People v. Schutte

• Decision Date: 11 July 2000
• Docket Number: Docket No. 213259.
• Citation: 240 Mich. App. 713,613 N.W.2d 370
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Frederick SCHUTTE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

613 N.W.2d 370

240 Mich. App. 713

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Frederick SCHUTTE, Defendant-Appellant.

Docket No. 213259.

Court of Appeals of Michigan.

Submitted March 14, 2000, at Grand Rapids.

Decided May 2, 2000, at 9:00 a.m.

Released for Publication July 11, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Andrea Krause, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the people.

State Appellate Defender (by Deborah Winfrey Keene), for the defendant.

Before: GAGE, P.J., and METER and OWENS, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(a); MSA 28.788(2)(1)(a), and was sentenced to ten to twenty-five years' imprisonment. According to defendant's seven-year-old son, defendant and Robert Stray performed fellatio on him. Defendant appeals as of right. We affirm.

Defendant first argues on appeal that a hearsay statement made by Stray that inculpated defendant should not have been admitted as a declaration against Stray's interest. We disagree. The admissibility of evidence is reviewed for an abuse of discretion. People v. Bahoda, 448 Mich. 261, 289, 531 N.W.2d 659 (1995). An abuse of discretion is found when an unprejudiced person, considering the facts on which the trial court acted, would conclude that there was no justification or excuse for the ruling made. People v. Ullah, 216 Mich.App. 669, 673, 550 N.W.2d 568 (1996).

The prosecution offered Stray's hearsay statements under MRE 804(b)(3) as statements made against the declarant's own penal interest.¹People v. Poole, 444 Mich. 151, 159, 506 N.W.2d 505 (1993). Our Supreme Court in People v. Barrera, 451 Mich. 261, 268, 547 N.W.2d 280 (1996), stated that review of the admission of a statement against penal interest presents three subissues: "(1) whether the declarant was unavailable, (2) whether the statement was against penal interest, [and] (3) whether a reasonable person in the declarant's position would have believed the statement to be true...."²

The first requirement for admission of Stray's statement is satisfied because it is undisputed that Stray was properly unavailable where he invoked his Fifth Amendment rights not to testify. Barrera, supra at 268, 547 N.W.2d 280; People v. Williams, 136 Mich.App. 682, 686, 357 N.W.2d 741 (1984). Further, the statement clearly was against Stray's penal interest because Stray admitted that he committed fellatio on defendant's son, thereby exposing himself to prosecution for first-degree criminal sexual conduct.³ MCL 750.520b(1)(a); MSA 28.788(2)(1)(a); Barrera, supra at 271-272, 547 N.W.2d 280. Finally, a reasonable person speaking to the police would clearly recognize the incriminating nature of an admission that he committed a reprehensible sexual act on a seven-year-old boy. Id. at 272, 547 N.W.2d 280. Therefore, the trial court properly concluded that Stray's statement was admissible pursuant to MRE 804(b)(3) against Stray. However, the question remains whether the statement was properly admitted against defendant.

Generally, we presume that a codefendant's inculpatory hearsay statement against another codefendant is unreliable and therefore inadmissible under MRE 804(b)(3). People v. Richardson, 204 Mich.App. 71, 75, 514 N.W.2d 503 (1994). The entire hearsay statement of an accomplice may be admissible against an accused, however, where the declarant's inculpatory statement is made in narrative form, by his own initiative, and is reliable because as a whole it is against the declarant's own interest. Poole, supra at 161, 506 N.W.2d 505.

The admission of Stray's statement must not violate defendant's right to confrontation under the United States and Michigan Constitutions. U.S. Const., Am. VI; Const. 1963, art. 1, § 20.⁴ Admission of a hearsay statement by an unavailable declarant will not violate a defendant's right to confront his accusers if the statement falls within a firmly rooted hearsay exception or if it bears adequate indicia of reliability. Poole, supra at 162-163, 506 N.W.2d 505, citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Because Michigan has not recognized a declaration against interest as falling within a "firmly rooted hearsay exception," Richardson, supra at 77, 514 N.W.2d 503, Stray's statement must be examined to determine if it contains sufficient indicia of reliability. Poole, supra at 163, 506 N.W.2d 505.

This Court is charged with looking at each case on an individual basis for sufficient indicia of the reliability of the declarant's statement. Id. at 163-164, 506 N.W.2d 505. "The indicia of reliability necessary to establish that a hearsay statement has particularized guarantees of trustworthiness sufficient to satisfy Confrontation Clause concerns must exist by virtue of the inherent trustworthiness of the statement and may not be established by extrinsic, corroborative evidence." Id. at 164, 506 N.W.2d 505. The Court in Poole, supra at 165, 506 N.W.2d 505, stated:

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 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. 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. [Citation omitted.]

The totality of the circumstances in this case clearly indicates that the statement possessed sufficient indicia of reliability to be admitted against defendant despite his inability to cross-examine Stray. Id. at 165, 506 N.W.2d 505. Although Stray made his statement to a police officer, he appeared at the police station voluntarily and agreed to be questioned. Moreover, he made his statement after defendant told Stray that he (defendant) had told the truth and urged Stray to tell the truth, and after the police officer informed him that he was not in custody and was free to leave. As the trial court concluded, Stray's statement was given in a narrative form after the officer stated that defendant had told him the truth and that he now wanted "to hear [Stray's] side of it." Although specific follow-up questions were asked, Stray declined to further inculpate defendant and stated that he did not know if defendant digitally penetrated the victim's rectum. Stray did not shift the blame solely onto defendant; he admitted that he also engaged in fellatio with the victim. We conclude that those portions of the statement pertaining to defendant need not have been severed because the whole statement was against Stray's penal interest and there were sufficient indicia of reliability "to provide the trier of fact a satisfactory basis for evaluating the truth of the statement" and thus to satisfy Confrontation Clause concerns. Id. at 164, 506 N.W.2d 505.

Defendant next argues that the prosecutor improperly bolstered the testimony of the victim and the victim's mother by asking them if they were telling the truth, and that this misconduct denied him due process and a fair trial. During trial, defendant failed to object to either of the comments made by the prosecutor. Appellate review of allegedly improper conduct by the prosecutor is precluded where the defendant fails to timely and specifically object; this Court will only review the defendant's claim for plain error. People v. Carines, 460 Mich. 750, 761-762, 597 N.W.2d 130 (1999).

To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.... Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error "`seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings' independent of the defendant's innocence." [Id. at 763-764, 597 N.W.2d 130 (citations omitted).]

We find that no prosecutorial misconduct occurred and that any prejudice that might have occurred could have been eliminated had a curative instruction been given following a timely objection.

Prosecutorial misconduct issues are decided case by case, People v. Kelly, 231 Mich.App. 627, 637, 588 N.W.2d 480 (1998), and the reviewing court must examine the pertinent...