People v. Kelley, Docket No. 9973

• Decision Date: 29 March 1971
• Docket Number: No. 1,Docket No. 9973,1
• Citation: 188 N.W.2d 654,32 Mich.App. 126
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene KELLEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 654

188 N.W.2d 654

32 Mich.App. 126

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene KELLEY, Defendant-Appellant.

Docket No. 9973.

Court of Appeals of Michigan, Division No. 1.

March 29, 1971.

Released for Publication July 7, 1971.

Thomas J. Olejnik, Detroit, for defendnat-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-Appellee.

Before V. J. BRENNAN, P.J., and J. H. GILLIS and JEANNETTE, ^* JJ.

J. H. GILLIS, Judge.

This case presents a nice question about the dimensions of the confrontation right in criminal cases. In one particular, we must decide whether there is any room for hearsay exceptions within the scope of the Confrontation Clause.

In the early morning hours of January 12, 1969, a second-floor dance hall known as the Soul Expression Bar in the city of Detroit was destroyed by fire. The fire was of criminal origin. Gasoline had been poured over the stairway leading to the dance floor. This gasoline was then ignited; fire resulted and several people were injured.

The defendant, Eugene Kelley, and another, Ronald Robinson, were tried separately under an information which charged them in 2 counts with different forms of arson. Count 1 charged that defendant Kelley wilfully and maliciously burned the above-mentioned building contrary to M.C.L.A. § 750.73 (Stat.Ann.1962 Rev. § 28.268). Count 2 of the information charged that Kelley arranged and placed an inflammable liquid, to-wit: gasoline, in and about the second-floor dance hall with the intent to burn the dance hall, contrary to M.C.L.A. § 750.77 (Stat.Ann.1962 Rev. § 28.272).

Count 3 of the information charged a violation of M.C.L.A. § 750.207 (Stat.Ann.1962 Rev. § 28.404), a section of the criminal code dealing with the unlawful use of explosives. It charged that Kelley placed an explosive substance, gasoline, in and upon the Soul Expression Bar with intent to destroy the bar, which substance upon explosion caused the destruction of the property and personal injury.

Defendant Kelley was tried by a jury and convicted on all 3 counts. He was given the mandatory life imprisonment sentence, without parole, for conviction on Count 3. On the arson counts, Counts 1 and 2, Kelley was sentenced to serve from 2 1/2 to 10 years in prison. All three sentences were to run concurrently. Defendant's motion for new trial was denied by the trial court. From his convictions and the denial of his motion for new trial, defendant Kelley appeals.

For the people, the testimony at trial established the following view of what happened on the morning of January 12th. At about 1:30 a.m., Kelley, together with Ronald Robinson, Theodore Wallace, Ulysses Butts, and Donald Jones, drove to the Soul Expression dance hall and left Robinson there for about one-half hour. When Kelley and the others returned, Robinson informed them that there had been an argument over his entry to the hall and that he had been refused admission. The five men then drove to a nearby gas station where Ronald Robinson obtained a 2-gallon can of gasoline. It was Theodore Wallace's testimony that, on returning to the car after purchasing the gas, Robinson said 'he was going to burn it down if he couldn't get back in to get his money back.'

The five men then returned to the Soul Expression dance hall. Ronald Robinson got out of the car with the can of gasoline. According to the testimony of both Ulysses Butts and Donald Jones, Robinson motioned to defendant Kelley and said, 'Come on.' Kelley left the car and followed 'right behind' Robinson. Both men then entered the door leading immediately to the stairway of the dance hall. Moments later, the stairway was engulfed by flames. Robinson and Kelley were seen running together from the burning building. They jumped into the car and, together with Wallace, Butts, and Jones, drove from the scene.

Just what part defendant Kelley played in the criminal episode--indeed, whether he played any role at all-was disputed at trial. Defendant Kelley took the stand and testified that his actions on the morning of the 12th were completely innocent. Kelley admitted following Robinson from the car. He admitted his presence on the stairway moments before the fire; however, according to Kelley's testimony, his purpose in following was only to retrieve his overcoat which Robinson had left at the dance hall earlier in the evening. Kelley testified that he climbed the stairway and obtained his coat. Then, as he was leaving, it was Kelley's testimony that:

'And on may way downstairs with the coat, Ronald Robinson asked me for a match. And I told him I didn't have a match. He says, 'one in your coat pocket.' And I didn't know it was a match in there because I don't smoke or anything, And I never carried any matches. So he snatched my coat in kind of a angry way and I was turned around walking out the door. And as I walked out the door he come out and nearly knocked me down, and it was a fire behind him, and I am on my way to the car all the time. And in the confusion I didn't know what to do and I just ran on to the car, the both of us.

'Q. (By Mr. Fury, defendant's counsel): All right. Did Robinson say anything to you when you were in the car?

'A. No, he didn't.'

For the people, however, there was ample evidence, both circumstantial and direct, which, if believed, established defendant Kelley's participation in the arson. To borrow Learned Hand's characterization, there was sufficient evidence such that the jury could find 'not only that the witness' testimony is not true, but that the truth is the opposite of his story'. Dyer v. MacDougall (CA 2, 1952), 201 F.2d 265, 269. We begin with the testimony of Delbert McCoy.

McCoy, who at the time of the fire was on the stairway leading to the dance hall testified that he observed two individuals at the foot of the stairway. Each of these individuals, according to McCoy, played a part in starting the fire. McCoy testified that 'the first man spread out the gasoline.' When asked what happened after the first man spread the gasoline, McCoy testified: 'The other man threw the match on the way out.'

In the fire that followed, McCoy was severely burned. His eyesight was impaired and, at the time of trial, he was unable to identify defendant Kelley as one of the men seen at the foot of the stairway. However, McCoy's testimony established a joint effort; it squarely conflicted with the defendant's protestation that Robinson alone was responsible. According to McCoy, there was no exchange of overcoats; rather, there was a joint effort.

McCoy's testimony establishing joint participation was corroborated by the testimony of Theodore Wallace, Ulysses Butts, and Donald Jones. This time, however, defendant Kelley was directly implicated; no inference was required to link Kelley to the criminal episode. All three men, Wallace, Butts, and Jones, testified that when Robinson and Kelley returned to the car, Robinson commented on Kelley's participation as follows (We quote the testimony of Ulysses Butts):

'Q. And after you saw the fire what did you see?

'A. Them jumping in the car.

'Q. When you say 'them jumping in the car,' who do you mean?

'A. Eugene and Ronnie.

'Q. Now did Ronald Robinson say anything to Eugene Kelley as he got into the car?

'A. After he got back in?

'Q. Yes?

'A. Yes.

'Q. What did he--what did Ronald Robinson say to Eugene Kelley as he got back in?

'A. He said, 'You threw the match too quick.'

'Q. Ronald Robinson said to Eugene Kelley, 'You threw the match too quick'?

'A. Yes.

'Q. Did Eugene Kelley reply at all?

'A. No.' (Emphasis supplied.)

Thus the accusatory finger of a coparticipant in crime pointed with explicit directness at Eugene Kelley. And, as will later appear, it is significant that Robinson's non-custodial accusation went unanswered.

The trouble with Butts' testimony, as well as that of Wallace and Jones, however, is that it is hearsay--hearsay pure and simple. Butts' testimony is only what someone else asserted, offered to prove the truth of the assertion.

'He (Robinson) said, 'You (Kelley) threw the match too quick."

And the extrajudicial declarant, Robinson, neither appeared at trial nor was he available for cross-examination. This, according to Professor Wigmore, is classic hearsay. See 5 Wigmore, Evidence (3d ed), § 1361, p. 2.

At trial, defense counsel objected to the introduction of Robinson's extrajudicial assertion implicating defendant Kelley. Counsel's objection was twofold. First, admission of Robinson's unsworn statement violated the hearsay rule. Counsel also argued that admission of Robinson's statement, absent his appearance and cross-examination, denied defendant Kelley the right of confrontation constitutionally guaranteed to criminal defendants. On this point, particular reliance was placed on Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.

The trial court overruled defendant's objection and denied counsel's motion for a mistrial. Judge Schemanske was of the view that Robinson's statement, although hearsay, was admissible under the Res gestae exception to the rule, made, as Judge Schemanske put it, 'within seconds of escape from the burning building.' The court also considered Kelley's silence in the face of Robinson's accusation to be Kelley's adoption of the statement as his own, and thus admissible under the rules of evidence. See 4 Wigmore, Evidence (3d ed), § 1071, p. 70. Finally, Judge Schemanski ruled: 'We are not dealing with the Bruton situation * * * but strictly with the well grounded exception to the hearsay rule.'

On appeal, the first question concerns alleged error in the admission against defendant Kelley of Robinson's inculpatory hearsay statement: 'You threw the match too quick.' The admissibility question has, to counsel's credit, created quite a fire of...