure the attendance of the absent witness by process or other reasonable means. See Fed.Rule Evid. 804(a)(5).
“Indicia of reliability” translates into a “showing of particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 100 S.Ct. at 2539; Lee v. Illinois, 476 U.S. at 543, 106 S.Ct. at 2063. If the hearsay at issue possesses “particularized guarantees of trustworthiness,” it can be admitted into evidence despite the general rule barring a trier of fact from considering hearsay. See Lee v. Illinois, 476 U.S. at 543, 106 S.Ct. at 2063. In Lee v. Illinois, the Court considered the circumstances surrounding the hearsay statement, id. at 544-545, 106 S.Ct. at 2064, arid the “interlocking” nature of the codefendant’s and defendant’s confessions to determine whether the codefendant’s confession enjoyed the required “particularized guarantees of trustworthiness,” but did not rely on corroborative physical evidence. Id. at 545-546, 106 S.Ct. at 2064. In Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), the Court also turned to the interlocking nature of the codefendant’s hearsay statement and the defen
Quite obviously, what the “interlocking” nature of the codefendant’s confession pertains to is not its harmfulness but rather its reliability: If it confirms essentially the same facts as the defendant’s own confession it is more likely to be true.
481 U.S. at 192, 107 S.Ct. at 1718 (emphasis in original). The Court continued:
Its reliability, however, may be relevant to whether the confession should (despite the lack of opportunity for cross-examination) be admitted as evidence against the defendant, see Lee v. Illinois, 476 U.S. 530 [106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)]....
481 U.S. at 192-193, 107 S.Ct. at 1718-1719 (emphasis in original). The Court flatly stated, at 193-194, 107 S.Ct. at 1719:
Of course, the defendant’s confession may be considered at trial in assessing whether his codefendant’s statements are supported by sufficient “indicia of reliability” to be directly admissible against him (assuming the “unavailability” of the codefendant) despite the lack of opportunity for cross-examination, see Lee, supra, 476 U.S. at 543-544, 106 S.Ct. at 2063-2064; Bruton [v. United States, 391 U.S. 123] at 128, n. 3, [88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ] ... and may be considered on appeal in assessing whether any Confrontation Clause violation was harmless, see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
In Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, the Court suggested that the “indicia of reliability” requirement is met where the hearsay statement “falls within a firmly rooted hearsay exception.”
Admission [of a hearsay statement] under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.
“In sum,” the Court declared in Roberts, 448 U.S. at 66, 100 S.Ct. at 2539 (footnote omitted), the statement of a hearsay declarant not present for cross-examination
is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
As we have seen, the Court had made clear that the cross-corroboration of the codefendant’s hearsay statement and the defendant’s statement was relevant in determining whether the hearsay statement was cloaked with “particularized guarantees of trustworthiness.”
IV
On 27 June 1990, the Supreme Court decided Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), which confirmed existing law with one significant exception: the use of corroborating evidence in determining the trustworthiness of certain hearsay statements. The case required the Court
to decide whether the admission at trial of certain hearsay statements made by a child declarant to an examining pediatrician violates a defendant’s rights under the Confrontation Clause of the Sixth Amendment.
Id. at 808, 110 S.Ct. at 3143. In reaching its decision, the Court applied the Roberts approach. The trial court had found that the hearsay declarant was incapable of communicating with the jury and defense counsel agreed. The appellate court had neither questioned this finding nor discussed the general requirement of necessity. Therefore, for the purpose of decision, the Court assumed that the declarant “was an unavailable witness -within the meaning of the Con
The crux of the question presented is therefore whether the State, as the proponent of evidence presumptively barred by the hearsay rule and the Confrontation Clause, has carried its burden of proving that [the declarant’s hearsay statements] bore sufficient indicia of reliability to withstand scrutiny under the Clause.
Id. It first noted that the hearsay exception before it was not a firmly rooted one so as to satisfy the constitutional requirement of reliability without more ado. Id. at 817, 110 S.Ct. at 3147. Rather, the hearsay exception to be admissible had to be distinguished by “particularized guarantees of trustworthiness.” Id. at 817-820, 110 S.Ct. at 3147-3149. The Court observed that courts have considerable leeway in their consideration of appropriate factors to determine the existence of particularized guarantees of trustworthiness; it “deeline[d] to endorse a mechanical test for determining ‘particularized guarantees of trustworthiness’ under the Clause.” Id. at 822, 110 S.Ct. at 3150. The statement and the circumstances surrounding the obtaining of it, however, were factors to be considered. Id. at 819, 110 S.Ct. at 3148.
To this point, the Court was in full accord with the reasoning and declarations of its prior cases. Although the Court had plainly stated before that the “interlocking” of a codefendant’s hearsay statement with that of a defendant’s statement was a proper factor to consider in ascertaining the reliability of the hearsay statement, it announced in Wright that this was not so. It declared that
“particularized guarantees of trustworthiness” must be shown from the totality of the circumstances, but we think the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.
497 U.S. at 819, 110 S.Ct. at 3148. It repeated this belief at 820, 110 S.Ct. at 3149. It averred, at 822, 110 S.Ct. at 3150:
[W]e are unpersuaded by the State’s contention that evidence corroborating the truth of a hearsay statement may*328 properly support a finding that the statement bears “particularized guarantees of trustworthiness.”
“To be admissible under the Confrontation Clause,” the Court declared,
hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.
Id. The Court declaimed at 823, 110 S.Ct. at 3150:
In short, the use of corroborating evidence to support a hearsay statement’s “particularized guarantees of trustworthiness” would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility.
Wright observed, however:
[W]e think the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless, rather than that any basis exists for presuming the declarant to be trustworthy.
497 U.S. at 823, 110 S.Ct. at 3150.
We have examined over 100 cases to ascertain how the courts in other jurisdictions, both federal and state, have dealt with Wright. The cases are not confined to allegations of child abuse, with which Wright was concerned, but cover many kinds of factual situations, including the situation before us: a hearsay statement by an accomplice inculpating a defendant. They have applied Wright, but not always with enthusiasm,
V
A
The sole question Wilson presented before the Court of Special Appeals was whether the trial court erred in admitting
The Court of Special Appeals in affirming the judgments against Wilson found the law to be well established that
ordinarily the confession of an accomplice may not be introduced at his and another’s joint trial when the confession implicates the latter in the crime as well as the former, and the former is not available for cross-examination, despite an instruction to the jury to disregard the implicating confession against the co-defendant.
Wilson v. State, 95 Md.App. at 688, 622 A.2d 810. Pointing to Bruton, the intermediate appellate court said that “[s]uch hearsay confessions of an accomplice that incriminate defendants are presumptively unreliable.” Id. Relying on the teachings of Lee v. Illinois and Cruz, the court believed, however, that the Bruton presumption was overcome because Lee’s confession and Wilson’s confession were “substantially identical in all significant aspects,” and that “[ijmportantly the circumstances of the actual taking of the independent confessions further demonstrate their strength and reliability.” 95 Md.App. at 693-694, 622 A.2d 810. The Court of Special Appeals held that
*331 the Bruton rule does not apply in the context of the matter before us. The independent circumstances surrounding the taking of the confessions, in addition to their significantly interlocking detail of material aspects, clearly evidenced sufficient indicia of reliability to rebut the presumption of unreliability of the co-defendant’s confession and was properly admitted as direct evidence against [Wilson],
95 Md.App. at 694-695, 622 A.2d 810. Wright did not enter into the intermediate appellate court’s resolution of the question — that case was not even cited. The court concluded:
In any event, even assuming that the non-testifying co-defendant’s confession was not directly admissible against [Wilson], we believe that under the facts and circumstances of this case, wherein [Wilson’s] independent confession supported the co-defendant’s, the Confrontation Clause violation was harmless.
Id. at 695, 622 A.2d 810.
B
The question presented to us on certiorari is:
Whether the Court of Special Appeals erred in holding that it was proper ... for the trial court to have allowed the State to introduce as substantive evidence against [Wilson] a confession made by a non-testifying codefendant [Lee] in which [Wilson] was implicated in the crimes.
By the time the case reached us, Wilson’s counsel had discovered Wright. Contending that the Court of Special Appeals erred, Wilson recognizes the Bruton rule of presumptive unreliability and the teachings of Lee v. Illinois regarding the rule. But for the first time he calls upon the dictates of Wright to buttress his contention that the trial court erred in admitting Lee’s statement and that the Court of Special Appeals therefore erred in affirming the judgments. Wilson argues that under the restraints imposed by Wright, the “interlocking” of Lee’s statement and Wilson’s statements may not be used to evaluate the reliability of Lee’s statement, and that its contents plus the circumstances surrounding the ob
The State, seeing no error, counters by asserting that the circumstances surrounding Lee’s confession show sufficient indicia of reliability for its admission. It urges that the timing of the confession, its voluntariness, its exculpatory nature, and its lack of a vengeful motive provide sufficient indicia of reliability to warrant its admission. Finally, the State claims that the admission of Lee’s statement, if error, was harmless.
C
We first observe that it is perfectly clear from the prosecutor’s opening statement and her closing arguments at trial, that if the jury found the confessions to be voluntary, it could consider them together as substantive evidence of the guilt of both Lee and Wilson. In other words, Lee’s confession was not offered by the State only as evidence of his guilt, but also as evidence of Wilson’s guilt. By the same token, Wilson’s confession was offered not only as evidence of his guilt, but also as evidence of Lee’s guilt. That is, each confession could be considered by the jury in conjunction with the other to establish the guilt of both defendants. Neither Lee’s attorney nor Wilson’s attorney contested this notion. In fact, in their closing arguments to the jury, focusing primarily on the murder charges, they obviously embraced the view that the
We follow the established Roberts approach in the light of the dictates of Wright to determine whether the trial judge erred in admitting Lee’s statement. Wilson is entitled to a new trial if the judge was wrong and the error was not harmless; the judgments stand if the judge was right, even if for the wrong reasons. Cf. Securities and Exchange Com. v. Chenery Corp., 818 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943); Robeson v. State, 285 Md. 498, 502, 403 A.2d 1221 (1979), cert. denied, 444 U.S. 1021, 100 S.Ct. 680, 62 L.Ed.2d 654 (1980); Aubinoe v. Lewis, 250 Md. 645, 649, 244 A.2d 879 (1968).
VI
A
First, we must decide whether the Roberts “rule of necessity” requirement has been satisfied. As we noted above, one way to accomplish this task is to show that the hearsay declarant is unavailable.
Lee, the declarant of the hearsay statement, was an accomplice of Wilson, against whom the State sought to place the statement in evidence. The two were jointly tried, a motion for severance having been denied by the trial court. Although Lee was physically present in the courtroom, he invoked his right not to testify. As Lee was a defendant, the State could not call him as a witness. And the failure of Lee to testify did, of course, preclude the cross-examination of him by Wilson. See Bruton, 391 U.S. at 132, 88 S.Ct. at 1625-1626; Douglas v. Alabama, 380 U.S. at 419, 85 S.Ct. at 1077; Phillips v. Wyrick, 558 F.2d 489, 494 (8th Cir.1977), cert.
[It] is the generally accepted notion that witnesses who successfully invoke the privilege against self-incrimination are “unavailable” for purposes of determining whether their prior statements are admissible under an exception to the hearsay rule. See California v. Green, 399 U.S. [149] at 168, n. 17, 90 S.Ct. [1930] at 1940, n. 17 [26 L.Ed.2d 489 (1970) ]; Fed.Rule Evid. 804(a)(1); E. Cleary, McCormick on Evidence § 253 (3d ed. 1984).
Lee v. Illinois, 476 U.S. at 550-551, 106 S.Ct. at 2067 (Blackmun, J., dissenting).
B
In Douglas v. Alabama, 380 U.S. at 419, 85 S.Ct. at 1077, the Court held that the defendant’s “inability to cross-examine [the accomplice] as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause.”
This holding, on which the Court was unanimously agreed, was premised on the basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.[7 ]
Lee v. Illinois, 476 U.S. at 541, 106 S.Ct. at 2062. Over the years since Douglas, the Court pointed out, “[i]t has spoken
The presumption of unreliability, however, may be rebutted. Id. at 543, 106 S.Ct. at 2063. The rebuttal invokes the second aspect of the Roberts approach, namely, that the hearsay statement must bear adequate “indicia of reliability” to be admissible. This brings us to the crux of the question before us: has the State, as the proponent of evidence presumptively barred by the hearsay rule, carried its burden of proving that Lee’s statement bore sufficient reliability to withstand scrutiny under the Confrontation Clause?
We emphasize that the Supreme Court has long looked with a jaundiced eye upon hearsay statements by accomplices that implicate defendants in criminal proceedings. The Court imposes a heavy burden on the proponent for admission of such a statement; the presumption of unreliability is not easily rebutted. The rebuttal is rendered even more difficult than it was pre-Wright. As noted above, the Wri,ght dictates severely restrict the factors that may be considered to determine particularized guarantees of trustworthiness; they are confined to the statement itself and to the circumstances surrounding the obtaining of that statement, without resort to any corroborative evidence, including a hearsay statement by a codefendant.
We first observe that the voluntariness of Lee’s statement is not now contested. We next note that the admissibility of the statement rested on the penal interest exception to the hearsay rule. The penal interest exception has not been accepted as a firmly established one.
Lee was arrested at his home early in the morning under the authority of a warrant by an array of police officers including an “EST team” that “made entry” to the house. Detective Irvin told him that “[h]e was arrested for murder.” The police took him to the Criminal Investigations Division where he was handcuffed to a wall of a six foot by eight foot interview room. The interrogation was neither taped nor taken down by a stenographer. Inside the interview room, Lee was alone except for Irvin, one of the officers who had arrested him less than an hour before. It was in this setting that the detective drew from Lee the incriminating words the State eventually used against Wilson, who was arrested that same day in Virginia by other law enforcement authorities.
Irvin asked Lee about the murder and “verbally he told me, and then I asked him to write a statement which he did.” Then the detective posed some 20 specific questions “[t]o clarify some of the things in the statement and to also make the statement more to the fact as to what happened.” Irvin would “type in the question and [Lee] would give me an answer which I would type.” By no stretch of the imagination was the statement an outburst or a spontaneous explanation of events;
It is apparent that Lee had a motive to lie. He would naturally want to deflect blame for the murder from himself, so he told police that Weston was the trigger man and that he had nothing to do with the shooting. “I could not believe he had done that,” Lee claimed. Later he added that he had asked Weston why he had shot Johnson but Weston gave no reason. A “reality of the criminal process,” the Supreme Court noted in Lee v. Illinois, is
that once partners in a crime recognize that the “jig is up,” they tend to lose any identity of interest and immediately become antagonists, rather than accomplices.
476 U.S. at 544-545, 106 S.Ct. at 2064. “Taking on the full blame for a minor role in an offense ... does little to demonstrate trustworthiness because the declarant still has the motive to shift the blame to others so as to receive a lesser penalty.” United States v. Flores, 985 F.2d at 782.
Lee’s character, as revealed by his own words, also made his statement suspect. They showed that he was not averse to engaging in criminal conduct. He admitted that he had freely joined Wilson and Weston to rob drug dealers.
From our perusal of the totality of the circumstances surrounding the obtaining of Lee’s statement, in light of Wright, we are by no means content that the State overcame the jealously guarded presumption that the statement was untrustworthy. We believe that those circumstances did not show sufficiently that there were present the particularized guarantees of trustworthiness required to make the statement admissible. In short, the statement was not reliable. We hold that the trial court erred in admitting it.
VII
Our final inquiry is whether the error was harmless. As noted supra, Wright indicated that the interlocking nature of a declarant’s hearsay statement and a defendant’s state
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated.
Id. at 659, 350 A.2d 665 (emphasis added). We stressed:
Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of— whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.
Id. (emphasis added).
Lee’s statement and Wilson’s statements were the heart of the State’s case. There was no other evidence legally sufficient to establish Wilson’s guilt of any of the crimes charged. On our independent review of the record, we find that the Court of Special Appeals was correct in observing that Wilson’s statements and Lee’s statement were substantially alike in all significant aspects. The statements “interlocked” and cross-corroborated each other; the discrepancies in them were not substantial; the differences in them were no more than irrelevant and trivial. Although Wilson’s statements as well as Lee’s statement tended to exculpate Wilson with respect to the murder, they showed that Wilson committed the other crimes charged, including conspiracy and accessory after the fact, the offenses of which he was convicted. Thus Wilson’s own statement to the effect that he had committed crimes other than the murder was corroborated and strongly buttressed by Lee’s statement. In those circumstances, with Lee’s statement before the jury as substantive evidence
We hold that the trial court erred in permitting Lee’s statement to be placed in evidence. It follows that the Court of Special Appeals was wrong in affirming the judgments entered by the Circuit Court for Prince George’s County. We reverse its judgment. Wilson is entitled to a new trial.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED;
CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTION TO VACATE THE JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE GEORGES COUNTY AND REMAND THE CASE TO THAT COURT FOR A NEW TRIAL;
COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PRINCE GEORGES COUNTY.
Dissenting Opinion by RODOWSKY, J., in which McAULIFFE and KARWACKI, JJ., join.
. Lee filed a separate appeal. The Court of Special Appeals affirmed the judgments against him. Lee v. State, unreported, filed 20 March 1992. He did not seek the review of this Court by way of certiorari.
Weston was separately tried by a jury in the Circuit Court for Prince George’s County. He was found guilty of felony murder and murder in the second degree under the first count of the indictment, and of the crimes charged in the second count, the third count and the fourth count. The Court of Special Appeals affirmed the judgments entered on the convictions. Weston v. State, unreported, filed 1 April 1992. We denied his petition for a writ of certiorari. 327 Md. 525, 610 A.2d 797 (1992).
. The Confrontation Clause of the Sixth Amendment to the Constitution of the United States declares:
In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....
The confrontation requirements of the Sixth Amendment are applicable to the states through the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Franklin v. State, 239 Md. 645, 647-648, 212 A.2d 279 (1965).
. The Supreme Court noted in Lee v. Illinois, 476 U.S. 530, 543 n. 4, 106 S.Ct. 2056, 2064 n. 4, 90 L.Ed.2d 514 (1986):
*322 We have previously turned to McCormick's definition of hearsay as "testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” E. Cleary, McCormick on Evidence § 246, p. 584 (2d ed. 1972).
. The first prong of the Roberts approach was construed as requiring the showing of the unavailability of the declarant or a demonstration of unsuccessful good faith efforts to secure the declarant’s presence. Chapman v. State, 331 Md. 448, 467, 628 A.2d 676 (1993). Then, in
Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.
Id. at 394, 106 S.Ct. at 1125. It held that the unavailability of a conspirator need not be shown to admit a coconspirator’s hearsay declaration made during the course of the conspiracy. Id. at 398-400, 106 S.Ct. at 1127-1128. In White v. Illinois,-U.S.-, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), the Court again indicated that the unavailability requirement established in Roberts does not apply to all forms of hearsay. Id. - U.S. at -, 112 S.Ct. at 741-742. The Court held that
the Confrontation Clause does not require an initial showing of unavailability prior to admitting out-of-court statements which are spontaneous declarations or are made for the purposes of attaining medical diagnosis or treatment as substantive evidence for the State’s case.
Chapman, 331 Md. at 469-470, 628 A.2d 676, citing to White,-U.S. at-, 112 S.Ct. at 743. Thus, Chapman concluded, "it appears that the Supreme Court has emphasized that Roberts contemplated a rule of necessity, not one of availability.’’ 331 Md. at 470, 628 A.2d 676. So, in Chapman, we held that the unavailability of the makers of reliable business records was not a prerequisite for the admission of these records.
. See George v. State, 306 Ark. 360, 818 S.W.2d 951, 952-953 (1991) (Glaze, J., concurring); Vann v. State, 309 Ark. 303, 831 S.W.2d 126, 130 (1992) (Glaze, J., concurring); Bockting v. State, 109 Nev. 103, 847 P.2d 1364, 1369-1370 n. 8 (1993).
. The Sixth Circuit in United States v. Gomez-Lemos, 939 F.2d 326, 332 (6th Cir.1991) went so far as to say that in Wright the Supreme Court "reversed itself on the question of whether corroboration from other witnesses may be considered in evaluating whether hearsay testimony meets the reliability requirements of the Confrontation Clause.”
. The Supreme Court stated that it cannot be seriously doubted
... that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.
Lee v. Illinois, 476 U.S. at 539, 106 S.Ct. at 2061, quoting Pointer v. Texas, 380 U.S. at 404, 85 S.Ct. at 1068. The Court quoted Pointer as observing that
[t]here are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in the expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.
476 U.S. at 540, 106 S.Ct. at 2061.
. The Supreme Court has indicated several classic hearsay exceptions that fall within the “firmly rooted” category. A declaration against penal interest is not one of them. See Chapman, 331 Md. at 457 n. 3, 628 A.2d 676.
. "A statement's spontaneity is an important factor in determining reliability under the confrontation clause.” State v. Cook, 135 N.H. 655, 610 A.2d 800, 806 (1992), citing Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970).
. On the retrial of Wilson, in the light of our opinion, Lee’s statement would be inadmissible. The State could proceed on the basis of Wilson’s statement, which has been established as being voluntary, and such other evidence it may adduce supporting the statement and tending to show Wilson’s guilt of the crimes charged.
Had the judge properly ruled that Lee's statement was inadmissible against Wilson, he would be in a quandary as to how to proceed in a joint trial in the light of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). This points up the advisability that in circumstances such as here, where there are jointly charged defendants, each of whom has confessed, not to try them jointly but to sever them for trial. Whether there can be an exception to the Bruton dictates in the circumstances here so as to permit a limiting instruction is not before us; no such instruction was requested. That question is left for another day.