Maugeri v. State

• Decision Date: 18 December 1984
• Docket Number: No. 82-1896,82-1896
• Citation: 10 Fla. L. Weekly 1,460 So.2d 975
• Parties: 10 Fla. L. Weekly 1, 10 Fla. L. Weekly 146 Joseph W. MAUGERI, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 975

460 So.2d 975

10 Fla. L. Weekly 1, 10 Fla. L. Weekly 146

Joseph W. MAUGERI, Appellant, v. The STATE of Florida, Appellee.

No. 82-1896.

District Court of Appeal of Florida,

Third District.

Dec. 18, 1984.

Edward A. Carhart and Bonnie Lano Rippingille, Coral Gables, for appellant.

Jim Smith, Atty. Gen. and Penny Hershoff Brill, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and BARKDULL and NESBITT, JJ.

SCHWARTZ, Chief Judge.

The primary issue on this appeal from convictions of the first degree murder of Peter Castellano and the burglary of his home concerns the admissibility of the testimony of the victim's live-in girlfriend, Lori Ford, that he told her the day before the killing that he had stolen two kilograms of cocaine from the defendant Joseph Maugeri's airplane--as opposed to $8,000 in cash which Maugeri said had been placed there. After lengthy and thorough consideration, we have determined that this evidence, although uncontestably hearsay, section 90.802, Florida Statutes (1981), was properly admitted as a statement against penal interest under the hearsay exception embodied in section 90.804(2)(c), Florida Statutes (1981), ¹ the reception of which did not offend the defendant's right to confrontation under the sixth amendment of the United States Constitution.

Castellano was shot and killed during an altercation at his home by Robert Worthington, an employee of Maugeri and the father of Maugeri's paramour, Carol Ziegler. Ford and Maugeri were also present. Ford testified that Maugeri had ordered Worthington to shoot Castellano. Maugeri testified that Worthington had acted on his own. Thus the evidence that $180,000 worth of cocaine, instead of $8,000 in cash, had been taken by Castellano was devastatingly damaging and inculpatory of Maugeri in that it simultaneously explained and supported Ford's testimony as to his commission of the crime and provided persuasive evidence of his motive for having done so.

As a threshold matter, we accept the appellant's position that the reference to cocaine may and must be separated from that portion of Castellano's statement in which he admitted another crime, that of burglary of the aircraft. See and compare, 5 J. Wigmore, Evidence, § 1465 at 339, n. 1 (Chadbourn rev. 1974); E. Cleary, McCormick on Evidence § 79 at 677 (2d Ed. 1972); Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule, 58 Harv.L.Rev. 1, 60 (1944). While that statement was also against Castellano's penal interest, the existence of the burglary was not challenged, and was indeed conceded by Maugeri at the trial; the nature of the item which was stolen was, in contrast, subject to a dispute equivalent in intensity to that concerning the defendant's guilt. Hence, properly regarded, the point before us is whether the reference to cocaine as the subject of the burglary was sufficiently reliable and against Castellano's penal interest to justify its admission.

In determining that issue, we generally adopt the test stated in United States v. Riley, 657 F.2d 1377 (8th Cir.1981), cert. denied, 459 U.S. 1111, 103 S.Ct. 742, 74 L.Ed.2d 962 (1983), for the admission of inculpatory statements against penal interest ² in criminal cases under the federal equivalent to section 90.804(2)(c):

[B]efore an inculpatory statement against penal interest is admissible under Rule 804(b)(3), it must be shown that (1) the declarant is unavailable as a witness, (2) the statement must so far tend to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless he or she believed it to be true, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement. ³

United States v. Riley, 657 F.2d at 1383.

Even though the hearsay statement may pass muster under the statutory rule of evidence, it must also survive the constitutional scrutiny of the sixth amendment. Like the evidentiary rule, the confrontation clause seeks to ensure reliability. In Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), the Supreme Court held that the admission of hearsay declaration does not violate the defendant's sixth amendment rights only if it

bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

In approaching this issue as it relates to statements against penal interest, we agree with the analysis in State v. Parris, 98 Wash.2d 140, 654 P.2d 77, 81 (1982):

It is not correct to say that inculpatory declarations are included within the "firmly rooted exceptions" to the hearsay rule. According to Ohio v. Roberts, supra 448 U.S. at 66, 100 S.Ct. at 2539, if hearsay statements fall within a "firmly rooted exception" to the hearsay rule, they are admissible without "particularized guarantees of trustworthiness." Inculpatory statements must be accompanied by such guaranties in order to be admissible. Thus, we can only say that inculpatory statements are a "firmly rooted exception" if we add the proviso that they must be accompanied by corroborating circumstances clearly indicating their trustworthiness, or, in the words of the Supreme Court, "particularized guarantees of trustworthiness". This is a proviso required by substantive law, not one found expressed in the rule, and it places such statements in the second category of the Roberts test.

Whether this requirement is read into the rule, as was done in the Court of Appeals, or is simply recognized as a constitutional prerequisite to the admission of the evidence, the result is the same. [footnote omitted, e.s.]

As was similarly said in United States v. Katsougrakis, 715 F.2d 769, 776 (2d Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984), "a hearsay statement that satisfies the penal interest exception usually will survive Confrontation Clause scrutiny because the 'trustworthiness' issue has already been decided in favor of admissibility." See also and compare, Olson v. Green, 668 F.2d 421 (8th Cir.1982); United States v. Sarmiento-Perez, 633 F.2d 1092 (5th Cir.1981), cert. denied, 459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 75 (1982).

Applying these tests:

1. It is plain that Castellano, who is dead, was unavailable as a witness.

2. The trial court properly found that the challenged portion of Castellano's statement--that is, the reference to the cocaine as the subject matter of his theft--so far tended to subject him to criminal liability for drug trafficking, section 893.135, Florida Statutes (1981) (imposing 15 year minimum penalty), that a reasonable person in his position would not have made the statement, even to his girlfriend, unless he believed it to be true. Thus the facial requirements of the statute for the admission of a statement against penal interest were satisfied. Baker v. State, 336 So.2d 364 (Fla.1976); Lambert v. Doe, 453 So.2d 844 (Fla. 1st DCA 1984); see Green v. Georgia, 442 U.S. 95,97, 99 S.Ct. 2150, 2151, 60 L.Ed.2d 738 (1979) (close relationship between declarant and listener does not destroy disserving potential of the statement); Chambers v. Mississippi, 410 U.S. 284, 300, 93 S.Ct. 1038, 1048, 35 L.Ed.2d 297 (1973) (same); United States v. Mock, 640 F.2d 629 (5th Cir.1981)(statement to former wife); United States v. Goins, 593 F.2d 88 (8th Cir.1979), cert. denied, 444 U.S. 827, 100 S.Ct. 52, 62 L.Ed.2d 35 (1979) (statement to daughter); United States v. Bagley, 537 F.2d 162, 165 (5th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977) (statement to cellmates); United States v. Barrett 539 F.2d 244 (1st Cir.1976)(statement to fellow card player). ⁴

3. The surrounding circumstances, including but not limited to the subsequent use of the cocaine purportedly taken in the theft, the established fact that something was taken from Maugeri's airplane and that Castellano was killed in a confrontation over whatever was taken, see State v. Valladares, 99 Wash.2d 663, 664 P.2d 508 (1983), as well as the other evidence concerning the murder, ⁵ see United States v. Mock; State v. Parris, were such as to "clearly indicate," see United States v. Riley, and cases cited; United States v. Alvarez, 584 F.2d 694, 695 (5th Cir.1978), or, as said in Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, provide "particularized guarantees" of the trustworthiness of the statement, so as to permit both statutorily and constitutionally, the introduction of inculpatory hearsay against the defendant in a criminal prosecution. See also Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); United States v. Layton, 720 F.2d 548 (9th Cir.1983), cert. denied, 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984); United States v. Katsougrakis; United States v. Brainard, 690 F.2d 1117 (4th Cir.1982); United States v. Mock; United States v. Robinson, 635 F.2d 363 (5th Cir.1981); United States v. Garris, 616 F.2d 626 (2d Cir.1979), cert. denied, 447 U.S. 926, 100 S.Ct. 3021, 65 L.Ed.2d 1119 (1980); United States v. Alvarez; United States v. White, 553 F.2d 310 (2d Cir.1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977); United States v. H & M, Inc., 562 F.Supp. 651 (M.D.Penn.1983); State v. Valladares; State v. Parris.

We further hold, contrary to the position of the defendant and the Fifth Circuit as stated in United States v. Sarmiento-Perez, United States v. Alvarez, and United States v. Bagley, that the credibility of Ford's in-court testimony that Castellano made the statement in question was entirely for the jury, see 5 J. Wigmore, Evidence §§ 1368, 1427 (Chadbourn rev.1974), and is not a factor which need be considered in determining its admissibility either by the trial court prior to admission or by this...