Smith v. State

Lamont Smith v. State of Maryland
No. 573, Sept. Term 2022
Opinion by Leahy, J.
Preservation > Confrontation Clause and Maryland Rule 5-804(b)(3)
Though the Confrontation Clause and Rule 5-804(b)(3) are interrelated, “it is well-settled
that the two grounds are not synonymous or coextensive; thus objecting on one ground
does not preserve the other ground.” Collins v. State, 164 Md. App. 582, 605-06 (2005).
Evidence > Maryland Rule 5-804(b)(3) > Statement Against Interest > Corroborating
Circumstances > Trustworthiness
Maryland Rule 5-804(b)(3) instructs that a statement “tending to expose the declarant to
criminal liability and offered in a criminal case is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.” We hold that the trial
court’s finding that there were sufficient corroborating circumstances establishing the
trustworthiness of the Blake Interview was not clearly erroneous. It is clear, from the
content of the interview and from the external circumstances, that declarant had intimate
knowledge of and involvement in the drug distribution enterprise. Furthermore, declarant’s
statements regarding his role in the enterprise, and the role of Appellant, were corroborated
by other evidence produced at trial.
Evidence > Maryland Rule 5-804(b)(3) > Statement Against Interest > Parsing
After determining that a statement as a whole is averse to the declarant’s penal interest, the
court must parse through the statement and “‘and determine the separate admissibility of
each single declaration or remark’” in the larger narrative. State v. Matusky, 343 Md. 467,
492 (1996) (quoting State v. Mason, 460 S.E.2d 36,45 (W. Va. 1995)) (cleaned up).
Evidence > Maryland Rule 5-804(b)(3) > Statement Against Interest > Parsing
We hold that the trial court erred by admitting the entire version of the Blake Interview
offered by the State under the statement against penal interest exception to the hearsay rule
set forth in Maryland Rule 5-804(b)(3) without parsing the narrative and redacting those
portions not genuinely self-inculpatory as to Mr. Blake. The court needed to inquire
whether each of the statements in the Blake Interview was truly self-inculpatory. State v.
Matusky, 343 Md. 467, 485 (1996).
Evidence > Maryland Rule 5-804(b)(3) > Statement Against Interest > Parsing
Although statements contained in an interview naming a co-conspirator and describing the
mechanics of a conspiracy can qualify as statements against penal interest when they
sufficiently inculpate the declarant, that does not discharge the court’s fundamental duty to
parse all of the statements in the interview. Here, although some statements could be
deemed equally inculpatory of both Mr. Blake and Appellant, other statements could not
be considered genuinely inculpatory of Mr. Blake because they merely served to shift
blame for the present workings of the enterprise.
Circuit Court for Wicomico County
Case No.C-22-CR-19-000554
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 573
September Term, 2022
LAMONT SMITH
v.
STATE OF MARYLAND
Kehoe,
Leahy,
Zic,
JJ.
Opinion by Leahy, J.
Filed: July 26, 2023
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.
2023-07-26
14:36-04:00
Gregory Hilton, Clerk
* During the November 8, 2022, general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals of Maryland
to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
Police found large quantities of CDS and some ammunition inside a house they
raided on August 9, 2019, in Salisbury, Maryland. They arrested the residents, Mr. Tony
Blake and Mr. Dwight Woods. They also arrested Mr. Lamont Smith (“Appellant”), who
claimed he was an overnight guest.
The State brought 42 charges against Appellant: 41 related to his alleged possession,
conspiracy to possess, intention to distribute, and conspiracy to distribute the CDS; and
one count of illegal possession of ammunition. The State also brought charges against Mr.
Woods, but not against Mr. Blake, who was terminally ill and required medical care and
supervision.1 The police returned to the house to interview Mr. Blake and recorded that
interview on a Bodycam (the “Blake Interview”). Appellant’s primary contentions on
appeal surround the admission of the Blake Interview, over his objection, at his trial before
a jury in the Circuit Court for Wicomico County in April 2022.
Appellant was acquitted or found not guilty of 30 counts, including all of the Drug
Kingpin charges, but he was convicted of counts 30-41 for possession and conspiracy to
possess heroin, fentanyl, cocaine, and alprazolam. On May 27, 2022, the court merged
Appellant’s eight conspiracy convictions into four and sentenced Appellant to an aggregate
of four years in prison.2
1
The record does not indicate the date of Mr. Blake’s death, only that it occurred
sometime between the September 14, 2020, motions hearing and the start of trial on April
11, 2022.
2
At the time of his sentencing on May 27, 2022, Appellant had spent 13 months
incarcerated and 20 months in home confinement. Appellant was credited with 33 months
of time served and committed to complete the remainder of his sentence in state custody.
1
Appellant noted a timely appeal and presents the following questions for review,
which we rephrase as:3
I. Did the trial court violate Appellant’s constitutional rights under the
Confrontation Clause and Article 21 of the Maryland Declaration of
Rights when it admitted the recorded police interrogation of Mr.
Blake, an unavailable State witness?
II. Did the trial court misapply the statement against penal interest
hearsay exception under Maryland Rule 5-804(b)(3) when it admitted
the recorded police interrogation of Mr. Blake?
III. Did the trial court err in failing to vacate all but one of Appellant’s
conspiracy sentences where the State failed to prove the existence of
multiple conspiracies?
We do not reach the merits of Appellant’s first question concerning whether
admission of the Blake Interview violated his right to confront adverse witnesses under the
Sixth Amendment to the United States Constitution and Article 21 of the Maryland
Declaration of Rights because the issue was not preserved for our review. See Md. Rule
8-131(a). Furthermore, consistent with “‘the established principle that a court will not
3
Appellant presents the questions as follows:
I. “Did the trial court violate Mr. Smith’s right of confrontation when it
admitted a recorded police interrogation of Tony Blake, an
unavailable State witness?”
II. “Did the trial court misapply the statement against penal interest
hearsay exception under Maryland Rule 5-804(b)(3) when it admitted
the entire recorded interrogation of Mr. Blake without evaluating each
statement for admissibility?”
III. “Did the trial court err in failing to vacate all but one of Mr. Smith’s
conspiracy sentences where the State failed to prove the existence of
multiple conspiracies?”
2
decide a constitutional issue when a case can properly be disposed of on a non-
constitutional ground,’” Dorsey v. State, 356 Md. 324, 342 (1999) (quoting Telnikoff v.
Matusevitch, 347 Md. 561, 579 n.15 (1997)), we need not reach the question of whether
admission of the Blake Interview violated Appellant’s rights under the United States and
Maryland Constitutions because we are vacating Appellant’s convictions under Maryland
Rule 5-804(b)(3). We hold that the trial court erred by admitting the entire version of the
Blake Interview offered by the State under the statement against penal interest exception
to the hearsay rule set forth in Maryland Rule 5-804(b)(3) without parsing the narrative
and redacting those portions not genuinely self-inculpatory as to Mr. Blake. The court
needed to inquire whether each of the statements in the Blake Interview was truly self-
inculpatory. State v. Matusky, 343 Md. 467, 485 (1996). Although some statements,
especially those which described the workings of the enterprise prior to Mr. Woods
entering the picture, could be deemed equally inculpatory of both Mr. Blake and Appellant,
other statements could not be considered genuinely inculpatory of Mr. Blake because they
merely served to shift blame for the present workings of the enterprise.
Correspondingly, because we are vacating the convictions, we do not reach the
uncontested question of whether the trial court erred by imposing separate sentences for
multiple conspiracy charges. However, we observe that the State’s suggestion is correct
that if this matter is re-prosecuted on remand, then the State may only pursue a single
conspiracy charge against Appellant because the State concedes that it failed to prove the
existence of more than one conspiracy.
3
BACKGROUND
The following factual account is drawn from the evidence presented at Appellant’s
jury trial conducted on April 11 and 12, 2022.
Sergeant Tyler Bennett and Detective Andrew Riggin of the Wicomico County
Sherriff’s Office testified that in July 2019, their office put a house in Salisbury under
surveillance after receiving information that it was being used for heroin sales. Detective
Michael Kirkland, working undercover, made four purchases of controlled substances from
Mr. Blake and Mr. Woods in July and early August 2019.
Det. Riggin obtained a search and seizure warrant for the house. Then, on August
9, 2019, at 5:00 a.m., a Sherriff’s Office Emergency Response Team lead by Sergeant
Jordan Banks4 raided the house and found large quantities of CDS, some ammunition, and
over $8,000 in cash. Sgt. Banks testified that “[e]verybody appeared to have been
asleep[,]” although the evidence suggested that upon the officers’ arrival, Mr. Woods woke
up and threw CDS out a broken window in the living room where he had been sleeping on
a mattress. The officers discovered Appellant on a second mattress in the same room, and
Mr. Blake in a back bedroom.
All three men were arrested. The State ultimately brought charges against Mr.
Woods and Appellant, but not against Mr. Blake because he was terminally ill and required
medical care and supervision. Mr. Woods was convicted prior to Appellant’s trial. See
Woods v. State, No. 1878, Sept. Term 2021, slip op. at 6-7 (filed Nov. 1, 2022).
4
At the time of the raid, Jordan Banks was a police corporal. By the time of trial,
however, he had achieved the rank of sergeant.
4
Blake Interview – August 27, 2019
At trial, a redacted version of the Blake Interview was played and published to the
jury over the objection of defense counsel. The State explained that the recording was not
“the full continuous interview[,]” because the State had excised the portions that it believed
“wouldn’t have been relevant[.]” Defense counsel agreed that “[t]he stuff [the State]
redacted was stuff that really legitimately, it just shouldn’t come in because it just had
nothing to do with this[,]” but maintained that he did not think “any of it is relevant[.]”5
As reflected in the redacted recording, on August 27, 2019—eighteen days after the
raid—Sgt. Banks and Sgt. Bennett interviewed Mr. Blake at the house. They began the
conversation by telling Mr. Blake that they wanted to talk to him about “the case that you
are involved in as a co-defendant[.]” Mr. Blake was seated, wearing nothing except a
blanket. After his Miranda rights were read to him, Mr. Blake gave the officers his consent
to speak verbally because he was unable to sign a statement. Sgt. Bennett recorded the
Blake Interview on his Bodycam.
At the very outset of the interview, Sgt. Bennett asked Mr. Blake, “So what’s going
on with Mont,” referring to Appellant.6 Throughout the interview, the officers kept
returning to questions about Appellant, and in total, the officers and Mr. Blake made
5
A comparison of the redacted and unredacted versions of the Blake Interview
demonstrates that the State excised nearly 28 pages of the original 69-page transcript that
it deemed to be irrelevant to the present case.
6
Throughout the interview, the officers and Mr. Blake refer to Appellant as
“Lamont” or “Mont,” and to Mr. Woods by his nickname, “Samere” or “Shamir.”
5
approximately 88 references to “Mont” or “Lamont” on the redacted version of the Blake
Interview offered by the State.
Mr. Blake asserted repeatedly that the drugs seized on the day of the raid belonged
to Mr. Woods, aka “Shamir,” and that Mr. Woods “leaves late at night” and “[b]rings it
down”; whereas Appellant’s “involvement” is that “[h]e just knows about it.” Mr. Blake
stated that “[a]t first” he worked for Appellant, but that Appellant “fell back because he’s
ready to start a family with his wife and get married.”
The officers asked Mr. Blake about the operational details of the drug enterprise
when he first got involved. Mr. Blake explained that during a period of “close to a year,”
Appellant supplied him with a cell phone and that his duties were to answer the phone,
arrange deliveries, and drive to meetings where he exchanged the drugs for money.
Appellant, who lived near Baltimore City, would visit Salisbury a few times each week, at
which time Mr. Blake would give Appellant the proceeds from the drug sales, less expenses
and his salary, and Appellant supplied Mr. Blake with new drugs, prepackaged for sale.
In recent months, however, Mr. Blake turned over the money to, and accepted new
drugs from, Mr. Woods, rather than from Appellant. Then Mr. Woods “demoted” Mr.
Blake to having almost no role in the enterprise because his health had deteriorated, and he
was “too slow.” Mr. Blake related that, during the last two months before the raid,
Appellant would visit to “take care of [him]” and take him to the hospital for treatment,
and that that was his only interaction with Appellant.
6
Although Mr. Blake was cooperative throughout the interview, at some points his
answers were unintelligible, and his narrative confused, prompting the interviewing
officers to say, “it doesn’t make any sense[,]” or “your story makes no sense”:
[SGT. BENNETT]: But how much did he give you
at a time here to sell; is what I’m asking?
MR. BLAKE: Which one?
[SGT. BENNETT]: Lamont.
MR. BLAKE: Like 15.
[SGT. BENNETT]: So he came daily because you
said you sold ten a day rough sometimes.
MR. BLAKE: No. He would -- when he come down on the
weekends, that’s when he would bring to me. But
whenever the boy, Shamir, had, was already down here.
[SGT. BENNETT]: Was already stored here?
MR. BLAKE: I don’t know where he had it at.
[SGT. BENNETT]: So it doesn’t make any -- it doesn’t make any sense.
MR. BLAKE: I told the dude it’s over at 20 Pemberton (phonetic)
somewhere but I don’t know where.
[SGT. BENNETT]: So he would bring 15 -- it doesn’t make any sense.
Who -- so -- how does the organization work? Who’s
in charge?
MR. BLAKE: The boy, Shamir, has the stuff. Mont knows the
people.
[SGT. BENNETT]: Okay.
MR. BLAKE: When he brings it down, he takes it to Pemberton but I
don’t know which --
7
[SGT. BENNETT]: So Mont takes it to Pemberton?
MR. BLAKE: No, the boy --
[SGT.] BANKS: So Samir is his transportation?
MR. BLAKE: -- (indiscernible) -- he’s claiming that he’s -- Shamir has
the stuff.
[SGT. BENNETT]: This whole conversation makes zero sense. I’m getting
--
MR. BLAKE: (Indiscernible) --
* * *
[SGT. BENNETT]: I’m getting -- I’m getting a little bit frustrated.7
The ambiguity of Mr. Blake’s responses was exacerbated by the officers’ attempts
to redirect him from events in the past to the present workings of the enterprise. For
example, as illustrated above, immediately after Mr. Blake recounted the salary he earned
working for Appellant at the very beginning of the enterprise, one of the officers asked Mr.
Blake to clarify “how does the organization work? Who’s in charge?” to which Mr. Blake
responded, “The boy, [Mr. Woods], has the stuff. Mont knows the people.” In another
instance, Sgt. Banks redirected:
[SGT.] BANKS: Mont called the shots and then when you started your -
- what happened when your medical health went down?
Who took over your spot when your health went down
7
Directly after this colloquy, Sgt. Banks alluded to a prior conversation with Mr.
Blake which occurred “the day of the search warrant” and expressed frustration that Mr.
Blake’s current narrative “is not close to what you told me.” At trial, defense counsel
objected to this particular portion of the recording, arguing that this portion of the statement
was not covered under the motions court ruling and was particularly prejudicial because
counsel had not been provided with Mr. Blake’s prior statement. The State responded that
“that statement is not material” and expressed that a curative instruction would be
appropriate. The court agreed and allowed the recording to proceed but instructed the jury
to disregard that particular statement by Sgt. Banks.
8
south. When your health started getting bad? Who took
your spot?
MR. BLAKE: Shamir.
[SGT.] BANKS: Okay.
MR. BLAKE: I mean, he’s the one that’s been bringing down.
[SGT.] BANKS: He’s been transporting it for Mont down here.
MR. BLAKE: Yeah.
[SGT.] BANKS: Okay.
[SGT. BENNETT]: So Mont -- so what I’m asking is, Mont’s still at the top.
MR. BLAKE: No, he dropped out because he’s getting ready to get
married.
Mr. Blake then continued to clarify that, previously, Appellant “was top[,]” but
“Samir took over” because Appellant was going to get married and “[s]o he said he wasn’t
going to do nothing else.” Sgt. Bennett then asked:
[SGT. BENNETT]: How long ago was that?
MR. BLAKE: I was demoted.
[SGT. BENNETT]: How long ago was that?
MR. BLAKE: What? That Samir took over?
[SGT. BENNETT]: Uh-huh.
MR. BLAKE: The trip was like one (indiscernible) the plans for the
trip. So it’s been about two and half, three months. Just
before this.
[SGT. BENNETT]: Well, this was only – this was less than a month ago.
This was only three weeks ago.
9
Sgt. Bennett continued to press Mr. Blake about Appellant’s role in the enterprise,
eventually narrowing his questions to the few weeks preceding the raid, during which the
house was under surveillance, but Mr. Blake appeared unable to follow his thread:
[SGT. BENNETT]: Okay. But you know that Mont and Samir and you, up
until a few weeks ago, all sold heroin, correct?
MR. BLAKE: No. I stopped.
[SGT. BENNETT]: Up until a few weeks ago, you all sold heroin, correct?
So it shouldn’t be that big of a surprise if there was
heroin when a search warrant was done on Samir
and Mont.
MR. BLAKE: No. What I’m saying is I didn’t know it was here
because Mont was saying he was leaving to go
out of town.
[SGT. BENNETT]: I get that.
The State noted in its motion to admit the interview at trial: “At the conclusion of
the interview, Mr. Blake suffered a health complication and was transported to the hospital
in an ambulance.”
Motion to Admit the Blake Interview
On March 9, 2020, the State filed a motion to introduce the Blake Interview at trial
premised upon Mr. Blake’s unavailability due to his “failing health” and that “it would be
infeasible to transport Mr. Blake to Court from his assisted care facility.”8 The State argued
8
The State proffered at the September 14, 2020 motions hearing that Mr. Blake was
staying at “a hospice care facility” at that time, and that he had “a number of very serious
health conditions” including “congestive heart failure, acute kidney injury, sepsis, chronic
kidney disease at stage three, acute respiratory failure with hypoxia and hypercapnia,
anemia, leukocytosis, . . . a GI bleed at the time, and he suffers from type two diabetes.”
10
that the Blake Interview should be admitted under Maryland Rule 5-804(b)(3), as a
“statement against interest,” because it “so tended to subject the declarant to civil or
criminal liability, . . . that a reasonable person in the declarant’s position would not have
made the statement unless the person believed it to be true.” (quoting Md. Rule 5-
804(b)(3)). The State further urged the court to admit the statement under the hearsay
exception because “corroborating circumstances clearly indicate the trustworthiness of the
statement,” and extrinsic evidence supported “Mr. Blake’s telling of events.” It
acknowledged that the court was obligated to “parse the whole of the statement into its
individual, inculpating parts, and such other closely-related collateral statements,” but
claimed that “the statements that contain inculpating statements relating to Mr. Blake are
so interwoven with the statements that inculpate [Appellant] that they cannot be severed.”
(citing State v. Matusky, 343 Md. 467 (1996)). The State pressed that the “collateral
portions of the statement that are [] closely related to the inculpating excerpts” are “equally
trustworthy” such that they were “correspondingly admissible” under Rule 5-804(b)(3).
Defense counsel filed a response challenging the sufficiency of the State’s evidence
that Mr. Blake’s deteriorating health established his unavailability. Counsel also argued
that the court should not admit the Blake Interview under two of the Maryland Rule 5-
804(b) exceptions to the rule against hearsay. First, in arguing why the exception for prior
testimony under Rule 5-804(b)(1) did not apply, counsel noted that, as required by the
Rule, “[a]t no point has [the] defense had an opportunity to confront this witness and cross
examine him as to the veracity of his statements.” Second, in arguing against the
admissibility of the Blake Interview under Rule 5-804(b)(3), counsel pointed out that the
11
statement was vague as to the relevant timeline of events and that he would not have an
opportunity to show the jury that Mr. Blake was “lessening his involvement in an attempt
of not getting charged in this case at the expense of the [Appellant].”
At the hearing convened on September 14, 2020, the court questioned whether the
entire statement was against Mr. Blake’s penal interest, observing “the issue here is the
part of the statement -- I mean, part of the nuance here is the part of the statement that
implicates the [Appellant], not the statement where, in effect, [Mr. Blake] implicates
himself, correct?” The State agreed that “[t]here are definitely parts of the statement that
are . . . solely against the [Appellant]’s interest,” but in “a lot of portions of the interview
[] the statement is against both their interests simultaneously and they are so interwoven
that you couldn’t possibly separate the two.” The State invoked Justice Scalia’s
concurrence in Williamson v. United States, 512 U.S. 594 (1994) and noted that, as in that
case, Mr. Blake was “describing the drug trafficking organization in excruciating detail.
And when you are not the controller or the top level of the drug trafficking organization
and you describe its inner workings you necessarily must inculpate other individuals and
that is what occurred[.]”
The State asserted that “[t]he issue predominantly that Your Honor has to parse out
is whether or not the statements are solely against [the] declarant’s interest.” In reference
to Williamson, the State reminded the court, “[j]ust because you name somebody else for
doing wrong doesn’t, as Justice Scalia said, magically transform it into something that is
not admissible.”
The State listed examples of evidence it would submit at trial to corroborate the
12
statements in the Blake Interview, including, that: (1) an “undercover officer did four
controlled buys” with Mr. Woods, one of which was allegedly arranged by a person
identifying himself as “Mont,” thereby corroborating Mr. Blake’s assertion that although
Mr. Woods had taken over operations, Appellant was still involved; (2) Mr. Woods stated
that he traveled out of town to obtain more narcotics, which “corroborate[d] what Mr.
Blake said” about Mr. Woods being the one to bring the drugs down; and (3) “[t]he car
utilized to conduct the undercover buys of controlled dangerous substance belong[ed] to
Mr. Blake,” consistent with his statement that Mr. Woods used his car to complete the drug
transactions.
Defense counsel challenged the State’s assertion that Mr. Blake’s statements in the
Blake Interview were self-inculpatory and attacked the overall trustworthiness of the Blake
Interview on the premise that it was so “ambiguous” and “confusing” as to not be probative.
Defense counsel noted that the events described in the Blake Interview were not connected
to a “timeframe,” but described a progression in which “Mr. Woods took over the drug
organization from [Appellant]. That [Appellant] got out of the business when he got
engaged. That he’s no longer doing it[.]” He argued that cross-examination of Mr. Blake
would be necessary to untangle the timeline connecting Mr. Blake’s statements,
particularly regarding when Appellant withdrew from the distribution scheme, noting “I
have no concept of if that happened a week before, if that happened three months before,
if that happened a year before . . . If I had the ability to cross-examine that witness we
13
might very well find out what happened a year ago[.]”9
The court asked defense counsel whether he considered the overall effect of the
Blake Interview to be exculpatory of Appellant. Counsel admitted, “I spent a lot of time
going back and forth as to whether I should just allow this in,” but explained that overall,
the interview was problematic because of, among other things, the confusing timeframes.
After hearing these arguments, the court granted the motion and permitted the State
to introduce the Blake Interview at trial. The trial court first found that Mr. Blake’s health
condition rendered him unavailable for trial, and then acknowledged that the “bigger
question is whether under 5-804(b)(3) his statement should be admissible at trial.” The
court explained:
I don’t question whether or not his statement is a statement against interest,
I also don’t necessarily question the reliability of it. I do think the sort of
interesting segue obviously is whether or not that statement that then ties in
[Appellant] should be admissible at his trial. . . . I have looked, I know my
law clerk has looked, I think the State and [defense counsel] have looked to
find a Maryland case on point and I don’t think any of us have been
successful. [The State] cited to the Williamson case, which I have not
reviewed for this case but I have reviewed previously. The Court would note
that Justice Scalia’s concurrence does seem to be on point. So the Court is
going to grant the State’s request to allow the statement to be heard.
9
At the first motions hearing on August 7, 2020, defense counsel expressed a similar
concern regarding the reliability of the Blake Interview due to its confusing timeline:
. . . well, the case against my client is a kingpin charge and a search of a
house where they find drugs where he’s present. . . . And he’s charged with
[being a] kingpin over like a two month period; . . . [A]t no point in [] the
statement does [Mr. Blake] give concrete timeframes for any of this stuff. . .
. it is extremely confusing what he’s actually talking about as far as
timeframe. . . So without the ability to cross-examine him and hammer this
stuff down I’ll have no ability – a jury will just hear that he was a drug
kingpin at some point in his life, . . . with no concrete timeframe.
14
Jury Trial – April 11, 2022 - April 12, 2022
At trial, the State entered into evidence, and played for the jury, the redacted version
of the Blake Interview described above. Because admission of the Blake Interview is the
central issue in this appeal, we review other evidence presented at trial in summary fashion.
The State called seven witnesses, starting with Detective Mike Kirkland of the
Ocean City Police Department Narcotics Unit, who had investigated the “drug-trafficking
organization” undercover for the Worcester County Criminal Enforcement Team. Det.
Kirkland testified that he made four controlled purchases of heroin from Mr. Woods.
In the first instance, on July 24, 2019, Det. Kirkland said he initiated the sale by
calling a telephone number and arranging the deal with Mr. Blake and Mr. Woods. The
purchase was completed in the bathroom of a local grocery store. In the second instance,
Det. Kirkland called the same telephone number, whereupon a person who identified
himself as “Mont” answered and instructed the detective to use a new number to contact
Mr. Woods. Det. Kirkland called the other number and set up the next purchase from Mr.
Woods inside Det. Kirkland’s car at a nearby gas station. In the third and fourth instances,
Det. Kirkland arranged the purchases through Mr. Woods.
The State’s second witness, Sgt. Bennett, who had conducted the investigation into
the drug operation, identified the targets of his investigation as Mr. Blake, Appellant, and
Mr. Woods. He testified about the circumstances of the August 27 interview of Mr. Blake
that he conducted with Sgt. Banks. Defense counsel noted a standing objection to Sgt.
Bennett’s testimony about the content of the interview and objected again when the State
introduced the Blake Interview into evidence.
15
Sergeant Burley Williams testified next about his involvement in surveillance of the
enterprise and corroborated earlier testimony by Det. Kirkland regarding the controlled
purchases from Mr. Woods. Sgt. Williams also established the chain of custody of the
narcotics obtained on July 31, 2019, explaining that he packaged and sealed the suspected
heroin obtained by Det. Kirkland to be sent for laboratory analysis.
On the second day of the trial, the State called a fifth officer, Detective Andrew
Riggin, who testified that he had obtained the search and seizure warrant and then
conducted the raid on the house. He gave detailed testimony about the events of the raid,
the configuration of the house, and the items seized.
Jessica Bullis, a forensic chemist, testified next and identified the CDS purchased
by Det. Kirkland from Mr. Woods which included heroin and fentanyl. She also identified
the CDS seized in the August 9 raid, which included heroin, fentanyl, cocaine, and
alprazolam.
The State’s final witness, Special Investigator Michael Daugherty—an expert in
drug valuation, identification, and trade practices—testified to the street value of the seized
evidence and to the organizational structure of drug enterprises. At the close of the State’s
case, Appellant moved for judgment of acquittal. The motion was granted as to Counts 6
(conspiracy to distribute fentanyl), 21 (possession of more than 28 grams of heroin), 22
(possession of more than 5 grams of fentanyl), 23 (conspiracy to possess more than 28
grams of heroin), 24 (conspiracy to possess more than 5 grams of fentanyl), and 25
(conspiracy to possess more than 28 grams of heroin) but was denied as to the remainder.
Appellant testified in his own defense. He explained that he and Mr. Blake had been
16
friendly for a long time and that he was taking Mr. Blake to all of his medical appointments
because “he was dying.” He admitted that he had previously dealt heroin and had been
convicted for distribution in the past. Appellant claimed that he only knew Mr. Woods
through Mr. Blake and was aware that he was selling drugs. Appellant adamantly
maintained that he was not involved in selling narcotics with Mr. Woods. He claimed that
he was merely staying at the house on the night of the raid to check in on Mr. Blake before
going to pick up his mother-in-law for a family trip. Appellant denied that any of the drugs
or ammunition found in the house that night belonged to him and explained that he received
mail at that address because his car insurance was registered there. On cross-examination,
Appellant claimed that the Blake Interview was unreliable because Mr. Blake wasn’t in his
right mind and the officers were “tortur[ing]” a dying man.
The defense then rested its case and moved again for a judgment of acquittal,
arguing that the State had not proved a necessary element of the Drug Kingpin charges
against Appellant—namely, the requisite amount of heroin and fentanyl. The court granted
the motion as to Count 12—possession with intent to distribute alprazolam—and denied
the motion as to the remaining counts.
The jury found Appellant guilty on twelve counts: all four counts of Possession of
CDS other than Marijuana (Nos. 30-33); and all eight counts of Conspiracy for Possession
of CDS other than Marijuana (Nos. 34-41). Appellant was either acquitted by the court or
found not guilty by the jury of the remaining 30 counts.
Sentencing Hearing – May 27, 2022
At sentencing, the court imposed four one-year sentences for the four counts of
17
possession of a CDS (Nos. 30-33) to be served consecutively. The court also, after merging
the eight conspiracy convictions into four, imposed one-year sentences for each to be
served concurrently with the four-year sentence on the possession convictions for an
aggregate of four years’ imprisonment. The court granted Appellant credit for time served
since his arrest in the raid on August 9, 2019.
DISCUSSION
I.
Admission of an Inculpatory Statement by an Unavailable Declarant
A. Constitutional Claim
Before this Court, Appellant argues that the trial court’s admission of the Blake
Interview violated his right to confront his accuser under the Sixth Amendment to the
United States Constitution and Article 21 of the Maryland Declaration of Rights because
the interview contained testimonial statements by Mr. Blake, who was unavailable for
cross-examination. The State argues that Appellant did not preserve the issue for appeal.
Appellant, in response, contends that the issue was preserved because, although
defense counsel did not specifically mention the Confrontation Clause, on several
occasions defense counsel complained of “his inability to ‘cross-examine’ Mr. Blake[,]”
—a concept that Appellant contends “is synonymous with the right of a criminal defendant
to confront witnesses testifying against him[.]” Appellant emphasizes that even the State,
at the motions hearing, understood defense counsel’s argument as “mak[ing] an equitable
argument saying it’s not fair, you know, the confrontation clause reigns supreme[.]” We
agree with the State that Appellant’s Confrontation Clause claim was not preserved.
18
The record establishes that, although defense counsel referenced his inability to
cross-examine Mr. Blake on several occasions during the course of his arguments against
admission of the Blake Interview, in context, those statements were clearly contained
within counsel’s arguments against admissibility under the Rule. For example, in
contending that the Blake Interview was not sufficiently trustworthy to be admitted under
the Rule, counsel bemoaned the lack of an established timeframe by Mr. Blake and
explained that “it is extremely confusing what he is talking about as far as timeframe . . .
[s]o without the ability to cross-examine him and hammer this stuff down, I’ll have no
ability – a jury will just hear that he was a drug kingpin at some point in his life and that
worries me[.]” In another instance, counsel noted that “I have no concept of if [Appellant’s
supposed withdrawal from the enterprise] happened a week before, if that happened three
months before, if that happened a year before . . . If I had the ability to cross-examine that
witness we might very well find out what happened a year ago[.]” In other words, counsel
was arguing for exclusion of the Blake Interview in its entirety, but under the logical thread
that the statement was so vague and uncertain as to make it unreliable, as demonstrated by
the fact that cross-examination would have been necessary to clear up the gaps in the
Interview. In fact, defense counsel evinced that understanding from the very beginning, as
he had directly conceded in Appellant’s response to the State’s motion to admit the Blake
Interview that “[t]his issue is controlled by Maryland Rule 5-804[.]”10
10
At oral argument before this Court, Appellant’s counsel pointed to language
contained within Appellant’s response to the State’s motion stating that “[a]t no point has
[the] defense had the opportunity to confront this witness and cross examine him.” Yet,
(Continued)
19
Of course, as Appellant notes, it is true that “preservation of a constitutional
objection premised on the violation of a specific constitutional provision” does not require
“that constitutional provision to be specifically mentioned as the basis for the objection.”
Bhagwat v. State, 338 Md. 263, 281 (1995). Yet, we consider equally plain the premise
that any such objection must be sufficiently definite as to fairly alert the trial court to the
nature of the issue that it is being called upon to correct. See Ray v. State, 435 Md. 1, 23
(2013) (noting that Maryland Rule 8-131(a) works to ensure that “‘(1) a proper record can
be made with respect to the challenge, and (2) the other parties and the trial judge are given
an opportunity to consider and respond to the challenge.’” (quoting Chaney v. State, 397
Md. 460, 468 (2007)). We do not agree that simply protesting the lack of ability to cross-
examine is necessarily sufficient to raise a confrontation claim. For example, although the
right to cross-examine adverse witnesses is at the heart of the Confrontation Clause, the
scope of the confrontation right only extends to testimonial hearsay. Crawford v.
Washington, 541 U.S. 36, 68 (2004). Even if a criminal defendant is denied the opportunity
to cross-examine an unavailable declarant, the Confrontation Clause simply has no
application when the declarant’s statements were non-testimonial in nature.
when we examine the response that was filed, we see that context is crucial. Defense
counsel’s statement was contained within his argument as to why the prior testimony
exception to the hearsay rule, codified in Maryland Rule 5-804(b)(1), did not apply to the
present situation. Defense counsel also pointed out that “the [Blake Interview] is not
former testimony, it is a statement made by the witness in his house being questioned and
at times being yelled at by the police.” As with counsel’s other protestations regarding
cross-examination, the statement was a component of counsel’s arguments about why the
Blake Interview was not admissible under the Maryland Rules—it was not part of a
separate argument raising a constitutional claim.
20
Before the trial court, in the course of arguing that the inability to cross-examine
Mr. Blake was unfair to Appellant, defense counsel did not mention the Sixth Amendment,
Article 21, or Crawford. Nor did he undertake to explain why Mr. Blake’s statements were
testimonial and why the “‘primary purpose’” of the interview was to “‘establish or prove
past events potentially relevant to later criminal prosecution.’” Michigan v. Bryant, 562
U.S. 344, 356 (2013) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). Rather,
as noted previously, counsel’s allusions to the inability to cross-examine were entirely
subsumed within his broader arguments regarding the trustworthiness of the Blake
Interview under Maryland Rule 5-804(b)(3). Although, at the motions hearing the State
briefly referred to defense counsel’s “equitable argument saying it’s not fair, the
confrontation clause reigns supreme,” in context, that statement was part of the State’s
overarching argument that defense counsel was “straying into other arguments” not
actually before the court—specifically, “arguments that go to the weight of the testimony,
not their reliability” under the Rule. The trial court, in turn, proceeded to rule solely on the
admissibility of the Blake Interview under Rule 5-804(b)(3) and never once mentioned the
Confrontation Clause.
Under these circumstances, we agree with the State that Appellant never fairly
apprised the trial court that he was objecting to the admission of the Blake Interview as a
violation of his constitutional right to confront the witnesses against him. Appellant
certainly objected on the ground that Rule 5-804(b)(3) was inapplicable, but as we have
previously explained, though the Confrontation Clause and Rule 5-804(b)(3) are
interrelated, “it is well-settled that the two grounds are not synonymous or coextensive;
21
thus objecting on one ground does not preserve the other ground.” Collins v. State, 164
Md. App. 582, 605-06 (2005).
Although we resolve this case on non-constitutional grounds, we shall utilize our
discretion pursuant to Maryland Rule 8-131(a) to briefly dispel any misconceptions that
the admissibility of a hearsay statement against penal interest is governed by Rule 5-
804(b)(3) in any way to the exclusion of the Confrontation Clause and Article 21 of the
Maryland Constitution’s Declaration of Rights.11 As we shall explain in more detail infra,
prior to the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S.
36 (2004), the analysis of a Confrontation Clause claim and certain exceptions to the
admission of hearsay under the Maryland Rules were much more intertwined as the
ultimate focus under each was on the proffered statement’s reliability. See Ohio v. Roberts,
448 U.S. 56, 65-66 (1980) overruled by Crawford v. Washington, 541 U.S. 36, 68 (2004);
West v. State, 124 Md. App. 147, 166-67 (1998); see also Gray v. State, 368 Md. 529, 566-
67, 574-75 & n.4 (2002) (Raker, J., concurring) (explaining that “it is important to keep in
mind that the standards for admissibility under the Confrontation Clause are stricter than
under the hearsay exception, requiring independent corroboration, while the hearsay
exception under the rule does not.”).
11
The apparent confusion is demonstrated, for example, by the State’s comments at
the motions hearing regarding the interplay between the Confrontation Clause and Rule 5-
804(b)(3)—specifically, the suggestion that “the confrontation clause reigns supreme” was
not apposite because that was “straying into other arguments . . . that go to the weight of
the testimony, not their reliability.”
22
To be clear, reliability is no longer the touchstone of the analysis under the
Confrontation Clause.12 Pursuant to Crawford and its progeny, a statement that is
testimonial—i.e., that was taken for purposes of proving “‘past events potentially relevant
to later criminal prosecution[,]’” Bryant, 562 U.S. at 356 (quoting Davis, 547 U.S. at
822)—no matter how internally or externally reliable, is inadmissible when there has been
no prior opportunity to cross-examine the witness. Accordingly, although admissibility
under both the Confrontation Clause and the hearsay exception is pre-conditioned on a
showing of unavailability, a statement that is admissible under Rule 5-804(b)(3) might not
be admissible under the Confrontation Clause, and vice versa. The required analyses under
each are separate and distinct, Collins v. State, 164 Md. App. at 605-06, and a claim under
one body of law does not preclude a claim under the other. In other words, even when
admissibility of a co-defendant’s statement against interest has been resolved in favor of
12
The same is true with respect to a claim brought under Article 21 of the Maryland
Declaration of Rights, in that the Supreme Court of Maryland (then, the Court of Appeals)
explained in State v. Snowden, that “Article 21 of the Maryland Declaration of Rights . . .
is Maryland’s counterpart to the Confrontation Clause and . . . [t]his Court often has
construed the Confrontation Clause and Article 21 . . . to be in pari materia.” State v.
Snowden, 385 Md. 64, 74 n.9 (2005). Although we have not identified a case that
highlights a distinction between the Confrontation Clause and Article 21 that is applicable
here, we note that in a different context, our Supreme Court, in applying Article 21,
departed from following the fractured decision in Williams v. Illinois, 567 U.S. 50 (2015).
In Leidig v. State, due to the difficulties of applying the decision in Williams, our Supreme
Court held that whether a scientific report prepared in advance of trial is testimonial under
Article 21 is governed by the “primary purpose” test set out in Davis v. Washington, 547
U.S. 813 (2006), not by the “formality requirement” set forth in Justice Thomas’s
concurrence in Williams (which has been determined to be the controlling Marks opinion).
Leidig v. State, 475 Md. 181, 234-46 (2021).
23
the State under Rule 5-804(b)(3), the Confrontation Clause can pose a separate bar to
admissibility so long as the defendant clearly raises it before the trial court.
B. Statement Against Interest Under Maryland Rule 5-804(b)(3).
1. The Legal Framework Governing
Admission of a Statement Against Penal Interest
We begin with a summary of the law governing the dispositive issue in this appeal
in order to place the parties’ contentions, and our analysis, in proper context.
Maryland Rule 5-801 defines hearsay as a “statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted”; and Rule 5-802 provides that hearsay is generally not admissible,
“except as otherwise provided by these rules or permitted by applicable constitutional
provisions or statutes[.]” One class of exceptions to the rule against hearsay is delineated
under Maryland Rule 5-804 and permits the admission of certain types of hearsay evidence
when the declarant is unavailable. “Unavailability as a witness” includes when a witness
is “unable to be present or to testify at the hearing because of death or then existing physical
or mental illness or infirmity.” Md. Rule 5-804(a)(4).
Within this category of exceptions for statements made by an unavailable declarant
is a statement against interest—that is:
[a] statement which was at the time of its making so contrary to the
declarant’s pecuniary or proprietary interest, so tended to subject the
declarant to civil or criminal liability, or so tended to render invalid a claim
by the declarant against another, that a reasonable person in the declarant’s
position would not have made the statement unless the person believed it to
be true. A statement tending to expose the declarant to criminal liability and
offered in a criminal case is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.
24
Md. Rule 5-804(b)(3). “‘The underlying theory of this exception is that persons do not
make statements which are damaging to themselves unless satisfied for good reason that
they are true.’” Jackson v. State, 207 Md. App. 336, 348, cert. denied 429 Md. 530 (2012)
(quoting State v. Standifur, 310 Md. 3, 11 (1987)) (cleaned up). The corroboration
requirement contained in Rule 5-804(b)(3) “‘serves to deter criminal accomplices from
fabricating evidence at trial.’” Stewart v. State, 151 Md. App. 425, 447 (2003) (quoting
Roebuck v. State, 148 Md. App., 563, 580 (2002). We have observed that “there is no
litmus test that courts must follow to establish adequate corroboration or trustworthiness.”
Roebuck, 148 Md. App. at 580.
Therefore, as a general matter, when evaluating the admissibility of a statement
offered in evidence as a statement against penal interest, the trial court must determine that
“‘1) the declarant’s statement was against his or her penal interest; 2) the declarant is an
unavailable witness; and 3) corroborating circumstances exist to establish the
trustworthiness of the statement.’” Jackson, 207 Md. App. at 336 (quoting Roebuck, 148
Md. App. at 578). More specifically, in determining whether the proffered statement is
sufficiently self-inculpatory to qualify under the exception, the court should consider the
“content of the statement in light of all known and relevant circumstances surrounding the
making of the statement and all relevant information concerning the declarant,” and
“determine whether the statement was in fact against the declarant’s penal interest and
whether a reasonable person in the situation of the declarant would have perceived that it
was against his penal interest at the time it was made.” Standifur, 310 Md. at 17. Finally,
25
after determining that the statement as a whole is averse to the declarant’s penal interest,
the court must parse through the statement “‘and determine the separate admissibility of
each single declaration or remark’” in the larger narrative. State v. Matusky, 343 Md. 467,
492 (1996) (quoting State v. Mason, 460 S.E.2d 36,45 (W. Va. 1995)) (cleaned up).
2. The Corroboration Requirement
As previously noted, Maryland Rule 5-804(b)(3) instructs that a statement “tending
to expose the declarant to criminal liability and offered in a criminal case is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
Md. Rule 5-804(b)(3). Before 2011, the prior version of Maryland Rule 5-804(b)(3) only
required a showing of corroborating circumstances where the statement was offered to
exculpate the accused—i.e., by showing that the declarant, instead, committed the charged
offense. See, e.g., Roebuck v. State, 148 Md. App. 563, 578 (2002) (quoting prior version
of Rule 5-804(b)(3)). The origins of the current corroboration requirement developed
along two distinct lines of cases prior to amendment of Rule 5-804(b)(3) in 2011 to also
require corroborating circumstances when a statement is offered to inculpate the accused.
First, in those cases in which the statement was being offered by the defense, the
defendant was permitted wide latitude to elucidate corroborating evidence at trial to permit
admission of an exculpatory statement. For example, in Gray v. State, the defendant was
accused of murdering his wife, and he sought to introduce an out-of-court statement by the
alternative suspect, his wife’s lover, who was unavailable by invocation of the Fifth
Amendment. 368 Md. 529, 533-35 (2002). The wife’s lover had made a statement to the
relator witness that he was in an intimate relationship with the victim, and that he had
26
murdered her with a gun and a knife, which he displayed to the relator witness. Id. at 535-
36. The trial court excluded the testimony from the relator witness, finding the evidence
lacked sufficient corroboration. Id. at 536-37. The Maryland Supreme Court reversed,
pointing to “other evidence” that “was also proffered to corroborate [the relator witness’s]
testimony about [the declarant]’s statements against interest[,]” including, inter alia: 1)
evidence that the declarant was involved with the victim in a love triangle; 2) testimony
that the declarant had been in possession of jewelry similar to that worn by the victim,
coupled with evidence that the victim’s body was missing the jewelry and also missing five
fingers; 3) evidence showing that the victim was killed by three gunshots to the head by a
.22 caliber gun and was also stabbed; 4) testimony corroborating the declarant’s presence
in the relator witness’s home, when some of the statements were allegedly made within the
hearing of the relator witness and her husband; and 5) testimony that the declarant was a
confidante of the relator witness’s husband. Id. at 546–47.
In both Stewart v. State, 151 Md. App. 425 (2003) and Roebuck v. State, 148 Md.
App. 563 (2002), the trial court’s admission of statements against penal interest that were
exculpatory of the accused were challenged because they tended to inculpate the declarants
as the perpetrators. In these cases, we surveyed Maryland decisional law to collect the
following examples of other corroborating factors to be considered:
(1) “that a reasonable person in the situation of the declarant would have
perceived the statement as disserving at the time he made it,” Stewart, 151
Md. App. at 448 (quoting Standifur, 310 Md. at 13 (1987));
(2) the consistency of a declarant’s statement, because “repeated changes in the
declarant’s story . . . would properly make any court suspicious of the
statement’s reliability,” Id. at 455 (quoting United States v. Bahadar, 954
27
F.2d 821, 829 (2d Cir. 1992) (cleaned up));
(3) the timing of the statement, because “[w]hen a statement against interest is
made soon after the event in issue, that factor generally weighs in favor of
trustworthiness[,]” Roebuck, 148 Md. App at 583-84 (citing United States v.
Camacho, 163 F. Supp. 2d 287, 306 (S.D.N.Y. 2001)); and
(4) the spontaneity of the statement, as “courts tend to regard as reliable those
statements that are made spontaneously, rather than ‘in response to coercive
questioning by police officers[,]’” Id. at 584 (quoting Camacho, 163 F. Supp.
2d at 306).
In the second line of cases, although the prior version of Rule 5-804(b)(3) did not
require a showing of reliability where the statement was inculpatory of the accused,
Maryland Courts required a showing of reliability under the Sixth Amendment’s
Confrontation Clause as it was then applied. At the time, under the operative standard set
by Ohio v. Roberts, 448 U.S. 56, 66 (1980),13 the proponent of the statement (i.e., the State)
was required to demonstrate that the statement was “cloaked with indicia of reliability . . .
[which] means that there must be a showing of particularized guarantees of
trustworthiness.” Wilkerson v. State, 139 Md. App. 557, 576 (2001) (quoting West v. State,
124 Md. App. 147, 167 (1998)). In several cases, we seemed to suggest that the analyses
13
Roberts created a two-part test pursuant to which the proponent of the statement
was required to show (1) the necessity of introducing the out-of-court statement due to the
declarant’s unavailability, and (2) the statement was reliable either because it fell within a
“firmly rooted hearsay exception” or it bore “particularized guarantees of trustworthiness.”
Ohio v. Roberts, 448 U.S. 56, 65-66 (1980) overruled by Crawford v. Washington, 541
U.S. 36, 68 (2004). In 2004, the United States Supreme Court disentangled these doctrines
in Crawford v. Washington, 541 U.S. 36 (2004), overruling Roberts and clarifying that the
Confrontation Clause—regardless of the applicability of any firmly rooted hearsay
exception or particularized guarantees of trustworthiness—bars the admission of
testimonial hearsay from an unavailable declarant unless the defendant has had a prior
opportunity to cross-examine. Id. at 68.
28
under Rule 5-804(b)(3)’s corroboration requirement (for exculpatory statements) and the
Confrontation Clause’s mandate of “particularized guarantees of trustworthiness” were one
and the same. See, e.g., West, 124 Md. App. at 167 (implicitly suggesting a melding of the
two doctrines); Wilkerson, 139 Md. App. at 576 (same); Roebuck, 148 Md. App. at 579
(same); but see Gray v. State, 368 Md. 529, 566-67, 574-75 & n.4 (2002) (Raker, J.,
concurring) (warning of the danger of conflating the two doctrines and emphasizing “it is
important to keep in mind that the standards for admissibility under the Confrontation
Clause are stricter than under the hearsay exception, requiring independent corroboration,
while the hearsay exception under the rule does not.”).
Indeed, as alluded to by Judge Raker in Gray, the Supreme Court of Maryland14 had
explained in Simmons v. State, that although “courts have considerable leeway in their
consideration of appropriate factors to determine the existence of particularized guarantees
of trustworthiness . . . [o]ne of the factors which a court may not consider, however, is
other corroborative evidence” when determining reliability under Roberts. 333 Md. 547,
560 (1994) (citation omitted). Instead, “the inherent reliability of the statement is to be
measured by those circumstances ‘that surround the making of the statement and that
render the declarant particularly worthy of belief[,]’” not “by reference to other evidence
at trial.” Id. at 560-61 (quoting Idaho v. Wright, 497 U.S. 805, 819, 822 (1990)). The
Simmons decision exemplified this earlier approach in its consideration of factors relevant
14
During the November 8, 2022, general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Appeals of Maryland to the
Supreme Court of Maryland. The name change took effect on December 14, 2022.
29
to determine the reliability of the inculpatory statement against penal interest, including (1)
“the ‘age, education, experience and condition of the declarant’”; (2) the “statement’s
spontaneity”; and (3) the motive of the declarant, i.e., whether the declarant “desire[d] to
mitigate his own involvement or to overstate the involvement of the person he
implicated[.]” Id. at 562-63 (quoting Standifur, 310 Md. at 12).
After Crawford jettisoned the Roberts test, the need to examine the “particularized
guarantees of trustworthiness” of a statement against interest offered against the accused
in a criminal case fell away as a matter of Confrontation Clause jurisprudence.15
Accordingly, as the law stood post-Crawford, between 2004 and 2011, corroboration of a
statement offered as a statement against interest was only required when the statement was
offered to exculpate the defendant. In 2011, as we have noted, the Rules Committee
addressed this gap, removing the phrase “to exculpate the accused” and replacing it with
“in a criminal case[.]” 165th REPORT OF THE STANDING COMMITTEE ON RULES OF
PRACTICE AND PROCEDURE at 22-25 (Aug. 24, 2011). A Reporter’s Note indicated the
logic underlying the change:
The Rules Committee recommends a change to Rule 5-804 (b)(3).
This was requested by the Office of the Public Defender, and it is based on
an amendment to Fed. R. Ev. 804 (b)(3) that will go into effect December
2010. The proposed amendment would require both sides in a criminal case
to show corroborating circumstances as a condition for admission . . .
Currently, the Rule requires only the defendant to make this showing. The
15
Of course, the statement would still have to satisfy the formulation laid out in
Crawford to survive Confrontation Clause scrutiny, perhaps by being non-testimonial or
there having been a prior opportunity to cross-examine the witness. See State v. Raine, 238
So.3d 1076, 1085-86 (La. App. 2018) (upholding admission of statement against interest
of co-defendant because statements were made to family members and a cellmate and thus
were not testimonial).
30
Office of the Public Defender points out that under the current Rule, there is
a risk of wrongful convictions based on unreliable statements against interest
by unavailable witnesses who cannot be cross-examined. Unavailable State’s
witnesses’ testimony should be subject to the same requirement of
corroboration as that of defense witnesses. Id. at 25.
Accordingly, it is now clear that a showing of trustworthiness is required under the
Rule regardless of whether it is inculpatory or exculpatory or by whom it is offered.
Moreover, because Roberts and its progeny no longer inform that analysis, the State is
simply subject to “the same requirement of corroboration” and may provide corroborating
circumstances from other evidence adduced at trial, as has been the traditional practice in
evaluating corroborating circumstances under Rule 5-804(b)(3) as applied to exculpatory
statements offered by the defendant. Gray v. State, 368 Md. 529, 546–47 (2002); Stewart
v. State, 151 Md. App. 425, 454-56 (2003); Roebuck v. State, 148 Md. App. 563, 592-94
(2002). That does not mean, however, that these two classes of statements are entirely
equivalent in their presumptive reliability, as the Supreme Court of Maryland has made
clear in the past that:
[W]e must treat as “inevitably suspect” a statement made to persons in
authority and implicating a codefendant, even though the statement also
contains an admission of the declarant’s culpability . . . A defendant
implicating his confederate may do so to curry favor with the authorities, to
achieve a plea bargain, to shift the blame by showing that another was more
culpable, or simply to have another with whom to share the blame.
State v. Standifur, 310 Md. 3, 13 (1987) (quoting Cruz v. New York, 481 U.S. 186, 190
(1987)) (other citations omitted).
31
3. Parsing Requirement
In State v. Standifur, decided prior to the adoption of Title 5 of the Maryland Rules,
the Supreme Court of Maryland first addressed the necessity of disaggregating the
constituent parts of a larger self-inculpatory narrative. 310 Md. 3 (1987). In that case, a
declarant-witness who had illegally purchased a gun used in a burglary gave a statement to
law enforcement explaining how he came into possession of the weapon. Id. at 6-7. At
trial, the declarant-witness was unavailable and the State Trooper who took that person’s
statements was permitted to relate them as declarations against the declarant-witness’s
penal interest. Id. at 8. We reversed and the Supreme Court of Maryland affirmed our
decision. Id. at 9, 20. After discussing the rationale of the statement against interest
exception to the hearsay rule, the Court explained that “[i]nculpatory statements may be
divided into collateral and noncollateral statements.” Id. at 15. Noncollateral statements
were those “in which the facts inculpating the defendant are found in the portion of the
statement directly against the declarant’s interest.” Id. at 15-16. Collateral statements, by
contrast, were those in which “the inculpatory material is not found in the portion of the
statement directly against the declarant’s interest, but instead appears in another portion of
the statement.” Id. at 16.
The Court outlined the process for analyzing the admissibility of a hearsay statement
offered as a declaration against penal interest. Id. at 17. We summarize the analytical steps
set out by the Standifur Court as follows:
(1) Unavailability. The trial court must find that the declarant is unavailable to
testify at trial.
32
(2) Penal Interest/Nature of the Statement as Whole. The trial court—considering
“the content of the statement in the light of all known and relevant circumstances
surrounding the making of the statement and all relevant information concerning
the declarant”—must “determine whether the statement was in fact against the
declarant’s penal interest and whether a reasonable person in the situation of the
declarant would have perceived that it was against his penal interest at the time
it was made.”
(3) Reliability. The trial court must then “consider whether there are present any
other facts or circumstances, including those indicating a motive to falsify on the
part of the declarant, that so cut against the presumption of reliability normally
attending a declaration against interest that the statements should not be
admitted.”
(4) Final Inquiry/Parsing. Finally, “a statement against that survives this analysis,
and those related statements so closely connected with it as to be equally
trustworthy, are admissible as declarations against interest.”16
Standifur, 310 Md. at 12, 17 (emphasis added); see also State v. Matusky, 343 Md. 467,
479-82 (1996) (discussing the test set forth in Standifur and breaking it into separate
“requirements for admissibility” culminating with the “final inquiry” in which the “trial
judge [must] parse the entire declaration to determine which portions of it are directly
contrary to the declarant’s penal interest, and which collateral portions are so closely
related as to be equally trustworthy.”). Applying that framework, the Court concluded that
the declarant-witness’s statement should not have been admitted because the evidence was
insufficient to prove that a reasonable person in his position “would have understood the
16
As we explain infra, the Supreme Court of Maryland would modify the analysis
on this final step by adopting the Williamson framework and clarifying that “‘proximity’
between the self-inculpatory and ‘collateral’ portions no longer guarantees admissibility.”
State v. Matusky, 343 Md. 467, 491 (1996). Instead, even as to collateral statements, “[t]he
test for admissibility to be applied to each statement within a declaration is whether a
reasonable person in the declarant’s circumstances would have believed the statement was
adverse to his or her penal interest at the time it was made.” Id. at 492.
33
disserving nature of the statement” and “the totality of the circumstances under which the
statement was made militate[d] against a finding of the requisite reliability.” Id.A few years later, in Williamson v. United States, the United States Supreme Court
confronted the admissibility of a co-defendant’s partially inculpatory statement under FED.
R. EVID. 804(b)(3). 512 U.S. 594 (1994). There, the declarant, Harris, was discovered
with a large quantity of cocaine in the trunk of his rental car and was taken into custody.
Id. at 596. During his interview with officers from the Drug Enforcement Administration,
Harris indicated that the seized cocaine belonged to Williamson and that Harris was simply
acting as a courier. Id. at 596-97. Williamson was eventually charged with various drug
offenses and Harris refused to testify at trial. Id. at 597. Nevertheless, the trial court
permitted the DEA agent who interviewed Harris to relate his statements, concluding that
they qualified as statements against interest under FED. R. EVID. 804(b)(3). Id. at 597-98.
The United States Court of Appeals for the Eleventh Circuit affirmed, but the Supreme
Court reversed, concluding that the statements were not properly admitted. Id. at 598, 604.
The Court reasoned that “the most faithful reading of Rule 804(b)(3) is that it does
not allow admission of non-self-inculpatory statements, even if they are made within a
broader narrative that is generally self-inculpatory.” Williamson, 512 U.S. at 600-01. The
Court emphasized that there was “no reason why collateral statements, even ones that are
neutral as to interest . . . should be treated any differently from other hearsay statements
that are generally excluded” and the only consideration is whether each statement in the
broader narrative is itself against the declarant’s interest. Id. at 600-01. The Court
recognized that “the confessions of arrested accomplices may be admissible if they are
34
truly self-inculpatory, rather than merely attempts to shift blame or curry favor” when
viewed in context. Id. at 603. As applied to Williamson’s case, though, the Court noted
that while portions of Harris’s confession were self-inculpatory, other parts, “especially the
parts that implicated Williamson, did little to subject Harris himself to criminal liability”
and therefore could not qualify under the exception. Id. at 604. Because the lower courts
never “inquired whether each of the statements in Harris’ confession was truly self-
inculpatory[,]” the Court remanded the case “to the Court of Appeals to conduct this
inquiry in the first instance.” Id.Justice Scalia concurred and wrote to expound his view that the statement against
interest exception may properly cover statements which inculpate both the declarant and a
co-conspirator. Williamson, 512 U.S. at 605-07 (Scalia, J., concurring). In an influential
passage, Justice Scalia explained that:
. . . a declarant’s statement is not magically transformed from a statement
against penal interest into one that is inadmissible merely because the
declarant names another person or implicates a possible codefendant. For
example, if a lieutenant in an organized crime operation described the inner
workings of an extortion and protection racket, naming some of the other
actors and thereby inculpating himself on racketeering and/or conspiracy
charges, I have no doubt that some of those remarks could be admitted as
statements against penal interest. Of course, naming another person, if done,
for example, in a context where the declarant is minimizing culpability or
criminal exposure, can bear on whether the statement meets the Rule
804(b)(3) standard. The relevant inquiry, however—and one that is not
furthered by clouding the waters with manufactured categories such as
“collateral neutral” and “collateral self-serving,” . . . must always be whether
the particular remark at issue (and not the extended narrative) meets the
standard set forth in the Rule. Id. at 606-07 (Scalia, J., concurring).
Following Williamson, in Matusky, the Supreme Court of Maryland returned to the
issue of parsing. 343 Md. 467 (1996). There, the respondent was charged with two counts
35
of first-degree murder. Id. at 470. The respondent’s co-defendant (and alibi witness),
White, had previously admitted to his fiancée that he had been present when the respondent
committed the murder and that he abetted the crime. Id. at 471, 473. At trial, the co-
defendant invoked his Fifth Amendment privilege and was, therefore, unavailable to
testify. Id. at 472. The State, however, called the fiancée to testify as to what the co-
defendant told her, identifying the respondent as the killer and the co-defendant as the
getaway driver. Id. at 472-73. The court permitted the fiancée to testify under the
statement against penal interest exception. Id. at 471-72. This Court reversed, reasoning
that the trial court should not have admitted the co-defendant’s statement in its entirety
because portions of the statement were not self-inculpatory, especially those which
identified the respondent as the killer and discussed his motive. Id. at 475-76 (citing
Matusky v. State, 105 Md. App. 389 (1995)). The Supreme Court of Maryland agreed with
our analysis, affirmed our decision, and remanded the case for a new trial. Id. at 492.
Relying heavily on Standifur, the Supreme Court re-affirmed Standifur’s basic
decisional framework, explaining that Standifur’s “final inquiry” mandates “that the trial
judge parse the entire declaration to determine which portions of it are directly contrary to
the declarant’s penal interest, and which collateral portions are so closely related as to be
equally trustworthy.” Matusky, 343 Md. at 481-82. Applying that standard, the Court
concluded that “the trial court erroneously admitted [the fiancée’s] testimony in toto rather
than analyzing the declaration statement by statement to determine whether collateral
portions of [the co-defendant’s] account should be redacted.” Id. at 485. Instead, the Court
observed that “the trial court should have redacted those portions of [the co-defendant’s]
36
declaration identifying [respondent] as the murderer and suggesting [respondent’s] motive
for the crime” because “[t]hese portions of the declaration did not directly incriminate” him
and simply served “to shift blame from [the co-defendant] to [respondent].” Id.Accordingly, “[b]ecause the trial court failed to properly analyze [the co-defendant’s]
hearsay declaration,” respondent’s convictions had to be reversed. Id.The Court also addressed the United States Supreme Court’s decision in
Williamson. Although noting that Williamson was merely persuasive insofar as it
interpreted federal evidentiary procedure, the Court resolved to “adopt it as part of
Maryland law, in accord with a number of other states” and quoted approvingly from
Justice Scalia’s concurrence. Matusky, 343 Md. at 489-90 & n.13. However, as the Court
observed, acceptance of Williamson required tweaking the Standifur framework because
the “central distinction between the Williamson approach and our approach in Standifur is
that ‘proximity’ between the self-inculpatory and ‘collateral’ portions no longer guarantees
admissibility.” Id. at 491. Instead, in parsing through each constituent portion of the larger
narrative, “[t]he test for admissibility to be applied to each statement within a declaration
is whether a reasonable person in the declarant’s circumstances would have believed the
statement was adverse to his or her penal interest at the time it was made.” Id. at 492.
Collateral proximity, at least absent a showing that the collateral statement was also
sufficiently self-inculpatory, would no longer suffice. Id.
4. Parties’ Contentions
We now return to the present case. Appellant argues two grounds upon which the
trial court misapplied the statement against penal interest hearsay exception under
37
Maryland Rule 5-804(b)(3) when it admitted the Blake Interview.
First, he contends that Mr. Blake’s statements in the Blake Interview were
inadmissible because there were insufficient corroborating circumstances to bolster the
trustworthiness of the statement to merit application of the exception. Appellant argues on
appeal that the corroborating evidence acknowledged by the court was insufficient to
establish the Blake Interview’s reliability. Further, he asserts that the inconsistency
exhibited throughout the interview “eviscerated its trustworthiness” because the statements
did not intelligibly connect Appellant’s evolving role in the organization to a timeline
lasting several months. Appellant asserts that Mr. Blake’s testimony also was not truly
inculpatory because it tended to “distance[] himself from the organization.” He notes that
“Mr. Blake gave confusing and inconsistent answers about the timing of [Appellant]’s
involvement[;]” for example, by indicating that “[Appellant] had ‘dropped out’ of the drug
organization” in the months just before the raid, but also that “[Appellant] was still
involved when Mr. Woods took over because [Appellant] ‘knows the people’ and that
Appellant would visit Salisbury to retrieve his money and transport drugs[.]”
Second, he stresses that the trial court should have required the State to parse and
further excise the recorded testimony before the court admitted it into evidence. Relying
on Standifur and Matusky, Appellant asserts the trial court was required to conduct an
“against-interest analysis for each statement” “by considering its content and the
circumstances surrounding its making[,]” before it could “admit statements that directly
incriminate the declarant and ‘involve substantial exposure to criminal liability.’”
Appellant posits that Mr. Blake’s statements that acknowledged his own involvement in
38
the conspiracy but indicated that Appellant had superior control were “blame shifting” and
thus were not against Mr. Blake’s penal interest.
The State counters that Appellant failed to preserve the second argument by not
asking the court to parse the Blake Interview and by failing to identify the specific
statements which the court should have redacted. The State emphasizes that the Blake
Interview that was admitted at trial and played for the jurors was significantly redacted
from the version that the pretrial motions court ruled was permissible. The State cites
Belton v. State, 152 Md. App. 623, 634 (2003) for the proposition that an opponent of the
evidence must, in addition to noting an objection, “request redaction to preserve his
appellate claim[.]” The State posits that, rather than request redactions, defense counsel
adopted the State’s argument that the statements could not be parsed as the reason to
exclude the entire statement.
Addressing the merits, the State, quoting from Justice Scalia’s concurrence in
Williamson, emphasizes that “a declarant’s statement is not magically transformed from a
statement against penal interest into one that is inadmissible merely because the declarant
names another person or implicates a possible codefendant.” The State urges that “Blake’s
description of his own role, which was against his criminal interest” was inherently
intertwined with his statements about Appellant. In response to Appellant’s assertion that
the Blake Interview was not sufficiently reliable, the State points to the existence of ample
corroborating evidence considered by the court and asserts that the statements in the Blake
Interview were adequately clear and coherent to be admitted. Noting the deferential
standard of review applied to the trial court’s determination of reliability, the State claims
39
that “[n]one of the[] claimed inconsistences [in the Blake Interview] meet the heavy burden
of establishing plain error in the circuit court’s finding of trustworthiness.”
Appellant replies that he was not “required to request specific redactions to Mr.
Blake’s declaration to preserve this issue” regarding the court’s putative failure to parse
the statements. Citing Matusky, he notes that counsel in that case “did not request specific
redactions” to the relator-witness’s testimony proffering a statement against penal interest.
Instead, counsel raised a general objection and was granted a continuing objection by the
court. On appeal in that case, Appellant stresses that “[t]he Supreme Court of Maryland
did not discuss preservation but appeared to find the issue preserved and decided on the
merits.” Here, Appellant argues, defense counsel’s general standing objections were
sufficient to preserve his hearsay argument regarding “the court’s incontrovertible
requirement to parse” each of the statements contained in the Blake Interview.
5. Analysis
As noted, Appellant assigns two primary contentions of error with respect to
admission of the Blake Interview: (1) that Mr. Blake’s statements are inadmissible because
there were insufficient corroborating circumstances to bolster the trustworthiness of the
statement to merit application of the exception; and (2) that the trial court should have
parsed and redacted the recorded testimony before the court admitted it into evidence. We
shall address each contention in turn.
It is well established that a “trial court’s ultimate determination of whether
particular evidence is hearsay or whether it is admissible under a hearsay exception is
owed no deference on appeal, but the factual findings underpinning this legal conclusion
40
necessitate a more deferential standard of review.” Gordon v. State, 431 Md. 527, 538
(2013). Therefore, when “reviewing a trial court’s ruling on whether evidence falls under
an exception to the rule against hearsay,” this Court “reviews for clear error the trial court’s
findings of fact, and reviews without deference the trial court’s application of the law to its
findings of fact.” Hailes v. State, 442 Md. 488, 499 (2015).
a. The State Satisfied Its Burden of Proving Trustworthiness
The State, as the proponent of the Blake Interview, had the burden of proving that
“corroborating circumstances clearly indicate the trustworthiness of the statement.” Md.
Rule 5-804(b)(3). Because the “trial court’s assessment of the declaration’s reliability is a
fact-intensive determination[,]” we will “not ordinarily reverse unless it is clearly
erroneous.” State v. Matusky, 343 Md. 467, 486 (1996). Considering the circumstances
presented in the instant case, we conclude that the State presented sufficient corroborating
circumstances to permit the admission of portions of the Blake Interview.
As explained, at the September 14, 2020 motions hearing, the State listed examples
of other evidence that it claimed corroborated the statements in the Blake Interview.
Additionally, although Mr. Blake’s reference to a purported request by Appellant for Mr.
Blake to retrieve something from the “Pemberton” apartment was excised from the
recording played at trial, the State explained at the motions hearing that this circumstance
supported Mr. Blake’s explanation “throughout the interview . . . that the Pemberton
residence was somewhere that the organization utilized to store controlled dangerous
41
substances.”17
Appellant acknowledges that corroboration by reference to other evidence is a
proper means of proving trustworthiness, but stresses that the court was nevertheless
required to “analyze the entire declaration and surrounding circumstances to ensure
trustworthiness.” We agree with Appellant that this inquiry is especially critical when the
statement is offered against a defendant as we “treat as ‘inevitably suspect’ a statement
made to persons in authority and implicating a codefendant” because a “defendant
implicating his confederate may do so to curry favor with the authorities, to achieve a plea
bargain, to shift the blame by showing that another was more culpable, or simply to have
another with whom to share the blame.” State v. Standifur, 310 Md. 3, 13 (1987) (quoting
Cruz v. New York, 481 U.S. 186, 190 (1987)).
We recognize that, at the time of the interview, Mr. Blake was a potential co-
defendant with a variety of severe health problems and that he had trouble clearly
communicating with the officers. As Appellant points out, the officers expressed
frustration several times that Mr. Blake’s narrative was incoherent, unresponsive, or
contradictory at times. Appellant seizes on the internal inconsistencies in the Blake
Interview, claiming that they “eviscerated” its trustworthiness since “[r]epeated changes in
[the declarant’s] story . . . would properly make any [court] suspicious of the statement’s
17
It was proper for the trial court to consider this portion of the Blake Interview in
determining admissibility because the court, in deciding such preliminary questions under
Maryland Rule 5-104(a) “may, in the interest of justice, decline to require strict application
of the rules of evidence, except those relating to privilege and competency of witnesses.”
Md. Rule 5-104(a).
42
reliability.” Stewart v. State, 151 Md. App. 425, 455 (2003). We also agree that certain
portions of Mr. Blake’s narrative, considered in isolation, could be considered
contradictory or confusing. For example, Appellant points to separate portions of the
interview in which Mr. Blake claimed that Appellant gave him a certain amount of heroin
each week and then explained that he actually received heroin from, and gave profits to,
another alleged associate of Appellant’s.
We do not agree, however, that these purported inconsistencies “eviscerated” the
trustworthiness of Mr. Blake’s narrative statement in its entirety. First, as the State
contends, some of the contradictions that Appellant points to can just as easily be construed
as efforts on the part of Mr. Blake to clarify earlier ambiguous statements. In the above
example, although Mr. Blake did state that Appellant “gave” him around 15 to 30 bags of
heroin per week, his later statement could (perhaps more naturally) be read as clarifying
that Appellant did not personally hand him the narcotics and instead acted through an
associate. Such clarifications are often the byproduct of effective police questioning. Sgts.
Banks and Bennett several times throughout the interview—in addition to asking clarifying
follow-up questions—would summarize their interpretation of Mr. Blake’s story and repeat
it back to him so that he could confirm, which he did by nodding affirmatively.
Second, although some of the intrinsic circumstances of the interview—namely, Mr.
Blake’s status as a potential co-defendant, failing health, and difficulty in expressing a fully
consistent narrative—weighed against a finding of trustworthiness, the State produced
ample corroborating evidence at trial to overcome those deficiencies. Certainly Mr.
Blake’s statements regarding his role, and the role of Mr. Woods and Appellant in the
43
enterprise, were corroborated by other evidence produced at trial. Moreover, it is clear,
both from the content of the Blake Interview and from the external circumstances, that Mr.
Blake had intimate knowledge of and involvement in the drug distribution enterprise at the
heart of this case. Accordingly, we hold that the trial court’s finding that there were
sufficient corroborating circumstances establishing the trustworthiness of the Blake
Interview was not clearly erroneous.
b. The Trial Court Failed to Parse the Interview
Next, we turn to Appellant’s contention that the trial court failed to sift through the
Blake Interview to determine which statements were sufficiently self-inculpatory and to
redact all other statements. At the threshold, we reject the State’s contention, relying on
Belton v. State, 152 Md. App. 623, 634 (2003), that Appellant did not preserve this issue
for our review because Appellant failed to identify and request redaction of the precise
statements that should have been excluded from the redacted Blake Interview.
In Belton, we considered the propriety of admitting the recorded statement of a
shooting victim after the victim had recanted his prior identification of Belton as the
shooter at trial. Belton, 152 Md. App. at 626-29. There, the victim was robbed at gunpoint
and shot in the chest. Id. at 626. The next day, the victim identified Belton as the shooter,
identified him from a photo array, and proceeded to give a recorded statement in which he
again identified Belton and corroborated his prior identification from the photo array. Id.
at 627. At trial, the victim recanted his identification of Belton, but the State played for
the jury a recording of the victim’s statement in which the victim detailed that Belton shot
him after having sold him marijuana. Id. at 628-29.
44
Belton noted a timely appeal and we held that the victim’s recorded statement was
properly admitted at trial as a prior inconsistent statement pursuant to Maryland Rule 5-
802.1(a)(3) and as a prior extrajudicial identification pursuant to Maryland Rule 5-
802.1(c). Belton, 152 Md. App. at 631-34. Belton, for his part, contended that the trial
court exceeded its discretion in admitting the entire recording because it “contained, in
addition to the extrajudicial identification, a detailed description of the events of the alleged
crime, the statements alleged to have been [made] to [the victim] by appellant, and the
length of [the victim’s] and appellant’s acquaintanceship.” Id. at 633. We considered this
argument unpreserved for our review, reasoning that “after the circuit court overruled
appellant’s general objection to admission of the tape, appellant did not request a redaction
or limitation of the portion of the tape to be played to the jury.” Id. at 634. We held that
“it is the obligation of the party seeking redaction to raise the issue to the judge.” Id. (citing
JOSEPH F. MURPHY, JR., MARYLAND EVIDENCE HANDBOOK 20 (3d. ed.1999)).
We do not question the soundness of the principle that it is generally the “obligation
of the party seeking redaction to raise the issue to the judge.” Belton, 152 Md. App. at 634.
Yet, the present case is ultimately governed by Matusky, which makes abundantly clear
“that the trial judge [must] parse the entire declaration to determine which portions of it
are directly contrary to the declarant’s penal interest, and which collateral portions are so
closely related as to be equally trustworthy.” State v. Matusky, 343 Md. 467, 483 (1996)
(emphasis added). Indeed, the Matusky Court identified the trial court’s error in admitting
the fiancée’s testimony “in toto rather than analyzing the declaration statement by
statement to determine whether collateral portions of White’s account should be redacted.”
45
Id. at 485 (emphasis added). The Court explained that “the trial court should have redacted
those portions of White’s declaration identifying [respondent] as the murderer and
suggesting [respondent’s] motive for the crime” because “[t]hese portions of the
declaration did not directly incriminate White” and simply served “to shift blame from
White to [respondent].” Id. The Court stressed that it was the trial court’s responsibility
to “break down the narrative and determine the separate admissibility of each ‘single
declaration or remark.’” Id. at 492 (quoting State v. Mason, 460 S.E.2d 36,45 (W. Va.
1995)).
Although Appellant never offered proposed redactions of the Blake Interview, the
trial court was nevertheless required, as both Matusky and Standifur instruct, to determine
the admissibility of each statement within the broader narrative by examining whether each
was sufficiently self-inculpatory as to Mr. Blake. We are not unmindful of the burden that
this framework places on trial courts and, when possible, we would certainly encourage
trial courts to request the parties to identify the portions of any narrative that should be
redacted. In the instant case, the record reveals that the court failed to conduct the required
examination because it agreed with the State’s argument, relying on Justice Scalia’s
concurrence in Williamson, that the statements could not be parsed.
At the September 14, 2020 motions hearing, the trial court relied heavily on Justice
Scalia’s concurrence, noting that “as Scalia says, that’s the net effect, right? Which is it
comes in under the exception and you don’t get to automatically carve it out just because
it inculpates potentially someone else.” Indeed, in its ruling, the court explained that,
46
although it was not aware of any Maryland decisional law that was directly controlling, the
court “would note that Justice Scalia’s concurrence does seem to be on point.”
While statements contained in an interview of an unavailable declarant that name a
co-conspirator and describe the mechanics of a conspiracy can qualify as statements against
penal interest when they sufficiently inculpate the declarant, that does not discharge the
court’s fundamental duty to parse all of the statements in the interview. Justice Scalia
recognized this very point, explaining that “the relevant inquiry . . . must always be whether
the particular remark at issue (and not the extended narrative) meets the standard set forth
in the Rule.” Williamson, 512 U.S. at 607 (Scalia, J., concurring). The trial court’s ruling
in this case admitting the entire Blake Interview—even with the redactions offered by the
State—could only stand if every single remark therein was truly self-inculpatory.
That simply is not the case. Some statements, especially those that describe the
workings of the enterprise prior to Mr. Woods entering the picture, can be deemed equally
inculpatory of both Mr. Blake and Appellant. For example, Mr. Blake said he sold heroin
that he received from Appellant and would ordinarily receive around 15 bags of heroin at
any given drop-off. That statement, although perhaps portraying Appellant as the more
senior player, was certainly equally inculpatory of Mr. Blake.
However, other statements—while still relating to the overall enterprise—could not
be considered genuinely inculpatory of Mr. Blake because they merely served to shift
blame for the present workings of the enterprise to Appellant. It is evident that the
discussion of Appellant’s role was a significant portion of the interview as he was
mentioned approximately 88 times. Indeed, the officers consistently asked Mr. Blake for
47
details about Appellant’s involvement, asking such questions as “so what I’m asking is,
Mont’s still at the top.” Along a similar vein, in response to a question from the officers
as to “Who’s in charge,” Mr. Blake responded “[Mr. Woods] has the stuff. [Appellant]
knows the people.” No portion of either of those statements implicated or even mentioned
Mr. Blake, and he was adamant throughout the interview that Mr. Woods took over his role
and that he was effectively “demoted” from any role in the sales operations.
Accordingly, we cannot agree that, based on the logic of Justice Scalia’s
concurrence in Williamson, the entire Blake Interview (even with the redactions offered by
the State) was admissible as a statement against penal interest. We hold that admission of
the entire Blake Interview presented by the State into evidence under Maryland Rule 5-
804(b)(3) was in error. On remand, should the State decide to re-prosecute this case, the
trial court is required to parse through the overall narrative and redact those portions which
are not genuinely self-inculpatory as to Mr. Blake. Matusky, 343 Md. at 481-82, 485, 492.
c. Harmless Error
“[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.” Dorsey v. State, 276 Md. 638, 659 (1976).
In this case, Appellant was ultimately convicted only on possession of CDS and
conspiracy to possess CDS charges, whereas he was either acquitted by the court or found
not guilty by the jury of the remaining 30 counts, including all of the Drug Kingpin charges.
Nevertheless, the Blake Interview, if credited, provided evidence of Appellant’s frequent
48
overnight visits in the house at the heart of the drug enterprise and his close association
and interactions with a convicted conspirator in the enterprise. Such evidence is probative
of Appellant having possession of CDS and participating in a conspiracy to possess CDS,
where possession is defined to mean exercising “actual or constructive dominion or control
over a thing by one or more persons.” Maryland Code (2002, 2021 Repl. Vol.), Criminal
Law Article (“CR”), section 5-101(v).
We weigh the trial court’s error in admitting the Blake Interview by the Dorsey
standard: that an error is harmless only if “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.” Dorsey 276 Md. at 659. To say the admission of the
Blake Interview did not contribute to Appellant’s verdict, would require us “to find that
error unimportant in relation to everything else the jury considered on the issue in question,
as revealed by the record.” Dionas v. State, 436 Md. 97, 117 (2013). That we cannot do.
Here, the primary source of evidence during the trial other than the Blake Interview
was the physical evidence of the drugs confiscated during the raid, and the testimony of
the police officers to the investigation into the three suspects. According to their testimony,
Appellant did not participate in any of the undercover drug buys conducted by the officers
and the evidence seized at the house, although found in some areas near Appellant’s
belongings, were primarily located near Mr. Woods’s belongings. The officers’
observation of Appellant’s frequent presence at the house is the strongest alternative
evidence of his involvement in a conspiracy to possess CDS, but that evidence was
countered by Appellant’s claim that he visited the house to help his friend, Mr. Blake. We
49
cannot say beyond a reasonable doubt that the Blake Interview did not influence the jury’s
conviction of Appellant as it suggested his continuing involvement with the narcotics
seized during the raid. Accordingly, the error is not harmless and we must vacate
Appellant’s convictions and remand for a new trial.
II.
Imposition of Multiple Sentences
Appellant argues that the State “provided no evidence proving multiple agreements”
to the possession of illegal drugs, therefore proving no more than a single conspiracy; and
“[i]mposing multiple sentences on a defendant for a single conspiracy is an illegal
sentence[.]” The State agrees and acknowledges that “only one sentence can be imposed
for a single common law conspiracy no matter how many criminal acts the conspirators
have agreed to commit.”
Indeed, our Court has held that the “unit of prosecution” for conspiracy is “the
agreement or combination, rather than each of its criminal objectives.” Savage v. State, 212
Md. App. 1, 13 (2013) (quoting Tracy v. State, 319 Md. 452, 459 (1990). Therefore, under
Maryland law, a conspirator is usually subject to only one conspiracy prosecution, and only
one sentence can be imposed, for a single criminal agreement, regardless of how many
criminal acts the conspirators agreed to commit. Mason v. State, 302 Md. 434, 445 (1985).
Accordingly, we hold that if the State re-prosecutes this matter, it may only pursue a single
conspiracy charge against Appellant as it concedes that it failed to prove the existence of
more than one conspiracy.
50
JUDGMENTS OF THE CIRCUIT COURT
FOR WICOMICO COUNTY VACATED.
CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID BY
WICOMICO COUNTY.
51