People v. Conte

• Decision Date: 15 August 1986
• Docket Number: Docket No. 84716
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew CONTE, Defendant-Appellant. 152 Mich.App. 8, 391 N.W.2d 763
• Court: Court of Appeal of Michigan — District of US

Page 763

391 N.W.2d 763

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew CONTE, Defendant-Appellant.

Docket No. 84716.

152 Mich.App. 8, 391 N.W.2d 763

Court of Appeals of Michigan.

Submitted March 19, 1986.

Decided May 20, 1986.

Released for Publication Aug. 15, 1986.

[152 MICHAPP 9] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Thomas M. Chambers, Asst. Pros. Atty., for the People.

Angela Palmieri, Garden City, for defendant-appellant.

Before MAHER, P.J., and CYNAR and GILLESPIE, ^* JJ.

[152 MICHAPP 10] PER CURIAM.

Following a jury trial, defendant was convicted of armed robbery, M.C.L.A. Sec. 750.529; M.S.A. Sec. 28.797. He was sentenced to a prison term of from 5 to 12 years. Defendant appeals as of right.

Defendant was arrested while he was aiding and abetting in the commission of an armed robbery of a Grosse Pointe Farms pharmacy. Defendant, a self-admitted narcotics addict, testified that at 8:30 a.m. on December 24, 1984, he received a phone call from his friend, Kenneth Briggs. Briggs asked defendant to pick him up and drive him to the pharmacy where they intended to procure Dilaudid, a narcotic, with a false prescription. For his efforts, defendant was to receive ten Dilaudid tablets. Defendant had participated in such ventures in the past and agreed to accompany Briggs. Defendant denied having any knowledge that Briggs had a gun or was intending to commit an armed robbery.

The two men arrived at the pharmacy around 10:30 a.m. At first they were reluctant to enter because several customers were already inside and they feared that the pharmacist would refuse to fill their suspiciously large prescription while other customers were present. Once the store cleared, Briggs left the truck and went inside. Briggs approached the pharmacist and pulled a gun from under his coat. He demanded the drug and the pharmacist gave him an unopened box of Dilaudid. Briggs ordered the pharmacist to the floor and ran out of the store, where he and defendant were immediately apprehended by the police.

Following his arrest, Briggs made a statement to the police in which he admitted his participation in the robbery. Briggs testified that he called defendant and asked him to make out a false [152 MICHAPP 11] prescription and drive him to a pharmacy. He had agreed to give defendant some of the drugs for his efforts. Briggs stated further that he concealed the weapon under his jacket and that defendant never saw it.

Briggs pled guilty to armed robbery and felony-firearm in a separate proceeding. He subsequently refused to testify at defendant's trial, asserting his Fifth Amendment privilege. When defense counsel sought to have Briggs's statement introduced into evidence under MRE 804(b)(3), the trial court excluded that portion of the statement which tended to exculpate defendant. Defendant argues on appeal that the court erred in excluding the exculpatory statement.

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 him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable person in his position would not have made the statement unless he believed 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 order for a declaration to be admissible under this exception, the statement must be truly against the declarant's penal interest. People v. Williams, 136 Mich.App. 682, 686, 357 N.W.2d 741 [152 MICHAPP 12] (1984). In determining whether a statement meets this test, the court must examine the statement in the context in which it was made. If it appears that the declarant had some other motive in making the statement, whether self-interest or otherwise, the declaration should be excluded since it lacks the requisite indicia of reliability that underlies the exception. Williams, supra; People v. Blankenship, 108 Mich.App. 794, 310 N.W.2d 880 (1981), lv. den. 412 Mich. 857 (1981).

Here, since Briggs was unavailable for trial, defendant sought to admit his statement as an admission against interest. However, our review of the statement reveals that not all of it was a declaration against Briggs's penal interest. Briggs's statement that defendant had never seen the weapon did not subject Briggs to criminal liability more serious than that which he already faced. It did not admit to an additional crime or render defendant susceptible to a more severe penalty. While we do not interpret MRE 804(b)(3) to be limited to direct confessions of guilt, the rule should be limited to statements which have or could have a deleterious effect on the declarant's own interests. Here, the gratuitous statement merely exculpated defendant while leaving Briggs's position unchanged. Therefore, we find that the exculpatory statement lacked the guarantee of trustworthiness that makes a statement which is truly against penal interest reliable. The trial court did not abuse its discretion by excluding the exculpatory portion of Briggs's out-of-court statement. See also United States v. Marquez, 462 F.2d 893 (C.A. 2, 1972); People v. Dortch, 84 Mich.App. 184, 269 N.W.2d 541 (1978), lv. den. 404 Mich. 805 (1978).

Defendant also argues that there was sufficient corroboration to clearly indicate trustworthiness. [152 MICHAPP 13] However, an inquiry into the question of sufficiency of corroboration is unnecessary when the trial court finds that as a threshold matter the offered remarks fail to come within the hearsay exception as a "statement against interest" as that phrase is used within MRE 804(b)(3).

Defendant next claims that the statement was admissible on constitutional grounds citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Chambers, the Supreme Court held that it was a denial of due process to exclude hearsay statements against penal interest which bore persuasive insurances of trustworthiness and were critical to Chambers's defense. Each statement was made spontaneously to a close acquaintance shortly after the murder had occurred, was corroborated by some other evidence in the case, and was in a very real sense self-incriminatory and unquestionably against interest. Moreover, each of the three witnesses was available for cross-examination at trial....