People v. Hawkins

• Decision Date: 28 May 1982
• Docket Number: Docket No. 53894
• Citation: 319 N.W.2d 644,114 Mich.App. 714
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert HAWKINS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 644

319 N.W.2d 644

114 Mich.App. 714

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert HAWKINS, Defendant-Appellant.

Docket No. 53894.

Court of Appeals of Michigan.

Submitted Nov. 5, 1981.

Decided April 6, 1982.

Released for Publication May 28, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Janice M. Joyce, Asst. Pros. Atty., for the people.

Richard B. Ginsberg, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before J. H. GILLIS, P. J., and BEASLEY and DEEGAN ^*, JJ.

BEASLEY, Judge.

Defendant, Robert Hawkins, was charged in a two-count information with first-degree murder, committed during the perpetration or attempted perpetration of a larceny, in violation of M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and felony firearm, in violation of M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was convicted by a jury of murder in the first degree, but was found not guilty of the felony-firearm charge. After being sentenced to the mandatory term of life imprisonment, defendant appeals as of right.

First, defendant argues that the so-called felony murder statute does not include killings committed in the course of larcenies which are not felonies. In this case, the killing took place on November 6, 1978, and defendant was tried in March and April of 1979. The applicable statute in effect at that time provided:

"All murder * * * which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree." (Emphasis added.) M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, as in force after the 1969 amendment and before the 1980 amendment.

As indicated, the plain language of the statute is larceny of any kind, which words do not appear to lend themselves to ambiguity or tortured interpretation. Defendant's claim is without merit. The words "larceny of any kind" include both larcenies that are felonies and larcenies that are misdemeanors. We reject the argument made by defendant in this regard.

Second, defendant assigns as error the ruling of the court precluding police officer William Dildy from testifying as to a statement given by Theodore Williams. The record indicates that apparently three persons were involved in the subject killing; Philip Scott, Joseph Turner and defendant. Turner was given immunity in exchange for his testimony, which inculpated defendant. Scott pled guilty to murder in the second degree and was sentenced to prison.

On the day of the killing, Officer Dildy took a statement from Theodore Williams, which appeared to involve all three, Hawkins, Scott and Turner, in the larceny killing and which gave some indication that Scott had actually killed the victim. The prosecution endorsed Williams as its witness but failed to produce him at trial. The trial court found that the prosecution failed to exercise due diligence to procure his appearance. At trial, after the trial court sustained the objection made by the prosecution to admission of testimony regarding the contents of the statement taken by Officer Dildy, the statement was admitted on a special record and, thus, is available for review on appeal.

The admissibility of a declaration against interest, as an exception to the hearsay rule, is governed by MRE 804(b)(3), which provides:

"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." ¹

This rule does not require the declarant to be the party on trial. In fact, the rule comes into play only when the declarant and the accused are different people. Prior to adoption of the Rules of Evidence, Michigan law allowed such a statement even in the absence of corroborating circumstances. ² The statements involved here are of Scott and of the witness, Williams. This evidence constitutes hearsay within hearsay and may not be admitted unless both statements satisfy an exception to the hearsay rule. ³

Williams's written statement indicates that Scott made his statement shortly after the shooting occurred, in the presence of friends or acquaintances, without any apparent fear that it would result in his being turned in to the police. There was not any need for him to make up the story at that point in order to exculpate defendant.

Finally, Scott had, at that time, not been granted immunity from prosecution and, thus, was not without fear that the statement could be used against him. We hold that these circumstances are sufficient to indicate the trustworthiness of Scott's statement and to show that it was not fabricated to relieve defendant of possible criminal liability. ⁴ However, the record does not indicate circumstances showing the trustworthiness of Williams's statement to Officer Dildy. Thus, while Scott's statement might have been admissible, it does not appear to be within an exception to the hearsay rule that would allow admission of Williams's written statement.

Defendant also argues that the statement with which we are concerned is actually that of Officer Dildy and should be admissible as a business record under MRE 803(6). Actually, the statement made by Williams and written down by Dildy was, in fact, signed by Williams after it was written. However, there was no way of cross-examining Williams as to whether or not he was truthful under the then present circumstances where he was not present at trial. To put it another way, there was not any way in which Williams's credibility could have been tested with regard to the alleged statement. There was not any exception to the hearsay rule that would allow admission of Williams's statement.

Defendant also claims that the declaration was admissible on constitutional grounds, citing Chambers v. Mississippi. ⁵ In Chambers, the defendant, charged with killing a police officer, sought to introduce a written sworn confession of a third party which subsequently had been repudiated. The trial court held that, under Mississippi evidentiary rules, the repudiated statement could not be exhibited to the jury.

In addition, the defendant sought to introduce testimony of three witnesses who said that shortly after the shooting the third person told them he had shot the police officer. The trial court held their testimony inadmissible as hearsay. The Supreme Court reversed on the ground that defendant was deprived of his due process right to a fair trial under the particular facts of that case.

Chambers is distinguishable from the within case. In Chambers, the three witnesses were present and available for cross-examination. Such is not the case here. In Chambers, the Supreme Court indicated the probability that the statements were inherently trustworthy. ⁶ In the within case, there was no method by which to test the credibility of Williams. We hold that Chambers does not apply to require reversal here. It was not reversible error to uphold the objection to the testimony of Officer Dildy regarding the statement made by Williams.

Third, defendant claims that it was reversible error for the trial judge to submit to the jury the question of whether the prosecutor used due diligence in obtaining the presence of an endorsed witness, who was not a res gestae witness, where the trial judge had already conducted a hearing and made a finding that the prosecution had failed to exercise due diligence.

On appeal, the prosecution confesses error by the trial court in submitting the question of due diligence to the jury over defense objection. The prosecutor says that this result is mandated by People v. Pearson. ⁷ Although Pearson was decided three months before trial in this case, apparently neither the prosecutor nor defense counsel were aware of it. The prosecutor points out that Pearson was, in fact, not published until one week before this trial began and cites People v. McDaniels ⁸ as explanation of the problem.

The prosecution also argues that if, in fact, witness Williams had testified at trial, the statement allegedly given to him (Williams) concerning which he (Williams) made a statement to Officer Dildy would not, in any event, be admissible. The prosecution further argues that the statement is wholly irrelevant to the issue of defendant's guilt or innocence as an aider and abettor.

In the within case, while the trial judge did find that the prosecution had failed to exercise due diligence to secure the presence of witness Williams and did instruct the jury that if it so found, it could infer that the missing witness's testimony would have been unfavorable to the prosecutor's case, defendant did not, in fact, then seek a post-conviction hearing to determine whether he was, in fact, prejudiced by the nonproduction of witness Williams. While it can be argued that prejudice occurred, based on the trial judge's comment that it might have been beneficial to defendant to have the evidence, apparently referring to the statements made to Williams by Scott, the trial court was not asked, and did not actually make a finding, as to whether or not prejudice to defendant occurred by failure to produce witness Williams.

In short, we do not agree with defendant that a prejudice hearing would not serve any purpose because the trial court had already determined that his testimony might be helpful to the defense. Defendant has failed to preserve this issue for appellate review because of his failure...