State of Maryland v. Lamont Smith, No. 30, September Term, 2023, Opinion by Booth, J.
ADMISSION OF HEARSAY EVIDENCE UNDER DECLARATION AGAINST
PENAL INTEREST—The Supreme Court of Maryland has established a process for
admitting certain types of hearsay statements that fall within a particular hearsay
exception that is commonly known as the “declaration against penal interest.” State v.
Matusky,
343 Md. 467 (1996). Under that process, when a proponent seeks to admit
presumptively inadmissible hearsay statements that comprise an extended narrative or
interview, a trial court must conduct a “parsing analysis” in which the court must break
down the narrative and determine the separate admissibility of each single declaration or
remark. The test for admissibility that the trial court must apply “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. A trial court may not simply admit the extended narrative or
interview in toto without determining that each statement contained therein was self-inculpatory as to the declarant.
PRESERVATION FOR APPELLATE REVIEW—Where the State sought to admit a
55-minute interview by law enforcement of an individual under the declaration against
penal interest exception to the hearsay rule under Maryland Rule 5-804(b)(3), and the
trial court failed to undertake the parsing process required by Maryland case law in order
to admit this particular type of hearsay evidence, defense counsel sufficiently preserved
the defendant’s objections for appellate review.
Circuit Court for Wicomico County
Case No.: C-22-CR-19-000554
Argued: May 6, 2024
IN THE SUPREME COURT
OF MARYLAND
No. 30
September Term, 2023
STATE OF MARYLAND
v.
LAMONT SMITH
Fader, C.J.,
Watts,
Booth,
Biran,
Gould,
Eaves,
Hotten, Michele D.
(Senior Justice, Specially Assigned),
JJ.
Opinion by Booth, J.
Biran, J., dissents.
Filed: August 13, 2024
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2025.02.25
14:03:20 -05'00'
Gregory Hilton, Clerk
This Court has established a process for admitting certain types of hearsay
statements that fall within a particular hearsay exception that is commonly known as the
“declaration against penal interest.” State v. Matusky, 343 Md. 467 (1996). 1 Under that
process, when a proponent seeks to admit presumptively inadmissible hearsay statements
that comprise an extended narrative or interview, a trial court must conduct a “parsing
analysis” in which the court must break down the narrative and determine the separate
admissibility of each single declaration or remark. The test for admissibility that the
trial court must apply “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. A trial court may not simply
admit the extended narrative or interview in toto without first determining that each
statement contained therein was self-inculpatory as to the declarant.
The trial court’s analysis of each statement “can be a fact-intensive inquiry,”
which requires careful examination of all the circumstances surrounding the criminal
activity involved. 2 This may be especially true when a proponent seeks the admission of
an extensive narrative or interview containing many individual statements.
1
Although Matusky is our most recent case on this topic, as discussed herein, we
first addressed the parsing analysis in State v. Standifur, 310 Md. 3 (1987). And
thereafter, the United States Supreme Court adopted a similar approach for admitting this
type of hearsay evidence under the federal rules of evidence in Williamson v. United
States,
512 U.S. 594 (1994). In Matusky, we adopted Williamson and reconciled it with
Standifur.
2
Williamson, 512 U.S. at 604 (cleaned up).
In this case, the State sought to admit law enforcement’s extensive interview of
Mr. Tony Blake (the “Blake Interview”) as a declaration against penal interest in the
criminal trial of the Respondent, Mr. Lamont Smith. The interview is 55 minutes long,
contains approximately 250 questions from law enforcement to Mr. Blake, and
Respondent is mentioned or referenced approximately 88 times. In seeking its admission,
the State acknowledged that some statements contained in the Blake Interview were
inculpatory solely as to the Respondent. However, the State urged the trial court to admit
the Blake Interview in its entirety because the statements “were so interwoven” that they
could not be separated. At the pre-trial hearing, defense counsel objected on several
grounds, including disputing that all of the statements were self-inculpatory to Mr. Blake.
Defense counsel also disagreed with the State’s “interwoven” theory of admissibility.
After hearing arguments of counsel, the circuit court ruled that the entirety of the
Blake Interview was admissible. In doing so, however, the court failed to conduct the
parsing analysis required by Matusky. Instead, it treated the interview as a single
statement and ruled that it was admissible as a declaration against penal interest.
Thereafter, the Blake Interview was admitted at trial and published to the jury over
defense counsel’s objection. Respondent was found guilty on multiple charges involving
possession and conspiracy to distribute controlled dangerous substances (“CDS”).
On appeal, Respondent argued that the trial court erred in admitting the entire
Blake Interview without undertaking the admission process required by Matusky. The
State maintained that the Appellate Court could not consider Respondent’s argument
because defense counsel did not identify, and request specific redactions of, the
2
inadmissible statements contained within the interview. The Appellate Court rejected the
State’s argument and determined that Respondent had adequately preserved his objection
to the trial court’s failure to undertake the process required by Matusky. Smith v. State,
259 Md. App. 622 (2023). That court held that the trial court erred in admitting the entire
Blake Interview into evidence, and vacated Respondent’s convictions.
Id. at 673.
We granted the State’s petition for writ of certiorari to answer one question:
whether the Appellate Court erred in holding that Respondent adequately preserved his
objection to the trial court’s failure to undertake the process required under Matusky for
the admission of this particular type of hearsay evidence. For the reasons set forth herein,
we hold that the Appellate Court did not err. On the record before us, we determine that
Respondent made sufficient objections to preserve his argument that the trial court failed
to undertake the process for admission that is unique to this particular type of hearsay
evidence.
I
Background
In the early morning hours of August 9, 2019, law enforcement raided a home in
Salisbury, Maryland on suspicion that it was housing a drug trafficking operation. Upon
entering the home, officers discovered, among other things, a large amount of CDS, and
arrested the residents of the home, Mr. Blake and Mr. Dwight Woods. They also arrested
Respondent, who claimed he was an overnight guest.
For approximately one month prior to the raid, the home had been placed under
surveillance after receiving information that it was being used for heroin sales. Detective
3
Michael Kirkland, 3 working undercover, made four purchases of CDS from Mr. Woods
in July and August 2019.
The State charged Respondent in a 42-count indictment with various drug related
offenses, including counts of being a drug kingpin to distribute heroin and fentanyl;
counts of conspiracy to possess and distribute large amounts of heroin, fentanyl, cocaine,
and alprazolam; and one count of unlawful 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. Respondent was acquitted or found not guilty of
30 counts, including all of the drug kingpin charges, but he was convicted of counts for
possession and conspiracy to possess heroin, fentanyl, cocaine, and alprazolam. The
court sentenced Respondent to an aggregate of four years in prison in May 2022.
A. The Blake Interview
Sergeant Tyler Bennett and Sergeant Jordan Banks 4 conducted an interview of Mr.
Blake at his home on August 27, 2019—18 days after the raid. At Respondent’s criminal
trial, a redacted version of the Blake Interview was played and published to the jury over
the objection of defense counsel. The State explained at trial that the recording was “not
the full continuous interview” because the State had excised portions that it believed
“wouldn’t have been relevant[.]” Defense counsel agreed that “[t]he stuff [the State]
3
Detective Kirkland is with the Ocean City Police Department’s Narcotics Unit.
Ocean City’s task force assisted the Wicomico County Sheriff’s office “as needed” for
undercover police work.
4
As of July and August 2019, Sergeant Bennett and Sergeant Banks were
employed by the Wicomico County Sheriff’s Office.
4
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.”
Sergeant Bennett and Sergeant Banks began the conversation by telling Mr. Blake
that they wanted to talk to him about the case that he was “involved in as a co-
defendant[.]” Mr. Blake was seated and wearing nothing but a blanket. The interview
was recorded on the body camera of one of the officers. The officers informed Mr. Blake
that the interview was being recorded and read him his Miranda rights. Mr. Blake
confirmed that he understood those rights and verbally waived them because he was
physically unable to sign a statement.
The interview is difficult to follow because of Mr. Blake’s declining health, his
generic use of the word “him” to refer to both Respondent and Mr. Woods, and the fact
that Mr. Blake was describing the drug distribution operation at different points in time
without clarifying the time frame to which he was referring. What is very clear, however,
is that the officers’ primary purpose in conducting the interview was to obtain
information pertaining to Respondent’s involvement in the drug operation. Throughout
the interview, the officers repeatedly redirected Mr. Blake to questions involving
Respondent’s participation in the criminal enterprise. In total, over the course of the
approximately 55-minute interview, the officers and Mr. Blake made approximately 88
references to “Mont” or “Lamont” on the redacted version of the Blake Interview that
was introduced by the State. 5
5
Respondent is referred to as “Lamont” and “Mont” in the interview.
5
The very first question the officers asked Mr. Blake was: “[s]o what’s going on
with Mont?” One officer asked, “[w]hose stuff is it in the house - - that was in the
house?” to which Mr. Blake replied, “[t]he boy, Shamir[,]” 6 referring to Mr. Woods. Mr.
Blake repeatedly asserted that the drugs seized on the day of the raid belonged to Mr.
Woods, and that Mr. Woods “leaves late at night” and “[b]rings it down”; whereas
Respondent’s “involvement” was that “[h]e just knows about it.” Mr. Blake stated that
“[a]t first” he worked for Respondent, but that Respondent “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 became involved. According to Mr. Blake, for a period of “[c]lose to a
year,” Respondent provided him with a cell phone. Mr. Blake’s duties were to answer
the phone, arrange deliveries, and drive to meetings where he would exchange drugs for
money. Respondent lived near Baltimore City and would visit Salisbury a few times a
week. During these visits, Mr. Blake would give Respondent the proceeds from the drug
sales, less expenses and his salary, and Respondent would supply Mr. Blake with new
drugs that were prepackaged and ready for sale.
Mr. Blake explained that in recent months, he turned money over to, and accepted
new drugs from, Mr. Woods, rather than from Respondent. Mr. Blake stated that because
of his deteriorating health, and the fact that he had become “too slow,” Mr. Woods had
“demoted” him to having almost no role in the enterprise. Mr. Blake stated that, within
6
Throughout the interview, Mr. Woods is referred to as “Shamir” and “Samir.”
6
the last two months before the raid, Respondent would visit to “take care of [him]” and to
“take [him] to the hospital” for medical treatment, and that this was his only interaction
with Respondent.
Despite being cooperative throughout the interview, Mr. Blake’s answers were
often unintelligible, and his narrative was confusing, which prompted the 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 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?
7
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 - -
[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 -
…
[SGT. BENNETT]: I’m getting - - I’m getting a little bit frustrated.
The lack of clarity in Mr. Blake’s responses was heightened by the officers’
attempts to redirect him from the manner in which the enterprise had worked in the past
to the present operations. For example, as reflected in the above-described exchange,
immediately after Mr. Blake explained the salary he earned from the Respondent at the
beginning of the enterprise, one of the officers asked Mr. Blake to clarify “how does the
organization work? Who’s in charge?” Mr. Blake responded, “[t]he boy, Shamir, has the
stuff. Mont knows the people.” In another instance, Sergeant 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 south. When your health started getting
bad? Who took your spot?
8
[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, Respondent “was top[,]” but
“He dropped down. Samir took over” because Respondent was getting married and “[s]o
he said he wasn’t going to do nothing else.” Sergeant 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 Shamir 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
Sergeant Bennett continued to press Mr. Blake about Respondent’s role in the
enterprise, and eventually narrowed his questions to the few weeks leading up to the
raid—during the time in which the house was under surveillance. However, Mr. Blake
appeared unable to follow the questions:
[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.
In the State’s motion to admit the interview at trial, the State noted that “[a]t the
conclusion of the interview, Mr. Blake suffered a health complication and was
transported to the hospital in an ambulance.”
B. The State’s Motion to Admit the Blake Interview
The State filed a motion to introduce the Blake Interview based upon Mr. Blake’s
unavailability under Md. Rule 5-801(a)(4) due to his “failing health,” explaining that it
would be “infeasible to transport Mr. Blake to court from his assisted care facility.” The
State argued that the Blake Interview, although hearsay, 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
10
declarant’s position would not have made the statement unless the person believed it to
be true.” The State contended that Mr. Blake’s testimony was “material” to Mr. Smith’s
prosecution. The State also argued that “Mr. Blake’s statement is undoubtedly against
his penal interest[]” and that “a reasonable person in his situation would have perceived
his statements to be against his interest at the time.” The State further contended that the
“corroborating circumstances clearly indicate the trustworthiness of the statement,” and
that extrinsic evidence supported “Mr. Blake’s telling of events.”
In its written motion, the State acknowledged that the court was required to “parse
the whole of the statement into its individual, inculpating parts, and other such closely
related collateral statements[.]” (Citing State v. Matusky, 343 Md. 467 (1996)).
However, the State claimed that “the statements that contain inculpating statements
relating to Mr. Blake are so interwoven with the statements that inculpate [Respondent]
that they cannot be severed.” The State further contended that the “collateral portions of
the statement that are so closely related to the inculpating excerpts” were “equally
trustworthy” such that they were “correspondingly admissible” under Rule 5-804(b)(3).
Defense counsel filed a response opposing the admission of the Blake Interview
into evidence. Defense counsel first contended that the State failed to prove that Mr.
Blake was unavailable. Defense counsel also argued that the claimed “interwoven”
statements were not against Mr. Blake’s interest and criticized the prosecution for
“attempting to . . . get statements made by [Mr. Blake] that implicate [Respondent] into
evidence as if they are statements against interest.” The defense also parsed one of Mr.
Blake’s statements to illustrate that the statements were not “so interwoven” and were
11
indeed severable and inadmissible: “For instance, if the witness made a statement that he
sold $1,000 worth of [h]eroin a week and that heroin was supplied to him by the
defendant, the statement against interest is the witness selling heroin and making . . .
$1,000, not that the defendant provided it to him.”
Defense counsel also pointed out that the statement was vague as to the relevant
timeline of events and that counsel would not have the opportunity through cross-
examination 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” Respondent.
The court held a hearing on the State’s motion on September 14, 2020. At the
hearing, the court asked whether the entire statement was against Mr. Blake’s penal
interest, stating, “the issue here is the part of the statement – I mean part of the nuance
here is the part of the statement that implicates [Respondent], not the statement where, in
effect, [Mr. Blake] implicates himself, correct?” The prosecutor agreed that “there are
definitely parts of the statement that are . . . solely against [Respondent’s] interest,” but
argued that “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.”
In arguing for admission of the entire interview, the prosecutor relied upon Justice
Scalia’s concurrence in Williamson v. United States, 512 U.S. 594, 605–07 (1994). 7 The
prosecutor noted that, as in that case, Mr. Blake was “describing the drug trafficking
7
We discuss Williamson v. United States, 512 U.S. 594 (1994) in detail infra.
12
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 recognized that “[t]he issue predominantly that Your Honor has to parse
out is to whether or not the statements are solely against [Mr. Blake]’s interest. And
when they implicate [Mr. Smith] they are not so divorced from those statements, and I
don’t think they are divorced. I think in the majority of the spots in the interview the part
where the declarant, Mr. Blake, inculpates himself cannot be divorced from his
statements inculpating [Mr. Smith].” Again invoking Williamson, the State argued that
“[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 identified examples of evidence that it intended to submit at trial to
corroborate the statements in Mr. Blake’s interview, including that: (1) an “undercover
officer did four controlled buys” with Mr. Woods, one of which was allegedly arranged
by an individual who identified himself as “Mont,” which corroborated Mr. Blake’s
assertion that Respondent was still involved after Mr. Woods had taken over the
operations; (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 who brought
the drugs to Salisbury; and (3) “[t]he car utilized to conduct the undercover buys of
[CDS] belong[ed] to Mr. Blake,” which was consistent with Mr. Blake’s statement that
Mr. Woods used his car to complete the transaction.
13
At the hearing, defense counsel continued to object to the Blake Interview coming
into evidence. Defense counsel challenged the prosecution’s assertion that Mr. Blake’s
statements were self-inculpatory and attacked the overall trustworthiness of the Blake
Interview on the basis that it was so “ambiguous” and “confusing” as to not be probative.
Defense counsel argued that the events described by Mr. Blake were unconnected to a
timeframe and described in a sequence in which “Mr. Woods took over the drug
operation from” Respondent, who “got out of the business when he got engaged” and was
“no longer doing it[.]” Defense counsel asserted that cross-examination of Mr. Blake
would be necessary to sort out the timeframe, particularly as to when Respondent
withdrew from the organization, stating: “I have no concept of if [the events described]
happened a week before, if that happened three months before, [or] if that happened a
year before. . . . If I had the ability to cross-examine [Mr. Blake,] we might very well
find out that that happened a year ago.”
Referring to the statements in the Blake Interview, defense counsel also disputed
the “State’s argument that it is so interwoven, [Mr. Blake’s] own inculpating himself and
his inculpating my client[,]” as to be admissible under the declaration against interest
exception.
The court asked defense counsel if he considered the Blake Interview to be
exculpatory of Respondent. Counsel admitted that “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 the confusing timeframes.
14
After hearing arguments of counsel, the court granted the State’s motion to admit
the Blake Interview into evidence as a declaration against penal interest. The court had
no trouble determining that Mr. Blake was unavailable. 8 The court stated that “the bigger
question is whether under 5-804(b)(3) his statement should be admissible at trial.” In
explaining its ruling, the court stated:
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 obviously whether or not that statement that
then ties in [Respondent] 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.
C. Jury Trial
Respondent’s jury trial occurred over two days in April 2022. Given that the only
issue before us pertains to the State’s assertion that the Appellate Court incorrectly
decided a preservation issue, we provide only a cursory overview of the evidence for
context.
Detective Kirkland testified that, as an undercover officer, he made four controlled
purchases of heroin from Mr. Woods in July and August 2019. He initiated the first
8
The circuit court explained that “in my review of [Mr. Blake’s] health conditions
or his physical condition on the video as well as [the assistant state’s attorney’s] proffer
of [Mr. Blake’s] current physical condition, as well as the list of the medical conditions
that he’s suffering from as well as his placement in the assisted living sort of facility
indicate his unavailability for trial.”
15
transaction by calling a phone number and arranging the purchase with Mr. Blake and
Mr. Woods. The purchase occurred in a bathroom at a grocery store. For the second
purchase, Detective Kirkland called the same phone number, but this time a “different
male” answered the phone and said that “his name was Mont,” and instructed him to call
a different number for Mr. Woods. Detective Kirkland called the number and arranged a
purchase from Mr. Woods inside Detective Kirkland’s car at a nearby gas station.
Thereafter, Detective Kirkland arranged two more purchases with Mr. Woods.
Sergeant Bennett testified concerning the investigation into the drug operation and
identified the targets of his investigation as Mr. Blake, Respondent, and Mr. Woods. He
testified concerning the circumstances surrounding the Blake Interview. Defense counsel
noted a standing objection to Sergeant Bennett’s testimony about the content of the
interview and objected again when the State introduced the Blake Interview into
evidence. Defense counsel’s objections were overruled, and the Blake Interview was
admitted into evidence and published to the jury. 9
9
The State also introduced the testimony of five other witnesses. Detective
Burley Williams and Sergeant Banks, both with the Wicomico County Sherriff’s Office,
testified about their participation in the surveillance of the enterprise, corroborated
Detective Kirkland’s testimony concerning the purchases, and established the chain of
custody for the purchases that were sent for laboratory analysis. On the second day of
trial, the State called Detective Andrew Riggin, who testified that he obtained the search
and seizure warrant and then conducted the raid on the house. His testimony primarily
related to the layout of the house and the items that were seized. He also testified that
during the surveillance, he saw Respondent at the house approximately four times, but
that he saw Mr. Woods and Mr. Blake there more often. Jessica Bullis, a forensic
chemist, testified that she performed the laboratory testing of the suspected narcotics
received from the controlled purchases and that her testing revealed the presence of
heroin and fentanyl. She also identified the CDS that were seized in the raid, which
16
After the State rested, Respondent moved for a judgment of acquittal as to all
counts. The circuit court granted the motion 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 denied the motion as to the remaining counts.
Respondent testified in his own defense. He testified that he had known Mr. Blake
since the early- to mid-1990s and that they were friends. He explained that he knew Mr.
Woods through Mr. Blake and was aware that they both sold drugs. Although
Respondent admitted that he had previously been convicted of certain drug-related
felonies, including heroin distribution, he consistently denied that he had any
involvement with Mr. Woods’s drug sales. Respondent testified that he did not live at the
house in which the raid took place, but he visited from time-to-time to take Mr. Blake to
his medical appointments. He explained that he was at the house on the night of the raid
because he was taking care of Mr. Blake and was going to drive his mother-in-law for a
family trip. Respondent testified that none of the ammunition or drugs that were seized
during the raid belonged to him.
included heroin, fentanyl, cocaine, and alprazolam. Lastly, Michael Daugherty, a special
investigator for the Wicomico County State’s Attorney’s Office, was qualified as an
expert in drug valuation, identification, investigations, and the common practices of users
and dealers of CDS and drugs. He testified to the street value of the seized evidence and
to the organizational structure of the drug enterprise.
17
After the defense rested, Respondent again moved for a judgment of acquittal,
arguing that the State had failed to prove a necessary element of the drug kingpin
charges, specifically, the threshold amount of heroin and fentanyl. The court granted the
motion as to count 12 (possession with intent to distribute alprazolam), but denied the
motion as to the remaining counts.
Thereafter, the jury found Respondent guilty on twelve counts—counts 30 through
33 (possession of CDS other than marijuana) and counts 34 through 41 (conspiracy to
possess CDS other than marijuana). Respondent was either acquitted by the court or
found not guilty by the jury of the remaining 30 counts.
The court imposed four one-year sentences for the CDS possession charges
(counts 30–33) to be served consecutively. Moreover, after merging the eight conspiracy
convictions into four (counts 34–41), the trial judge imposed one-year sentences for each.
Since the sentences for the conspiracy convictions were to be served concurrently with
the sentences for the possession convictions, however, Mr. Smith’s aggregate sentence
was four years of incarceration. The court granted Respondent credit for time served
from his arrest in the raid on August 9, 2019.
D. The Appellate Court of Maryland
Respondent timely appealed his convictions to the Appellate Court of Maryland.
He argued that the trial court erred by admitting the Blake Interview in its entirety as a
declaration against penal interest without undertaking the parsing analysis required by
Matusky. The Appellate Court agreed with Respondent and held that “the trial court
erred by admitting the entire version of the Blake interview offered by the State under the
18
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.” Smith v. State, 259 Md. App. 622, 632–33 (2022)
(emphasis in original).
The Appellate Court held that under Matusky, the trial court “needed to inquire
whether each of the statements in the Blake Interview was truly self-inculpatory.” Id. at
633. The court held that while some statements could be deemed equally inculpatory of
Mr. Blake and Respondent, “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.”
Id.
Relevant to the issue now before us, the Appellate Court rejected the State’s
preservation argument. 10 While the court recognized that it is generally “the obligation
of the party seeking redaction to raise the issue to the judge,” it concluded that “the
present case is ultimately governed by Matusky[.]” Id. at 670–71. The Appellate Court
rejected the State’s harmless error argument and vacated Mr. Smith’s convictions. 11
10
Additionally, the Appellate Court held that Respondent waived any argument as
to whether the admission of the Blake Interview violated his confrontation rights under
the Sixth Amendment of the United States Constitution and Article 21 of the Maryland
Declaration of Rights, as his objection to its admission was contained to the Maryland
Rules. Smith v. State, 259 Md. App. 622, 646–67 (2023). Lastly, the Appellate Court
held that “the State presented sufficient corroborating circumstances to permit the
admission of portions of the Blake Interview[,]” as required by Maryland Rule 5-
804(b)(3).
Id. at 667. These issues are not presently before this Court.
11
On August 24, 2023, the State filed a motion for reconsideration in light of this
Court’s decision in Woodlin v. State, 484 Md. 253 (2023), which was published the same
19
Thereafter, the State filed a petition for writ of certiorari asserting that the
Appellate Court erred in holding that Respondent adequately preserved his objection to
the trial court’s failure to undertake the process for admission of this particular type of
hearsay evidence.
II
Standard of Review
This case involves a circuit court’s admission of hearsay statements that were part
of an extended narrative or interview that the State sought to introduce at trial pursuant to
the declaration against penal interest exception under Md. Rule 5-804(b)(3). Our case
law establishes a process that a trial court must undertake before admitting this particular
type of evidence. The State contends that the Appellate Court erred in its interpretation
of our case law, and in doing so, “created a new exception” to “the general rule[,]” that
the State asserts arises under case law, that imposes a duty on the opponent of the
admission of the evidence to request redaction in order to properly raise a “failure-to-
redact” claim. Where an issue involves the application of Maryland case law, we
determine whether the lower court’s conclusions are legally correct under a de novo
standard of review. Plank v. Cherneski, 469 Md. 548, 569 (2020).
day as the Appellate Court’s decision in this case. The Appellate Court denied the State’s
motion.
20
III
Discussion
Before turning to the State’s preservation argument, we provide an overview of
the declaration against penal interest exception to the hearsay rule, as well as the
particular process that a trial court is required to undertake when considering the
statements contained within an extended interview or narrative in this context—a process
that uniquely applies only to this particular type of hearsay evidence.
A. Hearsay and the Declaration Against Penal Interest Exception
Hearsay is “a statement,[12] 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.” Md.
Rule 5-801(c). Hearsay is inadmissible “[e]xcept as provided by [the Maryland R]ules or
permitted by applicable constitutional provisions or statutes[.]” Md. Rule 5-802. In State
v. Galicia, 479 Md. 341, 354 (2022), we explained that the default exclusion of hearsay is
premised on the theory
that out-of-court statements are subject to particular hazards. The declarant
might be lying; he might have misperceived the events which he relates; he
might have faulty memory; his words might be misunderstood or taken out
of context by the listener. And the ways in which these dangers are
minimized for in-court statements—the oath, the witness’ awareness of the
gravity of the proceedings, the jury’s ability to observe the witness’
demeanor, and, most importantly, the right of the opponent to cross-examine—are generally absent for things said out of court.
12
Maryland Rule 5-801(a) provides: “A ‘statement’ is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended by the person as an
assertion.”
21
Id. (quoting Williamson,
512 U.S. at 598). Thus, hearsay is presumptively inadmissible
evidence. If, and only if, the proponent for the admission of the hearsay satisfies the
requirements of one of a myriad of exceptions to the general exclusion rule, can it be
admitted at trial. Curtis v. State,
259 Md. App. 283, 314 (2023) (“It is well-established in
our jurisprudence that hearsay will be excluded, unless the proponent demonstrates its
probable trustworthiness by establishing that a recognized exception to the rule against
admissibility is applicable.” (emphasis in original) (citations omitted)); see also, e.g., Md.
Rules 5-802.1 through 5-804.
One such exception is the declaration against penal interest, which allows for the
admission of certain out-of-court statements that have the tendency to expose the
declarant to criminal liability. Even prior to the codification of the Rules of Evidence in
Title 5 of the Maryland Rules of Procedure in 1994, we long recognized this exception.
See, e.g., Aetna Cas. & Sur. Co. v. Kuhl, 296 Md. 446 (1983); Merrick v. State,
283 Md.
1 (1978); Thomas v. State,
186 Md. 446 (1946). This exception is based on the general
premise that “persons do not make statements which are damaging to themselves unless
satisfied for good reason that they are true.” State v. Standifur,
310 Md. 3, 11 (1987)
(quoting Fed. R. Evid. 804(b)(3) advisory committee’s note); see also West v. State,
124
Md. App. 147, 166 (1998) (“The rationale for admission of [declarations against penal
interest] is that there is a circumstantial guarantee of sincerity when one makes a
statement adverse to one’s interest.” (citations omitted)); Joseph F. Murphy, Jr.,
Maryland Evidence Handbook § 802[E] (5th ed. 2020) (“This exception is based on the
22
theory that it is unlikely that a person will make a false statement that could be used to
bring about . . . a loss of liberty.”).
This exception, now codified as Maryland Rule 5-804(b)(3), requires the declarant
to be unavailable, 13 and provides that the following is “not excluded by the hearsay rule”:
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.
For a statement to be admissible under Rule 5-804(b)(3), the proponent of the evidence
has the burden to demonstrate, and the trial court must determine 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, 479 Md. at 359.
Some statements that appear to be against the declarant’s penal interest are
actually ones for which the declarant may reap the most benefit—specifically, statements
that inculpate both the declarant and another person. This Court and the United States
Supreme Court have recognized that a hearsay statement that implicates a codefendant is
particularly unreliable:
[W]e must treat as “inevitably suspect” a statement made to persons in
authority and implicating a codefendant, even though the statement also
13
A declarant is unavailable if he or she, among other things, “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).
23
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.
Standifur, 310 Md. at 13 (quoting Cruz v. New York,
481 U.S. 186, 1990 (1987)).
Because of this inherent unreliability, when determining whether a statement is
sufficiently self-inculpatory to qualify under the exception, the court should consider “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.” Id. at
17.
B. The Trial Court’s Duty to Parse Each Statement in a Narrative
The United States Supreme Court and this Court have held that when a proponent
seeks to admit an extended declaration or narrative under the declaration against penal
interest exception to the hearsay rule—such as the extended narrative in the Blake
Interview—it may not be admitted without evaluating each statement and excluding
those that do not inculpate the declarant. See Williamson, 512 U.S. at 600 (holding that,
under the federal rule analogous to Md. Rule 5-804(b)(3), the trial court erred by
admitting the entire declaration without determining whether each statement was
inculpatory of the declarant); Matusky,
343 Md. at 485, 491 (holding that a statement-by-
statement analysis was required under the common law and Md. Rule 5-804(b)(3) and
adopting Williamson as a persuasive interpretation of Maryland law). As we explain
below, when presented with an extended hearsay narrative, these cases require that the
trial court analyze each statement to determine whether a reasonable person in the
24
declarant’s position would have believed it to be adverse to their penal interest when the
declarant made it, “determin[ing] the separate admissibility of each single declaration or
remark.” Matusky, 343 Md. at 492 (quoting State v. Mason,
460 S.E.2d 36, 45 (W. Va.
1995)) (cleaned up). Although our decision in Matusky is the most recent articulation of
the process that the trial court is required to undertake, we summarize cases that preceded
it as we adopted the framework established in those cases.
State v. Standifur
In Standifur, which was decided prior to the adoption of Title 5 of the Maryland
Rules, we addressed the necessity of parsing each self-inculpatory part of a larger hearsay
narrative for the first time. 310 Md. 3 (1987). In that case, a declarant-witness who had
illegally purchased a gun that was used in a burglary gave a statement to law
enforcement.
Id. at 6–7. At trial, the declarant-witness was unavailable, and a state
trooper was permitted to recount his statements as declarations against penal interest.
Id.
at 8. The Appellate Court of Maryland reversed, and this Court affirmed that decision.
Id. at 9.
After explaining the rationale of the declaration against penal interest exception to
the hearsay rule, we explained that “[i]nculpatory statements may be divided into
collateral and noncollateral statements.” Id. at 15. Noncollateral statements are 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. By contrast, collateral statements
are those “in which the inculpatory material is not found in the portion of the statement
25
directly against the declarant’s interest, but instead appears in another portion of the
statement.” Id. at 16.
We then outlined the process for analyzing the admissibility of a hearsay statement
offered as a declaration against penal interest. Id. at 17. In its opinion below, the
Appellate Court succinctly summarized the analytical test that we set forth in Standifur,
which we can summarize no better:
(1) Unavailability. The trial court must find that the declarant is
unavailable to testify at trial.
(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 interest that
survives this analysis, and those related statements so closely connected
with it as to be equally trustworthy, are admissible as declarations
against interest.”[14]
Smith, 259 Md. App. at 659–60 (quoting Standifur, 310 Md. at 12, 17) (emphasis omitted
in part) (footnote omitted). Applying this framework, this Court concluded that the
14
As we discuss herein, Matusky modified this fourth step pertaining to “collateral
statements.” Under Matusky, each statement in the narrative is required to satisfy the
admissibility requirements.
26
declarant-witness’s statement should not have been admitted into evidence because the
evidence was insufficient to prove that a reasonable person in his position “would have
understood the disserving nature of the statement[,]” and “the totality of circumstances
under which the statement was made militate[d] against a finding of the requisite
reliability.” Standifur, 310 Md. at 17.
Williamson v. United States
A few years later, in Williamson v. United States, the Supreme Court considered
the admissibility of a codefendant’s partially self-inculpatory statement as a declaration
against penal interest under Federal Rule of Evidence 804(b)(3). 512 U.S. 594 (1994).
There, the declarant, Harris, was arrested after he was discovered with a large quantity of
cocaine in the trunk of his rental car.
Id. at 596. During an interview with law
enforcement officers, Harris indicated, among other things, that the cocaine belonged to
Williamson and that Harris was simply a courier.
Id. at 596–97. Williamson was
subsequently charged with various drug offenses.
Id. At Williamson’s trial, Harris
refused to testify and, thus, the trial court permitted one of the officers who interviewed
Harris to testify as to Harris’s statements, concluding that they were admissible under
Fed. R. 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.
The Court narrowly construed the word “statement” contained in the rule to mean
“a single declaration or remark,” as opposed to an extended declaration or narrative. Id.
at 599. The Court explained that “the most faithful reading of Rule 804(b)(3) is that it
27
does not allow admission of non-self-inculpatory statements, even if they are made
within a broader narrative that is generally self-inculpatory.” Id. at 600–01. The Court
went on to state 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 a statement against the declarant’s penal interest.
Id. The
Court emphasized that a trial court “may not just assume[,] for purposes of” the rule,
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.
“[T]he arrest statements of a codefendant have traditionally been viewed
with special suspicion. Due to his strong motivation to implicate the
defendant and to exonerate himself, a codefendant’s statements about what
the defendant said or did are less credible than ordinary hearsay evidence.”
Id. at 601 (quoting Lee v. Illinois,
476 U.S. 530, 541 (1986)).
As applied to Williamson’s case, the Court determined that while some portions of
Harris’s confession could be admissible under the Rule as sufficiently self-inculpatory,
others would not be, “especially the parts that implicated Williamson, [but] did little to
subject Harris himself to criminal liability.” Id. at 604. Because the record demonstrated
that neither the trial court nor the Court of Appeals “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. The Court
observed that a court’s analysis of each statement “can be a fact-intensive inquiry, which
. . . require[s] careful examination of all the circumstances surrounding the criminal
activity involved[.]”
Id.
28
Justice Scalia concurred and wrote to expound his view that the statement against
penal interest exception may properly cover statements that inculpate both the declarant
and co-conspirator. Id. at 605–07 (Scalia, J., concurring). In his view,
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 (emphasis in original).
State v. Matusky
Following Williamson, we returned to the issue of parsing in State v. Matusky, 343
Md. 467 (1996). We adopted Williamson and reconciled it with Standifur. In that case,
the respondent was charged with two counts of first-degree murder.
Id. at 470. His
codefendant had previously confessed to his fiancée that the respondent committed the
murder, but that he (the codefendant) was merely the getaway driver.
Id. at 471. While
the codefendant’s fiancée initially told police that the codefendant was with her for the
entire day of the murder, she recanted this statement and recounted the codefendant’s
statements to the police.
Id. The respondent and the codefendant were ultimately
charged with two counts of first-degree murder.
Id. At the respondent’s trial, the
29
codefendant asserted his Fifth Amendment right against self-incrimination and, thus, was
an unavailable witness. Id. As a result, the trial court permitted the fiancée to testify as
to what the codefendant told her about the events in question, finding that the declaration
against penal interest exception applied.
Id. at 471–72.
The Appellate Court of Maryland reversed, reasoning that the trial court should
not have admitted the codefendant’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. Matusky v. State, 105 Md. App. 389, 403 (1995).
We agreed with the Appellate Court’s analysis, affirmed its decision, and remanded the
case for a new trial. Matusky, 343 Md. at 475–76, 492.
In our opinion, we relied heavily upon our opinion in Standifur, re-affirming the
framework that we outlined in that case. Id. at 479–83. We explained that the “final
inquiry” under Standifur’s declaration against penal interest analysis requires “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.”
Id. at 482. Applying this standard, we held 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 codefendant’s] account should be redacted.”
Id. at 485. We explained that “the
trial court should have redacted those portions of [the codefendant’s] declaration
identifying [the respondent] as the murderer and suggesting [the respondent’s] motive for
the crime” because those “portions of the declaration did not directly incriminate” him
30
and simply “serve[d] to shift blame from [the codefendant] to [the respondent].” Id.
Thus, “[b]ecause the trial court failed to properly analyze [the codefendant’s] hearsay
declaration,” we reversed the respondent’s convictions.
Id.
Because the respondent’s trial on remand would be governed by the newly
effective Maryland Rules, including Rule 8-403(b)(3), we also discussed Williamson.
Although we noted that it was merely persuasive authority insofar as it interpreted federal
evidentiary procedure, we “adopt[ed] it as part of Maryland law, in accord with a number
of other states.” Id. at 489–90. In adopting Williamson, we recognized that our Standifur
framework needed tweaking. We observed that “[t]he central distinction between the
Williamson approach and our approach in Standifur is that ‘proximity’ between the self-
inculpatory and ‘collateral’ portions no longer guarantee[d] admissibility.”
Id. at 491.
We recited with approval the Delaware Supreme Court’s observations in connection with
that court’s adoption of Williamson:
[T]here is no theoretical basis for the admission of neutral, collateral
statements. Hearsay statements are generally inadmissible. . . . A hearsay
declaration is admissible, usually under a specific exception only where the
declaration has some theoretical basis making it inherently trustworthy.
See Ohio v. Roberts, 448 U.S. 56, 63 (1980). Thus, absent some special
indicia of reliability and trustworthiness, hearsay statements are
inadmissible. Neutral, collateral statements enjoy no such guarantees of
reliability and trustworthiness. Williamson, 512 U.S. at 600.
Id. (emphasis in original) (some internal citations omitted) (quoting Smith v. State,
647
A.2d 1083, 1088 (Del. 1994)).
Instead, 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
31
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, in and
of itself, no longer suffices.
Against this framework, we turn to the State’s preservation argument.
C. Parties’ Contentions
The State argues that the Appellate Court erred by “creating an exception” to the
general rule that a defendant is required to request redaction in order to properly raise a
“failure to redact” claim on appeal. The State directs the Court to treatises reflecting the
general rule that when a party seeks redaction of a prior statement or piece of evidence,
the party must request one where a general objection is overruled. See Lynn S. McLain,
Maryland Evidence § 103:8 (3rd ed. 2013) (noting that “if one’s general objection is
overruled, one must request redaction of the objectionable part, in order to complain on
appeal of the court’s failure to redact”); Joseph F. Murphy, Jr. & Erin C. Murphy,
Maryland Evidence Handbook § 105[B] (5th ed. 2020) (advising practitioners that “[i]f
your objection gets overruled, request that the court exclude specific portions which
would easily be redacted”). The State points out that this Court applied this principle in
Woodlin v. State, 484 Md. 253 (2023), and the Appellate Court has applied it in Colkley
v. State,
251 Md. App. 243, 282–83 (2021), Belton v. State,
152 Md. App. 623, 634
(2003), and Williams v. State,
117 Md. App. 55, 68 (1997).
The State asserts that “[b]efore and during trial, defense counsel did not try to
obtain a lesser remedy by asking the circuit court to ‘parse’ the interview and redact
particular parts while admitting other parts.” The State asserts that because defense
32
counsel failed to request redaction of those portions of the Blake Interview that he
contends were inadmissible, we should hold that he failed to preserve his objection to the
admissibility of the Blake Interview.
According to the State, the Appellate Court erred by “creating an exception to the
general rule” by incorrectly interpreting Matusky as placing a duty on the trial court to
parse the narrative. The State also asserts that Matusky neither said that the trial court has
a duty to redact sua sponte, nor did it say that a trial court must parse the narrative upon
specific request. For this reason, the State asserts that this Court should “resolve this
issue the way Maryland courts have resolved similar areas of law, by requiring specific
preservation in order to preserve the failure-to-redact claim for appeal.” Because defense
counsel did not request that the trial court redact particular statements within the Blake
Interview, the State argues that Respondent failed to preserve his objection to the trial
court’s process for admitting the interview in its entirety.
Respondent argues that the Appellate Court’s opinion did not create a new
preservation exception, and that it correctly recognized that the “general rule” espoused
by the State does not apply because Matusky governs the admission of this particular type
of hearsay evidence. Respondent points out that Matusky imposes a duty on the trial
court, which requires the court to parse each statement as part of the process for
determining the admissibility of hearsay statements comprising an extended narrative
when considering the declaration against penal interest exception.
Respondent contends that the State interjects confusion into the analysis by
referring to the Blake Interview as a “statement,” as the trial court did, which makes it
33
sound like one thing to be admitted or excluded. According to Respondent, following
this incorrect framework, the State erroneously characterizes this evidence, for
preservation purposes, as a “statement” or a “piece of evidence” for which Respondent
was obligated to seek redaction, instead of a series of statements, which, under this
Court’s case law, were required to be parsed by the trial court to determine which
statements were admissible. When considered within the correct framework, Respondent
asserts that it becomes clear that the cases cited by the State in support of a “general rule”
governing “prejudicial details of otherwise admissible evidence, as opposed to separately
inadmissible statements,” are not controlling. Respondent contends that, under the
State’s argument, the Court would be creating a “new duty” upon “defense counsel to
conduct the trial court’s parsing for it.”
D. The Appellate Court Correctly Interpreted Our Case Law Concerning the
Trial Court’s Duty to Parse an Extended Declaration Against Penal
Interest
We determine that the Appellate Court did not err in its analysis of Matusky, or in
holding that Respondent preserved his objection to the trial court’s failure to undertake
the parsing analysis required by our four-part test for determining whether this particular
type of hearsay evidence is admissible.
As discussed above, Matusky established a process for admission that the trial
court is required to undertake when determining the admissibility of a hearsay statement
pursuant to the declaration against penal interest exception set forth in Maryland Rule 5-
804(b)(3). This test is unique to this particular type of hearsay evidence. The issue that
Respondent raised before the Appellate Court was the trial court’s failure to undertake
34
the final step in the process. Specifically, when confronted with an extensive declaration,
narrative, or interview involving more than one “statement,” the trial court cannot treat
the declaration as a single “statement” that is to be admitted or not admitted as a whole
but is required to undertake a parsing analysis. Matusky makes clear that the “trial court
must break down the narrative and determine the separate admissibility of each ‘single
declaration or remark.’” 343 Md. at 492 (emphasis added). In doing so, Matusky further
mandates that “[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.
We are far from alone in imposing a duty upon the trial court to parse hearsay
narratives prior to the admission of purported statements against penal interest. The
federal circuits that have ruled on the issue after Williamson have held that the district
court has this duty. See, e.g., United States v. Mendoza, 85 F.3d 1347, 1352 (8th Cir.
1996) (“Williamson required the district court to examine each portion of [the] statement
to determine whether it tended to subject [the declarant] to criminal liability.”); United
States v. Castelan,
219 F.3d 690, 694 (7th Cir. 2000) (stating that under “Williamson, the
district court must consider whether each statement, not just the confession as a whole,
was truly self-inculpatory” (emphasis added)); United States v. Canan,
48 F.3d 954, 959
(6th Cir. 1995) (stating that “when ruling upon a narrative’s admissibility under this rule,
a court must break it down and determine the separate admissibility of each ‘single
declaration or remark.’ This exercise is ‘a fact-intensive inquiry’ that requires ‘careful
35
examination of all the circumstances surrounding the criminal activity involved’”
(quoting Williamson, 512 U.S. at 599, 604) (emphasis added)); United States v. Ojudun,
915 F.3d 875, 886 (2d Cir. 2019) (holding that the district court erred by “not focus[ing]
on each of his statements individually to determine which of them would reasonably have
been viewed as so exposing him to criminal liability as to fall within Rule
804(b)(3)(A)”). Similarly, state supreme courts that have adopted Williamson have been
clear that the trial judge has the duty to remove non-self-inculpatory statements from the
longer narrative before its admission. See, e.g., Idaho v. Robins,
431 P.3d 260, 275
(Idaho 2018); West Virginia v. Kaufman,
711 S.E. 2d 607, 622–23 (W. Va. 2011);
Minnesota v. Ford,
539 N.W. 2d 214, 227 (Minn. 1995); Massachusetts v. Marrero,
800
N.E.2d 1048, 1050 (Mass. 2003); Osborne v. Kentucky,
43 S.W.3d 234, 241 (Ky. 2001);
Washington v. Roberts,
14 P.3d 713, 726 (Wash. 2000).
The State asserts that these cases do not address preservation and, therefore, are
not dispositive of the issue it presents here—whether defense counsel was required to
seek redaction of particular statements in order to preserve his objection that the trial
court failed to engage in the parsing process. Respondent agrees, but counters that it is
equally notable that, in all of the cases that the State cites, the appellate courts not only
considered the merits of the defense counsel’s objection, but they also failed to hold, or
even mention, that the opponent of the hearsay narrative had a duty to seek redaction in
order to raise the trial court’s failure to undertake the parsing process on appeal. We
agree with Respondent that if there was a duty on an opponent to seek redaction in order
to raise the trial court’s failure to undertake the parsing process appeal, there would be at
36
least a whiff of such duty referenced in these cases. And in at least one instance, a
federal appellate court commented on the proponent’s failure to raise parsing. See
Castelan, 219 F.3d at 694 (stating “[h]ere, the record is silent on whether the district
court considered whether each statement by [the declarant] introduced at trial was
genuinely self-inculpatory, and certainly the government never urged the district court to
parse [the declarant’s] statements as Williamson required” (emphasis added)).
Of course, while we find these cases persuasive, we are not bound by them in
determining the preservation requirement here. Turning to the Maryland appellate cases
cited by the State, we disagree with the State that the general rule applied in those cases
compels us to hold that defense counsel has a duty to seek redaction to preserve an
objection to the trial court’s failure to undertake the admission process here. The cases
cited by the State involve different types of evidence with different admissibility
considerations.
For example, Woodlin involved the admissibility of a prior sex offense under a
statute that authorizes its introduction provided certain safeguards are met. 15 484 Md.
253, 261–62 (2023). In that case, prior to trial, the State sought to admit portions of a
defendant’s guilty plea transcript concerning details of a prior sex offense. The defense
argued pre-trial that the prior conviction should not be admitted because the prior offense
was not sufficiently similar to the charged offense.
Id. at 272–73. At trial, the defense
15
One of the safeguards is that “[t]he defendant had an opportunity to confront
and cross-examine the witness or witnesses testifying to the sexually assaultive
behavior[.]” Md. Code Ann., Courts and Judicial Proceedings Article § 10-923(e)(2)
(1984, 2021 Repl. Vol., 2022 Supp.).
37
argued only that the admission of the conviction would violate his right to confrontation.
Id. at 275. On appeal, the defense argued for the first time that the admission of the plea
transcript was more prejudicial than probative because it contained inflammatory details
about the prior offense. We found the issue unpreserved because although the defense
had been provided with the plea transcript on multiple occasions, they had never raised
an issue about the unredacted transcript or objected to the scope of the evidence. Id. at
293–94.
Under the statute in question, the General Assembly imported a balancing test
similar to the one found in Maryland Rule 5-403—which requires that the trial court
determine whether the probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice. Id. at 277. We reviewed the trial court’s application of
the balancing test under an abuse of discretion standard. Id. at 268. Within this
context—judgment calls involving otherwise admissible evidence—it is logical to require
defense counsel to point out precisely what information he or she considers to be unduly
prejudicial.
Belton v. State, 152 Md. App. 623 (2003) and Williams v. State,
117 Md. App. 55
(1997), each involved the admission of prior inconsistent statements by a witness at trial
after the witness recanted on the stand. In Belton, the statements were admitted under
two hearsay exceptions: as a prior inconsistent statement and as an extrajudicial
identification, which the trial court admitted over defense counsel’s objection. 152 Md.
App. at 631–32. On appeal, the appellant asserted that the statements should not have
been admitted into evidence because they were not inconsistent with the witness’s trial
38
testimony, and they did not qualify as an extrajudicial identification because they
consisted of “far more than a mere identification of appellant.” Id. at 631. The Appellate
Court held that the appellant had failed to preserve his objection of the admissibility of
the hearsay evidence by not requesting a redaction or limitation of the portion of the tape
that was played to the jury. Id.
Similarly, in Williams, after a witness recanted on the stand, the prosecutor
introduced a “prior inconsistent statement” of the witness. 117 Md. App. at 67–68. On
appeal, the appellant argued that the portions of the witness’s statement that were
consistent with his trial testimony should not have been admitted. Id. In that context, the
Appellate Court determined that the “appellant made no objection below to the admission
of the statement due to the fact that it included consistent statements[,]” and likewise
“never asked the trial court to redact the portions of the statement appellant believed to be
prior consistent statements.” Id. at 68. The Appellate Court therefore determined that,
“even if error, it was not preserved.” Id.
In Colkley v. State, during the appellant’s fifth murder trial (the first two trials
having been reversed, and the second two trials having resulted in mistrials), his counsel
objected to the State playing recordings of two co-conspirators’ prior testimony who were
both unavailable. 251 Md. App. 243, 278–79 (2021). The appellant’s objections related
to the “prejudicial nature” of both recordings and the inclusion of the phrase “ladies and
gentlemen of the jury” at the beginning of one of them. Id. at 283. The Appellate Court
determined that the appellant’s general objections to the admission of the recordings were
not preserved because he did not seek redaction of what he considered to be prejudicial
39
statements within the context of hearsay statements that were otherwise admissible. The
Appellate Court concluded that the trial court did not abuse its discretion in failing to
redact the phrase “ladies and gentlemen of the jury”—the only phrase that the appellant
asked the trial court to exclude. Id. at 284.
Simply put, these cases did not involve the type of evidence that is in dispute
here—an extensive hearsay narrative which is governed by a unique admissibility process
under our case law that a trial court is required to undertake prior to the admission of that
evidence. The trial court’s parsing requirement to determine the admissibility of hearsay
statements that comprise an extended narrative or interview based upon the declaration of
penal interest exception is unique to this type of hearsay evidence. And there is a good
reason for requiring that these types of statements undergo the rigor of such an analysis
prior to their admission, particularly when the statement inculpates not only the declarant,
but also a codefendant. As discussed above, 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.” 16 Standifur, 310 Md. at 13 (citations
omitted).
16
To support its position that statements against penal interest should be treated
the same as any other type of hearsay evidence, the Dissent relies upon State v. Grant,
776 N.W.2d 209 (N.D. 2009). Dissent Op. at 12–14. In that case, the Supreme Court of
North Dakota analyzed certain hearsay statements recorded by a nurse practitioner and
their admissibility pursuant to North Dakota Rules of Evidence 803(4) (statements made
40
Like the Appellate Court, we determine that our 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.
The State identifies several policy reasons why this Court should place a duty on
the opponent of the admission of the hearsay narrative to present the court with specific
redactions of inadmissible statements. First, according to the State, the defense is far
more familiar with the facts of the case and, thus, is better able to parse the statement in
the first instance. Second, the State argues that “shifting the burden to the trial court”
will require the trial court to “read defense counsel’s mind” as to which specific parts
should be redacted. Third, the State points out that a narrative may be long, thereby
requiring the trial court to make “judgment calls” about each statement without “specific
input from the defendant.” The State argues that the failure to impose a duty on defense
counsel to provide a redacted narrative will promote gamesmanship by creating a
for medical diagnosis or treatment) and 803(6) (records of a regularly conducted
activity). Grant, 776 N.W.2d at 213–14. We do not find Grant’s discussion of those
hearsay exceptions persuasive here. As discussed herein, statements against penal
interest are unique and are treated as “inevitably suspect” for the reasons we described in
Standifur, 310 Md. at 13 (citations omitted). We further note that had this case arisen in
North Dakota, the Blake Interview would be inadmissible under that jurisdiction’s rules
of evidence, which provide that “[a] statement or confession offered against the accused
in a criminal case, made by a codefendant or other person implicating both the declarant
and the accused, is not within this exception.” N.D. R. Evid. 804(b)(3)(B) (emphasis
added); see also Editor’s Note, N.D. R. Evid. 804 (“Such statements may not be against
interest, and the area is one in which the constitutional rights of the defendant may
preclude their admission. Rather than proceed on a case-by-case basis, it was decided to
preclude admission of such statements entirely.”).
41
disincentive for defense counsel to provide guidance to the trial court and hedge their bet
on an “all or nothing” approach to the admission of the evidence. We disagree and
further explain below how, if the Matusky process is undertaken correctly, these concerns
will be addressed and eliminated.
E. The Trial Court’s Duty and the Manner in Which Parsing Should Be
Undertaken
Where a proponent seeks the admission of presumptively inadmissible hearsay
under the declaration against penal interest exception, the proponent should present
evidence and argument to the trial court 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, 479 Md. at
359. When presented with such a request, the trial court must analyze the admissibility
of a hearsay statement offered as a declaration against penal interest under the following
framework:
(1) Unavailability. The trial court must find that the declarant is unavailable to
testify at trial.
(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.” Standifur,
310 Md. at 17.
(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
42
reliability normally attending a declaration against interest that the
statements should not be admitted.” Id.
(4) Parsing. “When ruling upon the admission of a narrative under this rule, a
trial court must break down the narrative and determine the separate
admissibility of each single declaration or remark. The 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, 343 Md. at 492 (cleaned up).
As to the fourth step, 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.” Williamson, 512 U.S. at 601. Moreover, “[n]eutral,
collateral statements enjoy no such guarantees of reliability and trustworthiness[]” and
are, therefore, not admissible “absent some special indicia of reliability and
trustworthiness[.]” Matusky,
343 Md. at 491 (quoting Smith,
647 A.2d at 1088).
We agree with the Supreme Court’s observation that the trial court’s analysis of
each statement “can be a fact-intensive inquiry,” which requires “careful examination of
all the circumstances surrounding the criminal activity involved[.]” Williamson, 512 U.S.
at 604. Although we hold that the opponent has no duty to propose redactions of
statements contained in an extended narrative prior to the trial court undertaking the
process, that does not mean that either a proponent or an opponent of the narrative or
interview may not request redaction. Moreover—addressing the State’s policy
concerns—a trial court has no obligation to consider the admissibility of the statements in
isolation or without soliciting input or requesting proposed redactions from both parties.
The trial court can look at the narrative with the parties present, consider input from the
43
parties on each statement, and can request that the parties help redact individual
statements within the narrative. What the court cannot do is treat the narrative as a single
statement without considering whether each statement within it is in fact self-inculpatory
to the declarant. 17
Indeed, if the trial court undertakes the process required by Matusky, it prevents
the concerns expressed by the State that a party will engage in gamesmanship by failing
to object or hedging their bets when the party thinks there may be a particular strategic
benefit by failing to object. We can envision circumstances in which the proponent of the
evidence argues that all of the statements are admissible and, conversely, an opponent
argues that none of the statements are admissible—which was done here. Because the
trial court is required to consider the admissibility of each statement within a narrative,
the process removes uncertainty on appeal. Once the trial court undertakes its duty and
parses the narrative to determine the admissibility of each statement, the party objecting
17
The Dissent asserts that our approach “risks taking control of the case away
from the parties, placing the court in a role usually filled by the advocates and potentially
undermining the parties’ abilities to put on their cases.” Dissent Op. at 6. Under the
Dissent’s view, the circuit court’s duty to parse “could limit the ability of the parties to
allow certain hearsay into evidence, and, in a criminal case, it could hamper a defendant’s
ability to put on a defense.” Id. at 8. We disagree. First, as outlined herein, the circuit
court is not required to undertake the parsing analysis without input from the parties or
proposed redactions by the parties. Nothing requires the parsing to be undertaken by the
court in isolation. Second, we are not suggesting that the circuit court is required to
exclude hearsay statements where the parties stipulate or agree to the statement’s or
statements’ admissibility. There may be good reasons for the defendant to want an
otherwise inadmissible statement to come into evidence. In such an instance, the
defendant can stipulate as to its admissibility. In other words, where the parties stipulate
or agree to the admissibility of a statement or statements, the court’s hands are not tied—
it is not required to supplant an agreement amongst the parties with its own admissibility
determination.
44
to the admission of that statement, or any part of it, must still object to that statement. 18
In other words, nothing in our opinion should be construed as suggesting that traditional
waiver principles do not apply once the trial court undertakes the parsing process, or
where there is no objection to a trial court’s failure to undertake the parsing process in the
first instance. When the trial court considers each statement in connection with the
aforementioned duty, a party opponent’s failure to object to a statement’s admissibility
will be subject to traditional waiver principles.
F. Respondent Adequately Preserved His Challenge to the Hearsay Evidence
at Issue
Based upon our review of the record, we hold that Respondent adequately
preserved his objection to the trial court’s failure to undertake the process required for the
admission of this particular type of hearsay evidence.
In the prosecutor’s motion to admit the evidence, he explained that the trial court
had to determine whether “the recorded interview” “qualifies as a statement against
interest.” Although the prosecutor correctly pointed out that the trial court was required
to undertake the parsing analysis required by Matusky, he did not attempt to explain how
18
We are unpersuaded by the State’s argument that there will be a risk of reversal
if the trial court makes judgment calls without imposing a duty on defense counsel to
provide redactions. As noted, the trial court may seek input, including proposed
redactions from both parties prior to making the admissibility determination. In doing so,
the trial judge will make the same judgment call that is necessarily required in any
instance when deciding whether the standard for admission has been satisfied. Whether
evidence is admissible under a hearsay exception is a legal conclusion reviewed de novo,
while any factual findings underpinning that legal conclusion are reviewed for clear error.
Gordon v. State, 431 Md. 527, 538 (2013). Where a trial judge makes an erroneous
judgment call in this context, it is subject to the harmless error analysis.
45
each statement satisfied the admission standard. Instead, the prosecutor treated the
narrative as a single statement—summarizing the 55-minute interview containing over
250 statements in a single paragraph:
[W]ithin Mr. Blake’s statement, he describes in specific and nuanced detail
how he would sell amounts of controlled dangerous substances and how the
organization operated. This information included how much Mr. Blake was
to be paid in the organization, that he was given a phone to use by the
[Respondent] in order to received orders for controlled dangerous
substances, how [Respondent] would coordinate drug transactions that Mr.
Blake would effect, where the controlled dangerous substances came from,
the amount of money for which Mr. Blake would sell certain amounts of
controlled dangerous substances, and information related to the innerworkings of Defendant’s drug trafficking operation.
Although the prosecutor mentioned the parsing requirement again, he urged the
court to admit the Blake Interview in its entirety because “the statements that contain
inculpating statements relating to Mr. Blake are so interwoven with the statements that
inculpate [Respondent] that they cannot be severed,” and also argued that the statements
could not “be sanitized and separated.”
Defense counsel filed a response objecting to the introduction of the Blake
Interview. One of defense counsel’s objections was that the claimed “interwoven”
statements were not against Mr. Blake’s interest and implicitly averred that they were
severable. The defense criticized the prosecution for “attempting . . . to get statements
made by [Mr. Blake] that implicate the defendant into evidence as if they are statements
against interest.” Defense counsel also parsed one of Mr. Blake’s statements to illustrate
that the statements were not “so interwoven.”
46
The circuit court considered the parties’ competing arguments at a pre-trial
hearing. The court noted that it had watched the 55-minute interview. The court asked
whether there was a “case on point” that addressed a scenario in which part of the
“statement” is “against [Mr. Blake’s] interest, but part of it is a statement against [Mr.
Smith’s] interest.” The prosecutor admitted that “there are definitely parts of the
statement that are solely against [Mr. Blake’s] own interest and solely against
[Respondent’s] interest, but I think there is a lot of portions of the interview that the
statement is against both their interests simultaneously and they are so closely interwoven
that you couldn’t possibly separate the two.” The prosecutor then read part of Justice
Scalia’s concurrence in Williamson in support of his position that the entire Blake
Interview was admissible because the statements were so interwoven that they were not
severable. The prosecutor did not discuss any particular statement or statements or show
how they were self-inculpatory to Mr. Blake. It is clear that the prosecution was trying to
convince the trial court that the statements were not severable and that the Blake
Interview should simply be admitted into evidence in toto.
Defense counsel continued objecting to the manner in which the State was
attempting to admit the Blake Interview. In addition to arguing that Mr. Blake’s
statements were confusing because they were not connected to a particular time frame
and that his client would be prejudiced by his inability to cross-examine Mr. Blake,
defense counsel stated that he did not agree with the prosecution’s argument that the
statements were “so interwoven” that they inculpated both Mr. Blake and the
47
Respondent. Defense counsel gave another example of a statement that would not be
self-inculpatory as to Mr. Blake:
If this witness says my client did run a drug organization at some point,
handed the reins over to Dwight Woods, and Dwight Woods took it over
and then Dwight Woods started dealing drugs, which is why this
investigation began, that’s what scares me.
Defense counsel made a similar argument in the context of reliability, stating:
[Mr. Blake] can inculpate himself as much as he wants that the State’s
argument [is] correct, most people who inculpate themselves tend to tell the
truth when they do that. It’s when they push everything off on someone
else, oh, I was just the low man on the totem pole, he was the one who got
the drugs from Baltimore and brought them here.
After hearing arguments of counsel, the trial court ruled that the Blake “statement”
could come in. In its ruling, the court treated the Blake Interview as one statement for
hearsay purposes, simply stating that “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.” It is clear that the trial court believed that it could
treat the statement as one piece of evidence that could be admitted and, thus, made its
ruling notwithstanding defense counsel’s attempts to explain how the statements were not
all self-inculpatory and so interwoven that they could not be separated.
Defense counsel objected to the admission of the entirety of the Blake Interview
again during the trial, prior to the trial court admitting the interview. The circuit court
granted Mr. Smith a standing objection, but defense counsel noted that he was going to
object once again before the video of the interview was played to the jury, to ensure that
“everything is preserved.” When the prosecution moved to admit the Blake Interview
48
into evidence, defense counsel again objected, which the circuit court overruled. Based
upon these objections, we determine that defense counsel adequately preserved his
argument that the trial court failed to undertake the process required by Matusky for
admission of this particular type of hearsay evidence.
IV
Conclusion
For the foregoing reasons, we hold that the Appellate Court correctly determined
that Mr. Smith preserved his objection to the trial court’s failure to undertake the necessary
process required by our case law when considering the admission of hearsay statements
contained within an extended interview or narrative under the declaration against penal
interest exception. We affirm the judgment of the Appellate Court.
JUDGMENT OF THE APPELLATE
COURT AFFIRMED. COSTS TO
BE PAID BY PETITIONER.
49
Circuit Court for Wicomico County
Case No.: C-22-CR-19-000554
Argued: May 6, 2024
IN THE SUPREME COURT
OF MARYLAND
No. 30
September Term, 2023
STATE OF MARYLAND
v.
LAMONT SMITH
Fader, C.J.
Watts
Booth
Biran
Gould
Eaves
Hotten, Michele D.
(Senior Justice, Specially Assigned),
JJ.
Dissenting Opinion by Biran, J.
Filed: August 13, 2024
Respectfully, I dissent.
In its opinion, the Majority adopts a “unique” procedure that applies only to
admitting evidence under the statement-against-penal-interest exception to hearsay. Maj.
Op. at 3. Applying that procedure here, the Majority concludes that hearsay objections
implicating this exception are preserved as to every single statement in a recorded
55-minute interview that the State introduced at trial – even though the defense only
specifically objected to a single statement in the interview at trial and the trial court
sustained the objection. 1
This is an odd result. In all other contexts, an objection to evidence must be made
when the evidence is offered (or as soon as the grounds for objection become apparent),
otherwise the objection is waived. Md. Rule 4-323(a). This means that a party opponent
generally must challenge particular hearsay statements, either by pointing them out to the
court or by raising an objection when they are offered as evidence. To be sure, a continuing
objection was secured at trial here, but this does not make the result less unusual.
Continuing objections only apply to matters “clearly” within their scope. Md. Rule
4-323(b). And the continuing objection here was based upon arguments the defense made
1
Like the Majority, I refer to this interview as the “Blake Interview.” At trial, the
defense argued that one statement in the Blake Interview, made by one of the officers
questioning Mr. Blake, should be stricken because it was hearsay within hearsay and “not
a statement against penal interest[,]” further explaining that “I just don’t want that
statement to come in.” In response to this specific objection, the circuit court ordered the
statement by the officer stricken and instructed the jury to disregard it.
at an earlier motion in limine hearing, where the defense similarly did not point the circuit
court to any specific statement in the Blake Interview.
The Majority does not explain why the traditional procedure for objections – which
continues to apply to all other objections grounded in hearsay and its other exceptions – is
inadequate in the context of statements against penal interest, nor does the Majority name
any benefits that would come with adopting a different process “that uniquely applies only
to this particular type of hearsay evidence.” Maj. Op. at 21 (emphasis in original). Because
I perceive that the Majority’s procedure has several drawbacks and provides no
corresponding benefits, I would instead apply our traditional preservation analysis and hold
that the hearsay objections here were not preserved.
A. The Legal Framework of Hearsay and Preservation
Hearsay is “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.” Md. Rule 5-
801(c). Hearsay is presumptively inadmissible, and a hearsay statement only will be
admitted if it falls within an exception to the hearsay rule. See Md. Rule 5-802. Of course,
there are also “a myriad of exceptions” to the rule, Maj. Op. at 22, one of which concerns
statements against penal interest. These are statements that “so tend[] 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.” Md. Rule
5-804(b)(3). 2
2
For a statement to be admissible under Maryland Rule 5-804(b)(3) as against the
declarant’s penal interest, the proponent of the evidence must demonstrate “(1) the
2
Of course, not all statements that tend to subject a declarant to criminal liability are
truly statements against penal interest. For instance, a declarant may admit some
responsibility in the course of trying to pass greater responsibility onto somebody else.
Although some commentators advocate generally admitting all those collateral statements
too, see 5 J. Wigmore, Evidence in Trials at Common Law § 1465, at 339-41 (Chadbourn
rev. 1974 & 1996 Supp.), I agree with the Majority that a more nuanced analysis applies in
Maryland. Specifically, our analysis requires “separat[ing] the self-serving from the
disserving portions of the declaration ..., excluding only the self-serving portions.” State v.
Matusky, 343 Md. 467, 479 (1996). That is not to say that no collateral statements can come
in under the hearsay exception, but such collateral statements must be “so closely
connected” with a statement against penal interest “as to be equally trustworthy[.]” State
v. Standifur,
310 Md. 3, 17 (1987).
As the Majority correctly notes, we assess hearsay and its exceptions at the
statement level, meaning that different statements within a larger narrative will not
necessarily be treated the same way in a hearsay analysis. Thus, a trial court generally
cannot shortcut the analysis by lumping multiple statements together in a larger narrative
and making only a narrative-level ruling on hearsay. Likewise, in analyzing a particular
statement, a trial court cannot refuse to consider context for the statement that is provided
elsewhere in the larger narrative. Thus, we have said that a “trial judge [must] parse 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.” State v. Galicia, 479 Md. 341, 359 (2022).
3
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 482.
In practice, as hearsay and its exceptions are assessed at trial, a party opposing the
admission of hearsay must generally object as the evidence is offered, objecting to each
question that is posed to elicit objectionable hearsay or to each answer that contains it. See
State v. Robertson, 463 Md. 342, 366 (2019); see also Kelly v. State,
392 Md. 511, 541
(2006) (“[I]t is incumbent upon the State to make the objections to the testimony as it is
elicited by the defense.”). Although a party may also object to an entire line of questioning
by seeking a continuing objection, Robertson,
463 Md. at 366 (“[A] party should object to
each question or assert a continuing objection to an entire line of questioning.”), a
continuing objection is effective only as to “questions clearly within its scope.” Md. Rule
4-323(b).
Requiring a proper objection serves multiple functions. The objection is the
mechanism for a party to hold the proponent of evidence to its burden. See Curtis v. State,
259 Md. App. 283, 314 (2023) (“The proponent of the evidence bears the burden of proving
that the statement, and the circumstances under which it was made, fall within the confines
of an applicable [hearsay] exception.”). The objection also preserves the evidentiary issue
for appellate review. See Md. Rule 5-103(a)(1) (noting that a party cannot assert error
unless they were prejudiced by a ruling admitting evidence and either made “a timely
objection or motion to strike” on the record); Young v. State,
234 Md. App. 720, 740 (2017)
(admitted evidence can only create an appellate issue if “a timely objection or motion to
4
strike appears of record”) (cleaned up). Conversely, without a timely objection, evidence
may come in that otherwise would not, see Kelly, 392 Md. at 532 (“[H]earsay is only
excluded upon an objection to it.”), and the evidentiary issue generally will not be
preserved for appellate review. See Md. Rule 8-131(a); Taylor v. State,
381 Md. 602, 614
(2004) (“Even errors of Constitutional dimension may be waived by failure to interpose a
timely objection at trial[.]”) (cleaned up).
This usual procedure benefits the trial court, the parties, and our judicial system. By
requiring timely objections to preserve evidentiary issues, trial objections will generally
occur at the statement level, “allow[ing] the trial court to prevent mistakes or cure them in
real time.” Hall v. State, 225 Md. App. 72, 89 (2015) (internal quotation marks and citation
omitted). By requiring the parties to bring issues to the trial court’s attention, our traditional
preservation procedure ensures that other parties and the court can consider and respond to
challenges, a proper record will be made, and the trial court will have a fair opportunity to
correct its errors and to ask for more information about objections to particular questions
or statements. See Malarkey v. State,
188 Md. App. 126, 157 (2009). Requiring timely
objections also promotes fairness by preventing parties from “treating the trial as a sport”
by waiting to object “until it may be too late for the other party to recover[.]” Hall,
225
Md. App. at 89 (internal quotation marks and citation omitted); see also Bruce v. State,
328
Md. 594, 628 (1992) (“Counsel cannot wait to see whether the answer is favorable before
deciding whether to object.”) (citation omitted).
Moreover, the usual procedure ensures that the parties have the freedom to pursue
their case strategies, and – when they opt to challenge the admission of evidence – that they
5
will be motivated to present their best evidentiary arguments to the court. In the hearsay
context, objections generally will be required at the statement (or question) level, ensuring
that the hearsay analysis naturally proceeds statement-by-statement. For each statement or
potential statement, the opponent will be able to decide whether to simply allow the
statement in, or whether to object and, if necessary, explain why they believe the statement
or question is improper. Absent objection, the trial court generally will allow the parties to
put on their cases as they see fit. And when there is an objection, the trial court has the
benefit of timely argument at the statement level to inform its evidentiary rulings.
B. The Majority’s Approach Upends the Traditional Procedure, Creating the
Potential for Problems Without Providing Any Benefits.
The Majority’s novel approach toward preservation in this case creates new
problems, without providing any new benefits. Under the Majority’s new procedure, a
party need only make a single, general challenge to a narrative as a whole by claiming that
it contains hearsay that does not fall within the statement-against-penal-interest exception.
In response, the court then must parse the entire narrative and exclude any statements that
do not fall within that exception. Maj. Op. at 40-41. A harmless error analysis will apply
at the appellate level, but apparently only if the circuit court satisfies its duty to parse the
narrative and sua sponte make “judgment calls” at the statement level about whether to
exclude qualifying hearsay. Maj. Op. at 45 n.18. And regardless, as with all hearsay
determinations, each of the circuit court’s statement-level rulings will be subject to de novo
review. As a result, this new procedure has several drawbacks:
6
First, the Majority’s procedure risks taking control of the case away from the
parties, placing the court in a role usually filled by the advocates and potentially
undermining parties’ abilities to put on their cases. The Majority concludes that circuit
courts have an independent duty to review narratives and exclude hearsay that does not fall
within the statement-against-penal-interest exception. But by imposing this duty on trial
courts, the Majority’s analysis impinges upon an important power that ordinarily belongs
to the parties: the power not to object to certain inadmissible hearsay.
Hearsay is frequently allowed into evidence, and there are times when the parties
affirmatively want it to come in. See Carter v. Aramark Sports & Ent. Servs., Inc., 153 Md.
App. 210, 231 (2003) (“[M]uch hearsay, even inadmissible hearsay, is relevant and
material.”) (quoting United States v. Spiller,
261 F.3d 683, 689-90 (7th Cir. 2001)); see
also Kelly,
392 Md. at 532 (“[H]earsay is only excluded upon an objection to it. It may be
very relevant.”). Among other things, hearsay can provide helpful background as well as
important context to other statements in a larger narrative. 3
3
In this same vein, many attorneys routinely choose not to object to objectionable
evidence, including hearsay, when the evidence does not appear to be harmful. See, e.g.,
Steven Lubet, Objecting, 16 Am. J. Trial Advoc. 213, 220 (1992) (“When considering
whether to object, counsel should always ask: ‘Will the exclusion of the evidence
contribute to my theory[?]’ ... ‘Do not object to anything that doesn’t hurt you.’”); Jonathan
J. O’Konek, To Object or Not Object, That is the Question: A Criminal Law Practitioner’s
Guide to the “Five Ws” of Evidentiary Objections,
95 N.D. L. Rev. 155, 178 (2020) (“[I]f
opposing counsel simply asks a question which elicits hearsay, but is not harmful to the
practitioner’s case, he or she should not object.”).
7
Additionally, and more to the point here, some inadmissible hearsay in an interview
introduced by the State may well help the defense. 4 Consider repeated efforts by a declarant
to pass off responsibility that ends up casting doubt on the declarant’s own credibility, or
that suggests an alternative suspect who appears to be more culpable. A defendant may
well decide not to object to that sort of hearsay. But under the Majority’s procedure, the
circuit court would have a duty to exclude such hearsay during a parsing review. The
Majority notes that a party could stipulate to the admissibility of a statement that was
excluded during parsing, which would serve a similar function to not objecting to the
statement under our traditional procedure for other hearsay exceptions. However, although
the Majority explains that a court is “not required to supplant an agreement amongst the
parties with its own admissibility determination[,]” Maj. Op. at 44 n.17, the Majority seems
to leave open the possibility that the court may decide to carry out its duty to exclude
qualifying hearsay by rejecting such a stipulation. This possibility could limit the ability of
the parties to allow certain hearsay into evidence, and, in a criminal case, it could hamper
a defendant’s ability to put on a defense.
Second, the Majority’s approach is likely to cause confusion in our trial courts. In
essence, the Majority expands a circuit court’s duties. A circuit court must rule upon
hearsay issues generally, but now it must also identify and rule upon certain hearsay issues.
4
Indeed, defense counsel here perceived that some of the statements in the Blake
Interview were exculpatory of Mr. Smith. Thus, defense counsel told the motions court:
“I’ll be honest with Your Honor, I spent a lot of time going back and forth as to whether I
should just allow this in.... I went back and forth.”
8
Usually, identifying evidentiary issues and requesting a ruling is a task for the parties. It is
unclear how much the Majority is changing that usual division of responsibility. The
Majority opinion is clear enough that, once the duty to parse is triggered, a circuit court
must review a larger narrative in detail and sua sponte exclude hearsay statements that
implicate but do not satisfy the against-penal-interest exception. However, the Majority
opinion does not explain how far courts should go in parsing these narratives and excluding
hearsay. For instance, when courts notice hearsay during parsing that does not seem to
implicate the against-penal-interest exception, must they sua sponte exclude it too? 5 What
if the against-penal-interest exception is implicated, fails, the statement at issue is redacted
by the court, but another hearsay exception might arguably apply? Must trial courts review
5
For instance, one could imagine hearsay statements in an interview that a court
(especially without input from the defense) would conclude do not relate to matters of
culpability/penal interest. These sorts of statements might simply be garden variety
hearsay, they might fall within some other hearsay exception, or, if they do implicate penal
interest, the court might not know enough about the case to understand that to be so. The
Majority indicates that the “parsing requirement” only applies to “hearsay statements ...
based upon the declaration of penal interest exception[.]” Maj. Op. at 40. So, as I
understand it, the Majority seems to be saying that trial courts should affirmatively
determine whether to exclude hearsay in a narrative only if that hearsay implicates the
against-penal-interest exception, and should otherwise leave potential hearsay alone
(unless a party requests specific redactions). But there also appears to be room for differing
interpretations of the Majority’s language and fact-specific views about whether the
against-penal-interest exception is implicated. Plus, the idea that trial courts should parse
narratives to independently exclude only some types of hearsay could be challenging to put
in practice, especially when more than one potential hearsay exception could be implicated
by a given statement. See Aetna Cas. & Sur. Co. v. Kuhl, 296 Md. 446, 456 & 456 n.2
(1983) (noting, in a case with multiple defendants, “the all too common error of failing to
distinguish between an admission and a declaration against interest” with respect to hearsay
determinations).
9
even clearly irrelevant portions of lengthy interviews to exclude hearsay, or can they focus
their limited time on only those portions that seem potentially relevant?
Third, placing the duty on the court both to identify and rule upon certain evidentiary
issues creates troubling incentives. A party could, in theory, have an incentive to
manipulate the procedure created by the Majority by: (1) making a general objection to a
lengthy narrative (as to all hearsay in the narrative that is not against penal interest) at a
motion in limine hearing; and (2) during the parsing process, arguing to exclude those
hearsay statements that seem actually disadvantageous, and strategically providing no help
in identifying any other specific hearsay statements that should be excluded. This would
allow the party to minimize the chances that damaging statements will be admitted into
evidence, while also maximizing the chances that the court will mistakenly admit hearsay
that seems less damaging. Then, at trial, if the party can secure a continuing objection to
the narrative on the basis discussed at the motion in limine hearing, it will create an
appellate issue out of every hearsay statement erroneously admitted – regardless of whether
the party included any argument on those statements or even mentioned them during the
motion in limine hearing. 6
Fourth, the Majority’s approach is not a good use of judicial resources. Our
traditional procedure incentivizes the parties to hone their disputes for the circuit court to
6
To be clear, the record of this case in no way suggests that the defense was
attempting to game its hearsay challenges to create appellate issues or was attempting to
mislead the motions court into treating the Blake Interview as an all-or-nothing question
of admission for tactical reasons.
10
resolve, and it tends to require evidentiary rulings only about statements that the parties
genuinely dispute. However, the Majority’s approach requires the circuit court to review
lengthy narratives in the first instance and make rulings about every statement within. The
onus is also on the circuit court to coordinate with the parties when questions inevitably
arise, including fundamental (and difficult) questions concerning the scope of the circuit
court’s duty to sua sponte exclude certain hearsay statements but not others. Challenging
hearsay questions might not even be important to a case, but the Majority’s procedure
requires our circuit courts to address such questions anyway. In effect, lengthy narratives
that implicate the against-penal-interest hearsay exception are transformed into homework
assignments for our circuit courts.
Additionally, because the Majority’s approach also creates an incentive for a party
to avoid being helpful – especially when a given hearsay statement does not seem
particularly damaging – the Majority’s approach will discourage continuing objections at
trial. That is, courts will be naturally less inclined to grant continuing objections to hearsay
issues that were decided at the in limine stage, because the party opposing the statements
might never have brought any particular statements to the circuit court’s attention or made
specific arguments at the statement level. Thus, the Majority’s approach also hampers a
mechanism that saves time and makes trials less cumbersome.
Given these downsides, one might expect the Majority to explain why its unique
approach to preservation in this context is warranted. The Majority’s explanation, to the
extent it provides one, is unconvincing. The Majority acknowledges the “general rule” in
Maryland that an opponent must seek specific redaction when its general objection to a
11
narrative is overruled. The Majority then observes that the cases applying this general rule
“involve different types of evidence with different admissibility considerations[,]” Maj.
Op. at 37, rather than “the type of evidence that is in dispute here – an extensive hearsay
narrative which is governed by a unique admissibility process under our case law[.]” Maj.
Op. at 40. True enough. However, the Majority does not explain why the process that this
Court spelled out in Matusky for deciding the admissibility of such a narrative requires a
different approach as to preservation. Rather, the Majority appears to assume that this
approach to preservation already exists in our case law. Thus, in essence, the Majority’s
reasoning seems to be that there is a unique approach to preservation here because our case
law has created one, regardless of whether such an approach makes sense.
As the State points out, none of the cases that concern the resolution of hearsay
containing statements against penal interest involved preservation, and the Majority
acknowledges as much. See Maj. Op. at 36. Nevertheless, the Majority responds that – even
though the cases did not involve preservation – “there would be at least a whiff of [a duty
to redact] referenced in these cases” if the opponent of evidence was required to make
objections at the statement level for this hearsay exception. Maj. Op. at 36-37. I do not find
the silence in the cases as significant as the Majority. From my review of the cases, I see
no indication that anyone raised the issue of preservation. In any event, even if some trial
courts have conducted the parsing inquiry in the absence of any request from the opponent
of the evidence to redact specific portions of the narrative, the Majority here for the first
time says that circuit courts must do so. Because there are several downsides to this
approach, I would instead apply the “general rule” that the Majority recognizes: an
12
opponent of evidence in Maryland typically must make specific evidentiary objections
when its general objection fails, pointing out to the court which portions of a narrative or
other evidence should be excluded. The proponent of the evidence will then be held to its
burden. The Majority provides no sound reason why this particular type of hearsay
warrants a different approach to preservation.
The other side of the coin is the Majority’s failure to explain why its approach to
preservation is not appropriate for other types of hearsay evidence. In this regard, State v.
Grant, 776 N.W.2d 209 (N.D. 2009), is instructive. Grant was accused of sexually abusing
his young daughter, K.D.J. After the allegations came to light, K.D.J. was examined by a
nurse practitioner, who created a report of her findings.
Id. at 211. That report included
statements made by K.D.J. and her grandmother, among others.
Id. The report included
information documenting K.D.J.’s medical history and also reported statements that K.D.J.
made to the nurse practitioner about the alleged abuse.
Id. One of the grandmother’s
statements contained in the report concerned Grant: “[The grandmother] is not sure of what
Dale Grant’s (biologic father) health history is. She states that there is drug use but she is
unsure of any other history.”
Id.
At a pretrial hearing, the State informed the defense and the court that it planned to
offer the nurse practitioner’s examination report into evidence. Id. at 212. The defense did
not raise any objection at the pretrial hearing concerning the report; however, the defense
objected to the admission of the report in its entirety at trial, arguing that the report
contained hearsay that was not admissible under any exception to North Dakota’s hearsay
rule.
Id. With respect to the exception for statements made for the purpose of medical
13
diagnosis, N.D. R. Evid. 803(4), defense counsel contended that the report should not be
admitted because it “goes far beyond what’s necessary for a diagnosis.” Grant, 776 N.W.2d
at 212. The trial court admitted the entire report over objection.
Id. Grant was convicted.
On appeal, Grant challenged the admission of the nurse practitioner’s report. The
North Dakota Supreme Court affirmed. The Court concluded that many of the statements
contained in the report fell under the exception for statements made for the purpose of
medical diagnosis. Id. at 214-16. However, with respect to the grandmother’s statement
about Grant’s drug use, the Court said:
Grant’s past drug use was arguably not relevant to K.D.J.’s diagnosis and
treatment even if made in response to [the nurse practitioner’s] questioning.
Grant could have requested the State redact this particular statement, and
he had ample opportunity to do so at the pretrial hearing and trial. By failing
to request redaction, but rather requesting this Court overturn the criminal
judgment, Grant needlessly made the issue an all-or-nothing proposition.
Under the deferential standard of review for evidentiary matters, we decline
to overturn the district court’s decision to admit the entire nurse practitioner’s
report on the basis of this single questionable statement. The normal remedy
for an otherwise admissible document containing inappropriate information
is redaction.
Id. at 216 (emphasis added).
Under the “general rule” that applies in Maryland concerning preservation, if the
same situation arose in Maryland, the result would be the same as it was in Grant. Like
statements contained in a police interview of a suspect analyzed for admissibility under the
against-penal-interest exception, some statements in a healthcare provider’s report may fall
within the hearsay exception for statements made for purposes of medical diagnosis or
treatment, Md. Rule 5-803(b)(4), and some may not. If the trial court overrules a blanket
hearsay objection to admission of the report – meaning that the court has determined that
14
at least some portion of the report is properly admissible – the trial court has no duty on its
own initiative to review the report to determine whether there are any statements in the
report that should be redacted because they do not fall under the Rule 5-803(b)(4)
exception. However, if the opponent requests redactions, the trial court must consider and
rule on those requests. If this general rule works for Rule 5-803(b)(4) – and for the many
other situations in which some portions of proffered evidence may be admissible and others
may be inadmissible – I see no logical reason, and the Majority has offered no such reason,
why the general rule should not be applied when the evidentiary issue involves a narrative
containing some statements that may be against the declarant’s penal interest and other
statements that may not fall within that exception. 7 Moreover, by not explaining why its
new approach is appropriate only for the against-penal-interest exception to hearsay, the
Majority appears to leave open the possibility that it will eventually be extended to other
analogous situations and hearsay exceptions like those at issue in Grant, causing Maryland
courts to reach a different result in the future.
In my view, the Majority misinterprets Matusky to mean that a trial court must
engage in the parsing inquiry whether or not the opponent wants the court to do so, and
whether or not the opponent has identified which parts of the narrative should be redacted.
7
There is no logical connection between the suspicion we generally attach to
suspects’ statements to authorities and what a party should be required to do to preserve an
objection to any particular out-of-court statement being admitted into evidence. While the
tests that govern the application of specific hearsay exceptions vary depending on the types
of hearsay at issue, it does not logically follow that the procedure regarding preservation
should vary depending on the type of hearsay at issue.
15
The four-part test stated in Matusky provides a step-by-step approach to resolve disputes
about what can be a very complicated hearsay determination: which parts of a declarant’s
narrative containing multiple statements are against the declarant’s penal interest and
which parts are not. The key word in the preceding sentence is “disputes.” Implicit in the
Matusky procedure is that there is an actual dispute between the parties as to whether any
particular statement should be admitted or excluded. The only way a trial court knows if
any statements are actually in dispute and, if so, which ones they are, is if the opponent
objects on a statement-by-statement basis. Once the opponent does so, the duty to engage
in parsing under Matusky arises. 8
C. The Majority’s Attempt to Conform Its Approach to the Traditional
Requirement of Preservation Does Not Solve Its Problems.
Perhaps realizing that its novel approach to this hearsay exception has downsides,
the Majority attempts to walk it back in several respects. However, none of these attempts
fully solves the new approach’s problems, and they still leave troubling incentives in place.
8
Seemingly implicit in the Majority’s approach is the notion that, when a trial court
overrules a party’s blanket objection to a narrative being admitted as a statement against
penal interest, the party will always believe that one or more of the individual statements
in the narrative constitutes inadmissible hearsay and will want to have one or more of those
statements excluded. But that may not always be the case. It may be that, after losing a
blanket objection, the opponent will want all of the statements in the narrative to come in,
rather than parsing the narrative. Perhaps the material that is helpful to the party will be
contained only in statements that are inadmissible and all of the damaging material will be
contained in the parts that are admissible. In other words, a party sometimes may prefer an
all-or-nothing approach. Regardless, after a blanket objection is overruled, the general rule
places the burden on the opponent to tell the trial court which parts of a narrative containing
potentially inadmissible material the opponent is challenging, which is merely the flip side
of telling the court which statements the opponent stipulates to being admitted.
16
The Majority’s efforts to allay concern only show that its “unique” approach is
unnecessary.
To defend its approach, the Majority emphasizes that it will not be so different from
the traditional, familiar approach to other hearsay exceptions and other evidentiary issues.
The Majority states that the circuit court may replicate, in part, the traditional approach by
asking the parties to help determine whether hearsay is covered by the against-penal-
interest exception, and by requesting proposed redactions from the parties. See Maj. Op. at
43-44 & 44 n.17. Alternatively, the parties can wait until the court has finished parsing and
then decide whether to object to statements ruled admissible and stipulate to the admission
of statements ruled inadmissible. Regardless, after the circuit court reviews an entire
narrative for hearsay and decides which statements to admit, the opponent must still object
at trial to the statements, as parsed, coming into evidence in order to preserve the issue.
Maj. Op. at 44-45. Thus, according to the Majority, the trial court ultimately “will make
the same judgment call,” Maj. Op. at 45 n.18, that it would make if the opponent of the
evidence had the onus to object (i.e., request redactions) on a statement-by-statement basis
after the opponent’s blanket objection was overruled.
But these justifications provide more questions than answers. For starters, it is
unclear why the Majority believes that the onus should be on the circuit court to ask for
help in redacting hearsay related to the against-penal-interest exception, while at the same
time the opponent of evidence must affirmatively provide their positions, statement-by-
statement, when other hearsay exceptions (or other issues requiring excluding evidence)
are implicated. It is also unclear why the Majority believes that the circuit court should go
17
through the extra effort of assessing hearsay across entire narratives, when the Majority at
the same time believes that the process will ultimately be driven by stipulations and
statement-level objections at trial and result in the same judgment calls anyway. Thus, the
Majority’s approach is puzzling. It adopts a new approach to preservation that applies only
to one hearsay exception, fails to explain why the approach better adjudicates disputes
about that exception, and then justifies its approach by arguing that it is not so different
from traditional practice – or, at least, that it can be adapted to produce the same results as
traditional practice with additional effort. If all that is true, why create a new approach?
Moreover, as discussed above, this new approach brings with it predictable
problems, despite the Majority’s efforts to conform its approach to traditional practice.
Notwithstanding a trial court engaging in parsing, a defendant could create back-pocket
appellate issues by keeping their assistance vague at the motion in limine stage whenever
a given statement did not seem particularly damaging, and then requesting a continuing
objection at trial on the basis of the general in limine objection. After this, the defendant
would be assured that their hearsay objections were preserved as to every statement,
leaving them free to object at trial only to statements that seemed truly harmful to the case
– and to remain silent for all the other statements, saving them as appellate issues if the
trial did not go their way.
And, if a hearsay statement implicates (but does not satisfy) the against-penal-
interest exception, then a defendant who wanted to allow the hearsay statement into
evidence without objection would need to stipulate to the statement’s admissibility. Then,
it appears, the court could decide whether to honor that stipulation, or instead to exclude
18
such hearsay anyway. Given that the Majority recognizes “[t]here may be good reasons for
the defendant to want an otherwise inadmissible statement to come into evidence,” Maj.
Op. at 44 n.17, it is not clear why the Majority does not apply our normal preservation
approach to this context. Our general rule allows the defendant (or the State, if it is the
party whose blanket objection has been overruled) effectively to stipulate to those
statements in a narrative they want to be admitted by asking for the other statements to be
redacted. The Majority’s contrary approach, in my view, is inefficient and ill-advised.
Here, after the motions court overruled Mr. Smith’s blanket objection to admission
of the Blake Interview, Mr. Smith did not request that any individual statements in the
Blake Interview be redacted, nor did he otherwise object to the admission of any of the
individual statements in the Blake Interview at trial (except for objecting to one statement
by an officer, which led the trial court to strike that statement). Under Maryland’s
longstanding and consistent approach regarding preservation, Mr. Smith failed to preserve
any objection to the admission of the individual statements in the Blake Interview. I would
affirm his convictions.
19
