People v. Petros

• Decision Date: 01 March 1993
• Docket Number: Docket No. 140430
• Citation: 198 Mich.App. 401,499 N.W.2d 784
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Basam PETROS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 784

499 N.W.2d 784

198 Mich.App. 401

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Basam PETROS, Defendant-Appellee.

Docket No. 140430.

Court of Appeals of Michigan.

Submitted Aug. 4, 1992, at Detroit.

Decided March 1, 1993, at 9:40 a.m.

Released for Publication May 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., and Timothy A. Baughman, Chief of Research, Training, and Appeals, for the People.

James D. O'Connell, Highland Park, for defendant-appellee.

Before CORRIGAN, P.J., and MICHAEL J. KELLY and GRIFFIN, JJ.

CORRIGAN, Presiding Judge.

The Wayne County Prosecutor appeals by leave granted the lower court's denial of his motion to admit codefendant Michael Dinoffria's January 11, 1991, statement as evidence. Defendant Basam Petros is charged in the Detroit Recorder's Court with first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, arson of real property, M.C.L. Sec. 750.73; M.S.A. Sec. 28.268, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.484(2). Dinoffria's statement was offered as a declaration against penal interest pursuant to MRE 804(b)(3). ¹ The question presented is whether the substantive use of Dinoffria's statement, which qualifies as a declaration against penal interest, would violate the Confrontation Clause, U.S. Const., Am. VI. We hold that it would not, and that the prosecution has met its weighty burden under Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), to overcome the presumptive unreliability of a codefendant's statements. We thus reverse and remand with directions to admit Dinoffria's statement against Petros.

On December 20, 1990, Petros and Dinoffria saw Hermis Toma, Petros' uncle, at a gas station. They observed that Toma had about $200 in cash. Toma, Petros, and Dinoffria then drove to Toma's house in Toma's car. During the trip, Petros signaled to Dinoffria that he wanted to shoot Toma.

At Toma's house, Petros and Toma argued about some disability checks that Petros had allegedly stolen from his uncle. While Toma was out of the room, Petros asked Dinoffria to "do him a favor" and shoot Toma. Dinoffria complied. Using Petros' gun, he shot Toma three times in the head. Dinoffria then asked Petros, who lived nearby, to get more bullets, because he thought Toma might still be alive. Petros went to his house for more bullets. Toma was dead when Petros returned. Dinoffria removed the money and some checks from Toma's body. Petros covered the body with a blanket and he and Dinoffria set fire to the body and the house. Petros and Dinoffria left the house and hid the murder weapon. The house was severely damaged by fire.

Petros was subsequently arrested and charged. Three days after the murder, Dinoffria initially implicated Petros in a statement to Sergeant Ronald Gale, the investigating Squad Six Homicide officer, while denying his own participation. Held as a material witness, he once again inculpated Petros as the shooter during the preliminary examination, at which time Petros first had an opportunity to cross-examine him. Dinoffria was released to a juvenile home after the preliminary examination.

While still in custody as a material witness, Dinoffria called his friend Ricardo Briones several times. While absent without leave, on January 8, 1991, Dinoffria personally talked to Briones. According to Briones, the substance of that conversation was that Dinoffria told him that "if the police would have come and got him [Dinoffria] first, he would have told them that he did it but they got [Basam] first and he put me in it and if one of us go down we both go [sic] down because we were both in it." Dinoffria told Briones that he had killed Toma at Petros' request with Petros' gun, and he showed Briones the murder weapon.

Briones later retrieved the hidden gun, turned it over to the police, and implicated Dinoffria as the shooter. On January 11, 1991, Dinoffria was arrested and questioned again by Sgt. Gale. After being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Dinoffria admitted the salient facts in a manner consistent with Briones' report. Dinoffria admitted having lied previously to Sgt. Gale. He admitted pulling the trigger and taking Toma's money. Dinoffria stated that Petros had suggested that he shoot Toma to cover up Petros' theft of his uncle's social security checks. Petros told him to take Toma's money and to set fire to the blanket covering the corpse. He also stated that he and Petros hid the gun together and split the stolen money equally. Dinoffria himself wrote on the typewritten statement, "I did it and nobody else should be involved in this." Dinoffria also wrote in longhand and initialed typewritten responses to other questions about his statement, ² and made a series of recorded responses to questions about the voluntariness of the statement.

The original charges against Petros were dismissed and immediately refiled against Petros and Dinoffria. Both defendants waived preliminary examination. Upon stipulation of the parties, the court severed the trials by order dated April 26, 1991, thus eliminating problems described in People v. Banks, 438 Mich. 408, 475 N.W.2d 769 (1991).

The prosecutor moved to introduce Dinoffria's January 11, 1991, statement as a statement against penal interest pursuant to MRE 804(b)(3). At a combined hearing pursuant to People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965), and a hearing on the prosecutor's motion to admit, Dinoffria testified and was again made subject to questioning by Petros. In this combined proceeding, Dinoffria testified that his January 11, 1991, statement was untrue and coerced, and that neither he nor Petros had been involved in Toma's murder. Defense counsel for Petros interposed objections to the prosecutor's questions, but declined the opportunity to question Dinoffria. He had no reason to question Dinoffria, because Dinoffria's recantation of his prior inculpatory statements achieved every purpose a searching cross-examination could have produced. Because Dinoffria completely exculpated his client, further questioning would have been superfluous and unwise. The court denied Dinoffria's motion to suppress, determining his January 11, 1991, statement to have been voluntary in all respects. It also concluded his current testimony was incredible. Nonetheless, the prosecutor's motion to admit Dinoffria's statement was denied.

After the prosecution's application for leave to appeal was granted, our Supreme Court decided People v. Watkins, 438 Mich. 627, 475 N.W.2d 727 (1991), cert. den., --- U.S. ----, 112 S.Ct. 933, 117 L.Ed.2d 105 (1992). Because Watkins did not command a majority of the justices, it lacks precedential value. ³ Watkins involved five defendants tried jointly for murder, attempted murder, and kidnapping. Statements of two codefendants were admitted against the remaining codefendants, under MRE 804(b)(3), as declarations against penal interest. None of the five testified at the trial. All were convicted, and this Court affirmed. 178 Mich.App. 439, 444 N.W.2d 201 (1989).

The Supreme Court reversed the three codefendants' convictions in a split opinion. The four justices who voted to reverse provided no controlling rationale. ⁴ Chief Justice Cavanagh and Justice Levin opined that MRE 804(b)(3) should be narrowly applied. 438 Mich. at 636-638, 645-646, 475 N.W.2d 727. They rejected the so-called "carry-over rule," which allows admission of an entire hearsay statement if a portion is against the declarant's "penal interest." Id. at 634, 475 N.W.2d 727. Four justices did recognize the test articulated in Lee v. Illinois, supra, 476 U.S. at 545, 106 S.Ct. at 2064, i.e., a codefendant's statement against a defendant is presumptively unreliable because of the desire to shift blame, to curry favor, to avenge the speaker, or to direct attention to another. 438 Mich. at 645, 475 N.W.2d 727. See also Banks, supra.

Justice Brickley's concurrence, signed by Justice Griffin, concluded:

I agree with the result reached by the Chief Justice that the trial court erroneously allowed admission of the codefendant's confessions under the facts presented.... The Chief Justice's position that the statement against interest hearsay exception is not based on the circumstances surrounding the giving of the statement, but on its contents and therefore admissibility should be limited to only those statements contrary to the declarant's penal interest has considerable logic. However [because the question was not briefed in this case], I decline to endorse the Chief Justice's reasonings regarding the so-called carry-over rule in the context of declarations against penal interest. [Id. at 677, 475 N.W.2d 727. Emphasis added.]

The remaining three justices dissented. 438 Mich. at 678-705, 475 N.W.2d 727. Justice Riley concluded, "Since a majority has not been reached regarding how inculpatory statements can be used in future cases, they leave this issue open for another day." Id. at 705, n. 33, 475 N.W.2d 727; see also id. at 678, n. 1, 475 N.W.2d 727.

Watkins thus does not flatly proscribe the admission of declarations against penal intent. We think that adoption of such a blanket preclusion would prevent both the evolution of the law of evidence and the development of Confrontation Clause principles. Such difficult questions of admissibility and constitutionality cannot be resolved by bright line rules and should be decided case by case. We think that in adopting MRE 804(b)(3), the Michigan Supreme Court did not intend to foreclose the admission of qualifying evidence, but rather to permit the admission of those declarations against penal interest that satisfy the Confrontation Clause. See FRE 804(b)(3); United States v. York, 933 F.2d 1343, 1361 (CA 7, 1991).

The admissibility of a...