Gray v. State

796 A.2d 697

368 Md. 529

James Melvin GRAY v. STATE of Maryland.

No. 37, Sept. Term, 2001.

Court of Appeals of Maryland.

April 11, 2002.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, and Anne E. Gowen, Asst. Public Defender, on brief), Baltimore, for Petitioner.

Steven E. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Md., on brief), Baltimore, for Respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

CATHELL, Judge.

James Melvin Gray, petitioner, after a trial in the Circuit Court for Charles County, was convicted of first-degree murder in the death of his wife, Bonnie Gray. On June 17,1998, petitioner was sentenced to be incarcerated for life. Petitioner filed an appeal to the Court of Special Appeals. The Court of Special Appeals affirmed the decision of the Circuit Court for Charles County in Gray v. State, 137 Md.App. 460, 769 A.2d 192 (2001). Petitioner filed a Petition for Writ of Certiorari to this Court, which we granted. Gray v. State, 364 Md. 461, 773 A.2d 513 (2001). In his petition, petitioner presents four questions for our review:

"1. Where a defendant asserts that another individual committed the offense for which he is on trial, that assertion possesses evidentiary support, and the alternative suspect invokes his Fifth Amendment privilege concerning the matter, is the defendant entitled to question the alternative suspect in the presence of the jury?

2. Where in the context of Question I the trial court refuses to permit the defense to question the alternative suspect in the jury's presence, is the trial court obligated to propound an instruction to the jury explaining why the defense has apparently chosen not to question that person?

3. Did the trial court err in excluding from evidence the proffered statements of the alternative suspect indicating that he had committed the offense, and did the courts below err in holding that the trial court in ruling upon this issue may determine that such statements were never made, rather than leaving that determination for the jury?

4. Did the trial court err in admitting the extrajudicial statements of the murder victim indicating her intention to inform Petitioner that she was planning to end their marriage?"

We shall respond to question three first, and hold that the trial court erred in refusing to permit, under the declaration against penal interest exception to the hearsay rule, the admission in evidence of the statement of the alternative suspect that indicated the alternative suspect had committed the offense for which the petitioner was on trial. For guidance purposes, we will later address questions one and two.

I. Relevant Facts

On November 30, 1995, Bonnie Gray was reported missing by petitioner. Her partially nude body was discovered in the trunk of her car on December 6, 1995. Mrs. Gray had suffered ten lacerations to the head, three gunshot wounds to the head, and a stab wound to the left chest. Mrs. Gray also had five of her fingers severed.

A jury trial was held in the Circuit Court for Charles County from March 17, 1998 to May 4, 1998. During the trial, petitioner's defense was that his wife was murdered by Brian Gatton (Gatton). There was witness testimony about a relationship between Gatton and Mrs. Gray. Testimony was also presented about Gatton's drug use, his "obsession" with knives, and his being in possession of jewelry after Mrs. Gray's murder that it was asserted was similar to that owned and worn by Bonnie Gray but was not found when her body was discovered.

At trial, petitioner subpoenaed Gatton to testify. The Circuit Court was made aware that Gatton intended to invoke his Fifth Amendment right against self-incrimination. Gatton was therefore first called to testify by the petitioner out of the jury's presence,¹ and he was questioned about his role in the murder, to which Gatton invoked his Fifth Amendment right. The Circuit Court determined that Gatton could invoke his Fifth Amendment privilege. The trial court, however, refused to permit the petitioner to question Gatton, and thus to have Gatton invoke his rights under the Fifth Amendment, in the jury's presence. The trial court also declined to instruct the jury that Gatton had exercised his right to remain silent. Gatton was called to the stand in the jury's presence and asked only his name and birth date. Gatton was then instructed to stand next to petitioner and the witness was then excused. No questions about Gatton's exercise of the privilege were permitted. Petitioner then requested that the Circuit Court give a jury instruction that the witness had invoked his Fifth Amendment privilege. The Circuit Court declined to give that instruction to the jury.

During pretrial proceedings, the State filed a Motion in Limine to exclude statements made by Gatton to Evelyn Johnson (Evelyn). Petitioner wanted Evelyn to testify as to statements made to her and other statements made in her presence by Mr. Gatton as an exception to the hearsay rule, statements against Gatton's penal interests. These statements were to the effect that he, Gatton, had killed the victim, Bonnie Gray.

It was proffered that Evelyn would testify that Gatton was an occasional visitor in her home, and that on one or more occasions he had been accompanied by Bonnie Gray, the deceased, whom he identified as his girlfriend. Evelyn alleged at one point in her testimony that on one occasion she heard Gatton and Bonnie arguing with Gatton repeatedly telling Bonnie that "he was never going to let her go no matter what she did." On that occasion Bonnie left the Johnson residence before Gatton, and Gatton subsequently stated: "[T]hat bitch pissed me off" and "if he couldn't have her no one would."² After Bonnie's disappearance, but before the discovery of her body, he told Evelyn that "I took care of her,"³ meaning Bonnie.

It was further proffered that Evelyn would have testified that on a subsequent occasion Gatton came to her house when her husband was away and raped her. Several days afterwards, she testified that he threatened her, saying, "[I]f I told [anyone about the rape] he would take care of me just like he had took care of Bonnie." Evelyn would have testified that on that occasion he pulled a small handgun from his boot and also a hunting knife from a "case" on his belt, showing them to Evelyn, and saying, "[T]his is what I killed her with." There was also testimony that Evelyn had not initially proffered this information to investigators because she was afraid to get involved. She "didn't want to be the next one dead."

On March 17, 1998, at the end of the hearing on the Motion in Limine, the Circuit Court held that the hearsay testimony of Evelyn should not be admitted as a statement against interest made by Gatton under an exception to the hearsay rule.⁴ The Circuit Court stated:

"Now, we also had testimony on the other motion that was filed on March the 6th where the State wishes to exclude statements allegedly made against penal interest by Mr. Gatton. As I mentioned yesterday I asked counsel what the specific statements were because quite frankly the witness we heard from appeared to be rather confused. I did go through part of the transcript last night and I think there are 2 basic statements ⁵ that we are concerned with.

The first is quote, Mr. Gatton saying quote, I took care of her and the second one was quote, if you tell anyone I will take care of you just like I took care of Bonnie Gray.

Now, unfortunately I did not have enough time to go in detail and render a detailed opinion this morning. However, I will give you the bottom line. I am reserving the right to supplement that which I hope to do so tomorrow.

In any event at the time the first statement was made according to Ms. Johnson Mr. Gatton was high on drugs and drunk and we were just talking. The second one apparently was made in response, it was proceeded by question if you tell anyone this is what I am going to do.

I find that each of those declarations under the facts given would not be made by a reasonable man understanding that he was making a statement against penal interest.

Additionally I find that each of the statements is not trustworthy and I will go through the lack of reliability factors when I give my detailed opinion.

However, for the sake of opening argument I will grant that motion also."

The Circuit Court subsequently filed a Memorandum to supplement and clarify its finding from the March 17, 1998 hearing. At the end of the trial, petitioner was convicted of first-degree murder and sentenced to incarceration for life. Petitioner filed an appeal with the Court of Special Appeals which affirmed the decisions of the Circuit Court.

II. Discussion

We hold that the Circuit Court erred by not admitting the hearsay statements of Gatton into evidence under the declaration against penal interest exception to the hearsay rule. We also provide guidance to questions one and two as presented by petitioner. As we will state, infra, the trial court has the discretion to determine whether to allow a defendant to call a witness to testify, who the defendant alleges committed the crime, for the purpose of having the witness invoke his Fifth Amendment right in the presence of the jury.

A. Statement Against Interest

It is argued before this Court that at the pretrial hearing⁶ the State took the position that the evidence relating to the statements aforesaid allegedly made by Gatton should not be admitted as declarations against penal interest (Gatton was unavailable because he had exercised his rights under the Fifth Amendment to the United States Constitution, and had declined to testify), because Evelyn was not a credible witness, and, therefore, the trial court should find that the statements of Gatton were, in fact, not made.

The seeds for the error that would grow out of the preliminary hearing began when the...