People v. Richardson

• Decision Date: 07 March 1994
• Docket Number: Docket Nos. 143653,144166
• Citation: 514 N.W.2d 503,204 Mich.App. 71
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrie RICHARDSON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Barry FROST, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 503

514 N.W.2d 503

204 Mich.App. 71

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrie RICHARDSON, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Barry FROST, Defendant-Appellant.

Docket Nos. 143653, 144166.

Court of Appeals of Michigan.

Submitted Sept. 14, 1993, at Detroit.

Decided March 7, 1994, at 9:40 a.m.

Released for Publication April 27, 1994.

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

State Appellate Defender by Susan J. Smith, for Derrie Richardson on appeal.

Arthur Lee Morman, Detroit, for Barry Frost.

Before REILLY, P.J., and MICHAEL J. KELLY and CONNOR, JJ.

MICHAEL J. KELLY, Judge.

Defendants Derrie Richardson and Barry Frost were convicted of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, at a joint jury trial. Codefendant Robert Napier was also found guilty of armed robbery at the trial but is not appealing his conviction. A fourth accomplice, Jerry Lee Mason, pleaded guilty of armed robbery and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), before the joint trial. We affirm Frost's conviction, but reverse Richardson's conviction and remand for a new trial.

The robbery took place at a restaurant on February 6, 1991. Mason and Frost perpetrated the robbery inside the restaurant while Napier and Richardson waited in a car outside the restaurant. Each of the four men gave statements to the police implicating the other three in the armed robbery. These four statements were admitted, unredacted or partially redacted, at the joint trial. None of the four accomplices testified in person at trial.

I

Each defendant's first and main argument on appeal challenges the trial court's decision to admit the statements of the remaining three accomplices.

This Court recently outlined the analysis for such challenges in People v. Petros, 198 Mich.App. 401, 409, 499 N.W.2d 784 (1993):

The admissibility of a nontestifying codefendant's inculpatory statement as substantive evidence presents two distinct but related issues. The first is the status of the proffered evidence as hearsay, MRE 802. The second is the concern that admitting such testimony will violate the defendant's right "to be confronted with the witnesses against him." U.S. Const., Am. VI; Const.1963, art. 1, § 20.

With regard to the Confrontation Clause, this Court stated:

A hearsay statement of a nontestifying codefendant may be admitted as substantive evidence against a defendant in alternative ways. If it would be admissible under a "firmly rooted" exception to the hearsay rule, the Court has determined that it also complied with the requirements of the Confrontation Clause. Alternatively, if no "firmly rooted" exception applies, the statement may still be admissible if it presents "particularized guarantees of trustworthiness." [Id. at 410, 499 N.W.2d 784, quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).]

This approach received the approval of the Supreme Court in People v. Poole, 444 Mich. 151, 163, 506 N.W.2d 505 (1993). That Court added, however, that the codefendant making the confession must be unavailable as a witness before the confession may be used against the defendant. Id. The requirement is satisfied where the codefendant, exercising Fifth Amendment privileges, is unable to be examined as a witness.

The Court of Appeals and the Supreme Court have, until now, declined to decide whether the penal interest exception to the rule against hearsay is "firmly rooted" because we have been able to resolve such cases in favor of admitting the statement at issue under the alternative method of identifying "particularized guarantees of trustworthiness." See, e.g., Poole, supra at 163, 506 N.W.2d 505; Petros, supra, 198 Mich.App. at 412, 499 N.W.2d 784. However, in this case we address the issue because we do not think that "particularized guarantees of trustworthiness" exist with regard to the portion of the statements that implicated defendants.

Mason's statement was made in the face of overwhelming evidence of his participation in the crime charged. He had nothing to gain by denying his involvement in the robbery. On the other hand, he could appeal for leniency by making a statement that implied that he committed the robbery as a result of "peer pressure" from his three accomplices. In addition, Mason did not testify at the Walker ¹ hearing and was not available for cross-examination at any time. Thus, we find that Mason's statement lacked "particularized guarantees of trustworthiness."

We reach the same conclusion with regard to the statements of Frost and Napier against Richardson and of Richardson and Napier against Frost. These statements were admitted into evidence with all references to the other codefendants, except Mason, replaced with such phrases as "another guy." We believe that this redaction was ineffective. Given the volume of evidence at and about the scene of the crime, it would have been quite obvious to the jury whose names had been removed. See People v. Banks, 438 Mich. 408, 420, 475 N.W.2d 769 (1991). Treating the statements as unredacted, we consider untrustworthy the portions of each statement implicating the nondeclarant defendant.

We start with the presumption that each of the codefendants' statements is unreliable. Petros, supra, 198 Mich.App. at 403, 499 N.W.2d 784 (citing Lee v. Illinois, 476 U.S. 530, 545, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514 [1986]. In rebuttal of this presumption, the only assurance of trustworthiness that we see is the fact that each codefendant incriminated himself in his statement along with his accomplices. The prosecution underscores the similarity in content among the codefendants' statements. However, this is not a factor in determining error but rather in determining whether such error was harmless. People v. Watkins, 438 Mich. 627, 664, 475 N.W.2d 727 (1991). (Cavanagh, C.J.) (citing Idaho v. Wright, 497 U.S. 805, 819-820, 110 S.Ct. 3139, 3148-3149, 111 L.Ed.2d 638 [1990]. Beyond the self-incriminating nature of the statements, nothing else supports, let alone guarantees, their trustworthiness. The three codefendants did not give their confessions spontaneously to acquaintances unconnected with law enforcement. See Petros, supra, 198 Mich.App. at 416, 499 N.W.2d 784 (citing United States v. York, 933 F.2d 1343, 1362 [C.A.7 1991], and State v. Cook, 135 N.H. 655, 610 A.2d 800 [1992]. Before giving their statements, they were informed that at least one of their accomplices had already implicated them in the robbery, giving them a motive to include the accomplices in their own versions of the robbery. In fact, the first accomplice to confess, Mason, indicated that he went along with the robbery only as a result of "peer pressure" from the other accomplices.

This brings us to the penal interest exception to the rule against hearsay as an alternative basis for admitting the statements. We must first determine whether the exception covers those portions of the statements implicating defendants before deciding whether the exception is "firmly rooted" in Michigan law. The penal interest exception is found in MRE 804(b)(3). The portion of a statement that implicates the declarant himself clearly falls within MRE 804(b)(3). Poole, supra, 444 Mich. at 159, 506 N.W.2d 505. The "carry-over" portions of each statement that implicate other accomplices also fall within the exception if they were "made in the context of a narrative of events, at the declarant's initiative without any prompting or inquiry" so that the statement "as a whole is clearly against the declarant's penal interest and as such is reliable." Id. at 161, 506 N.W.2d 505. One of the prime considerations in applying the exception to such "carry-over" provisions is whether the statement was "made while in custody ... motivated by a desire to curry favor with the authorities." Advisory Committee comment, FRE 804(b)(3), quoted in Poole, supra at 162, 506 N.W.2d 505.

In this case, all four statements were made while the declarants were in custody. The circumstances lacked sufficient indicia of reliability. We suggest that MRE 804(b)(3) is not "firmly rooted" in Michigan law; whether it is or not, we conclude that the portions of each codefendant's statement implicating Richardson and Frost do not fall under the penal interest exception. As a result, the trial court erred in admitting poorly redacted versions of codefendants' statements to be used against Richardson and Frost.

As for Richardson, we further conclude that the error was not harmless. Removing the incriminating statements of his accomplices leaves his own confession as the only evidence of his involvement in the robbery. We are not convinced that the jury would have reached the same verdict on the charge against Richardson on the basis of this one confession alone. The jury asked to have all the statements reread, indicating their attention to the tainted statements of the codefendants. See Watkins, supra, 438 Mich. at 667, 475 N.W.2d 727. Although witness Cheryl Buchanan testified that she saw two men sitting in a car outside the restaurant during the robbery, which roughly corresponded to Richardson's own statement, she was unable to identify the men in the car. We do not think that this one piece of corroborative evidence cures the error in admitting the statements of Richardson's codefendants.

As for Frost, we conclude that the error was harmless. Although the jury's request to have the confessions of all the codefendants reread carries the same implication here as it does with regard to Richardson, there was substantial, independent corroborative evidence of Frost's guilt, which leads us to a harmless error analysis. Wright, supra, 497 U.S. at 823, 110...