Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 9, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121864
ALLAN WASHINGTON,
Defendant-Appellee.
________________________________
PER CURIAM
Defendant was convicted of armed robbery and assault with
intent to do great bodily harm less than murder. The Court of
Appeals reversed the convictions because the accomplice’s
statement, in which the accomplice identified himself as the
shooter, was improperly admitted against defendant. 251 Mich
App 520; 650 NW2d 708 (2002). It also found that the trial
court abused its discretion in denying defense counsel the
opportunity to conduct voir dire of a juror in mid-trial. We
reverse the judgment of the Court of Appeals and reinstate the
verdict.
I
On May 8, 1998, two men robbed James Turner while he was
using a public pay phone at a Detroit gas station. One of the
men pulled a gun, pointed it at Turner’s head, and demanded
money. The other went through Turner’s pockets and took his
watch and pager. When Turner told his assailants that he
didn’t have anything else of value, he was shot in the back.
A few minutes later, two police officers saw a car
containing defendant and Daniel Mathis drive into an alley
behind a gas station that was approximately a mile from the
scene of the robbery. The officers decided to investigate
because the area was known for drug sales and prostitution.
Defendant was uncooperative with the officers and, following
a scuffle, he was handcuffed pending further investigation.
As the officers returned to talk to Mathis, who had remained
in the car, the report of the Turner robbery and a description
of his assailants were broadcast over the police radio. When
one of the officers asked to have the description repeated,
Mathis blurted out, “I did it——I’m the shooter.” Turner
identified defendant in a lineup as one of his assailants. He
failed to identify Mathis.
Defendant and Mathis were charged with armed robbery,
MCL 750.529, and assault with intent to murder, MCL 750.83.
They were tried separately. On the morning of defendant’s
trial, the issue whether Mathis’s statement was admissible was
raised. Without elaboration, the trial court decided that the
2
statement would be allowed into evidence. Defendant was
convicted of armed robbery and assault with intent to do great
bodily harm less than murder, MCL 750.84.
The Court of Appeals reversed defendant’s convictions.
It concluded that Mathis’s statement was improperly admitted
as a statement against penal interest because it was not
reliable. According to assertions made by defense counsel,
Mathis was mentally ill.1 In addition, the panel found that
the trial court should have allowed defense counsel to
question a juror in mid-trial.
II
The decision to admit evidence is reviewed for an abuse
of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d
673 (1998). When the decision regarding the admission of
evidence involves a preliminary question of law, such as
whether a statute or rule of evidence precludes admissibility
of the evidence, the issue is reviewed de novo. People v
Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
1
Specifically, the Court of Appeals majority held:
A review of the record reveals an assertion by
defense counsel that codefendant Mathis suffered
from mental illness and that he had a history of
psychiatric and psychological treatment. Certainly,
an inculpatory statement made by a mentally ill
codefendant . . . is not a statement that contains
“particularized guarantees of trustworthiness”
sufficient to introduce the statement as
substantive evidence against defendant without the
opportunity for cross-examination. [251 Mich App
527.]
3
III
Declarations against penal interest constitute an
exception to the general proscription against hearsay provided
by MRE 802. MRE 804(b)(3), in pertinent part, defines a
declaration against penal interest as
[a] statement which was at the time of its making
. . . 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.
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.
The exception is based on the assumption that people do not
generally make statements about themselves that are damaging
unless they are true. People v Poole, 444 Mich 151, 161; 506
NW2d 505 (1993), citing the comment of the Advisory Committee
on Federal Rules of Evidence relating to FRE 804(B)(3).
Mathis’s statement is against his penal interest and,
therefore, is admissible.
The inquiry, however, does not stop there because the
Confrontation Clauses of the federal and state constitutions
are implicated. US Const, Am VI; Const 1963, art 1, § 20.
The admission of Mathis’s statement as substantive evidence
does not violate the Confrontation Clause if the prosecution
can establish that Mathis was unavailable as a witness and
that his statement bore adequate indicia of reliability.
Alternatively, the Confrontation Clause is not violated if the
4
statement fell within a firmly rooted hearsay exception.
Poole, supra at 163.
Some jurisdictions have held that the hearsay exception
for statements against penal interest is a firmly rooted
hearsay exception. See, e.g., United States v McKeeve, 131
F3d 1, 9 (CA 1, 1997), People v Wilson, 17 Cal App 4th 271,
278; 21 Cal Rptr 2d 420 (1993), and State v Tucker, 109 Or App
519, 526; 820 P2d 834 (1991).2 However, we need not decide
that issue because Mathis had been charged with the crimes and
was considered unavailable because it was expected that he
would assert his Fifth Amendment right not to testify.
Additionally, Mathis’s statement bears adequate indicia of
reliability.
In Poole, supra at 165, we instructed:
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
2
We acknowledge, without approving, Neuman v Rivers, 125
F3d 315 (CA 6, 1997), a case from Michigan, concluding that
the exception is firmly rooted.
5
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
statement at issue. See, generally, United States
v Layton, 855 F2d 1388, 1404-1406 (CA 9, 1988).
While the foregoing factors are not exclusive, and
the presence or absence of a particular factor is
not decisive, the totality of the circumstances
must indicate that the statement is sufficiently
reliable to allow its admission as substantive
evidence although the defendant is unable to cross
examine the declarant.
When those precepts are applied to the facts at bar, we
find that Mathis’s statement to the police officers bears
sufficient indicia of reliability to satisfy Confrontation
Clause concerns and to allow its admission as substantive
evidence at trial. The statement was voluntarily given and
made contemporaneously with the events referenced. It was
uttered spontaneously by Mathis and without prompting or
inquiry by the officers. In fact, the officers had just heard
of the robbery when Mathis made the statement. Mathis did not
minimize his role in the crimes, admitting that he shot the
victim, and he had no motive to lie or distort the truth. In
addition, there is nothing in the statement indicating that
the declarant was attempting to curry favor at the time he
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made the statement.
We agree with the dissenting judge of the Court of
Appeals that there was no record evidence establishing that
Mathis “suffered from mental illness.” The unsubstantiated
assertions of defense counsel are not substantive evidence and
cannot be used to undermine the indicia of reliability
contained in the accomplice’s statement.
IV
We also find that the trial court did not abuse its
discretion in denying defense counsel’s request to voir dire
a juror during the trial.
On the third day of trial, after deliberations had begun,
defense counsel reported that a juror had been seen talking
with a trial spectator who counsel believed was familiar with
the victim or the victim’s family. The trial court summoned
the juror and, in response to the court’s direct questions,
the juror stated that she had not discussed the case with her
friend. She affirmed that her friendship would not influence
her ability to make a fair decision in the case. The trial
court did not allow defense counsel to make further inquiry of
the juror.
“The trial court has discretion in both the scope and the
conduct of voir dire.” People v Tyburski, 445 Mich 606, 618
619; 518 NW2d 441 (1994). A defendant does not have a right
to have counsel conduct the voir dire. Id. However, where
7
the trial court, rather than the attorneys, conducts voir
dire, the court abuses its discretion if it does not
adequately question jurors regarding potential bias so that
challenges for cause can be intelligently exercised.
Fedorinchik v Stewart, 289 Mich 436, 438-439; 286 NW 673
(1939). Here, the trial court more than adequately questioned
the juror about the allegations of grounds for her possible
disqualification. There was no need for defense counsel to
interrogate her further.
A defendant is entitled to relief from a verdict because
of disallowance of voir dire only if he can prove that he was
actually prejudiced by the presence of the juror in question
or that the juror was properly excusable for cause. Bynum v
The ESAB Group, Inc, 467 Mich 280, 286; 651 NW2d 383(2002);
People v Hannum, 362 Mich 660, 666-667; 107 NW2d 894 (1961);
People v DeHaven, 321 Mich 327, 330-334; 32 NW2d 468 (1948).
Defendant has not established either criterion in this case.
V
We conclude that the accomplice’s statement contains
sufficient “particularized guarantees of trustworthiness,”
considering the totality of the circumstances surrounding its
utterance, to justify its admission. Poole, supra at 164. We
also conclude that the trial court did not abuse its
discretion when it denied defense counsel’s request to conduct
voir dire of a juror. Accordingly, we reverse the judgment of
8
the Court of Appeals and reinstate the judgment of the circuit
court. MCR 7.302(F)(1).
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
9
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. 121864
ALLAN WASHINGTON,
Defendant-Appellee.
___________________________________
KELLY, J. (dissenting).
I disagree that the indicia of reliability surrounding
codefendant's statement were sufficient to support admission
of the statement into evidence in defiance of the
confrontation clauses of the state and federal constitutions.
Rather, I agree with the Court of Appeals majority that the
circuit court should not have admitted the statement. The
majority, Judge Kirsten Frank Kelly and Judge Harold Hood,
aptly stated:
A review of the record reveals an assertion by
defense counsel that codefendant Mathis suffered
from mental illness and that he had a history of
psychiatric and psychological treatment.
Certainly, an inculpatory statement made by a
mentally ill codefendant that tacitly inculpates
defendant as his accomplice is not a statement that
contains "particularized guarantees of
trustworthiness" sufficient to introduce the
statement as substantive evidence against defendant
without the opportunity for cross-examination.
Permitting codefendant's statement to come in as
substantive evidence against defendant, while
depriving defendant the opportunity to challenge
that statement through the adversarial process,
violates the bedrock principles underlying the
Confrontation Clause itself. Indeed, "'the
Confrontation Clause is generally satisfied when
the defense is given a full and fair opportunity to
probe and expose . . . infirmities through cross
examination, thereby calling to the attention of
the factfinder the reasons for giving scant weight
to the witness' testimony.'" [People v Gearns, 457
Mich 170, 186; 577 NW2d 422 (1998)] quoting
Delaware v Fensterer, 474 US 15, 22; 106 S Ct 292;
88 L Ed 2d 15 (1985) (emphasis omitted).
The trial court's admission of codefendant's
inculpatory statement as substantive evidence
against defendant without providing defendant any
opportunity to challenge the statement through
cross-examination is not harmless error. Based on
the evidence presented at trial, it is more
probable than not that a different outcome would
have resulted without the admission of
codefendant's statement.
On appeal, the prosecution asserts that
defendant ran from the police officers, but
neither the testimony of defendant nor the officers
supports this assertion. Also, the prosecution
contends that defendant tried to drive away.
However, the testimony of the officers actually
indicates that the car was never started and that
they were not even sure if defendant attempted to
insert the keys into the ignition. Furthermore,
defendant was alleged to have stolen $71, but, when
apprehended, he had over $500 on his person.
Neither he nor codefendant had a gun, the stolen
pager, the stolen watch, and these items were not
found in the car in which they were traveling. The
fact that defendant was found within minutes of the
robbery within one mile of the crime scene does not
2
tend to establish his guilt any more than any other
person who lives in the area and was also at the
gas station at the same time. Finally, the
description the victim gave to the police was
"quite vague" and did not match either the
defendant or codefendant.
Although we acknowledge the victim identified
defendant in a lineup, we do not believe this,
standing alone, clothes the codefendant's statement
with "adequate indicia of reliability." The lineup
was conducted ten days after the robbery and after
the victim had been sedated and medicated in the
hospital for five days. The victim identified the
defendant as the man who shot him, but defendant
was tried as the accomplice of the shooter. In
addition, the victim did not identify the
codefendant.
As we noted People v Spinks, 206 Mich App 488,
493; 522 NW2d 875 (1994), quoting People v Banks,
438 Mich 408, 430; 475 NW2d 769 (1991), if the
"'"minds of an average jury" would have found the
prosecution's case "significantly less persuasive"
had the statement of the [accomplice] been
excluded,'" then the error is not harmless.
Considering that codefendant's statement is the
only concrete evidence linking defendant to the
crime for which he now stands convicted, we find
that had the statement been properly excluded, the
prosecution's case would have been significantly
less persuasive in "the minds of an average jury".
Accordingly, we find that the trial court abused
its discretion by admitting the statement. [251
Mich App 520, 527-529; 650 NW2d 708 (2002).]
For the reasons expressed by the Court of Appeals
majority, I would hold the codefendant's statement
inadmissible. Accordingly, I would affirm the decision of the
Court of Appeals and allow the case to be remanded for a new
trial.
Marilyn Kelly
3