by Sam Rutherford

The Supreme Court of Maryland clarified the process a trial court must follow when determining whether statements made by a non-testifying co-conspirator defendant during a lengthy police interview are admissible as statements against penal interest at the trial of a co-defendant. The Court clarified that the duty to “parse” the entire interview to determine which of the non-testifying co-conspirator’s numerous statements qualify for admission under the exception to the general rule prohibiting hearsay rests with the trial court, not defense counsel, and that defense counsel’s general objection to admission of the entire interview preserved the issue for appeal.

Background

In the Summer of 2019, police in Salisbury, Maryland, received a tip that a local residence was being used to sell heroin, fentanyl, and other controlled dangerous substances (“CDS”). The police conducted surveillance for about a month, made several controlled buys of CDS from the home, and then obtained a search warrant to raid it.

Early in the morning on August 9, 2019, police conducted the raid. They found large amounts of CDS, ammunition, and cash inside the home. They arrested the residents of the home, Tony Blake and Dwight Woods. They also arrested Lamont Smith, who claimed he was an overnight guest.

The State charged Smith in a 42-count indictment for various drug-related crimes, including being a drug kingpin, conspiracy, and unlawful possession of ammunition. The State also charged Woods but not Blake because he was terminally ill and required long-term medical care.

Eighteen days after the raid, on August 27, 2019, two detectives interviewed Blake at his home. He was in poor health at the time and was not coherent during most of the interview. The interview lasted approximately 55 minutes and was recorded on one of the detective’s body-worn cameras. Blake stated in general that he was no longer involved in drug dealing, that Woods was the leader of the conspiracy, and that Smith’s role was limited because he had recently gotten married and was focusing on his new family. Blake said Smith used to supply him with prepackaged drugs to sell, but he had not done so for many months and added that Smith only interacted with Blake to assist him with his medical issues.

Prior to Smith’s trial, the State sought to introduce a transcript of Blake’s interview because he was unavailable to testify due to his declining health and placement in an assisted care facility. The State argued that Blake’s statements made during the interview, although hearsay, were admissible under Maryland Evidence Rule 5-804(b)(3) as a declaration against penal interest. See State v. Matusky, 682 A.2d 694 (Md. 1996) (establishing procedure for admitting hearsay under the declaration against penal interest exception). Defense counsel objected, asserting that the entire interview was inadmissible under the hearsay exception because the State failed to establish that each individual statement Blake made was actually a statement against his penal interest as required by Matusky, and in fact, most of the statements tended to be against Smith’s penal interest or, at a minimum, were so “interwoven” that it was impossible to tell whose interest the statements implicated.

Without analyzing each statement Blake made during the sprawling and mostly incoherent interview, the trial court admitted the entire transcript and permitted a detective to testify about Blake’s statements. Smith’s attorney renewed his objection, but the trial court overruled it. Smith was convicted of only four of the 42 charges against him in 2022 and sentenced to four years in prison, with credit for time served since his arrest in 2019.

Smith timely appealed his convictions, and the Appellate Court of Maryland reversed, ruling that the trial court erred by failing to determine whether each individual statement Blake made during the 55-minute interview qualified as a declaration against his penal interest. The appellate court also determined that Smith’s attorney properly preserved the error for appellate review by objecting to the admission of the entire interview and was not required to propose redactions to the interview transcript.

The State sought and was granted certiorari review in the state Supreme Court, based on its contention that defense counsel failed to properly preserve his hearsay objection by not proposing redactions to Blake’s interview transcript and instead offering only a general objection to its admission.

Analysis

Before the Supreme Court could address the State’s preservation argument, it first had to review a trial court’s duties when admitting multiple hearsay statements made by a co-conspirator during an extended narrative or interview and then offered as evidence at the trial of another defendant.

Hearsay is defined 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.” Rule 5-801(c). Typically, hearsay is not admissible at trial unless it falls within an exception to the general rule. See Rule 5-802; see also State v. Galicia, 278 A.3d 131 (Md. 2022). The party seeking admission of hearsay statements bears the burden of proving that they fall within a recognized exception to the rule against hearsay. Curtis v. State, 303 A.3d 970 (Md. App. Ct. 2023).

One long-recognized exception is for declarations against penal interest, which permits the admission of certain out-of-court statements that have the tendency to expose the declarant to criminal liability. Aetna Cas. & Sur. Co. v. Kuhl, 463 A.2d 822 (Md. 1983); Merrick v. State, 283 Md. 1 (1978). These types of statements are deemed admissible despite being hearsay based on their inherent trustworthiness because “persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true.” State v. Standifur, 526 A.2d 955 (Md. 1987) (quoting Fed. R. Evid. 804(b)(3) advisory committee’s note).

This exception is now contained in Rule 5-804(b)(3), which provides that an out-of-court statement is not excluded under the hearsay rule if it is: “A statement which was at the time of its making so contrary to the declarant’s … proprietary interest, so tended to subject the declarant to … 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. 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.”

The party seeking admission of out-of-court statements under this rule must prove, and the trial court must find, that “(1) the declarant is unavailable, (2) the statement is genuinely adverse to the declarant’s penal interest, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement.” Galicia.

The Court stated that the only issue in Smith’s case was whether Blake’s multiple statements from his lengthy police interview satisfied the second of these three criteria—that they were truly against his penal interest and not statements intended to implicate Smith by shifting blame away from Blake.

The Maryland Supreme Court previously addressed a similar issue in Matusky. In that case, two men were charged with murder. One of them told his fiancée that the second man committed the murder and that he, the first man, was only the getaway driver. They were tried together, and the first man’s fiancée was permitted to testify about his out-of-court statements implicating the second man.

Relying primarily on the U.S. Supreme Court’s interpretation of federal hearsay rules in Williamson v. United States, 512 U.S. 594 (1994) (construing “statement” in FRE 804(b)(3) narrowly to mean “a single declaration or remark,” not extended declaration or narrative), the Matusky Court reasoned that the trial court should not have admitted the first man’s statements in their entirety because portions were not self-inculpatory, especially those that identified the second man as the killer and discussed his motive. It ruled that a 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.” Thus, “the trial court should have redacted those portions of [the first man’s] declaration identifying [the second man] as the murderer and suggesting [his] motive for the crime” because those “portions of the declaration did not directly incriminate” the first man and simply “serve[d] to shift blame from [the first man] to [the second],” the Matusky Court explained.

The Court emphasized that there is “no theoretical basis” for the admission of out-of-court statements made by a co-conspirator under the statement against penal interest exception that are “neutral, collateral statements.” Matusky; see also Ohio v. Roberts, 448 U.S. 56 (1980). Instead, the Court explained that Matusky stands for the proposition that, “in parsing 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.’” Matusky.

Thus, the Court instructed that when a trial judge is confronted with “an extensive declaration, narrative, or interview involving more than one ‘statement,’” it may not treat the entire narrative or interview as a single statement. Instead, under Matusky, the “trial court must break down the narrative and determine the separate admissibility of each single declaration or remark” under Rule 5-804(b)(3).

This rule has been adopted by several other jurisdictions. See United States v. Ojudun, 915 F.3d 875 (2d Cir. 2019); United States v. Castelan, 219 F.3d 690 (7th Cir. 2000); United States v. Mendoza, 85 F.3d 1347 (8th Cir. 1996); United States v. Canan, 48 F.3d 954 (6th Cir. 1995); State v. Robins, 431 P.3d 260 (Idaho 2018); State v. Kaufman, 711 S.E.2d 607 (W. Va. 2011); State v. Ford, 539 N.W.2d 214 (Minn. 1995); Commonwealth v. Marrero, 800 N.E.2d 1048 (Mass. App. Ct. 2003); Osborne v. Commonwealth, 43 S.W.3d 234 (Ky. 2001); State v. Roberts, 14 P.3d 713 (Wash. 2000).

Having established the proper framework for admission of out-of-court statements made during a lengthy narrative or interview, the Court turned to the State’s argument that Smith’s defense counsel did not properly preserve the error in admitting Blake’s entire interview by not proposing specific redactions intended to eliminate statements that were not self-inculpatory. The Court, however, rejected this argument, holding that settled case law “does not impose a duty upon the opponent of an extended narrative interview to present the trial court with proposed redactions prior to the trial court undertaking its duty to parse the statement pursuant to the process established by Matusky.”

Instead, the Court explained that trial courts have an independent duty to analyze the admissibility of a hearsay statement offered as a declaration against penal interest pursuant to Rule 5-804(b)(3) under the following framework: (1) the trial court must find that the declarant is unavailable to testify, (2) after 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,” the trial court 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) 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,” and (4) when the declarant’s statements are part of a lengthy narrative or interview, “a trial court must break down the narrative and determine the separate admissibility of each single declaration or remark.” Quoting Standifur and Matusky (cleaned up).

Under the fourth factor, the trial court “may not assume that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else,” according to the Court. Williamson. “Neutral, collateral statements enjoy no such guarantees of reliability and trustworthiness and are, therefore, not admissible absent some special indicia of reliability and trustworthiness,” the Court stated. Matusky.

Because the trial court in Smith’s case did not follow this process before admitting Blake’s entire interview under Rule 5-804(b)(3) as statements against penal interest and because defense counsel adequately preserved the issue by objecting to admission of the interview and related testimony, the Court held that Smith was entitled to a new trial.

Conclusion

Accordingly, the Court affirmed the judgment of the appellate court and remanded the case for further proceedings consistent with its opinion. See: State v. Smith, 321 A.3d 52 (Md. 2024).

Editor’s note: Anyone with an interest in the declaration against penal interest exception to the hearsay rule is encouraged to read the Court’s full opinion.   

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