State v. Gilliam

Francis E. Sweeney, Sr., J.

The sole issue before this court is whether the admission of a co-defendant’s taped statement after the co-defendant becomes unavailable violated appellant’s Sixth Amendment right to confront adverse witnesses. For the following reasons, we find that admission of the statement did not violate the Confrontation Clause. Accordingly, we affirm the judgment of the court of appeals.

The Confrontation Clause and the hearsay rules stem from the same roots and generally protect the same values; however, the prohibitions of the Confrontation Clause cannot be equated with the general rule prohibiting the admission of hearsay statements. White v. Illinois (1992), 502 U.S. 346, -, 112 S.Ct. 736, 741, 116 L.Ed.2d 848, 857.

The Confrontation Clause is a constitutional safeguard that ensures a defendant will not be convicted based on the charges of unseen, unknown, and unchallengeable "witnesses. Lee v. Illinois (1986), 476 U.S. 530, 540, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 525. Thus, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under a hearsay exception. Idaho v. Wright (1990), 497 U.S. 805, 814, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638, 651. When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause requires a showing that he is unavailable and that the statement bears adequate “indicia of reliability.” Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 607-608. The reliability standard can be satisfied without more in a case where the evidence falls within a *20firmly rooted hearsay exception. Id. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608. Otherwise, to satisfy the Confrontation Clause the evidence must be supported by a showing of “particularized guarantees of trustworthiness.” Id.

In the present case, we initially find that Moore’s statement falls within an established hearsay exception as a statement against interest, Evid.R. 804(B)(3). The state called Moore to testify in its case-in-chief, but Moore asserted his Fifth Amendment right against self-incrimination and refused to testify. By doing so, Moore became “unavailable” for purposes of the unavailability requirement of Evid.R. 804. State v. Landrum (1990), 53 Ohio St.3d 107, 113, 559 N.E.2d 710, 719.

Pursuant to Evid.R. 804(B)(3), a statement may be admitted as an exception to the hearsay rule if the declarant is unavailable and it is a “statement against interest.” To qualify as a statement against interest, it must be shown that the statement “tended to subject” the declarant to criminal liability so that a reasonable person in the declarant’s position would not have made the statement unless the declarant believed it to be true. United States v. Garcia (C.A.7, 1990), 897 F.2d 1413, 1420.

Clearly, in the present case Moore’s statement tended to subject the declarant, Moore, to criminal liability. Moore admitted he had driven appellant and Treadwell to Rite Nau “to check it out.” Moore admitted that he assumed this meant they were “gonna rob the place.” Moore further admitted that he had seen a shotgun before the robbery, which he believed Treadwell had brought but Moore thought was owned by appellant. Moore stated further that appellant and Treadwell returned to the car together, with money in a bag, and that Moore drove them away from Rite Nau. This statement exposes Moore to criminal liability and, thus, is a “statement against interest” as provided by Evid.R. 804(B)(3).

Finally, Evid.R. 804(B)(3) requires that corroborating circumstances clearly indicate the trustworthiness of the statement before the statement against interest becomes admissible. The determination of whether sufficient corroborating circumstances exist generally rests within the sound discretion of the trial court. State v. Landrum, supra, 53 Ohio St.3d at 114, 559 N.E.2d at 720. In the present case, there are sufficient corroborating circumstances which indicate that the statement is trustworthy. The declarant, Moore, gave a statement to Detective Medders while Moore was in custody. Moore was read his Miranda rights and stated that he understood his rights and indicated his willingness to • voluntarily make a statement. Prior to making the statement, Moore was advised that the statement was in regard to the robbery at Rite Nau. The evidence shows no discussion of any promises or offers in exchange for the *21statement. Furthermore, the content of Moore’s statement was corroborated by other witnesses’ testimonies.

Based on all the surrounding circumstances, we find that the trial court did not abuse its discretion in determining that Moore’s statement was trustworthy. Accordingly, we conclude that the statement met the requirements of a statement against interest under Evid.R. 804(B)(3) and, therefore, did not violate the Confrontation Clause as the evidence was admissible pursuant to a firmly rooted exception to the hearsay rule.

In addition, we also find that Moore’s statement did not violate the Confrontation Clause, since it is supported by “particularized guarantees of trustworthiness.” See Ohio v. Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608. The guarantees of trustworthiness must be shown from the totality of the circumstances. Idaho v. Wright, supra, 497 U.S. at 819, 110 S.Ct. at 3148, 111 L.Ed.2d at 655. As the lower court concluded, the reliability of Moore’s confession was not as inherently suspect as the typical co-defendant’s confession referred to in the United States Supreme Court case, Lee v. Illinois, supra, 476 U.S. at 541, 106 S.Ct. at 2062, 90 L.Ed.2d at 526. Moore’s statement did not attempt to exonerate Moore and shift the blame to another co-defendant. As previously discussed, Moore admitted that he drove Treadwell and appellant to Rite Nau; that he knew these two men planned to “rob the place” and that they had a shotgun; and that he waited outside to drive the men away after they left Rite Nau. Other witnesses at trial corroborated Moore’s statement. Thus, the content of the statement is “particularly worthy of belief,” as the declarant incriminated himself by making the statement. See Idaho v. Wright, supra, 497 U.S. at 819, 110 S.Ct. at 3148, 111 L.Ed.2d at 655. In addition, Moore gave the statement to police after having been fully advised of both his rights and the reason for the questioning. The evidence shows no discussion of any promise or consideration in exchange for the statement. Thus, the circumstances surrounding the making of the statement tend to demonstrate its trustworthiness.

Considering the totality of the circumstances discussed above, we conclude that the trial court did not abuse its discretion in concluding that the evidence was supported by “particularized guarantees of trustworthiness” such that its admission did not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution.

Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick and Pfeifer, JJ., concur. A.W. Sweeney and Wright, JJ., dissent.