Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED DECEMBER 7, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 117837
ROBERT RILEY,
Defendant-Appellee.
________________________________
PER CURIAM
On the ground that the defendant’s conviction for first
degree murder was based on inadmissible testimony, the Court
of Appeals reversed the conviction, and remanded for entry of
a judgment of conviction for a lesser offense. We reverse the
judgment of the Court of Appeals and remand the case to that
Court for consideration of the defendant’s other appellate
issues. The defendant waived any issue relating to the now
disputed testimony.
I
A man named Mark Seaton was murdered in June 1997.
Defendant Robert Riley acknowledged being present at the scene
near the time of the death, and he later was observed in the
act of stealing property from the victim’s apartment. Also
involved in these events was a David Ware, whose whereabouts
are unknown.
The defendant was charged with first-degree felony
murder. MCL 750.316. The underlying felony was “the
perpetration or attempted perpetration of a larceny.”
After the prosecution rested, the defense called Mary
McKinney as its only witness. Ms. McKinney is the mother of
Mr. Ware. She had no personal knowledge concerning the death
of Mr. Seaton, but she had told the police of incriminating
statements made to her by her son. Her second-hand account to
the police apparently included nothing concerning the
defendant’s involvement in the killing. The evident purpose
of calling Ms. McKinney as a defense witness was to bolster
the defense position that Mr. Ware alone was guilty of the
murder.
Unfortunately for the defendant, Ms. McKinney’s testimony
at trial was more detailed than her rendition to the police
had been. In telling the jury about her son’s statements, she
included details concerning the defendant’s active
participation in the binding and subduing of the decedent.
Obviously, this was incriminating evidence against the
defendant.
2
After Ms. McKinney completed her testimony and the jury
was excused, defense counsel stated:
Some information from-- --in regards to my
conversation with Mr. Riley in reference to the
witness that just testified, Ms. McKinney. I
informed Mr. Riley this morning that Ms. McKinney
was here, present, ready and willing to testify. I
also advised him that there was a down side of
calling her to the witness stand to testify,
because this was eight months after the incident.
That even though she gave information to the police
back in July that incriminated her son, she could
conceivably incriminate Mr. Riley if he test-- --if
she testified today. He said that he understood
that possibility. Was willing to take that risk,
and advised me that he wanted her to testify.
The jury convicted the defendant as charged, and the
circuit court imposed the mandatory sentence of life
imprisonment.
The Court of Appeals reversed the defendant’s conviction,
and “remanded for entry of judgment of conviction of larceny
in a building and for resentencing thereon.”1
The prosecuting attorney has applied to this Court for
leave to appeal.
II
The Court of Appeals found Ms. McKinney’s testimony to
have been inadmissible. It then reversed on the ground that,
without her testimony, there was insufficient evidence to
convict the defendant of first-degree murder.
The Court of Appeals approached this as a Confrontation
1
Unpublished opinion per curiam, issued July 21, 2000,
reh den September 20, 2000 (Docket No. 211368).
3
Clause2 case because the defendant was convicted on the basis
of hearsay statements originally made by the nontestifying
Mr. Ware. There having been no objection to the testimony,
the Court of Appeals treated this as a case of unpreserved
constitutional error, which is reviewed to determine whether
“plain error affected substantial rights.” People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999). Applying the
standards set forth in People v Poole, 444 Mich 151, 165; 506
NW2d 505 (1993), the Court concluded:
After reviewing all of the circumstances
surrounding the portion of the statement
inculpating defendant, we are convinced that it
lacked sufficient indicia of reliability to provide
the jury with a satisfactory basis for evaluating
the truth of the statement. The admission of the
statement violated defendant’s Confrontation Clause
rights. There was no other evidence to corroborate
that portion of McKinney’s testimony. McKinney’s
own corrected written statement did not include the
inculpatory hearsay. Absent McKinney’s testimony,
there was insufficient evidence to convict
defendant of first-degree felony murder.
Defendant’s conviction on that charge is therefore
reversed. However, since there was sufficient
evidence to support a finding of guilty on the
underlying felony, we remand for entry of judgment
of a conviction for larceny from a building.
The Court added, “In light of our ruling, we decline to
address defendant’s other issues raised on appeal.”3
2
US Const, Am VI; Const 1963, art I, § 20.
3
In a concurring opinion, Judge HOLBROOK agreed with the
plurality of justices who said in Lilly v Virginia, 527 US
116, 134; 119 S Ct 1887; 144 L Ed 2d 117 (1999) (opinion of
Stevens, J.), that “accomplices’ confessions that inculpate a
criminal defendant are not within a firmly rooted exception to
the hearsay rule as that concept has been defined in our
Confrontation Clause jurisprudence.”
4
III
The Court of Appeals focus on the Confrontation Clause
issue fails to heed this Court’s admonition that
constitutional issues should not be addressed where the case
may be decided on nonconstitutional grounds. Or, as we said
in Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444
Mich 211, 234; 507 NW2d 422 (1993), “there exists a general
presumption by this Court that we will not reach
constitutional issues that are not necessary to resolve a
case.” Even if we assume that a constitutional Confrontation
Clause issue is presented, it is not necessary to address that
issue in order to resolve this case.
IV
As indicated, the Court of Appeals treated this as a case
involving “unpreserved” error, since the defendant “did not
object to the testimony at trial.” However, the statement
that the defendant “did not object” falls short of capturing
the true state of affairs--
--Ms. McKinney was called by the
defense for the specific purpose of giving hearsay testimony
about what she had been told by an accomplice to the crime.
In this instance, therefore, the defendant’s right to a
trial free of such hearsay testimony was not merely
unasserted. It was, for all practical purposes, affirmatively
waived. The defendant himself brought Ms. McKinney to the
witness stand, though the record is barren of any suggestion
that she would be able to provide first-hand information.
The potential that her testimony would harm the
5
defendant’s case also was knowingly waived. As indicated
above, defense counsel says she warned the defendant that
Ms. McKinney might incriminate him, but the defendant said
that he understood, and was willing to take that risk. He
asked that Ms. McKinney testify, nonetheless.
In evaluating this matter, we examine principles outlined
in People v Carter, 462 Mich 206, 214, 215; 612 NW2d 144
(2000):
The rule that issues for appeal must be
preserved in the record by notation of objection is
a sound one. People v Carines, 460 Mich 750,
762-765; 597 NW2d 130 (1999). Counsel may not
harbor error as an appellate parachute. People v
Pollick, 448 Mich 376, 387; 531 NW2d 159 (1995),
quoting People v Hardin, 421 Mich 296, 322-323; 365
NW2d 101 (1984). "Deviation from a legal rule is
'error' unless the rule has been waived." United
States v Olano, 507 US 725, 732-733; 113 S Ct 1770;
123 L Ed 2d 508 (1993).
* * *
Waiver has been defined as "the 'intentional
relinquishment or abandonment of a known right.' "
Carines, supra at 762[-763], n 7, quoting Olano,
supra at 733. It differs from forfeiture, which
has been explained as "the failure to make the
timely assertion of a right." Id. "One who waives
his rights under a rule may not then seek appellate
review of a claimed deprivation of those rights,
for his waiver has extinguished any error." United
States v Griffin, 84 F3d 912, 924 (CA 7, 1996),
citing Olano, supra at 733-734. Mere forfeiture,
on the other hand, does not extinguish an "error."
Olano, supra at 733; Griffin, supra at 924-926.
The distinction between forfeiture and waiver is
essential to a sound resolution of the present case.
Forfeited error remains subject to appellate review in limited
circumstances. Carines, 460 Mich 774. However, apparent
error that has been waived is “extinguished.” Carter, 462
6
Mich 215-216. When a court proceeds in a manner acceptable to
all parties, it is not resolving a disputed point and thus
does not ordinarily render a ruling susceptible to reversal.
As we said more succinctly in Carter:
Because defendant waived, as opposed to
forfeited, his rights under the rule, there is no
“error” to review. [462 Mich 219.]
For these reasons, the circuit court did not err in
admitting the testimony of Ms. McKinney.4 Accordingly, we
reverse the judgment of the Court of Appeals, and remand this
case to the Court of Appeals for consideration of the other
issues raised by the defendant in that court. MCR
7.302(F)(1).
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
4
On this record, we thus have no occasion to determine
whether a defendant’s rights under the Confrontation Clause
can be violated by the admission of testimony from a witness
called by the defense for the purpose of giving hearsay
testimony.
7
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 117837
ROBERT RILEY,
Defendant-Appellee.
___________________________________
KELLY, J. (dissenting).
I would grant leave to appeal rather than decide this
case summarily. The per curiam opinion makes a superficial
analysis, glossing over the difficult and complex issue
underlying the prosecutor's appeal.
The prosecution raises the issue of waiver. It does not
challenge the Court of Appeals conclusion that McKinney's
changed account of Ware's statement was inadmissible hearsay
and that, without it, there was insufficient evidence of
first-degree murder.1
1
Defendant was convicted of first-degree felony murder
(continued...)
Waiver requires some affirmative act of approval, whereas
forfeiture is the failure to object. People v Carter, 462
Mich 206, 215; 612 NW2d 144 (2000), quoting People v Carines,
460 Mich 750, 762-763, n 7; 597 NW2d 130 (1999), quoting
United States v Olano, 507 US 725, 733; 113 S Ct 1770; 123 L
Ed 2d 508 (1993). The majority characterizes the fact that
defendant called McKinney to the stand as an affirmative act
that effectively waived appellate review of any of her hearsay
testimony. In so doing, it denies defendant the right to be
heard on her allegation of a Confrontation Clause violation.
I cannot agree with the majority's analysis. I question
whether one can waive review of a witness' testimony that had,
when the witness was called, no more than a potential for
harming one's case.
It should be noted that the majority does not advance the
position that a party waives objection to any inadmissible
evidence arising from the party's own witness. The holding is
narrower than that. It states that a party waives the right
to object to hearsay when it calls a witness for the purpose
of eliciting hearsay testimony. In making that rule, it
oversimplifies the testimony at issue and ignores the
1
(...continued)
as an aider and abettor. It was and is without dispute that
Ware killed the victim while Ware and defendant were stealing
the victim's property. The only question was whether
defendant assisted him in the murder in some manner.
2
following questions: Can a defendant's own witness ever utter
hearsay testimony subject to a Confrontation Clause challenge?
Does the fact that it was the defendant who called the witness
become irrelevant when the witness makes hearsay statements
prejudicial to the defense that were not part of the witness'
earlier testimony?
The concept of waiver is based on the premise that a
defendant should not be permitted to harbor error as an
appellate parachute. See Carter, supra, 462 Mich 214. I
agree that this defendant would be harboring error if he had
elicited inadmissible hearsay testimony from his own witness
only to challenge it on hearsay grounds. But that is not what
occurred in this case.
Defendant called McKinney to testify, knowing that she
had told the police that Ware admitted to her that it was he
who had murdered the victim. McKinney had reviewed her own
written statement to that effect and made corrections to it.
The statement contained no indication that defendant had
participated in the killing at all.
A review of the trial transcript shows that McKinney's
testimony was admitted at trial over the prosecutor's
objection. The trial court admitted it under the statement
against interest exception to the general rule that hearsay is
inadmissible. MRE 804(b)(3).
3
McKinney's testimony at trial was not altogether clear,
particularly when she used pronouns in place of proper names.
She initially stated that Ware had said that, while he was
struggling with the victim, he told defendant to retrieve some
tape from a nearby table. Defendant admitted as much in his
own statement to the police, but denied giving the tape to
Ware or using it to subdue the victim. It was only on cross
examination that McKinney stated that Ware told her that
defendant "helped subdue" the victim using the tape. When
defense counsel challenged McKinney with her written statement
to the police, she testified that some details were not
included there. She eventually stated, on re-cross
examination, "he did say that he bound his hands."
The fact that it was defendant who called McKinney to
testify does not render the part of her testimony that is at
issue more reliable.2 A statement against a declarant's penal
interest must be evaluated case by case to determine whether
2
The majority puts much emphasis on the fact that
defendant was aware of the risk that McKinney would say
something to incriminate him. To the extent that it is true
in this case, it is true whenever a witness is called to
testify. One can never be certain what a witness will say on
the stand. The best one can hope for is that it will be
consistent with the witness' past statements on the same
matter. In this case, defendant had read McKinney's past
statement to the police. A defendant should not be deemed to
have waived objection to otherwise inadmissible testimony
merely because he knew the witness might testify in a manner
inconsistent with an earlier statement.
4
it evidences adequate indicia of reliability to satisfy
Confrontation Clause concerns. People v Poole, 444 Mich 151,
163-164; 506 NW2d 505 (1993); People v Schutte, 240 Mich App
713, 718; 613 NW2d 370 (2000). Defendant argued, and the
Court of Appeals agreed, that the portion of Ware's statement
that McKinney had given the police was significantly more
reliable than his statement as recounted by McKinney at trial.
This Court has outlined a nonexclusive list of factors
that favor and disfavor the admission of a statement against
interest. "[C]ourts must evaluate the circumstances
surrounding the making of the statement as well as its
content." Poole, supra, 444 Mich 165.
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 the
declarant or to curry favor, and (4) whether the
declarant had a motive to lie or distort the truth.
Courts should also consider any other
circumstance bearing on the reliability of the
5
statement at issue. [Id.]
In light of those factors and after reviewing "all the
circumstances surrounding the portion of the statement
inculpating defendant," the Court of Appeals was "convinced
that [the statement] lacked sufficient indicia of reliability
to provide the jury with a satisfactory basis for evaluating
the truth of the statement." However, the Court failed to set
forth a detailed analysis. It is unclear what made the Court
of Appeals distinguish one part of the statement from the
other. Moreover, we do not know whether the Court evaluated
the reliability of Ware's out-of-court statement or whether it
focused on McKinney's testimony, itself.
The noninculpatory portion of a declarant's statement is
admissible when given as part of a generally inculpatory
narrative. Poole, supra, 444 Mich 161. However, that rule
must succumb to a finding that one portion of the statement is
significantly less reliable than another. See id. at
163-164; Schutte, supra, 240 Mich App 718. I believe that
such a reliability distinction is sufficient to withstand the
prosecution's waiver argument. By calling McKinney and
eliciting reliable testimony admissible under the hearsay
exception, defendant did not waive the right to challenge the
unreliable portion of her testimony.
It is difficult to draw a distinction between the
6
reliability of the parts of the statement that were
exculpatory and the reliability of those inculpatory to
defendant. If the distinction can be made, I would agree with
the Court of Appeals that the hearsay issue should be reviewed
as an unpreserved, constitutional error. However, I am
troubled by the possibility that the Court of Appeals applied
the Poole reliability factors to McKinney, rather than to
Ware's out-of-court statement.
Defendant argued before the Court of Appeals that it was
appropriate to consider the circumstances surrounding
McKinney's statement. The Court apparently considered those
circumstances as an indication that Ware's statement was not
reliable.
The hearsay rule is grounded on a defendant's right to
confront witnesses against him. See People v Meredith, 459
Mich 62, 71; 586 NW2d 538 (1998); Poole, supra, 444 Mich 162
163; see also Ohio v Roberts, 448 US 56, 65; 100 S Ct 2531; 65
L Ed 2d 597 (1980). Whether the Court of Appeals acted
properly in finding this hearsay challenge an unpreserved, not
waived, Confrontation Clause issue depends on the validity of
its distinction between the two parts of McKinney's testimony.
We review the Court of Appeals decision in this case for
clear error. MCR 7.302 (B)(5); see also People v Stafford,
434 Mich 125, 134; 450 NW2d 559 (1990). Without full briefing
7
and oral argument on leave granted, we cannot adequately
analyze this complex issue and determine whether the Court of
Appeals decision was clearly erroneous. Therefore, the case
is inappropriate for per curiam resolution. I would grant
leave to appeal.
CAVANAGH , J., concurred with KELLY , J.
8