People v. Taylor

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED DECEMBER 19, 2008

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 135666

ERIC TAYLOR,

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 135683

ROBERT LEE KING,

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 135692

MARLON SCARBER,

Defendant-Appellant.
BEFORE THE ENTIRE BENCH

PER CURIAM.

In this case, two juries convicted three defendants of multiple crimes

related to the kidnapping and murder of Fate Washington. Defendant Robert L.

King argues that the inculpatory statements of codefendant Marlon Scarber,

admitted through the testimony of an acquaintance, violated the rules of evidence

and King’s right of confrontation under People v Poole, 444 Mich 151; 506 NW2d

505 (1993). In lieu of granting leave to appeal, we hold that, insofar as Poole held

that the admissibility of a codefendant’s nontestimonial hearsay statement is

governed by both MRE 804(b)(3) and the Confrontation Clause of the United

States Constitution, it is no longer good law. We nevertheless affirm the decision

of the Court of Appeals because we conclude that the Court sufficiently addressed

the issue of the statements’ admissibility under MRE 804(b)(3). We deny

defendants’ applications for leave to appeal in all other respects.

I. FACTS AND PROCEDURAL HISTORY

The Court of Appeals summarized the facts of this case as follows:

The victim, Fate Washington, was sitting in the driver’s-side
seat of his Ford Expedition on the street outside his house. He had
just finished speaking with a neighbor when defendant Scarber and
an unidentified man, both clad in black, approached the vehicle and
forced Washington, at gunpoint, further into the vehicle. Both the
neighbor and Washington’s adult son, who was near a window
inside the house, witnessed the scene. Washington scuffled with the
men long enough that the neighbor was able to run home, retrieve a
handgun, and open fire on the vehicle from his front porch. The
eyewitnesses verified that Scarber climbed into the driver’s seat
while a second vehicle[,] driven by defendant King, rolled up and

2

opened fire on the neighbor with an automatic rifle. Other witnesses
confirmed that the tandem of vehicles sped off through the streets
after the shots were fired. Soon afterward, defendant King forced
Washington to make a series of calls demanding ransom in return for
his life.

A former friend of Scarber’s and associate of [Taylor and
King], Troy Ervin, provided a detailed account of events after
Washington was taken captive. The group took Washington to a
house owned by Ervin’s sister, and defendant King persuaded Ervin
to trade cars with him for a while. When Ervin visited the house, he
was initially denied access into the home. Scarber later called him
and told him that he and the other defendants had kidnapped
Washington and held him at the house. Scarber explained that
Taylor had helped and that King had shot at the man’s defenders.
Scarber also admitted that he almost blew himself up burning the
man’s vehicle. This information was confirmed at trial by a witness
who heard a large explosion that night and saw a vehicle, later
identified as Washington’s Expedition, on fire outside her home.
Ervin visited the house again and found Washington lying on the
floor of a back room wearing nothing but a sheet. Taylor guarded
the man with an automatic rifle like the one described by witnesses
to Washington’s capture, and King was armed with a handgun like
the one Scarber had used. While Ervin was there, he heard Taylor
deny Washington’s request to use the phone again to make more
ransom calls.

Ervin left, but returned again later after Scarber called and
told him that King had shot Washington in the legs and he had bled
to death. Ervin was agitated at finding that Washington was killed in
his sister’s house, because it associated him with the murder. He
saw the dead body in the back room, and then he went to the
hardware store for King and purchased tools for burying the body.
After he dropped off the tools, he was again called and informed that
the group had buried the body in the back yard of the property.
Ervin was again agitated at the use of his sister’s property, but
Taylor assured him that the burial site was inconspicuously
concealed by the doghouse and the body was secure under a layer of
concrete. Searchers later found the body buried as Ervin described
it. The body was found with two gunshot wounds, one through each
leg.

3

 Upon hearing that Ervin, who was not charged with a crime,
had made a statement to police about Washington’s murder,
defendant Scarber also decided to make a statement. Except for
Scarber’s self-serving insistence that he participated in the crimes
under duress and tried to care for Washington by bandaging his first
gunshot wound and bringing him water, Scarber’s statement to
police was remarkably consistent with Ervin’s. Scarber’s statement
confirmed the details of a successful ransom recovery that involved
a peculiar delivery method, a particular mailbox, and a relatively
small amount of money and drugs. Scarber’s statement described
defendant King as Washington’s killer, and explained that, before he
shot Washington a second time, King expressed a frustrated lack of
concern with Washington’s life and an unabashed willingness to kill
him. Because the prosecutor wanted to place defendant Scarber’s
statement into evidence, Scarber received a separate jury for the
purpose, isolating defendant King’s and defendant Taylor’s jury
from Scarber’s blame-shifting account of Washington’s captivity.
[People v Taylor, unpublished opinion per curiam of the Court of
Appeals, issued November 29, 2007 (Docket Nos. 273443, 273543,
and 273955), at 2-3.]

A jury convicted King and Taylor of second-degree murder,1 MCL

750.317; first-degree felony murder, MCL 750.316(1)(b); kidnapping, MCL

750.349; and possession of a firearm during the commission of a felony, MCL

750.227b. It also convicted King of armed robbery, MCL 750.529, but acquitted

Taylor of armed robbery. The trial court sentenced King to life imprisonment for

the first-degree felony murder conviction, 25 to 80 years for the second-degree

murder, armed robbery, and kidnapping convictions, and two years for the felony-

firearm conviction. It sentenced Taylor to life imprisonment for the first-degree

1
Both were charged with first-degree premeditated murder, but the jury
convicted them of the lesser offense of second-degree murder.

4

murder conviction, 25 to 80 years for the kidnapping conviction, and two years for

the felony-firearm conviction.2

A separate jury convicted defendant Scarber of first-degree premeditated

murder, MCL 750.316(1)(a); felony murder; armed robbery; kidnapping; felony-

firearm; and felon in possession of a firearm, MCL 750.224f. The trial court

sentenced him to life imprisonment for the premeditated murder conviction, 38 to

80 years for the armed robbery and kidnapping convictions, and two years for the

felony-firearm conviction.3

After consolidating defendants’ appeals, the Court of Appeals affirmed

Scarber’s convictions and sentences, but set aside King’s second-degree murder

and kidnapping convictions and Taylor’s kidnapping conviction on double

jeopardy grounds.4 All three defendants sought leave to appeal in this Court.

2
The trial court vacated Taylor’s second-degree murder conviction on
double jeopardy grounds.
3
The trial court vacated Scarber’s felony-murder conviction on double
jeopardy grounds and dismissed his felon in possession conviction without
explanation.
4
The Court reasoned that King could not be convicted of both first-degree
and second-degree murder of the same person. With respect to King’s kidnapping
conviction, the Court ruled that either the kidnapping conviction or the armed
robbery conviction was the predicate felony for the felony-murder conviction, so
setting aside the kidnapping conviction meant that King would only receive one
punishment for the kidnapping conviction (his sentence for felony murder), and
then could be separately punished for armed robbery. The Court set aside Taylor’s
kidnapping conviction using the same reasoning (the only difference is that Taylor
was acquitted of armed robbery). Taylor, supra at 3-5. We note that because the
Court of Appeals issued its opinion in this case before we issued our opinion in
People v Ream, 481 Mich 223, 225; 750 NW2d 536 (2008) (holding that

5

 II. ANALYSIS

Defendant King challenges the trial court’s admission, through Ervin’s

testimony,5 of defendant Scarber’s statements to Ervin that (1) Scarber, King, and

Taylor had kidnapped Washington and were holding him at the house owned by

Ervin’s sister and that (2) King had shot Washington once in each leg, causing him

to bleed to death. King argues before this Court, as he did before the Court of

Appeals, that Scarber’s statements to Ervin were inadmissible hearsay and that the

trial court erred in failing to consider their reliability before holding that the

statements would not violate the Confrontation Clause. The Court of Appeals held

that the rules of evidence did not preclude admission of the statements because

they fell within the hearsay exception for statements against the declarant’s penal

interest, MRE 804(b)(3). Taylor, supra at 5. It also held that the trial court’s

failure to analyze the reliability of the statements was harmless because the

statements bore sufficient indicia of reliability under the factors articulated in

Poole, supra at 165, and they therefore did not violate King’s right of

confrontation. Taylor, supra at 5-6.

We hold that the portion of Poole pertaining to the requirements of the

Confrontation Clause is no longer good law because it was premised on Ohio v

“convicting and sentencing a defendant for both felony murder and the predicate
felony does not necessarily violate the ‘multiple punishments’ strand of the
Double Jeopardy Clause”), the Court did not have the benefit of our holding in
Ream when it decided this case.
5
As a codefendant, Scarber was not available to testify at trial.

6

Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980), which has been

overruled by Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d

177 (2004), and Davis v Washington, 547 US 813; 126 S Ct 2266; 165 L Ed 2d

224 (2006). Because the hearsay statements in this case were nontestimonial, they

do not implicate the Confrontation Clause, Davis, supra at 821, and their

admissibility is governed solely by MRE 804(b)(3). We nevertheless affirm the

decision of the Court of Appeals on the basis of the Court’s determination that the

statements were admissible under MRE 804(b)(3).

The Confrontation Clause provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

US Const, Am VI. This Court’s Confrontation Clause analysis in Poole was

predicated on the Confrontation Clause analysis articulated by the United States

Supreme Court in Roberts. In Roberts, the Court considered the relationship

between the Confrontation Clause and the hearsay rule. It held that the

Confrontation Clause limits the scope of admissible hearsay in two ways: first, it

generally requires the prosecution to either produce the declarant or demonstrate

that he is unavailable; second, it requires that the statement bear certain “indicia of

reliability.” Id. at 65-66. The Court further held that “[r]eliability can be inferred

without more in a case where the evidence falls within a firmly rooted hearsay

exception.” Id. at 66. Otherwise, the evidence is inadmissible “absent a showing

of particularized guarantees of trustworthiness.” Id.

7

 In Poole, this Court considered the admissibility of a declarant’s voluntary,

out-of-court statement made to someone other than a police officer, implicating

the declarant and the defendant in criminal activity. Id. at 153-154. It held that in

order for such a statement to be admissible as substantive evidence against the

defendants at trial, it must be admissible under both MRE 804(b)(3) and the

Confrontation Clause. Id. at 157. After concluding that the statement was

admissible under MRE 804(b)(3), the Court considered whether admission of the

statement at issue violated the defendants’ right of confrontation. Id. at 162.

Following a discussion of Roberts and Idaho v Wright, 497 US 805, 819, 822-823;

110 S Ct 3139; 111 L Ed 2d 638 (1990) (applying Roberts), this Court set forth

guidelines for analyzing the reliability of a declarant’s out-of-court statement:

In evaluating whether a statement against penal interest that
inculpates a person in addition to the declarant bears sufficient
indicia of reliability to allow it to be admitted as substantive
evidence against the other person, courts must evaluate the
circumstances surrounding the making of the statement as well as its
content.

The presence of the following factors would favor admission
of such a statement: whether the statement was (1) voluntarily given,
(2) made contemporaneously with the events referenced, (3) made to
family, friends, colleagues, or confederates—that is, to someone to
whom the declarant would likely speak the truth, and (4) uttered
spontaneously at the initiation of the declarant and without
prompting or inquiry by the listener.

On the other hand, the presence of the following factors
would favor a finding of inadmissibility: whether the statement (1)
was made to law enforcement officers or at the prompting or inquiry
of the listener, (2) minimizes the role or responsibility of the
declarant or shifts blame to the accomplice, (3) was made to avenge

8

 the declarant or to curry favor, and (4) whether the declarant had a
motive to lie or distort the truth. [Poole, supra at 165.]

Applying these factors, the Poole Court concluded that the witness did not

prompt the declarant to make the statement or inquire about events referenced in

the statement. The statement did not minimize the declarant’s role in the

attempted robbery or his responsibility for the murder, and was not made in order

to shift blame to the defendants, avenge the declarant, or curry favor. Nor was

there any indication that the declarant had a motive to lie. On that basis, the Court

concluded that the statement and the circumstances under which it was made bore

sufficient indicia of reliability to satisfy the requirements of the Confrontation

Clause. Id. at 165-166.

The United States Supreme Court subsequently decided Crawford and

Davis, which in combination overruled Roberts in its entirety. In Crawford, the

Court overruled the Roberts “indicia of reliability” analysis where testimonial

statements are concerned. It held that, “[w]here testimonial evidence is at issue,”

“the Sixth Amendment demands what the common law required: unavailability

and a prior opportunity for cross-examination.” Crawford, supra at 68. The Court

declined to “spell out a comprehensive definition of ‘testimonial,’” but stated that

“[w]hatever else the term covers, it applies at a minimum to prior testimony at a

preliminary hearing, before a grand jury, or at a former trial; and to police

interrogations.” Id.

9

 In Davis, the United States Supreme Court revisited the question of the

application and requirements of the Confrontation Clause. It held that the clause

only restricts the admissibility of testimonial statements because “[o]nly

statements of this sort cause the declarant to be a ‘witness’ within the meaning of

the Confrontation Clause.” Id. at 821. While nontestimonial statements are

subject to traditional rules limiting the admissibility of hearsay, they do not

implicate the Confrontation Clause. Id. The Court considered the circumstances

under which statements made during a police investigation were testimonial. It

concluded that such “[s]tatements are nontestimonial when made in the course of

police interrogation under circumstances objectively indicating that the primary

purpose of the interrogation is to enable police assistance to meet an ongoing

emergency.” Id. at 822. “They are testimonial when the circumstances

objectively indicate that there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past events potentially relevant

to later criminal prosecution.” Id.

The overruling of Roberts by the United States Supreme Court in Crawford

and Davis undermines the analytical underpinnings of this Court’s decision in

Poole, which was entirely predicated on Roberts. Thus, the holding in Poole that

a codefendant’s nontestimonial statement is governed by both MRE 804(b)(3) and

the Confrontation Clause is no longer good law. Scarber’s statements to Ervin

were nontestimonial because they were made informally to an acquaintance, not

during a police interrogation or other formal proceeding, see Crawford, supra at

10

68, or under circumstances indicating that their “primary purpose” was to

“establish or prove past events potentially relevant to later criminal prosecution,”

Davis, supra at 822. Accordingly, the admissibility of the statements in this case

is governed solely by MRE 804(b)(3). This Court’s MRE 804(b)(3) analysis in

Poole remains valid, however, and provides the applicable standard for

determining the admissibility of a codefendant’s statement under the hearsay

exception for statements against a declarant’s penal interest. MRE 804(b)(3)

provides:

(b) Hearsay exceptions. The following are not excluded by
the hearsay rule if the declarant is unavailable as a witness:

***

(3) Statement 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 believing 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.

In Poole, this Court held:

[W]here, as here, the declarant’s inculpation of an accomplice
is made in the context of a narrative of events, at the declarant’s
initiative without any prompting or inquiry, that as a whole is clearly
against the declarant’s penal interest and as such is reliable, the
whole statement—including portions that inculpate another—is

11

 admissible as substantive evidence at trial pursuant to MRE
804(b)(3). [Poole, supra at 161.][6]

In this case, Scarber made his first statement, implicating himself, King,

and Taylor in the kidnapping, during a telephone conversation with Ervin on the

day of the kidnapping. During another call to Ervin the following day, apparently

shortly after Washington died, Scarber made the second statement implicating

King alone in the shooting of Washington. Scarber did not make any self-

inculpatory statements during this call. The Court of Appeals concluded that both

statements fell within the hearsay exception for statements against penal interest,

stating that “because the statements at issue were provided in a narrative, both

those portions that inculpated Scarber alone and those that inculpated his

6
Poole, supra at 161-162, explicitly relied on the commentary to FRE
804(b)(3), on which MRE 804(b)(3) is modeled. In Williamson v United
States, 512 US 594, 600-601; 114 S Ct 2431; 129 L Ed 2d 476 (1994), the
United States Supreme Court held that the federal rule “does not allow
admission of non-self-inculpatory statements, even if they are made within
a broader narrative that is generally self-inculpatory.” We note this
development in federal law, but believe that the portion of Poole pertaining
to MRE 804(b)(3) was correctly decided. See People v VanderVliet, 444
Mich 52, 60 n 7; 508 NW2d 114 (1993), amended on other grounds 445
Mich 1205 (1994) (noting that this Court finds commentary and caselaw on
the federal rules of evidence helpful and, in some cases, persuasive). See
also People v Beasley, 239 Mich App 548, 556; 609 NW2d 581 (2000). In
Poole, we also suggested that “carry over” portions of a declarant’s
statement—those that inculpate the defendant but are not directly against
the declarant’s interest—might be admissible under a “catch-all” hearsay
exception, which Michigan did not have at the time. Poole, supra at 159 n
11. Although the Michigan Rules of Evidence now contain such an
exception, MRE 803(4), we do not address whether the statements at issue

12

codefendants were admissible.” Taylor, supra at 5. Moreover, in discussing the

admissibility of the second statement under the Confrontation Clause, the Court

acknowledged that “it is arguable that defendant Scarber’s desire to disassociate

himself from the murder provided him with a motive to lie about the identity of

the individual (perhaps Scarber himself) who actually shot Washington.” Id. at 6.

The Court concluded, however, that the second statement was part of “a pattern of

impugning communications” volunteered spontaneously and without reservation

to a friend, not delivered to police, and “without any apparent secondary

motivation other than the desire to maintain the benefits of the relationship’s

confidence and trust—and according to the record, to brag.” Id. Accordingly, the

Court concluded that “Scarber’s statements to Ervin constituted a ‘narrative of

events,’ so the statements were admissible at trial in their entirety.” Id. Given

these determinations, we are satisfied that the Court of Appeals sufficiently

considered the issue of the statements’ admissibility under MRE 804(b)(3) and

Poole, supra at 161, and affirm on that basis.

here are admissible under that exception because we conclude that they are
admissible under MRE 804(b)(3).

13

 In all other respects, defendants’ applications for leave to appeal are denied,

because we are not persuaded that the questions presented should be reviewed by

this Court.

Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

14

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 135666

ERIC TAYLOR,

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 135683

ROBERT LEE KING,

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 135692

MARLON SCARBER,

Defendant-Appellant.

CAVANAGH, J. (concurring in part and dissenting in part).

I concur that People v Poole, 444 Mich 151; 506 NW2d 505 (1993), is no

longer controlling law to the extent it relied on Ohio v Roberts, 448 US 56; 100 S
Ct 2531; 65 L Ed 2d 597 (1980), to hold that the admissibility of a codefendant’s

nontestimonial hearsay statement is governed by the Confrontation Clause of the

Sixth Amendment of the United States Constitution. I dissent, however, because I

would grant leave to appeal to consider the viability of Poole’s interpretation of

MRE 804(b)(3) in light of Williamson v United States, 512 US 594, 600-601; 114

S Ct 2431; 129 L Ed 2d 476 (1994).

Under MRE 804(b)(3), a nontestimonial hearsay statement is not excluded

if the declarant is not available as a witness and the statement “so far tended to

subject the declarant to civil or criminal liability . . . that a reasonable person in the

declarant’s position would not have made the statement unless believing it to be

true.” Poole interpreted MRE 804(b)(3) to allow a declarant’s statements to be

admitted as a whole against a codefendant, even where some of the statements

inculpate the codefendant without inculpating the declarant, if made “in the

context of a narrative of events” that as a whole was against the declarant’s penal

interest. Poole, supra at 161. The Poole Court stated that it was “guided by the

comment of the Advisory Committee for the Federal Rules of Evidence

concerning FRE 804(b)(3), on which the Michigan rule is modeled.” Id.

As the majority opinion acknowledged in this case, one year after Poole

was decided, the United States Supreme Court repudiated the interpretation of the

federal commentary advanced in Poole. See Williamson, supra at 600-601.

Specifically, Williamson held that “the most faithful reading of Rule 804(b)(3) is

that it does not allow admission of non-self-inculpatory statements, even if they

2

are made within a broader narrative that is generally self-inculpatory. . . . [T]his is

especially true when the statement implicates someone else.” Williamson, supra

at 600-601. Williamson further stated that the Court did not need to look to the

federal commentary to interpret FRE 804(b)(3) because “the policy expressed in

[the rule]’s text points clearly enough in one direction that it outweighs whatever

force the Notes may have.” Id. at 602. Nevertheless, the Court considered the

portion of the federal commentary on which Poole relied, and found it “not

particularly clear” and inconsistent with other portions of the commentary, which

the Court found to support a contrary interpretation. Id.

This Court should grant leave to appeal to reconsider the validity of Poole

in light of Williamson. The majority opinion dismisses Williamson in a footnote

by tersely stating that “[w]e note this development in federal law, but believe that

the portion of Poole pertaining to MRE 804(b)(3) was correctly decided.” Ante at

12 n 6. While the United States Supreme Court’s interpretation of FRE 804(b)(3)

does not necessarily control how this Court interprets MRE 804(b)(3), I cannot

agree that Poole is so clearly and completely unaffected by Williamson that it is

appropriate for this Court to dismiss the issue in a footnote.

The United States Supreme Court’s express rejection of the interpretation

of the federal commentary on which Poole relies is significant. The majority

misses the point when it notes that this Court is not bound by the FRE by stating

that “this Court finds commentary and caselaw on the [FRE] helpful and, in some

cases, persuasive.” Ante at 12 n 6, citing People v VanderVliet, 444 Mich 52, 60 n

3

7; 508 NW2d 114 (1993). When this Court bases its interpretation of an MRE on

the federal commentary to the equivalent FRE, and the United States Supreme

Court then soundly rejects that understanding of the FRE, it merits greater

attention from this Court than dismissal in a footnote. It is true that we are not

bound by the FRE because we find commentary and caselaw for the FRE “only”

helpful and sometimes persuasive. But, because we do find commentary and

caselaw for the FRE helpful and sometimes persuasive, it is worth evaluating in a

meaningful, substantive manner whether Poole’s interpretation of MRE 804(b)(3)

was correct irrespective of Williamson’s rejection of Poole’s reasoning.1 This

jurisprudentially significant issue merits, at a minimum, granting leave to appeal.

Further, as stated in my dissent in Poole, I continue to think that it is more

consistent with the text of MRE 804(b)(3) to exclude the portions of a declarant’s

statements that implicate a codefendant but are not against the declarant’s penal

interest. See Poole, supra at 166-169 (Cavanagh, J., dissenting). The exception to

the general rule against hearsay in MRE 804(b)(3) allows admission of statements

against interest only insofar as a “reasonable person in the declarant’s position

would not have made the statement unless believing it to be true.” As stated in

Williamson, supra at 599-600:

Rule 804(b)(3) is founded on the commonsense notion that
reasonable people, even reasonable people who are not especially
1
In lieu of conducting a meaningful, substantive evaluation of the validity
of Poole after Williamson, the majority opinion “notes” Williamson and affirms
Poole without analysis and seemingly without genuine consideration.

4

 honest, tend not to make self-inculpatory statements unless they
believe them to be true. . . . The fact that a person is making a
broadly self-inculpatory confession does not make more credible the
confession’s non-self-inculpatory parts. One of the most effective
ways to lie is to mix falsehood with truth, especially truth that seems
particularly persuasive because of its self-inculpatory nature.

Poole’s interpretation of MRE 804(b)(3) is an imprecise proxy for when a

“reasonable person in the declarant’s position would not have made the statement

unless believing it to be true.” MRE 804(b)(3). Poole incorrectly assumed that

any statement made in the context of a narrative of events that as a whole is

against the declarant’s penal interest is one that a reasonable person in the

declarant’s position would not have made unless it were true. Williamson’s

interpretation more accurately reflects the rule’s text and the reality that the

underlying justification for inferring that self-inculpatory statements are true does

not necessarily extend to contemporaneous non-self-inculpatory statements. This

is especially true when, as in this case, the non-self-inculpatory statements

exculpate the declarant and inculpate a codefendant.2

This Court should grant leave to appeal to reconsider Poole in light of

Williamson because Williamson rejected the interpretation of the federal

2
To the extent that Scarber’s statements in the first phone call implicated
both himself and his codefendants, a court could infer that a reasonable person
would not have made the statements unless they were true. In contrast, Scarber’s
statements in the second telephone call implicated only King. It would be in
Scarber’s interest to exculpate himself from the shooting by inculpating only King
in the second call; therefore, a “reasonable person” might have made those
statements even if they were not true. This demonstrates why Williamson’s

5

commentary on which Poole was based. Further, the facts of this case illustrate

the flaws in Poole’s interpretation of MRE 804(b)(3) as compared to Williamson’s

interpretation.

Michael F. Cavanagh
Marilyn Kelly

application of MRE 804(b)(3) reaches a result more precisely connected to the
rule’s text than Poole’s interpretation does.

6