People v. Underwood

• Decision Date: 23 August 1990
• Docket Number: Docket No. 113751
• Citation: 459 N.W.2d 106,184 Mich.App. 784
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lanford UNDERWOOD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 106

459 N.W.2d 106

184 Mich.App. 784

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lanford UNDERWOOD, Defendant-Appellant.

Docket No. 113751.

Court of Appeals of Michigan.

Submitted March 14, 1990.

Decided Aug. 6, 1990.

Released for Publication Aug. 23, 1990.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, and Janice M. Joyce Bartee, Asst. Pros. Atty., for the People.

Charles Burke, Livonia, for defendant-appellant on appeal.

Before REILLY, P.J., and MICHAEL J. KELLY and DEMING, ^* JJ.

REILLY, Presiding Judge.

Defendant appeals as of right from his conviction by a jury of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. He was sentenced to a term of fifteen to thirty years of imprisonment. Defendant contends that the trial court erred in refusing to admit into evidence the confession of defendant's brother and in applying sentencing guidelines enacted subsequent to the crime. We affirm.

According to the prosecution witnesses, in the early morning hours of January 24, 1988, Lester Horton, the victim, chased Demetrius Underwood, defendant's deaf brother, onto defendant Underwood's porch. Defendant let Demetrius inside. Horton, who was carrying a stick, pushed his way into the house following Demetrius. Defendant forced Horton back out of the door, across the porch and over the railing. Demetrius came outside and began to beat Horton, and at some point defendant also beat him. Demetrius struck Horton on the head several times with a stick. After Horton stopped screaming and lost consciousness, defendant and Demetrius dragged his body away from their house and placed it in a dumpster. Horton died of multiple injuries to the head and hypothermia. According to the pathologist, the head injuries were not fatal, but would have rendered Horton unconscious and unable to seek medical attention.

Defendant contends that the trial court erred in refusing to admit Demetrius' confession into evidence. In his statement to the police, Demetrius Underwood admitted that he and three of his friends struck Horton. According to the statement, defendant was not involved in hurting the victim, but was trying to stop the fight. At defendant's trial, Demetrius asserted his Fifth Amendment right against self-incrimination and refused to testify.

The decision whether to admit or exclude evidence is within the sound discretion of the trial court, and it will not be disturbed on appeal absent an abuse of that discretion. People v. Watkins, 176 Mich.App. 428, 430, 440 N.W.2d 36 (1989). An abuse of discretion will be found only if an unprejudiced person, considering the facts on which a trial court acted, would say that there was no justification or excuse for the ruling made. People v. Romano, 181 Mich.App. 204, 218, 448 N.W.2d 795 (1989); People v. Hamm, 100 Mich.App. 429, 438, 298 N.W.2d 896 (1980), lv. den. 411 Mich. 888 (1981).

MRE 804(b)(3) provides:

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.

To be admissible under this exception to the hearsay rule, a statement must be truly against the declarant's penal interest. People v. Conte, 152 Mich.App. 8, 11, 391 N.W.2d 763 (1986); People v. Williams, 136 Mich.App. 682, 686, 357 N.W.2d 741 (1984). In determining whether a statement is against the declarant's penal interest, the trial court must examine it 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 NW2d 880 (1981), lv den 412 Mich 857 (1981). [Conte, supra 152 Mich.App. at 12, 391 N.W.2d 763.]

While Demetrius' statement that he struck Horton was against his penal interest, his statement denying defendant's involvement was not. In addition, Demetrius' motive in denying his brother's involvement was suspect. He placed blame on three other men, whose presence at the scene of the beating was never mentioned by any of the other witnesses at trial, including defendant. The trial court reasonably concluded that Demetrius had an ulterior motive, in this case to protect his brother, in making his statement exculpating the defendant.

Furthermore, there were no corroborating circumstances to "clearly indicate the trustworthiness of the statement." MRE 804(b)(3); People v. Miller, 141 Mich.App. 637, 642, 367 N.W.2d 892 (1985). ¹ People v. Sanders, 163 Mich.App. 606, 610, 415 N.W.2d 218 (1987). In seeking to admit Demetrius' statement, defense counsel argued that the physical evidence and the testimony of Valentino Gibson constituted sufficient corroboration. However, the physical evidence did not exclude defendant's involvement in the beating and disposal of the unconscious victim, and Gibson testified that defendant admitted beating Horton and stomping on his face. Defendant admitted at trial, contrary to Demetrius' statement, that he helped his brother put the body behind a dumpster. Although defendant argues on appeal that none of the eyewitnesses testified to his striking Horton, Melvin Peoples testified both that he saw defendant beating Horton with his fists at some point during the fight and that he heard defendant suggest, "Let's put him in the dumpster." Under these circumstances, we cannot find that the trial court abused its discretion in refusing to admit Demetrius' confession.

Defendant also claims that the trial court erred in applying the sentencing guidelines enacted subsequent to his commission of the crime. The revised guidelines, which became effective on October 1, 1988, pursuant to Administrative Order No. 1988-4, 430 Mich ci, apply to sentences imposed after that date. People v. Ratowski, 181 Mich.App. 361, 362-363, 448 N.W.2d 841 (1989); People v. Potts, 181 Mich.App. 311, 313, 448 N.W.2d 820 (1989). Because defendant was sentenced on October 17, 1988, the trial court properly applied the revised guidelines. We are also persuaded that retroactive application of the revised guidelines does not violate the constitutional prohibition against ex post facto laws. See Ratowski, supra 181 Mich.App. at 364, 448 N.W.2d 841; People v. Davis, 181 Mich.App. 354, 358-360, 448 N.W.2d 842 (1989); Potts, supra 181 Mich.App. at 314, 448 N.W.2d 820.

Affirmed.

H.E. DEMING, J., concurred.

MICHAEL J. KELLY, Judge (dissenting).

I respectfully dissent.

I do not think there is any question that the statement given by Demetrius Underwood was against his penal interest at the time it was given and qualifies for admission under MRE 804(b)(3). It certainly tended to subject him to criminal liability and would have been admissible without a preliminary showing of corroborating circumstances which would indicate trustworthiness but for that requirement enacted in the Michigan Rules of Evidence. See People v. Ernest Edwards, 396 Mich. 551, 242 N.W.2d 739 (1976). The question then is whether or not "corroborating circumstances clearly indicate the trustworthiness of the statement."

In People v. Miller, 141 Mich.App. 637, 367 N.W.2d 892 (1985), this Court ruled that the defendant must show the corroborating circumstances. Similarly, in People v. Sanders, 163 Mich.App. 606, 415 N.W.2d 218 (1987), we found no abuse of discretion in excluding a statement...