People v. Barrera, Docket Nos. 98663

CourtSupreme Court of Michigan
Citation451 Mich. 261,547 N.W.2d 280
Docket NumberDocket Nos. 98663,98683,Nos. 2-3,s. 2-3
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark BARRERA, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick Michael MUSALL, Defendant-Appellant. Calendar
Decision Date07 May 1996

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Joseph A. Puleo, Assistant Prosecuting Attorney, Detroit, for the people.

Arthur J. Tarnow, Detroit, for defendant Barrera.

State Appellate Defender by Debra A. Gutierrez, Detroit, for defendant Musall.

MICHAEL F. CAVANAGH, Justice.

The issue presented in this consolidated appeal is whether the trial court erroneously excluded a statement by a codefendant that was offered by the instant defendants as exculpatory evidence. We hold that the trial court erred and that the error was not harmless. We reverse the Court of Appeals, vacate the convictions, and remand for new trials.

I

Codefendants Mark Barrera, Fred Johnson, and Patrick (Mike) Musall were prosecuted in a consolidated trial before three separate juries for the murder of Deborah Haynes. 1 Another defendant, Matthew Copeland, was tried in a separate trial. The undisputed facts were that the victim was stabbed to death during the night of October 27, 1988, or in the early morning hours of October 28, 1988, in Balduck Park in Detroit. The victim was a part-time prostitute. The next morning, a passerby discovered the mostly nude body of the victim and the police were notified. The police discovered several items of clothing strewn about the area. An autopsy revealed that the victim had died of multiple stab wounds.

At first, the police investigation focused on the victim's live-in boyfriend who was also her pimp. Within a week, the investigation turned to the four defendants. During the course of the night of November 3, 1988, and into the early morning hours of November 4, 1988, all four defendants gave written statements to the police. They revealed that they had been driving around in Barrera's car on October 27, 1988, and had picked up the victim. The four stated that they negotiated with her for sex. They proceeded to the park. All four further stated that Copeland did have oral sex with her and each defendant identified Copeland as the sole stabber. There were several additional facts that were in dispute, which will be discussed later in this opinion.

Each defendant's statement was used by the prosecution against him in the respective prosecutions. 2 Barrera, Musall, and Johnson called Copeland to testify at the consolidated trial. After Copeland asserted his Fifth Amendment right not to testify, Barrera Musall, and Johnson each sought to use Copeland's statement for exculpatory purposes under MRE 804(b)(3).

Copeland alleged in his statement that the victim also had oral sex with Musall. Copeland admitted that he was acting under the influence of mescaline and alcohol, and that he began to believe that the victim was "Spooner," his former girlfriend. He stated that he had previously caught his girlfriend having sex with someone else and that he had threatened to kill her if he caught her again. Copeland stated that while watching the victim and Musall having oral sex, he told the victim that he was going to kill her, and then he pulled a knife out of his sleeve and stabbed her.

The trial court refused to allow admission of Copeland's statement because it found that the statement was not against Copeland's penal interest and that there was insufficient corroborating evidence of Copeland's statement. Barrera and Musall were convicted of first-degree felony murder by their respective juries and were sentenced accordingly to mandatory life in prison without parole. Johnson was acquitted by his jury. In a subsequent trial, Copeland was convicted by a jury of first-degree premeditated murder and was sentenced to mandatory life without parole.

The Court of Appeals affirmed the convictions of Barrera and Musall. 3 We granted leave to appeal limited to the issue whether the trial court abused its discretion in denying the request of the two defendants to admit Copeland's confession. 448 Mich. 868, 530 N.W.2d 748 (1995).

II

At issue is the admissibility of Copeland's out-of-court statement, which Barrera and Musall proffered to prove the truth it asserted: that Copeland spontaneously acted alone in stabbing the victim. The defendants maintain that this hearsay statement falls within MRE 804(b)(3), the statement against penal interest exception to the hearsay rule. 4 They additionally argue that exclusion of this evidence violated their federal due process right to present witnesses in their defense. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).

MRE 804(b) provides that if a declarant is unavailable, as defined in MRE 804(a), his out-of-court statement against interest may avoid the hearsay rule if certain thresholds are met:

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.

We have previously considered MRE 804(b)(3) from the reverse position: where the prosecution seeks to use a statement against penal interest to inculpate a defendant. People v. Poole, 444 Mich. 151, 506 N.W.2d 505 (1993); People v. Watkins, 438 Mich. 627, 475 N.W.2d 727 (1991). Although many of the separate opinions in Poole and Watkins speculated about the requirements for use of a statement against penal interest to exculpate the defendant, we are now required to address the relevant issues.

MRE 804(b)(3) is modeled after its Federal Evidentiary Rule 804(b)(3). 5 Accordingly, we can look to federal precedent for guidance. Poole, 444 Mich. at 160-162, 506 N.W.2d 505. III

A. Standard of Review

We must first determine the appropriate standard of review for evaluating a trial court's decision to exclude a statement against penal interest offered under MRE 804(b)(3) to exculpate a defendant. Although many federal courts have tersely stated that the standard of review is abuse of discretion, 6 we find that there are four subissues that may be presented on review: (1) whether the declarant was unavailable, (2) whether the statement was against penal interest, (3) whether a reasonable person in the declarant's position would have believed the statement to be true, and (4) whether corroborating circumstances clearly indicated the trustworthiness of the statement.

In the instant cases, we need not address the standard of review of a trial court's determination whether the declarant was unavailable at trial, because the prosecutor concedes that Copeland, who invoked his right not to testify, was unavailable. We find that the determination whether a "statement was against the declarant's penal interest presented a question of law." United States v. Bagley, 537 F.2d 162, 165-166 (C.A.5, 1976). Therefore, appellate review is de novo. See United States v. Arthur, 949 F.2d 211, 216 (C.A.6, 1991) (no deference to the trial court's determination).

We further find that the determination whether a reasonable person in the declarant's shoes would have believed the statement to be true and the determination whether circumstances sufficiently indicated the trustworthiness of the statement depend in part on the trial court's findings of fact and in part on its application of the legal standard to those facts. Bagley, 537 F.2d at 166. Accordingly, like many federal courts, we will use a clearly erroneous standard in reviewing the trial court's findings of fact and an abuse of discretion standard in reviewing the trial court's decision to exclude the evidence. 7

In exercising its discretion, the trial court must conscientiously consider the relationship between MRE 804(b)(3) and a defendant's constitutional due process right to present exculpatory evidence. See United States v. Barrett, 539 F.2d 244, 253 (C.A.1, 1976). Likewise, appellate review necessarily requires a review of the importance of the statement to the defendant's theory of defense in determining whether the trial court abused its discretion by excluding the evidence.

B. Against Penal Interest

The next issue is the extent to which the declarant's statement must be against his penal interests, as defined by MRE 804(b)(3). That rule requires that the "statement ... at the time of its making ... so far tended to subject the declarant to ... criminal liability, ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." (Emphasis added.) 8 After reviewing federal cases that have applied the actual language enacted by Congress, we believe that the phrase "tended to subject" includes a broad scope of inculpatory statements. See, e.g., United States v. Satterfield, 572 F.2d 687, 691 (C.A.9, 1978) (in enacting FRE 804(b)(3), Congress rejected a restrictive approach by choosing the phrase "tended to subject").

Federal case law has developed some general parameters that can guide our determination when a statement sufficiently "tended to subject" the declarant to criminal liability. First, the mere fact that the declarant invoked his Fifth Amendment right not to testify does not make the statement against...

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