State of WV v. Mason
Annotate this Case
January 1995 Term
____________
No. 22581
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STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
KENNETH JAY MASON,
Defendant Below, Appellant
__________________________________________________
Appeal from the Circuit Court of Berkeley County
Honorable Christopher C. Wilkes, Judge
Criminal No. 93-F-39
VACATED AND REMANDED
__________________________________________________
Submitted: May 3, 1995
Filed: June 15, 1995
Pamela Games-Neely
Prosecuting Attorney for
Berkeley County
Martinsburg, West Virginia
Attorney for Appellee
James A. McKowen
Hunt, Lees, Farrell & Kessler
Charleston, West Virginia
Attorney for Appellant
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX sitting by temporary
assignment.
SYLLABUS BY THE COURT
1. The mission of the Confrontation Clause found in the
Sixth Amendment to the United States Constitution and Section 14 of
Article III of the West Virginia Constitution is to advance a
practical concern for the accuracy of the truth-determining process
in criminal trials, and the touchstone is whether there has been a
satisfactory basis for evaluating the truth of the prior statement.
An essential purpose of the Confrontation Clause is to ensure an
opportunity for cross-examination. In exercising this right, an
accused may cross-examine a witness to reveal possible biases,
prejudices, or motives.
2. "The two central requirements for admission of
extrajudicial testimony under the Confrontation Clause contained in
the Sixth Amendment to the United States Constitution are:
(1) demonstrating the unavailability of the witness to testify; and
(2) proving the reliability of the witness's out-of-court
statement." Syllabus Point 2, State v. James Edward S., 184 W. Va.
408, 400 S.E.2d 843 (1990).
3. "In order to satisfy its burden of showing that the
witness is unavailable, the State must prove that it has made a
good-faith effort to obtain the witness's attendance at trial.
This showing necessarily requires substantial diligence." Syllabus
Point 3, State v. James Edward S., 184 W. Va. 408, 400 S.E.2d 843
(1990).
4. "Even though the unavailability requirement has been
met, the Confrontation Clause contained in the Sixth Amendment to
the United States Constitution mandates the exclusion of evidence
that does not bear adequate indicia of reliability. Reliability
can usually be inferred where the evidence falls within a firmly
rooted hearsay exception." Syllabus Point 5, State v. James
Edward S., 184 W. Va. 408, 400 S.E.2d 843 (1990).
5. "Generally, out-of-court statements made by someone
other than the declarant while testifying are not admissible
unless: 1) the statement is not being offered for the truth of the
matter asserted, but for some other purpose such as motive, intent,
state-of-mind, identification or reasonableness of the party's
action; 2) the statement is not hearsay under the rules [exemptions
under Rule 801(d)]; or 3) the statement is hearsay but falls within
an exception provided for in the rules [exceptions under Rules 803
and 804]." Syllabus Point 1, State v. Maynard, 183 W. Va. 1, 393 S.E.2d 221 (1990).
6. For purposes of the Confrontation Clause found in
the Sixth Amendment to the United States Constitution and Section
14 of Article III of the West Virginia Constitution, no independent
inquiry into reliability is required when the evidence falls within
a firmly rooted hearsay exception.
7. When ruling upon the admission of a narrative under
Rule 804(b)(3) of the West Virginia Rules of Evidence, a trial
court must break the narrative down and determine the separate
admissibility of each single declaration or remark. This exercise
is a fact-intensive inquiry that requires careful examination of
all the circumstances surrounding the criminal activity involved.
8. To satisfy the admissibility requirements under
Rule 804(b)(3) of the West Virginia Rules of Evidence, a trial
court must determine: (a) The existence of each separate statement
in the narrative; (b) whether each statement was against the penal
interest of the declarant; (c) whether corroborating circumstances
exist indicating the trustworthiness of the statement; and (d)
whether the declarant is unavailable.
9. Absent a showing of particularized guarantees of
trustworthiness, the admission of a third-party confession
implicating a defendant violates the Confrontation Clause found in
the Sixth Amendment to the United States Constitution and Section
14 of Article III of the West Virginia Constitution. The burden is
squarely upon the prosecution to establish the challenged evidence
is so trustworthy that adversarial testing would add little to its
reliability. Furthermore, unless an affirmative reason arising
from the circumstances in which the statement was made provides a
basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires
exclusion of the out-of-court statement.
10. Even if the hearsay does not fit within an
established exception, its admissibility is not barred by the
Confrontation Clause found in the Sixth Amendment to the United
States Constitution and Section 14 of Article III of the West
Virginia Constitution if, considered apart from any corroborating
evidence, there is a showing of particularized guarantees of
trustworthiness. Consideration should be given to the totality of
the circumstances that surround the making of the statement and
that render the declarant particularly worthy of belief--so worthy
of belief that the test of cross-examination would be a work of
supererogation. The guarantees of trustworthiness must be at least
as reliable as evidence admitted under a firmly rooted hearsay
exception. An affirmative reason, arising from the circumstances
in which the statement was made, is necessary to rebut the
presumption of unreliability and exclusion under the Confrontation
Clause.
11. A trial court specifically must examine whether the
circumstances existing at the time a declarant gives a statement
make the statement particularly worthy of belief so that the test
of cross-examination would have been a work of supererogation. As
no mechanical test prevails, the character of the guarantees of
trustworthiness must be weighed.
Cleckley, Justice:
The defendant, Kenneth Jay Mason, appeals the final order
of the Circuit Court of Berkeley County, entered March 14, 1994,
which sentenced him to life imprisonment with a recommendation of
mercy for his conviction by jury of first degree murder. On
appeal, the defendant raises several assignments of error. The
primary focus of most of the alleged errors concerns the admission
of extrajudicial statements given to the police by two individuals
who were unavailable to testify at trial. We address only the
hearsay and Confrontation Clause issues because we find the other
assignments of error to be without merit.
I.
FACTS AND PROCEDURAL BACKGROUND
On the evening of February 8, 1993, several people were
drinking beer at the defendant's house. Those at the defendant's
house included the defendant, Tina Adams, Rodney Canfield, William
Davis, Brian Cook, and the victim, Timothy Sanders. At some point
in the evening, the defendant, Mr. Canfield, Mr. Davis, and the
victim got in the victim's car and drove to a remote area. Once at
the area, the four men exited the car, and the defendant allegedly
pulled out a gun, aimed it at the victim's head, and shot. After
the shot, the victim fell to the ground, and the defendant handed
Mr. Canfield the gun and told him to shoot the victim. It is
disputed whether Mr. Canfield fired the weapon. In his statement, Mr. Canfield asserted he pretended the gun jammed and gave it back
to the defendant. At that point, the victim was shot by either the
defendant or Mr. Canfield. In spite of this injury, the victim was
able to get up and run into the woods. Mr. Davis also ran into the
woods. Mr. Davis testified he ran into the woods because he was
afraid and did not want to be involved. The defendant and Mr.
Canfield drove off in the victim's car.
After returning to the defendant's house to retrieve a
flashlight, the defendant and Mr. Canfield went to search for the
victim. They found the victim lying along side a road, and either
the defendant or Mr. Canfield fired two more shots into the
defendant's head. The two men then placed the victim's body in the
trunk of the car and returned to the defendant's house.See footnote 1
In a statement given to the police, Robert Wasson, Jr.,
said that he arrived at the defendant's house before the defendant
and Mr. Canfield returned for the first time to get a flashlight.
Upon the defendant's and Mr. Canfield's second return to the house,
Mr. Wasson was asked and agreed to follow the two men in a separate
vehicle. The defendant and Mr. Canfield drove to Maryland and
disposed of the victim's body and then took the victim's car to
another location in Maryland and burned it. After they disposed of the victim's body and the car, Mr. Wasson drove the defendant and
Mr. Canfield back to the defendant's house.
The victim's body and the car were discovered on February
9, 1993, and reported to the police. During the investigation of
the murder, the police took several extrajudicial statements. At
issue before the trial court were statements given by Mr. Canfield,
Mr. Wasson, and Mr. Davis. Prior to trial, the defendant learned
the State intended to introduce some of their statements as
evidence, however, all three men would not testify at trial because
both Mr. Canfield and Mr. Davis were invoking their Fifth Amendment
right against self-incrimination and Mr. Wasson was unavailable for
medical reasons.
Before the trial began, the defendant filed a motion in
limine to exclude any out-of-court statements given by witnesses
who would not testify at the trial. At a pretrial conference,
defense counsel called Sergeant Fred Wagoner of the West Virginia
State Police to testify. Sergeant Wagoner stated that he
questioned parts of Mr. Davis's statement but believed it was "true
and accurate to the best of [his] knowledge." Similarly, he agreed
with defense counsel that with regard to Mr. Canfield's statement
"there are parts of the statement which [he had] some doubt as to
the truth and accuracy[.]" Sergeant Wagoner also said he believed the statement given by Mr. Wasson was true.See footnote 2 The trial court
determined the statements the State sought to admit were admissible
under Rule 804(b)(3) of the West Virginia Rules of Evidence as
declarations against penal interests.See footnote 3
Immediately prior to trial, the trial court granted Mr.
Davis, along with Ms. Adams, transactional immunity, and they both
testified at the trial. Mr. Canfield and Mr. Wasson did not testify. Defense counsel renewed his objections to the admission
of Mr. Canfield's and Mr. Wasson's tape-recorded statements at the
time they were played to the jury.See footnote 4 These objections were
overruled. Both statements implicate the defendant as the only
person who shot the victim.
II.
ADMISSIBILITY OF STATEMENTS
The defendant argues the statements made by Mr. Canfield
and Mr. Wasson are inadmissible for six reasons. First, the
defendant contends the Confrontation Clause found in the Sixth
Amendment to the United States Constitution and Section 14 of
Article III of the West Virginia Constitution "bars admission of
evidence otherwise admissible under a hearsay exception if it bears
no adequate indicia of reliability." Second, the defendant argues
the statements do not fall under the Rule 804(b)(3) exception
because the statements were not made against the declarants' penal
interests with respect to the murder; instead, in their statements,
the declarants implicate themselves as accessories after the fact,
and they may not even have known they were incriminating
themselves. Third, the statements do not meet the reliability test
under Rule 804(b)(5) of the West Virginia Rules of Evidence.See footnote 5 Fourth, the statements bear no indicia of reliability and,
therefore, are inadmissible under any of the hearsay exceptions
contained in Rule 804 of the West Virginia Rules of Evidence.
Fifth, the statements should not have been admitted as substantive
evidence with no opportunity for cross-examination. Sixth, given
the nature of the statements, the right to cross-examination was a
crucial element of presenting an appropriate defense.
Before the disputed statements could be admitted, the
trial judge was required to analyze the defendant's objections
under both the hearsay rules and under the Confrontation Clause.
If the statements are inadmissible under either of these provisions, they must be excluded. The defendant specifically
argues that although portions of the statements given by Mr.
Canfield and Mr. Wasson are self-inculpatory, the statements are
not admissible against him pursuant to Rule 804(b)(3) under the
analysis of Williamson v. United States, U.S. , 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994) (statement to drug enforcement agent
incriminating another is not a statement against declarant's penal
interest within the meaning of Rule 804(b)(3), even if it is
included within a broader narrative that is generally self-
inculpatory). He further argues the portions are not admissible
under the Confrontation Clause. See Idaho v. Wright, 497 U.S. 805,
817, 110 S. Ct. 3139, 3147, 111 L. Ed. 2d 638, 653 (1990) (hearsay
evidence not falling within firmly rooted hearsay exception is
"`presumptively unreliable and inadmissible for Confrontation
Clause purposes,'" quoting Lee v. Illinois, 476 U.S. 530, 543, 106 S. Ct. 2056, 2063, 90 L. Ed. 2d 514, 528 (1986)).See footnote 6
The Sixth Amendment to the United States Constitution and
Section 14 of Article III of the West Virginia Constitution
guarantee an accused the right to confront and cross-examine
witnesses.See footnote 7 Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105,
1110, 39 L. Ed. 2d 347, 353 (1974); State v. James Edward S., 184 W.
Va. 408, 400 S.E.2d 843 (1990); Naum v. Halbritter, 172 W. Va. 610,
309 S.E.2d 109 (1983); State v. Foster, 171 W. Va. 479, 300 S.E.2d 291 (1983). "[T]he mission of the Confrontation Clause is to
advance a practical concern for the accuracy of the truth-
determining process in criminal trials," and the touchstone is
whether there has been "'a satisfactory basis for evaluating the
truth of the prior statement.'" Dutton v. Evans, 400 U.S. 74, 89,
91 S. Ct. 210, 220, 27 L. Ed. 2d 213, 227 (1970), quoting California
v. Green, 399 U.S. 149, 161, 90 S. Ct. 1930, 1936, 26 L. Ed. 2d 489,
499 (1970). See Kentucky v. Stincer, 482 U.S. 730, 737, 107 S. Ct.
2658, 2663, 96 L. Ed. 2d 631, 642 (1987) ("[t]he right to cross-examination . . . is essentially a 'functional' right designed to
promote reliability in the truth-finding functions of a criminal
trial"). Clearly, an essential purpose of the Confrontation Clause
is to ensure an opportunity for cross-examination. In exercising
this right, an accused may cross-examine a witness to reveal
possible biases, prejudices, or motives. Davis, 415 U.S. at 316,
94 S. Ct. at 1110, 39 L. Ed. 2d at 354 ("partiality of a witness is
subject to exploration at trial, and is 'always relevant as
discrediting the witness and affecting the weight of his
testimony.' [Quoting] 3A J. Wigmore Evidence § 940, p. 775
(Chadbourn rev. 1970))." Thus, the introduction of extrajudicial
statements at trial as direct and substantive evidenceSee footnote 8 is
circumscribed by the Confrontation Clause which places independent
restrictions upon the admission of such evidence.
In James Edward S., supra, we outlined some of these
basic principles in Syllabus Points 2, 3, and 5:
"2. The two central requirements
for admission of extrajudicial testimony under
the Confrontation Clause contained in the
Sixth Amendment to the United States
Constitution are: (1) demonstrating the
unavailability of the witness to testify; and
(2) proving the reliability of the witness's
out-of-court statement.
"3. In order to satisfy its burden
of showing that the witness is unavailable,
the State must prove that it has made a good-
faith effort to obtain the witness's attendance at trial. This showing necessarily
requires substantial diligence.
* * *
"5. Even though the unavailability
requirement has been met, the Confrontation
Clause contained in the Sixth Amendment to the
United States Constitution mandates the
exclusion of evidence that does not bear
adequate indicia of reliability. Reliability
can usually be inferred where the evidence
falls within a firmly rooted hearsay
exception."
Here, the defendant does not claim the State failed to satisfy its
burden of showing the two witnesses were unavailable. Rather, his
attack is focused on the second part of the test that requires the
State to prove the reliability of the out-of-court statements.
In addition to the Confrontation Clause, third-party
statements may be excluded on hearsay grounds. An extrajudicial
statement is inadmissible under hearsay analysis if it is being
offered to prove the truth of the matter asserted and it fails to
qualify under any of the hearsay exemptions or exceptions. See
W.Va.R.Evid. 801. In Syllabus Point 1 of State v. Maynard, 183 W.
Va. 1, 393 S.E.2d 221 (1990), we stated:
"Generally, out-of-court statements
made by someone other than the declarant while
testifying are not admissible unless: 1) the
statement is not being offered for the truth
of the matter asserted, but for some other
purpose such as motive, intent, state-of-mind,
identification or reasonableness of the
party's action; 2) the statement is not
hearsay under the rules [exemptions under Rule
801(d)]; or 3) the statement is hearsay but falls within an exception provided for in the
rules [exceptions under Rules 803 and 804]."
The Confrontation Clause and the hearsay rules, while not
coextensive, "are generally designed to protect similar values[.]"
Green, 399 U.S. at 155, 90 S. Ct. at 1933, 26 L. Ed. 2d at 495. As
a result of their similarity and because they "stem from the same
roots,"See footnote 9 both this Court and the United States Supreme Court have
held that for purposes of the Confrontation Clause "no independent
inquiry into reliability is required when the evidence 'falls
within a firmly rooted hearsay exception.'" Bourjaily v. United
States, 483 U.S. 171, 183, 107 S. Ct. 2775, 2782, 97 L. Ed. 2d 144,
157 (1987), quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct.
2531, 2539, 65 L. Ed. 2d 597, 608 (1980); State v. Walker, 188 W. Va.
661, 425 S.E.2d 616 (1992). Thus, we must determine whether the
disputed extrajudicial statements admitted against the defendant
are admissible under Rule 804(b)(3) and, if so, whether Rule
804(b)(3) is a firmly rooted hearsay exception or whether the
statements are otherwise admissible under the Confrontation Clause.
The issue here involves third-party statements or
confessions which implicate the defendant as well as the
declarants. Rule 804(b)(3) modified common law by creating an
important qualification to the admissibility of a statement of an
unavailable declarant. See Donnelly v. United States, 228 U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820 (1913), modified on other grounds,
228 U.S. 708, 33 S. Ct. 1024, 57 L. Ed. 1035 (1913) (common law did
not recognize a declaration against "penal interest" and evidence
of a third party's confession against the accused was
inadmissible).See footnote 10 Under Rule 804(b)(3), a statement that tends to
subject a declarant to "criminal liability" may be admissible as
well as declarations against a pecuniary or proprietary interest.
While some courts boldly declare that Rule 804(b)(3) is a "firmly
rooted" exception and that no "independent inquiry into
reliability" is required for the Confrontation Clause,See footnote 11 most
courts are more cautious. One such court is the United States
Supreme Court. In Williamson, supra, the Supreme Court reviewed
the issue solely as to admissibility under Rule 804(b)(3) and
expressly refused to determine whether the statements were
admissible under the Confrontation Clause or if the hearsay
exception for statements against interest is firmly rooted.
Specifically, the Supreme Court stated:
"[W]e need not address [the defendant's] claim
that the statements were also made
inadmissible by the Confrontation Clause,
. . . and in particular we need not decide whether the hearsay exception for declarations
against interest is 'firmly rooted' for
Confrontation Clause purposes. . . . We note,
however, that the very fact that a statement
is genuinely self-inculpatory--which our
reading of Rule 804(b)(3) requires--is itself
one of the 'particularized guarantees of
trustworthiness' that makes a statement
admissible under the Confrontation Clause."
U.S. at , 114 S. Ct. at 2437, 129 L. Ed. 2d at 486. (Citations omitted).
Williamson, a highly instructive case in determining the
contours of Rule 804(b)(3) and in clarifying its scope, was decided
after the trial in the case sub judice.See footnote 12 The Supreme Court began
by recognizing the penal interest exception requires that
statements be inculpatory; where statements are self-exculpatory,
they are not admissible:
"In our view, the most faithful reading of
Rule 804(b)(3) is that it does not allow
admission of non-self-inculpatory statements,
even if they are made within a broader
narrative that is generally self-inculpatory.
The district court may not just assume for
purposes of Rule 804(b)(3) 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."
U.S. at ___, 114 S. Ct. at 2435, 129 L. Ed. 2d at 483.
Using the broad definition of "statement" articulated in Rule
801(a)(1)--"an oral or written assertion"--as a point of departure, Williamson went on to explain the significance of the term for
purposes of Rule 804(b)(3). Williamson, U.S. at , 114
S. Ct. at 2434, 129 L. Ed. 2d at 482. Specifically, the Supreme
Court concluded that the word "statement" means "'a single
declaration or remark,'" rather than "'a report or narrative,'"
reasoning that this "narrower reading" is consistent with the
principles underlying the rule. U.S. at , 114 S. Ct. at
2434-35, 129 L. Ed. 2d at 482, quoting Webster's Third New
International Dictionary 2229, defn. 2(a) and (b) (1961). Thus,
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.'"
This exercise is a "fact-intensive inquiry" that requires "careful
examination of all the circumstances surrounding the criminal
activity involved[.]" U.S. at , 114 S. Ct. at 2437, 129 L. Ed. 2d at 486.
We adopt the Supreme Court's approach to Rule 804(b)(3),
while retaining a separate Confrontation Clause analysis.See footnote 13 Therefore, to satisfy the admissibility requirements under Rule
804(b)(3), a trial court must determine: (a) The existence of each
separate statement in the narrative; (b) whether each statement was
against the penal interest of the declarant; (c) whether
corroborating circumstances exist indicating the trustworthiness of
the statementSee footnote 14; and (d) whether the declarant is unavailable.
Significantly, because the trial court in Williamson
failed to conduct the appropriate analysis, the Supreme Court
remanded the case without reaching the issue of whether the
Confrontation Clause was violated. Here, we have the same problem.
The trial court failed to analyze the independent statements
comprising the declarants' narratives.See footnote 15 Rather, it assessed the entire statements in their aggregate, ultimately concluding that
they were admissible under Rule 804(b)(3). Given the context in
which the statements were made, there is nothing in the record to
demonstrate to us that the trial court conducted the fact-intensive
inquiry required. It is important in this case to observe that at
the time the declarants made their statements they were not subject
to any sort of cross-examination and their lawyers were not even
present during the interrogation. Furthermore, the circumstances
surrounding the making of each of the statements are not identical.
Therefore, because we are unable to evaluate the assertions
comprising the declarants' statements, remand is required.
If the trial court decides upon remand that the
statements are admissible, it must then decide whether the
statements satisfy the Confrontation Clause. To offer guidance, we
direct the trial court to evaluate the statements as if we have
decided that Rule 804(b)(3) is not a "firmly rooted exception."
The question left opened in Williamson with regard to the
Confrontation Clause was resolved implicitly in West Virginia. In
Syllabus Point 2, in part, of State v. Mullens, 179 W. Va. 567, 371 S.E.2d 64 (1988), this Court, relying on Lee v. Illinois, 476 U.S.
at 543, 106 S. Ct. at 2063, 90 L. Ed. 2d 527, stated that "absent
sufficient independent 'indicia of reliability' to rebut the
presumption of unreliability" the introduction of a third-party
confession against a defendant is a violation of the Confrontation
Clause. We repeated this holding in State v. Marcum, 182 W. Va.
104, 386 S.E.2d 117 (1989).
To conform the language of our cases with the more recent
holding of the United States Supreme Court in Wright, supra, we now
hold that hearsay of the nature disputed here must be reliable by
virtue of its inherent trustworthiness. Thus, absent "'a showing
of particularized guarantees of trustworthiness,'"See footnote 16 the admission
of a third-party confession implicating a defendant violates the
Confrontation Clause. The burden is squarely upon the prosecution
to establish the challenged evidence is so trustworthy that
adversarial testing would add little to its reliability.
Furthermore, unless an affirmative reason arising from the
circumstances in which the statement was made provides a basis for
rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of
the out-of-court statement.
The defendant argues that because the requisite
"particularized guarantees of trustworthiness" are lacking, the
admission of the disputed statements violates the Confrontation
Clause. The trial court concluded that no independent showing of
reliability was necessary because it found the statements were
admissible under Rule 804(b)(3), as a deeply rooted exception.
Thus, the State made no effort to satisfy the requirements we
outlined in James Edward S., supra. As we suggest above, if the
trial court considers the statements admissible under Rule
804(b)(3) and Williamson, the trial court also must determine upon
remand whether the statements are admissible under the
Confrontation Clause. For that reason, we choose to elaborate on
those requirements.
Even if the hearsay does not fit within an established
exception, its admissibility is not barred by the Confrontation
Clause if, considered apart from any corroborating evidence, there
is "a showing of particularized guarantees of trustworthiness[.]"
Consideration should be given to the totality of the circumstances
"that surround the making of the statement and that render the
declarant particularly worthy of belief"--so worthy of belief
"`that the test of cross-examination would be a work of
supererogation.'" Wright, 497 U.S. at 819, 110 S. Ct. at 3149, 111 L. Ed. 2d at 655, quoting 5 Wigmore, Evidence § 1420 at 251
(Chadbourn rev. 1974). The guarantees of trustworthiness "must be
at least as reliable as evidence admitted under a firmly rooted
hearsay exception[.]" 497 U.S. at 821, 110 S. Ct. at 3149, 111 L. Ed. 2d at 656, citing Roberts, 448 U.S. at 66, 100 S. Ct. at 2539,
65 L. Ed. 2d at 608. "[A]n affirmative reason, arising from the
circumstances in which the statement was made," is necessary to
rebut the presumption of unreliability and exclusion under the
Confrontation Clause. 497 U.S. at 821, 110 S. Ct. at 3149-50, 111 L. Ed. 2d at 656. We are not imposing a new rule. To the contrary,
Wright applied established precedents in measuring the
admissibility of statements given by a child.
The Supreme Court declined to list what would constitute
the necessary guarantees, but, without approving the results
reached in the cases it cited, it gave a list of factors that
appropriately could be considered by a trial court: "[U]se of
terminology unexpected of a child of similar age"; "spontaneity and
consistent repetition"; "mental state of the declarant"; and "lack
of motive to fabricate." 497 U.S. at 821-22, 110 S. Ct. at 3150,
111 L. Ed. 2d 656. (Citations omitted). In Wright, the trial court
admitted the hearsay of a two-and-one-half-year-old child, finding
that (1) she had no motive to lie, and (2) the statements made to
her doctor about daddy touching her with his pee-pee were not "of
the type `that one would expect a child to fabricate.'" 497 U.S.
at 826, 110 S. Ct. at 3152, 111 L. Ed. 2d at 659, quoting the trial judge. The Supreme Court of Idaho found the presumptive
unreliability of these statements to be unaffected by these
findings and reversed the defendant's conviction. The United
States Supreme Court agreed, holding that the circumstances found
by the trial court offered "no special reason for supposing that
the incriminating statements were particularly trustworthy." 497 U.S. at 826, 110 S. Ct. at 3152, 111 L. Ed. 2d at 659.See footnote 17
In the light of Wright and its specific examples of
testimony that failed to rebut the presumption of unreliability,
the trial court specifically must examine whether the circumstances
existing at the time a declarant gives a statement make the
statement particularly worthy of belief so that the test of cross-
examination would have been a work of supererogation. As "no
mechanical test prevails," Swan v. Peterson, 6 F.3d 1373, 1379 (9th
Cir. 1993), the character of the guarantees of trustworthiness in
this case must be weighed.
On appeal, we are not to second-guess a trial court.See footnote 18
See Swan, 6 F.3d at 1378. In cases that are open to reasonable
differences, if the trial court applies the correct legal criteria,
this Court is unlikely to substitute our judgment for that of the
trial court. It is not our task to retry the case, to determine
the defendant's guilt or innocence, or even to decide if the
disputed statements are true. However, on the ultimate
determination of trustworthiness, we act de novo. See Swan, 6 F.3d
at 1379. Our task under the Constitution is to determine if these
presumptively unreliable statements were made under circumstances
affirmatively establishing that they were so reliable that cross-
examination of the declarants was "of marginal utility." Wright,
497 U.S. at 820, 110 S. Ct. at 3149, 111 L. Ed. 2d at 655.
Although our constitutional guarantee to the right of
confrontation cannot be considered as absolute, it is not made of
"soft plastic." Nor should it be disregarded in the name of
expediency. In most cases, only by cross-examination can the truth
or falsity of a declarant's statement be determined. Thus, a trial
court's assessment of whether a particular declarant is apt to lie
is not enough; the trial court must not infringe upon a defendant's right to a fair trial in which the opportunity to cross-examination
is preserved.
As to the constitutional issue, the trial court failed to
develop the circumstances surrounding the statements. We,
therefore, refuse to attempt the impossible, that is to decide
whether "sufficient independent 'indicia of reliability' [exists]
to rebut the presumption of unreliability" surrounding the admitted
third-party statements. Syl. pt. 2, in part, Mullens, supra. To
meet this standard, the trial court must consider the statements
apart from any corroborating evidence and decide whether there was
"a showing of particularized guarantees of trustworthiness."
III.
CONCLUSION
Accordingly, this case is remanded to the Circuit Court
of Berkeley County for a hearing to determine the admissibility of
the disputed statements under the legal criteria stated in this
opinion. First, the trial court must determine whether the
statements are admissible under Rule 804(b)(3) and, particularly,
under Williamson. If, and only if, the prerequisites of Rule
804(b)(3) and Williamson are met, the trial court must proceed to determine the admissibility of the statements under our
Confrontation Clause analysis. The defendant is entitled to a new
trial unless both provisions are satisfied.
Vacated and Remanded
Footnote: 1
The motive for this murder is speculative at best. There
is some indication the motive may have been robbery. Contrary,
one theory suggested by the defendant is that Mr. Canfield
committed the murder out of jealousy of the victim's relationship
with Ms. Adams.Footnote: 2
Several statements were actually given to the police by Mr.
Canfield, Mr. Wasson, and Mr. Davis; however, the State did not
seek to admit them all. The statement by Mr. Canfield that was
admitted was given on February 18, 1993. The statement by Mr.
Wasson that was admitted was given on February 17, 1993. These
statements were the ones referred to by Sergeant Wagoner.Footnote: 3
Rule 804(b)(3) is a hearsay exception and provides:
"(b) Hearsay Exceptions.--The
following are not excluded by the hearsay
rule if the declarant is unavailable as a
witness:
* * *
"(3) Statements against
Interest.--A statement which was at the time
of its making so far contrary to the
declarant's pecuniary or proprietary
interest, or so far tended to subject the
declarant to civil or criminal liability, or
to render invalid a claim by the declarant
against another, that a reasonable person in
the declarant's position would not have made
the statement unless he or she believed it to
be true. A statement tending to expose the
declarant to criminal liability and offered
to exculpate the accused is not admissible
unless corroborating circumstances clearly
indicate the trustworthiness of the
statement." 1994 amended version.
The amended version of Rule 804(b)(3) is substantially similar to
the preceding version. Footnote: 4
The defendant is represented by different counsel on
appeal.Footnote: 5
Rule 804(b)(5) states:
"Other Exceptions.--A statement not
specifically covered by any of the foregoing
exceptions but having equivalent
circumstantial guarantees of trustworthiness,
if the court determines that (A) the
statement is offered as evidence of a
material fact; (B) the statement is more
probative on the point for which it is
offered than any other evidence which the
proponent can procure through reasonable
efforts; and (C) the general purposes of
these rules and the interests of justice will
best be served by admission of the statement
into evidence. However, a statement may not
be admitted under this exception unless the
proponent of it makes known to the adverse
party sufficiently in advance of the trial or
hearing to provide the adverse party with a
fair opportunity to prepare to meet it, the
proponent's intention to offer the statement
and the particulars of it, including the name
and address of the declarant. (As amended by
order entered June 15, 1994, effective July
1, 1994.)"
The amended version of Rule 804(b)(5) is substantially the same
as the preceding version. Footnote: 6
Only two reasons keep us from reversing when the
Confrontation Clause is violated. First, testimony admitted over
a defendant's valid Confrontation Clause objection is subject to
a harmless error analysis. See generally Delaware v. Van
Arsdall, 475 U.S. 673, 681-84, 106 S. Ct. 1431, 1436-38, 89 L. Ed. 2d 674, 684-87 (1986) (Confrontation Clause violation
subject to harmless error analysis, considering, inter alia, the
strength of the properly admitted evidence against the defendant
and whether the improperly admitted testimony was cumulative);
State v. Mullens, 179 W. Va. 567, 572 n.7, 371 S.E.2d 64, 69 n.7
(1988), ("confrontation clause violations are subject to a
harmless error analysis." (Citations omitted)).
Second, if a defendant fails to object to the
admission of evidence in violation of his Confrontation Clause
rights, it is ground for reversal only if it constitutes plain
error. See Fed.R.Crim.P. and W.Va.R.Crim.P. 52(b). "Plain error
warrants reversal 'solely in those circumstances in which a
miscarriage of justice would otherwise result.'" State v.
Miller, W. Va. , , S.E.2d , (No. 22571
5/18/95) (Slip op. at 31-32), quoting United States v. Frady, 456 U.S. 152, 163 n.14, 102 S. Ct. 1584, 1592 n.14, 71 L. Ed. 2d 816,
827 n.14 (1982). Footnote: 7
In essence, the Confrontation Clause provides a criminal
defendant with two distinct forms of protection: "[T]he right
physically to face those who testify against him, and the right
to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998, 94 L. Ed. 2d 40, 53 (1987). (Citation
omitted). Both are critical and are deeply rooted in our legal
culture. Coy v. Iowa, 487 U.S. 1012, 1015-16, 108 S. Ct. 2798,
2800-01, 101 L. Ed. 2d 857, 863-64 (1988). In fact, the dual
guarantee "is an essential and fundamental requirement for the
kind of fair trial which is this country's constitutional goal."
Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 927 (1965). Footnote: 8
See State v. Dillon, 191 W. Va. 648, 658, 447 S.E.2d 583,
593 (1994) (statements not offered for the truth of the matter
asserted do not implicate the Sixth Amendment). Footnote: 9
Dutton, 400 U.S. at 86, 91 S. Ct. at 218, 27 L. Ed. 2d at
225. (Footnote omitted). Footnote: 10
The Donnelly rule limiting the hearsay exception for
declarations against interest to statements against the interest
of a pecuniary character was also the rule in West Virginia.
See also State v. Poe, 69 W. Va. 260, 71 S.E. 177 (1911)
(statements subjecting the declarant to criminal liability were
held to be outside the exception). It was not until 1978 that
this Court recognized the "penal interest" exception in State v.
Williams, 162 W. Va. 348, 249 S.E.2d 752 (1978).Footnote: 11
See United States v. Katsougrakis, 715 F.2d 769 (2nd Cir.
1983), cert. denied, 464 U.S. 1040, 104 S. Ct. 704, 79 L. Ed. 2d 169 (1984).Footnote: 12
Williamson cautions courts to be suspicious of statements
implicating others. Implicating others may be nothing other than
self-serving, especially if the declarant has been arrested or if
the declarant concedes only a minor role and blames another with
the major responsibility. U.S. at , , 114 S. Ct. at
2437, 2439, 129 L. Ed. 2d at 485, 488 (four justices declared that
an arrested person has "strong incentive to shift blame or
downplay his own role"). Footnote: 13
In adopting Rule 804(b)(3), Congress intentionally avoided
constitutional evidentiary principles, such as those required
under the Sixth Amendment Confrontation Clause, when it adopted
the Federal Rules of Evidence. As stated in United States v.
Alvarez, 584 F.2d 694, 700 (5th Cir. 1978), quoting S. Rep. No.
93-1277, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N.
7051, 7068:
"'[T]he basic approach of the rules is to
avoid codifying, or attempting to codify,
constitutional evidentiary principles, such
as the . . . sixth amendment's right of
confrontation. Codification of a
constitutional principle is unnecessary and,
where the principle is under development,
often unwise.'"
Congress properly left open to the courts the question of the
constitutional parameters for determining the admissibility of
hearsay evidence. Footnote: 14
"Rule 804(b)(3) requires that corroborating circumstances
clearly indicate the trustworthiness of a statement against
interest. . . . This applies to both inculpatory and
exculpatory statements." United States v. Garcia, 897 F.2d 1413,
1420-21 (7th Cir. 1990). (Citations omitted). See Naum v.
Halbritter, supra (even when introduced by the State there must
be sufficient corroboration of the facts contained in the
statement). Footnote: 15
The pertinent portion of the trial court's ruling states:
"There's been a finding that the
statements that the State wishes to introduce
are against penal interest of the declarants.
That I think satisfies the rule. It is never
beyond the supreme court to change the rules.
Often times at the sake of circuit judges.
It happens everyday and it may happen. My
reading of the rules and even brief review of
the judiciary notes as to the federal rules
beyond it don't seem to have any firmly
rooted expansion or should I say contraction
of 804 B3 as you argue should take place.
That's note to say that our supreme court
might not find it, but I don't see the trend
going that way. I think they're against
penal interest and therefore -- and the
declarants are unavailable. They fit in
there." Footnote: 16
Wright, 497 U.S. at 817, 110 S. Ct. at 3148, 111 L. Ed. 2d
at 653, quoting Roberts, 448 U.S. at 66, 100 S. Ct. at 2539, 65 L. Ed. 2d 608. (Footnote omitted). Footnote: 17
One of the statements admitted by the trial court was the
child's comment to her doctor that daddy "does it a lot more with
my sister[.]" The United States Supreme Court stated, although
"the spontaneity of the statement and the change in demeanor"
suggested that the child was telling the truth, "it is possible"
spontaneity may not be an accurate indicator of trustworthiness
where there are indications of prior interrogation, prompting, or
manipulation by adults. 497 U.S. at 826-27, 110 S. Ct. at 3152-
53, 111 L. Ed. 2d at 659-60. (Citation omitted). Footnote: 18
It is "the trial judge [who] is in the best position to
weigh competing interests in deciding whether or not to admit
certain evidence," and "[a]bsent an abuse of discretion, the
decision of the trial judge to admit or reject evidence will not
be overturned by an appellate court." United States v. Sun Myung
Moon, 718 F.2d 1210, 1232 (2nd Cir. 1983) (citation omitted),
cert. denied, 466 U.S. 971, 104 S. Ct. 2344, 80 L. Ed. 2d 818
(1984).
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