{¶ 37} Being unable to agree with the majority's disposition of appellant's first assignment of error remanding this case for a new trial, I respectfully dissent.
{¶ 38} Initially, with respect to appellant's first assignment of error, I believe the lead opinion's focus on the decision rendered by the United States Supreme Court inHolmes v. South Carolina (2006), 547 U.S. 319,126 S.Ct. 1727, 164 L.Ed.2d 503, is misplaced. AlthoughHolmes and this case involve a defendant attempting to introduce evidence that a third party confessed to the crime of which the defendant was accused, the similarities end there. In focusing on Holmes, the lead opinion appears to be suggesting that the requirement in Evid.R. 804(B)(3) that evidence of a third-party confession is not admissible "unless corroborating circumstances clearly indicate the trustworthiness of the statement" is itself a violation of appellant's right to present a complete defense, an issue appellant has not raised either at the trial court or on appeal.
{¶ 39} Holmes involved consideration of a South Carolina evidentiary rule that excluded evidence of a third-party confession where the trial court determined that the evidence of the defendant's guilt was so strong that the evidence of the third party's confession was not sufficient to raise a reasonable inference of the defendant's own innocence. The court recognized that some evidentiary rules may properly limit evidence regarding third-party guilt, stating:
*Page 316While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. An application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged. Such rules are widely accepted and are not challenged here.
Id. at syllabus. The court recognized that evidence that another person committed the crime may be excluded "where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant's trial." 547 U.S. 319, 126 S.Ct. at 1733,164 L.Ed.2d 503, citing 40A American Jurisprudence 2d (1999) 136-138, Homicide, Section 286. The court found that South Carolina's rule violated this principle because it required the trial court to consider only the strength of the prosecution's case, rather than to engage in a separate evaluation of the evidence showing the third party's guilt. Id 547 U.S. 319,126 S.Ct. at 1734-1735, 164 L.Ed.2d 503.
{¶ 40} Since Evid.R. 804(B)(3) requires the trial court to engage in an analysis of the evidence indicating the third party's guilt, it is not a rule of the sort that suffers from the constitutional infirmity discussed in Holmes. Furthermore, it is clear that in this case, the issue is not whether the trial court properly construed Evid.R. 804(B)(3), which was the issue with the evidentiary rule inHolmes. The issue is whether the trial court properlyapplied the rule.
{¶ 41} Generally, the decision to admit or refuse to admit evidence of a third-party confession under Evid.R. 804(B)(3) is one reviewed under an abuse-of-discretion standard.State v. Sumlin (1994), 69 Ohio St.3d 105,630 N.E.2d 681. Thus, as with the review of any evidentiary decision by a trial court, our review should be limited to whether the trial court acted unreasonably, arbitrarily, or unconscionably in deciding whether to exclude evidence of Carlisle's confessions.State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815,848 N.E.2d 810.
{¶ 42} Courts have generally recognized three requirements when considering whether hearsay evidence regarding a third party's confession should be admitted under Evid.R. 804(B)(3): (1) the declarant must be unavailable; (2) the declarant's statement must be of a nature that would subject the declarant to criminal liability such that a reasonable person in the declarant's position would not have made the statement if the declarant, did not believe it to be true; and (3) corroborating circumstances must clearly indicate the trustworthiness of the confession. State v. Durant,159 Ohio App.3d 208, 2004-Ohio-6224, 823 N.E.2d 506. In this case, Carlisle was unavailable by virtue of his invocation of hisFifth Amendment right against self-incrimination, and his confessions, if believed, could have subjected him to criminal liability. Consequently, the only issue is whether there were corroborating circumstances clearly demonstrating the trustworthiness of Carlisle's confessions.
{¶ 43} Courts have stressed that the hurdle of showing corroborating circumstances is not an insignificant one.State v. Landrum (1990), 53 Ohio St.3d 107,559 N.E.2d 710. The concern underlying the requirement for corroborating circumstances for Evid.R. 804(B)(3) purposes is that it allows an individual to *Page 317 make statements exculpating another and then avoid cross-examination on the issue by claiming the privilege against self-incrimination. State v. Mengistu, Franklin App. No. 02AIM97, 2003-Ohio-1452, 2003 WL 1498501, citing UnitedStates v. Mackey (C.A.1, 1997), 117 F.3d 24.
{¶ 44} A number of courts have discussed the question of what facts demonstrate sufficient corroborating circumstances for the purposes of admitting evidence of a third-party confession. These courts have generally recognized that due process concerns require consideration not only of the circumstances surrounding the making of the statement, but of any other corroborating evidence as well. See Sumlin;Durant, citing Chambers v. Mississippi (1973),410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297.
{¶ 45} In this case, the corroborating circumstances do not clearly demonstrate the trustworthiness of Carlisle's confessions. Initially, I must disagree with the lead opinion's assertion that "Carlisle's purported confession was corroborated by at least four other nearby residents." Supra at ¶ 3. In its literal sense, this statement suggests that the proffered witnesses were corroborating the substance of Carlisle's confessions, i.e., that Carlisle was the shooter. In actuality, the statements only serve to corroborate that Carlisle made the confession.
{¶ 46} Further, the circumstances surrounding Carlisle's purported confession do not indicate a degree of trustworthiness such that the trial court abused its discretion by declining to admit them under Evid.R. 804(B)(3). One of the witnesses who proffered testimony regarding Carlisle's confessions was Tia Holland, appellant's girlfriend and the mother of his child. The other three proffered witnesses were Lisa Hughes and her daughters, Ciera and Tiffany. Lisa Hughes is Holland's cousin. All of the proffered testimony showed that Carlisle was extremely close with appellant; in fact, the testimony was that appellant was a father figure to Carlisle. The closeness of the relationship between appellant and the witnesses to Carlisle's confession is a factor that undermines the trustworthiness of Carlisle's confession. SeeSumlin, 69 Ohio St.3d 105, 630 N.E.2d 681. The trustworthiness of Carlisle's purported confession is further undermined by the closeness between appellant and Carlisle.Mengistu.
{¶ 47} Furthermore, there is no evidence in the record that would support a conclusion that Carlisle was the shooter. The lead opinion relies to some extent on what it apparently deems to be weak testimony identifying appellant as the shooter, stating that "[i]t was dark when the shooting occurred, and Stith made his identification of Swann based solely on his recollection of Swann's voice." Supra at 118. This conclusion is contradicted by other testimony from John Stith, who testified: *Page 318
I looked straight up and I seen Mr. Christopher Swann, I could not exactly see what he was holding in his hand. But I seen the fire come from him. He told me fuck me and shot me in my neck.
Thus, the identification of appellant as the shooter was not based solely on Stith's recognition of appellant's voice.
{¶ 48} The defense attempted to enter as evidence summaries prepared by Columbus Police Department detectives of statements made after the shooting by Stith and Kavar Thompson in which each allegedly stated that Carlisle had been seen with appellant and Andre Sharp shooting guns into the air, which was the cause of the confrontation that resulted in Stith being shot. However, these summaries were not entered into evidence. In their trial testimony, both Stith and Thompson denied having seen Carlisle at the scene either before or during the shooting and denied telling the police that he was present. Detective John Weis, who had prepared the summary of Thompson's statement, testified that Thompson had not said Carlisle was at the scene and that the reference to Carlisle in the summary of Thompson's statement was an error.
{¶ 49} Given these facts, I cannot agree with the conclusion that the trial court abused its discretion in the manner that it applied Evid.R. 804(B)(3). Thus, I would overrule appellant's first assignment of error.
{¶ 50} Since I would overrule appellant's first assignment of error, I would proceed to consider appellant's remaining assignments of error. The lead opinion does, in fact, consider each of the remaining assignments of error, overruling appellant's third and fourth assignments on their merits, overruling appellant's second assignment on the merits as it relates to the trial court's decision not to admit evidence regarding pending criminal charges against John Stith, and finding the second assignment moot as it relates to the trial court's decision not to admit evidence regarding Kavar Thompson's pending motion for judicial release (although still including an extensive discussion of the assignment as it relates to Thompson's motion).
{¶ 51} To the extent that the lead opinion does address the merits of appellant's remaining three assignments of error, I concur, in judgment only, with the decision to overrule appellant's third and fourth assignments of error on their merits, and with the decision to overrule appellant's second assignment of error on its merits as it relates to Stith's pending criminal charge. I would also find that the trial court's failure to admit evidence regarding Thompson's pending motion for judicial release was harmless error and would therefore affirm the judgment of the trial court. *Page 319